United States v. Roland Mathis , 239 F. App'x 513 ( 2007 )


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  •                                                                       [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT            FILED
    ________________________ U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    No. 06-11435                        AUGUST 14, 2007
    ________________________                 THOMAS K. KAHN
    CLERK
    D. C. Docket No. 01-00470-CR-01-JTC-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    ROLAND MATHIS,
    a.k.a. Fat,
    a.k.a. Fats,
    a.k.a. John Davis,
    a.k.a. Leroy Mathis,
    a.k.a. John David,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Georgia
    _________________________
    (August 14, 2007)
    Before TJOFLAT, BLACK and EBEL,* Circuit Judges.
    PER CURIAM:
    *
    The Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting
    by designation.
    Roland Mathis appeals his convictions and sentence imposed after a jury
    convicted him of (1) 2 counts of distribution of cocaine, in violation of 
    21 U.S.C. § 841
    (a)(1) and (b)(1)(A)(ii); (2) conspiracy to possess with the intent to distribute
    cocaine and marijuana, in violation of 
    21 U.S.C. §§ 841
    (b)(1)(A)(ii) and (vii) and
    846; (3) conspiracy to commit money laundering, in violation of 
    18 U.S.C. § 1956
    (h); and (4) 11 counts of money laundering in violation of 
    18 U.S.C. § 1956
    (a)(1)(B)(i). Mathis raises seven issues on appeal. Three issues pertain to
    his trial, two issues pertain to his sentencing, and two issues concern the jury’s
    verdict. We address each issue in turn.
    I. TRIAL
    A.    Right to an Evidentiary Hearing
    Mathis first contends the district court should have granted him an
    evidentiary hearing to challenge the constitutionality of the search of his closed
    duffle bag from the trunk of an automobile. The district court refused Mathis an
    evidentiary hearing on whether the search violated the Constitution because the
    court found the search was supported by probable cause. Mathis contends the facts
    were insufficient to support a finding of probable cause. We disagree.
    A district court’s denial of a motion to suppress is reviewed as a mixed
    question of law and fact. United States v. Gil, 
    204 F.3d 1347
    , 1350 (11th Cir.
    2000). We review the court’s factual findings for clear error, and its application of
    2
    law to those facts de novo. 
    Id.
     The district court’s decision on whether to hold an
    evidentiary hearing is reviewed for an abuse of discretion. United States v. Mena,
    
    863 F.2d 1522
    , 1528 (11th Cir. 1989). Where record testimony demonstrates
    probable cause for the search existed, reversal is not warranted. See 
    id.
    “If probable cause justifies the search of a lawfully stopped vehicle, it
    justifies the search of every part of the vehicle and its contents that may conceal
    the object of the search.” United States v. Ross, 
    456 U.S. 798
    , 825, 
    102 S. Ct. 2157
    , 2173 (1982). Every part of the vehicle and its contents has been construed to
    include all containers within a car regardless of ownership. California v. Acevedo,
    
    500 U.S. 565
    , 572, 
    111 S. Ct. 1982
    , 1987 (1991). In addition, if law enforcement
    has probable cause to believe a package within a car contains evidence or
    contraband, they may conduct a warrantless search of the package, even if they do
    not have probable cause to search the entire car. 
    Id. at 580
    , 
    111 S. Ct. at 1991
    .
    Probable cause exists “when the facts and circumstances would lead a reasonably
    prudent [person] to believe that the vehicle contains contraband.” United States v.
    Alexander, 
    835 F.2d 1406
    , 1409 (11th Cir. 1988).
    At trial, the record testimony demonstrated probable cause existed that the
    duffle bag contained proceeds from a drug transaction. Agents had knowledge of
    an anticipated drug deal, watched two men exchange the duffle bag, and later saw
    Mathis with the duffle bag. The agents then watched the duffle bag being placed in
    3
    the trunk of the Lexus automobile subjected to the search. Taken together, these
    facts were sufficient to lead a reasonably prudent person to believe the duffle bag
    contained contraband. See 
    id.
     Thus, reversal is not warranted because record
    evidence demonstrated probable cause existed to search the automobile. Mena,
    
    863 F.2d at 1528
    .
    B.    Proffer Agreement
    Mathis next asserts statements made to the Government under a proffer
    agreement should have been excluded pursuant to derivative-use immunity.
    Mathis contends that his conviction on Count Five should be vacated because the
    Government obtained and used evidence uncovered directly from his proffer, and
    not from derivative sources, relying on Kastigar v. United States, 
    406 U.S. 441
    , 
    92 S. Ct. 1652
     (1972). The district court ruled that because the Government did not
    grant Mathis any immunity related to the proffer, a Kastigar hearing was
    unnecessary. We agree.
    The interpretation of a proffer agreement is generally controlled by
    principles of contract law. United States v. Pielago, 
    135 F.3d 703
    , 709 (11th Cir.
    1998). When the district court interprets a contract without reference to extrinsic
    evidence, we review the interpretation de novo. United Benefit Life Ins. Co. v.
    United States Life Ins. Co., 
    36 F.3d 1063
    , 1065 (11th Cir. 1994).
    4
    In Pielago, the proffer agreement provided: “The government also expressly
    reserves the right to pursue any and all investigative leads derived from . . .
    statements or information and use such derivative evidence in any criminal or civil
    proceeding against her and/or others.” 
    135 F.3d at 710
    . We concluded this
    provision did not conflict with an earlier provision providing: “No information or
    statement provided . . . may be used against [her] in this case or any other criminal
    investigation.” 
    Id.
     Mathis’s proffer agreement contained almost verbatim the two
    sentences in Pielago, which were held to allow the government to use anything
    derived from the proffer agreement except the defendant’s statements and
    information making up the proffer. 
    Id.
     Here, the Government used facts derived
    from the statements and not “statements and information which made up
    [Mathis’s] proffer.” See 
    id.
     Thus, the district court’s ruling was not in error.
    C.    Count Six & Duplicity
    Mathis contends the district court erred in failing to require the Government
    to select the subsection of 
    18 U.S.C. § 1956
    (a)(1) under which it intended to
    proceed. Mathis argues Count Six was duplicitous because it charged two separate
    crimes, violations of 
    18 U.S.C. §§ 1956
    (a)(1)(A)(i) and 1956(a)(1)(A)(ii). Count
    Six charged Mathis with conspiracy to commit money laundering and cited both
    subsections of § 1956(a)(1).
    5
    We review a trial court’s decision that a conspiracy charging two objectives
    is not duplicitous de novo. See United States v. Burton, 
    871 F.2d 1566
    , 1573 (11th
    Cir. 1989). While it is true that a count in an indictment may not charge two
    substantive crimes, it has long been the law that a conspiracy may have two
    objectives. See Braverman v. United States, 
    317 U.S. 49
    , 54, 
    63 S. Ct. 99
    , 102
    (1942) (“The allegation in a single count of a conspiracy to commit several crimes
    is not duplicitous, for ‘The conspiracy is the crime, and that is one, however
    diverse its objects.’”).
    In this case, the conspiracy count simply charged two objectives for the
    conspiracy, not duplicitous offenses. The trial court so instructed the jury;
    therefore, no error occurred.
    II. SENTENCING
    Mathis makes two separate, but interrelated sentencing arguments. First,
    Mathis contends the district court erred when it applied a statutory enhancement to
    his mandatory minimum sentence on the basis that he committed a prior felony
    drug offense. Specifically, he claims the district court erred in applying the 
    21 U.S.C. § 841
     sentencing enhancement to his drug counts because his 1987 state
    conviction was vacated before he was convicted and sentenced in this case, and he
    was not seeking to attack the prior conviction’s validity because it had already
    been vacated. Second, Mathis asserts the district court violated his constitutional
    6
    rights under the Ex Post Facto Clause by sentencing him pursuant to the 2005
    Guidelines Manual.
    These claims are interrelated because, as discussed below, if we uphold the
    district court’s use of the 2005 Guidelines Manual, any district court error
    regarding its statutory sentencing enhancement would be harmless because the
    district court still would have sentenced Mathis at or above the enhanced statutory
    minimum. The district court sentenced Mathis to 240 months’ imprisonment for
    the money laundering counts, which is the same amount as the enhanced statutory
    minimum for the drug counts. For sentencing claims, we review a district court’s
    factual findings for clear error, and the district court’s application of the law to
    those facts is reviewed de novo. United States v. Cover, 
    199 F.3d 1270
    , 1274 (11th
    Cir. 2000). We will first examine whether the district court erred in using the 2005
    Guidelines Manual.
    A.    2005 Guidelines Manual
    “The Court shall use the Guidelines Manual in effect on the date that the
    defendant is sentenced.” U.S.S.G. § 1B1.11(a). If the use of the Guidelines
    Manual in effect on the date the defendant is sentenced violates the Ex Post Facto
    Clause, the court must use the Guidelines Manual in effect on the date the
    defendant committed the offense of conviction. U.S.S.G. § 1B.1.11(b)(1). The Ex
    Post Facto Clause protects people against being punished for conduct that was not
    7
    criminal when they engaged in it, being punished more severely than their crime
    was punishable for when committed, or being deprived of defenses then available.
    United States v. De La Mata, 
    266 F.3d 1275
    , 1286 (11th Cir. 2001). The defendant
    does not get the benefit of using multiple Guidelines Manuals; rather, one manual
    is used to sentence the defendant for all crimes. United States v. Bailey, 
    123 F.3d 1381
    , 1403-04 (11th Cir. 1997). In a conspiracy, this rule operates to put a
    defendant on notice that he will be sentenced under the Guidelines in effect at the
    time of the last acts of the conspiracy. 
    Id. at 1405
    .
    The 2000 Guidelines Manual provided an offense level of 23 for money
    laundering while the 2001-2005 Guidelines Manuals provided an offense level of
    38 for the same offense. See U.S.S.G. § 2S1.1(a) (2000); § 2S1.1(a) (2001-2005);
    2D1.1(c)(1) (2001-2005).1 Therefore, if the district court incorrectly used the 2005
    Guidelines Manual, it may have violated Mathis’s rights under the Ex Post Facto
    Clause.2
    1
    The base offense level for money laundering offenses is the level of the underlying
    offense from which the funds were derived, which in this case is the offense level for drug
    offenses specified in U.S.S.G. § 2D1.1(c)(1). See U.S.S.G. § 2S1.1(a)(1).
    2
    We say “may have” here as opposed to “violated” because, post-Booker, it is not clear
    that using one Guidelines Manual over another violates the Ex Post Facto Clause, even when
    using different Guidelines Manuals would produce divergent sentences. Booker made the
    Sentencing Guidelines advisory as opposed to mandatory. United States v. Booker, 
    543 U.S. 220
    , 
    125 S. Ct. 738
     (2005). Because the Guidelines are advisory, it is difficult to say the
    Guidelines, rather than the district court exercising discretion, are the source of the harsher
    punishment when the district court consults, in an advisory manner, the current version of the
    Guidelines. See generally United States v. Demaree, 
    459 F.3d 791
    , 795 (7th Cir. 2006) (noting
    “a rule that a guidelines change cannot be applied retroactively if it would be adverse to the
    8
    To prevail on this claim, Mathis must demonstrate that the district court
    clearly erred when it found the conspiracy continued past November 1, 2001, the
    effective date of the 2001 Guidelines Manual. Mathis fails to make this showing.
    He argues he withdrew from the conspiracy in July 2001, when he surrendered to
    law enforcement. While it is true he surrendered, there were sufficient facts
    showing that Mathis continued to launder money past November 1, 2001.
    Specifically, Mathis purchased two automobiles, one of which the jury convicted
    Mathis of purchasing with proceeds from drug sales. Thus, we conclude the
    district court did not err in using the 2005 Guidelines Manual.
    B.     
    21 U.S.C. § 851
    (e)
    Section 841(b)(1)(A)(ii) states, “[i]f any person commits such a violation
    after a prior conviction for a felony drug offense has become final, such person
    shall be sentenced to a term of imprisonment which may not be less than 20 years
    and not more than life imprisonment.” A defendant cannot challenge the validity
    of the prior conviction if it “occurred more than five years before the date of the
    defendant would have in the long run a purely semantic effect. Instead of purporting to apply
    the new guideline, the judge who wanted to give a sentence based on it would say that in picking
    a sentence consistent with section 3553(a) he had used the information embodied in the new
    guideline.”). We do not conclude one way or another that, after Booker, a district court can
    never violate the Ex Post Facto Clause by using the current Guidelines Manual, because we are
    not required to and the argument is not properly before us. Because we conclude the district
    court was correct, under our pre-Booker precedent to use the 2005 Guidelines Manual, we will
    leave this question to a panel that is required to answer it and where the Government raises the
    argument in the district court and briefs it to this Court.
    9
    information alleging such prior conviction.” 
    21 U.S.C. § 851
    (e). Mathis does not
    argue that his prior state court conviction would not qualify him for an
    enhancement or that his prior conviction occurred more than five years before the
    information alleging such in this case. Rather, Mathis argues the fact his
    conviction was vacated in the interim between the date of the information and the
    date of his sentencing makes it inappropriate for the district court to enhance his
    sentence.
    We recognize this is a close issue 3 but one we ultimately do not need to
    reach because we conclude the district court did not err in using the 2005
    Guidelines Manual. The district court sentenced Mathis to 240 months’
    imprisonment for the money laundering counts, and Mathis does not challenge that
    3
    Mathis adopted his argument from United States v. McChristian, 
    47 F.3d 1499
    , 1502-
    03 (9th Cir. 1995) (holding § 851(e) does not preclude a simple showing that a prior conviction
    has been invalidated in a state court proceeding). The Ninth Circuit borrows its reasoning from
    Custis v. United States, 
    511 U.S. 485
    , 
    114 S. Ct. 1732
     (1994). In Custis, the Supreme Court
    discussed the policy behind the Armed Career Criminal Act, in particular 
    18 U.S.C. § 924
    (e).
    The Supreme Court construed § 924(e) as restricting a defendant’s ability to challenge a
    previous weapons conviction. Id. at 497, 
    114 S. Ct. at 1739
    . The Court held section 924(e)
    prevents a court from reviewing an underlying conviction unless a defendant was claiming a
    violation to the right of counsel. 
    Id. at 495
    , 
    114 S. Ct. at 1738
    . Unlike the drug offender
    sections, however, the Armed Career Criminal Act contains a definition of conviction precluding
    a “conviction which has been expunged, or set aside or for which a person has been pardoned or
    has had civil rights restored . . . .” 
    18 U.S.C. § 921
    (a)(20). We note there is some doubt over
    whether the reasoning in Custis, on which the Ninth Circuit relied to allow a showing that a prior
    conviction had been invalidated, should apply to a drug offender, where the drug-offender statute
    does not define conviction. We decline to decide this issue at this time, however, because
    Mathis admits that any error is harmless if we uphold the district court’s use of the 2005
    Guidelines Manual.
    10
    sentence as unreasonable. Therefore, even if we determined the § 841
    enhancement was in error, that error would be harmless because the district court’s
    valid 240-month sentence for money laundering is equal to the statutory minimum
    § 841 would proscribe. Mathis admits that any error is not prejudicial, and
    therefore, we will not reach the merits of this issue.
    III. JURY VERDICT
    Mathis makes several challenges to the jury’s verdict. First, he challenges
    the sufficiency of the evidence the district court found to deny him a directed
    verdict as to Counts 7, 14, and 33, and, second, Mathis challenges the sufficiency
    of the evidence the jury found to sustain a verdict against him on the money
    laundering and substantive drug counts. Because Mathis did not renew his motion
    for acquittal after the close of all evidence, these claims are reviewed for a
    miscarriage of justice. See United States v. Bender, 
    290 F.3d 1279
    , 1284 (11th Cir.
    2002) (holding, where a defendant never makes a motion for judgment of acquittal
    or fails to renew it at the close of all evidence, a claim of insufficiency of the
    evidence is reviewed for a manifest miscarriage of justice). We conclude no
    miscarriage of justice occurred and affirm.
    11
    IV. CONCLUSION
    Based on the above discussion, we conclude the district court did not err and
    that no miscarriage of justice occurred. We affirm Mathis’s convictions and
    sentence.
    AFFIRMED.
    12