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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-14125
Non-Argument Calendar
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D.C. Docket No. 5:17-cr-00013-MTT-CHW-7
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUSSELL TODD MATHIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(February 10, 2020)
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Before BRANCH, GRANT, and TJOFLAT, Circuit Judges.
PER CURIAM:
Russell Todd Mathis was convicted of conspiracy to possess with the intent
to distribute methamphetamine, in violation of 21 U.S.C. § 846, and aiding and
abetting the possession with the intent to distribute methamphetamine, in violation
of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii). He was sentenced to life in prison and
now appeals his convictions and sentence. With respect to his convictions, he
argues that the government failed to present sufficient evidence to support the
jury’s verdict. With respect to his sentence, he argues that the district court erred
in considering acquitted conduct during sentencing, or alternatively, that the
district court erred by concluding that the government proved by a preponderance
of the evidence that he possessed a dangerous weapon for purposes of an
enhancement under U.S.S.G. § 2D1.1(b)(1). We reject his arguments and affirm.
I
We review de novo the denial of a motion for judgment of acquittal on
sufficiency grounds. United States v. Browne,
505 F.3d 1229, 1253 (11th Cir.
2007). We view the evidence “in the light most favorable to the Government,
drawing all reasonable inferences and credibility choices in the Government’s
favor.”
Id. We will affirm a district court’s denial of a motion for judgment of
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acquittal if a reasonable jury could conclude that the evidence establishes the
defendant’s guilt beyond a reasonable doubt.
Id.
We review constitutional challenges to a defendant’s sentence de novo.
United States v. Bowers,
811 F.3d 412, 430 (11th Cir. 2016). We review the
district court’s factual findings for clear error and will “not disturb the district
court’s finding of fact unless we have a definite and firm conviction that a mistake
has been made.” United States v. Maddox,
803 F.3d 1215, 1220 (11th Cir. 2015)
(internal quotation marks omitted).
II
We readily reject Mathis’s argument that the evidence was insufficient to
convict him. Even a short recitation of some evidence against him is enough to
conclude that a reasonable jury could find him guilty of both crimes of conviction
beyond a reasonable doubt.
First, we consider his conspiracy conviction. To prove a conspiracy to
distribute narcotics, the government must show “that 1) an agreement existed
between two or more persons to distribute the drugs; 2) that the defendant at issue
knew of the conspiratorial goal; and 3) that he knowingly joined or participated in
the illegal venture.” United States v. Matthews,
168 F.3d 1234, 1245 (11th Cir.
1999). The government establishes proof of a single conspiracy when it shows that
the defendant either facilitated the actions of co-conspirators or the venture as a
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whole. United States v. Chandler,
388 F.3d 796, 811–12 (11th Cir. 2004). The
government may prove the existence of a conspiracy through circumstantial
evidence, including inferences from the conduct of alleged participants. United
States v. Silvestri,
409 F.3d 1311, 1328 (11th Cir. 2005).
Here, the government presented ample evidence for a reasonable jury to
convict Mathis of conspiracy. Walter Williams testified that Mathis routinely
purchased methamphetamine from him in increasingly large quantities. This was
corroborated by evidence—from a roving wiretap targeting Williams—of
numerous texts and calls indicating drug transactions between Williams and
Mathis. Williams testified that when Mathis got in trouble and was required to
wear an ankle monitor, he would send his girlfriend, Elizabeth Gallaher, to pick up
the drugs. Moreover, Dana Stokes and Ashley Shaw both testified that Mathis
purchased large quantities of methamphetamine from Williams and worked with
others to distribute it. Williams, Shaw, and Stokes, each identified purchases or
sales of methamphetamines by Mathis that jury could reasonably conclude
amounted to participation or facilitation of the conspiracy.
Additionally, three large quantities of methamphetamine seized in the course
of the investigation had a nexus to Mathis. First, a significant quantity of
methamphetamine and a firearm were found in the car of Elizabeth Gallaher, with
text messages from the wiretap and phone call recordings from the jail indicating
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that Gallaher was transporting the methamphetamine at the direction of Mathis.
Second, a Pringles can filled with methamphetamine was seized from a home
where Mathis’s truck was parked and where a man generally matching Mathis’s
description was seen fleeing at the time of the police raid. And finally, a bag of
methamphetamine, a firearm, and a scale were seized from a backpack Mathis was
seen wearing. All of this evidence was more than sufficient to sustain the jury’s
verdict on the conspiracy charge.1
Mathis’s possession with intent to distribute conviction is also supported by
ample evidence. To support a conviction for possession with intent to distribute
under 21 U.S.C. § 841(a)(1), the government must prove three elements: (1)
knowledge, (2) possession, and (3) intent to distribute. United States v. Poole,
878
F.2d 1389, 1391 (11th Cir. 1989). Possession may be actual or constructive, and if
the defendant “exercised some measure of dominion or control over the
contraband,” regardless of whether this control was shared with others, the
1
Mathis suggests that we should only consider the methamphetamine found in Gallaher’s car
because he was acquitted of the possession charges stemming from the other seizures. This is
incorrect. The Supreme Court has explained that sufficiency-of-the-evidence review is
“independent of the jury’s determination that evidence on another count was insufficient.”
United States v. Powell,
469 U.S. 57, 67 (1984). And in the RICO context, we have held that
“neither the acquittal of appellants nor their codefendants on other counts alleging similar or
related conduct is relevant to the issue of whether sufficient evidence supports appellants’ RICO
conspiracy convictions.” United States v. Shenberg,
89 F.3d 1461, 1470 (11th Cir. 1996); see
also United States v. Munoz,
430 F.3d 1357, 1366 n.8 (11th Cir. 2005) (A “defendant can be
convicted of conspiracy but acquitted of the substantive crimes.”). In any event, even if Mathis
were correct, substantial evidence still supports his convictions and it would not change our
result.
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defendant constructively possessed it. United States v. Pantoja-Soto,
739 F.2d
1520, 1525 (11th Cir. 1984) (internal quotation marks omitted). Additionally, the
intent to distribute may be inferred from the quantity of contraband seized. United
States v. Iglesias,
915 F.2d 1524, 1528 (11th Cir. 1990). “In proving that a
defendant aided and abetted possession of a controlled substance with intent to
distribute, the government must introduce evidence connecting defendant with
both aspects of the crime, possession and intent to distribute.”
Pantoja-Soto, 739
F.2d at 1525 (internal quotation marks omitted).
The government provided numerous texts, calls, and testimony to show that
Gallaher’s possession of the methamphetamine on October 8, 2016 was pursuant to
an arrangement between Williams and Mathis. Williams testified that he would
“front” distribution quantities of methamphetamine to Mathis who would repay
him later. He testified that when Mathis was unable to meet due to his ankle
monitor, he would send Gallaher to pick up the drugs instead. When the large
quantity of methamphetamine (664.2 grams) was found in Gallaher’s vehicle
following a traffic stop, contemporaneous phone calls between Williams and
Mathis—captured on the wiretap—suggested that her activity was coordinated by
the two men. And finally, the day after Gallaher’s arrest, a recorded jail phone call
demonstrated that Mathis was directing Gallaher. When Gallaher said “I put
myself into this position,” Mathis responded: “You didn’t. I did.” And later in the
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same call, when Gallaher said that she was “sorry,” Mathis responded “. . .for
what? Doing what I asked you too?” All of this evidence was more than sufficient
for a reasonably jury to conclude that Mathis aided and abetted Gallaher’s
possession of methamphetamine with intent to distribute.
III
We also reject the challenge to Mathis’s sentence. Mathis argues that the
district court improperly considered acquitted conduct when it found, for
sentencing purposes, that he possessed a firearm. He makes two alternative
arguments on this point. First, he argues that because the jury acquitted him of the
possession of a firearm and the related drug offense, the district court improperly
considered the firearm at sentencing. Second, he argues—in a single sentence with
no elaboration—that the “trial court erred in finding, by preponderance of the
evidence, that Mr. Mathis possessed a firearm.”
We can reject his first argument based on clear precedent. “It is well
settled . . . that the sentencing court may consider any fact for which a defendant
has been acquitted as long as the Government proves, by a preponderance of the
evidence, the occurrence of that conduct and as long as the enhancement results in
a sentence below the maximum statutory penalty authorized by the jury’s verdict.”
Maddox, 803 F.3d at 1220. Because the district court found that the government
proved the possession of a firearm by a preponderance of the evidence, and
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because it sentenced him to a statutorily authorized penalty, it properly applied the
U.S.S.G. § 2D1.1(b)(1) enhancement.
We can also easily dispose of his second point. When reviewing the
application of a sentencing enhancement, we will “not disturb the district court’s
finding of fact unless we have a definite and firm conviction that a mistake has
been made.”
Maddox, 803 F.3d at 1220 (internal quotation marks omitted). We
have no such conviction here. It was not clear error for the district court to
conclude, by a preponderance of the evidence, that Mathis possessed the firearm.
Testimony established that two officers saw Mathis wearing a backpack, followed
him to a house, arrested him, and discovered a pistol and methamphetamine inside
the backpack.
AFFIRMED.
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