Passenger has no expectation of privacy in a car that isn’t his and in which he is not present when car is seized and searched. For a 924(c) count, indictment does not necessarily have to allege that a gun was possessed “in furtherance of” a crime of violence. Even after Alleyne, prior convictions that trigger mandatory minimums do not have to be proven to a jury beyond a reasonable doubt. Within guideline sentence did not violate 8th Amendment.

United States v.Burnett, 14-1288, 2014 WL 6463173 (3d Cir. Dec. 2, 2014).

After an unsuccessful motion to suppress, Burnett went to trial and was convicted of robbing a jewelry store at gunpoint.  At sentencing, the district court found that ACCA applied and that the career offender guidelines applied and sentenced Burnett to a total of 288 months, a within guideline sentence.  The Third Circuit addressed several issues on appeal:

·       Burnett’s motion to suppress was properly denied because Burnett lacked standing to challenge the search.  Burnett was the passenger in a getaway car.  He and the driver abandoned the car on the street and fled.  The police found the car, got a search warrant, and found evidence of the robbery in the car.  The Court held that Burnett, who did not own the car and who left it before the police seized it, had no standing to challenge the search of the car because he had no privacy interest in the car.  REMEMBER, under Brendlin v. California, 551 US 249 (2007), passengers of cars still have standing to challenge an illegal traffic/car stop and can move to suppress any evidence found inside the car as fruit of the bad traffic stop.

·       The photo array in this case was not unduly suggestive.  The men in the array all had similar skin color, were similarly aged, were all balding, and all had goatees – like Burnett.

·       The indictment was not deficient for failing to allege the “in furtherance of” element of an offense under § 924(c).  924(c) has two prongs: (1) using or carrying a gun during and in relation to an underlying offense, and (2) possessing a gun “in furtherance of” the underlying offense.  Burnett’s indictment alleged that he used or carried a gun during the robbery and therefore did not have to allege the “in furtherance of” prong. 

·       Burnett waived his claim that the government’s evidence was insufficient by making only a conclusory assertion that the evidence was insufficient.  Even if this claim wasn’t waived, the evidence (eyewitness & co-defendant testimony and DNA evidence) was sufficient.

·       The district court did not err under Alleyne when it found Burnett was an Armed Career Criminal without his predicate convictions having been alleged in the indictment and submitted to the jury.  The Supreme Court has not extended the Apprendi rule to proof of prior convictions.  Judges can find, based on a preponderance of the evidence, the existence of prior convictions leading to a mandatory minimum. 

·       Burnett’s 24 year sentence, which was within the guidelines, was not cruel and unusual punishment under the 8th Amendment because the sentence was proportionate to the gravity of the offense.  During the robbery, Burnett terrorized victims with a gun, forced them to the floor, and bound them with ties. He also clubbed a victim who tried to escape, requiring seven surgical staples to the victim’s head. This was also not aberrant behavior for Burnett, who had a prior record for violent robberies and assault. Finally, Burnett threatened the arresting officers in this case with a box cutter, resulting in an altercation that led to him getting shot in the chest.  The fact that sentence was within the guidelines in and of itself is strongly suggestive of proportionality.