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                                                                                [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ______________________

                                     No. 14-11585
                                ______________________

                     D. C. Docket No. 8:12-cr-00550-MSS-TGW-1

UNITED STATES OF AMERICA,

                                                                       Plaintiff-Appellee,

                                             versus

DEMETRIUS RENALDO BOWERS,
a.k.a. Fat Cat Bowers,
a.k.a. Casino Bowers,

                                                                   Defendant-Appellant.

                                  ____________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                               ____________________

                                     (January 22, 2016)

Before TJOFLAT and HULL, Circuit Judges, and HALL, * District Judge.



       * Honorable J. Randal Hall, United States District Judge for the Southern District of
Georgia, sitting by designation.
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HALL, District Judge:

      This case principally concerns what inferences jurors may permissibly draw

from identity evidence from multiple crimes. A jury found Defendant-Appellant

Demetrius Bowers guilty of eight counts of armed robbery in violation of

18 U.S.C. § 1951(a) and eight counts of carrying, using, and brandishing a weapon

in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The district court sentenced Bowers to

150 months for the § 1951(a) violations and to a mandatory 182 years for the

§ 924(c) violations, to run consecutively. On appeal, Bowers argues that the

district court erred in three ways: (1) by denying his motion to sever the charged

counts; (2) by denying his motion for judgment of acquittal based on insufficient

identity evidence; and (3) by applying § 924(c)’s mandatory sentencing provisions

in violation of the Constitution. After a thorough review of the case and with the

benefit of oral argument, we affirm.

                                I. BACKGROUND

A.    The District Court Proceedings

      On December 18, 2014, a grand jury charged Bowers with three counts of

robbery in violation of 18 U.S.C. § 1951(a) and three corresponding counts of

brandishing a weapon in violation of 18 U.S.C. § 924(c)(1)(A)(ii). In its pre-trial

order, the district court ordered that all pre-trial motions be filed by January 14,




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2013. Besides an unopposed motion to continue the trial, Bowers did not file any

motions by that date.

      Subsequently, on April 16, 2013, a grand jury returned a superseding

indictment charging Bowers with eight counts of armed robbery under

18 U.S.C § 1951(a) and eight counts of using, carrying, and brandishing a firearm

during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). In light of

the superseding indictment, the district court reopened the period for pre-trial

motions and set a new deadline of May 1, 2013. Again Bowers did not file any

motions before the deadline. On June 5, 2013, Bowers filed a motion to sever the

sixteen counts into eight separate trials, one for each alleged robbery. When the

motion was filed, Bowers’s trial was scheduled to start twelve days later on June

17, 2013.

      In its order denying severance, the district court observed that “[a]t no time

has Defendant filed a motion requesting additional time to file pretrial motions nor

has he shown good cause for filing his motion to sever at this late date.” The court

thus denied Bowers’s motion as untimely. The district court also denied Bowers’s

motion to sever on the merits, finding that joinder of the claims was proper and

that any potential prejudice could be cured by use of Eleventh Circuit Pattern Jury

Instruction B-10.2.




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      Thereafter, Bowers proceeded to trial on all sixteen counts. At the close of

the Government’s case, Bowers moved for judgment of acquittal on the grounds

that the Government failed to present sufficient evidence identifying him as the

perpetrator of all eight robberies. The court deferred ruling on the motion pursuant

to Federal Rule of Criminal Procedure 29(b). Bowers later renewed his motion

after the Government did not present a rebuttal case and the court again deferred its

ruling. After a four-day trial, the jury found Bowers guilty on all sixteen counts.

Bowers then renewed his motion a second time and also moved for a new trial.

The court denied both motions.

       Prior to sentencing, Bowers moved to declare 18 U.S.C. §§ 924(c)(1)(A)(ii)

and 924(c)(1)(C)(i) unconstitutional on their face and as applied against him. After

argument at the sentencing hearing, the district court denied Bowers’s motion and

sentenced him to consecutive terms of imprisonment of 140 months for the

§ 1951(a) violations and a mandatory 182 years for the § 924(c)(1)(A)(ii)

violations. Bowers timely appealed the denial of his motions to sever, for

judgment of acquittal, and challenging the constitutionality of his 182-year

sentence for the § 924(c) convictions.

B.    Evidence Presented at Trial

      Because there are eight alleged robberies in this case, the evidence is

relatively voluminous, although not particularly complex. The admitted evidence

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consists primarily of witness descriptions of the robberies and the perpetrator, law

enforcement testimony regarding the investigation, the crime scenes, DNA

evidence, and cell phone “hit” evidence. We recount the evidence in detail to

determine whether it was sufficient to support the jury’s verdict. The evidence

below is taken in the light most favorable to the government. See United States v.

Isnadin, 742 F.3d 1278, 1303 (11th Cir. 2014).

      1.     Bowers’s Ownership of a MetroPCS Cell Phone and Related
             Identifying Evidence
      The following evidence was introduced to establish that Bowers possessed a

cell phone that was connected to the robberies. In April 2012, a MetroPCS cell

phone account was opened in the name of “Strizzle Young.” The account’s phone

number was associated with a Kyocera Domino grape-colored cell phone. In June

and November, two photographs of Bowers were saved to the phone, and in

October a text message addressed to “Demetrius” was sent to the phone.

      In September 2012, Bowers opened an account with Amscot Financial, a

provider of financial services such as money transfers, which he used to receive

three money transfers. Each time he received money via Amscot, he listed the

number associated with the MetroPCS account as his mobile phone. On

September 11, 2012, the first time he received a money transfer, Bowers listed

12464 Tansboro Street, Spring Hill, Florida, 34608 as his address. Testimony

from Bowers’s ex-girlfriend, who lived at that address, established that Bowers

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lived there in September 2012 and that he moved out at an unspecified date in

October. Each time he received money via Amscot, Bowers provided a copy of his

Florida Driver’s License, which describes Bowers as 5'10" tall. Additionally,

Bowers used his EBT card in areas and at times that correspond with cell phone

tower hits generated by the MetroPCS phone.

      At the time of Bowers’s arrest on November 21, 2012, he possessed a

MetroPCS Kyocera Domino grape-colored cell phone. Officers called the number

they believed to be associated with Bowers and the phone rang, at which point

Bowers “became upset” and yelled to people in the area to turn off his phone.

Further, on a call from the jail, he stated that “they got my calls logged,” referring,

apparently, to the MetroPCS call log that the Government later introduced at trial.

On another call, a female speaker momentarily referred to Bowers as “Strizzle”

before he immediately interrupted her. Bowers replied that she should “tighten

up,” she was “tripping,” and clarified that he was referring to “what you chirping”

and “what you just hollered.”

      The Government also introduced an incriminating text message sent from

his phone. On October 29, 2012, after six of the robberies occurred, Bowers sent a

message indicating he intended to move into a new residence that cost $1,000 a

month in rent. A wage-and-hour report indicated that Bowers received only

$1,649.07 in total wages during the second and third quarters of 2012.

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       An analyst and record custodian from MetroPCS testified as a fact witness

regarding cell phone towers and telephone records. 1 He explained that when cell

phones are carried from location to location while activated, they hit cell towers in

the network. Notably, on MetroPCS’s network, this only occurs while a call is

taking place, not when a phone is simply turned on while traveling. Hit records are

maintained by cell service providers’ call logs, including MetroPCS. An agent

with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATF) testified

concerning the call logs and cell tower data. He determined that Bowers’s cell

phone was “not in use” during the robberies, but that the cell phone data during the

surrounding hours “could not eliminate” Bowers as a possible perpetrator. His

specific testimony regarding each robbery is addressed below.

       2.      Papa John’s (Tampa, Florida), 9/23/2012

       The first charged robbery occurred on September 23, 2012 at 1:10 a.m. at a

Papa John’s restaurant on 7891 Gunn Highway in Tampa, Florida. The robber

used a concrete paver to shatter a window adjacent to the entry door. Two

employees were present when the robber entered. The first employee witness

described the robber as an African-American male, taller than herself and a normal




       1
          The Government offered the analyst as an expert, but the district court only allowed him
to testify as a fact witness.

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weight, wearing a black turtle neck, ribbed ski mask and black shoes, and carrying

a black gun.

      The second employee witness described the robber as an African-American

male, being approximately 6'0" tall and weighing a little less than 180 pounds.

According to the employee, the robber carried a small-caliber black handgun and

wore a dark long-sleeved shirt, dark pants, and gloves. Notably, this employee

also described the robber as wearing a knit mask that looked like a beanie that was

rolled down with holes cut out of it. He said it almost resembled a ski mask.

      A Hillsborough County Sheriff’s K-9 Deputy responded to the scene ten

minutes after the robbery. While searching the parking lot and area surrounding

the Papa John’s, the deputy noticed a dark object along a fence sixty yards away.

As he approached, his canine alerted to the object. The object was a black wool

cap with two eye holes, but no mouth hole, cut out. The cap was submitted to the

Florida Department of Law Enforcement for DNA testing and returned four

possible contributors of DNA on the cap’s exterior; however, no major contributor

could be determined. Regarding the cap’s interior, a crime laboratory analyst

stated that there were at least three contributors of DNA on the interior cap sample

and that one person was a “major contributor at all 15 areas, meaning one person

contributed a greater quantity of DNA in the mixture than the other contributors.”

At that time, however, no suspect had been identified and the analyst did not

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compare the cap’s major DNA contributor to any other DNA samples. A second

analyst testified that, at a later date, she ran a direct comparison of DNA collected

from Bowers with the DNA profile of the cap’s major contributor. The analyst

found that Bowers’s DNA was “an exact match” with the major contributor’s. The

analyst did, however, testify that the presence of Bowers’s DNA as the major

contributor could not establish that he wore the cap at the Papa John’s robbery.

       Additionally, the BATF agent testified that on September 22, at 11:17 p.m.,

Bowers’s phone hit a cell tower approximately 20 to 30 miles from the Papa

John’s. No hits were recorded during the robbery, which occurred at 1:11 a.m. on

September 23. At 2:19 a.m., his phone hit a tower approximately 10 miles from

the Papa John’s. 2

       3.     Pizza Hut (Largo, Florida), 9/25/2012

       At approximately 12:31 a.m. on September 25, 2012, a robber used a brick

to shatter the glass door to a Pizza Hut restaurant at 4335 East Bay Drive in Largo,

Florida, which is in Pinellas County. There were two employees present at that

time. The first employee testified that the robber then entered by proceeding

underneath the “push bar” in the shattered door. Further, he testified that the

robber wore dark clothes, including a black ski mask, and carried a black 9



       2
         On appeal, Bowers does not challenge the admissibility of the cell phone evidence
regarding the time and location of his calls.
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millimeter Glock handgun. He also testified that the robber instructed him to place

money in a bag. The second witness similarly testified that the robber was wearing

dark clothing and a mask, and carried a black gun.

      On this occasion, records placed Bowers’s cell phone within a few miles of

the store, with the last hit before the robbery occurring at 10:42 p.m. on September

24. Thirteen minutes after the robbery, records showed that the cell phone hit

towers moving eastward along the Howard Franklin Bridge, which spans Tampa

Bay and connects Pinellas County to Hillsborough County.

      4.     Domino’s Pizza (Spring Hill, Florida), 9/27/2012

      On September 27, 2012 at 12:15 a.m., a robbery occurred at the Domino’s

Pizza restaurant at 13081 Spring Hill Drive, in Spring Hill, Florida, approximately

six and a half miles from Bowers’s Tansboro Street residence. The robber threw a

green paver through the glass door and entered through the broken glass below the

push bar. Three employees were initially present, though two fled after seeing the

robber enter. All three employees saw a gun. The employee who remained

described the robber as wearing dark clothes, dark gloves, and a mask with small

holes cut out by scissors. He also described the robber as having some facial hair

that protruded from the mask. The BATF agent testified that a distinctive green

paver was used to break the glass door at the Domino’s and was recovered at the

scene. The agent checked the area surrounding Domino’s and did not find a

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similar paver. But he found a similar paver at a residence about 150 yards from the

Tansboro Street address where Bowers lived in September 2012.

      On September 26, Bowers’s phone hit a tower approximately four miles

from the Domino’s at 11:19 p.m. Fourteen minutes after the robbery, his phone hit

a tower approximately two miles away from the Domino’s.

      5.     Pizza Hut (Tampa, Florida), 10/7/2012

      On October 7, at 1:06 a.m., the Pizza Hut restaurant at 902 Busch Boulevard

in Tampa was robbed. The manager, her husband, and their five-year-old daughter

were present. The manager testified that she saw a brick thrown through the door

and then witnessed one robber climb through the broken glass. He told her to give

him the money, but the manager tossed a deposit bag filled with money toward the

door instead. According to her testimony, a second robber reached through the

glass and grabbed the deposit bag from inside the restaurant. The manager

testified that the first robber was wearing a mask. Her husband said the first robber

was African-American and wore a long-sleeved shirt and gloves, but, unlike his

wife, testified that the first robber wore a shirt wrapped around his face. He

described the gun as a black automatic gun with a chrome barrel. The BATF agent

testified that Bowers’s phone hit a tower approximately four miles from the Pizza

Hut at 12:20 a.m. After the robbery, at 2:17 a.m., Bowers’s phone hit a tower six

miles away from the restaurant.

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      6.     Wendy’s (Tampa, Florida), 10/14/2012

      On October 14, at 2:41 a.m., a robbery occurred at a Wendy’s restaurant on

Bruce B. Downs Boulevard in Tampa. An officer testified that the glass door was

shattered by a rock or a piece of concrete. Witness testimony and video evidence

demonstrated that the robber wore gloves and a ski mask, and used a black and

silver gun. The robber demanded that money be placed in a bag.

      The Government introduced video and still pictures from the robbery. A

still photo appears to show facial hair or a distinctive chin similar to Bowers. The

BATF agent also pointed out that the robber carried a gun in his right hand and

wore a mask with a white label or tag on the outside. Bowers’s phone hit a tower

less than one mile from the Wendy’s approximately thirty minutes prior to the

robbery. After the robbery, Bowers’s phone hit a tower less than four miles

southwest of the Wendy’s.

      7.     Pizza Hut (Lutz, Florida), 10/16/2012

      On October 16, at 11:30 p.m., a robbery occurred at a Pizza Hut restaurant in

Lutz, Florida. The only employee present testified that the front door was still

unlocked when the robbery occurred. Notwithstanding the door being unlocked,

the robber threw a concrete brick through the glass door and climbed through the

bottom. The employee described the robber as an African-American male wearing

black pants, a black shirt, black gloves, and a ski mask with eyes cut out.

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According to her testimony, he also possessed a black gun. He demanded she

place money in a bag. The responding officer who investigated the scene testified

that it was the first time in his experience that he had seen a brick thrown through a

glass door of an open business.

      The BATF agent testified that at 10:23 p.m., Bowers’s phone hit a tower

approximately nine miles from the Pizza Hut. Seventeen minutes after the robbery,

his phone hit a tower three miles from the restaurant.

      8.     Burger King (Tampa, Florida), 11/1/2012

      On November 1, at 3:06 a.m., a Burger King restaurant at 4103 W.

Hillsborough in Tampa was robbed. Two employees were present. One witness

testified that two masked robbers dressed in black broke the glass door with a

concrete block to gain entry to the store and then jumped over the front counter.

According to testimony, one robber had a black gun. Video and photographic

evidence showed both robbers dressed in black. One robber wore black gloves and

a mask with a white tag or label.

      The BATF agent testified that Bowers’s physical appearance was consistent

with that of the robber with the mask with a white tag. He also testified that

Bowers’s phone hit a tower three miles from the robbery at 1:16 a.m. Thirty

minutes after the robbery, his phone hit a tower approximately six miles from the

Burger King.

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      9.     Pizza Hut (Lutz, Florida), 11/4/2012

      The final charged robbery occurred on November 4, 2012 at 11:30 p.m. at

the same Pizza Hut in Lutz, Florida that was robbed on October 16. The same

responding officer from the October 16 robbery responded to this robbery and

testified that the restaurant’s glass door was unlocked, but had been smashed by a

brick or block on this occasion as well. The sole employee present testified that he

heard the robber throw the brick at the door twice, breaking the glass on the second

throw. Because the hole was not big enough to crawl through, the robber simply

opened the door and walked in. The employee witness described the robber as

wearing all black, with black gloves and a black mask with holes cut out, and

carrying a black 9 millimeter gun. He described the robber as an

African-American male, approximately 5'8" to 5'10" tall. The robber demanded

that he put money in a bag.

      The BATF agent testified that at 10:20 p.m. Bowers’s phone hit the same

tower it did prior to the October 16 Lutz Pizza Hut robbery. Five minutes after the

robbery, his phone hit the same tower again.

      10.    Modus Operandi Evidence

      The BATF agent testified that the similarity and “boldness” of the robberies

were the features that led him to believe that one individual or group of individuals




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committed the robberies. In particular, the agent testified on the distinctiveness of

the method of entry:

             Almost all the armed robberies I’ve investigated, at least
             for sure the armed robberies I’ve investigated as an
             BATF agent in which we review the crimes that were
             initially investigated by the local responding agency.

                    When it’s an occupied structure, especially at night
             when it’s lit inside, entry is usually gained either mainly
             walking through the front door when the place is still
             open, or waiting for an employee to exit the store, either
             through a back door to empty the trash or walking to their
             car at the end of the day. They will usually take control
             of that person and use them to gain access into the
             business.

                    This allows for—well, regardless, the—I have yet
             to see in my capacity as an BATF agent the abrupt entry
             where they throw a brick through the door. It went
             against what I’ve normally seen in that by throwing the
             brick or the paver, which we refer to, another thing that
             made me think it was the same individual, we refer to as
             a signature, it shattered the main entrance to the door
             that’s illuminated or a glass entrance that can be observed
             from the outside. . . .

He also noted the similar descriptions of the gun used in the robbery and the timing

of the robberies. Another officer, who responded to both the October 16 and

November 4 Pizza Hut robberies, also testified that these were the first robberies

he had seen where a robber threw a brick through an unlocked glass door of an

open business.




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                               II. DISCUSSION

      Below we address each error raised by Bowers in the order of the

proceedings below, beginning with his motion to sever.

A.    Bowers’s Motion to Sever

      1.    Standard of Review

      As an initial matter, we must determine whether the pre-amendment version

of Federal Rule of Criminal Procedure 12, which governed the district court

proceedings, or the amended version of Rule 12, which went into effect on

December 1, 2014, governs this appeal. In their appellate briefs, Bowers and the

Government addressed only the application of pre-amendment Rule 12. In

particular, the Government relied heavily on pre-amendment Rule 12(e)’s waiver

provision and our prior circuit precedent reviewing the denial of untimely motions.

See Fed. R. Crim. Proc. 12(e) (2013); United States v. Smith, 918 F.2d 1501, 1509

(11th Cir. 1990) (finding no abuse of discretion in denying an untimely motion

where defendant did not argue good cause).

      Meanwhile, between briefing in this case and oral argument, this Circuit

ruled that amended Rule 12 would apply to cases on appeal where “just and

practicable.” United States v. Sperrazza, 804 F.3d 1113, 1121 (11th Cir. 2015). In

supplemental authority, the Government conceded that it would be just and

practicable to apply amended Rule 12 to Bowers’s appeal. We agree. Because

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there is no reason amended Rule 12’s application to this case on appeal would

prejudice Bowers, Sperrazza’s “just and practicable” test is satisfied. See id.

      That we should apply the amended rule in this case is clear; how to apply the

rule is a different matter. Bowers moved to sever the indicted counts after the

district court’s pre-trial-motion deadline, but before his trial, and with no attempt

to establish good cause for his delay. His motion was, therefore, untimely under

pre-amendment Rule 12(e) and would likewise be untimely under amended Rule

12(c)(3). Under Sperrazza’s interpretation of amended Rule 12(c)(3), untimely

motions are forfeited rather than waived. Sperrazza, 804 F.3d 1113 at 1121.

Bowers’s severance claim is therefore forfeited, making it entitled to plain-error

review. Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731, 113 S.

Ct. 1770, 1776 (1993).

      Applying plain-error review, “[w]e may reverse a conviction . . . if we find

that four prongs are met: there must be (1) an error (2) that is plain and (3) that has

affected the defendant’s substantial rights; and if the first three prongs are satisfied,

we may exercise discretion to correct the error if (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” United States v.

Madden, 733 F.3d 1314, 1322 (11th Cir. 2013) (citing Olano, 507 U.S. at 732, 113

S. Ct. at 1776 ).




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      2.     Analysis

      In applying plain-error review, the first step is to identify an error committed

by the district court; therefore, we review the denial of severance to determine if

the district court committed error.

      When reviewing motions to sever, we first address whether joinder of the

counts was proper under Federal Rule of Criminal Procedure 8(a) before

proceeding to a prejudice analysis under Rule 14(a). See United States v.

Barsoum, 763 F.3d 1321, 1337 (11th Cir. 2014). Bowers never challenged joinder,

and we agree with the district court that Rule 8(a)’s “same or similar character”

prong was satisfied. If joinder is appropriate, then Rule 14(a) gives district courts

the discretion to “order separate trials of counts” when “the joinder of offenses . . .

appears to prejudice a defendant . . . .” Fed. R. Crim. P. 14(a). For the denial of a

motion to sever to be error under Rule 14(a), a defendant must demonstrate that

failure to sever “result[ed] in compelling prejudice against which the district court

could offer no protection.” United States v. Walser, 3 F.3d 380, 385 (11th Cir.

1993). In Walser, we defined the test for compelling prejudice as

             whether under all the circumstances of a particular case it
             is within the capacity of jurors to follow a court’s
             limiting instructions and appraise the independent
             evidence against a defendant solely on that defendant’s
             own acts, statements, and conduct in relation to the
             allegations contained in the indictment and render a fair
             and impartial verdict.

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Id. at 386–387. And if a jury can do so, then no compelling prejudice results. Id.

at 387. Even where there may be some risk of prejudice, “if the possible prejudice

may be cured by a cautionary instruction severance is not required.” Id. Further,

“absent evidence to the contrary, we presume that the jury followed the court’s

instructions . . . .” Id. (citing United States v. Badia, 827 F.2d 1458, 1466 (11th

Cir. 1987)).

      In Bowers’s view, events at trial reveal that the jury was unable to follow the

district court’s instruction and that compelling prejudice occurred from the jointly

tried counts. This prejudice allegedly occurred in two related ways: jury confusion

and the impermissible cumulation of evidence. Regarding jury confusion, Bowers

argues that the Government’s presentation of evidence, particularly how they

“shifted back and forth among the eight robbery cases,” led to confusion. In

support, he points to one juror asking for a “timeline as to each count.” He

concludes on this point by alleging that “the jury was apparently left confused and

overwhelmed,” leading to a conviction without sufficient evidence as to the

individual charges.

      The alleged confusion is not enough to satisfy the compelling-prejudice

standard. It is worth noting that Bowers conceded that the robberies occurred on

the dates alleged in the indictment, and substantial evidence was presented at trial

that they in fact did. Given what was disputed in this case—who the robber was,

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not when the robberies occurred—it was more important that the Government

introduced evidence of the individual robberies together than strict adherence to

the chronology of the robberies. In sum, it is unremarkable that a juror might want

a timeline in a case with multiple alleged offenses, and it is conclusory to suggest

this alleged confusion resulted in compelling prejudice in a case where the order

and dates of the robberies were not disputed and not particularly relevant to what

was in dispute.3

       Bowers also argues that the jury may have improperly cumulated the

evidence to infer guilt. In his view, the presence of eight alleged robberies in the

same trial “likely bolstered the Government’s evidence as to the first-in-time

robbery,” as well as the other seven robberies. This, however, is merely

speculation and is not supported by the record. See Barsoum, 763 F.3d at 1337

(rejecting an argument that the jury may have cumulated evidence as speculation).

Besides the alleged juror confusion discussed above, nothing during the trial

suggested the jury could not properly weigh the evidence. Simply put, the jury

was not invited to find Bowers guilty by improperly cumulating unrelated evidence

from joined counts. As we explain infra Part II.B.2, it is the relatedness of the


       3
          The only chronological relevance of the robberies’ dates concerns the evidence of when
Bowers was living at 12464 Tansboro Street. Bowers’s ex-girlfriend’s testimony established that
he lived there in September and moved out on an unspecified date in October. The jury was
capable of understanding that testimony’s implications regardless of the order in which the
robberies were presented.

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joined robberies that permitted the jury to use identity evidence from other

robberies to determine the robber’s identity.

      Finally, in many cases we have discussed how jury instructions can cure the

potential prejudice from improperly cumulating the evidence. For instance, in

Walser the district court “instructed the jury to consider each charge in the

indictment separately and not to permit a verdict on one count to affect

deliberations regarding another count.” Walser, 3 F.3d at 387; see also Barsoum,

763 F.3d at 1337; United States v. York, 428 F.3d 1325, 1334 (11th Cir. 2005);

United States v. Hersh, 297 F.3d 1233, 1244 (11th Cir. 2002). In its pre-trial order

denying Bowers’s motion to sever, the district court stated its intention to include

Eleventh Circuit Pattern Instruction B-10.2 in its jury charges and, consistent with

its order, the district court did so. 4 There is no indication that the jury was unable




      4
          Eleventh Circuit Pattern Instruction B-10.2 provides:

                Each count of the indictment charges a separate crime. You must
                consider each crime and the evidence relating to it separately. If
                you find the Defendant guilty or not guilty of one crime, that must
                not affect your verdict for any other crime.

                I caution you that the Defendant is on trial only for the specific
                crimes charged in the indictment. You’re here to determine from
                the evidence in this case whether the Defendant is guilty or not
                guilty of those specific crimes.

                You must never consider punishment in any way to decide whether
                the Defendant is guilty. If you find the Defendant guilty, the
                punishment is for the Judge alone to decide later.

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to follow the district court’s charge to consider the counts separately. In sum,

Bowers has not overcome the presumption that jurors are able to follow the court’s

instruction to separately consider the evidence relating to each count.

      Finding error in the district court’s failure to sever counts requires “more

than some prejudice . . . be shown; the appellant must demonstrate that he received

an unfair trial and suffered compelling prejudice.” Walser, 3 F.3d at 386 ( quoting

United States v. Harmas, 974 F.2d 1262, 1269 (11th Cir.1992)). Bowers can only

speculate about the possibility of prejudice. Further, if he did suffer any prejudice,

it was “not ‘compelling’ to the extent that ‘he received an unfair trial.’” United

States v. Slaughter, 708 F.3d 1208, 1213–14 (11th Cir. 2013) (quoting Walser, 3

F.3d at 386). Because Bowers cannot demonstrate that he suffered compelling

prejudice from the joinder of claims, the district court did not commit error, much

less plain error, in denying his motion. See United States v. Soto, 794 F.3d 635,

657 (6th Cir. 2015) (holding that, where there was no error in the denial of




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severance under Federal Rule of Criminal Procedure 14(a), there was likewise no

plain error).5

B.     Sufficiency of the Evidence

       1.        Standard of Review

       We review de novo whether the evidence presented at trial is sufficient to

support the jury’s verdict. Isnadin, 742 F.3d at 1303. “[We] consider whether,

under the totality of the circumstances, there is sufficient evidence to support a jury

verdict when the facts are viewed in the light most favorable to the government.”

United States v. Mieres-Borges, 919 F.2d 652, 658 (11th Cir. 1990). “Evidence is

sufficient to support a conviction if a reasonable trier of fact could find that the

evidence established guilt beyond a reasonable doubt.” United States v. Maxwell,

579 F.3d 1282, 1299 (11th Cir. 2009) (internal quotations and citations omitted).



       5
          In some of our severance cases, we have discussed whether evidence that was admitted
at trial would have been admissible at a hypothetical severed trial. E.g., United States v. Lopez,
649 F.3d 1222, 1238 (11th Cir. 2011) (finding that co-defendant’s statement would have been
admissible in severed trial as co-conspirator’s statement). But even if the evidence would be
inadmissible in such a trial, compelling prejudice does not necessarily result from a joined trial.
United States v. Harper, 680 F.2d 731, 734 (11th Cir. 1982) (“admissibility is not required in
order for the denial of severance to be within the district court’s discretion”). Here, Bowers
never argued to the district court or on appeal that evidence from the other robberies would have
been inadmissible at a severed trial. We therefore decline to engage in a lengthy hypothetical on
this point. We note only that, in a hypothetical severed trial, under Federal Rule of Evidence
404(b), modus operandi evidence and other extrinsic evidence are admissible to prove identity,
and a reasonable juror could have found by a preponderance of the evidence that Bowers
committed the extrinsic robberies, thus permitting admission subject to Federal Rule of Evidence
403. See United States v. Whatley, 719 F.3d 1206, 1217–19 (11th Cir. 2013); see also United
States v. Miller, 959 F.2d 1535, 1538 (11th Cir. 1992) (en banc).

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Further, “[i]t is not enough for a defendant to put forth a reasonable hypothesis of

innocence, because the issue is not whether a jury reasonably could have acquitted

but whether it reasonably could have found guilt beyond a reasonable doubt.”

United States v. Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006) (citing Mieres-

Borges, 919 F.2d at 656).

      Additionally, “no distinction is to be made between the weight given to

either direct or circumstantial evidence.” Mieres-Borges, 919 F.2d at 657 (quoting

United States v. Gonzalez, 719 F.2d 1516, 1521 (11th Cir.1983)). But “[w]here the

[G]overnment relies on circumstantial evidence, ‘reasonable inferences, and not

mere speculation, must support the jury's verdict.’” United States v. Klopf, 423

F.3d 1228, 1236 (11th Cir. 2005) (quoting United States v. Perez-Tosta, 36 F.3d

1552, 1557 (11th Cir.1994)).

      2.     Analysis

      Bowers challenges the sufficiency of the evidence on the jury’s conviction

on all sixteen counts. In particular, he disputes the sufficiency of the evidence

identifying him as the perpetrator of the eight robberies. Below we consider

Bowers’s challenge in two parts. First, we address whether there is sufficient

evidence that the same individual committed the eight robberies in question, and,

second, we discuss whether sufficient evidence identifies Bowers as that

individual. We hold that a reasonable juror could have found beyond a reasonable

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doubt that Bowers committed all eight robberies and found Bowers guilty on all

sixteen counts.

      The evidence established that the eight robberies in question are sufficiently

similar that a reasonable juror could conclude that each was committed by the

same individual. We proceed from the general similarities to the most specific.

The eight robberies were committed over six weeks between September 23, 2012

and November 4, 2012. The robberies were committed in Hernando, Hillsborough,

and Pinellas Counties. All eight robberies were committed against fast food

restaurants. More specifically, six of the eight robberies were against pizza

restaurants, including the same Pizza Hut on two occasions. The robberies were all

committed at night, with the six pizza restaurant robberies being particularly close

in time—between 11:30 p.m. and 1:10 a.m.

      Moving to more specific instances of similarity, the witness descriptions of

the perpetrator support the jury’s conclusion that the same individual committed all

eight robberies. The robber was consistently described as an African-American

male who was, for example, six-feet tall, a little bigger than 5'8", or between 5'8"

and 5'10" tall. Regarding his weight, witnesses described him as “average weight,”

“slender . . . weighing between 150 to 180 pounds,” and weighing more than one

witness who was 130 pounds. The robber was described as wearing all black and a

mask. The mask was variously described as a “ski mask,” “knit,” “wool,” or a

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“beanie” that had been modified to have eye holes. 6 These descriptions were

consistent with surveillance video and still photographs introduced from the

Burger King and Wendy’s robberies that depicted a robber wearing a long-sleeved

black shirt and a black mask with a white label on the back.

       Finally, and most importantly, the Government presented evidence of a

unique method of entry that was consistent among the robberies. On most

occasions, the robber approached the customer entry door and threw a brick or

piece of concrete through the glass below the “push” bar. Once the lower glass

was broken, the robber then entered by crouching and walking through the door,

under the bar.7 Similarly, at the Papa John’s robbery, the robber threw a concrete

paver through the store’s front window, adjacent to the entry door. Testimony by

the BATF agent and another officer supported the conclusion that entry by

breaking the glass of an entry door with a brick at an occupied or open business

was unique to these robberies.



       6
         One witness described the robber as wearing a shirt wrapped across his face, but another
witness from the same robbery described the same black knit mask consistent with the other
robberies. The jury was free to credit the testimony of the latter witness. Additionally, some
witnesses described the mask as having a hole for the mouth as well as the eyes. Given the other
consistencies in the robberies, the jury could conclude that the witnesses’ memories of the mouth
hole were faulty. In any event, taken in the light most favorable to the Government, such a
minor inconsistency in the descriptions of the mask does not demonstrate a different perpetrator.
       7
         At the November 4 Pizza Hut robbery, the robber threw a brick through the lower glass,
but, because the glass was only partially shattered, proceeded to enter by opening the door in the
typical way.

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      There are, however, some inconsistencies between the robberies. Most

notably, two robberies featured two perpetrators. During the October 7 Pizza Hut

robbery, a store employee threw the restaurant’s deposit bag toward the entry door

and a second robber reached from outside the door to retrieve it. And at the

November 1 Burger King robbery, two people broke the glass door with a concrete

block and robbed the restaurant. The Government, however, presented video and

still pictures that showed a robber wearing a mask with a white label or tag at both

the Burger King robbery, which two robbers committed, and the October 14

Wendy’s robbery, which one robber committed. A reasonable juror could

conclude that this white-label robber was present at all eight robberies, even if

joined by a second person for two robberies. Additionally, there are slight

discrepancies between the witness descriptions regarding the gun used, the mask

and other clothing worn, and the robber’s physical appearance. Those

discrepancies are minor in nature and the jury was free to conclude that they

resulted more from imperfect witness memories than from material differences in

the robberies.

      Notwithstanding these differences, taking the evidence in the light most

favorable to the Government, a reasonable juror could conclude that the same

person committed all eight robberies. That conclusion is supported by generally

consistent witness descriptions, the similarity in the restaurants targeted, the

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relative consistency in time of day, the short period of time during which all

robberies were committed, the geographic proximity of the robberies, and the

consistent method of entry. All told, the robber used a consistent and unique

modus operandi in his commission of these robberies. Cf. Whatley, 719 F.3d at

1217–19 (discussing, in the context of admission of evidence, the similarity among

robberies required to establish a modus operandi). The question then becomes,

could a reasonable juror conclude beyond a reasonable doubt that Bowers was the

robber? Answering that question requires different evidence, which we now

address.

      The primary evidence linking Bowers to the robberies includes: (1) DNA

evidence from the Papa John’s robbery; (2) witness descriptions of the robber; (3)

cell phone hit evidence; (4) Bowers’s own inculpatory statements; and (5) the

similarity between green pavers near Bowers’s Tansboro Street residence and the

one found at the Domino’s robbery.

      Perhaps the most important piece of evidence is the mask found at the first

robbery. The mask was discovered approximately 150 yards from the entrance to

the Papa John’s, around the corner of the small shopping center that included the

Papa John’s, and close to a fence that divided the stores from nearby residences.

The “mask” is actually a black wool cap that was modified to have eye holes and

was apparently worn by pulling it over the perpetrator’s head and across his face,

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at which point it resembled a ski mask. The modified cap found at the Papa John’s

is consistent with witness descriptions of the “mask” used at the other robberies.

An expert from the Florida Department of Law Enforcement testified that

Bowers’s DNA is the “predominant” match with DNA found on the inside of the

cap. As Bowers pointed out at trial, the expert could not conclude whether he wore

the mask the night of the robbery. Nevertheless, as we discuss in more detail

below, the presence of a cap possessing Bowers’s DNA that matches the

description of the mask worn by the robber is circumstantial evidence that the jury

may properly consider.

      Additionally, Bowers’s own body type was consistent with witness

descriptions of the robber. Bowers’s driver’s license lists him as 5'10" tall.

Surveillance footage of the Burger King and Wendy’s robberies shows a robber

wearing a long-sleeved black shirt and a black mask with a white tag. According

to the BATF agent’s testimony, that robber’s physical appearance resembles

Bowers’s. Additionally, one witness testified that he could see that the robber had

facial hair or a goatee and video and photographs from the Wendy’s robbery also

showed what appeared to be the robber’s facial hair. In its order denying Bowers’s

motion for judgment of acquittal, the district court observed that Bowers had a

goatee that was consistent with the testimony and video. The jury also could

observe Bowers’s goatee and physical appearance during the trial.

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       Additionally, the testimony of the BATF agent and the call logs introduced

at trial place Bowers in relative proximity to each of the robberies. As an initial

matter, substantial evidence supported Bowers’s possession of the MetroPCS

Kyocera Domino cell phone during the relevant six-week period. See supra Part

I.B.1. Testimony established that whenever an incoming or outgoing call is made

on MetroPCS’s network, the cell phone “hits” a tower within two miles of the

phone’s location. The testimony made clear that the cell phone only hits towers

while a call is connected and not when it is merely on or, for instance, a call is

made but not answered. The call logs and the agent’s testimony place Bowers’s

cell phone and, by inference, Bowers in the general vicinity and often close

proximity of the robberies. 8 Further, Bowers never hit a tower during a robbery,

which is consistent with him not making or accepting any calls during the

robberies. The most salient feature of the call logs is the relation between the

timing of the hits and the distance from the robberies when they occurred. On each

occasion, pre- and post-robbery hits are consistent with an inference that Bowers

drove to and from the robbery.

       A jury could, of course, make a reasonable inference of innocence from

these call logs. For instance, that no calls ever connected while the robberies were


       8
         For greater detail on the proximity of the cell tower hits from each robbery, see supra
Parts I.B.2–9.

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occurring could simply be a reflection of the short time the robberies took, rather

than evidence that Bowers turned his cell phone off or refrained from placing calls

during the robberies. Or, for another example, hitting towers in the Tampa area

could reflect the realities of driving in a dense city with numerous towers where, at

any given time, a driver could innocently drive by these restaurants. But we think

the jury could infer the less innocent explanation that on eight separate occasions,

late at night or in the early morning, Bowers was present at the robberies. 9

       The remaining pieces of evidence corroborate the evidence already

discussed. For one, Bowers’s text message suggests that he had enough money to

rent a $1,000 per month apartment. Given that Bowers’s wage-and-earnings report

indicates he made only $1,649.07 in the second and third quarters of 2012, the jury

was free to infer that some of his extra money was derived from the six robberies

that took place prior to the text message. Moreover, on multiple occasions Bowers

attempted to hide his possession of his MetroPCS cell phone. This began, of

course, by registering it under an alias rather than his full name and continued until

he was arrested and directed others to turn off his phone.




       9
         Below we discuss how the cell tower hits and other evidence allow certain inferences to
be drawn from the DNA evidence that may otherwise be impermissible. Similarly, the DNA
evidence allows the jury to infer more from the cell tower hit evidence than would otherwise be
permissible. As should be clear, this is not a case where the jury was presented with simply a
suspicious correlation between cell tower hits and robbery locations.

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      Finally, one of the pavers used by the robber has a particular connection to

Bowers. The perpetrator used a green paver to break the door of Domino’s Pizza

on September 27, 2012. The BATF agent testified that the green paver had a

“distinctive” appearance and that none like it was found near the Domino’s. There

were, however, similar green pavers found at a residence approximately 150 yards

from Bowers’s Tansboro Street residence. Bowers’s access to the unique kind of

paver used at the Domino’s robbery permits the inference that he committed the

robbery in question. Though not a particularly strong piece of evidence in its own

right, it is part of the totality of evidence the jury could consider.

      No one piece of evidence discussed above is dispositive in this case. But

courts instruct jurors to consider the totality of the evidence presented to determine

a verdict. Conversely, courts instruct jurors not to improperly cumulate evidence.

Said another way, courts instruct jurors to consider the totality of evidence related

to each crime while not using guilt of one crime as a substitute for evidence on

other charged crimes or using evidence related to one crime to convict on distinct,

unrelated crimes. We are convinced the jury did the former and not one of the

latter in this case. Considered in total and in the light most favorable to the

Government, sufficient evidence identifies Bowers as committing the eight

charged robberies.




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       Bowers’s contention related to the DNA evidence warrants further

discussion. Bowers argues that reliance on the DNA evidence from the Papa

John’s robbery requires an impermissible inference that, because his DNA was the

predominant match on the mask, he therefore was wearing the mask on the night in

question. In support, he cites United States v. Bonner, 648 F.3d 209 (4th Cir.

2011). In Bonner, two disguised men, one of whom was wearing a New York

Yankees baseball hat, robbed a Subway. Id. at 211. Later that night, the police

recovered a Yankees hat behind the Subway, which was identified as worn by the

robber. Id. at 212. The Government argued that, because the defendant’s DNA

was the “predominant” match on the hat, “it was reasonable for the jury to infer

that he was wearing the hat on the night of the robbery.” Id. at 214. The DNA

expert testified, however, that “he could not conclude who last wore the hat based

on the DNA.” Id. The Fourth Circuit held that “any assumption that Bonner was

the last wearer is an impermissible inference by the jury.” Id. 10 Three reasons




       10
         Other evidence was presented at trial, but was not discussed in detail by Bonner. The
Fourth Circuit summarized the evidence as:

              (1) a hat with multiple DNA matches worn by Bonner was also
              worn by one of the robbers; (2) Bonner's wallet, discovered in the
              alleged getaway car; (3) phone records showing calls from
              Bonner's cell phone to [his girlfriend] and [his cousin] the night
              after the robbery; and (4) a separate phone record showing a call
              from a nearby gas station to [his girlfriend].

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supported that holding. First, equally plausible scientific inferences supported

innocence. Id. at 214–15. Second, the argument that a jury could draw a scientific

inference from the predominance of the defendant’s DNA to his wearing the

Yankees hat that night was contrary to the evidence in the record. Id. at 215. And,

finally, a commitment to scrutinizing forensic evidence counseled against allowing

the jury to make an unsupported scientific inference. Id.

       To resolve this issue, we do not need to decide whether it is an

impermissible scientific inference to infer that Bowers was wearing the mask the

night of the Papa John’s robbery from only his DNA match, as the Fourth Circuit

did in Bonner. Instead, we hold that, where modus operandi evidence supports the

inference that the same individual committed multiple robberies, it is permissible




Bonner, 648 F.3d at 214. The Fourth Circuit noted that the district court found that the content of
the cell phone calls above was not in the record and therefore could have been innocuous. Id. at
213. Further, the district court discounted the evidence of the call from the gas station because
the call was hours after the police dogs had tracked the scent from the Yankees hat to the station.
Id. at 213–14.

        Besides recounting the district court’s views, the Fourth Circuit itself did not comment on
the non-DNA evidence and its existence appears to not factor into the opinion’s reasoning. The
Fourth Circuit possibly analyzed the case in this manner because the Government had explicitly
argued that the scientific inference was a permissible one, notwithstanding the expert’s contrary
testimony. Id. at 214 (“in this case, the government asked the jury to draw unwarranted
inferences based on two unconnected pieces of scientific evidence through argument instead of
specialized knowledge”). We think Bonner is best understood as resting on the permissible
inferences that can be drawn from the DNA evidence standing alone. See id. at 215 (discussing
three reasons that support the decision, all of which concern scientific evidence). Therefore, we
limit our discussion on Bonner to the DNA evidence and the inferences that may be drawn from
it.

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to consider identity evidence from the other robberies, including, in this case,

consistent physical descriptions and cell phone records, to corroborate the identity

DNA evidence from an initial robbery. See United States v. Burston, 159 F.3d

1328 (where Government “presented evidence that the same modus operandi was

used in [two] robberies . . . evidence of involvement in one provided some

evidence of involvement in the other.”). In other words, the additional identity

evidence from the other robberies transforms an impermissible scientific inference

under Bonner (i.e., that the defendant was wearing the hat on the night of the

robbery based on the predominance of his DNA), to a permissible one supported

by identity evidence from other robberies with a consistent modus operandi.

       We acknowledge that this is a close case. It is a notably weaker case than

United States v. Tate, 586 F.3d 936 (11th Cir. 2009), for example, which Bowers

attempted to distinguish at trial and on this appeal. 11 In Tate, the defendant was

charged with five bank robberies. Id. at 939. Those robberies were connected by a



       11
          Bowers also cites and distinguishes the evidence found to be sufficient in United States
v. Feliciano, 761 F.3d 1202 (11th Cir. 2014). His reliance on Feliciano is unhelpful. In that
case the defendant’s conviction on three robbery related offenses turned on the credibility of
testimony by two alleged co-conspirators against him. Id. at 1206–07. Credibility
determinations are the exclusive province of the jury, unless the testimony is “incredible as a
matter of law.” Id. at 1206 (quoting United States v. Chastain, 198 F.3d 1338, 1351 (11th Cir.
1999)). In Feliciano, direct testimony from two co-conspirators established that the defendant
committed the robberies; the jury credited that testimony and found the defendant guilty. Id. at
1207. The instant case is not about credibility determinations; rather, it is about the
reasonableness of juror inferences drawn from circumstantial evidence. Feliciano therefore is so
dissimilar as to be an unhelpful comparison for Bowers.

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consistent modus operandi where the robber, dressed in sunglasses and a baseball

hat, would hand the teller a withdrawal slip and demand money. Id. at 939–41.

The defendant’s fingerprints were found on the withdrawal slips from the

robberies. Id. at 944. Tellers from two of the banks testified that the defendant

was the robber. Id. at 940–41, 944. The distinction between Tate and this case is

the superior evidence presented in Tate that the defendant committed at least two

of the robberies. From there, the jury was able to infer from modus operandi

evidence that the defendant committed the other robberies as well. Id. at 945

(citing United States v. McDowell, 250 F.3d 1354, 1364 (11th Cir. 2001)).

      In Bowers’s case, the modus operandi evidence permits the jury to conclude

that one person committed all eight robberies. That conclusion makes identity

evidence from one robbery related to the other robberies. The relatedness of the

identity evidence means that jurors may properly consider identity evidence from,

for instance, the Papa John’s robbery to determine the identity of who robbed the

Domino’s, and so on. The totality of the identity evidence presented in this case is

sufficient to convict Bowers on all sixteen counts. Therefore, the district court’s

denial of Bowers’s motion for judgment of acquittal is affirmed.

C.    Sentencing

      Bowers’s third and final enumeration of error is a three-pronged challenge to

the constitutionality of his sentence. In particular, Bowers argues that his

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mandatory sentence under 18 U.S.C. § 924(c) violates: (1) separation of powers;

(2) due process and equal protection; and (3) the Eight Amendment. As Bowers

concedes, these arguments are foreclosed by prior Supreme Court and Eleventh

Circuit precedent. Because Bowers seeks to preserve a record of these issues, we

likewise recount the relevant facts and the precedents that control our decision. In

the end, we affirm the district court and find Bowers’s sentence constitutional.

      We review constitutional challenges to a sentence de novo. United States v.

Steed, 548 F.3d 961, 978 (11th Cir. 2008). Additionally, we are bound by the prior

panel decisions of this Court until those holdings are abrogated by the Supreme

Court or by this Court sitting en banc. Cargill v. Turpin, 120 F.3d 1366, 1386

(11th Cir. 1997).

      We begin with the mechanics of § 924(c) as applied in this case. The jury

found Bowers guilty of eight violations of 18 U.S.C. § 924(c)(1)(A)(ii) (Counts 2,

4, 6, 8, 10, 12, 14, and 16 ). Violations of § 924(c) carry mandatory-minimum

sentences that vary depending on the defendant’s predicate conduct and criminal

history. Relevant to Bowers’s case, § 924(c)(1)(A)(ii) provides that “if [a] firearm

is brandished” during the commission of any crime of violence, the perpetrator

“shall be sentenced to a term of imprisonment of not less than 7 years.” Further,

§ 924(c)(1)(C)(i) provides that “second or subsequent” § 924(c) violations carry a




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“sentence[] to a term of imprisonment of not less than 25 years.” 12 Finally,

§ 924 (c)(1)(D)(ii) prohibits courts from ordering that the sentences under both this

subsection and the underlying crime of violence run concurrently. Together these

three provisions mandated Bowers’s sentence. The district court sentenced Bowers

to seven years imprisonment for Count 2 and twenty-five years for each of Counts

4, 6, 8, 10, 12, 14, and 16, running consecutively. In sum, for the violations of

§ 924(c), Bowers was sentenced to 182 years in prison, to run consecutively after

his 140 months for the § 1951(a) violations.

       Beginning with the separation of powers challenge, this Court has rejected

separation of powers arguments against mandatory-minimum sentences in two

published opinions. United States v. Paige, 604 F.3d 1268, 1274 (11th Cir. 2014)

(per curiam); United States v. Holmes, 838 F.2d 1175, 1178 (11th Cir. 1988). In

Holmes, we held that the defendant’s “argument that the mandatory minimum

sentence requirements violate the separation of powers doctrine is without force.”

Holmes, 838 F.2d at 1178. We reasoned, “[i]t is for Congress to say what shall be

a crime and how that crime shall be punished . . . .” Id. (quoting United States v.

Smith, 686 F.2d 234, 239 (5th Cir.1982)). Likewise, in Paige, we affirmed a



       12
          This Court previously held, and the Supreme Court later confirmed, that additional
§ 924(c) counts charged in the same indictment are second and subsequent for purposes of
§ 924(c)(1)(A)(ii). United States v. Rawlings, 821 F.2d 1543, 1545 (11th Cir. 1987); see also
Deal v. United States, 508 U.S. 129, 113 S. Ct. 1993 (1993).

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mandatory fifteen-year sentence pursuant to 18 U.S.C. § 2251(e) over the

defendant’s separation of powers challenge. Paige, 604 F.3d at 1274 . Besides

these two opinions, we have only addressed this issue in unpublished opinions that

note the binding nature of prior circuit precedent. E.g., United States v.

Garrastequi, 371 F. App’x 22, 24 (11th Cir. 2010) (per curiam). Once again we

are bound by our precedent until a ruling of the Supreme Court or this Court sitting

en banc abrogates Holmes and Paige; hence, Bowers’s separation of powers

challenge must fail.

      Bowers also challenges § 924(c)’s mandatory-sentencing provisions on the

grounds that they deprive him of an individualized sentencing proceeding in

violation of due process and equal protection. His brief cites due process and equal

protection together, but, in truth, only argues a due process violation. Because he

concedes this issue under current precedent, we decline to separately address equal

protection and turn to his due process challenge.

      In Bowers’s view, the mandatory-sentencing provisions denied him due

process by effectively sentencing him to life in prison without consideration of

mitigating circumstances, including his “individualized history and character . . . or

the circumstances of the offense.” The Supreme Court has held—for purposes of

the Eighth Amendment— that an individualized sentencing determination is not

required in non-capital cases. Harmelin v. Michigan, 501 U.S. 957, 995, 111 S. Ct.

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2680, 2702 (1991). 13 With respect to due process, we have held that the lack of

individualized sentencing determinations under § 924(c) does not violate the

Constitution. United States v. Hamblin, 911 F.2d 551, 555 (11th Cir. 1990).

Accordingly, Bowers’s due process challenge is foreclosed.

       Finally, Bowers argues that his sentence violates the Eighth Amendment’s

prohibition of cruel and unusual punishment. “[T]he Eighth Amendment contains

a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’” Ewing

v. California, 538 U.S. 11, 20, 123 S. Ct. 1179, 1185 (2003) (quoting Harmelin,

501 U.S. at 996-997, 111 S.Ct. at 2702 (Kennedy, J., concurring in part and

concurring in judgment)). Generally, sentences within the statutory limits are

“neither excessive, nor cruel and unusual under the Eighth Amendment.” United

States v. Moriarity, 429 F.3d 1012, 1024 (11th Cir. 2005). “This is so because we

accord substantial deference to Congress, as it possesses ‘broad authority to

determine the types and limits of punishments for crimes.’” United States v. Raad,

406 F.3d 1322, 1323 (11th Cir. 2005) (quoting Solem v. Helm, 463 U.S. 277, 289,

103 S. Ct. 3001, 3009 (1983)). Further, the Supreme Court has held that the

mandatory nature of a sentence is irrelevant for Eighth Amendment purposes.



       13
          Harmelin is a fractured opinion. On the individualized sentencing issue, Justice
Scalia’s opinion speaks for the Court while on other issues, including the proportionality issue
discussed infra, Justice Kennedy’s concurrence, as the narrowest grounds, is considered the
Court’s opinion. United States v. Farley, 607 F.3d 1294, 1339–40, 1339 n.30 (11th Cir. 2010).

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Harmelin, 501 U.S. at 994–995, 111 S. Ct. at 2701; id. at 1006, 111 S. Ct. at 2707–

08 (Kennedy, J., concurring). Instead, the sentence should be evaluated as if it

were imposed by the sentencing court in the exercise of its discretion. United

States v. Farley, 607 F.3d 1294, 1343 (11th Cir. 2010).

      To determine whether a particular non-capital sentence violates the Eighth

Amendment,

             a reviewing court must make a threshold determination
             that the sentence imposed is grossly disproportionate to
             the offense committed and, if it is grossly
             disproportionate, the court must then consider the
             sentences imposed on others convicted in the same
             jurisdiction and the sentences imposed for commission of
             the same crime in other jurisdictions.
Reynolds, 215 F.3d 1210, 1214 (11th Cir. 2000) (citing United States v. Brant, 62

F.3d 367, 368 (11th Cir. 2000)). The Supreme Court has counseled that

“successful disproportionality challenges should be ‘exceedingly rare.’” Farley,

607 F.3d at 1337 (quoting Hutto v. Davis, 454 U.S. 370, 374, 102 S. Ct. 703, 704–

05 (1982)). In part, this is because “we lack clear objective standards to

distinguish between sentences for different terms of years.” Harmelin, 501 U.S. at

1001, 111 S. Ct. at 2705.

      With that framework in mind, the threshold question then is whether

Bowers’s 182-year sentence is “grossly disproportionate” to the offenses

committed, namely brandishing a firearm during the course of eight robberies.


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Supreme Court and Eleventh Circuit precedent have set a high bar for a sentence to

be “grossly disproportionate.” For example, the Supreme Court in Harmelin found

that a sentence of life without parole was not grossly disproportionate for a first

time offender convicted of cocaine possession. Harmelin, 501 U.S. at 1001.

Likewise, we have upheld a mandatory life sentence without parole for a defendant

convicted of trafficking in and possession of methamphetamine with two prior

felony drug convictions. United States v. Hoffman, 710 F.3d 1228 (11th Cir. 2013)

(per curiam). And in Farley we upheld a mandatory thirty-year sentence for

aggravated sexual abuse of a child under 18 U.S.C. § 2241(c). Farley, 607 F.3d at

1343. In fact, this Court has never found a non-capital sentence of an adult to

violate the Eighth Amendment. Id. at 1343; accord United States v. McGarity, 669

F.3d 1218, 1256 n.57 (11th Cir. 2012) (noting the same).

      In support of his argument, Bowers mentions that the sentencing guideline

range was 210–262 months, and the mandatory-minimum sentence “essentially

multiplied that range ten-fold, calling for the imposition of a sentence of 2,184

months.” But, as discussed above, prior Supreme Court and Eleventh Circuit cases

have found that greater sentences, for less serious conduct, for defendants with less

serious criminal histories were not grossly disproportionate. See also United States

v. Clark, 634 F.3d 874, 877–78 (6th Cir. 2011) (affirming a 189-year sentence for

seven armed robberies). In the present case, Bowers has been convicted of

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brandishing a firearm during eight separate robberies and the district court imposed

a mandatory 182-year sentence. But in Harmelin the defendant was sentenced to

life imprisonment without parole, “the second most severe penalty permitted by

law,” Harmelin, 501 U.S. at 1001, 111 S. Ct. at 2705, for possessing 672 grams of

cocaine. Id. at 961. Given the severity of the committed offenses, and in light of

Harmelin, we hold that Bowers’s sentence is not grossly disproportionate to the

offending conduct; therefore, it does not violate the Eighth Amendment.

                                        ***

      There is no doubt that the consequences of Bowers’s convictions are severe.

In affirming his sentence, we follow two of the oldest principles of our federal

structure. First, Congress possesses the power, as limited by the Constitution, to

define crimes and their punishments. Cf. United States v. Hudson, 11 U.S. 32, 34,

7 Cranch 32, 34, 3 L. Ed. 259 (1812) (“The legislative authority of the Union must

first make an act a crime, affix a punishment to it, and declare the Court that shall

have jurisdiction of the offence.”). Second, we are bound to follow the decisions

of the Supreme Court and our prior panels. See Martin v. Hunter’s Lessee, 14 U.S.

304, 348, 1 Wheat. 304, 348 (1816) (discussing, in the context of Supreme Court

review of state court judgments, the importance of uniform interpretation and

application of the law); The Federalist No. 22 (Alexander Hamilton) (“To avoid

the confusion which would unavoidably result from the contradictory decisions of

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a number of independent judicatories, all nations have found it necessary to

establish one court paramount to the rest, possessing a general superintendence,

and authorized to settle and declare in the last resort a uniform rule of civil

justice.”).

       Some may believe that § 924(c)’s severe mandatory minimums “do[] not

deter crime as much as [they] ruin[] lives.” Deal v. United States, 508 U.S. 129,

146 n.10 (Stevens, J., dissenting) (quoting United States v. Jones, 965 F.2d 1507,

1521 (8th Cir. 1992)). This may particularly be so when “second or subsequent”

convictions occur in the same case, rather than in separate proceedings. See id. at

139–42; see also Erik Luna & Paul G. Cassell, Mandatory Minimalism, 32

Cardozo L. Rev. 1, 80–81 (2010) (advocating, among other reforms, Congressional

amendments to reform § 924(c)’s “second or subsequent” provision into a “true

recidivist” law). Congress, however, could rationally conclude that mandatory

sentences are appropriate. The common principle among our precedent is that the

Constitution grants Congress the power to do so. Farley, 607 F.3d at 1343;

Hamblin, 911 F.2d at 555–56; Holmes, 838 F.2d at 1178. Because Bowers’s

arguments are foreclosed, we affirm his sentence.

                               III. CONCLUSION

       For the foregoing reasons, the judgment of the district court is

       AFFIRMED.

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