USA v. Xavier Daughtry

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11695
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
XAVIER DAUGHTRY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:22-cr-14047-DMM-1
____________________
USCA11 Case: 23-11695 Document: 46-1 Date Filed: 05/15/2024 Page: 1 of 18

-- 1 of 18 --

2 Opinion of the Court 23-11695
Before WILLIAM PRYOR , Chief Judge, and B RASHER and ABUDU, Cir-
cuit Judges.
PER CURIAM:
Xavier Daughtry appeals his convictions and sentence for
carjacking, 18 U.S.C. § 2119(1), and brandishing a firearm in fur-
therance of a crime of violence, id. § 924(c)(1)(A)(ii). Daughtry chal-
lenges the denial of his motions for a mistrial and a new trial and
the sufficiency of the evidence. He argues that after Borden v. United
States, 593 U.S. 420 (2021), and Counterman v. Colorado, 600 U.S. 66
(2023), federal carjacking no longer qualifies as a crime of violence,
18 U.S.C. § 924(c)(3)(A). He also argues that his sentence is unrea-
sonable. We affirm.
I. BACKGROUND
A grand jury indicted Daughtry for carjacking, id. § 2119(1),
and brandishing a firearm in furtherance of a crime of violence, id.
§ 924(c)(1)(A)(ii). Before trial, the district court ordered a compe-
tency evaluation. The competency report stated that Daughtry suf-
fered from no severe mental illness or defect, was competent to
stand trial, and was sane at the time of the charged offenses. The
report also stated that Daughtry met the criteria for “malingering”
by intentionally misrepresenting and exaggerating his symptoms to
“avoid entirely or receive diminished repercussions for his criminal
behavior.” Daughtry and the government stipulated that he was
competent to proceed.
USCA11 Case: 23-11695 Document: 46-1 Date Filed: 05/15/2024 Page: 2 of 18

-- 2 of 18 --

23-11695 Opinion of the Court 3
At a change of plea hearing, the district court determined
that Daughtry did not intend to plead guilty after he repeatedly in-
terrupted the district court with profane language. In response to
the courtroom deputy’s statement about proceeding to trial,
Daughtry said, “I’m gonna kill one of you crackers, man.” At the
beginning of trial, the district court warned Daughtry that, alt-
hough he should be present in the courtroom, “if we have any kind
of—if what happened last time were to occur again,” he “can be
removed from the courtroom and watch the trial from the cell
block.” Daughtry said, “No problem then.”
At trial, Officer Catalina Escobar testified for the govern-
ment that she responded to a 9-1-1 call reporting that a car was sto-
len from a convenience store. At the convenience store, the victim,
V.G., told Escobar that a man approached her car, pointed a gun at
her, and told her to “back the f**k up.” V.G. said that the man
drove northbound in her rental car, a white Nissan Altima. After
another officer pulled someone over for driving the car five
minutes away from the convenience store, Escobar drove V.G. to
her car for a “show-up” identification of the driver. V.G. identified
the suspect as the man who stole her car and stated that her identi-
fication was in a pink purse on the passenger side. Escobar’s
body-worn camera footage, capturing her interaction with V.G.
and V.G.’s identification of the suspect, was played for the jury.
The jury also saw V.G.’s written statement that she exited the con-
venience store, ran up to her car, told the man that the car be-
longed to her, and the man “put a gun up to” her and said “back
USCA11 Case: 23-11695 Document: 46-1 Date Filed: 05/15/2024 Page: 3 of 18

-- 3 of 18 --

4 Opinion of the Court 23-11695
the f**k up.” The written statement described the man as black and
wearing no shirt and stated, in parentheses, “(has dreads).”
Deputy John Leckenbusch testified that he received a call to
be on the lookout for a stolen white rental car and found one
matching that description. Dispatch confirmed that the tag number
on that car matched the tag number for the stolen car. He initiated
a traffic stop and saw a gun on the driver’s seat and a purse. He
stated that the dispatch call described the suspect as a shirtless black
male with a shirt on his head. He arrested the driver.
V.G. testified that she went to the convenience store for a
drink and left her car running but locked because she was alone at
night. After she left the store, she saw “someone walking with a
purpose up to [her] vehicle.” She confronted the man and said that
was her car. The man turned around, pointed a gun “to [her] face,”
and told her to “back the F up.” She was afraid that he would shoot
her. While he was adjusting the seat, she asked for her cell phone,
and he handed her the phone, shut the door, and drove away. Be-
cause the man kept his eyes on her when he was speaking, she got
a good look at his eyes. The man was shirtless but had something
over his head, which she assumed was his shirt. After he left, she
returned to the store and called 9-1-1.
While V.G. was testifying about her interaction with the of-
ficers, Daughtry interrupted her testimony and said, “F**k your
a**. Stop trying playing [sic] with me.” V.G. then identified
Daughtry as the man who stole her car as well as the man she iden-
tified at the show-up identification and described him as wearing a
USCA11 Case: 23-11695 Document: 46-1 Date Filed: 05/15/2024 Page: 4 of 18

-- 4 of 18 --

23-11695 Opinion of the Court 5
“blue shirt, black pants, [and] shackles.” Daughtry then interrupted
the testimony as follows:
Daughtry: How the f**k can you said I had dread? [sic]
V.G.: Shut up. Sorry.
Prosecutor: Can you describe—
Daughtry: You make no f**king sense, b**ch. You make
your f**king mind up.
V.G.: Can I say something?
Daughtry: F**king thing you said, f**king jigglings (pho-
netic). Shut the f**k up, man. F**k.
The district court asked Daughtry to control himself, but
Daughtry continued:
Daughtry: Man, I ain’t controlling. F**k them.
V.G.: You are lucky. I would have blew [sic] your
f**king head off for playing with me.
Daughtry: Man, you play games though in your
mother f**king head.
V.G. proceeded to testify that she was “very” confident that
Daughtry was the man who stole her car at gunpoint and that she
wrote that the man “(has dreads)” in parentheses on her written
statement because she did not see the dreads, but someone at the
convenience store told her that the man had dreads. Daughtry in-
terrupted, “F**k a**.” After the government asked V.G. to identify
some exhibits, Daughtry interrupted, “Man, bro, what you gonna
do, bro? F**k, n****r, what you going to do? N****r will knock
USCA11 Case: 23-11695 Document: 46-1 Date Filed: 05/15/2024 Page: 5 of 18

-- 5 of 18 --

6 Opinion of the Court 23-11695
your b**ch a** out, bro, (indecipherable) before I knock you out,
man.”
While V.G. was identifying photographs of her car,
Daughtry interjected, “You tighten up whole a** n****r. Self a**
n****r over there smiling at me. What?” Daughtry continued:
Daughtry: B**ch a** n****r, I kill you.
District Court: Mr. Daughtry, you need to—
Daughtry: F**k n****r, I kill you too.
District Court: Mr. Daughtry, I am going to remove
you from the courtroom if you don’t
stop.
Daughtry: F**k n****r, do it.
District Court: All right. Please remove Mr. Daughtry.
Daughtry: F**k a** dump. Fake mother f**ker.
After Daughtry was removed, V.G. identified a photograph
that depicted the firearm that officers found in her car. She testified
that she did not place that firearm in the car. The district court
paused V.G.’s testimony to tell the jury:
I have ordered [Daughtry] removed from the court-
room based on the outburst that you-all saw. They
are placing him in an interview room which has the
ability to watch the trial. We won’t be able to hear
him, but he can see everything that’s occurring in the
courtroom. I ask you-all to decide the case based on
what he’s accused of doing as opposed to what you
have seen happen in the courtroom.
USCA11 Case: 23-11695 Document: 46-1 Date Filed: 05/15/2024 Page: 6 of 18

-- 6 of 18 --

23-11695 Opinion of the Court 7
Defense counsel confirmed that she “believe[d] what [the district
court] said was sufficient for now.”
After a break, Daughtry moved for a mistrial on the ground
that the jury would be unable to reach a verdict without being prej-
udiced by Daughtry’s behavior in the courtroom and interaction
with V.G. The district court denied the motion because Daughtry,
“despite warnings, has created this circumstance. I think the jury
have said they will set aside what happened.” The district court
asked defense counsel what she would have it tell the jury. Defense
counsel asked the district court to explain that trials are stressful,
Daughtry was not functioning well, and his behavior should not be
used as evidence. When the jury returned, the district court in-
structed, “Let me again ask you, in deciding the case, let’s focus on
the crime that he is charged with and disregard what occurred in
the courtroom.”
Defense counsel requested a sidebar to request that a cam-
era be shut down so that Daughtry could not be seen in court but
could see what was happening. After the district court confirmed
that Daughtry could see and hear the courtroom, defense counsel
renewed the motion for a mistrial on the same ground. The district
court stated that it instructed the jury as requested, and defense
counsel stated that she would address the matter later.
After V.G. concluded her testimony, Sergeant Kyle MacCar-
thy testified that he saw a firearm on the driver’s seat and a black
t-shirt on the front passenger-side seat. He inspected the firearm,
USCA11 Case: 23-11695 Document: 46-1 Date Filed: 05/15/2024 Page: 7 of 18

-- 7 of 18 --

8 Opinion of the Court 23-11695
removed the magazine, and ejected a round from the chamber.
The hammer of the firearm was cocked, ready to fire.
The government rested, and Daughtry moved for a judg-
ment of acquittal. He argued that the evidence was insufficient to
prove that he was the perpetrator or that he intended to cause
death or serious bodily injury. He also argued that carjacking was
not a crime of violence because it could be committed through in-
timidation, which did not require use of force. The district court
denied the motion. Before closing arguments, the district court
asked Daughtry through intra-court video and audio if he wanted
to return, but the Marshal responded that Daughtry “made it clear
he does not want” to return. Defense counsel confirmed that there
was nothing else the district court could do.
The district court again instructed the jury to base its verdict
only on the evidence presented and not on any sympathy for or
prejudice against Daughtry. The jury convicted him on all counts
and found that the firearm was brandished.
Daughtry moved for a new trial on the grounds that he was
deprived of his Fifth Amendment right to due process and Sixth
Amendment right to an impartial jury. Defense counsel asserted
that Daughtry threatened the entire jury and that one juror gasped
during Daughtry’s exchange with V.G.
The district court denied the motion for a new trial. It ex-
plained that Daughtry’s competency evaluation revealed evidence
of “malingering” to avoid repercussions for his behavior. It stated
that Daughtry threatened the Marshals, who recommended that
USCA11 Case: 23-11695 Document: 46-1 Date Filed: 05/15/2024 Page: 8 of 18

-- 8 of 18 --

23-11695 Opinion of the Court 9
he be restrained during trial for safety reasons, and recounted his
outbursts and verbal exchanges with V.G., the Marshals, and the
district court. It ruled that Daughtry was not entitled to a new trial
because of the disruption that he caused, particularly where the dis-
trict court provided several curative instructions, and a new trial
would not change the result because the evidence of his guilt was
overwhelming. The district court also explained that, in the light
of his psychological report, Daughtry’s behavior appeared to be an
intentional attempt to seek advantage. The district court cited sev-
eral decisions of this Court and the Supreme Court involving de-
fendants’ courtroom outbursts.
Daughtry’s presentence investigation report provided a to-
tal offense level of 25 and a criminal history score of III, which re-
sulted in an advisory guidelines range of 70 to 87 months of impris-
onment for carjacking plus a mandatory consecutive sentence of 84
months for brandishing a firearm during the carjacking. The report
described the findings from Daughtry’s court-ordered forensic
evaluation, which lasted from October to December 2022, that
Daughtry was competent and was “malingering” by exhibiting dis-
ruptive behaviors to obtain special custody in prison. Daughtry did
not object to the report but moved for a downward variance based
on his difficult childhood, family circumstances, and mental health
conditions, as well as his criminal history category being overin-
flated because he was on probation during the instant crimes.
At sentencing, Daughtry presented testimony from
Dr. Sheila Rapa, a clinical psychologist, who testified that based on
USCA11 Case: 23-11695 Document: 46-1 Date Filed: 05/15/2024 Page: 9 of 18

-- 9 of 18 --

10 Opinion of the Court 23-11695
her three-hour evaluation of him, she believed that he had signifi-
cant mental health issues. But Dr. Rapa testified that she was una-
ware of his previous competency evaluation or that he was found
to be malingering.
The district court sentenced Daughtry to a total sentence of
156 months of imprisonment based on 72 months for the carjack-
ing conviction and a consecutive 84 months for brandishing the
firearm. It stated that it considered the statutory sentencing factors,
18 U.S.C. § 3553(a), particularly the nature and circumstances of
the crime. It also considered Daughtry’s personal characteristics,
his personal threats of violence at trial, and his criminal history,
which included violence. It explained that it had “no doubt that
Mr. Daughtry [had] experienced traumatic experiences, and those,
undoubtedly, [] impacted him,” but that “above all” there was “a
need to protect the public in this case.”
II. STANDARDS OF REVIEW
Five standards govern our review. We review the denial of
motions for a mistrial and a new trial for abuse of discretion. United
States v. Reeves, 742 F.3d 487, 504 (11th Cir. 2014). We review argu-
ments raised for the first time on appeal for plain error, which re-
quires the defendant to establish an error that was plain and that
affected his substantial rights. United States v. Olano, 507 U.S. 725,
732 (1993). We review the sufficiency of the evidence de novo and
view “the evidence in the light most favorable to the government,
with all inferences and credibility choices drawn in the govern-
ment’s favor.” United States v. Feldman, 931 F.3d 1245, 1253, 1257
USCA11 Case: 23-11695 Document: 46-1 Date Filed: 05/15/2024 Page: 10 of 18

-- 10 of 18 --

23-11695 Opinion of the Court 11
(11th Cir. 2019) (quotation marks omitted). The evidence will be
sufficient to sustain a conviction unless “no rational trier of fact
could have found proof of guilt beyond a reasonable doubt.” United
States v. Shabazz, 887 F.3d 1204, 1221 (11th Cir. 2018). We review
whether an offense is a crime of violence, 18 U.S.C. § 924(c), de
novo. United States v. Bates, 960 F.3d 1278, 1285 (11th Cir. 2020). We
review the reasonableness of a sentence and weighing of the sen-
tencing factors, 18 U.S.C. § 3553(a), for abuse of discretion. Gall v.
United States, 552 U.S. 38, 51 (2007).
III. DISCUSSION
We divide our discussion in four parts. First, we reject
Daughtry’s argument that he was entitled to a new trial. Second,
we explain that sufficient evidence supports his convictions. Third,
we reject his argument that Borden and Counterman abrogated our
precedent holding that carjacking is a crime of violence under the
elements clause, 18 U.S.C. § 924(c)(3)(A). Fourth, we explain that
his sentence is substantively reasonable.
A. The District Court Did Not Abuse Its Discretion in Denying
Daughtry’s Motions for a Mistrial and a New Trial.
Daughtry argues that the district court should have declared
a mistrial because the jury was tainted by prejudice, which violated
his rights to a fair trial, an impartial jury, and the presumption of
innocence under the Fifth and Sixth Amendments. He argues that
the jury was prejudiced by his profane outbursts, argumentative
exchanges, and death threats; by V.G. referencing Daughtry’s
“shackles”; and by the district court referencing his removal to a
USCA11 Case: 23-11695 Document: 46-1 Date Filed: 05/15/2024 Page: 11 of 18

-- 11 of 18 --

12 Opinion of the Court 23-11695
remote cell. He also argues that the district court abused its discre-
tion by applying incorrect legal standards. We disagree.
The district court did not abuse its discretion in denying
Daughtry’s motions. It is well established that a defendant may not
benefit from his own misconduct. See United Stats v. Rouco, 765 F.2d
983, 995 (11th Cir. 1985); see also United States v. McCormac, 309 F.3d
623, 626–27 (9th Cir. 2002) (holding that the defendant was not en-
titled to a mistrial after she argued with the judge and was held in
contempt); United States v. Stewart, 256 F.3d 231, 242 (4th Cir. 2001)
(holding that the defendant was not entitled to a mistrial after he
pretended to shoot the jury).
Daughtry argues that he cannot waive his right to a fair trial
through misconduct, citing Braswell v. United States, 200 F.2d 597
(5th Cir. 1952), and McKissick v. United States, 398 F.2d 342 (5th Cir.
1968). In Braswell, the former Fifth Circuit held that a violent alter-
cation caused by two of seven defendants at a joint trial and “highly
prejudicial” comments by the district judge about the intoxicated
state of some of the defendants and possibly a defense witness prej-
udiced the jury such that none of the defendants received a fair and
impartial trial. 200 F.2d at 600–02. In McKissick, the former Fifth
Circuit held that a mistrial was necessary “to attain substantial jus-
tice” after the defendant’s counsel reported that the defendant per-
jured himself at his first trial and asked counsel for help in present-
ing more perjured testimony. 398 F.2d at 343.
Braswell or McKissick do not support Daughtry’s argument.
Unlike the defendants in Braswell and McKissick, the district court
USCA11 Case: 23-11695 Document: 46-1 Date Filed: 05/15/2024 Page: 12 of 18

-- 12 of 18 --

23-11695 Opinion of the Court 13
found that Daughtry’s misconduct at trial appeared to be an inten-
tional effort to obtain a benefit and that his outbursts at trial were
consistent with his outbursts during his competency evaluation,
which resulted in the finding that he was malingering to obtain a
benefit. Unlike in McKissick, the district court did not abuse its dis-
cretion in finding that “substantial justice” would be subverted, in-
stead of attained, by granting Daughtry’s motions and allowing
him to benefit from his own wrongdoing. See Rouco, 765 F.2d at
995; McKissick, 398 F.2d at 344. We agree with our sister circuit that,
if “such behavior on the part of the defendant were held to require
a mistrial, it would provide an easy device for defendants to pro-
voke mistrials whenever they might choose to do so.” Stewart, 256
F.3d at 242 (internal quotation marks omitted).
The district court minimized the risk of prejudice to
Daughtry with several curative instructions. It instructed the jury
to “focus on the crime” and to “disregard what occurred in the
courtroom.” It told defense counsel that it believed that the jury
expressed that it would “set aside what happened.” After it asked
defense counsel if there was anything else that it should do, defense
counsel conceded that the curative instruction was “sufficient for
right now.” And it found that a second trial would not produce a
different outcome because the evidence of Daughtry’s guilt was
overwhelming, and it had no reason to believe that Daughtry, who
assured the district court after his outbursts at the change-of-plea
hearing that there would be “no problem” during trial, would not
continue his disruptive behavior at a second trial.
USCA11 Case: 23-11695 Document: 46-1 Date Filed: 05/15/2024 Page: 13 of 18

-- 13 of 18 --

14 Opinion of the Court 23-11695
The district court did not plainly err by not sua sponte declar-
ing a mistrial after V.G. identified Daughtry as wearing “shackles.”
Although “restraints, if visible, may prejudice the jury,” Daughtry
identifies no precedent holding that a witness’s passing reference
to a defendant’s restraints, without anything in the record suggest-
ing that the restraints were visible to the jury, warrants a mistrial.
United States v. Ahmed, 73 F.4th 1363, 1377 (11th Cir. 2023); see
United Stats v. Moore, 954 F.3d 1322, 1330 (11th Cir. 2020); United
States v. Ramirez-Flores, 743 F.3d 816, 822 (11th Cir. 2014). Even if
Daughtry could establish plain error, he fails to establish a reason-
able probability that, but for the alleged error, the outcome of his
trial would have been different in the light of the strong evidence
of his guilt. See United States v. McLellan, 958 F.3d 1110, 1119 (11th
Cir. 2020). Insofar as he challenges his removal to a remote cell and
the district court referencing his absence, the record reveals that
after he was warned that he would be removed if he did not stop
interrupting, he replied, “Do it.” And after he was removed, de-
fense counsel asked for a sidebar and a curative instruction, which
the district court provided. Daughtry cannot challenge receiving
what he asked the district court to do. See United States v. Brannan,
562 F.3d 1300, 1306 (11th Cir. 2009).
Daughtry also argues that the district court applied the in-
correct legal standards when it denied his motions while emphasiz-
ing his waiver of the right to be present, Fed. R. Crim. P. 43(c). But
in considering whether to grant a mistrial, the district court did not
rule that Daughtry waived his right to be present. Instead, the dis-
trict court considered whether Daughtry was entitled to the benefit
USCA11 Case: 23-11695 Document: 46-1 Date Filed: 05/15/2024 Page: 14 of 18

-- 14 of 18 --

23-11695 Opinion of the Court 15
of a new trial based on his own misconduct. Although the district
court stated that Daughtry must prove that the alleged error justi-
fying a mistrial likely had a “substantial influence” on the jury’s ver-
dict, the district court cited the correct harmless-error standard,
Fed. R. Crim. P. 52, which provides that any error that does not
affect “substantial rights” must be disregarded.
B. Sufficient Evidence Supports Daughtry’s Convictions.
Daughtry argues that the government failed to present suf-
ficient evidence that he committed the carjacking offense due to
evidentiary discrepancies about the perpetrator’s description. He
also argues that the evidence was insufficient to establish that he
acted with the specific intent “to cause death or serious bodily
harm” because he lowered his weapon before taking control of the
car, and V.G. remained by the car until he handed her cell phone
to her and drove away. He contends that without sufficient evi-
dence to support the carjacking offense, insufficient evidence sup-
ports his section 924(c) conviction. We disagree.
Sufficient evidence supports Daughtry’s convictions. V.G.
identified Daughtry as the man who pointed a firearm at her and
drove away in her car. She reported the crime and described the
perpetrator to Escobar. The description of the perpetrator and the
crime were recorded on Escobar’s body-worn camera and played
for the jury. Within five minutes of the 9-1-1 dispatch call,
Leckenbusch stopped a car matching the description and tag num-
ber of V.G.’s car. Daughtry was driving the car. Escobar drove V.G.
to her car for a “show-up” identification, and V.G. identified
USCA11 Case: 23-11695 Document: 46-1 Date Filed: 05/15/2024 Page: 15 of 18

-- 15 of 18 --

16 Opinion of the Court 23-11695
Daughtry as the man who pointed a firearm at her and stole her
car. Daughtry highlights the discrepancy on V.G.’s written state-
ment that the perpetrator “(has dreads),” but V.G. explained that
she added that information in parentheses specifically because it
came from another person at the convenience store. She also testi-
fied that because the perpetrator looked at her when he was speak-
ing, she was able to get a good look at his eyes.
Sufficient evidence also supports the finding that Daughtry
intended to cause death or serious bodily harm if necessary to steal
the car. V.G. testified that Daughtry pointed a firearm at her and
told her to “back the f**k up” when she approached her car, and
MacCarthy testified that the firearm was ready to fire because a
bullet was in the chamber and the hammer was cocked back. The
jury was entitled to find from this evidence that Daughtry intended
to harm V.G. if she did not comply with his orders. See Holloway v.
United States, 526 U.S. 1, 8–12 (1999); United States v. Caldwell, 81
F.4th 1160, 1186 (11th Cir. 2023). And he offers no other reason
why the evidence fails to support his section 924(c) conviction.
C. Carjacking Qualifies as a Crime of Violence, 18 U.S.C. § 924(c).
Daughtry argues that after Borden and Counterman, carjack-
ing does not qualify as a crime of violence under the elements
clause, 18 U.S.C. § 924(c)(1)(A), because carjacking can be commit-
ted through intimidation with a mens rea of recklessness. Daughtry
acknowledges that we held in Smith that carjacking is a crime of
violence under the elements clause, id., but he contends that Smith
no longer controls. See In re Smith, 829 F.3d 1276 (11th Cir. 2016).
USCA11 Case: 23-11695 Document: 46-1 Date Filed: 05/15/2024 Page: 16 of 18

-- 16 of 18 --

23-11695 Opinion of the Court 17
A prior panel’s holding is binding on all later panels unless it is over-
ruled or undermined to the point of abrogation by a decision of the
Supreme Court or of this Court sitting en banc. United States v.
Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). The decision must be
“clearly on point” and “actually abrogate or directly conflict with,
as opposed to merely weaken, the holding of the prior panel.”
United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009).
Smith controls. In Smith, we reaffirmed that federal carjack-
ing is a crime of violence—and a section 924(c) predicate—under
the elements clause. 829 F.3d at 1280. We explained that a section
924(c) conviction with carjacking as the predicate is valid regardless
of the residual clause because the conviction “meets the require-
ments of that statute’s [elements] clause.” Id. at 1281. And we re-
jected the same intimidation argument Daughtry makes now. See
id. at 1281 n.5.
Borden and Counterman did not overrule Smith. Borden held
that a criminal offense that requires only a mens rea of recklessness
cannot qualify as a “violent felony” under the Armed Career Crim-
inal Act, 18 U.S.C. § 924(e), when it does not require the employ-
ment of force against another person. 593 U.S. at 423, 437–42, 445.
And Counterman held that for criminal offenses involving true
threats of violence, the government must prove that the defendant
possessed a mens rea of at least recklessness as to the threatening
statements. 600 U.S. at 69, 73. Because neither Borden nor Counter-
man abrogated our holding in Smith that carjacking qualifies as a
crime of violence under the elements clause, 18 U.S.C.
USCA11 Case: 23-11695 Document: 46-1 Date Filed: 05/15/2024 Page: 17 of 18

-- 17 of 18 --

18 Opinion of the Court 23-11695
§ 924(c)(3)(A), we remain bound by Smith. See Archer, 531 F.3d at
1352; Kaley, 579 F.3d at 1255.
D. Daughtry’s Sentence is Substantively Reasonable.
The district court did not abuse its discretion by imposing a
guidelines-range sentence of 72 months of imprisonment followed
by a consecutive 84 months of imprisonment. Daughtry challenges
the decision not to vary downward to account for his mental health
issues, difficult childhood, and overinflated criminal history. But
the district court considered Daughtry’s personal history and his
mental health evaluations and testimony. It acknowledged his trau-
matic experiences and stated that it reviewed the details of his crim-
inal history, which involved more violence. The district court was
entitled to find that, despite Daughtry’s mitigating circumstances,
the “need to protect the public” deserved more weight. See United
States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015).
Daughtry’s sentence is substantively reasonable. See United States v.
Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc).
IV. CONCLUSION
We AFFIRM Daughtry’s convictions and sentences.
USCA11 Case: 23-11695 Document: 46-1 Date Filed: 05/15/2024 Page: 18 of 18

-- 18 of 18 --