United States v. Matthews , 749 F.3d 99 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-1256
UNITED STATES OF AMERICA,
Appellee,
v.
LEVELL MATTHEWS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Thompson and Kayatta, Circuit Judges.
Joseph M. Bethony, with whom Gross, Minsky, Mogul, P.A., was
on brief, for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.
May 16, 2014
THOMPSON, Circuit Judge.
OVERVIEW
Levell Matthews stands convicted of one count of
conspiring with others to make false statements to a firearms
dealer, three counts of possessing a firearm following a felony
conviction, and one count of possessing marijuana. He complains
about the district court's rulings denying him a judgment of
acquittal on the marijuana-possession count and enhancing his
sentence four levels for possessing a gun "in connection with"
felony drug trafficking. Finding none of his arguments persuasive,
we affirm.
HOW THE CASE GOT HERE
We summarize the trial evidence against Matthews in the
light most favorable to the jury's verdict. See, e.g., United
States v. Acosta-Colón, 741 F.3d 179, 191 (1st Cir. 2013).
Arrest and Indictment
This is not Matthews's first scrape with the law. In
2009 he was convicted in New York of possessing cocaine with intent
to distribute — a crime punishable by more than one year's
imprisonment. Some time after he got off parole for that offense,
he headed to Maine, staying occasionally with Taleek McFadden and
Victor Morales at Renee Weeks's house. No Boy Scout himself,
McFadden would later get locked up for selling crack cocaine.
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In October 2011 Matthews and Morales walked into a store
called Frati the Pawn Brokers. We will refer to this shop as
"Frati's," to avoid any confusion with its eponymous owner, Orlando
Frati, who — importantly — is a federally-licensed firearms dealer.
Matthews checked out a couple of guns while there, actually holding
them in his hand.
About two weeks later, Matthews and Morales stopped by
Frati's again, this time with Weeks in tow. Matthews zeroed in on
a Taurus .45 caliber pistol, picking it up to get a closer look.
Weeks then told Frati that she wanted to buy the pistol. Frati
handed Weeks the federal form — "Form 4473" — that anyone trying to
buy a gun must complete. After getting the filled-out document,
Frati ran a background check on her to see whether the sale could
take place that day. He learned that Weeks's name went to "delayed
status," which meant the sale could not happen right away, so
Matthews, Morales, and Weeks took off.1 Suspecting that Weeks
wanted to buy the gun for Matthews, Frati tipped off ATF agent
Brent McSweyn, who began to investigate.2
Around this time, Matthews — while riding in a car owned
by Weeks but driven by McFadden — was searched by local police
1
"Delayed status" occurs where a name is "technically flagged
for one reason or another," which could be, for example, because
someone has "had any encounter with the court or law enforcement."
2
"ATF" is the usual acronym for the Bureau of Alcohol,
Tobacco, Firearms and Explosives.
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during a traffic stop. Turned out Matthews had $2,500 in cash on
him, though that is basically all we know about the stop.
Fast forward a few weeks. Acting on Agent McSweyn's
instructions, Frati called Weeks to let her know that she could buy
the Taurus pistol. She said that she would be there in ten
minutes. Waiting for her to show up, Agent McSweyn placed ATF
agent Paul McNeil in an unmarked car outside Frati's and ATF agent
Daniel Woolbert in the store, posing as an employee. Agent McSweyn
then hid in the store's back room.
Eventually, Weeks drove over with Matthews and another
woman. Only Weeks went inside, though, with $250 Matthews had
given her to buy the pistol. Her mission complete, Weeks jumped
back into her car's driver's seat and put the pistol (unloaded,
with the safety lock on) on her lap, seconds before Agent McNeil
approached the driver's side and Agent McSweyn approached the
passenger's side. Agent McSweyn ordered Matthews — who was sitting
in the front passenger seat — out of the car. And then Agent
McSweyn frisked Matthews for weapons. Matthews had $967 in his
pocket, with a $50 bill on his seat in the car.
Agent McNeil told Matthews that he was not under arrest.
But Matthews wanted to "clear things up." So Agent McNeil read
Matthews his Miranda rights, see Miranda v. Arizona, 384 U.S. 436
(1966), and Matthews started talking. No way would he ever ask
Weeks to get him a gun, Matthews said, because he was a convicted
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felon and knew that he could not have a firearm. That statement
did not jibe with Matthews's going to Frati's and actually looking
at guns, Agent McNeil shot back. Matthews replied, "uh oh."
As they talked, Agent McNeil smelled burnt marijuana and
asked Matthews what he had "taken that day." Matthews admitted
that he had smoked two "blunts" (cigars in which the tobacco has
been replaced with marijuana) but said that there was no marijuana
in Weeks's car. "You want to know where you fucked up?" Matthews
then asked McNeil. "What you should have done," Matthews said, was
"wait to see where" Weeks took "the gun to see who she [was] buying
it for." A smiling Agent McNeil simply fired back, "some people"
might say that is "exactly what we did do. We didn't arrest Ms.
Weeks at the counter. We waited to see, when she left the store,
who was in the car and who she was getting the gun for." "Oh,"
Matthews exclaimed, catching Agent McNeil's drift, "because she was
in the store that I had been [in], bought the gun that I had looked
at, came out to the car that I was sitting in, and I have [hundreds
of dollars] in my pocket[?]" Bingo, Agent McNeil basically said —
to which Matthews replied, "that's cold" (with "cold" being slang
for "harsh," or so Agent McNeil testified).
Agent McSweyn then arrested Matthews. Knowing the jig
was up, Matthews said that he had some "weed" stuffed in his
underwear — 3.2 grams worth, tests showed. He also said that he
had $4,000 hidden in his sock, though he actually had $3,700. For
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anyone keeping track, that is $7,217 in cash law enforcement had
caught him with over a fairly short period (we are talking weeks).
A federal grand jury later indicted Matthews, with the
operative document charging him with one count of conspiracy to
make false statements on a federal firearms application,3 three
counts of gun possession by a previously convicted felon,4 and one
count of marijuana possession.5 Matthews pled not guilty to all
charges. And a jury trial followed in due course.
Trial and Sentencing
The trial testimony came in consistent with the facts
described above. What we have not mentioned yet is that Weeks —
having copped a plea and agreed to testify for the government —
told the jury about Matthews's involvement with crack cocaine,
saying that she had seen him with crack and had bought crack from
him before. Asked whether she was "promised crack" if she helped
with the gun buy, Weeks answered "yes." Matthews's counsel
attacked her credibility by getting her to talk about how she was
a chronic drug abuser, with crack and marijuana being her go-to
drugs.
Matthews moved for acquittal at the close of the
government's case. See Fed. R. Crim. P. 29(a). As relevant here,
3
See 18 U.S.C. §§ 2, 371, 924(a)(1)(A), and 922(a)(6).
4
See 18 U.S.C. §§ 2, 922(g)(1), and 924(a)(2).
5
See 21 U.S.C. § 844.
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he argued that prosecutors had failed to prove an element required
by § 844 — namely, that he did not have a valid prescription for
the marijuana. Convinced that the non-existence of a valid
prescription is not an element of a § 844 offense, the district
court denied the motion. After the jury convicted him on all
counts, Matthews again moved for acquittal on this theory. See
Fed. R. Crim. P. 29(c). But the court denied that motion too.
At sentencing the parties battled over whether the
district court should hand Matthews a four-level enhancement under
the federal sentencing guidelines for possessing a firearm in
connection with another felony. See USSG § 2K2.1(b)(6). Leaning
heavily on United States v. Cannon, 589 F.3d 514 (1st Cir. 2009),
the court imposed the enhancement, describing the other felony as
"drug trafficking" rather than marijuana possession, and concluding
Matthews had possessed a gun in connection with that offense. This
enhancement helped set Matthews's sentencing range at 70-87 months
in prison. And, ultimately, the court imposed a 70-month term.
This appeal followed. In resolving it, we will add a few
more details as we discuss specific issues.
OUR TAKE ON THE CASE
As we mentioned at the beginning of this opinion,
Matthews challenges the denial of his acquittal motion on the
marijuana-possession count plus the imposition of the four-level
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sentencing enhancement. As we also noted, his arguments do not
carry the day for him, for reasons we now explain.
Judgment of Acquittal
First up is the judgment-of-acquittal issue, which we
review de novo. See, e.g., United States v. Dávila-Nieves, 670
F.3d 1, 7 (1st Cir. 2012).
Section 844 — a provision under the Controlled Substance
Act ("CSA") forming the basis of Matthews's marijuana-possession
conviction — pertinently provides that
[i]t shall be unlawful for any person
knowingly or intentionally to possess a
controlled substance unless such substance was
obtained directly, or pursuant to a valid
prescription or order, from a practitioner,
while acting in the course of his professional
practice.
21 U.S.C. § 844(a)(1) (emphasis added). Matthews reads the
"unless" clause as requiring the government to prove that he did
not have a valid marijuana prescription. But another statute that
he does not mention or cite — 21 U.S.C. § 885, titled "Burden of
proof; liabilities" — undoes his theory.
Subsection (a)(1) of § 885 — titled "Exemptions and
exceptions; presumption in simple possession offenses" — declares
in relevant part that
[i]t shall not be necessary for the United
States to negative any exemption or exception
set forth in this subchapter in any . . .
indictment . . . or in any trial . . . and the
burden of going forward with the evidence with
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respect to any such exemption or exception
shall be upon the person claiming its benefit.
Subsection (a)(2) adds that in § 844(a) prosecutions "any label
identifying such substance . . . shall be admissible in evidence"
and that the label "shall be prima facie evidence that such
substance was obtained pursuant to a valid prescription from a
practitioner."
The precise issue Matthews raises is not one we have
faced before. The closest match in our caselaw is United States v.
Hooker, an opinion dealing with CSA sections different from the one
that confronts us here — §§ 841 and 846, not § 844. See 541 F.2d
300, 301 (1st Cir. 1976). A jury had convicted Hooker — a licensed
physician — of distributing and conspiring to distribute
prescriptions for controlled substances. Id. at 301-02 (citing
§§ 841 and 846). Trumpeting his physician status, Hooker argued to
us that he had statutory authorization to dispense controlled
substances and so could not be convicted of illegal distribution
unless the prosecution proved beyond a reasonable doubt that his
deeds fell "outside the bounds of the professional medical
practice." Id. at 305. Critically, in analyzing his argument we
noted that under § 885(a)(1) "a defendant claiming the benefit of
a medical exemption bears the evidentiary burden with respect to
its applicability." Id.
Hooker helps us understand § 885(a)(1)'s effect on
evidentiary burdens in this corner of the law. But what ultimately
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seals Matthews's fate is a line of cases from other circuits
expressly holding — based on a plain reading of the statutory text
— that § 844(a)'s "unless" clause "establishes a defense" for "the
accused" to raise "rather than an element of the offense" for the
government to prove. See United States v. Forbes, 515 F.2d 676,
680 n.9 (D.C. Cir. 1975); see also United States v. Foster, 374 F.
App'x 448, 449 (4th Cir. 2010) (per curiam) (relying on § 885(a)(1)
in rejecting the idea that § 844(a) has as an element that the
defendant did not possess the drugs pursuant to a valid
prescription); see generally Woods v. Butler, 847 F.2d 1163, 1166-
67 (5th Cir. 1988) (relying on Forbes in analyzing state statutes
"virtually identical" to §§ 844(a) and 885(a)(1), and reaching the
same result).6
A principle animating these cases is that a contrary
ruling would blot out § 885(a)(2). Again, that provision provides
that a label is prima facie evidence that the drugs were obtained
lawfully — without any contrary evidence by the government, that
showing would satisfy § 844(a)'s "unless" clause. Matthews offered
no prima facie evidence, we must say. Anyway, accepting his
argument would mean forcing the government to "negate" the
possibility of a valid prescription "even in the absence of the
label." Forbes, 515 F.2d at 680 n.9. And that cannot be what
6
Courts grappling with this issue apparently use
"'exemption,'" "'affirmative defense,'" and like words
"interchangeably." See Woods, 847 F.2d at 1165 n.1.
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Congress had in mind when it set up a statutory scheme requiring
the defendant to come forward with evidence of the exception. See
id. Finding this reasoning convincing, we hold that § 844(a)'s
"unless" clause creates an exception for an accused to invoke by
producing prima facie evidence of a valid prescription, not an
element of the offense for a prosecutor to prove.
Unfortunately for Matthews, he cannot escape this
conclusion with the cases he champions. True, one of his cases
says that "[i]t is a general guide to the interpretation of
criminal statutes that when an exception is incorporated in the
enacting clause of a statute, the burden is on the prosecution to
plead and prove that the defendant is not within the exception."
United States v. Vuitch, 402 U.S. 62, 70 (1961) (emphasis added).
But Vuitch's "general guide" is helpful only when Congress has not
clearly expressed its intent. See United States v. Steele, 147
F.3d 1316, 1319 (11th Cir. 1998). And here Congress has spoken
with crystal clarity, declaring in § 885(a)(1) that a defendant
seeking the benefit of an exception found in title 21 must shoulder
the burden of coming forward with evidence regarding that
exception. So Vuitch's general rule does not come into play. See
Steele, 147 F.3d at 1319. As for his other cases, they simply
mention § 844(a) without discussing § 885(a)'s effect on the
crime's elements or on the burdens of production. See Dorszanski
v. United States, 418 U.S. 424, 426 n.3 (1974); United States v.
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LaBuff, 101 F. App'x 678, 682 (9th Cir. 2004) (mem.); United States
v. Stone, 139 F.3d 822, 834 (11th Cir. 1998); United States v.
Swiderski, 548 F.2d 445, 449 (2d Cir. 1977). And that means that
they cannot turn the tide in Matthews's favor.
Having concluded that § 844(a)'s "unless" clause creates
an exception under § 885(a)(1), we find that the district court
rightly denied Matthews a judgment of acquittal.
Sentencing Enhancement
Which takes us to the sentencing-enhancement issue. The
government, naturally, bears the burden of proving sentencing
enhancements. See, e.g., United States v. Paneto, 661 F.3d 709,
715 (1st Cir. 2011); Cannon, 589 F.3d at 517. The standard of
proof is preponderance of the evidence. See, e.g., Paneto, 661
F.3d at 715; Cannon, 589 F.3d at 517. Either direct or
circumstantial evidence will do, with the sentencing court free to
draw commonsense inferences from the evidence. See, e.g., Paneto,
661 F.3d at 716; Cannon, 589 F.3d at 517.
For our part, we review the district court's legal
rulings anew, its factfinding for clear error, and its application
of the guidelines to the case on a "sliding scale" — with the
scrutiny cranked up the more law-driven the court's decision is.
See, e.g., United States v. Zehrung, 714 F.3d 628, 631 (1st Cir.
2013) (citing Cannon, 589 F.3d at 516-17). Of course, clear error
is not an easy thing to show, because the sentencing court's choice
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among rational but competing inferences cannot be clearly
erroneous. See, e.g., Cannon, 589 F.3d at 517.
As relevant here, § 2K2.1(b)(6)(B) calls for a four-level
sentencing enhancement if the defendant "possessed any firearm
. . . in connection with another felony offense." The enhancement
applies, then, if the court finds that the government proved two
things by a preponderance of the evidence: one, that the defendant
committed "another felony offense" — meaning "any Federal . . .
offense punishable by imprisonment for a term exceeding one year,
regardless of whether a criminal charge was brought, or a
conviction obtained," USSG § 2K2.1 cmt. n. 14(C); and two, that he
possessed a firearm "in connection with" that other offense — a
phrase read broadly under our caselaw, which neither requires
"actual use of the weapon during commission of the felony [n]or
physical proximity between the weapon and the contraband." See
Paneto, 661 F.3d at 716.
Taking the evidence in its totality (a macro approach,
not a piece-by-piece micro one), we see enough here to support the
district court's finding that Matthews committed "another felony"
— namely, felony drug trafficking. See Cannon, 589 F.3d at 519
(indicating that felony drug trafficking is a qualifying felony
under § 2K2.1(b)(6)(B)). Matthews already had a felony drug-
trafficking conviction under his belt before getting busted in our
case. Also, after moving from New York to Maine, he chose at some
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point to pal around with another drug trafficker, McFadden, living
with him for a time and getting pulled over with him in a traffic
stop.7 More, Matthews sold Weeks crack in the past — the very drug
she was "supposed to" get for helping the gun buy go down. More
still, despite having no job, he had thousands of dollars in cash
on him when stopped by law enforcement. On top of that, he had
gotten Weeks to buy the pistol for him and had 3.2 grams of
marijuana on him, with the gun inches from him when nabbed.
As the district court noted, Matthews's case bears an
uncanny resemblance to Cannon. There, we upheld a § 2K2.1(b)(6)
sentencing enhancement, highlighting the following: Cannon had a
"history" as a drug trafficker — just like Matthews — suggesting
that he was "no idle passenger" when the police collared him and
his cohorts after a traffic-violation investigation found him armed
and sitting in an SUV near an "unknown" amount of drugs. Cannon,
589 F.3d at 516, 519 (discussing cases holding that a defendant's
drug-trafficking history supports an inference that he is a drug
trafficker). Calling the combined $2,000 found on Cannon and the
others (all of whom were unemployed) a "large" stash of cash —
remember, a jobless Matthews had over $5,000 on him, if you add
everything up, with most of it hidden in his sock — we said such an
7
The district court knew McFadden fairly well, having
sentenced him to 33 months in prison for selling crack — a sentence
the court handed down about a year after the police had found
McFadden and Matthews together in the traffic stop and a few weeks
before sentencing Matthews.
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amount helps justify an inference that the SUV riders "were engaged
in the sale, rather than the casual use, of drugs." Id. at 518
(citing cases to back up that point). Also, Cannon's having a gun
on him with drugs in the SUV — Matthews had drugs on him with a gun
next to him — was "probative of an intent to distribute narcotics,"
we wrote. Id. (citing cases holding that guns and drug dealing go
together like a hand in glove). And on that record, we could not
say that the sentencing court clearly erred in finding that Cannon
was engaged in drug trafficking. Id. at 518-19. Given the eerie
similarities between Cannon's case and Matthews's, we reach the
same conclusion here.8
The push-back we get from Matthews is simply not
persuasive. He argues, for example, that given the small amount of
marijuana on him, it is "equally plausible" to characterize the
evidence as suggesting that he possessed drugs for personal use
rather than for trafficking. And, he adds, statements in the
presentence report that he drew tattoos on others as an unlicensed
tattoo artist "explains" why he had so much cash with him, casting
doubt on any suggestion that he had gotten the money by trafficking
drugs. We see two big problems with this: Matthews is essentially
8
Because we find that the district court supportably found
that Matthews had engaged in felony drug trafficking, we need not
reach the government's alternative theory that having a gun in
connection with simple drug possession suffices to trigger a
§ 2K2.1(b)(6) enhancement — an issue, by the way, left open in our
previous cases. See Paneto, 661 F.3d at 716 n.5 (citing Cannon,
589 F.3d at 520 n.4).
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asking us to view the evidence in stark isolation, which we cannot
do. See id. at 519 (talking about our viewing the "totality of the
evidence before the district court"). Also, and as we said moments
ago, a sentencing court's selection of one plausible inference over
another cannot be clearly erroneous. See, e.g., Cannon, 589 F.3d
at 517. So, again, the district court's drug-dealing finding
stands.
Moving on, we also see enough here to support the court's
finding that Matthews possessed a firearm "in connection" with the
discerned drug-dealing offense. The quoted phrase requires that
the gun's presence at the crime scene be more than coincidental.
See Paneto, 661 F.3d at 716. In other words, the gun must
"'somehow aid[] or facilitate[], or ha[ve] the potential to aid or
facilitate, the commission of another offense.'" See id. at 717
(quoting United States v. Thompson, 32 F.3d 1, 6 (1st Cir. 1994)).
But bear in mind (and at the risk of repeating ourselves):
Matthews was no ordinary gun owner. He had a prior felony that
made it illegal — and thus particularly risky — for him to possess
the pistol in question. And he bought the pistol through straw-
buyer Weeks, who explained that she had been promised crack for her
troubles. Also and again, Matthews consorted with a known drug
dealer and had lots of cash on him, including a large sum tucked in
his sock when agents caught him with the gun. Ultimately, our view
of the entire picture renders reasonable the inference — which the
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district court made — that Matthews "wanted" the pistol (and not
just his socks!) "to protect the cash and the drugs from people who
would make off with it." Clearly, then, the pistol had the
potential to facilitate the drug-trafficking offense "by
emboldening the enterprise, aiding the collection of a drug debt,
or in any number of foreseeable ways." See Cannon, 589 F.3d at
519.
Wait a minute, protests Matthews, the pistol was on
Weeks's lap, "unloaded and locked." No doubt. But if a drug
dealer who has an unloaded gun locked inside a safe in a room away
from the drugs can possess the weapon in connection with another
felony offense, see Paneto, 661 F.3d at 716, then surely it cannot
be reversible error for the district court here to find that
Matthews possessed the pistol in connection with his drug
trafficking. After all, if everything had happened as planned,
Matthews "would have had the Taurus, because he paid for it, and he
would have had actual possession of the Taurus, because that was
the purpose of the sale," the court supportably found. Also,
unloaded pistols can be reloaded, and even unloaded guns can
"facilitate drug trafficking," we have held. Id. at 718.
Bottom line: given the deferential standard of review at
play here, we are duty-bound to uphold the four-level sentencing
enhancement.
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FINAL WORDS
Our review done, we affirm Matthews's conviction and
sentence.
So ordered.
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