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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-11600 Non-Argument Calendar ________________________
D.C. Docket No. 5:17-cr-00026-RH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL J. BAXTER,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Florida ________________________
(June 13, 2019)
Before MARCUS, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 18-11600 Date Filed: 06/13/2019 Page: 2 of 15
This case began when Michael Baxter, a Florida corrections officer, was
charged with one count of acting under the color of law and depriving an inmate,
Glover, of his right not to be subjected to cruel and unusual punishment while in
official custody, in violation of 18 U.S.C. § 242; and one count of falsification of
records, in violation of 18 U.S.C. § 1519. Baxter was tried by a jury, found not
guilty of the § 242 offense, but guilty of the § 1519 offense. He appeals his
conviction and 60-month sentence for falsification of records, in violation of 18
U.S.C. § 1519. Baxter raises four issues on appeal. First, he argues that the
district court erred in granting the government’s Batson1 challenge because it did
not present a prima facie case of racial motivation for the challenged peremptory
strike. Second, he argues that the district court abused its discretion in denying his
motion for a new trial because the jury’s guilty verdict was inconsistent with its
acquittal on the charged deprivation of Eighth Amendment rights. Third, he argues
that the district court erred in considering acquitted conduct at sentencing because
the government did not prove by a preponderance of the evidence that he used
excessive force against an inmate. Fourth, he argues that the district court abused
its discretion and imposed a substantively unreasonable above-guideline sentence
because it considered improper factors, weighed the 18 U.S.C. § 3553(a) factors
1 Batson v. Kentucky, 476 U.S. 79 (1986).
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unreasonably, and did not sufficiently explain its justification for the three-month
upward variance.
I.
In reviewing a Batson challenge, we give great deference to the district
court’s finding whether a prima facie case of discrimination existed. United States
v. Walker, 490 F.3d 1282, 1291 (11th Cir. 2007). We review the district court’s
findings regarding the actual motivation behind the challenged strike for clear
error. Id.
The Equal Protection Clause forbids a prosecutor from striking potential
jurors solely on account of their race, and the Supreme Court has extended that
restriction to strikes by defense counsel. Id. at 1290. In Batson, the Supreme
Court articulated a three-part test to evaluate the validity of challenges to
peremptory strikes: (1) the moving party must make a prima facie showing that a
peremptory challenge was exercised on the basis of race; (2) the non-moving party
must offer a race-neutral basis for striking the juror in question; and (3) the trial
court must determine whether the moving party has shown purposeful
discrimination. Id. at 1291.
The prima facie case determination is not to be based on numbers alone but
on the totality of the circumstances. United States v. Hill, 643 F.3d 807, 839 (11th
Cir. 2011). The district court should consider all relevant circumstances
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supporting the challenging party’s assertion of discrimination, including the
striking party’s pattern of striking venire members of a particular race, questions or
statements during voir dire that support an inference of discriminatory purpose, the
subject matter of the case being tried, the race of the defendant, and the racial
composition of the pool of the remaining potential jurors. United States v.
Robertson, 736 F.3d 1317, 1326 (11th Cir. 2013).
At the second step of the Batson inquiry, the striking party’s reason need not
be a good one so long as it is not discriminatory. Hill, 643 F.3d at 837. The reason
only needs to be plausible and not discriminatory, and may be superstitious, silly,
or trivial as long as it was race-neutral. Walker, 490 F.3d at 1291.
At the third step, the district court has great discretion to accept the striking
party’s race-neutral reason as the truth or to reject it as pretextual. Robertson, 736
F.3d at 1328. We recognize that the district court’s perception of the attorney’s
credibility is essential to determining whether the proffered reason was pretextual,
and the record does not always reflect all that the district court saw and heard.
Walker, 490 F.3d at 1293-94. Thus, we give great deference to the district court
because it is in a better position to make credibility decisions than we are as the
reviewing court. Id. at 1294. But the district court must focus on the genuineness
of the non-moving party’s proffered explanation rather than its reasonableness. Id.
In Walker, we found no error in the district court’s decision to reject the
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defendant’s peremptory strike of a potential juror based on his body language
when the district court emphasized that it found that the defendant’s stated reason
for the strike was not genuine. Id. at 1293 n.13, 1294. Specifically, the district
court found that the potential juror “ha[d] not demonstrated any body language that
[the court] could see” and the defendant did not identify any specific body
language that was “sufficient to persuade [the court] that the reason articulated for
[the juror’s] elimination was a race neutral reason.” Id. at 1293 n.13.
We apply harmless error review to a misapplication of Batson that results in
an otherwise qualified juror being seated. United States v. Williams, 731 F.3d
1222, 1236 (11th Cir. 2013). Under harmless error review, the government bears
the burden of showing that the error did not affect the defendant’s substantial
rights. Id.
Here, the district court did not clearly err in determining that Baxter’s
motive for striking Juror M was based on her race and disallowing it. Walker, 490
F.3d at 1291. The court properly determined that the government presented a
prima facie case of race-based discrimination. While Baxter argues that the
government did not show a prima facie case of race-based discrimination because
striking two out of three African Americans on the venire did not establish a
pattern of striking African American jurors, the prima facie case does not succeed
or fail based on numbers alone. See Hill, 643 F.3d at 839. The district court could
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infer that Baxter wanted to strike African American potential jurors because the
defendant was a white corrections officer, the victim (Glover) was a black inmate,
and the government’s theory of the case included allegations that Baxter’s use of
force was motivated by Glover’s impending interracial marriage and that Baxter
had used a racial slur when referring to the relationship. See Robertson, 736 F.3d
at 1326. And, as the government noted, Juror M had not given any responses that
would offer a facially race-neutral reason for using a peremptory strike. Thus,
based on the totality of the circumstances, this Court defers to the district court’s
prima facie case determination. It was within the district court’s sound discretion
to determine that Baxter’s explanation for the strike—that Juror M had exhibited
negative body language—was not genuine based on the court’s observation of
Juror M and its finding that she had not demonstrated negative body language. See
Walker, 490 F.3d at 1293-94, 1293 n.13. Further, the district court did not find
Baxter’s explanation that Juror M had stretched away, crossed her arms, and
appeared tight and negative unreasonable but found that it was a pretext for racial
discrimination instead of a genuine non-discriminatory reason. Walker, 490 F.3d
at 1294. Because the district court had an opportunity to observe Juror M and
evaluate Baxter’s attorney’s credibility, it did not clearly err in finding that
Baxter’s motivation for striking Juror M was actually because of her race and
properly disallowed the strike.
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II.
We review the denial of a motion for a new trial for an abuse of discretion.
United States v. Perez-Oliveros, 479 F.3d 779, 782 (11th Cir. 2007). The district
court has the discretion under Fed. R. Crim. P. 33 to grant a new trial “if the
interest of justice so requires.” United States v. Albury, 782 F.3d 1285, 1295 (11th
Cir. 2015) (quotation marks omitted). In considering the motion, the district court
may weigh the evidence and consider the credibility of witnesses. Id. But we will
only overturn the denial of a motion for a new trial if the evidence “preponderates
heavily against the verdict, such that it would be a miscarriage of justice to let the
verdict stand.” Id. (quotation marks and brackets omitted).
A jury’s verdicts are insulated from review on the ground that they are
inconsistent as long as there was sufficient evidence to support its finding of guilt.
Id. The jury is free to choose among reasonable constructions of the evidence in
reaching its guilty verdict. See United States v. Foster, 878 F.3d 1297, 1304 (11th
Cir. 2018). If the defendant testified at trial, the jury is free to disbelieve his
statements and consider them as substantive evidence of his guilt. United States v.
Shabazz, 887 F.3d 1204, 1220 (11th Cir. 2018).
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To prove a violation of 18 U.S.C. § 242, the government must present
evidence that establishes beyond a reasonable doubt that the defendant acted
(1) willfully and (2) under color of law (3) to deprive a person of rights protected
by the Constitution or laws of the United States. United States v. House, 684 F.3d
1173, 1198 (11th Cir. 2012). To prove that a defendant falsified records in
violation of 18 U.S.C. § 1519, the government must show that the defendant (1)
knowingly (2) altered, destroyed, mutilated, concealed, covered up, falsified, or
made a false entry in a record or document (3) with the intent to impede, obstruct,
or influence an investigation. See United States v. Hunt, 526 F.3d 739, 743 (11th
Cir. 2008); see also 18 U.S.C. § 1519.
Here, the district court did not abuse its discretion in denying Baxter’s
motion for a new trial. Notably, deprivation of a constitutional right under color of
law and falsification of records are distinct crimes with no overlapping elements,
so an acquittal on the first and a guilty verdict on the second are not inherently
inconsistent. Compare House, 684 F.3d at 1198 with Hunt, 526 F.3d at 743. Even
if the jury acquitted Baxter on Count One because it believed his version of events,
it could still find that he had knowingly fabricated some portion of his report to
influence the use-of-force investigation. Hunt, 526 F.3d at 743. It is equally
possible that the jury did not believe Baxter’s version of events but found that the
government had not proven one or more elements of the excessive force claim
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beyond a reasonable doubt. See House, 684 F.3d at 1198. Nonetheless, even if the
jury’s verdicts were inconsistent, they were insulated from review on that basis
because the guilty verdict on Count Two was supported by sufficient evidence.
See Albury, 782 F.3d at 1295. Baxter’s report stated that Glover advanced toward
Baxter and “forcefully” struck his head against Baxter’s, but Silcox testified that
Baxter approached Glover and Glover did not “head-butt” Baxter, but their heads
simply “collided.” The report also stated that Baxter punched Glover when he
“charged” towards him and kicked him in the head and shoulders in response to
continued resistance, but witnesses testified that Baxter kicked Glover in the face,
Glover did not resist while on the floor, and Silcox was able to subdue Glover with
a chokehold. While testimony from other witnesses supported the statements in
the report, the jury was free to choose among reasonable constructions of the
evidence in reaching its conclusion that at least some of the statements in the report
were false. See Foster, 878 F.3d at 1304. In particular, the jury was free to
disbelieve Baxter’s trial testimony and consider it as substantive evidence that he
had falsified records. See Shabazz, 887 F.3d at 1220. Moreover, this evidence does
not demonstrate that it would be a miscarriage of justice to let the verdict stand.
Id.
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III.
We review de novo the district court’s interpretation and application of the
Sentencing Guidelines and constitutional challenges to a federal sentence. United
States v. Maddox, 803 F.3d 1215, 1220 (11th Cir. 2015). We review the court’s
factual findings at sentencing for clear error. Id.
The Supreme Court has held that a district court may consider at sentencing
any conduct underlying the defendant’s acquitted charge so long as the government
proves the occurrence of that conduct by a preponderance of the evidence. United
States v. Watts, 519 U.S. 148, 157 (1997). We added that the resulting sentence
must fall below the maximum statutory penalty authorized by the jury’s verdict.
Maddox, 803 F.3d at 1220. Acquitted conduct may be considered at sentencing
because an acquittal does not mean that the defendant was innocent of the charged
conduct but only that the jury found that the conduct was not proven beyond a
reasonable doubt. Id. at 1221. Moreover, the jury’s general not-guilty verdict does
not reveal whether it rejected any particular fact, so facts underlying the acquitted
charge may still be proven at sentencing by a preponderance of the evidence. See
Here, as an initial matter, Baxter argues that Watts should be overruled,
citing to several district court opinions from other circuits disagreeing with Watts’s
holding that consideration of acquitted conduct may be considered at sentencing.
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Because Watts remains binding precedent, the district court did not violate
Baxter’s constitutional rights by considering conduct underlying the acquitted
excessive force charge as long as the conduct was proven by a preponderance of
the evidence and the resulting sentence was below the statutory maximum. See
Watts, 519 U.S. at 157; Maddox, 803 F.3d at 1220.
First, the district court did not err in finding that the government proved by a
preponderance of the evidence that Baxter used excessive force against Glover.
See Maddox, 803 F.3d at 1220. While evidence showed that Glover raised his
voice, was “flailing around,” and was talking with his hands, witness accounts
varied regarding whether Glover headbutted Baxter or if their heads simply
collided at some point. But Silcox, who was present for the entire incident, and
several other witnesses testified that they did not observe Glover strike, punch,
kick, or grab Baxter at any point or, at least, when he was on the ground.
Witnesses consistently testified, however, that Baxter punched Glover in the face
twice and kicked Glover in the head or face twice while he was lying on the
ground. While Baxter testified that he kicked Glover to overcome his physical
resistance and grabbing, other witnesses testified that Glover may have reached for
Baxter but never grabbed him. Accordingly, the district court did not clearly err in
finding that Baxter did not have a legitimate reason for kicking Glover when he
was on the ground. In addition, Baxter’s 60-month sentence was well below the
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statutory maximum of 240 months’ imprisonment. See Maddox, 803 F.3d at 1220.
Thus, the district court did not err in considering the acquitted use-of-force conduct
at sentencing.
IV.
We review the substantive reasonableness of a sentence under the deferential
abuse-of-discretion standard of review. Gall v. United States, 552 U.S. 38, 41
(2007). The party who challenges the sentence bears the burden of showing that
the sentence was unreasonable considering the record and the § 3553(a) factors.
United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
The district court must impose “a sentence sufficient, but not greater than
necessary, to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including
the need to reflect the seriousness of the crime, promote respect for the law,
provide just punishment, deter criminal conduct, and protect the public from the
defendant’s future criminal conduct. 18 U.S.C. § 3553(a), (a)(2)(A)-(C); see also
United States v. Irey, 612 F.3d 1160, 1196 (11th Cir. 2010) (en banc). The court
must also consider “the nature and circumstances of the offense and the history and
characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). In considering these
factors, the district court does not have to discuss each one individually but must
acknowledge its consideration of the defendant’s arguments and the § 3553(a)
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factors as a whole. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.
2008).
We do not presume that a sentence outside the guideline range is
unreasonable, but we must consider the extent of any variance and “give due
deference to the district court’s decision that the § 3553(a) factors, on a whole,
justify the extent of the variance.” United States v. Turner, 626 F.3d 566, 573
(11th Cir. 2010) (quotation marks omitted). When the district court decides after
“serious consideration” that a variance is appropriate based on the § 3553(a)
factors, it should explain that variance “with sufficient justifications.” Gall, 552
U.S. at 46-47. The court’s justification must be “compelling enough to support the
degree of the variance and complete enough to allow meaningful appellate
review,” but an “extraordinary justification” is not required for a sentence outside
the guideline range. United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009)
(quotation marks omitted).
We will only remand for resentencing when we are left with the definite and
firm conviction that the district court committed a clear error of judgment in
weighing the § 3553(a) factors by arriving at a sentence that lies outside the range
of reasonable sentences dictated by the facts of the case. United States v. Pugh,
515 F.3d 1179, 1191 (11th Cir. 2008). The weight to be given each § 3553(a)
factor is within the district court’s sound discretion. United States v. Kuhlman, 711
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F.3d 1321, 1327 (11th Cir. 2013). However, a district court can abuse its
discretion when it (1) fails to consider relevant factors that were due significant
weight, (2) gives significant weight to an improper or irrelevant factor, or
(3) commits a clear error of judgment by balancing the proper factors
unreasonably. Id. at 1326-27.
Here, the district court’s 3-month upward variance to a 60-month sentence
was substantively reasonable. First, the district court considered all the relevant
§ 3553(a) factors presented at sentencing. See Kuhlman, 711 F.3d at 1326;
Gonzalez, 550 F.3d at 1324. Contrary to Baxter’s argument, it considered
mitigating factors, such as Baxter’s personal history and characteristics, stating that
he had an otherwise “exemplary” record and this was an isolated event. 18 U.S.C.
§ 3553(a)(1). It also considered Baxter’s support of his family, including his
children. 18 U.S.C. § 3553(a)(l). But the court balanced these mitigating factors
against the nature and circumstances of the offense, finding that it was an
“egregious event” and that Baxter had used unnecessary and excessive force
against Glover, causing serious injury. 18 U.S.C. § 3553(a)(1). Balancing all of
the relevant factors, it concluded that a term of imprisonment was warranted. See
Kuhlman, 711 F.3d at 1326. And while Baxter repeats that consideration of
conduct underlying the acquitted excessive force charge was improper, that
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argument fails for the reasons discussed above. Thus, the district court did not
abuse its discretion in considering and weighing the relevant § 3553(a) factors.
In addition, the district court sufficiently explained its three-month upward
variance based on its consideration of the § 3553(a) factors. Turner, 626 F.3d at
573. It emphasized the need for general deterrence within the department of
corrections regarding false reports about the use of force as the most compelling
reason for the upward variance. See Shaw, 560 F.3d 1230, 1238; 18 U.S.C.
§ 3553(a)(2)(B). Further, it considered the government’s argument that an above-
guideline sentence would promote respect for the law, particularly in light of
Baxter’s role as a high-ranking corrections officer. 18 U.S.C. § 3553(a)(2)(A);
Turner, 626 F.3d at 573. Because the court properly weighed the § 3553(a) factors
and adequately explained its reasoning for the three-month upward variance, it did
not commit a clear error of judgment in fashioning its sentence. Pugh, 515 F.3d at
1191.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.