            Case: 13-15699   Date Filed: 08/15/2014   Page: 1 of 7


                                                                     [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-15699
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 2:08-cr-00367-WS-N-3



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,


                                   versus


BRANDON PAYNE,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                       ________________________

                             (August 15, 2014)

Before ED CARNES, Chief Judge, HULL and FAY, Circuit Judges.

PER CURIAM:
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      Brandon Joseph Payne pleaded guilty to one count of bank robbery, in

violation of 18 U.S.C. § 2113(a), (d), and one count of possession of a firearm

during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). He received a

30-month sentence on the bank robbery count and a mandatory minimum 84-

month sentence on the firearm count, with the sentences to be served

consecutively. Payne appeals his sentence, arguing that the district court violated

his Sixth Amendment rights, as interpreted in Alleyne v. United States, — U.S. —,

133 S. Ct. 2151 (2013), when it sentenced him to the mandatory minimum

sentence on the firearm charge.

                                          I.

      The following facts were recounted at Payne’s plea hearing. On September

13, 2007, Payne served as the getaway driver in an armed robbery of the People’s

Bank and Trust in Valley Grande, Alabama. His three accomplices –– Lindera

Chapman, Joshua Davis, and Timothy King –– entered the bank that day carrying a

shotgun, a revolver, a pistol, and duct tape. They demanded that one of the bank

tellers open the vault, and one of the defendants used the shotgun “to divert the

[security] cameras.” Payne and his compatriots took $5,826 from the bank and

fled. At his plea hearing, Payne admitted those facts and acknowledged that he

had “knowingly participated in an armed robbery of a bank.” However, he

asserted that he did not enter the bank and could not “admit to exactly what

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happened inside.” During the hearing the district court told Payne that if he was

convicted of the firearm offense he “could receive a term of imprisonment of no

less than [84 months]” and that the sentence would be “consecutive to the sentence

imposed” on the bank robbery count. Payne pleaded guilty to both counts charged

against him in the indictment.

      The PSR prepared for Payne’s sentencing recounted the facts of the crime as

stated at the plea hearing with one difference: It noted that one of Payne’s

accomplices had pointed a pistol at a bank teller during the robbery. Based on that

fact, the PSR concluded that Payne was subject to an 84-month mandatory

minimum sentence to be served consecutive to his sentence for the bank robbery

charge. See 18 U.S.C. § 924(c)(1)(A)(ii) (providing that a defendant convicted

under § 924(c)(1)(A) must be “sentenced to a term of imprisonment of not less

than [84 months]” if a firearm is brandished during the crime of violence). Payne

objected to the PSR’s determination that he was subject to that 84-month

mandatory minimum. Because his indictment had not specifically mentioned the

brandishing provision of § 924(c)(1)(A) and he had never admitted at his plea

hearing that a firearm was brandished, he asserted that sentencing him to the

mandatory minimum would violate his Fifth Amendment due process rights and

his Sixth Amendment rights, as interpreted in Alleyne v. United States, — U.S. —,

133 S. Ct. 2151 (2013).

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       In light of Payne’s objection, the district court decided to hear evidence to

determine whether a firearm had been brandished during the bank robbery. At the

sentence hearing, a bank teller working at People’s Bank and Trust at the time of

the robbery testified that one of the defendants had pointed a pistol in her face

during the robbery. Payne’s attorney cross-examined that witness. He did not call

any witnesses of his own to rebut the teller’s testimony. Based on the evidence

presented, the district court concluded that a gun had been brandished during the

bank robbery, and it sentenced Payne to the 84-month mandatory minimum

sentence on his § 924(c)(1)(A) conviction.

                                                II.

       Payne’s primary contention on appeal is that the district court violated his

Sixth Amendment rights, as interpreted in Alleyne v. United States, — U.S. —,

133 S. Ct. 2151 (2013), when it sentenced him to the 84-month mandatory

minimum sentence based on its own finding that a firearm was brandished during

the robbery. 1 We review de novo the alleged Alleyne error. United States v. King,


       1
          Payne also appears to challenge the sufficiency of his indictment on the ground that it
failed to allege that a firearm was brandished during the robbery, and it failed to cite to the
specific subsection of 18 U.S.C. § 924(c)(1)(A) that provides that an 84-month mandatory
minimum applies when a firearm is brandished, see 18 U.S.C. § 924(c)(1)(A)(ii). But that
argument does not call into question the district court’s jurisdiction. See United States v. Brown,
No. 13-10023, — F.3d —, 2014 WL 2200395, at *5 (11th Cir. May 28, 2014) (noting that an
indictment’s failure to allege the drug quantity that triggered a higher statutory maximum
sentence was not a jurisdictional defect and stating that an indictment’s failure to allege an
essential element of a crime does not deprive the district court of jurisdiction). Therefore, the
challenge has been waived by Payne’s guilty plea. See United States v. Betancourth, 554 F.3d
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751 F.3d 1268, 1278–79 (11th Cir. 2014). If an Alleyne error occurred, we will

vacate Payne’s sentence unless the error was harmless beyond a reasonable doubt.

Id. at 1279 (“We further hold that Alleyne violations are subject to harmless error

review.”). Under harmless error review, we must affirm Payne’s sentence if the

brandishing fact “is supported by uncontroverted evidence” and the record does not

“contain[] evidence that could rationally lead to a contrary finding.” United States

v. Candelario, 240 F.3d 1300, 1308 (11th Cir. 2001) (quotation marks omitted).

       Under Alleyne, any fact that increases the mandatory minimum sentence for

a crime must be admitted by a defendant or be submitted to a jury and found

beyond a reasonable doubt. 133 S.Ct. at 2163; cf. Blakely v. Washington, 542

U.S. 296, 303, 124 S.Ct. 2531, 2537 (2004) (“Our precedents make clear, however,

that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a

judge may impose solely on the basis of the facts reflected in the jury verdict or

admitted by the defendant.”). In this case, Payne did not admit at his plea hearing

that a firearm had been brandished during the bank robbery that he committed. He




1329, 1332 (11th Cir. 2009) (“A defendant who enters an unconditional plea of guilty waives all
nonjurisdictional challenges to the conviction, but challenges to the subject matter jurisdiction of
the federal courts cannot be waived.”). In any event, Payne cannot credibly contend that he had
insufficient notice that he would be subject to the mandatory minimum because the penalty page
of his indictment stated that that mandatory minimum sentence applied to the § 924(c)(1)(A)
count and the district court told him at his plea hearing that he “could receive a term of
imprisonment of no less than seven years” on that count.


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stated that he did not know “exactly what happened inside the bank” because he

had been waiting in the getaway car. Nevertheless, the district court sentenced him

to a mandatory minimum sentence after making its own finding that a firearm had

been brandished during the robbery. In doing so, the district court erred under

Alleyne because it sentenced Payne to a mandatory minimum sentence based on its

own conclusion about brandishing, instead of Payne’s admission or a jury’s finding

concerning that fact.

      Nevertheless, the district court’s error was harmless beyond a reasonable

doubt. As we have explained with regard to Apprendi errors, such errors are

harmless beyond a reasonable doubt when there is “uncontroverted evidence”

supporting a statutory fact that alters the range of possible sentences a defendant

may receive. See Candelario, 240 F.3d at 1308 (quotation marks omitted). The

same reasoning applies to Alleyne errors because Alleyne is an extension of

Apprendi. See King, 751 F.3d at 1278–79; United States v. McKinley, 732 F.3d

1291, 1295 (11th Cir. 2013). In this case, the district court’s error was harmless

beyond a reasonable doubt because the government presented uncontroverted

evidence that a firearm was brandished during the bank robbery in which Payne

participated. A teller working at the bank when the crime was committed testified

that one of Payne’s codefendants pointed a pistol at her during the robbery. That

testimony was unrefuted, and therefore “it is clear beyond a reasonable doubt that a

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rational jury would have found” that a firearm was brandished. 2 See United States

v. Nealy, 232 F.3d 825, 829 (11th Cir. 2000) (quotation marks omitted); see also

18 U.S.C. § 924(c)(4) (“For purposes of this subsection, the term ‘brandish’ means,

with respect to a firearm, to display all or part of the firearm, or otherwise make

the presence of the firearm known to another person, in order to intimidate that

person, regardless of whether the firearm is directly visible to that person.”).

       AFFIRMED.




       2
         We reject Payne’s contention that he could be sentenced under § 924(c)(1)(A)(ii) only if
he admitted or a jury found that he “knew that the firearm[] would be brandished.” To the
contrary, Payne could be found liable so long as he was an “active participant” in the bank
robbery and he “kn[ew] that one of his confederates [was carrying] a gun.” Rosemond v. United
States, — U.S. —, 134 S.Ct. 1240, 1249 (2014). He admitted both of those facts at his plea
hearing. It does not matter whether Payne knew that one of his codefendants would actually
brandish a gun in the bank. See United States v. Williams, 334 F.3d 1228, 1230, 1232–33 (11th
Cir. 2003) (upholding 10-year mandatory minimum sentence under 18 U.S.C. § 924(c)(1)(A)(iii)
for defendant who participated in bank robbery in which one of his codefendants “accidentally”
discharged his assault rifle during the robbery) (emphasis added).
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