15‐1290‐cr United States v. Mathison
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 25th day of April, two thousand eighteen.
PRESENT: AMALYA L. KEARSE, GUIDO CALABRESI, DENNY CHIN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
UNITED STATES OF AMERICA, Appellee,
v. 15‐1290‐cr
ANTHONY MATHISON, Defendant‐Appellant.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x
FOR APPELLEE: SARITHA KOMATIREDDY, Assistant United States Attorney (Emily Berger, Alicyn L. Cooley, Melody Wells, Assistant United States
Attorneys, on the brief), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, New York.
FOR DEFENDANT‐APPELLANT: JAMES HEALY, (Steven G. Brill, on the brief), Sullivan & Brill, LLP, and Anthony Mathison, pro se, New York, New York.
Appeal from the United States District Court for the Eastern District of
New York (Cogan, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the amended judgment of the district court is
AFFIRMED.
Defendant‐appellant Anthony Mathison appeals an amended judgment
entered April 22, 2015, convicting him on two counts of Felon in Possession of a
Firearm, pursuant to 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He was sentenced principally
to 204 monthsʹ imprisonment. We assume the partiesʹ familiarity with the underlying
facts, procedural history, and issues on appeal.
On November 9, 2012, a grand jury returned the operative superseding
indictment charging Mathison with three counts of Felon in Possession of a Firearm,
pursuant to 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 3551, et seq. Count One pertained to
Mathisonʹs sale of a Ruger 9mm pistol to a cooperating witness on April 6, 2010. Count
Two pertained to a police search of Mathison on November 18, 2010, during which
police found a Kel‐Tec 9mm handgun. Count Three pertained to an incident in which
police found two handguns ‐‐ a Taurus .45 caliber handgun and a Taurus 9mm gun ‐‐
one in a backpack thrown from a window and the other alongside it outside a building
on October 9, 2011.
On December 17, 2012, Mathison moved to sever the three counts. The
court granted the motion in part, and trial on Count One began on May 6, 2013. Prior to
jury instructions, Mathison pleaded guilty to all three counts. Mathison, however,
subsequently moved to withdraw his guilty plea; the district court granted the motion
and ordered a new trial. As for Count Two, Mathison moved to suppress the evidence
in April 2014, arguing that it was the fruit of an illegal stop and frisk. After a hearing,
the district court granted the motion and the government dropped this count. As for
Count Three, the district court held a trial in May 2014, and the jury returned a guilty
verdict, finding that Mathison possessed the Taurus .45 but not the Taurus 9mm. In
June 2014, the district court held a second trial on Count One, and the jury returned a
guilty verdict on this count.
On December 19, 2014, before sentencing, the government disclosed for
the first time that there was a match for Troy Watsonʹs DNA on the Taurus 9mm gun.
Watson had been arrested with Mathison in October 2011. At trial, however, his DNA
was only identified as being from ʺDonor B.ʺ
In advance of sentencing, Mathison objected to several findings in the
Presentence Report (ʺPSRʺ), including a finding that Mathison shot Corey Marshal.
Accordingly, the court held a Fatico hearing on February 27, 2015. At sentencing on
April 17, 2015, the district court set forth its findings of fact, concluding that Mathison
shot Marshal and that Mathison possessed three guns: the Ruger 9mm (Count One), the
Taurus .45 (Count Three), and the Kel‐Tec 9mm (dismissed Count Two). The district
court sentenced Mathison to 102 monthsʹ imprisonment on each of Counts One and
Three, to be served consecutively, for a total of 204 months. Judgment was entered on
April 22, 2015, and this appeal followed.
On appeal, Mathison argues: (1) his rights under Brady v. Maryland, 373
U.S. 83 (1963), were violated by the governmentʹs failure before trial to disclose that
Watsonʹs DNA was on the Taurus 9mm; (2) the district court abused its discretion in
allowing certain evidence at trial; and (3) the district court erred in its sentencing
calculation.
I. Brady Claim
Mathison argues that the governmentʹs failure to turn over DNA evidence
linking Watson to one of the guns in Count Three violates Brady. We disagree.
When considering a Brady claim, ʺwe examine the record de novo to
determine whether the evidence in question is material as a matter of law.ʺ United
States v. Madori, 419 F.3d 159, 169 (2d Cir. 2005). Under Brady, a defendantʹs due process
rights are violated if the prosecution fails to provide ʺevidence favorable to [the]
accused.ʺ Strickler v. Greene, 527 U.S. 263, 280 (1999). To establish a Brady violation, the
defendant must demonstrate that: (1) the evidence at issue is favorable to the accused,
either because it is exculpatory or because it is impeaching; (2) the evidence was
suppressed by the government, either willfully or inadvertently; and (3) the defendant
was prejudiced. Id. at 281‐82.
The government concedes the first two prongs of the Brady test, and we
agree that they are met. We conclude, however, that Mathison failed to demonstrate
that he was prejudiced. Mathison was convicted only of possessing the gun with his
DNA on it, that is, the Taurus .45, and thus the evidence of Watsonʹs DNA on the other
gun ‐‐ as to which he was acquitted ‐‐ would not have changed this result. Moreover,
the jury was aware that there was DNA of other individuals on the guns, and still
convicted Mathison on the Taurus .45. Accordingly, we find no Brady violation.
II. Evidentiary Claims
Mathison raises several evidentiary claims regarding witness testimony.
This Court reviews a district courtʹs evidentiary rulings for abuse of discretion. United
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15‐1290‐cr United States v. Mathison
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 25th day of April, two thousand eighteen.
PRESENT: AMALYA L. KEARSE, GUIDO CALABRESI, DENNY CHIN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
UNITED STATES OF AMERICA, Appellee,
v. 15‐1290‐cr
ANTHONY MATHISON, Defendant‐Appellant.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x
FOR APPELLEE: SARITHA KOMATIREDDY, Assistant United States Attorney (Emily Berger, Alicyn L. Cooley, Melody Wells, Assistant United States
Attorneys, on the brief), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, New York.
FOR DEFENDANT‐APPELLANT: JAMES HEALY, (Steven G. Brill, on the brief), Sullivan & Brill, LLP, and Anthony Mathison, pro se, New York, New York.
Appeal from the United States District Court for the Eastern District of
New York (Cogan, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the amended judgment of the district court is
AFFIRMED.
Defendant‐appellant Anthony Mathison appeals an amended judgment
entered April 22, 2015, convicting him on two counts of Felon in Possession of a
Firearm, pursuant to 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He was sentenced principally
to 204 monthsʹ imprisonment. We assume the partiesʹ familiarity with the underlying
facts, procedural history, and issues on appeal.
On November 9, 2012, a grand jury returned the operative superseding
indictment charging Mathison with three counts of Felon in Possession of a Firearm,
pursuant to 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 3551, et seq. Count One pertained to
Mathisonʹs sale of a Ruger 9mm pistol to a cooperating witness on April 6, 2010. Count
Two pertained to a police search of Mathison on November 18, 2010, during which
police found a Kel‐Tec 9mm handgun. Count Three pertained to an incident in which
police found two handguns ‐‐ a Taurus .45 caliber handgun and a Taurus 9mm gun ‐‐
one in a backpack thrown from a window and the other alongside it outside a building
on October 9, 2011.
On December 17, 2012, Mathison moved to sever the three counts. The
court granted the motion in part, and trial on Count One began on May 6, 2013. Prior to
jury instructions, Mathison pleaded guilty to all three counts. Mathison, however,
subsequently moved to withdraw his guilty plea; the district court granted the motion
and ordered a new trial. As for Count Two, Mathison moved to suppress the evidence
in April 2014, arguing that it was the fruit of an illegal stop and frisk. After a hearing,
the district court granted the motion and the government dropped this count. As for
Count Three, the district court held a trial in May 2014, and the jury returned a guilty
verdict, finding that Mathison possessed the Taurus .45 but not the Taurus 9mm. In
June 2014, the district court held a second trial on Count One, and the jury returned a
guilty verdict on this count.
On December 19, 2014, before sentencing, the government disclosed for
the first time that there was a match for Troy Watsonʹs DNA on the Taurus 9mm gun.
Watson had been arrested with Mathison in October 2011. At trial, however, his DNA
was only identified as being from ʺDonor B.ʺ
In advance of sentencing, Mathison objected to several findings in the
Presentence Report (ʺPSRʺ), including a finding that Mathison shot Corey Marshal.
Accordingly, the court held a Fatico hearing on February 27, 2015. At sentencing on
April 17, 2015, the district court set forth its findings of fact, concluding that Mathison
shot Marshal and that Mathison possessed three guns: the Ruger 9mm (Count One), the
Taurus .45 (Count Three), and the Kel‐Tec 9mm (dismissed Count Two). The district
court sentenced Mathison to 102 monthsʹ imprisonment on each of Counts One and
Three, to be served consecutively, for a total of 204 months. Judgment was entered on
April 22, 2015, and this appeal followed.
On appeal, Mathison argues: (1) his rights under Brady v. Maryland, 373
U.S. 83 (1963), were violated by the governmentʹs failure before trial to disclose that
Watsonʹs DNA was on the Taurus 9mm; (2) the district court abused its discretion in
allowing certain evidence at trial; and (3) the district court erred in its sentencing
calculation.
I. Brady Claim
Mathison argues that the governmentʹs failure to turn over DNA evidence
linking Watson to one of the guns in Count Three violates Brady. We disagree.
When considering a Brady claim, ʺwe examine the record de novo to
determine whether the evidence in question is material as a matter of law.ʺ United
States v. Madori, 419 F.3d 159, 169 (2d Cir. 2005). Under Brady, a defendantʹs due process
rights are violated if the prosecution fails to provide ʺevidence favorable to [the]
accused.ʺ Strickler v. Greene, 527 U.S. 263, 280 (1999). To establish a Brady violation, the
defendant must demonstrate that: (1) the evidence at issue is favorable to the accused,
either because it is exculpatory or because it is impeaching; (2) the evidence was
suppressed by the government, either willfully or inadvertently; and (3) the defendant
was prejudiced. Id. at 281‐82.
The government concedes the first two prongs of the Brady test, and we
agree that they are met. We conclude, however, that Mathison failed to demonstrate
that he was prejudiced. Mathison was convicted only of possessing the gun with his
DNA on it, that is, the Taurus .45, and thus the evidence of Watsonʹs DNA on the other
gun ‐‐ as to which he was acquitted ‐‐ would not have changed this result. Moreover,
the jury was aware that there was DNA of other individuals on the guns, and still
convicted Mathison on the Taurus .45. Accordingly, we find no Brady violation.
II. Evidentiary Claims
Mathison raises several evidentiary claims regarding witness testimony.
This Court reviews a district courtʹs evidentiary rulings for abuse of discretion. United
States v. Mercado, 573 F.3d 138, 141 (2d Cir. 2009). ʺTo find such abuse, we must
conclude that the trial judgeʹs evidentiary rulings were arbitrary and irrational.ʺ United
States v. Paulino, 445 F.3d 211, 217 (2d Cir. 2006) (internal quotation marks omitted).
Even if a reviewing court finds error, a new trial is not required if the error was
harmless. See Mercado, 573 F.3d at 141. Upon review of the record, we find no abuse of
discretion in the district courtʹs evidentiary rulings.
III. Sentencing Claims
With respect to sentencing, Mathison argues that the district court erred
when: (1) it calculated his base offense level under United States Sentencing Guideline
§ 2K2.1(a)(4), finding that his prior conviction in New York for Robbery in the Second
Degree was a crime of violence; and (2) it applied sentencing enhancements under
U.S.S.G. § 2K2.1(b)(6)(B), based on its finding that Mathison shot Marshal, and
§ 2K2.1(b)(1)(A), based on its finding that Mathison possessed three guns, including the
Kel‐Tec that was the subject of dismissed Count Two.
We review sentencing decisions for procedural and substantive
reasonableness. See United States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008) (en banc);
United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir. 2008). We apply a ʺdeferential
abuse‐of‐discretionʺ standard to both procedural and substantive review. Cavera, 550
F.3d at 189 (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). We find procedural
error when a district court fails to calculate the Guidelines range, makes a mistake in its
Guidelines calculation, treats the Guidelines as mandatory, fails to consider the
§ 3553(a) factors, or rests its sentence on a ʺclearly erroneousʺ finding of fact. Id. at 190
(citing United States v. Crosby, 397 F.3d 103, 112 (2d Cir. 2005); Gall, 552 U.S. at 51). Facts
relevant to sentencing must be found by a preponderance of the evidence. United States
v. Salazar, 489 F.3d 555, 557 (2d Cir. 2007).
As to the first issue, this Court recently held in another case that New
York second degree robbery is indeed a crime of violence as a matter of law. See United
States v. Smith, 884 F.3d 437, 440‐41 (2d Cir. 2018). We thus conclude that the district
court correctly calculated Mathisonʹs base offense level.
As to the second issue, upon review of the record, we find that the district
court did not err in applying the sentencing enhancements. With respect to the
§ 2K2.1(b)(6)(B) enhancement, there was sufficient evidence in the record to support the
finding that Mathison shot Marshal ‐‐ the gun that Mathison was convicted of
possessing in Count Three was the gun with which Marshal was shot, and it was found
in Mathisonʹs possession a few days after the shooting. With respect to the
§ 2K2.1(b)(1)(A) enhancement, the district court did not abuse its discretion in
considering the suppressed Kel‐Tec 9mm handgun at sentencing as it took into account
the proper Fourth Amendment factors. See United States v. Tejada, 956 F.2d 1256, 1261‐
63 (2d Cir. 1992) (the district court may consider illegally seized evidence, but must
balance Fourth Amendment considerations). Accordingly, we reject the claim of
sentencing error.
. . .
We have considered Mathisonʹs remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the amended judgment of the district court.
FOR THE COURT: Catherine OʹHagan Wolfe, Clerk