[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

______________________ No. 14

- 11585

______________________ D. C. Docket No. 8:12

- cr - 00550

- MSS

- TGW

- 1 UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus DEMETRIUS RENALDO BOWERS, a.k.a. Fat Cat Bowers, a.k.a. Casino Bowers,
Defendant

- Appellant.

____________________ Appeal from the United States District Court for the Middle District of Florida

____________________ (January 22, 2016 ) Before TJOFLAT and HULL, Circuit Judges, and HALL, * District Judge

.

* Honorable J. Randal Hall, United States District Judge for the Southern District of Georgia, sitting by designation.

Case: 14-11585 Date Filed: 01/22/2016 Page: 1 of 442 HALL, District Judge:
Thi s case principally concerns what inferences j urors may pe rmissibly draw
from identity evidence from multiple crimes. A jury found Defendant

- Appe llant Demetrius Bowers guilty of eight counts of armed robbery in viola tion of
18 U.S.C. § 1951(a) and eight counts of carrying, using, and brandishing a weapon in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The district court sentenced Bo wers to 150 months for the § 1951(a) violations and to a mandatory 182 year s for the § 924(c) violations , to run consecutively

. On appeal, Bowers argues that the district court erred in three ways: (1) b y denying his motion to sever the charged counts; (2) by denying his motion for judgment of acquittal based on insufficient identity evidence; and (3) by applying § 924(c)’s mandatory sentencing provisions in violation of the C onstitution. After a thoroug h review of the case and with the
benefit of oral argument, we affirm.
I. BACKGROUND A. The District Court Proceedings On December 18 , 2014, a grand jury charged Bowers with three counts of robbery in violation of 18 U.S.C. § 1951(a) and three corresponding counts of brandishing a weapon in violation of 18 U.S.C. § 924(c) (1)(A )(ii)

. In its pre

- trial order, the district court ordered that all pre

- trial motions be filed by January 14,

Case: 14-11585 Date Filed: 01/22/2016 Page: 2 of 443 2013. Besides an unopposed motion to contin ue the trial, Bowers did not file any motions by that date

. Subsequently, on April 16, 2013 , a grand jury returned a superseding indictment charging Bowers with eight counts of armed robbery under
18 U.S.C § 1951(a) and eight counts of using, carrying, and brandishing a fir earm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). In light of the superseding indictment , the district c ourt reopened the period for pre

- trial motions and set a new deadline of May 1, 2013. Again Bowers did n ot file any motions before the deadline. On June 5, 2013 , Bowers filed a motion to sever the sixteen counts into eight separate trials, one for each alleged robbery. When the motion was filed, Bowers’s trial was scheduled to start twelve days later on June 17, 2013.
In its order denying severance , the district c ourt observed that “[a]t no time has Defendant filed a motion requesting additional time to file pretrial motion s nor has he shown good cause for filing his motion to sever at this late date.” The court thus denied Bowers’s motion as untimely. The district court also denied Bowers’s motion to sever on the merits , finding that joinder of the claims was p roper and that any potential prejudice could be cured by use of Eleventh Circu i t Pattern Jury Instruction B

- 10.2

.

Case: 14-11585 Date Filed: 01/22/2016 Page: 3 of 444 Thereafter, Bowers proceeded to trial on all sixteen counts. At the close of the Government’s case, Bowers moved for judgment of acquittal on the grounds
that the Government failed to present sufficient evidence identify ing him as the perpetrator of all eight robberies

. The c ourt deferred ruling on the motion pursuant to Federal Rule of Criminal Procedure 29(b). Bowers later renewed his motion after the Government did not present a rebuttal case and the court again defe rred its ruling

. After a four

- day trial, the jury found Bowers guilty on all sixteen co unts.
B owers then renewed his motion a second time and also moved for a new trial

. The court denied both motions. Prior to sentencing, Bowers moved to declare 18 U.S.C. § § 924(c) (1)(A) (ii) and 924(c)(1)(C)(i) unconstitutional on their face and as applied against him. After argument at the sentencing hearing, the district c ourt denied Bowers ’s motion and
sentenced him to consecutive term s of im prisonment of 140 months for the § 1951(a) violations and a mandatory 182 years for the § 924(c)(1)(A)(ii) violations

. Bowers timely appealed the denial of hi s motions to sever, for judgment of acquittal , and challenging the constitutionality of his 182

- year sentence for the § 924(c) convictions

. B. Evidence Presented at Trial Because there are eight alleged robberies in this case, the evidence is relatively voluminous , although not particular ly complex. The admitted evidence

Case: 14-11585 Date Filed: 01/22/2016 Page: 4 of 445 consists primarily of witness descriptions of the robberies and the perpetrator, law enforcement testimony regard ing the inve stigation, the crime scenes, DNA evidence, and cell phone “hit ” evidence. We recount the evidence in detail to determine whether it was sufficient to support the jury’s verdict

. The evidence below is taken in the light most favorable to the government. See United States v. Isnadin , 742 F.3d 1278, 1303 (11th Cir. 2014)

. 1. Bowers’s Ownership of a MetroPCS Cell Phone and Related Identifying Evidence The following evidence was introduc ed to establish that Bowers possesse d a cell phone that was connected to the robberies. In April 2012, a MetroPCS cell phone account was opene d in the name of “Strizzle Young .” The account’s phone number was associated with a Kyocera Domino g rape - colored cell phone

. In June and November, two photograph s of Bowers were saved to the phone, and in October a text message addressed to “Demetrius” was sent to the phone.
In S eptember 2012, Bowers opened an account with Amscot Financial , a provider of financia l services such as money transfers, which he used to receive three money transfers. Each time he received money via Amscot, he listed the number associated with the MetroPCS account as his mobile phone

. On September 11, 2012 , the first ti me he received a money transfer, Bowers listed 12464 Tansboro Street , Spring Hill, Florida, 34608 as his address. Testimony from Bowers’s ex

- girlfriend, who lived at that address , established that Bowers

Case: 14-11585 Date Filed: 01/22/2016 Page: 5 of 446 lived there in September 2012 and that he moved out at an unspecifi ed date in October

. E ach time he received money via Amscot, Bowers provided a copy of his Florida Driver’s License, which describes Bowers as 5'10" tall

. Additionally,
Bowers used his EBT card in areas and at times that correspo nd with cell phone
tower hits generated by the MetroPCS phone. At the time of Bowers’s arrest on November 21, 2012 , he possessed a MetroPCS Kyocera Domino g rap e - colored cell phone. O fficers called the number they believed to be associated with Bowers and the phone rang, at which point Bowers “became upset ” and yelled to people in the area to turn off his phone. Further, on a call from the jail , he stated that “they got my call s logged, ” referring, apparently, t o the MetroPCS call log that the Government later introduced at tria l. On another call, a female speaker momentarily referred to Bowers as “ Strizzle”
before he i mmediately interrupted her. Bowers replied that she should “tighten
up ,” she was “tripping,” and clarif ied that he was referring to “what you chirping” and “what you just hollered.”
T he Government also introduced an incriminating text message sent from his phone . On October 29, 2012, after si x of the robberies occurred, Bowers sent a message indicating he intended to move into a new residence that cost $1,000 a
month in rent. A wage

- and

- hour report indica ted that Bowers received only $ 1,649.07 in total wages during the second and third quarte rs of 2012.

Case: 14-11585 Date Filed: 01/22/2016 Page: 6 of 447 An analy st and record custodian from MetroPCS testified as a fact witness regarding cell phone towers and telephone records. 1 He explained that when cell phones are carried fro m location to location while activated, they hit cell towers in th e network. Notably, on MetroPCS’s network, this only occurs while a call is taking place, not when a phone is simply turned on while traveling. Hit records are maintained by cell service provider s ’ call logs , including MetroPCS

. An a gent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives ( BATF ) testified concerning the call logs and cell tower data. He determined that Bowers’s cell phone was “not in use” during the robberies, but that the cell phone data during the surrounding hours “could no t eliminate” Bowers as a possible perp etrator. His specific testimony regarding each robbery is addressed below. 2. Papa John’s (Tampa, Florida), 9/23/2012 The first charged robbery occurred on September 23, 2012 at 1:10 a

. m . at a Papa John’s restaurant on 7 891 Gunn Highway in Tampa, Florida. The robber used a concrete paver to shatter a window adjacent to the entry door

. Two employees were present when the robber entered

. The first employee witness described the robber as an African

- American male , taller than herself and a normal

1 The Government offered the analyst as an expert, but the district court only allowed him to testify as a fact witness.

Case: 14-11585 Date Filed: 01/22/2016 Page: 7 of 448 weight, wearing a black turtle neck, ribbed ski mask and black shoes , and carrying a black gun. The second employee witness described the robber as an African

- American male , being a pproximately 6'0" tall and weighing a little les s than 180 pounds

. According to the employee , the robber carried a small

- caliber bla ck handgun and wore a dark long

- sleeved shirt, dark pants, and gloves. Notably, this employee also descri bed the robber as wearing a knit mask that looked like a beanie that was rolled down with holes cut out of it. He said it almost resembled a ski mask.
A Hillsborough County Sheriff’s K

- 9 Deputy responded to the scene ten minutes after the robbery. While sea rching the parking lot and area su rrounding the Papa John’s, the d eputy notice d a dark object along a fence sixty yards away. As he approached , his canine alerted to the object. The object was a black wool cap with two eye holes, but no mouth hole, cut out. The cap was submitted to the Florida Department of Law Enforcement for DNA testing and returned four possible contributors of DNA on the cap’s exterior ; however, no major contributor
could be determined

. Regarding the cap’s interior , a crime laboratory analyst stated that there were at least three contributors of DNA on the interior cap sample and that one person was a “major contributor at all 15 areas, meaning one person contributed a greater quantity of DNA in the mixture than the other contributors.” At that time, however, no susp ect had been identified and the analyst did not

Case: 14-11585 Date Filed: 01/22/2016 Page: 8 of 449 compare t he cap’s major DNA contributor to any other DNA samples. A second analyst testified that , at a later date, she ran a direct comparison of DNA collected from Bowers with the DNA profile of the cap’s major contributor. The analyst found that Bowers’s DNA was “an exact match” with the major contributor’s. The analyst did, however, testify that the presence of Bowers’s DNA as the major
contributor could not establish that he wore the cap at the Papa Jo hn’s robbery. Additionally, t he BATF agent testified that on September 22 , at 11:17 p.m. , Bowers’s phone hit a cell tower approximately 20 to 30 miles from the Papa John’s. No hits were recorded during the robbery , which occurred at 1:11 a.m

. on September 23

. At 2:19 a.m. , his phone hit a tower approximately 10 miles from the Papa John’s. 2
3. Pizza Hut (Largo , Florida ) , 9/25/2012
At approximately 12:31 a

. m . on September 25, 2012, a robber used a brick to shatter the glass door to a Pizza Hut restau rant at 4335 East Bay Drive in Largo, Florida , which is in Pinellas County

. There were two employees present at that time. The first employee testified that the robber then entered by proceeding underneath the “push ba r” in the shattered door. Further, he testified that the robber wore dark clothes, including a black ski mask, and carried a black 9

2 On appeal, Bowers does not challenge the admissibility of the cell phone evidence regarding the time and location of his calls.

Case: 14-11585 Date Filed: 01/22/2016 Page: 9 of 4410 millimeter Glock handgun

. He also testified that the robber instructed him to place money in a bag. The second witness similarly testified that the r obber w as wearing dark clothing and a mask, and carried a black gun. On this occasion, r ecords placed Bowers’s cell phone with in a few miles of the store, with th e last hit before the robbery occurring at 10:42 p.m. on September
24

. Thirteen minutes after the ro bbery, records showed that the cell phone hit towers moving eastward along the Howard Franklin Bridge, which spans Tampa Bay and connects Pinellas County to Hillsborough County

. 4. Domino’s Pizza (Spring Hill, Florida), 9/27/2012 On September 27, 2012 at 1 2:1 5 a

. m . , a robbery occurred at the Domino’s Pizza restaurant at 13081 Spring Hil l Drive, in Spring Hill , Florida, a pproximately six and a half miles from Bowers’s Tansboro Street residenc e. The robber threw a
green paver through the glass door and entered through the broken glass below the push bar

. Three employees were initially present, though two fled after seeing the robber enter. All three employees saw a gun. The employee who remained described the robber as wearing dark cl othes, dark gloves, and a mask with small holes cut out by scissors. He also described the robber as having some facial h air that protruded from the mask

. The BATF agent testified that a distinctive green paver was used to break the glass door at the Domino’s and was recovered a t the

scene. The agent checked the area surrounding Domino’s and did not find a

Case: 14-11585 Date Filed: 01/22/2016 Page: 10 of 4411 similar paver. But he found a similar paver at a residence about 150 yards from the Tansboro Street address where Bowers lived in September 2012

. On September 26, Bowers’s ph one hit a tower approximately four miles from the Domino’s at 11:19 p.m. Fourteen minutes after the robbery, his phone hit

a tower approximately two miles away from the Domino’s

. 5. Pizza Hut (Tampa , Florida ), 10/7/2012 On October 7 , at 1:06 a.m., the Pizza Hut restaurant at 902 Busch Boulevard
in Tampa was robbed. T he manager, h er husband, and their five

- year - old daughter were present

. The manager test ified that she saw a brick thrown through the door
and then witnessed one robber climb through the broken glass . He told her to give him the money, but the manager tossed a deposit bag filled with money toward the door instead

. According to her testimony, a second robber reached through the glass and grabbed the deposit bag from inside th e restaurant

. The manager testified that the first robber was wearing a mask. Her husband sa id the first robber

was African

- American and wore a long

- sleeved shirt and gloves, but, unlike his wife, te stified that the first robber wore a shirt wrapped arou nd his face. He described the gun as a black automatic gun with a chrome barrel. The BATF agent
test ified that Bowers’s phone hit a tower approximately four miles from the Pizza
Hut at 12:20 a.m. A fter the robbery , at 2:17 a.m., Bowers’s phone hit a tow er six miles away from the restaurant.

Case: 14-11585 Date Filed: 01/22/2016 Page: 11 of 4412 6. Wendy’s (Tampa, Florida), 10/14/2012 On October 14 , at 2:41 a

. m . , a robbery occurred at a Wendy’s restaurant on Bruce B. Downs Boulevard in Tampa. An officer testified that t he glass door was shattered by a rock or a piece of concrete. Witness testimony and video evidence demonstrated that t he robber wore gloves and a ski mask, and used a black and silver gun. The robber demanded that money be placed in a bag. The Government introduced video and still pictures f rom the robbery

. A still photo appears to show facial hair or a distinctive chin similar to Bowers. The
BATF agent also pointed out that the robber carried a gun in his right hand and wore a mask with a white label or tag on the outside. Bowers’s phone hit a tower less than one mile from the Wendy’s approximately thirty minutes prior to the robbery. After the robbery, Bowers’s phone hit a tower less than four miles southwest of the Wendy’s.
7. Pizza Hut (Lutz , Florida ), 10/16/2012 On October 16 , at 11:30 p

. m . , a ro bbery occurred at a P izza Hut restaurant in Lutz, Florida. The only employee pre sent testified that the front door was still unlocked when the robbery occurred

. Not withstanding the door being unlocked , the robber threw a concrete brick through t he glass door and climbed through the bottom. The employee described the robber as an African

- American male wearing black pants, a black shirt, black gloves, a nd a ski mask with eyes cut out.

Case: 14-11585 Date Filed: 01/22/2016 Page: 12 of 4413 According to her testimony, h e also possessed a black gun

. He demanded she place money in a bag. The responding officer who investigated the scene testified that it was the first time in his experience that he had seen a brick thrown through a glass door of an open business. The BATF agent testified that at 10:23 p .m. , Bowers’s phone hit a tower approximately nine miles from the Pizza Hut. Seventeen min utes after the robbery, his phone hit a tower three miles from the restaurant

. 8. Burger King (Tampa, Florida) , 11/1/2012 On November 1 , at 3:06 a

. m . , a B urger King rest aurant at 4103 W. Hillsborough in Tampa was robbed. Two e mployees were present. One witness testified that two masked robbers dressed in black broke the glass door with a concrete block to gain entry to the store and then jumped over the front counter. According to testimony, o ne robber had a black gun. Video and photographic evidence showed both robbers dressed i n black. One robber wore black gloves and a mask with a white tag or label.
The BATF agent testified that Bowers’s physical appearance was consistent with that of the robber with the mask with a white tag

. He also test ified that Bowers’s phone hit a tower three miles from the robbery at 1:16 a

. m. Thirt y minutes after the robbery, his phone hit a tower approximately six miles from the Burger King.

Case: 14-11585 Date Filed: 01/22/2016 Page: 13 of 4414 9. Pizza Hut (Lutz , Florida ) , 11/4/2012 The final charged robbery occurred o n November 4 , 2012 at 11:30 p

. m . at the same Pizza Hut in Lutz, Florida that was ro bbed on October 16

. The same responding o ff icer from the October 16 robbe ry responded to this robbery and testified that the restaurant’s glass door was unlocked, but had been smashed by a
brick or block on this occasion as well

. The sole employee present testified that he heard the robber throw t he brick at the door twice, breaking the glass on the second throw. Because the hole was not big enough to crawl through, the robber simply opened the door and walked in. The employee witness described the robber as weari ng all black, with black gloves a nd a black mask with holes cut out, and carrying a black 9 millimeter gun. He described the robber as an African

- American male, approximately 5 '8" to 5'10" tall

. The robber demanded that he put money in a bag. The BATF agent test ified that at 10:20 p.m. Bowers’s phone hit the same tower it did prior to the October 16 Lutz Pizza Hut robbery

. Five minutes after the robbery, his phone hit the same tower again

. 10. Modus Operandi Evidence The BATF agent testified that the similarity and “boldness” of the ro bberies were the features that led him to believe that one individual or group of individuals

Case: 14-11585 Date Filed: 01/22/2016 Page: 14 of 4415 committed the robberies

. In particular, the agent testified on the distinctiveness of the method of entry : Almost all the armed robberies I’ve investigated, a t least for sure the armed robberies I’ve investigated as an BATF agent in which we review the crimes that were initially investigated by the local responding agency. When it’s an occupied structure, especially at night when it’s lit inside, entry is usua lly gained either mainly walking through the front door when the place is still open, or waiting for an employee to exit the store, either through a back door to empty the trash or walking to their car at the end of the day. They will usually take control of that person and use them to gain access into the business. This allows for

— well, regardless, the

— I have yet to see in my capacity as an BATF agent the abrupt entry where they throw a brick through the door. It went against what I ’ ve normally seen in th at by throwing the brick or the paver, which we refer to, another thing that made me think it was the same individual, we refer to as a signature, it shattered the main entrance to the door that ’ s illuminated or a glass entrance that can be observed from t he outside. . . . He also noted the similar descriptions of the gun used in the robbery and the timing of the robberies. Another officer, who responded to both the Octo ber 16 and November 4 Pizza Hut robberies, also testified that these were the first robberies he had seen where a robber threw a brick through an unlocked glass door of a n
open business.

Case: 14-11585 Date Filed: 01/22/2016 Page: 15 of 4416 II. D ISCUSSION Below we address each error raised by Bowers in the order of the proceedings be low , beginning with his motion to sever

. A. Bowers’s Motion to Sever 1. Standard of Review As an initial matter, we must d etermine whether the pre

- amendment version of Federal Rule of Criminal Procedure 12 , which governed the district court proceedings, or the amended version of Rule 12, which went into effect on December 1, 2014, governs this appeal

. In their appellate b riefs , Bowers and the Government addressed only the applicati on of pre - amendment Rule 12

. In particular, t he Government relied heavily on p re - amendment Rule 12 (e) ’s waiver provision and our prior circuit precedent reviewing the denial of untimely motions

. See Fed. R. Crim. Proc. 12(e) (2013); United States v. Smith , 918 F.2d 1501, 1509 (11th Cir. 1990) (finding no abuse of discretion in denying an untimely motion where defendant did not argue good cause). Meanwhile , between briefing in this case and oral argument, this Circuit ruled that amended Rule 12 would apply to cases on appeal where “just and practicable.” United States v. Sperraz za , 804 F.3d 1113, 1121 (11th Cir. 2015)

. In

su pplemental authority , the Government conceded that it would be just and practicable to app ly amended Rule 12 to Bowers’s appeal. We agree. Because

Case: 14-11585 Date Filed: 01/22/2016 Page: 16 of 4417 t here is no reason amended Rule 12 ’s application to this ca se on appeal would prejudice Bowers, Sperrazza ’s “just and practicable” test is satisfied

. See i d. That we should apply t he amended r ule in this case is clear; how to appl y the rule is a different matter

. Bowers moved to sever the indicted counts after the district court’s pre

- trial

- motion deadline, but before his t rial , and with no attempt to establish good cause for his delay . His motion was , therefore , untimely under
pre - amendment Rule 12 (e) and would likewise be untimely under amended Rule
12 (c)(3) . U nder Sperrazza ’s interpretation of amended Rule 12 (c)(3) , untimely motions are forfeited rather than waived. Sperrazza , 804 F.3d 1113 at 1121

. Bowers’s severance claim is therefore forfeited, making it entitled to plain

- error review

. Fed. R. Crim. P. 52(b); United States v. Olano , 507 U.S. 725, 731, 113 S.
Ct. 1770 , 1776 (1993). Applying plain

- error review, “[w] e may reverse a conviction

. . . if we find that four prongs are met: there must be (1) an error (2) that is plain and (3) that has affected the defendant ’ s substantial rights; and if the first three prongs are satisfied, we may exercise discretion to correct the error if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. ” United St ates v. Madden , 733 F.3d 1314, 1322 (11th Cir. 2013) (citing Olano, 507 U.S. at 732, 113
S. Ct. at 1776 )

.

Case: 14-11585 Date Filed: 01/22/2016 Page: 17 of 4418 2. Analysis In applying plain

- error review, the first step is to identify an error committed by the district court; therefore , we review the denial of s everance to determine if the district court committed error. When reviewing motions to sever, we first address whether joinder of the counts was proper under Federal Rule of Criminal Procedure 8(a) before proceeding to a prejudice analysis under Rule 14(a). See United States v.
Barsoum , 763 F.3d 1321, 1337 (11th Ci r. 2014). Bowers never challenged joinder , and w e agree with the district court that Rule 8(a)’s “same or similar character” prong was satisfied

. If joi nder is appropriate, then Rule 14(a) gives district courts the discretion to “order separate trials of counts” when “the joinder of offenses . . . appears to prejudice a defendant . . . .” Fed. R. Crim. P

. 14(a). F or the deni al of a motion to sever to be error under Rule 14(a) , a defendant must demonstrate that failure to sever “result [ ed ] in compelli ng prejudice against which the district c ourt could offer no protection.” United States v. Walser , 3 F.3d 380, 385 (11th Cir. 1993)

. In Walser , we defined the test for compelling prejudice as whether under all the circumstances of a particular case it is within the capacity of jurors to follow a court’s limiting instructions and appraise the independent evidence against a defendant solely on that defendant’s own acts, statements, and conduct in relation to the allegations contained in the indictment and render a fair and impartial verdict. Case: 14-11585 Date Filed: 01/22/2016 Page: 18 of 4419 Id. at 386

– 387. And if a jury can do so, then no compelling prejudice results

. Id.
at 387. Even where there may be some risk of prejudice, “if the possibl e prejudice may be cured by a cautionary instruction severance is not required.” Id. Further, “absent e vidence to the contrary , we presume that the jury followed the court’s instructions

. . . .” Id. (citing United States v. Badia , 827 F.2d 1458, 1466 (11th Cir. 1987) )

. In Bowers ’s view, events at trial reveal that the jury was unable to follow the district court’s instruction and that compelling prejudice occurred from the jointly tried counts. This prejudice allegedly occurred in two related ways: j ury confus ion
and the impermissib le cumulati on of evidence. Regarding jur y confusion, Bowers argues that the Government’s presentation of evidence, particularly how they “shifted back and forth among the eight robbery cases , ” led to confusion . In support, he points to one juror asking for a “timeline as to each count.” He concludes on this point by alleging that “the jury was apparently left confused and overwhelmed,” leading to a conviction without sufficient evidence as to the individual charges

. The alleg ed confusion is not enough to satisfy the compelling

- prejudice standard. It is worth noting that Bowers conceded that the robberies occurred on the dates alleged in the indictment , and substantial evidence was presented at trial that they in fact did. Gi ven what was disputed in this case

— who the robber was,

Case: 14-11585 Date Filed: 01/22/2016 Page: 19 of 4420 not when the robberies occurred

— it was more important that the Government introduced evidenc e of the individual robberies toge ther than strict adherence to
the chronology of the robberies

. In sum, i t is unremarkable that a juror might want a timeline in a case with multiple alleged offenses , and it is con clusory to suggest this alleged confusion resulted in compelling prejudice in a case where the order
and dates of the robberies w ere not dispute d and not particular ly relevant to what was in dispute

. 3
Bowers also argues that the ju r y may have improperly cumulated the evidence to infer guilt. I n his view, the presence of eight alleged robberies in the same trial “likely bolstered the Government’s evidence as to the first

- in

- time robbery , ” as well as the other seven robberies. This, however, is merely speculation and is not supported by the record. See Ba rsoum , 763 F.3d at 1337 (rejecting an argument that the jury may have cumulated evidence as speculation)

. Besides the alleged juror confusion discussed above, nothing during the trial suggested the jury could not properly weigh the evidence. Simply put, the jury

was n ot invited to find Bowers guilty by improperly cumulating unrelated evidence from joined counts. A s we explain infra Part II .B. 2 , it is the re latedness of the

3 The only chronological relevance of the robberies ’ dates concerns the evidence of when Bowers was living at 12464 Tansboro Street. Bowers’s ex

- girlfriend’s testimony established that he lived there in September and moved out on an unspe cified date in October. T he jury was capable of understand ing that testimony’s implications regardless of the order in which the robberies were presented.

Case: 14-11585 Date Filed: 01/22/2016 Page: 20 of 4421 joined robberies that permit ted the jury to use identity evidence from other robbe ries to determine the robber’s identity

. Finally, i n many cases we have discussed ho w jury instructions can cure the potent ial prejudice from improperly cumulating the evidence

. For instance, i n Walser the district c ourt “instructed the jury to consider each charge in the indictment separately and not to permit a verdict on one count to affect delibe rations regarding another count.” Walser , 3 F.3d at 387 ; see also Barsoum , 763 F.3d at 1337 ; United States v. York , 428 F.3d 1325, 1334 (11th Cir. 2005);
Uni ted States v. Hersh , 297 F.3d 1233, 1244 ( 11th Cir. 2002). I n its pre

- trial order denying Bowers’s motion to sever, the district c ourt stated its intenti on to include Eleventh Circuit Pattern I nstruc tion B

- 10.2 in its jury charges and, consistent with its order, the district court did so

. 4 T h ere is no indication that the jury was unable

4 Eleventh Circuit Pattern Instruction B

- 10.2 provides: Each count of the indictment charges a separate crime. You must consider each crime and the evidence relating to it separately. If you find the Defendant guilty or not guilty of one crime, that must not affect your verdict for any other crime. I caution you that the Defendant is on trial only for the specific crimes ch arged in the indictment. You’re here to determine from the evidence in this case whether the Defendant is guilty or not guilty of those specific crimes. You must never consider punishment in any way to decide whether the Defendant is guilty. If you find th e Defendant guilty, the punishment is for the Judge alone to decide later. Case: 14-11585 Date Filed: 01/22/2016 Page: 21 of 4422 to follow the district c ourt’s charge to consider the counts separately

. In sum, Bowers has not overcome the presumption that jurors are able to follow the court’s
instruction to separately consider the evidence relating to each count. Finding error in the district court’s failure to sever counts requires “more than some prejudice

. . . be shown; the appellant must demonstrate that he received an unfair trial and suffered compelling prejudice.” Walser , 3 F.3d at 386 ( quoting United States v. Harmas , 974 F.2d 1262, 1269 (11th Cir.1992))

. Bower s can only speculate about the possibility of prejudice. Further, i f he did suffer any prejudice, it was “not ‘ compelling ’ to the extent that ‘ he received an unfair trial. ’ ” United States v. Slaughter , 708 F.3d 1208 , 1213

– 14 (11th Cir. 2013) (quoting Walser , 3 F.3d at 386). Because Bowers cannot demonstrate that he suffered compelling prejudice from the joinder of claims , the district court did not commit error, much less plain error, in denying his motion. See United States v. Soto , 794 F.3d 635,
657 (6th Cir. 2015) (holding that, where there was no error in the denial of

Case: 14-11585 Date Filed: 01/22/2016 Page: 22 of 4423 severance under Federal Rule of Criminal Procedure 14(a), there was likewise no plain error)

. 5
B. Sufficiency of the Evidence 1. Standard of Review
We review de novo whether the evidence presented at trial is sufficient to
sup port the jury’s verdict. Isnadin , 742 F.3d at 1303

. “[We] consider whether, under the totality of the circumstances, there is sufficient evidence to support a jury verdict when the facts are viewed in the light most favorable to the government.” United States v. Mieres

- Borges , 919 F.2d 652, 658 (11th Cir. 1990). “Evidence is sufficient to support a conviction if a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt.” United States v. Maxwell , 579 F.3d 1282, 1299 (11th Cir. 2009) (internal quotations and citations omitted).

5 In some of our severance cases, we have discussed whether evidence that was admitted at trial would have been admissible at a hypothetical severed trial. E.g. , United States v. L opez , 649 F.3d 1222, 1238 (11th Cir. 2011) (finding that co

- defendant’s statement would have been admissible in severed trial as co

- conspirator’s statement). But even if the evidence would be inadmissible in such a trial, compelling prejudice does not nec essarily result from a joined trial. United States v. Harper , 680 F.2d 731, 734 (11th Cir. 1982) (“admissibility is not required in order for the denial of severance to be within the district court’s discretion”). Here, Bowers never argued to the distric t court or on appeal that evidence from the other robberies would have been inadmissible at a severed trial. We therefore decline to engage in a lengthy hypothetical on this point. We note only that, in a hypothetical severed trial, under Federal Rule of Evidence 404(b), modus operandi evidence and other extrinsic evidence are admissible to prove identity, and a reasonable juror could have found by a preponderance of the evidence that Bowers committed the extrinsic robberies, thus permitting admission sub ject to Federal Rule of Evidence 403. See United States v. Whatley , 719 F.3d 1206, 1217

– 19 (11th Cir. 2013); see also United States v. Miller , 959 F.2d 1535, 1538 (11th Cir. 1992) (en banc).

Case: 14-11585 Date Filed: 01/22/2016 Page: 23 of 4424 Further, “ [i] t is not enough for a defendant to put forth a reasonable hypothesis of innocence, because the issue is not whether a jury reasonably could have acquitted but whether it reasonably could have found guilt beyond a reasonable doubt. ” United States v. Thompson , 473 F.3d 1137, 1142 (11th Cir. 2006) (citing Mieres

Borges, 919 F.2d at 656 )

. Additionally, “no distinction is to be made between the weight given to either direct or circumstantial evidence.” Mieres

- Borges , 919 F.2d at 6 57 ( quoting United States v. Gonzalez , 719 F.2d 1516, 1521 (11th Cir.1983) ). But “[w]here the [G]overnment relies on circumstantial evidence, ‘ reasonable inferences, and not mere speculation, must su pport the jury's verdict. ’ ” United States v. Klopf , 423 F.3d 1228, 1236 (11th Cir. 2005) ( quoting United States v. Perez

- Tosta , 36 F.3d 1552, 1557 (11th Cir.1994))

. 2. Analysis Bowers challenges the sufficiency of the evidence on the jury’s conviction on all sixteen counts

. In particular , he disputes the sufficiency of the evidence identifying him as the perpetrator of the eight robberies

. Below we consider Bowers’s challenge i n two parts. First, we address whether there is sufficient evidence that the same individual committed t he eight robberies in question, and , second , we discuss whether sufficient evidence identifies Bowers as that individual. We hold that a reasonable ju ror could have found beyond a reasonable

Case: 14-11585 Date Filed: 01/22/2016 Page: 24 of 4425 doubt that Bowers committed all eight robberies and found Bowers guilty on all six teen counts

. The evidence established that the eight robberies in question are sufficiently similar that a reasonable juror could con clude that each was committed by the same individual. We proceed from the general similarities to the most specific

. The eight robberies were committed over six weeks between September 23, 2012 and November 4 , 2012

. The robberies were committed in Herna n do, Hillsborough, and Pinellas C ounties. All eight robberies were committed against fast food restaurants. More specifically, six of the eight robberies were against pizza restaurants, including the same Pizza Hut on two occasions. T he ro bberies were a ll committed at night, with the six pizza restaurant robberies being particularly close in time

— between 11:30 p.m. and 1:10 a.m.
M oving to more specific instances of similarity, the witness descriptions of the perpetrator support the jury’s conclusion that the same individual committed all eight robberies. The robber was consistently described as an African

- American
male who was , for example, six

- feet tall, a little bigger than 5 ' 8 ", or between 5'8" and 5'10" tall

. Regarding his wei gh t, witnesses described him as “average weight,” “slender . . . weighing between 150 to 180 pounds,” and weighing more than one witness who was 130 pound s. T he robber was described as wearing all black and a mask

. The mask was variously described as a “ ski mask ,” “knit,” “wool,” or a

Case: 14-11585 Date Filed: 01/22/2016 Page: 25 of 4426 “beanie ” tha t had been modified to have eye holes

. 6 These descriptions were consistent with surveillance video and still photographs introduced from the Burger King and Wendy’s r obberies that depicted a robber wearing a lon g - sleeved black shirt and a black mask with a white label on the back. Finally, and most importantly, the Government presented evidence of a unique method of en try that was consistent among the robberies

. O n most occasion s , the robber approached the customer entry door and threw a brick or piece of concrete through the glass below the “push” bar. Once the lower glass was broken, the robber then entered by crouching and walking throu gh the door,
under the bar. 7 Similarly, a t the Papa John’s robbery, the robber threw a concrete
paver through the store’s front window , adjacent to the entry door. Testimony by the BATF agent and another officer supported the conclusion that entry by breaking the glass of an entry door with a brick at an occupied or open business was unique to these robberies.

6 One witness described the robber as wearing a shirt wrapped a cross his face, but another witness from the same robbery described the same black knit mask consistent with the other robberies. The jury was free to credit the testimony of the latter witness. Additionally, some witnesses described the mask as having a hole for the mouth as well as the eyes. Given the other consistencies in the robberies, the jury could conclude that the witnesses’ memories of the mouth hole were faulty. In any event, taken in the light most favorable to the Government, such a minor i nconsistency in the descriptions of the mask does not demonstrate a different perpetrator.

7 At the November 4 Pizza Hut robbery, the robber threw a brick through the lower glass, but, because the glass was only partially shattered, proceeded to enter by o pening the door in the typical way. Case: 14-11585 Date Filed: 01/22/2016 Page: 26 of 4427 There are, however, some inconsistencies between the robberies. Most notably, two robberies featured t wo perpetrators. D uring the October 7 Pizza Hut robbery, a store employee threw the restaurant’s deposit bag toward the entry door and a second robber reached from outside the door to retrieve it

. And at the November 1 Burger King robbery, two people broke the glass door with a concrete block and robbed the restaurant. The Government, however, presented video and still pictures that showed a robber wearing a mask with a white label or tag at bot h the Burger King robbery, which two robbers committed , and the October 14 Wendy’s ro bbery, which one robber committed . A reasonable juror could conclude that this whit e - label robber was present at all eight robberies , even if joined by a second person for two robberies

. Additionally, there are slight discrepancies between the witness descriptions regarding the gun used, the mask and other clothing worn, and the robber’ s physical appearance . Those discrepancies are minor in nature and the jury was free to conclude that they resulted more from imperfect witness memories than from material differences in the robberies.
Not withstanding the se differences , t aking the evidence in t he light most favorable to the G overnment , a reasonable juror could conclude that the same
person committed all eight robberies. That conclusion is supported by generally consistent witness descriptions, the similar i ty in the restaurants targ eted, the

Case: 14-11585 Date Filed: 01/22/2016 Page: 27 of 4428 rela tive consistency in time of day, the short period of time during which all robberies were committed, the geographic proximity of the robberies , and the
consistent method of entry

. All told, the robber used a consistent and unique modus opera ndi in his commission of these robberies. Cf. Whatley , 719 F.3d at
1217

– 19 (discussing, in the context of admission of evidence, t he similarity among
robberies required to establish a modus operandi ). T he question then becomes , could a reasonable juror conclude beyond a reasonable doubt that Bowers was the robber ? Answering that question requires different evidence, which we now address. The primary evidence linking Bowers to the robberies includes : (1) DNA evidence from the Papa John’s robbery; (2) witness descriptions of the robber; (3)

ce ll phone hit evidence; (4) Bowers’s own inculpatory statements ; and (5 ) the similarity between green paver s near Bowers’s Tansboro Street residence and the one found at the Domino’s rob bery

. Perhaps the most important piece of evidence is the mask found at the first robbery. The mask was discovered approximately 150 yard s from the entrance to the Papa John’s, around the corner of the small shopping center that included the Papa John’s, and close to a fence that divided the stores from nearby residences.
The “ mask ” is actually a black wool cap that was modified to have eye holes and was apparently worn by pulli ng it over the perpetrator ’ s head and across his face,

Case: 14-11585 Date Filed: 01/22/2016 Page: 28 of 4429 at which point it resemble d a ski mask. The modified cap found at the Papa John’s is consistent with witness descriptions of the “mask” used at the other robberies. An expert from the Florida Departm ent of Law Enforcement testified that
Bowers’s DNA is the “ predominant” match with DNA found on the inside of the
cap . As Bowers pointed out at trial, the expert could not conclude whether he wore
the mask the night of the robbery . Nevertheless, as we discuss in more detail below, the presence of a cap possessing Bowers’s DNA that matches the description of the mask worn by the robber is circumstantial evidence that the jury may properly consider. Additionally, Bowers’s own body t ype was consistent with wit ness descriptions of the robber. Bowers’s driver’s license lists him as 5'10" tall

. S urveillance footage of the Burger King and Wendy’s robberi es show s a robber wearing a long

- sleeve d black shirt a nd a black mask with a white tag

. According to the BATF agent’s testimony, t hat robber’s physical appearance resembles
Bowers ’s

. Additionally, o ne witness testified that he could see that the robber had
facial hair or a goatee and video and photographs from the Wendy’s robbery also showed what appeared to be the robber’s facial hair. In its order denying Bowers’ s motion for judgment of acquittal , the district court ob served that Bower s had a goatee that was consistent with the testimony and video . T he jury also could observe Bowers ’s goatee and physical appearance during the trial.

Case: 14-11585 Date Filed: 01/22/2016 Page: 29 of 4430 Additionally, the testimony of the BATF agent and the call logs introduced at trial place Bowers in relative proximity to each of the robberies. As an initial matter, substantial evidence supported Bow ers’s possession of the MetroPCS Kyocera Domino cell phone during the relevant six

- week period. See supra Part I.B.1. Testimony established that whenever an incoming or outgoing call is made
on Metr oPCS’s network , the cell phone “hits” a tower within two miles of the phone’s location. T he testimony made clear that the cell phone only hits towers while a call is connected and not when it is merely on or, for instance, a call is made but not answered . The call logs and the agent’s testimony place Bowers’s cell phone and, by inference, Bow ers in the general vicinity and often close proximity of the robberies. 8 Further, Bowers never hit a tower during a robbery , which is consistent with him not making or accepting any calls during the robberies. T he most salient feature of the call logs is the relation between the timing of the hits and the distance from the robberies when they occurred. On each occasion, pre - and post

- robbery hits are consistent with an inference that Bowers drove to and from the robbe ry . A jury could , of course, make a reasonable inference of innocence from these call logs

. For instance, that no calls ever connected while the robberies were

8 For greater detail on the proximity of the cell tower hits from each robbery, see supra Parts I.B.2

– 9. Case: 14-11585 Date Filed: 01/22/2016 Page: 30 of 4431 occurring could simply be a reflection of the short time the robberies took, ra ther than evidence that Bowers turned his cell phone off or refrained from placing calls during the robberies . Or, for another example, hitting towers in the Tampa area could reflect the realities of driving in a dense city with numerous towers where, at any given time, a d river could innocently drive by the se restaurants. But we think the jury could infer the less innocent explanation that on eight separate occasions, late at night or in the early morning , Bowers was present at the robberies

. 9 The remaining pieces of evide nce corroborate the evidence already discussed. For one, Bowers’s text message suggests that he had enough money to rent a $1,000 per month apart ment. Given that Bowers’s wage

- and

- earnings report indicates he made only $1,649.07 in the second and third q uarters of 2012, the jury was free to infer that some of his extra money was deriv ed from the six robberies that took place prior to the text message. Moreover , on multiple occasions Bowers attempted to hide his possession of his MetroPCS cell phone. Thi s began, of course, by registering it under an alias rather than his full name and continued until he was arre sted and directed others to turn off his phone.

9 Below we discuss how the cell tower hits and other evidence allow certain inferences to be drawn from the DNA e vidence that may otherwise be impermissible. Similarly, the DNA evidence allows the jury to infer more from the cell tower hit evidence than would otherwise be permissible. As should be clear, this is not a case where the jury was presented with simply a suspicious correlation between cell tower hits and robbery locations.

Case: 14-11585 Date Filed: 01/22/2016 Page: 31 of 4432 Finally, o ne of the pavers used by the robber has a particular connection to Bowers. The perpetr ator used a green paver to break the door of Domino’s Pizza on September 27, 2012. The BATF agent testified that the green paver had a “distinctive” appea rance and that none like it was found near the Domino’s. There were, however, similar green pavers found at a residence approximately 150 yard s from Bowers’s Tansboro Street residence

. Bowers’s access to the unique kind of paver used at the Domino’s robbery permits the inference that he committed the robbery in question. Though not a particul arly strong piece of evidence in its own right , it is part of the totality of evidence the jury could consider. No one piece of evidence discussed above is d ispositive in this case. But
courts in struct jurors to consider the totality of the evidence presented to determine a verdict. Conversely, courts instruct jurors not to improperly cumulate evidence

. Said another way , courts instruct jurors to con sider the totality of evidence related
to each crime while not using guilt of one crime as a sub stitute for evidence on other charged crimes or using evidence relat ed to one crime to convict on distinct,
unrelated crime s . We are convinced the jury did the former and not one of the latter in this case. Considered in total and in the light most favorable to the Government, sufficient evidence identifies Bowers as committing the e ight charged robberies.

Case: 14-11585 Date Filed: 01/22/2016 Page: 32 of 4433 Bowers ’s contention related to the DNA evidence warrants further disc u ss ion. Bowers argues that reliance on the DNA evidence from the Papa John’s robbery re quires an impermissible inference that, becaus e his DNA was the predominant match on the mask, he therefore was wearing the mask on the night in question

. In support, he cites United States v. Bonner , 648 F.3d 209 (4th Cir. 2011) . In Bonner , two disguised men , one of whom was wearing a New York Yankees baseball hat, robbed a Subway. Id. at 211 . Later that night, the police recovered a Yankees hat behind the Subway, which was identified as worn by the robber

. Id. at 212. Th e Government argued that, because the defend ant’s DNA was the “predominant ” match on the hat, “it was reasonable for the jury to infer that he was wearing the hat on the night of the robbery.” Id. at 214. The DNA expert testified, however, that “he could not conclude who last wore the hat based
on the DNA

. ” Id. The Fourth Circuit held that “any assumption that Bonner was the last wearer is an impermissible inference by the jury.” Id. 10 Three r easons

10 Other evidence was presented at trial, but was not discussed in detail by Bonner . The Fourth Circuit summarized the evidence as: (1) a hat with multiple DNA matches worn by Bonner w as also worn by one of the robbers; (2) Bonner's wallet, discovered in the alleged getaway car; (3) phone records showing calls from Bo nner's cell phone to [his girlfriend] and [his cousin] the night after the robbery; and (4) a separate phone record showi ng a call from a n earby gas station to [his girlfriend]

. Case: 14-11585 Date Filed: 01/22/2016 Page: 33 of 4434 supported t hat holding . First, equally plausible scientific inferences supported innocence. Id. at 214

– 15. Second, the argument that a jury could draw a scientific inference from the predominance of the defendant’s DNA to his wearing the Yankees hat that night was contrary to the evidence in the record. Id. at 215. And, finally, a commitment to scrutinizing forensic evidence counseled against allowing the jury to make an unsupported scientific inference. Id. To resolve this issue , w e do not need to decide wh ether it is an impermissible scientific inference to infer that Bowers was wearing the mask the night of the Papa John’s robbery from only his DNA match, as the Fourth Circuit
did in Bonner. Instead, we hold that, where modus operandi evidence supports the inference that the same individual committed multiple robbe ries, it is permissible

Bonner , 648 F.3d at 214. The Fourth Circuit noted that the d istrict court found that the content of the cell phone calls above was not in the record and therefore could have been innocuous. Id. at 213. Further, the d istrict c ourt discounted the evidence of the call from the gas station because the call was hours after the police dogs had tracked the scent from the Yankees hat to the station. Id. at 213

– 14. Besides recounting the district court ’s views, the Fourth Circuit itself did not comment on the non

- DNA evidence and its existence appears to not factor into the opinion ’s reasoning. The Fourth Circuit possibly analyzed the case in this manner because the Government had explicitly argued tha t the scientific inference was a permissible one, notwithstanding the expert’s contrary testimony. Id. at 214 (“ in this case, the government asked the jury to draw unwarranted inferences based on two unconnected pieces of scientific evidence through argume nt instead of specialized knowledge ”)

. We think Bonner is best understood as resting on the permissible inferences that can be drawn from the DNA evidence standing alone

. See id. at 215 (discussing three reasons that support the decision, all of which co ncern scientific evidence). Ther efore, we limit our discussion on Bonner to the DNA evidence and the inferences that may be drawn from it. Case: 14-11585 Date Filed: 01/22/2016 Page: 34 of 4435 to consider identity evidence from the other robberies, including, in this case, consistent physical descriptions and cell phone records, to corrobora te the identity
DNA evidence from an initial robbery. See United States v. Burston , 159 F.3d 1328 (where Government “presented evidence that the same modus operandi was used in [two] robberies . . . evidence of involvement in one provided some evidence of involvement in the other.”). In other words, the additional identity evidenc e from the other robberies transforms an impermissible scientific inference under Bonner (i.e. , that the defendant was wearing the hat on the night of the robbery based on the pr edominance of his DNA ), to a permissible one supported by identity evidence from other robberies with a consistent modus operandi

. We acknowledge that this is a close case. I t is a not ably weaker case than United States v. Tate , 586 F.3d 936 (11th Cir. 20 09) , for example, which Bowers attempted to distinguish at trial and on this appeal. 11 In Tate , the defendant was charged with five bank robberies. Id. at 939. Those robberies were connected by a

11 Bowers also cites and distinguishes the evidence found to be sufficient in United States v. Feliciano , 761 F.3d 1202 (11th Cir. 2014). His reliance on Feliciano is unhelpful. In that case the defendant’s conviction on three robbery related offenses turned on the credibility of testimony by two alleged co

- conspirator s against him. Id. at 1206

– 07. Credibility determinations are the exclusive province of the jury, unless the testimony is “incredible as a matter of law.” Id. at 1206 (quoting United States v. Chastain , 198 F.3d 1338, 1351 (11th Cir. 1999)). In Feliciano , direct testimon y from two co - conspirator s established that the defendant committed the robberies; the jury credited that testimony and found the defendant guilty. Id. at 1207. The instant case is not about credibility determinations; rather, it is about the reasonable ness of juror inferences drawn from circumstantial evidence. Feliciano therefore is so dissimilar as to be an unhelpful comparison for Bowers.

Case: 14-11585 Date Filed: 01/22/2016 Page: 35 of 4436 consistent modus operandi where the robber , dressed in sunglasses and a baseball hat, would hand the teller a withdrawal slip and demand money. Id. at 939

– 41. The defendant’s fingerprints were found on the withdrawal slips from the robberies. Id

. at 944

. T ellers from two of the banks testified that the def endant was the robber

. Id. at 940

– 41, 944. The distinction between Tate and this case is the superior evidence present ed in Tate that the defendant committed at least two of the robberies. From there, the jury was able to infer from modus op e randi evide nce that the defendant committed the other robberies as well

. Id. at 945 (c iting United States v. McDowell , 250 F.3d 1354, 1364 (11th Cir. 2001) )

. In Bowers’s case , the modus operandi evidence permits the jury to conclude that one person committed all eight robberies. That conclusion makes identity evidence from one robbery related to the other robberies

. The relatedness of the identity evidence means that jurors may properly consider identity evidence from, for instance, the Papa John’s robbery to determine the identity of who robbed the Domino’s, and so on. The totality of the identity evidence presented in this case i s sufficient to convict Bowers on all sixteen counts. T herefore, the district court’s denial of Bowers’s motion for judgment of acquittal is affirmed. C. Sentencing
Bowers ’s third and final enumeration of error is a three

- pronged challenge to the constitutionality of his sentence. In particular , Bowers argues that his

Case: 14-11585 Date Filed: 01/22/2016 Page: 36 of 4437 m andatory sentence under 18 U.S.C. § 924(c) violates: (1) separation of powers; (2) due process and equal protection ; and (3) th e Eight Amendment

. As Bowers concedes , these arguments are foreclosed by prior Supreme Court and Eleventh Circuit precedent. Because Bowers seeks to preserve a record of these issues, we likewise recount the relevant facts and the precedent s that control our decision. In the end, we affirm the district court and find Bowers’s sentence constitutional. We review constitutional c hallenges to a sentence de novo

. United States v. Steed , 548 F.3d 961, 978 (11th Cir. 2008). Additionally, w e are bound by the prior panel decisions of this Court until those holding s are abrogated by the Supreme Court or by this Court sitting en banc

. Cargill v. Turpin , 120 F.3d 1366, 1386 (11th Cir. 1997).
We begin with the mechanics of § 924(c) as applied in this case. The jury found Bowers guilty of eight violations of 18 U.S.C. § 924(c) (1)(A)(ii) (C ounts 2, 4, 6, 8, 10, 12, 14, and 16 ). V iolations of § 924(c) carry mandatory

- minimum
sentences t hat vary depending on the defendant’s pred icate conduct and criminal history . Relevant to Bowers’s case, § 924(c) (1)(A)(ii) provides that “if [a] firearm is brandished” during the commission of any crime of violence, the perpetrator “shall be sentenced to a term of imprisonment of not less than 7 years.” Further, § 924(c)(1)(C)(i) provides that “second or subsequent” § 924(c) violations carry a

Case: 14-11585 Date Filed: 01/22/2016 Page: 37 of 4438 “ sentence[] to a term of imprisonment of not less t han 25 years.” 12 Finally, § 924 (c)(1)(D)(ii) prohibits courts from ordering that the sentences under both this
subsection and th e underlying crime of violence run concurrently. Together t hese three provisions mandated Bowers’s sentence. T he district c ourt sentenced Bowers
to seven years imprisonment for C ount 2 and twenty

- five years for each of C ou nts 4, 6, 8, 10, 12, 14, and 16 , running consecutively

. In sum , for the violations of § 924(c), Bowers was sentenced to 182 years in prison, to run consecutively after his 140 months for the § 1951(a) violati ons. Beginning with the separation of p owers challenge, this Court has rejected separation of pow ers arguments against mandatory

- minimum sentences in two published opinions

. United States v. Paige , 604 F.3d 1 268 , 1274 (11th Cir. 2014) (per curiam); United States v. Holmes , 838 F .2d 1175, 1178 (11th Cir. 1988)

. In Holmes , we held that the defendant’s “ argument that the mandatory minimum sentence requirements violate the separation of pow ers doctrine is without force. ” Holmes , 838 F.2d at 1178

. We reasoned , “[i] t is for Congress to say what shall be a crime and how tha t crime shall be punished

. . . . ” Id. (quoting United States v. Smith , 686 F.2d 234, 239 (5th Cir.1982) ) . Li kewise, in Paige , we affirmed a

12 This Court previously held, and the Supreme Court later confirmed, that additional § 924(c) counts charged in the same indictment are second and subsequent for purposes of § 924(c)(1)(A)(ii). United States v. Rawlings , 821 F.2d 1543, 1545 (11th Cir. 1987); see also Deal v. United States , 508 U.S. 129, 113 S. Ct. 1993 (1993).

Case: 14-11585 Date Filed: 01/22/2016 Page: 38 of 4439 mandatory fifteen

- year sentence pursuant to 18 U.S.C. § 2251(e) over the defendant’s separation of powers challenge

. Paige , 604 F.3d at 1274

. Besides
t hese two opinions, we have only addressed this issue in unpublished opinions that
note the binding nature of prior circuit precedent

. E.g. , United States v. Garrastequi , 371 F. App’x 22, 24 (11th Cir. 2010) (per curiam)

. Once again we are bound by our precedent until a ruling of the Supreme Court or this Court sitting en banc abrogates Holmes and Paige ; hence, Bowers’s separation of powers challenge must fail.
Bowers also challenges § 924(c)’s mandatory

- sentencing provision s on the grounds that they deprive him of an individualized se ntencing proceeding in violation of due process and equal protection. His brief cites due process and equal protection together, but, in truth, only argues a due process violation. Because he
concedes this issue under current precedent , we decline to sepa rately address equa l protection and turn to his due process challenge.
In Bowers’s view, the mandat ory - sentencing provisions denied him due process by effectively sentencing him to life in prison without consider ation of mitigating circumstances, including his “individualiz ed his tory and character . . . or the circumstances of the offense .” The Supreme Court has held

— for purposes of the Eighth Amendment

— that an individu alized sentencing determination is not required in non

- capital cases. Harmelin v. Michigan , 501 U.S. 957, 995 , 111 S. Ct.

Case: 14-11585 Date Filed: 01/22/2016 Page: 39 of 4440 2680, 2702 (1991)

. 13 With respect to due process , we have held that the lack of individuali zed sentencing determinations under § 924(c) does not violate the Constitution

. United States v. Hamblin , 911 F.2 d 551, 555 (11th Cir. 1990). Accordingly, Bowers’s due process challenge i s foreclosed. Finally , Bowers argues that his sentence violates the Eighth Amendment’s prohibition of cruel and unusual punishment. “[T] he Eighth Amendment contains

a ‘ narrow p roportionality principle ’ that ‘ applies to noncapital sentences. ’ ” Ewing v. California , 538 U.S. 11, 20, 123 S. Ct. 1179, 1185 (2003) ( quoting Harmelin , 501 U.S. at 996

- 997, 111 S.Ct. at 2702 ( Kennedy , J., concurring in p art and concurring in judgment) ). Generally, sentences within the statutory limits are

“ neither excessive, nor cruel and unusual under the Eighth Amendment

. ” United States v. Moriarity , 429 F.3d 1012, 1024 (11th Cir. 2005). “This is so because we accord substantial deference to Congress, as it possesses ‘ broad authori ty to determine the types and limits of punishments for crimes. ’ ” United States v. Raad , 406 F.3d 1322, 1 323 (11th Cir. 2005) ( quoting Solem v. Helm , 463 U.S. 277, 289, 103 S. Ct. 3001, 3009 (1983) ). Further , t he Supreme Court has held that the mandatory nature of a sentence is irrelevant for Eigh th Amendment purposes.

13 Harmelin is a fractured opinion. On t he individualized sentencing issue, Justice Scalia’s opinion speaks for the Court while on other issu es, including the proportionality issue discussed infra , Justice Kennedy’s concurrence, as the narrowest grounds, is considered the Court’s opinion. Unite d States v. Farley, 607 F.3d 1294, 1339

– 40, 1339 n. 30 (11th Cir. 2010).

Case: 14-11585 Date Filed: 01/22/2016 Page: 40 of 4441 Harmelin , 501 U.S. at 994

– 995 , 111 S. Ct. at 2701 ; id. at 1006 , 111 S. Ct. at 2707

– 08 (Kennedy, J., concurring)

. Instead , the sentence should b e evaluated as if it were imposed by the sentencing court in the exercise of its discretion. United States v. Farley , 607 F.3d 1294, 1343 (11th Cir. 2010).
To determine whether a particular non

- capital sentence violates the Eighth
Amendment ,

a reviewing court must make a threshold determination that the sentence imposed is grossly disproportionate to the offense committed and, if it is grossly disproportionate, the court must then consider the sentences imposed on other s convicted in the same j urisdiction and the sentences imposed for commission of the same crime in other jurisdictions. Reynolds , 215 F.3d 1210, 1214 (11th Cir. 2000) (citing United States v. Brant , 62 F.3d 367, 368 (11th Cir. 2000) ). The Supreme Court has counseled that “successful disproportionality challenges should be ‘exceedingly rare.’” Farley , 607 F.3d at 1337 (quoting Hutto v. Davis , 454 U.S. 370, 374, 102 S. Ct. 703, 704

– 05 (1982)). In part, this is because “we lack clear objectiv e standards to distinguish betwee n sentences for different terms of years.” Harmelin , 501 U.S. at 1001, 111 S. Ct. at 2705. With that framework in mind, the threshold questi on then is whether
Bowers’s 182

- year sentence is “grossly disproportionate” to the offenses committed, namely brandishing a firearm during the course of eight robberies.

Case: 14-11585 Date Filed: 01/22/2016 Page: 41 of 4442 Supreme Court and Eleventh C ircuit precedent have set a high bar for a sentence to be “grossly disproportionate.” For example, the Supreme Court in Harmelin found that a sentence of life without parole was not grossly disproportionate for a first time offender convicted of cocaine possession. Harmelin , 501 U.S. at 10 01. Likewise, we have u pheld a mandatory life sentence without parole for a defendant convicted of trafficking in and possession of methamphetamine with two prior felony drug convictions

. United States v. Hoffman , 710 F.3d 1228 (11th Cir. 2013) (per curiam)

. And in Farley we upheld a mandatory thirty

- year sentence for aggravated sexual abuse of a child under 18 U.S.C. § 2241(c). Farley , 607 F

. 3d at 1343. In fact, this Court has never found a non

- capital sentence of an adult to violate the Eighth Amendment. Id. at 1343; accord United States v. McGarity , 669 F.3d 1218, 1256 n. 57 (11th Cir. 2012) (noting the same). In support of his argument, Bowers mentions that the sentencing guideline
range was 21 0

– 262 months, and the mandatory

- minimum sentence “essentially multiplied that range ten

- fold, calling for the imposition of a sentence of 2,184 months. ” B ut, as discussed above, p rior Supreme Court and Eleventh Circuit cases have found that greater sentences, for less serious conduct, for defendants with less serious criminal histor ies were not grossly disproport ionate

. See also United States v. Clark , 634 F.3d 874, 877

– 78 (6th Cir. 2011) (affirming a 189

- year sentence for seven armed robberies). In the present case, Bowers has been convicted of

Case: 14-11585 Date Filed: 01/22/2016 Page: 42 of 4443 brandishing a firearm during eight separate robberies and the distr ict court im posed a mandatory 182

- year s entence

. But in Harmelin the defendant was sentenced to life imprisonment without parole, “the second most severe penalty permitted by law,” Harmelin , 501 U.S. at 1001, 111 S. Ct. at 2705 , for possessing 672 grams of cocaine. Id. at 961. Given the severity of the committed offenses, and i n light o f Harmelin , we hold that Bowers’s sentence is not grossly disproportionate to the offending conduct ; therefore, it does n ot violate the Eighth Amendment.

* * * The re is no doubt that the consequences of Bowers’s conviction s are severe . In affirming his sentence , we follow two of the oldest principles of our federal structure. First, Congress possesses the power, as limited by the Constitution, to define crimes a nd their punishments

. Cf. United States v. Hudson , 11 U.S. 32, 34, 7 Cranch 32, 34, 3 L. Ed. 259 (1812) (“ The legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction of the offence. ”). S econd, we are bound to follow the decisions of the Supre me Court and our prior panels. See Martin v. Hunter’s Lessee , 14 U.S. 304, 348, 1 Wheat. 304, 348 (1816) (discussing, in the context of Supreme Court review of state court judgm ents, the importance of uniform interpretation and application of the law); The Federalist No. 22 (Alexander Hamilton) (“ To avoid the confusion which would unavoidably result from the contradictory decisions of

Case: 14-11585 Date Filed: 01/22/2016 Page: 43 of 4444 a number of independent judicatories, all nat ions have found it necessary to establish one court paramount to the rest, possessing a general superintendence,
and authorized to settle and declare in the last resort a uniform rule of civil justice.”)

. Some may believe that § 924(c)’s severe mandatory m inimums “ do[] not deter crime as much as [ they ] ruin[] lives. ” Deal v. United States , 508 U.S. 129,
146 n.10 ( Stevens, J., dissenting) (quoting United States v. Jones , 965 F .2d 1507,
1521 (8th Cir. 1992) )

. This may particularly be so when “ second or subsequent ” convictions occur in the same case , rather than in separate proceedings

. See i d. at 139

– 42 ; see also Erik Luna & Paul G. Cassell , Mandatory Minimalism , 32 Cardozo L. Rev. 1, 80

– 81 (2010) (advocating , among other reforms, Congressional

amen dments to reform § 924(c)’ s “second or subsequent” provision into a “true recidivist” law ). Congress, however, cou ld rationally conclude that mandatory sentences are appropriate

. The common principle among our precedent is that the Constitution grants Congress the power to do so. Farley , 607 F.3d at 1343 ; Hamblin , 911 F.2d at 555

– 56; Holmes , 838 F.2d at 1178. Because Bowers’s arguments are foreclosed, we affirm his sentence.
III. CONCLUSION For the foregoing reasons, the judgment of the district court is AFFIRMED

. Case: 14-11585 Date Filed: 01/22/2016 Page: 44 of 44