Case: 19-13707 Date Filed: 07/31/2020 Page: 1 of 17
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-13707 Non-Argument Calendar ________________________
D.C. Docket No. 8:18-cr-00474-VMC-TGW-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRY ALONZO WILSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(July 31, 2020)
Before JORDAN, NEWSOM, and FAY, Circuit Judges.
PER CURIAM: Case: 19-13707 Date Filed: 07/31/2020 Page: 2 of 17
For his part in an armed robbery of a Tampa, Florida pawn shop (Value
Pawn), a grand jury charged Terry Alonzo Wilson with the following crimes: (1)
conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951(a)–(b); (2) Hobbs Act
robbery, 18 U.S.C. §§ 2, 1951(a)–(b); (3) using, carrying, and brandishing a
firearm during and in relation to a crime of violence, 18 U.S.C. §§ 2, 924(c); and
(4) possession of a firearm as a convicted felon, 18 U.S.C. § 922(g)(1). After a
six-day trial, the jury found Wilson guilty on all counts and the district court
imposed a 300-month sentence.
This is Wilson’s appeal. He raises four arguments for our consideration.
First, he contends that, by limiting the scope of his cross-examination of the
government’s key witness, the district court abused its discretion and violated his
rights under the Sixth Amendment. Second, he argues that the district court abused
its discretion in admitting evidence regarding two firearms and ammunition that
law enforcement recovered during his arrest. Third, he asserts that his 300-month
sentence is procedurally unreasonable because the district court clearly erred in
applying an aggravating-role enhancement and substantively unreasonable because
the court failed to properly weigh the 18 U.S.C. § 3553(a) factors. Fourth, he
argues that Hobbs Act robbery does not qualify as a “crime of violence” under 18
U.S.C. § 924(c).
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After careful consideration of Wilson’s arguments and the record, we will
affirm.
I
First, Wilson argues that the district court abused its discretion and violated
his Sixth Amendment confrontation rights in limiting the scope of his cross-
examination of Jeremy Williams, his co-conspirator.
A
We review claims that the district court improperly limited the scope of a
party’s cross-examination for “a clear abuse of discretion.” United States v.
Rushin, 844 F.3d 933, 938 (11th Cir. 2016) (quotation omitted). But whether a
defendant’s Sixth Amendment rights were violated is a question that we review de
novo. Id.
The Sixth Amendment’s Confrontation Clause guarantees a criminal
defendant an opportunity to impeach adverse witnesses through cross-examination.
United States v. Arias-Izquierdo, 449 F.3d 1168, 1178 (11th Cir. 2006). The right
to cross-examine a witness is particularly important where the witness is the
government’s chief witness. Id. Nevertheless, the right is not unlimited, as a
defendant is “entitled to only an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to whatever extent, the
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defense might wish.” United States v. Williams, 526 F.3d 1312, 1319 (11th Cir.
2008) (quotation omitted).
A district court may limit the scope of a defendant’s cross-examination
without infringing his Sixth Amendment rights if the permitted cross-examination
exposed the jury to facts sufficient for it to draw inferences regarding the witness’
credibility and enabled defense counsel to make a record to support her arguments
that the witness was biased. Rushin, 844 F.3d at 938. Once a defendant engages in
cross-examination sufficient to satisfy the Confrontation Clause, “further
questioning is within the district court’s discretion.” United States v. Diaz, 26 F.3d
1533, 1539 (11th Cir. 1994). The district court enjoys “wide latitude” in
reasonably limiting cross-examination when it has “concerns about, among other
things, . . . confusion of the issues . . . or interrogation that is repetitive or only
marginally relevant.” Rushin, 844 F.3d at 938 (quotation omitted).
B
Here, the district court did not abuse its discretion or violate Wilson’s
constitutional rights in limiting the scope of his cross-examination of Williams.
The court permitted Wilson to cross-examine Williams about his potential bias,
motive, and character for truthfulness. Among other questions, Wilson asked
Williams about Williams’ plea agreement, inconsistencies in his post-arrest
statements to law enforcement, and his criminal history and gang involvement.
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Defense counsel relied on Williams’ responses to these questions in her
closing to argue that Williams was biased and motivated to lie, that his statements
were inconsistent, and that he generally lacked credibility as a witness. She also
used Williams’ cross-examination testimony to support the defense’s theory that
Williams falsely identified Wilson as the co-conspirator because he was trying to
protect his fellow gang members. For these reasons, the permitted scope of
Wilson’s cross-examination of Williams exposed the jury to facts sufficient to
draw inferences regarding Williams’ credibility and provided a factual basis for the
defense’s argument that Williams was biased. See id.
Given that Wilson was permitted to question Williams to this extent, we
conclude that the district court did not err in limiting the scope of cross-
examination with respect to a 2011 federal-drug indictment involving a gang with
which Williams was allegedly associated. Williams’ alleged knowledge of a
federal prosecution in which he was not a defendant does not implicate his
credibility and would appear to have limited value as impeachment evidence. The
district court explained that it would not allow cross-examination on the indictment
because it was “just too far afield,” but suggested that Wilson could elicit
testimony regarding it as part of his defense case. The court acted within its
discretion in prohibiting Wilson from cross-examining Williams about the 2011
indictment. See id.; Williams, 526 F.3d 1312, 1319; Diaz, 26 F.3d at 1539.
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Accordingly, we affirm as to this issue. 1
II
Next, Wilson contends that the district court abused its discretion in
admitting pistols and ammunition that law enforcement officers recovered during
his arrest. This evidence should have been excluded under Federal Rules of
Evidence 404(b) and 403, Wilson argues, because it is irrelevant, unduly
prejudicial, and not connected with the government’s theory of the case or other
evidence.
We “review a district court’s evidentiary rulings for a clear abuse of
discretion,” United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003), and will
1 Wilson also argues that, by limiting the scope of his cross-examination of Williams, the district court shifted the burden of proof, compelled him to introduce evidence on his own behalf, and “forced [him] to waive any preservation to his motion for judgment of acquittal.” The Due Process Clause requires the government to prove each element of the charged offenses beyond a reasonable doubt, and a district court may not shift the burden to prove or disprove an element of an offense to the defendant. United States v. Deleveaux, 205 F.3d 1292, 1298 (11th Cir. 2000). But Wilson does not explain how requiring him to present the 2011 indictment in his defense case, rather than on cross-examination, violated his constitutional rights by shifting the burden of proof, as it is irrelevant to the offenses he was charged with. Moreover, while we have held that “a defendant’s decision to present his case after denial of a motion for judgment of acquittal operates as a waiver of his objection to the denial of his motion for acquittal,” this “waiver doctrine” will foreclose appellate review of sufficiency of the evidence only “if the defendant fails to renew his motion for judgment of acquittal at the end of all of the evidence.” United States v. Jones, 32 F.3d 1512, 1516 (11th Cir. 1994) (quotation omitted). Here, Wilson does not challenge the sufficiency of the evidence on appeal and, in any event, he renewed his motion for judgment of acquittal.
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reverse an erroneous ruling only if the resulting error was not harmless, United
States v. Langford, 647 F.3d 1309, 1323 (11th Cir. 2011).
Relevant evidence is generally admissible at trial. Fed. R. Evid. 402.
Evidence is relevant if “it has any tendency to make a fact more or less probable
than it would be without the evidence” and “the fact is of consequence in
determining the action.” Fed. R. Evid. 401. Rule 404(b) “may foreclose the
admission of uncharged crimes and other bad acts,” but it “does not apply to
evidence that is intrinsic to the charged offenses.” United States v. Wenxia Man,
891 F.3d 1253, 1273 (11th Cir. 2018) (quotation omitted); Fed. R. Evid. 404(b).
We have recognized that “[e]vidence is intrinsic if it arose out of the same
transaction or series of transactions as the charged offense, is necessary to
complete the story of the crime, or is inextricably intertwined with the evidence
regarding the charged offense.” Wenxia Man, 891 F.3d at 1273. Evidence that is
not part of the charged offenses but pertains to the chain of events regarding the
context, motive, and setup of the crime is admissible if it is “linked in time and
circumstances with the charged crime, or forms an integral and natural part of an
account of the crime, or is necessary to complete the story of the crime for the
jury.” United States v. Troya, 733 F.3d 1125, 1131 (11th Cir. 2013) (quotation
omitted).
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Intrinsic evidence may still be excluded, however, under Rule 403, which
permits a district court to “exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403; Wenxia Man, 891 F.3d at 1273. We
have cautioned that Rule 403 “is an extraordinary remedy” that the court “should
invoke sparingly.” United States v. Alfaro-Moncada, 607 F.3d 720, 734 (11th Cir.
2010) (quotation omitted). Accordingly, “we look at the evidence in a light most
favorable to its admission, maximizing its probative value and minimizing its
undue prejudicial impact.” Id. (quotation omitted). Moreover, potential unfair
prejudice caused by admitting evidence of a defendant’s acts can be mitigated by a
limiting jury instruction. See United States v. Edouard, 485 F.3d 1324, 1346 (11th
Cir. 2007).
We conclude that district court did not abuse its discretion in admitting the
evidence regarding the two firearms and ammunition recovered during Wilson’s
arrest. The evidence was relevant and inextricably intertwined with other evidence
that the government introduced to show that Wilson had committed the charged
offenses. See Wenxia Man, 891 F.3d at 1273.
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To establish that Wilson and Williams robbed Value Pawn together, the
government introduced post-robbery communications exchanged between the two
regarding Wilson leaving a gun at the robbery scene and his later acquisition of
additional firearms. Evidence of the communications between Wilson and
Williams, together with the guns and ammunition found on Wilson at the time of
his arrest, corroborate the government’s theory that Wilson had left a pistol at
Value Pawn when he committed the robbery and obtained the other guns and
ammunition after the fact to commit additional robberies. Thus, the evidence is
relevant because it ties Wilson and Williams together as co-conspirators and is
inextricably intertwined with the government’s other evidence. See Fed. R. Evid.
401; Troya, 733 F.3d at 1131.2
We further conclude that the prejudicial effect of admitting the evidence did
not substantially outweigh its probative value. See Fed. R. Evid. 403. Evaluating
the evidence in the light most favorable to admission, see Alfaro-Moncada, 607
F.3d at 734, the pistols and ammunition are highly probative because Wilson’s
primary defense was that he was not Williams’ co-conspirator, and the evidence
regarding the pistols and ammunition is inextricably intertwined with the
communications between Williams and Wilson subsequent to the robbery.
2 Because the evidence is intrinsic to the charged offenses, it is unnecessary to evaluate its admissibility under Rule 404(b)(2)’s permitted uses.
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Moreover, the district court mitigated any prejudicial effect by issuing a limiting
instruction that prohibited the jury from inferring that Wilson committed the
charged offenses because he had committed similar acts on other occasions. See
Edouard, 485 F.3d at 1346.
Because the district court acted within its discretion in admitting the pistols
and ammunition, we affirm its ruling.
III
Wilson also asserts that that his 300-month sentence is procedurally and
substantively unreasonable. Procedurally, he challenges the district court’s
decision to impose a two-level aggravating-role enhancement under the sentencing
guidelines, see U.S. Sentencing Guidelines Manual § 3B1.1(c), as unsupported by
the record. He argues that his sentence is substantively unreasonable because the
district court did not properly consider the 18 U.S.C. § 3553(a) when imposing an
upward variance.
We review the reasonableness of a sentence for an abuse of discretion,
regardless of whether the sentence is inside or outside of the guideline range, Gall
v. United States, 552 U.S. 38, 51 (2007), and the district court’s application of an
aggravating-role enhancement for clear error, United States v. Moran, 778 F.3d
942, 979 (11th Cir. 2015). Because the clear-error standard is deferential, we will
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not disturb a district court’s findings unless we are “left with a definite and firm
conviction that a mistake has been committed.” Id.
In reviewing the reasonableness of a sentence, we consider whether the
district court committed a procedural error, such as improperly calculating the
guideline range. Gall, 552 U.S. at 51. When calculating a defendant’s offense
level, a two-level aggravating-role enhancement applies “[i]f the defendant was an
organizer, leader, manager, or supervisor” of one to four other participants. U.S.
Sentencing Guidelines Manual § 3B1.1(c). The commentary to § 3B1.1 sets out
several factors for a court to consider in evaluating the application of this
enhancement, including: (1) the defendant’s “exercise of decision making
authority”; (2) “the nature of [his] participation” in the crime; (3) his “recruitment
of accomplices”; (4) his “claimed right to a larger share of the fruits of the crime”;
(5) his “participation in planning or organizing” the crime; (6) “the nature and
scope of the illegal activity”; and (7) the degree to which he exercised “control and
authority” over others. Id. § 3B1.1 cmt. n.4; United States v. Phillips, 287 F.3d
1053, 1058 (11th Cir. 2002). “The assertion of control or influence over only one
individual is enough to support a § 3B1.1(c) enhancement.” Phillips, 287 F.3d at
1058 (alteration adopted) (quotation omitted).
Once we determine that the district court correctly calculated the guideline
range, we examine whether the sentence is reasonable in light of the 18 U.S.C.
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§ 3553(a) factors. United States v. Williams, 435 F.3d 1350, 1353 (11th Cir.
2006). Section 3553(a) mandates that the district court “impose a sentence
sufficient, but not greater than necessary”: (1) “to reflect the seriousness of the
offense, to promote respect for the law, and to provide just punishment for the
offense”; (2) “to afford adequate deterrence to criminal conduct”; (3) “to protect
the public from further crimes of the defendant”; and (4) “to provide the defendant
with needed educational or vocational training, medical care, or other correctional
treatment in the most effective manner.” 18 U.S.C. § 3553(a)(2). In addition, the
court must consider: (1) “the nature and circumstances of the offense and the
history and characteristics of the defendant”; (2) “the kinds of sentences available”;
(3) the guideline sentencing range; (4) “any pertinent policy statement”; (5) “the
need to avoid unwarranted sentencing disparities”; and (6) “the need to provide
restitution to any victims.” Id. § 3553(a)(1), (3)–(7).
A district court imposes a substantively unreasonable sentence “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.” United States v. Suarez, 893
F.3d 1330, 1337 (11th Cir. 2018) (quotation omitted), cert. denied, 139 S. Ct. 845
(2019). “We will defer to the district court’s judgment” in weighing the § 3553(a)
factors unless the court made “a clear error of judgment” and imposed “a sentence
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that lies outside the range of reasonable sentences dictated by the facts of the case.”
United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (quotation
Should the district court, after considering the § 3553(a) factors, elect to
impose a sentence outside the applicable guideline range, it must “consider the
extent of the deviation and ensure that the justification is sufficiently compelling to
support the degree of the variance.” Gall, 552 U.S. at 50. Although we “may
consider the extent of the deviation” from the guideline range, we “must give due
deference to the district court’s decision that the § 3553(a) factors, on a whole,
justify the extent of the variance.” Id. at 51.
Wilson’s sentence is both procedurally and substantively reasonable.
Procedurally, the district court did not clearly err in applying the aggravating-role
enhancement. The evidence at trial established that Wilson recruited Williams to
participate in the robbery, asked Williams to obtain a gun on two occasions,
transported Williams to Tampa, selected pawn shops to case, issued instructions
prior to the robbery, possessed the gun and directed Williams during the robbery,
and kept the majority of the robbery’s proceeds. See U.S. Sentencing Guidelines
Manual § 3B1.1(c) cmt. n.4. These facts are sufficient to show that Wilson
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exercised some degree of control or influence over at least one participant. See
Phillips, 287 F.3d at 1058.
Wilson’s 300-month total sentence is also substantively reasonable.
Although the district court stated that it primarily relied on the need to protect the
public in imposing the sentence, it is generally within the court’s discretion to
weigh the § 3553(a) factors. See Gonzalez, 550 F.3d at 1324. Further, the record
establishes that the court contemplated other factors in arriving at the 300-month
sentence. Considering Wilson’s history and characteristics, the court stated that it
did not enjoy imposing the above-guideline sentence on a 53-year-old man with
limited vision, but it emphasized that Wilson committed the Value Pawn robbery
shortly after serving a lengthy prison sentence for the same type of offense and that
the guideline range underrepresented his criminal history. See 18 U.S.C. §
3553(a)(1). The court also evaluated the nature and circumstances of the offenses,
taking note of Wilson’s act of pointing a gun at someone’s face during the robbery.
See id. And finally, the court considered the need for the sentence to reflect the
seriousness of the offense and deter future criminal conduct, again reasoning that
Wilson appeared to have been undeterred by the 240-month sentence that he had
received previously and that his conduct demonstrated that he would likely
continue to commit violent crimes in the future. See id. § 3553(a)(2)(A)–(C).
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Because the district court did not make “a clear error of judgment” in
weighing the § 3553(a) factors, it acted within its discretion in imposing Wilson’s
sentence. See Gall, 552 U.S. at 51; Gonzalez, 550 F.3d at 1324. We therefore
affirm Wilson’s sentence, as it is both procedurally and substantively reasonable.
IV
Finally, we consider Wilson’s contention that his conviction for Hobbs Act
robbery does not qualify as a “crime of violence” as defined in 18 U.S.C. § 924(c).
Although he recognizes that his argument is foreclosed by our decision in In re
Saint Fleur, 824 F.3d 1337 (11th Cir. 2016), he raises the issue to preserve it for
further appellate review.
Whether a particular crime qualifies as a “crime of violence” under 18
U.S.C. § 924(c) is a question of law that we review de novo. 3 Steiner v. United
States, 940 F.3d 1282, 1288 (11th Cir. 2019). We have held that Hobbs Act
robbery is a “crime of violence” under § 924(c)(3)(A), which defines that phrase as
a felony offense that “has as an element the use, attempted use, or threatened use of
physical force against the person or property of another.” United States v. St.
Hubert, 909 F.3d 335, 345 (11th Cir. 2018), abrogated on other grounds by United
States v. Davis, 139 S. Ct. 2319 (2019); In re Saint Fleur, 824 F.3d 1337, 1340
3 We needn’t address the government’s argument that Wilson’s claim is subject to plain-error review because, as we will explain, Wilson’s argument fails no matter the standard of review.
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(11th Cir. 2016). 4 Under the prior-panel-precedent rule, we are bound to follow
our binding precedents unless and until they are overruled by the Supreme Court or
this Court sitting en banc. United States v. Romo-Villalobos, 674 F.3d 1246, 1251
(11th Cir. 2012).
The district court did not err in convicting and sentencing Wilson under §
924(c) for committing Hobbs Act robbery. As Wilson concedes, our binding
precedent forecloses his argument that Hobbs Act robbery does not qualify as a
“crime of violence” for purposes of § 924(c). See St. Hubert, 909 F.3d at 345;
Saint Fleur, 824 F.3d at 1340; Romo-Villalobos, 674 F.3d at 1251. Accordingly,
we affirm his § 924(c) conviction and sentence.
* * *
In conclusion, we hold that the district court did not err in limiting the scope
of Wilson’s cross-examination of Williams or in admitting evidence regarding the
two pistols and ammunition found during Wilson’s arrest. We further conclude
that Wilson’s sentence is procedurally and substantively reasonable. Finally, we
reject Wilson’s argument that his Hobbs Act conviction does not qualify as a
4 Our holding that Hobbs Act robbery is a crime of violence under § 924(c)(3)(A) (sometimes referred to as the “use-of-force clause” or the “elements clause”) is unaffected by the Supreme Court’s holding in Davis that § 924(c)(3)(B) (also known as the “residual clause”) was unconstitutionally vague. 139 S. Ct. at 2323–24.
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“crime of violence” under 18 U.S.C. § 924(c), as it is foreclosed by our precedent.
We therefore affirm Wilson’s convictions and sentences.
AFFIRMED.