Appeal from the United States District Court for the Southern District of Alabama. D.C. Docket No. 2:08-cr-00367-WS-N-3.
For United States of America, Plaintiff - Appellee: Adam W. Overstreet, Christopher B. Brinson, Kenyen Ray Brown, Vicki M. Davis, Donna Barrow Dobbins, U.S. Attorney's Office, Mobile, AL.
For Brandon Payne, Defendant - Appellant: Christopher Knight, Elsie Mae Miller, Carlos Alfredo Williams, Federal Defender's Office, Mobile, AL.
Before ED CARNES, Chief Judge, HULL and FAY, Circuit Judges.
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, 186 L.Ed.2d 314 (2013), when it sentenced him to the mandatory minimum sentence on the firearm charge.
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 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, 186 L.Ed.2d 314 (2013).
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 ...