         Case: 18-10696   Date Filed: 08/16/2019   Page: 1 of 26


                                                       [DO NOT PUBLISH]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
                    ________________________

                           (August 16, 2019)
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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)).




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                                          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).

                                          A.

      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
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      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.




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                                          B.

      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

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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.

                                          C.

      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. §

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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).




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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




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