2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-2-2014

USA v. Anthony Burnett

Precedential or Non-Precedential: Precedential

Docket No. 14-1288

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 14-1288

________________

UNITED STATES OF AMERICA

v.

ANTHONY BURNETT

a/k/a ANT

ANTHONY BURNETT,

Appellant

________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Crim. No. 2:11-cr-00274-001)

Honorable Eduardo C. Robreno, District Judge

________________

Submitted under Third Circuit LAR 34.1(a)

October 23, 2014

BEFORE: FUENTES, GREENBERG, and 

COWEN, Circuit Judges
2

(Filed: December 2, 2014)

______________

Zane David Memeger

Joseph A. LaBar

United States Attorney

Robert A. Zauzmer

Chief of Appeals

Assistant United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, Pa. 19106

 Attorneys for Appellee

Michael J. Diamonstein

Two Penn Center

Suite 900 

1500 John F. Kennedy Boulevard

Philadelphia, Pa. 19102

 

 Attorney for Appellant

______________

OPINION OF THE COURT

______________

GREENBERG, Circuit Judge.

I. INTRODUCTION

A well-informed criminal concerned about having 
3

standing to challenge a search of his escape vehicle if he is 

apprehended after a robbery would recognize that even though 

the owner of a vehicle may claim a privacy interest in the 

vehicle and its contents, a passenger or former passenger of the 

vehicle faces an uphill battle if he attempts to establish that he 

has standing to move to suppress evidence found in the vehicle 

during the search. This case implicates that distinction between 

an owner and a passenger as it presents a question whether a 

passenger, who does not own the vehicle and leaves it before the 

police take possession of it, may contest the search of the 

vehicle and the seizure of stolen goods recovered in the search. 

We conclude, as did the District Court, that appellant, who was 

a passenger or, as he prefers to characterize his status, a former 

passenger in the vehicle, lacked standing to challenge the search 

of the vehicle used in a robbery. Accordingly, we will uphold 

the Court’s order denying appellant’s motion to suppress 

evidence recovered in the search of the vehicle, and, inasmuch 

as we also reject appellant’s other contentions, we will affirm 

the judgment and conviction and sentence entered on February 

4, 2014. 

II. FACTUAL AND PROCEDURAL HISTORY

A. Robbery of Poland Jewelers

On the morning of March 29, 2011, appellant Anthony 

Burnett, and his co-felon, Raheem Hankerson, robbed A.I. 

Poland Jewelers in Philadelphia. In the days leading up to the 

robbery, Hankerson and Burnett planned the robbery and visited 

the store. In addition, Burnett secured a gun to use during the 

crime and Hankerson arranged to borrow a black Honda owned 
4

by his girlfriend, Shavon Adams, for use in the robbery. On the 

day of the robbery, Hankerson borrowed the Honda from 

Adams, picked up Burnett, and drove to Poland Jewelers. 

Adams, who was not acquainted with Burnett, had given 

Hankerson permission to use the Honda but so far as the record 

reveals did not know that Burnett would be a passenger in the 

car or that Hankerson intended to use it during commission of a 

crime. After reaching the store, Hankerson parked the car on a 

nearby side street as Burnett got ready to enter the store. 

Wearing a hat, wig, and sunglasses, Burnett entered 

Poland Jewelers and, posing as a customer, engaged an 

employee in a discussion about a potential purchase. Burnett 

then pointed a gun at the employee and the owner of the store, 

and, after ordering them to get on the floor, restrained them with 

plastic “zip ties.” A store video security system clearly captured 

Burnett’s face during the early stages of the robbery. After he 

subdued the victims, Burnett called Hankerson by cell phone 

and told him to join him in the store. The two men donned latex 

gloves and looted the store, stealing, among other items, 

jewelry, a revolver, and the videotape from its security system. 

At one point when the store owner attempted to free himself, 

Burnett bludgeoned him on the head with the gun, inflicting 

wounds that required seven surgical staples to close. 

Acting quickly, the robbers threw their loot into shopping 

bags. Hankerson shoved the stolen revolver into a pocket of his 

coat and left the store, and Burnett followed him out. The 

robbers fled from the area in Adams’ Honda with Hankerson 

driving. They, however, got lost and drove down a dead-end 

street about two and a half miles from Poland Jewelers. For 

reasons that the parties do not discuss in their briefs, instead of 

backing out or turning around and continuing to drive away in 
5

the Honda, they parked the Honda on the dead-end street. Then 

from the back seat, Burnett and Hankerson placed the shopping 

bags in the trunk of the Honda, and exited the vehicle. They 

then left the area on foot. 

After Hankerson and Burnett fled, the victims freed 

themselves and called the police. An initial police radio 

broadcast reported that Poland Jewelers had been robbed by two 

black men, one wearing a wig and one wearing a yellow coat, 

both armed with guns. Officers responded to the scene and 

quickly surmised that the robbers used a vehicle to make their 

escape, a conclusion that they reached as none of the officers 

who responded to the robbery had seen anyone fleeing the area 

on foot, and the officers believed that two men running while 

wearing wigs and carrying bags of goods likely would have been 

noticed and reported. The police then received a call reporting 

that a “suspicious black Honda” was parked on a dead-end 

residential street not far from the scene of the robbery. An 

officer dispatched to that location interviewed two witnesses 

who reported that its operator had driven the Honda up the street 

at a high rate of speed; that two black men had exited the car; 

that one wore a tan jacket and jumped out of the driver’s side of 

the car and opened the trunk; that the second man threw various 

items into the trunk; that the man in the tan jacket threw a bag 

into the trunk; and that the two men then fled the area on foot. 

The officer suspected that the vehicle had been used in the 

Poland Jewelers robbery and notified police dispatch of what he 

had discovered. 

The police quickly ascertained from the Honda’s license 

plate that the registered owner of the vehicle had an address in a 

section of Philadelphia different from that where the police 

found it. The police then sent a patrol car to the Honda owner’s 
6

address in an unsuccessful effort to contact the Honda’s owner, 

and then had the Honda towed to the police garage. After the 

police recovered the Honda, the detective assigned to the case 

prepared an affidavit and application for a search warrant, which 

the Philadelphia District Attorney’s Office approved. The 

application was submitted to a magistrate who approved it and 

issued the search warrant. 

The police executed the warrant by searching the trunk of 

the car and in the search recovered the jewelry, store gun, stolen 

security videotape, two wigs, the bloodstained gun used in the 

robbery, a wallet containing Hankerson’s identification card, 

latex gloves, and “zip ties” identical to those used during the 

robbery to bind the victims. A test of the latex gloves for DNA 

evidence revealed that one contained the DNA of Burnett and 

the store owner and the other contained the DNA of both 

Hankerson and the store owner.

B. Burnett’s Motion to Suppress and Sentencing

On May 12, 2011, a grand jury in the Eastern District of 

Pennsylvania returned an indictment charging Burnett and 

Hankerson with conspiracy to commit a Hobbs Act robbery, in 

violation of 18 U.S.C. § 1951 (Count One); a Hobbs Act 

robbery, in violation of 18 U.S.C. § 1951 (Count Two); using 

and carrying a firearm during and in relation to a crime of 

violence, in violation of 18 U.S.C. § 924(c)(1) (Count Three); 

and possession of a stolen firearm, in violation of 18 U.S.C. § 

922(j) (Count Four). The indictment also charged Burnett with 

one count of possession of a firearm by a convicted felon, in 

violation of 18 U.S.C. § 922(g)(1) and § 924(e) (Count Six).

Hankerson pleaded guilty and cooperated with the 
7

government. At Burnett’s trial, he identified Burnett as his 

accomplice and described both the planning and execution of the

robbery. Both of the robbery victims identified Burnett as one 

of the robbers. The government introduced the store’s security 

videotape, which contained footage of Burnett’s face, as well as 

still photos from the tape. An expert testified that Burnett’s 

DNA, along with that of the store owner, was found on a latex 

glove recovered from the Honda. The evidence of Burnett’s 

guilt was overwhelming.

Burnett filed a pretrial motion challenging the seizure and 

search of the Honda, contending that the officers lacked 

probable cause to seize the car and that the magistrate erred in 

issuing the search warrant. The District Court conducted two 

hearings on the motions and ordered supplemental briefing. The 

government argued that Burnett’s motion should be denied for 

lack of standing. At the suppression hearing, Burnett’s counsel 

conceded that there was no legal authority supporting the 

argument that Burnett had standing to challenge the search of 

the car but argued that this result seemed “fundamentally 

unfair.” App. 110. The District Court ultimately held that 

Burnett lacked standing to challenge the search, as he merely 

was a passenger in the car and therefore lacked a privacy interest 

in the vehicle. 

Notably, prior to trial, Burnett moved to proceed pro se. 

The District Court granted this motion but ordered Burnett’s 

counsel to act as standby counsel. At the close of the 

government’s case, Burnett unsuccessfully moved for a 

judgment of acquittal pursuant to Federal Rule of Criminal 

Procedure 29, arguing that the Court should dismiss the robbery 

and Section 924(c) counts because the indictment did not allege 

as an element of the offenses that the firearm was used or 
8

carried in the offenses “in furtherance” of crimes of violence. 

On August 1, 2013, the jury convicted Burnett of all the offenses

charged in the indictment except for the count of possession of a 

stolen firearm.

The Probation Office submitted a presentence report 

(“PSR”) that concluded that the computation of Burnett’s base 

offense level with the relevant enhancement, yielded an adjusted 

offense level of 33. Because Burnett had three prior convictions 

for crimes of violence – two robbery convictions and a 

conviction for aggravated assault – the Probation Office 

concluded that he was an armed career criminal pursuant to 18 

U.S.C § 924(e) and a career offender under U.S.S.G. § 4B1.1 so 

that his guideline range was 188 to 235 months. When a 

mandatory consecutive period of incarceration of 84 months for 

the Section 924(c) offense was added to the guideline range, 

Burnett faced a total advisory custodial range of 272 to 319 

months. 

Burnett raised various objections to the PSR, including a 

contention that he should not have been designated as an armed 

career criminal because a jury did not make that determination. 

Though he now challenges the sentence on an Eighth 

Amendment basis, he did not make that claim in the District 

Court. At the sentencing hearing, the Court concluded that 

Burnett was an armed career criminal and adopted a guideline 

calculation and range consistent with the PSR. The Court 

imposed a within-guideline range custodial sentence of 288 

months, noting that Burnett had been a “regular participant in 

the criminal justice system most of his life.” App. 820. Despite 

stressing that Burnett’s violent actions in this robbery were 

“exceedingly troubling,” the Court declined to impose a 

sentence at the top of the guidelines range. Id. 821. Instead, the 
9

Court sentenced him to a 204-month custodial term on the 

robbery counts, and a consecutive sentence of 84 months on the 

Section 924(c) count. The Court also imposed a period of 

supervised release of five years to follow the service of the 

period of incarceration, and ordered Burnett to pay a $1,000 

fine, a special assessment of $400, and $300 in restitution. 

Burnett filed a timely appeal of his conviction and 

sentence.

III. STATEMENT OF JURISDICTION

The District Court had jurisdiction under 18 U.S.C. § 

3231, and we have jurisdiction under 28 U.S.C. § 1291 and 18 

U.S.C. § 3742(a).

IV. STANDARD OF REVIEW

We review a district court’s denial of a motion to 

suppress for clear error as to the underlying factual findings and 

exercise plenary review over its application of the law to those 

facts. United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002). 

We also exercise plenary review of a challenge to the 

sufficiency of an indictment, United States v. Whited, 311 F.3d 

259, 262 (3d Cir. 2002), and plenary review over purely legal 

questions in relation to Eighth Amendment challenges. United 

States v. MacEwan, 445 F.3d 237, 247 (3d Cir. 2006). Where, 

as here, a defendant did not make an Eighth Amendment 

challenge to a sentence in the district court but raises the Eighth
10

Amendment issue on appeal, a court reviews the sentence for 

plain error. United States v. Miknevich, 638 F.3d 178, 185 (3d 

Cir. 2011). Finally, we review a finding that a photo array was 

not unnecessarily suggestive for clear error. United States v. 

Stevens, 935 F.2d 1380, 1390 (3d Cir. 1991).

V. DISCUSSION

Burnett presents a litany of issues for our review. 

Addressing each in turn, we reject all of his arguments. Initially 

we note that he waived or did not preserve some of his 

contentions, as he failed to raise them in the District Court, but 

we nonetheless address all of his arguments on the merits. We 

begin with his assertion that he has standing to challenge the 

search of Adams’ car, which he had abandoned,1in which he 

had been a passenger during its period of use for commission of 

the robbery. 

A. The District Court Properly Denied

 Burnett’s Motion to Suppress Evidence.

 

1 When we say that Burnett “abandoned” the Honda, we are not 

implying that if the police had not taken possession of the 

vehicle and recovered its contents he and Hankerson would not 

have returned to take possession of the vehicle, as we have no 

way of knowing what they would have done if the police had not 

towed the car away. We do note that in his brief Burnett 

indicates that he was “storing his items in the trunk,” appellant’s 

br. 3, implying that he intended to return for them.
11

Burnett asserts that the Court erred in ruling that he 

lacked standing to challenge the search of the Honda used in the 

robbery. Burnett presents a somewhat creative argument. He 

contends that inasmuch as he had abandoned the Honda prior to 

the search, he was not a passenger in the car at the time the 

police located and seized it. Thus, he contends that the Court 

erred by applying law relevant to the standing of passengers to 

move to suppress evidence seized in the search of a vehicle. 

Drawing his argument to what he believes is a logical 

conclusion, he argues that his privacy interest as a stranger to the

vehicle is stronger than any interest that he might have had if the 

police seized the Honda while he was a passenger in it.

In considering this point we note first that Burnett did not 

present this “abandonment” argument in the District Court and 

that he has waived his right to pursue it on appeal. It is well 

established that a defendant waives his right to raise suppression 

arguments on appeal that he did not raise in a district court. See

United States v. Rose, 538 F.3d 175, 182-84 (3d Cir. 2008). In 

Rose we explained that under Federal Rule of Criminal 

Procedure 12(b)(3), a motion to suppress evidence must be made

before trial, and under Rule 12(e) “a party waives any Rule 

12(b)(3) defense, objection, or request not raised by the deadline 

the court sets under Rule 12(c) or by extension the court 

provides.” This waiver rule “trumps Rule 52(b)’s plain error 

standard in the context of motions to suppress.” 538 F.3d at 

176. Accordingly, the Rule 12(e) waiver provision applies 

where a defendant attempts to advance a new, specific theory on 

appeal. “[I]n the context of a motion to suppress, a defendant 

must have advanced substantially the same theories of 

suppression in the district court as he or she seeks to rely upon 

in this Court – in other words, a litigant cannot jump from 
12

theory to theory like a bee buzzing from flower to flower.” Id. 

at 179-80 (internal quotation marks omitted); see also United 

States v. Lockett, 406 F.3d 207, 211-12 (3d Cir. 2005) (finding 

waiver where the defendant argued in the suppression 

proceeding that a search of his luggage was not voluntary, and 

on appeal argued he had provided only limited consent to the 

search of his luggage and the officers exceeded this consent); 

United States v. Joseph, 730 F.3d 336, 341-42 (3d Cir. 2013) (to 

preserve a suppression argument, it is not sufficient to simply 

raise an “issue,” such as lack of probable cause; rather, the party 

must make the same “argument” as presented in the district 

court, which must depend on both the same legal rule and the 

same facts as the argument presented in the district court). 

In the District Court, Burnett’s counsel, treating Burnett 

as a passenger, actually conceded that Burnett lacked standing 

under current law. And, while he opined that this was 

“fundamentally unfair,” he recognized that the Court was bound 

by this precedent. Thus, Burnett waived his claim that he had a 

privacy interest in the Honda and/or the packages it contained on

any theory.

That said, even if Burnett had preserved his 

“abandonment” claim, he would not have demonstrated that he 

had standing to challenge the search of the vehicle. An 

individual challenging a search has the burden of establishing 

that he had a reasonable expectation of privacy in the property 

searched and the item seized. Minnesota v. Olson, 495 U.S. 91, 

95-97, 110 S.Ct. 1684, 1687-88 (1990). A person must show 

both that he had a subjective expectation of privacy in the area 

searched and that his expectation was objectively reasonable. 

Rakas v. Illinois, 439 U.S. 128, 143-44, 99 S.Ct. 421, 424-25 

(1978); United States v. Donahue, 764 F.3d 293, 298-99 (3d Cir. 
13

2014). To demonstrate that he had a subjective expectation of 

privacy, the defendant must show that he “took normal 

precautions to maintain his privacy.” Rawlings v. Kentucky, 

448 U.S. 98, 105, 100 S.Ct. 2556, 2561 (1980). 

In light of these principles, “[i]t is clear that a passenger 

in a car that he neither owns nor leases typically has no standing 

to challenge a search of the car.” United States v. Baker, 221 

F.3d 438, 441-42 (3d Cir. 2000) (citing Rakas, 439 U.S. at 133-

34, 99 S.Ct. at 424-25). As the Supreme Court explained, “[a] 

person who is aggrieved by an illegal search and seizure only 

through the introduction of damaging evidence secured by a 

search of a third person’s premises or property has not had any 

of his Fourth Amendment rights infringed.” Rakas, 439 U.S. at 

134, 99 S.Ct at 425. Burnett has failed to demonstrate that he 

had a reasonable expectation of privacy in the Honda or its 

contents. Adams, the owner of the Honda, did not know 

Burnett, and she did not give him permission to occupy her car. 

Hankerson borrowed the car on the morning of the robbery and 

picked Burnett up on the way to Poland Jewelers. To the extent

that Burnett concedes he was a passenger in the Honda on the 

ride to and from the robbery, it is clear that he and Hankerson 

abandoned the car on a dead-end street with the stolen loot and 

other items still in its trunk. 

As we have indicated, Burnett attempts to defend his 

claim that he had a privacy interest in the Honda and its contents 

by arguing that he ceased being a “passenger” when he walked 

away from the car, so the line of cases addressing a passenger’s 

expectation of privacy is inapplicable here. But even adopting 

his argument that he ceased being a “passenger” once he left the 

car, it does not follow that, by leaving the car, he acquired an 

otherwise nonexistent privacy interest in the Honda or its 
14

contents. 

We therefore conclude that when Burnett abandoned the 

Honda by walking away from it, he also abandoned any 

conceivable privacy interest that he might have had in the 

vehicle or its contents.2 The fact that he left property in the 

Honda’s trunk does not give him standing to challenge a search 

of that portion of the vehicle. Even if Burnett owned the stolen 

property, which, of course, he did not, the Supreme Court has 

rejected the theory that a “legitimate expectation of privacy” can 

rest on mere ownership of property. Thus, in United States v. 

Salvucci, the Court stated, “we simply decline to use possession 

of a seized good as a substitute for a factual finding that the 

owner of the good had a legitimate expectation of privacy in the 

area searched.” 448 U.S. 83, 92, 100 S.Ct. 2547, 2553 (1980); 

see Rakas, 439 U.S. at 144, 99 S.Ct. at 431. In Salvucci, the 

defendants were charged with possession of stolen mail, which 

was found during a search of the residence of one of the 

defendant’s mother. 448 U.S. at 85, 100 S.Ct. at 2549. The 

Court held that the defendants did not have standing to 

challenge the search; even if they were charged with possession 

of the items, because they did not have a reasonable expectation 

of privacy in the place searched. Id. Courts will “engage in a 

conscientious effort to apply the Fourth Amendment by asking 

not merely whether the defendant had a possessory interest in 

the items seized, but whether he had an expectation of privacy in 

the area searched.” Id. at 93, 100 S.Ct. at 2553 (internal 

quotation marks and citation omitted); see also Rawlings, 448 

U.S. at 104-06, 100 S.Ct. at 2560-62 (defendant lacked standing 

to challenge the search of his companion’s purse because he 

 

2 As we have made clear, he did not have at any point any 

privacy interest in the car or its contents.
15

failed to show that he had a reasonable expectation of privacy in 

the purse).

We conclude that the District Court correctly determined 

that Burnett lacked standing to challenge the search of the 

Honda, and properly denied Burnett’s motion to suppress the 

evidence seized in the search. We also point out that the police 

conducted their search only after they obtained a warrant to do 

so.3 Any argument that the warrant was invalid is baseless. The 

Court concluded in a detailed opinion not only that the initial 

search and the search pursuant to the warrant were supported by 

probable cause, but also that the officers could rely in good faith 

on the warrant. Burnett fails to identify any errors in the Court’s 

findings of fact and conclusions of law, which are well 

supported by the record. Accordingly, we will uphold the 

District Court’s ruling on the search and seizure issue.

B. The District Court Properly Denied 

 Burnett’s Motion to Suppress 

 Photographic Identification

Burnett claims that the District Court erred by denying 

his motion to suppress a photographic identification of him on 

the ground that the array was unduly suggestive. We reject his 

argument. 

We reiterate that we review the District Court’s findings 

for clear error. Stevens, 935 F.2d at 1390. A pretrial 

identification procedure violates a defendant’s constitutional 

right to due process when it both (1) is unnecessarily suggestive 

 

3We, of course, are not implying that they needed a warrant to 

make the search. See Donahue, 764 F.3d at 299-300.
16

and (2) creates a substantial risk of misidentification. United 

States v. Brownlee, 454 F.3d 131, 137 (3d Cir. 2006) (citing 

Manson v. Brathwaite, 432 U.S. 98, 107, 97 S.Ct. 2243, 2249 

(1977)). A court should suppress an identification only where 

“the photographic identification procedure was so 

[unnecessarily] suggestive as to give rise to a very substantial 

likelihood of irreparable misidentification.” Simmons v. United 

States, 390 U.S. 377, 384, 88 S.Ct. 967, 971 (1968). The use of 

a photo array may violate due process “when police attempt to 

emphasize the photograph of a given suspect, or when 

circumstances surrounding the array unduly suggest who an 

identifying witness should select.” United States v. Lawrence, 

349 F.3d 109, 115 (3d Cir. 2003) (citing Simmons, 390 U.S. at 

383, 88 S.Ct. at 971). 

A photographic array is not unnecessarily suggestive 

solely because certain characteristics of a defendant or 

photograph set him apart from the other persons pictured in the 

array. Reese v. Fulcomer, 946 F.2d 247, 260 (3d Cir. 1991) 

(holding a photographic array was not unnecessarily suggestive 

when defendant was the only pictured person shown with 

sideburns and a card with name and height); United States v. 

Dowling, 855 F.2d 114, 117 (3d Cir. 1988) (six-person 

photographic array was not unduly suggestive when the 

defendant was the only one wearing a red shirt because all 

individuals “were reasonably comparable in dress and 

appearance”). The key question is whether differences in 

characteristics “sufficiently distinguish” a defendant to suggest 

culpability. Reese, 946 F.2d at 260.

Burnett argues that the photo array that led to his 

identification was unduly suggestive because the photos of the 

other individuals in the array did not sufficiently resemble him. 
17

The District Court examined the array and disagreed, noting that 

each of the photographs was of an African-American male “with 

facial hair, a goatee, some of them with pepper coloring in their 

goatee, and all of the males . . . relatively light skinned.” App. 

379. Burnett himself is “an African-American of light skin and 

light color eyes, sporting a goatee with some gray hair, and he 

has a relatively sparse head of hair.” Id. The Court found that 

all of the men in the array were of a similar age; there was no 

striking difference in the amount of head hair each had; and the 

skin color of the members of the array was not strikingly 

different. The Court concluded that any slight differences in the 

appearances of those depicted did not rise to the level of being 

unduly suggestive, and did not create a risk of misidentification. 

We hold that the District Court’s careful and wellfounded analysis dispels Burnett’s claim that the array was 

unduly suggestive. We, accordingly, will affirm the Court’s 

decision to deny Burnett’s pretrial motion to suppress his 

photographic identification. 

C. The District Court Properly Denied

 Burnett’s Motion for Judgment for Acquittal.

Burnett contends that the District Court erred by failing 

to grant his motion to dismiss the Section 924(c) count. At the 

close of the government’s case, Burnett, who was proceeding

pro se, moved for a judgment of acquittal on the Hobbs Act and 

Section 924(c) counts of the indictment on the ground that they 

did not charge the “in furtherance” element of each offense. 

The Court denied the motion, determining that the indictment 

properly charged the elements of each offense. In a counseled 

post-verdict motion, Burnett moved for a judgment of acquittal 
18

on the Section 924(c) count because it failed to state that the 

firearm was used or carried “in furtherance” of a crime of 

violence, but abandoned his attack on the other counts. The 

Court again denied the motion on the ground that his argument 

was incorrect as a matter of law. 

We will affirm the District Court’s ruling. As we have 

indicated, we exercise plenary review of a challenge to the 

sufficiency of an indictment. Whited, 311 F.3d at 262. As 

pertinent here, Section 924(c) provides that “any person who, 

during and in relation to any crime of violence or drug 

trafficking crime . . . for which the person may be prosecuted 

in a court of the United States, uses or carries a firearm, or who, 

in furtherance of any such crime, possesses a firearm, shall . . . 

be sentenced to a term of imprisonment of not less than 5 

years.” Count Three of the superseding indictment charged that 

Burnett used and carried, and aided and abetted the use and 

carrying of a firearm, during and in relation to a crime of 

violence (that is, the robbery charges in Counts One and Two), 

in violation of 18 U.S.C. § 924(c). The indictment further 

alleged that Burnett brandished the gun during the crime.

Section 924(c) has two separate prongs, the violation of 

either standing alone is sufficient to support a conviction under 

the statute: (1) “us[ing] or carry[ing]” a firearm “during and in 

relation to” the underlying offense; or (2) “possess[ing] a 

firearm” “in furtherance” of the underlying offense. See United 

States v. Bobb, 471 F.3d 491, 496 (3d Cir. 2006); United States 

v. Loney, 219 F.3d 281, 287 (3d Cir. 2000) (the “possession 

standard is not simply added to the list of ‘use’ and ‘carry,’ 

which must be done ‘during and in relation to’ the [underlying] 

offense; rather the possession must be ‘in furtherance of’ the 
19

[underlying] offense. By making this distinction, Congress may 

well have intended ‘in furtherance’ to impose a more stringent 

standard than ‘in relation to.’”). 

Before 1998, Section 924(c) prohibited only using and 

carrying a firearm during and in relation to a crime of violence 

or a drug trafficking crime. Then, in 1995, the Supreme Court 

held that “using” a firearm under Section 924(c) required that 

the firearm be actively employed, and did not include mere 

possession. Bailey v. United States, 516 U.S. 137, 143-44, 116 

S.Ct. 501, 505 (1995). In response to Bailey, Congress amended 

Section 924(c) to include possession of a firearm in furtherance 

of a crime. Pub. L. 105-386, § 1(a)(1), 112 Stat. 3469 (Nov. 13, 

1998). But the amendment did not make any material change to 

the “using and carrying” provision.

Thus, both the text and history of Section 924(c) show 

that Burnett’s reading of the statute fundamentally is flawed. He 

argues that the indictment was defective because it did not 

allege that he used the gun “in furtherance of” a crime of 

violence, but the “in furtherance” element applies only to the 

possession prong. He is wrong as a matter of law; we thus will 

affirm the District Court’s denial of Burnett’s motion for 

judgment of acquittal.

D. The Evidence Supports the Verdict as to All 

 Counts.

Burnett argues that the District Court erred by failing to 

grant his motion for a judgment of acquittal on the ground that 

the evidence was insufficient to support his conviction on any 

count. His argument before us is one succinct sentence: “We 

respectfully submit that the evidence adduced at trial – even 
20

when evaluated in the light most favorable to the government –

was insufficient to uphold the jury’s decision.” Appellant’s br. 

8-9. We are satisfied that the argument is groundless. 

An argument in an appellate brief “consisting of no more 

than a conclusory assertion such as the one made here (without 

even a citation to the record) will be deemed waived.” Reynolds 

v. Wagner, 128 F.3d 166, 178 (3d Cir. 1997). Setting aside the 

waiver, we review Burnett’s conclusory claim for plain error, as 

Burnett failed to move in the District Court for a judgment of 

acquittal based on the insufficiency of the evidence to support 

the government’s case. United States v. Gordon, 290 F.3d 539, 

547 (3d Cir. 2002). Pursuant to this standard, we review the 

argument “only for a manifest miscarriage of justice – the record 

must be devoid of evidence of guilt or the evidence must be so 

tenuous that a conviction is shocking.” United States v. Avants, 

367 F.3d 433, 449 (5th Cir. 2004). Such an error requires a 

defendant to establish that the trial judge and prosecutor were 

derelict in even permitting the jury to deliberate. See United 

States v. Wright-Barker, 784 F.2d 161, 171 (3d Cir. 1986).

An appellate court’s review of a ruling by a district court 

that the evidence supported a conviction requires it to determine 

whether, “after viewing the evidence in the light most favorable 

to the prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.” 

Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789 

(1979). Consequently, a reviewing court “must be ever vigilant 

. . . not to usurp the role of the jury by weighing credibility and 

assigning weight to the evidence, or by substituting [its] 

judgment for that of the jury.” United States v. CaraballoRodriguez, 726 F.3d 418, 430 (3d Cir. 2014) (en banc) (quoting 

United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005)); see 
21

also Cavazos v. Smith, 132 S.Ct. 2, 4 (2011) (“A reviewing 

court may set aside the jury’s verdict on the ground of 

insufficient evidence only if no rational trier of fact could have 

agreed with the jury.”).

Consequently, even if Burnett had more thoroughly 

fleshed out his argument, we would determine that his 

sufficiency of the evidence argument is not meritorious. The 

government presented an avalanche of evidence, including 

eyewitness identifications, co-defendant testimony, and DNA 

evidence, demonstrating that Burnett committed the gunpoint 

robbery. The evidence was more than sufficient; it was 

overwhelming. Thus, the evidence supported Burnett’s 

conviction on all counts.

E. Burnett is An Armed Career Criminal Under 

 18 U.S.C. § 924(e).

Burnett claims that the District Court erred when it 

determined that he was an armed career criminal under 18 

U.S.C. § 924(e). He argues that the Court imposed his sentence 

in violation of the law that the Supreme Court announced in 

Alleyne v. United States, 133 S.Ct. 2151 (2013), because his 

predicate criminal convictions were not set forth as part of the 

allegations in his indictment and the question of whether he had 

been convicted of the offenses was not submitted to the jury. 

We hold that the Court properly concluded that Burnett was an 

armed career criminal and lawfully applied the mandatory 

minimum penalty required by Section 924(e).
22

Section 924(e) mandates the imposition of a mandatory 

minimum period of incarceration of 15 years where a defendant 

is convicted of violating 18 U.S.C. § 922(g) and has three 

previous convictions for violent felonies or serious drug 

offenses. In Almendarez-Torres v. United States, 523 U.S. 224, 

243, 118 S.Ct. 1219, 1231 (1998), the Supreme Court held that 

prior convictions that increase the statutory maximum sentence 

for a particular violation are not elements of an offense, and 

therefore a district court may determine if there had been such 

convictions when sentencing a defendant on a new conviction 

by using a preponderance-of-the-evidence standard. Later, in

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), 

the Supreme Court held that, “[o]ther than the fact of a prior 

conviction, any fact that increases the penalty for a crime 

beyond the prescribed statutory maximum must be submitted to 

a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 

S.Ct. at 2362-63. The Court in Alleyne extended the Apprendi

rule to proof of facts that increase a mandatory minimum 

sentence, requiring such facts to be submitted to a jury and 

proven beyond a reasonable doubt; however, the Court did not

extend the rule to proof of prior convictions, specifically 

articulating that the issue was not before the Court. Alleyne, 

133 S.Ct. at 2160 n.1. We since have recognized that Alleyne

did “nothing to restrict the established exception under 

Almendarez-Torres that allows judges to consider prior 

convictions” for purposes of enhanced penalties. United States 

v. Blair, 734 F.3d 218, 227-28 (3d Cir. 2013). Ultimately, 

Alleyne’s rule does not apply here to the recidivist enhancement 

of Section 924(e). Accordingly, we reject Burnett’s argument to 

the contrary.
23

F. Burnett’s Within-Guideline Sentence Does 

 Not Violate the Eighth Amendment.

Finally, Burnett argues that his within-guideline-range 

sentence of 288 months imprisonment amounts to cruel and 

unusual punishment in violation of the Eighth Amendment. 

Because he did not make his Eighth Amendment challenge in 

the District Court, we review the argument on a plain error 

basis. Miknevich, 638 F.3d at 185. We determine that Burnett’s 

sentence is proportional to his crimes of conviction and does not 

constitute cruel and unusual punishment.

The Supreme Court has explained that the “Eighth 

Amendment, which forbids cruel and unusual punishments, 

contains a narrow proportionality principle that applies to noncapital sentences.” Ewing v. California, 538 U.S. 11, 20, 123 

S.Ct. 1179, 1185 (2003) (citations omitted). A court must 

consider three proportionality factors when evaluating Eighth 

Amendment challenges: (1) the gravity of the offense and the 

harshness of the penalty; (2) the sentences imposed on other 

criminals in the same jurisdiction; and (3) the sentences imposed 

for commission of the same crime in other jurisdictions. Solem 

v. Helm, 463 U.S. 277, 290-92, 103 S.Ct. 3001, 3010 (1983). In 

conducting this analysis, a court grants substantial deference to 

legislative decisions regarding punishments for crimes. United 

States v. Rosenberg, 806 F.2d 1169, 1175 (3d Cir. 1986); 

Miknevich, 638 F.3d at 186 (“Generally, a sentence within the 

limits imposed by statute is neither excessive nor cruel and 

unusual under the Eighth Amendment . . . because we accord 

substantial deference to Congress, as it possesses broad 
24

authority to determine the types and limits of punishments for 

crimes.”).

The first factor acts as a gateway prong to the 

proportionality inquiry. The Eighth Amendment, after all, only 

forbids sentences that are “grossly disproportionate” for a 

conviction for the crime involved. If the defendant fails to 

demonstrate a gross imbalance between the crime and the 

sentence, a court’s analysis of an Eighth Amendment challenge 

is at an end. Successful proportionality challenges in noncapital cases are “exceedingly rare.” Ewing, 538 U.S. at 21, 123 

S.Ct. at 1185 (quoting Rummel v. Estelle, 445 U.S. 263, 272, 

100 S.Ct. 1133, 1138 (1980)).

Here, the record evidences that there is proportionality 

between Burnett’s crime and sentence. During the robbery, 

Burnett terrorized two victims with a gun, forced them to the 

floor, and bound them with plastic ties. When one of the 

victims tried to escape, Burnett clubbed him, causing head 

wounds that required seven surgical staples to close. Burnett 

threatened the victim with future violence, taking one of the 

victim’s driver’s license from his wallet and warning the victim 

that he knew where he lived. The other victim begged Burnett 

not to kill her. As the District Court noted, both victims were 

subjected to “sustained terror,” and feared they would not 

survive the robbery. App. 820. 

As the District Court also noted, Burnett’s conduct was 

not personally aberrant behavior. Burnett has additional 

convictions for a robbery, one in which he wielded an icepick, 
25

another performed at gunpoint. He was convicted for an assault 

during which he shot his victim in the knee. Burnett is a 

recidivist. Our analysis of the PSR reveals that when Burnett 

committed his crimes in this case, he was under the supervision 

of both the Pennsylvania Parole Board and the Philadelphia 

Court of Common Pleas in two different cases, and had been out 

of prison only for 31 days when he committed this offense. 

When the police caught him for the Poland Jewelers robbery, he 

threatened them with a box cutter, triggering an altercation that 

resulted in him being shot in the chest. Thus, we determine that 

the sentence the District Court imposed of 24 years was both 

reasonable and appropriate.4 

 

4Notably, Burnett makes no effort to demonstrate that his 

sentence is “grossly disproportionate” to his crime, but argues 

only that this sentence is cruel and unusual, as applied to him, 

claiming that at his age it is effectively a “life sentence.” 

Appellant’s br. 12-13. Lengthy sentences up to and including 

life in prison have been upheld when proportionate to the crime. 

See Rummel, 445 U.S. at 284-85, 100 S.Ct. at 1135 (rejecting 

an Eighth Amendment challenge to a mandatory life sentence 

imposed under a state recidivist statute where the triggering 

crime was the defendant’s conviction of obtaining $120 by false 

pretenses, while the earlier predicate crimes were an $80 

fraudulent use of a credit card, and the passing of a $28 forged 

check); see also United States v. Walker, 473 F.3d 71, 83 (3d 

Cir. 2007) (rejecting an Eighth Amendment challenge to a 55-

year mandatory consecutive sentence imposed under Section 

924(c) because the “harshness” of the sentence, balanced against 
26

Burnett faced an aggregate mandatory minimum prison 

term of at least 22 years, an effective guideline range of up to 

319 months, and a statutory maximum sentence of life in prison. 

Though the District Court exceeded the mandatory minimum 

term, it sentenced Burnett within the guideline range that applies 

to like offenders, well below the statutory maximum penalty. 

The fact that the sentence fell within the advisory guideline 

range is in and of itself strongly suggestive of proportionality. 

See, e.g., United States v. Abdulmutallab, 739 F.3d 891, 907 

(6th Cir. 2014) (an Eighth Amendment challenge must fail if a 

defendant receives a sentence within the guideline range when 

the guideline range contemplates the gravity of the offense); 

United States v. Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th 

Cir. 1993) (finding that the Guidelines are a “convincing 

objective indicator of proportionality”).

Burnett’s 288-month sentence is measured and 

appropriate under the circumstances, and certainly was not 

grossly disproportionate to the crime. Burnett has failed to 

demonstrate that his sentence violated the Eighth Amendment, 

and has failed to demonstrate plain error, or any error at all, in 

this regard. We will affirm the District Court’s judgment of 

conviction and sentence.

VI. CONCLUSION

We will affirm the judgment of conviction and sentence 

 

the gravity of the offenses, did not violate the proportionality 

principles of the Eighth Amendment). 
27

entered in the District Court of February 4, 2014.