                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0411n.06

                                        Case No. 19-6382

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                   FILED
                                                                                   Jul 16, 2020
                                                                              DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,
                                                     )      ON APPEAL FROM THE UNITED
                                                     )      STATES DISTRICT COURT FOR
v.
                                                     )      THE WESTERN DISTRICT OF
LORENZO DAVIS,                                       )      TENNESSEE
                                                     )
       Defendant-Appellant.                          )


       BEFORE: GRIFFIN, KETHLEDGE, and THAPAR, Circuit Judges.

       THAPAR, Circuit Judge. A jury convicted Lorenzo Davis of multiple crimes for his

involvement in an armed bank robbery and a carjacking. Because the jury had enough evidence

to convict, and the district court made no errors at sentencing, we affirm.

       Andre Hollingsworth was walking home in the middle of the night when three men

approached him. One of the men (later identified as Davis) brandished a gun and ordered

Hollingsworth to hand over his money. Davis then searched Hollingsworth and took his phone

and wallet. After the robbers found that the wallet contained a debit card, they threatened to kill

Hollingsworth unless he told them his PIN. Hollingsworth agreed to do so, and Davis took him

(at gunpoint) to a nearby ATM, where Davis used the debit card to withdraw money. After that,

Davis let Hollingsworth go.

       The following night, Calvin Marion was driving in the same area when a man waved for

him to stop. When Marion did so, the man (later identified as Davis) approached the car and then

allegedly pulled out a gun and shot Marion in the neck. Davis ordered Marion to exit his vehicle
Case No. 19-6382, United States v. Davis


and walk with him into a nearby field. Once in the field, Davis made Marion turn over his

belongings and strip naked. Davis—while keeping his gun trained on Marion—retreated to

Marion’s car and sped off with it.

       After investigating these crimes, law enforcement obtained an indictment charging Davis

with six counts. Count One charged Davis with armed bank robbery (the forced ATM withdrawal).

Count Two charged Davis with using, carrying, and brandishing a firearm during a crime of

violence (the bank robbery). Count Three charged Davis with carjacking with intent to cause death

or serious bodily injury. Count Four charged Davis with using, carrying, brandishing and

discharging a firearm during a crime of violence (the carjacking). And Counts Five and Six

charged Davis with being a felon in possession of a firearm.

       Davis went to trial, and a jury convicted Davis for the first two counts (related to the bank

robbery) along with the felon-in-possession counts. But on Count Three, the jury found Davis not

guilty of carjacking with intent to cause serious bodily injury (though it did convict him of a lesser

included offense). And on Count Four, the firearm charge linked to the carjacking, the jury

acquitted Davis entirely.

       At sentencing, the probation officer recommended multiple sentencing enhancements

because Davis discharged a firearm during the carjacking and caused serious injury to Marion.

Davis objected, pointing out that the jury had acquitted him of discharging (or even using) a

firearm during the carjacking. But the district court overruled his objections and applied the

enhancements. The court sentenced Davis to 376 months in prison.

       On appeal, Davis makes two arguments. He first argues that the jury had insufficient

evidence to convict him on any of the charges. Next, he argues that the district court erred by

relying on acquitted conduct to enhance his sentence. Both arguments lack merit.



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Case No. 19-6382, United States v. Davis


       Sufficiency of the Evidence. Davis asks us to vacate his convictions because (he argues)

there was not enough evidence to find him guilty. Although Davis challenges five separate

convictions, his argument is uniform. He claims that this is a case of mistaken identity—whoever

robbed Hollingsworth or stole Marion’s car, it wasn’t him.

       Our review of the jury verdict is deferential. That’s because juries—not judges—“decide

what conclusions should be drawn from evidence admitted at trial.” Coleman v. Johnson, 566

U.S. 650, 651 (2012) (per curiam) (cleaned up); see also United States v. Tolliver, 949 F.3d 244,

247 (6th Cir. 2020) (per curiam) (discussing the importance of giving juries “due deference”).

Thus, we view the evidence in the light most favorable to the government and draw all reasonable

inferences in the government’s favor.      Then we ask whether any rational jury could have

convicted Davis. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Here, that means the convictions

stand if any rational jury could have found that Davis (rather than someone else) committed the

charged crimes.

       The jury had ample evidence to conclude that Davis was in fact the perpetrator. Consider

the different charges:

            •   Bank Robbery (Count 1) & Brandishing a Firearm (Count 2). Although
                Hollingsworth couldn’t identify the perpetrator, the two other men involved in the
                robbery testified that it was Davis who had forced Hollingsworth to withdraw
                money at gunpoint.        What’s more, when officers eventually recovered
                Hollingsworth’s phone, they found that someone had logged into Davis’s social
                media accounts with it—corroborating that Davis was the robber.
            •   Carjacking (Count 3). Marion identified Davis as the carjacker while testifying
                that the carjacking was so traumatic that he would “never forget” the face of his
                attacker. R. 64, pg. ID 483. Two other witnesses confirmed this identification.
            •   Felon in Possession (Counts 5 & 6). Multiple witnesses also testified that Davis
                possessed a firearm during both the robbery and the carjacking.

This testimony gave the jury more than enough evidence tying Davis to the charged crimes.




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Case No. 19-6382, United States v. Davis


       Faced with this evidence, Davis does his best to show that it is biased or incredible.

He offers several reasons why the jury shouldn’t have believed Marion’s testimony and that of

Davis’s confederates. But those arguments go to witness credibility. And we may not “consider

the credibility of witnesses” when reviewing the sufficiency of the evidence. United States v.

Ward, 957 F.3d 691, 696 (6th Cir. 2020) (cleaned up). Davis made these credibility arguments to

the jury, but the jury chose to convict Davis anyway. We cannot second-guess that decision.

       Acquitted Conduct. Davis next argues that the district court erred by relying on acquitted

conduct to increase his guideline range. But, as Davis admits, this challenge is a nonstarter. That’s

because our circuit permits district courts to use acquitted conduct when sentencing a defendant.

United States v. White, 551 F.3d 381, 382 (6th Cir. 2008) (en banc). This panel cannot overrule

that authority. See Brumbach v. United States, 929 F.3d 791, 795 (6th Cir. 2019).

       We affirm.




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