              Case: 12-12935    Date Filed: 09/03/2013    Page: 1 of 16


                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 12-12935
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 5:11-cr-00404-KOB-PWG-1



UNITED STATES OF AMERICA,

                                                            Plaintiff - Appellee,

                                       versus

ERNEST LASHAWN STARKS,
CAMERON RASHUN BYRD,

                                                           Defendants - Appellants.

                           ________________________

                   Appeals from the United States District Court
                      for the Northern District of Alabama
                          ________________________

                                (September 3, 2013)

Before HULL, JORDAN and KRAVITCH, Circuit Judges.

PER CURIAM:

      Ernest Lashawn Starks and Cameron Rashun Byrd appeal their convictions

after a jury trial on carjacking and firearms offenses and the sentences they
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received for those convictions. Both contend the evidence was insufficient to

support their convictions. In addition, Byrd argues portions of his sentence violate

the Constitution. And Starks asserts that he should not have been tried together

with Byrd and that his sentence is substantively unreasonable. After careful

review, we affirm in all respects.

                                          I.

A.    Pretrial

      Police arrested Starks, Byrd, and two other men — Kevin Holmes and

Thomas Omar Flowers — on suspicion that they were involved in a carjacking and

a convenience-store robbery. Subsequently, a grand jury issued an indictment

charging Byrd with aiding and abetting a carjacking, in violation of 18 U.S.C.

§ 2119 (1), brandishing a firearm in connection with the carjacking, in violation of

18 U.S.C. § 924(c), and carrying and using a firearm in connection with an armed

robbery, in violation of 18 U.S.C. § 924(c). Starks was charged with aiding and

abetting a carjacking and brandishing a firearm in connection with the carjacking.

      Before their cases went to trial, Starks filed a “Motion to Sever Due to

Bruton Issue” under Federal Rule of Criminal Procedure 14, seeking severance of

his trial from Byrd’s. He contended a joint trial would violate his Sixth

Amendment rights, as explained in Bruton v. United States, 391 U.S. 123 (1968), if

the government introduced Byrd’s out-of-court confession. In response, the


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government represented that Byrd’s confession would not be entered into evidence

unless Byrd took the stand, so Burton was not implicated. The district court agreed

and denied Starks’s motion. Byrd’s confession was not offered at trial.

B.     Trial

       We recount the facts adduced at trial in the light most favorable to the

verdict, resolving all reasonable inferences and credibility evaluations in favor of

the jury’s finding of guilt. United States v. Kaplan, 171 F.3d 1351, 1355 n.13

(11th Cir. 1999). 1 Byrd, Flowers, and Holmes left the Alabama A&M University

dorms in a Jeep Cherokee to buy cigarettes late on the evening of May 11, 2011.

While they were out, Byrd received a phone call from Starks, Flowers’s cousin,

inviting the three over to his house. When they arrived, Starks was in the

driveway, and he told Flowers that he wanted to drive the Jeep to buy cigars.

Once they left his house, however, Starks began talking with Byrd, who was sitting

in the passenger seat, about committing a robbery to get money. Because Flowers

did not want his mother’s Jeep used in a robbery, Starks parked at a liquor store to

scout for a car they could steal to use.

       Unfortunately, an individual identified as K.E.N. pulled his Ford Taurus into

a parking spot in the liquor store lot right next to the Jeep and left his doors

unlocked. While K.E.N. was inside purchasing beer, Starks asked who in the Jeep

1
 This also means that we do not dwell upon contrary evidence the jury was entitled to
disbelieve. See United States v. Hernandez, 433 F.3d 1328, 1333-34 (11th Cir. 2005).
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was going to “take the man hostage.” Apparently, Byrd volunteered; he got into

the Taurus, and, when K.E.N. returned, Byrd was waiting in the backseat with a

handgun pointed at K.E.N. Byrd held the gun to K.E.N’s head and told him to

drive or, according to K.E.N., “he’s going to blow my head off.” After K.E.N. had

driven about 50 yards and down an alley, Byrd directed him to get out, lie down on

the asphalt, and stay still while Byrd drove the Taurus away. As his car drove

away without him, K.E.N. recalled seeing a Jeep following it.

      At trial, K.E.N. was unable to identify his assailant or anyone else involved.

He also testified that, to the best of his knowledge, there were at most three men

involved in the carjacking, the one in his backseat and two he saw when he pulled

his car into the liquor store lot. Moreover, he did not remember interacting with

anyone except for the man in his backseat. Holmes, on the other hand, testified

that, once the Taurus was parked in the alley and K.E.N. was on the ground, Starks

got out of the Jeep holding a handgun and ordered K.E.N. not to look up or “we’ll

come back and execute you . . . .” Then, Holmes and Flowers testified, Starks

ordered one of them to join Byrd in the Taurus, and when neither volunteered,

Starks waived his pistol at Flowers, who reluctantly got in K.E.N.’s car.

      Not long after Byrd and Flowers drove away in the Taurus, however, it

broke down. Starks picked the two up in the Jeep, but said he still intended to get

some cash, even without a getaway car. When they passed a convenience store


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with the clerk outside of his station mopping the aisles, Starks identified his mark

and said it was “the perfect time to go in.” With the car parked beside the store,

Byrd got out with his handgun, and Starks gave him a pillowcase. Starks then

ordered Flowers out of the car and, when Flowers refused, Starks cocked his pistol

and told Flowers, “you don’t have an option, you’re going in the store.” So

Flowers took a knife Starks offered and entered the store with Byrd. Meanwhile,

Starks repositioned the Jeep to be ready to flee when they returned.

      Dan Otieno, the clerk, testified that two men entered the store that night —

one tall and skinny, wearing a “bandana on his face,” and the other “short and

plump” with a ski mask. The tall, skinny man put a handgun to Otieno’s head,

ordered him to open the register, and then told him to get on the floor or, the man

said, “I’ll blow your head off.” Once the two men had emptied the register, they

ran from the convenience store and hopped in the Jeep. Otieno followed them

outside, where he saw a Jeep leaving the lot. At trial, Flowers identified himself as

the short man in the ski mask and Byrd as the tall man wearing a bandana.

      At the close of the government’s case-in-chief, Starks moved for a judgment

of acquittal under Federal Rule of Criminal Procedure 29, which the court denied,

but he did not renew the motion after presenting his case. Byrd never moved for a

judgment of acquittal. The jury convicted Byrd and Starks on all charges.




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C.    Sentencing

      Prior to sentencing, the probation office prepared presentence investigation

reports (PSIs) for Starks and Byrd. Byrd’s PSI indicated that he had no prior

criminal history. His sentencing guidelines range on the carjacking count was 41

to 51 months’ imprisonment. Both of his other convictions carried minimum

statutory penalties to run consecutive both to one another and his carjacking

sentence. His conviction for brandishing a firearm in connection with the

carjacking subjected him to a 7-year mandatory minimum, and his conviction for

carrying and using a firearm in connection with the convenience-store robbery a

minimum of 25years. 18 U.S.C. § 924(c)(1)(A)(ii), (c)(1)(A)(i). Byrd did not

object, either to the PSI or to the sentence the court ultimately pronounced. The

district court varied downward on the carjacking count to 15 months, resulting in a

total sentence with the mandatory minimums of 399 months.

      The PSI prepared in anticipation of Starks’s sentencing calculated that, on

the carjacking count, his guidelines range was 51-63 months in prison. His

conviction for brandishing a firearm in connection with the carjacking carried a

statutory mandatory minimum consecutive sentence of 7 years’ imprisonment.

Prior to sentencing, the government filed a memorandum asking the court to vary

upwards from Stark’s guidelines range, arguing the PSI under-represented his

criminal background and failed to fully account for his role in the carjacking and


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robbery. In support of these contentions, the government presented at sentencing

an FBI Agent who testified that Byrd and Holmes had given statements indicating

Starks had bragged about or attempted to involve them in several other armed

robberies both prior to and after May 11, 2011. And Flowers testified Starks told

him he had shot someone in 2009. Starks objected, but the district court found that

Starks’s guidelines range under-represented his criminal history and “that not only

[was Starks] present on May 11, 2011, but . . . orchestrated this event that brought

such problems on so many people.” After discussing at length how the 18 U.S.C.

§ 3553(a) factors affected the decision, the court varied upward to a sentence of 96

months’ imprisonment on the carjacking count, resulting in a total sentence of 180

months’ imprisonment.

D.    Appeal

      Byrd and Starks timely appealed both their convictions and sentences on

several grounds. Byrd contends the evidence was not sufficient to support his

convictions because, without the questionable testimony of Flowers and Holmes,

the man who carjacked K.E.N. and held the gun to Otieno’s head during the

robbery just as easily could have been one of the others. He also contends his

mandatory minimum sentences are unconstitutional. Starks argues the evidence

was insufficient to convict him of either the carjacking or brandishing a weapon

during it, especially considering that the victim never claimed to encounter anyone


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other than the man in his backseat. He also claims he should not have been tried

along with Byrd and that, in light of the disparity between the sentences he and

Byrd received for their carjacking convictions, his sentence is substantively

unreasonable. We address each contention in turn.

                                         II.

      Starks and Byrd both claim the evidence was insufficient to convict them.

Starks says the only evidence that he was present for the carjacking or brandished a

firearm during it was the testimony of Holmes and Flowers, which was self-serving

and inconsistent with that of K.E.N., who did not identify him. Byrd similarly

points out that neither K.E.N. nor Otieno identified him, and only Holmes and

Flowers, whose testimony is dubious and inconsistent, implicate him.

      Byrd did not move for a judgment of acquittal based upon insufficient

evidence. And, although Starks made a proper motion at the close of the

government’s case, he did not renew the motion at the close of evidence.

Therefore, although we generally review challenges to the sufficiency of the

evidence de novo, both Byrd and Starks “must shoulder a somewhat heavier

burden: we will reverse . . . only where doing so is necessary to prevent a manifest

miscarriage of justice.” United States v. Fries, No. 11-15724, — F.3d — , 2013

WL 3991917, at *3 & n.5 (11th Cir. Aug. 6, 2013) (internal quotation marks

omitted). “This standard requires us to find either that the record is devoid of


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evidence of an essential element of the crime or that the evidence on a key element

of the offense is so tenuous that a conviction would be shocking.” Id. at *3

(internal quotation marks omitted).

      We cannot conclude that standard is satisfied with respect to either

defendant’s convictions. Holmes and Flowers both testified that Starks chose

K.E.N.’s car to steal, that Byrd was the man K.E.N. testified made him drive his

car from the liquor store lot into the alley with a gun to his head, and that Starks

threatened Flowers with a pistol to force him to join Byrd in driving K.E.N.’s

Taurus away from the scene. And both testified Byrd was the man who robbed the

convenience store at gunpoint.

      As Starks and Byrd point out, there were certainly reasons the jury could

have disbelieved that testimony. Both witnesses’ testimony at trial diverged from

statements they made to police on the night of the crimes and was inconsistent with

the victims’ testimony. Both witnesses got wrong whether Starks had disposed of

clothing used in the commission of the crimes. Some extraneous details in

Holmes’s testimony diverged from security camera videos and photos presented at

trial, and he has a criminal record. And Flowers conceded he was cooperating in

hopes of a lenient sentence for his part in the debacle.

      But the jury apparently did believe their testimony despite all of this, and

they were entitled to do so. We may only reject a jury’s decision to credit


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testimony where it is “incredible as a matter of law,” that is, “if it relates to facts

the witness could not have possibly observed or events that could not have

occurred under the laws of nature.” United States v. Flores, 572 F.3d 1254, 1263

(11th Cir. 2009) (internal quotation marks omitted). We may not reject a jury’s

apparent reliance on a witness simply because there are discrepancies between his

testimony and his prior statements to police. See United States v. Calderon, 127

F.3d 1314, 1324-25 (11th Cir. 1997) (holding jury was free to rely upon testimony

of witness who admitted prior testimony in related case was untruthful; “the fact

that the witness has consistently lied in the past . . . does not make his testimony

incredible” (alteration and internal quotation marks omitted)). Any inconsistences

Starks and Byrd point to “are classic jury arguments . . . , not a reason to disregard

the jury’s determination . . . .” United States v. McGuire, 706 F.3d 1333, 1336

(11th Cir.), cert. denied, 133 S. Ct. 1744 (2013). Moreover, “the uncorroborated

testimony of an accomplice is sufficient to support a conviction if it is not on its

face incredible or otherwise insubstantial,” even if the accomplice has a “prior

criminal history” and admits to testifying in exchange for beneficial prosecutorial

treatment. United States v. Milkintas, 470 F.3d 1339, 1344 (11th Cir. 2006). And

even if Holmes’s and Flowers’s testimony differed from that of the victims, asking

that we reverse the convictions for that reason “represents nothing more than an

invitation to this Court to revisit the credibility determinations of the jury,” which


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we may not do. United States v. Thompson, 422 F.3d 1285, 1291-92 (11th Cir.

2005). “It is well-established that credibility determinations are the exclusive

province of the jury.” Id. (internal quotation marks and alteration omitted).

      Although the testimony of Holmes and Flowers may be, as Starks and Byrd

contend, suspect, it was not incredible as a matter of law. And neither Byrd nor

Starks argues, nor could they, that they may surmount their heavy burdens on

appeal if the jury could properly have credited that testimony. There is no manifest

miscarriage of justice, and we therefore affirm Starks’s and Byrd’s convictions.

                                          III.

      Byrd argues that his two statutory mandatory minimum sentences are

unconstitutional, both as cruel and unusual punishment prohibited by the Eighth

Amendment and as a violation of the separation-of-powers doctrine. Because Byrd

raised no such objection in the district court, we review only for plain error.

United States v. Belfast, 611 F.3d 783, 815 (11th Cir. 2010). We share the district

court’s concern that Byrd’s sentence, due to the mandatory minimums he faced,

seems “out of proportion to this particular crime in this particular situation and for

this particular defendant,” a first-time offender who made a grave mistake falling

in with the wrong crowd but who was repentant and otherwise a promising student.

But “[a]n error cannot be plain if such error is not obvious or clear under current

law.” United States v. Hernandez-Gonzalez, 318 F.3d 1299, 1302 (11th Cir. 2003).


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And “where neither the Supreme Court nor this Court has ever resolved an issue,

and other circuits are split on it, there can be no plain error . . . .” United States v.

Gerrow, 232 F.3d 831, 835 (11th Cir. 2000) (internal quotation marks omitted).

       As Byrd forthrightly concedes, we have held the mandatory minimums in

§ 924(c) constitutional under the Due Process Clause. United States v. Hamblin,

911 F.2d 551, 555 (11th Cir. 1990); see also United States v. Castaing-Sosa, 530

F.3d 1358, 1362 (11th Cir. 2008) (“[D]istrict court[s] remain[] bound by statutes

designating mandatory minimum sentences even after the remedial holding of

United States v. Booker, 543 U.S. 220 . . . (2005).”). And other circuits that have

squarely addressed Eighth Amendment challenges like Byrd’s have rejected them.

E.g., United States v. Major, 676 F.3d 803, 812 (9th Cir.) (rejecting identical

challenge to nearly 750-year sentence imposed under § 924(c)’s mandatory

minimum provision), cert. denied 133 S. Ct. 280 (2012); United States v. Clark,

634 F.3d 874, 877-78 (6th Cir. 2011) (rejecting Eighth Amendment challenge to §

924(c) consecutive mandatory minimums that resulted in nearly 148-year

sentence). Moreover, as Byrd acknowledges, binding precedent squarely

forecloses his argument that the mandatory minimums violate the separation of

powers by depriving the sentencing judge of discretion. See United States v.

Paige, 604 F.3d 1268, 1274 (11th Cir. 2010). Accordingly, Byrd cannot show his




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sentence was unconstitutional under the plain-error standard we must apply to his

claim.

                                           IV.

         Starks contends the district court erred in denying his “Motion to Sever Due

to Bruton Issue.” Despite Starks’s assertion in his brief, however, no Bruton issue

could possibly arise in this case because no out-of-court confession by a co-

defendant was introduced into evidence. See Bruton, 391 U.S. at 124-26. Instead,

Starks claims he should not have been tried with Byrd because he was not charged

in connection with the robbery but the jury may have been confused or considered

testimony about his involvement in the robbery in convicting him.

         Because this argument is new on appeal, we review only for plain error. See

Belfast, 611 F.3d at 815. “[A]t least where the explicit language of a statute or rule

does not specifically resolve an issue, there can be no plain error where there is no

precedent from the Supreme Court or this Court directly resolving it.” United

States v. Lejarde–Rada, 319 F.3d 1288, 1291 (11th Cir. 2003). Defendants

indicted together are usually tried together, and a district court is only required to

sever their trials in “exceptional circumstances” where compelling prejudice is

inevitable and “jury instructions or some other remedy short of severance will not

work.” United States v. Lopez, 649 F.3d 1222, 1234 (11th Cir. 2011). “Severance

is justified . . . only if the prejudice flowing from a joint trial is clearly beyond the


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curative powers of [cautionary] instructions.” United States v. Baker, 432 F.3d

1189, 1237 (11th Cir. 2005). “To succeed on appeal the Defendant must carry the

heavy burden of demonstrating the lack of a fair trial due to actual, compelling

prejudice.” United States v. Chavez, 584 F.3d 1354, 1360 (11th Cir. 2009).

      The district court instructed the jury that “the case of each defendant should

be considered separately and individually” and “each defendant is on trial only for

the specific offenses alleged against him in the indictment.” No case, rule, or

statute Starks could cite would render it plain that any actual, compelling prejudice

of his joint trial with Byrd was clearly beyond the curative power of these

instructions. He therefore cannot show the court plainly erred in declining to sever

his trial from Byrd’s.

                                           V.

      Finally, Starks also contends his sentence is substantively unreasonable. We

review the substantive reasonableness of a sentence for an abuse of discretion and

will reverse “if, but only if, we are left with the definite and firm conviction that

the district court committed a clear error of judgment in weighing the [18 U.S.C.]

§ 3553(a) factors by arriving at a sentence that lies outside the range of reasonable

sentences dictated by the facts of the case.” United States v. Irey, 612 F.3d 1160,

1190 (11th Cir. 2010) (en banc) (internal quotation marks omitted).




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      Starks has not shown his sentence was substantively unreasonable.

Although his carjacking sentence exceeded Byrd’s and his guidelines range, the

district court thoroughly explained it was departing upward to avoid unwarranted

sentencing disparities as much as was feasible because Starks’s conduct was more

egregious. See 18 U.S.C. § 353(a)(6). Starks, the court concluded, was the

group’s ringleader who initiated conversation about a robbery, decided they needed

a getaway car, selected K.E.N.’s car, and chose which convenience store to rob.

And he coerced Flowers into participating at gunpoint. Further, in light of the

testimony at his sentencing, the court found the guidelines range underrepresented

Starks’s past criminal activity. See id. § 3553(a)(1). After thorough consideration,

the court decided the sentencing factors, especially the nature and characteristics of

Starks’s participation and the need to protect the public from the unrepentant

Starks’s future crimes, made an above-guidelines sentence necessary. See id.

§ 3553(a)(1), (2). We find no abuse of discretion in that conclusion.

                                         VI.

      After careful review of the record, we affirm the convictions and sentences

of Starks and Byrd. The evidence was sufficient for the jury to convict both of

them on all counts. There was no plain error in sentencing Byrd to the statutory

mandatory minimums for his convictions. And Starks has not shown the district




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court plainly erred in failing to sever his trial from Byrd’s or abused its discretion

in fashioning his sentence.

      AFFIRMED.




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