USA v. Alfred Wisher

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10447
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFRED WISHER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 4:19-cr-00201-RSB-CLR-1
____________________
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2 Opinion of the Court 22-10447
Before N EWSOM , ANDERSON, and EDMONDSON, Circuit Judges.
PER CURIAM:
Alfred Wisher appeals his convictions and his 640-month to-
tal sentence.* Wisher contends that the district court erred by ad-
mitting into evidence Wisher’s prior armed-robbery convictions,
by refusing to issue a justification-defense jury instruction, and by
denying Wisher’s motion for a new trial. In its response brief, the
government acknowledges -- based on the Supreme Court’s recent
decision in
United States v. Taylor, 142 S. Ct. 2015 (2022) -- that
Wisher’s conviction under 18 U.S.C. § 924(c), for using, carrying,
and brandishing a firearm during and in relation to attempted
Hobbs Act robbery (“Count 7”) is unlawful. Reversible error has
been shown; we vacate Wisher’s conviction and sentence on
* Wisher was convicted of these offenses: (1) three counts of possession of a
firearm by a convicted felon, 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Counts 1, 8,
11); (2) possession of a stolen firearm, 18 U.S.C. §§ 922(j) and 924(a)(2) (Count
2); (3) theft of a firearm, 18 U.S.C. § 924(l) (Count 3); (4) carjacking, 18 U.S.C.
§ 2119(1) (Count 4); (5) two counts of using, carrying, and brandishing a fire-
arm during and in relation to a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii)
(Counts 5, 7); (6) attempted Hobbs Act robbery, 18 U.S.C. § 1951(a) (Count 6);
(7) conspiracy to use and to carry a firearm during and in relation to a crime
of violence, 18 U.S.C. § 924(o) (Count 9); and (8) conspiracy to commit Hobbs
Act robbery, 18 U.S.C. § 1951(a) (Count 10). The district court imposed an
above-guidelines sentence of 640 months’ imprisonment: a sentence that in-
cluded an 84-month consecutive sentence for the section 924(c) offense
charged in Count 7.
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22-10447 Opinion of the Court 3
Count 7 and remand for resentencing on the remaining counts of
conviction.
I.
We first address Wisher’s argument that the district court
erred in admitting -- in violation of Fed. R. Evid. 404(b) -- his prior
New York convictions for armed robbery. We review for abuse of
discretion the district court’s admission of evidence under Rule
404(b).
See United States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir.
2008).
Under Rule 404(b), evidence of other crimes is inadmissible
to show proof of bad character.
See Fed. R. Evid. 404(b)(1). But
such evidence may be admissible to prove “motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.”
See Fed. R. Evid. 404(b)(2). For other-crimes
evidence to be admissible under Rule 404(b), “(1) the evidence
must be relevant to an issue other than defendant’s character; (2)
the probative value must not be substantially outweighed by its un-
due prejudice; [and] (3) the government must offer sufficient proof
so that the jury could find that defendant committed the act.”
See
United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005). We
have described Rule 404(b) as a rule “of inclusion which allows ex-
trinsic evidence unless it tends to prove only criminal propensity.”
See Ellisor, 522 F.3d at 1267 (quotations and brackets omitted).
The district court abused no discretion by admitting into ev-
idence Wisher’s prior New York armed-robbery convictions. The
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4 Opinion of the Court 22-10447
prior robbery convictions were properly relevant to establishing
Wisher’s intent to commit the charged Hobbs-Act-robbery and car-
jacking offenses: not to show Wisher’s bad character. We reject
Wisher’s assertion that his intent was not at issue at trial. A defend-
ant -- like Wisher -- “who enters a not guilty plea makes intent a
material issue . . ..”
See United States v. Edouard, 485 F.3d 1324,
1345 (11th Cir. 2007).
Given the similarity between the charged offenses and
Wisher’s prior armed-robbery convictions -- each of which in-
volved the intent to knowingly take someone else’s property by
means of actual or threatened force or violence -- evidence of
Wisher’s prior convictions was probative to showing that Wisher
had the requisite intent to commit the Hobbs-Act-robbery and car-
jacking offenses charged in this case.
See United States v. Dicker-
son, 248 F.3d 1036, 1047 (11th Cir. 2001) (explaining that prior crim-
inal convictions are relevant to show a defendant’s intent when
“the extrinsic offense requires the same intent as the charged of-
fense”); N.Y. Penal Law § 160.15(3) (McKinney 2022) (providing
that a person is guilty of first-degree robbery when he forcibly
steals property and “[u]ses or threatens the immediate use of a dan-
gerous instrument”); 18 U.S.C. § 1951(b) (defining “robbery” under
the Hobbs Act as “the unlawful taking . . . of personal property . . .
by means of actual or threatened force, or violence, or fear of in-
jury, immediate or future. . . .”); 18 U.S.C. § 2119(1) (providing that
a person is guilty of carjacking when he -- “with the intent to cause
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22-10447 Opinion of the Court 5
death or serious bodily harm” -- takes a motor vehicle “by force and
violence or by intimidation, or attempts to do so”).
We cannot conclude that the evidence’s probative value was
outweighed substantially by the risk of undue prejudice. The dis-
trict court twice issued a limiting instruction to the jury: instruc-
tions that minimized the risk of unfair prejudice caused by admit-
ting the challenged evidence.
See United States v. Brown, 665 F.3d
1239, 1247 (11th Cir. 2011) (“A limiting instruction can diminish
any unfair prejudice caused by the evidence’s admission.”). We
presume that jurors follow the court’s instructions.
See United
States v. Brown, 983 F.2d 201, 202 (11th Cir. 1993).
II.
Wisher next challenges the district court’s refusal to instruct
the jury on a justification defense. “We review a district court’s
refusal to give a requested jury instruction for abuse of discretion.”
United States v. Martinelli, 454 F.3d 1300, 1309 (11th Cir. 2006).
We review
de novo the district court’s determination that a defend-
ant has failed to set forth a sufficient proffer to warrant a justifica-
tion defense.
See United States v. Dicks, 338 F.3d 1256, 1257 (11th
Cir. 2003). The defendant bears the burden of proving by a pre-
ponderance of the evidence the elements of a justification affirma-
tive defense.
Id.
To establish a justification defense, a defendant must show
these elements: (1) that he faced an “unlawful and present, immi-
nent, and impending threat of death or serious bodily injury;” (2)
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6 Opinion of the Court 22-10447
that he “did not negligently or recklessly place himself in a situation
where he would be forced to engage in criminal conduct;” (3) that
he “had no reasonable legal alternative to violating the law;” and
(4) “a direct causal relationship between the criminal action and the
avoidance of the threatened harm.”
United States v. Deleveaux,
205 F.3d 1292, 1297 (11th Cir. 2000) (in the context of 18 U.S.C. §
922(g));
see Dixon v. United States, 548 U.S. 1, 4 n.2 (2006).
The district court abused no discretion in declining to in-
struct the jury on the justification defense. Wisher presented no
evidence that shows -- by a preponderance of the evidence -- that
he satisfied the requisite elements of the affirmative defense. Of
import, nothing evidences that Wisher faced a “present, imminent,
and impending threat of death or serious bodily injury.”
On appeal, Wisher argues that a justification-defense in-
struction was warranted based on evidence that -- while Wisher
and his co-conspirator (Chisholm) discussed committing a robbery
-- Chisholm pulled out a gun and placed it in his (Chisholm’s) lap.
Wisher says that Chisholm’s conduct could be perceived as threat-
ening. But Wisher testified expressly that he was not afraid of
Chisholm, that he did not know what Chisholm meant by placing
the gun in his lap, and that he was unsure what would have hap-
pened if Wisher did not go through with the robbery.
In any event -- even if Wisher might have been afraid of
Chisholm at the time of the robbery -- Wisher’s testimony comes
nowhere close to demonstrating the kind of “immediate emer-
gency” that might warrant a justification-defense instruction.
See
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22-10447 Opinion of the Court 7
United States v. Bell, 214 F.3d 1299, 1300 (11th Cir. 2000). Wisher
has produced no evidence tending to show that he faced an immi-
nent threat of serious harm.
Wisher has also failed to present evidence sufficient to estab-
lish the remaining three elements. Because Wisher armed
Chisholm with the gun and drove himself and Chisholm to the
store in search of a robbery victim, Wisher cannot show that he did
not act negligently or recklessly to put himself in the position
where he was supposedly forced to commit a robbery. Nor does
the evidence support a finding that Wisher lacked a reasonable, le-
gal alternative other than to rob a victim at gunpoint. Wisher has
also shown no direct causal relationship between Wisher’s criminal
conduct and his supposed fear of Chisholm.
III.
Wisher next challenges the district court’s denial of his mo-
tion for a new trial. In arguing that he was entitled to a new trial,
Wisher repeats his assertions that the district court erred in admit-
ting Wisher’s prior armed-robbery convictions and in denying
Wisher’s request for a justification-defense jury instruction.
We review a district court’s ruling on a motion for a new
trial under an abuse-of-discretion standard.
See United States v.
Green, 981 F.3d 945, 960 (11th Cir. 2020). A new trial may be war-
ranted only when the evidence “preponderate[s] heavily against
the verdict, such that it would be a miscarriage of justice to let the
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8 Opinion of the Court 22-10447
verdict stand.”
See United States v. Gallardo, 977 F.3d 1126, 1139-
40 (11th Cir. 2020).
The district court acted within its discretion by denying
Wisher’s motion for a new trial. For the reasons already discussed,
Wisher’s prior-conviction and justification-defense arguments are
without merit and offered no basis for the granting of a new trial.
Moreover, the government presented overwhelming evidence of
Wisher’s guilt: no miscarriage of justice would result from letting
the verdict stand.
IV.
We next address Wisher’s section 924(c) conviction under
Count 7. Count 7 charged Wisher with using a firearm in connec-
tion with a “crime of violence,” which was identified as Wisher’s
attempted Hobbs Act robbery.
While Wisher’s appeal was pending, the Supreme Court
concluded that attempted Hobbs Act robbery does not qualify as a
predicate “crime of violence” for purposes of 18 U.S.C. §
924(c)(3)(A).
See United States v. Taylor, 142 S. Ct. 2015, 2002-21
(2022).
In the light of the Supreme Court’s decision in
Taylor, we
vacate Wisher’s conviction and 84-month sentence on Count 7.
We remand to the district court for resentencing on the remaining
counts of conviction.
See United States v. Fowler, 749 F.3d 1010,
1017 (11th Cir. 2014) (explaining that, when a conviction is set
aside, we presume that “sentences on each count of a multi-count
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22-10447 Opinion of the Court 9
indictment are part of a package that may . . . be revisited to ensure
that the overall sentence on the surviving counts is constituent
with the district court’s intentions, the guidelines, and the § 3553(a)
factors”).
VACATED AND REMANDED.
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