Submitted: November 14, 2016
from United States District Court for the District of
Nebraska - Omaha
COLLOTON, BEAM, and GRUENDER, Circuit Judges.
COLLOTON, Circuit Judge.
Blake was convicted of robbing two banks and attempting to
rob a third. The district court sentenced Blake to life
imprisonment after finding that one of the robberies was a
serious violent felony, and that Blake had sustained two
prior convictions for serious violent felonies. Blake
appeals, arguing that the robbery was nonqualifying, and that
the Sixth Amendment entitled him to a jury determination on
that question. We conclude that there was no error, and
therefore affirm the judgment.
jury charged Blake with three counts under the federal bank
robbery statute, 18 U.S.C. § 2113(a): robbery of Premier
Bank in Omaha on February 4, 2014, attempted robbery of the
same bank on March 20, 2014, and robbery of First Westroads
Bank in Omaha on March 20, 2014. A jury convicted Blake on
all three counts, and the case proceeded to sentencing. The
government invoked 18 U.S.C. § 3559(c)(1), which
provides that a defendant convicted of a "serious
violent felony" must be sentenced to life imprisonment
if he has been convicted on separate prior occasions of two
or more serious violent felonies. Blake had sustained two
qualifying prior convictions. The parties disputed, however,
whether any of the three instant convictions counted as a
"serious violent felony" under §
violent felony" includes a conviction for robbery under
18 U.S.C. § 2113, but an exception provides that robbery
in certain cases is a "nonqualifying" felony.
Robbery may not serve as a basis for a mandatory life
sentence under § 3559 if the defendant establishes two
circumstances by clear and convincing evidence: (1) that
"no firearm or other dangerous weapon was used in the
offense and no threat of use of a firearm or other dangerous
weapon was involved in the offense, " and (2) that the
offense did not result in death or serious bodily injury to
any person. 18 U.S.C. § 3559(c)(3)(A).
government urged that the robbery of First Westroads Bank was
a qualifying serious violent felony. A surveillance video of
that robbery presented at trial showed two masked men
entering the bank. One of the men wore a light-colored shirt
with something protruding at a ninety-degree angle against
the inside of the shirt. The government argued that the
robber was brandishing a gun under his shirt as he directed
the bank tellers to put up their hands and surrender money.
position was that the trial record established by clear and
convincing evidence that the First Westroads Bank robbery was
a nonqualifying felony. He maintained that no firearm or
dangerous weapon or threat of a firearm or dangerous weapon
was involved in the offense.
district court concluded that Blake had not met his burden
under § 3559(c)(3)(A) to show that the First Westroads
robbery was nonqualifying. The court found based on the video
that one of the robbers had "what appeared to be a long
gun, perhaps something like a sawed-off shotgun, " under
his shirt and was "aiming it straight forward." The
court also cited testimony from two bank tellers that
"that they were frightened, " and found that they
had raised their hands in the air "as one would do when
confronted with a firearm." Having concluded that Blake
failed to prove that the robbery conviction was
nonqualifying, the district court sentenced him to life
imprisonment. We review for clear error the district
court's finding that Blake failed to meet his burden
under § 3559(c)(3)(A).
argues that his bank robbery conviction was nonqualifying
because the government did not introduce evidence that a
firearm or dangerous weapon was used during the bank robbery.
He cites testimony from two bank tellers that they could not
see what was under the bank robber's shirt, and did not
know whether he was carrying a weapon.
was ample evidence, however, that one of the robbers used a
firearm during the robbery. The video showed a cylindrical
object pointing outward under the robber's shirt,
parallel to the ground and toward the bank tellers. At one
point, the robber cradled the cylinder in his outstretched
hand, as if to guide or aim it. The object's shape and
the robber's handling of it supported a finding that the
concealed object was a firearm. The district court did not
clearly err in finding that Blake failed to present clear and
convincing evidence to the contrary.
also contends that the Sixth Amendment requires that a jury,
rather than the sentencing court, determine whether he proved
that his conviction was nonqualifying under §
3559(c)(3)(A). Blake did not raise this contention in the
district court, so we review for plain error. Fed. R. Crim.
P. 52(b). To prevail, Blake must show that the district court
committed an obvious error that affected his substantial
rights and seriously affected the fairness, integrity, or
public reputation of the judicial proceedings. United
States v. Olano, 507 U.S. 725, 732 (1993).
Sixth Amendment requires that a disputed fact, other than a
prior conviction, that increases a statutory maximum or
mandatory minimum penalty be submitted to a jury and proved
beyond a reasonable doubt. Alleyne v. United States,
133 S.Ct. 2151, 2155, 2160 n.1 (2013). A jury in this case
found that Blake committed the robbery at First Westroads
Bank, and Blake does not dispute that the district court
properly could count the conviction as a serious violent
felony unless Blake established that it was nonqualifying
under § 3559(c)(3)(A). We explained in United States
v. Davis, 260 F.3d 965 (8th Cir. 2001), that the
structure of § 3559 creates an affirmative defense to
the sentence enhancement. Id. at 969. The statute
does not deprive ...