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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-10696 ________________________
D.C. Docket No. 0:17-cr-60181-WPD-1
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
versus
TERRENCE LEONARD MATHIS,
Defendant - Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
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Before TJOFLAT, MARTIN, and TRAXLER,* Circuit Judges.
TRAXLER, Circuit Judge:
Terrence Mathis was convicted by a jury of two counts of unlawful
possession of ammunition by a felon. See 18 U.S.C. § 922(g)(1). The district
court sentenced Mathis to a 120-month term of imprisonment on each count and
ordered them to be served consecutively. Mathis appeals, challenging his
convictions and sentence. For the reasons explained below, we affirm.
I.
The charges against Mathis stem from the shooting of Karl Wolfer. Wolfer
lived with his wife Lisa in a condominium in Lighthouse Point, Florida, and
operated a liquor store in Lauderdale Lakes, Florida. The store was open until 1:00
a.m. on weekdays and until 2:30 a.m. on Fridays and Saturdays.
On Thursday, July 6, 2017, Wolfer closed the liquor store shortly after 1:00
a.m. and drove to a 24-hour Walmart a couple of miles away from his home.
Wolfer called Lisa shortly after 2:00 a.m. and told her he had stopped at Walmart
to buy groceries and was on his way home. When Wolfer did not return home,
Lisa tried unsuccessfully to reach him on his cell phone. Around 4 a.m., Lisa went
out to the condominium parking lot and saw Wolfer’s van. Wolfer was inside the
* Honorable William B. Traxler, Jr., United States Circuit Judge for the Fourth Circuit, sitting by designation.
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van and the engine was running. Lisa initially believed Wolfer was asleep; she
began calling for help when she was unable to wake him.
When the police arrived on the scene, they determined that Wolfer had been
shot and was dead. Two spent 9-mm cartridge casings were found on the ground
next to broken glass from the van’s window. The casings bore a headstamp
indicating that they were manufactured by Starline Brass in Sedalia, Missouri. The
ammunition was relatively rare, as the detective on the scene of the shooting had
not previously seen that headstamp in his 26-year career.
A resident of the condominium complex told the officers that she had been
awake at around 2 a.m. and let her cat out. At around 2:10 a.m., she heard two
loud noises in quick succession. She initially thought the first noise might have
been a cherry bomb, but after the second one, she realized they were gunshots.
The city of Lighthouse Point has 44 license-plate recognition cameras “set
up strategically throughout the city” in an effort to monitor “every entrance and
exit into the city.” The cameras take pictures of license plates and the back of each
passing vehicle, and the information captured by the system is fed into a searchable
database. Officers investigating Wolfer’s death ran the plate number from
Wolfer’s van through the Lighthouse Point database to determine the route he took
and whether he had been followed. The officers also reviewed videos captured by
security cameras at Wolfer’s liquor store, a neighboring restaurant, and Walmart.
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Video from the liquor store showed a man wearing a hooded Yankees
sweatshirt get out of a Chevrolet Impala with a sunroof and spoiler, enter the store
and make a purchase, and drive out of the parking lot at 12:50 a.m. The Impala
returned to the parking lot just before 1 a.m. Wolfer left the store in his van at
about 1:10 a.m., heading east on 19th Street. The Impala followed behind.
Video from Walmart showed Wolfer’s van arriving at 1:44 a.m. The Impala
entered the Walmart parking lot a minute later. Wolfer entered the store at 1:51
a.m. While Wolfer shopped, the Impala drove around the parking lot a bit and then
settled into a space that had a line of sight to Wolfer’s van. Wolfer returned to his
van at 2:06 a.m. and left the parking lot; the Impala pulled out a minute later and
proceeded in the same direction as Wolfer’s van.
Wolfer’s van was captured twice by the Lighthouse Point camera system.
Both times, the Impala was seen following about 20 seconds behind the van. The
system captured the Impala driving in a direction away from Wolfer’s
condominium at 2:17 a.m. The Impala license plate number had not been captured
by the Lighthouse Point camera system in the previous 18 months. Neither the
Lighthouse Point system nor the surveillance videos captured images of the driver
of the Impala after it left the liquor store, and the investigating officers could not
ascertain if there were any passengers in the car.
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The license plate on the Impala was registered to Mathis at an address of
3030 N.W. 187th Street, Miami Gardens, Florida. Law enforcement officials
obtained a search warrant for Mathis’s DNA and, on July 15, 2017, conducted a
traffic stop of the Impala as it was being driven by Mathis. The officers seized a
cell phone from the car, as well as documents addressed to Mathis at the 187th
Street address. Mathis was taken to the Broward County Sheriff’s office, where he
was fingerprinted and a DNA sample was taken.
Law enforcement officials searched the 187th Street residence that same
day. During the search of Mathis’s bedroom, they found a single, live round of
9mm ammunition. The ammunition bore the same manufacturing marks as the
spent casings found at the scene of the shooting.
Data retrieved from Mathis’s cell phone showed that in the early morning
hours after Wolfer’s shooting, someone using the phone conducted multiple
Internet searches looking for breaking local news about a shooting and for
information about the cost of changing a license plate. More Internet searches
were conducted later that afternoon and in the following days, and the person using
the phone accessed multiple stories about Wolfer’s shooting.
Mathis’s DNA was found on the intact ammunition recovered from his
bedroom. Forensic analysis indicated that the spent casings found at the scene of
the shooting had been fired from the same gun. The intact round and one of the
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spent casings had identical marks on them, which indicated that they had at some
point been placed in the same magazine or firearm.
Mathis was interviewed at the Sheriff’s office after the July 15 traffic stop.
Detective Ricky Libman advised Mathis of his rights under Miranda v. Arizona,
384 U.S. 436 (1966), and Mathis signed a form waiving his rights. During the
interview, Mathis initially denied having been in the vicinity of Lighthouse Point
on July 7. However, after being shown a surveillance picture of the man in the
Yankees sweatshirt in Wolfer’s liquor store, Mathis admitted that he was the
person in the photograph and that he had driven his car to the liquor store. He
explained that a pimp and a prostitute were in the car with him, and that he and the
prostitute engaged in sexual activity after leaving the liquor store. He claimed that
he dropped them off and then went home for the rest of the night. Mathis also told
Libman that he had his cell phone with him that night.
Mathis was charged with two counts of possession of ammunition by a
convicted felon. See 18 U.S.C. § 922(g)(1). Count one charged Mathis with
possessing the ammunition found at the scene of Wolfer’s shooting. Count two
charged him with possessing the live round found in his bedroom. The jury
convicted Mathis of both counts. The district court imposed consecutive sentences
of 120 months’ imprisonment on each count, for a total sentence of 240 months.
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II.
Mathis first challenges the district court’s denial of his motion to suppress
statements he made during the July 15 interview at the Sheriff’s office. In his
suppression motion, Mathis argued that he repeatedly asked for an attorney during
the interview, but the interviewing officers ignored his requests and continued to
interrogate him. Because the interrogation did not cease after he requested an
attorney, Mathis sought suppression of his statements and any physical evidence
obtained as a result of those statements. The district court denied the motion,
concluding that Mathis had not unambiguously invoked his right to counsel.
Mathis appeals, arguing that he unambiguously requested counsel multiple times
during the interview.
“A motion to suppress evidence presents a mixed question of law and fact. . .
. [W]e review the district court’s factual findings for clear error, and its
application of the law to the facts de novo.” United States v. Lewis, 674 F.3d 1298,
1302–03 (11th Cir. 2012) (internal quotation marks omitted).
A.
In order to protect the Fifth Amendment right against self-incrimination, the
Supreme Court has held that the police must explain the contours of the Fifth
Amendment rights and obtain a waiver of those rights before statements made
during custodial interrogation can be admitted at trial. See Miranda, 384 U.S. at
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444-45. If the suspect requests an attorney, the interrogation must cease until the
suspect has had a chance to confer with counsel, unless the suspect himself
initiates further communication with the police. See Edwards v. Arizona, 451 U.S.
477, 484-85 (1981). The Edwards rule, however, applies only when the suspect
clearly and unequivocally invokes the right to counsel; an ambiguous or equivocal
request does not obligate the police to stop the interrogation. See Davis v. United
States, 512 U.S. 452, 459 (1994).
There is no dispute that Mathis was subject to custodial interrogation and
that he made multiple references to an attorney during the course of the interview.
The only question on appeal is whether Mathis made any unambiguous requests
for an attorney that were ignored by the interviewing officers.
B.
The interview (which was recorded) took place on Saturday, July 15, at the
Broward County Sheriff’s West Park district office. Detective Ricky Libman
conducted the bulk of the interview. Almost immediately after Libman entered the
room, Mathis asked (twice) if he needed an attorney. Libman responded that he
could not advise Mathis about what Mathis needed to do, and Libman continued to
ask Mathis questions. Libman explained to Mathis that he had a warrant
authorizing him to take his fingerprints and obtain a DNA sample and began
explaining Mathis’s rights under Miranda. After being advised of his right to
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counsel, Mathis asked, “So I can get one now?” Libman responded that he could,
but that the attorney would not “show up here.” Libman continued explaining
Mathis’s rights to him, and Mathis ultimately signed a form waiving his rights.
About 90 minutes into the ensuing interrogation, Mathis said, “Listen, can I
ask you a question. . . . All right, in all honesty, can I have . . . a lawyer before I do
DNA?” Libman responded, “No. Because the judge signed the order on the DNA.
It’s done. The lawyer . . . has nothing to do with DNA.”
An hour later, after Mathis’s fingerprints and DNA sample had been taken,
Detective Barbara Dyer entered the interview room and asked Mathis for his
consent to search his cell phone that had been seized from the car after the traffic
stop. Mathis responded, “I think I should get a lawyer. I mean, I, it’s not that, you
know what I mean, like I’ve got something to hide. But I’m just, I’ve been through
something already before this.” When Dyer responded that they would then keep
the phone while waiting for a search warrant, Mathis asked, “what if I give you all
the consent? . . . . I mean, you all gonna do it anyway, right?” Dyer explained to
Mathis he could consent to the search and get the phone back that day, or they
would keep the phone while they sought a search warrant, which, as it was the
weekend, would likely take some time. After Dyer tried to explain to Mathis that
they would be looking for data contained in the phone that would help “prove or
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disprove who killed someone,” and Mathis expressed his confusion, the following
discussion took place:
Mathis: I don’t know what I’m supposed to do. I think I should ask a lawyer first because I don’t know what I should do. Like, I really don’t. I’m . . . just being honest.
Dyer: You don’t have to sign the form. Not a problem. Mathis: I mean, can I, can I like, get a lawyer now?
Dyer: No. Not this very second. . . . We’re not calling a lawyer and bringing you a lawyer. So since you don’t want to, and you’re hesitant, that’s fine. And I understand your position. I’m gonna go ahead . . . . Mathis: No, I’m not saying I don’t want to. I’m just saying like I’d rather like a lawyer here now like . . . . Dyer: We’re not calling a lawyer here for you. Plus it’s Saturday. It’s Saturday. So do you have a lawyer on retainer that you’re just gonna call up and go, you know, I need somebody to sign up, even though, you know what I mean? Mathis: No, not really [unintelligible]. What I’m saying, all right, so, if I do it today you all give me my phone back today?
Dyer: Yeah.
Mathis: Oh, okay, I mean, no problem.
After this conversation, Mathis signed a form consenting to a search of his
cell phone, and the questioning continued. After taking several breaks, Detective
Libman re-entered the room and began confronting Mathis with information
obtained from his cell phone. Libman told Mathis that he believed Mathis was
trying to protect his brother, and he urged Mathis to tell the truth. Mathis then
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said, “Yeah, I know, but, I need, I wanna get a lawyer first, before, you know,
cause . . . .” At that point, Libman stopped questioning Mathis and left the
interview room. Mathis was released later that day.
C.
Determining whether a defendant has “actually invoked his right to counsel .
. . . is an objective inquiry.” Davis, 512 U.S. at 458-59.
Invocation of the Miranda right to counsel requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney. But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning. Id. at 459 (citation and internal quotation marks omitted). “Although a suspect
need not speak with the discrimination of an Oxford don, he must articulate his
desire to have counsel present sufficiently clearly that a reasonable police officer in
the circumstances would understand the statement to be a request for an attorney.”
Id. (citation and internal quotation marks omitted). “If the statement fails to meet
the requisite level of clarity, Edwards does not require that the officers stop
questioning the suspect.” Id.
While it is clear from the conversations quoted above that Mathis was
thinking about an attorney during the interview, we nonetheless agree with the
district court that only Mathis’s last statement was an unambiguous invocation of
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his right to counsel. Mathis’s early statements asking if he needed an attorney or if
he could have an attorney before giving the DNA sample can reasonably be
understood as requests for advice and information rather than clear requests for
counsel.
Mathis’s statements to Detective Dyer after she asked for his consent to
search his cell phone come closer to requests for counsel, but they still are not
unambiguous, unequivocal requests for an attorney. See Davis, 512 U.S. at 459
(“[A] statement either is such an [unambiguous] assertion of the right to counsel or
it is not.” (internal quotation marks omitted)). This court has previously held that a
defendant unequivocally requested counsel when he said, “I think I should call my
lawyer.” Cannady v. Dugger, 931 F.2d 752, 755 (11th Cir. 1991). While Mathis
did use similar language, he used the language as part of longer statements that
muddied things and made his intent less than clear. Mathis’s statement that “I think
I should ask a lawyer first because I don’t know what I should do,” is not an
outright request for counsel. Moreover, he followed up by asking if he could “get
a lawyer now,” a statement that can reasonably be understood as asking about the
logistics of when he would see an attorney if he were to request one. And while
Mathis’s statement that “I’d rather like a lawyer here now,” suggests that he might
be interested in talking to an attorney before proceeding, Mathis immediately
changed course after Dyer told him that they did not have an attorney on call who
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would come to the Sheriff’s office on a weekend. In our view, a reasonable officer
considering these statements together and in context would have understood, at
most, that Mathis might be asking for an attorney. Nonetheless, the mere
possibility that Mathis was requesting counsel is not enough to require an end to
the questioning. See Davis, 512 U.S. at 459 (“[I]f a suspect makes a reference to
an attorney that is ambiguous or equivocal in that a reasonable officer in light of
the circumstances would have understood only that the suspect might be invoking
the right to counsel, our precedents do not require the cessation of questioning.”).
To the extent that Mathis believes the officers should have endeavored to
clarify whether he was in fact invoking his right to counsel, their failure to do so
does not require suppression of his statements. As the Supreme Court explained in
Davis,
when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney. . . . Clarifying questions help protect the rights of the suspect by ensuring that he gets an attorney if he wants one, and will minimize the chance of a confession being suppressed due to subsequent judicial second-guessing as to the meaning of the suspect’s statement regarding counsel. But we decline to adopt a rule requiring officers to ask clarifying questions. If the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.
Id. at 461-62 (emphasis added). Accordingly, we conclude that only Mathis’s statement to Detective Dyer
that “I need, I wanna get a lawyer first” was an unambiguous invocation of his
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right to counsel. Because Dyer terminated the interview at that point and did not
further interrogate Mathis, there was no Edwards violation and the district court
properly denied the motion to suppress.
III.
Mathis next challenges the district court’s decision to admit evidence of the
Wolfer shooting under Rule 404(b) of the Federal Rules of Evidence. We review
the district court’s evidentiary ruling under the deferential abuse-of-discretion
standard. See, e.g., United States v. Frediani, 790 F.3d 1196, 1199-1200 (11th Cir.
2015).
Mathis filed a motion in limine seeking to exclude the evidence under Rule
404(b), which provides that “[e]vidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.” Fed. R. Evid.
404(b)(1). The government contended that the evidence was intrinsic to the
charged crime and therefore outside the scope of Rule 404. See United States v.
McNair, 605 F.3d 1152, 1203 (11th Cir. 2010) (“Rule 404(b) does not exclude
evidence that is inextricably intertwined with evidence of the charged offense.”
(internal quotation marks omitted)). The government also argued that, if Rule
404(b) applied, the evidence was admissible as proof of “motive, opportunity,
intent, preparation, plan, knowledge, identity, [or] absence of mistake.” Fed. R.
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Evid. 404(b)(2). The district court denied the motion and held that evidence of
Wolfer’s murder was admissible because it was “inextricably intertwined with the
evidence proving both counts of possession of ammunition by a convicted felon.”
Mathis presses this argument on appeal. He argues that the evidence was
not sufficient to connect the Wolfer evidence to the § 922(g) counts and that the
Wolfer evidence therefore was not intrinsic to the charged offenses. Mathis
contends that the Wolfer evidence was offered only to show his criminal
propensity, which is prohibited by Rule 404. We disagree.
“The admissibility of evidence of uncharged conduct depends on whether
the evidence is extrinsic or intrinsic to the charged offense.” United States v.
Shabazz, 887 F.3d 1204, 1216 (11th Cir. 2018). Intrinsic evidence of uncharged
bad conduct is “outside the scope of Rule 404(b),” United States v. Ford, 784 F.3d
1386, 1394 (11th Cir. 2015), and is therefore admissible “as long as it satisfies the
requirements of Rule 403,” Shabazz, 887 F.3d at 1216. Extrinsic bad-conduct
evidence, however, is inadmissible under Rule 404(b) “unless the evidence is
offered for some purpose other than proving the defendant’s character.” Id. We
agree with the district court that the Wolfer evidence was intrinsic to the charged
offenses.
Evidence is intrinsic to the charged offense if it is “(1) an uncharged offense
which arose out of the same transaction or series of transactions as the charged
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offenses, (2) necessary to complete the story of the crime, or (3) inextricably
intertwined with the evidence regarding the charged offenses.” Id. (internal
quotation marks omitted). The Wolfer evidence arose out of the same events
giving rise to the first § 922(g) count, as the two cartridge casings Mathis was
charged with possessing were the casings found at the scene of the Wolfer murder.
The Wolfer evidence was necessary to tell the story of the charged offenses, as the
recovery of the spent casings could not have been explained without discussion of
the parking-lot shooting of Wolfer in his van. The story of the Wolfer shooting,
including the evidence of Mathis’s car following Wolfer’s van all the way from the
liquor store, to the Walmart parking lot, and then towards Wolfer’s home, was
necessary to explain to the jury how the police connected Mathis to the casings
found at the scene. That story was also necessary to explain why the police
obtained a warrant to search Mathis’s room, where they found the intact
ammunition forming the basis of count two of the indictment. The evidence of the
Wolfer shooting was thus “linked in time and circumstances with the charged
crime [and] form[ed] an integral and natural part of an account of the crime to
complete the story of the crime for the jury.” McNair, 605 F.3d at 1203 (internal
quotation marks omitted).
Because the Wolfer evidence is intrinsic to the charged offenses, the only
remaining question is whether Rule 403 barred its admission. Under Rule 403, the
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district court may exclude otherwise relevant evidence “if its probative value is
substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
Mathis contends that the evidence of Wolfer’s murder was unduly
prejudicial and should have been excluded under Rule 403 because there was no
evidence that Mathis committed or was involved in the murder. We disagree.
Mathis’s assertion that the evidence was insufficient to connect him to the
murder borders on frivolous. Video from security cameras and Lighthouse Point’s
license-plate-camera system showed Mathis’s car at Wolfer’s liquor store shortly
before closing. His car followed Wolfer’s van from the liquor store to Walmart
and remained in the parking lot while Wolfer shopped. When Wolfer left Walmart
and headed for home, Mathis’s car followed right behind. The Lighthouse Point
camera system showed the car driving out of town shortly after a witness heard
gunshots in the condominium parking lot. Spent casings of an unusual brand of
ammunition were found at the scene of the shooting, and an intact round of the
same brand of ammunition was found in Mathis’s bedroom. Markings on the spent
casings and the intact round indicated that they had been housed in the same
magazine or firearm. In the hours after the shooting, multiple internet searches
were conducted on Mathis’s cell phone looking for information about recent
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shootings in Broward County and how to obtain a new Florida license plate. This
evidence was more than sufficient to connect Mathis to the Wolfer shooting and,
ultimately, to the ammunition giving rise to the § 922(g) charges.
While the evidence of the Wolfer shooting was certainly prejudicial,
“relevant evidence [in a criminal trial] is inherently prejudicial; it is only when
unfair prejudice substantially outweighs probative value that the rule permits
exclusion.” United States v. King, 713 F.2d 627, 631 (11th Cir. 1983). As this
court has explained, “Rule 403 is an extraordinary remedy that must be used
sparingly because it results in the exclusion of concededly probative evidence.”
United States v. US Infrastructure, Inc., 576 F.3d 1195, 1211 (11th Cir. 2009).
Thus, in cases where this Court has found other acts evidence inextricably intertwined with the crimes charged, the Court has refused to find that the evidence should nonetheless be excluded as unduly prejudicial, even when the other acts included evidence of violent crimes such as bank robbery, murder and arson. . . . [T]he test under Rule 403 is whether the other acts evidence was dragged in by the heels solely for prejudicial impact. Id. (internal quotation marks omitted).
As indicated above, the Wolfer evidence was not dragged into this case
solely for its prejudicial effect; the evidence was necessary to tell the story of the
crimes for which Mathis was on trial. Under these circumstances, the district court
did not abuse its discretion by rejecting Mathis’s claim that the Wolfer evidence
should be excluded under Rule 403. See Shabazz, 887 F.3d at 1217 (holding that
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Rule 403 did not require exclusion of intrinsic evidence of uncharged bad
conduct); McNair, 605 F.3d at 1206 (“Because the other acts evidence was
inextricably intertwined with the charged crimes, it was not excludable under Rule
403.”).
IV.
Mathis also contends that the government’s evidence was not sufficient to
support his convictions and that the district court therefore should have granted his
motion for judgment of acquittal. “We review de novo a district court’s denial of a
motion for judgment of acquittal. . . . , view[ing] the evidence in the light most
favorable to the government, drawing all reasonable inferences and resolving all
credibility evaluations in favor of the jury’s verdict.” United States v. Carthen,
906 F.3d 1315, 1319 (11th Cir. 2018).
According to Mathis, the government failed to prove that Mathis had
knowledge of or possessed the casings found at the scene, that he participated in
the shooting, or even that he was in the car that followed Wolfer’s van. As to the
intact round found in his room, Mathis contends the government failed to prove
that he had knowledge of or possessed the ammunition. These arguments are
without merit.
As we have already recounted, the government’s evidence showed Mathis’s
car following Wolfer’s van from the liquor store to Walmart and towards Wolfer’s
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home. The markings on the unusual ammunition casings found at the shooting
matched the markings of the intact round found in Mathis’s room, and Mathis’s
DNA was present on the ammunition found in his room. Internet searches were
conducted on Mathis’s cell phone in the hours after the shooting looking for
information about recent shootings in the area. Although this evidence does not
directly establish Mathis’s presence in the car or involvement in the shooting,
Mathis himself told the officers that he was in his car and in possession of his cell
phone on the night of the murder. The evidence was thus sufficient to permit a
reasonable jury to conclude that it was Mathis driving his own car and using his
own cell phone, and to conclude that Mathis possessed the ammunition used to kill
Wolfer and the ammunition found in his room bearing his DNA.
Accordingly, we conclude that the government’s evidence was sufficient to
support the jury’s verdict and that the district court therefore properly denied
Mathis’s motion for judgment of acquittal. See Carthen, 906 F.3d at 1319 (“To
uphold the denial of a motion for judgment of acquittal, we need only determine
that a reasonable fact-finder could conclude that the evidence established the
defendant’s guilt beyond a reasonable doubt.” (internal quotation marks and
brackets omitted)).
20 Case: 18-10696 Date Filed: 08/16/2019 Page: 21 of 26
V.
Mathis also appeals his sentence, challenging the procedural and substantive
reasonableness of the 240-month sentence imposed by the district court. We
review the reasonableness of a sentence under a deferential abuse-of-discretion
standard. See United States v. Cubero, 754 F.3d 888, 892 (11th Cir. 2014).
Section 2K2.1 of the Sentencing Guidelines sets a base offense level of 20
for defendants convicted under § 922(g) who have one prior conviction for a crime
of violence or controlled substance offense. See U.S.S.G. § 2K2.1(a)(4)(A).
However, if the defendant used or possessed the firearm or ammunition in
connection with another offense that resulted in death, the district court is directed
to apply the “most analogous offense guideline” for homicide offenses, if
application of that guideline yields a higher offense level. U.S.S.G. §
2K2.1(c)(1)(B).
The presentence report recommended application of the first-degree murder
guideline, U.S.S.G. § 2A1.1, which “applies in cases of premeditated killing” and
carries a base offense level of 43. U.S.S.G. § 2A1.1, comment. (n.1). The district
court agreed that § 2A1.1 was the most analogous guideline. The court explained:
I heard a first-degree murder case. I mean he was charged in federal court with possession of ammunition, but the case was a first-degree murder case. And that’s what I think the government proved. And I think that’s what the jury found Mr. Mathis guilty of. I don’t think the 21 Case: 18-10696 Date Filed: 08/16/2019 Page: 22 of 26
jury would have come back with a guilty verdict unless they believed that he was there either assisting the shooter or being the shooter himself. The circumstantial evidence in this case was very, very strong. You know, they pretty much tracked Mr. Mathis in his car all the way up to the shooting and away from it. His actions afterwards were consistent with someone who committed the crime. The same type of spent ammunition is found in his bedroom afterwards. I think it was a very strong circumstantial evidence case.
The Guidelines recommend a life sentence for a defendant with a total
offense level of 43. However, because § 922(g) offenses carry a statutory
maximum sentence of 10 years, the advisory Guideline sentence for Mathis was a
total sentence of 240 months. See U.S.S.G. § 5G1.1(a) (“Where the statutorily
authorized maximum sentence is less than the minimum of the applicable guideline
range, the statutorily authorized maximum sentence shall be the guideline
sentence.”); id. § 5G1.2(d) (“If the sentence imposed on the count carrying the
highest statutory maximum is less than the total punishment, then the sentence
imposed on one or more of the other counts shall run consecutively, but only to the
extent necessary to produce a combined sentence equal to the total punishment.”).
The district court sentenced Mathis to 120 months’ imprisonment on each count
and ordered the sentences to be served consecutively, for a total sentence of 240
months.
22 Case: 18-10696 Date Filed: 08/16/2019 Page: 23 of 26
We turn first to the question of procedural reasonableness. A sentence is
procedurally unreasonable if, inter alia, the district court “improperly calculates
the Guidelines range . . . [or] selects a sentence based on clearly erroneous facts.”
United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008) (per curiam).
Mathis contends that the district court erred by cross-referencing the first-degree
murder guideline when calculating Mathis’s base offense level. We disagree.
“We review a district court’s interpretation and application of the Sentencing
Guidelines de novo but accept the court’s factual findings unless they are clearly
erroneous.” Ford, 784 F.3d at 1396. The district court’s factual determination that
Mathis was involved in Wolfer’s murder is not clearly erroneous.
While Mathis again insists that “there was no nexus between Mr. Mathis’s
conviction for possession of ammunition and the homicide,” that argument is no
more persuasive here than it was in Mathis’s challenges to his conviction. As we
have already explained, the government proved Mathis’s possession of the
ammunition through evidence of Wolfer’s murder -- Mathis’s car was tracked from
the liquor store to Wolfer’s home; spent casings from an unusual brand of
ammunition were found at the scene of the shooting and matched an intact round
found in Mathis’s bedroom. That evidence was sufficient to support the jury’s
determination that Mathis possessed the ammunition found at the scene of the
23 Case: 18-10696 Date Filed: 08/16/2019 Page: 24 of 26
shooting and in his bedroom, and it is also sufficient to support the district court’s
determination that Mathis used the ammunition in the premeditated killing of Karl
Wolfer. See United States v. Ellisor, 522 F.3d 1255, 1273 n.25 (11th Cir. 2008)
(explaining that a sentencing court’s factual findings may be based on “evidence
heard during trial” (internal quotation marks omitted)). The district court therefore
did not err by cross-referencing the first-degree murder guideline, and we reject
Mathis’s claim that his sentence was procedurally unreasonable.
Mathis also challenges the substantive reasonableness of his sentence. “The
party challenging a sentence has the burden of showing that the sentence is
unreasonable in light of the entire record, the § 3553(a) factors, and the substantial
deference afforded sentencing courts.” United States v. Rosales-Bruno, 789 F.3d
1249, 1256 (11th Cir. 2015). “A district court abuses its considerable discretion
and imposes a substantively unreasonable sentence only when it ‘(1) fails to afford
consideration to 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 in considering the proper factors.’” Id. (quoting United States v. Irey,
612 F.3d 1160, 1189 (11th Cir. 2010) (en banc)).
Mathis asserts that his 240-month sentence is unreasonable because it was
longer than necessary to serve the relevant sentencing goals. See 18 U.S.C. §
24 Case: 18-10696 Date Filed: 08/16/2019 Page: 25 of 26
3553(a) (requiring the district court to “impose a sentence sufficient, but not
greater than necessary, to comply with the purposes” of sentencing set out in §
3553(a)(2)). Beyond stating that a 120-month sentence would have been “more
than adequate to punish, deter and rehabilitate,” Mathis does not develop his
argument or cite any authority supporting his claim that the sentence was
unreasonable. Even if we assume that this approach does not amount to a waiver
or abandonment of the issue, see, e.g., United States v. Woods, 684 F.3d 1045,
1064 n.23 (11th Cir. 2012) (per curiam) (explaining that defendant abandoned an
issue “by failing to develop any argument on it in his opening brief”), we find the
claim to be without merit.
Although Mathis was convicted of possessing ammunition, the offense in
this case was much more serious than in a routine felon-in-possession case, given
that Mathis possessed the ammunition in connection with a premeditated murder.
Moreover, Mathis committed this offense just two years after being released from a
15-year sentence for manslaughter, an offense that also involved a shooting.
Under these circumstances, we cannot say that the district court “committed a clear
error of judgment in weighing the factors by arriving at a sentence outside the
range of reasonable sentences dictated by the facts of the case.” United States v.
Alberts, 859 F.3d 979, 985 (11th Cir. 2017) (internal quotation marks omitted).
25 Case: 18-10696 Date Filed: 08/16/2019 Page: 26 of 26
Mathis has failed to show that the district court abused its discretion in sentencing
him to 240 months’ imprisonment, and we therefore affirm his sentence.
VI.
In sum, we find no merit in Mathis’s challenges to his conviction or
sentence. Accordingly, for the foregoing reasons, the judgment of the district court
is hereby affirmed.
AFFIRMED