          Case: 18-14125   Date Filed: 02/10/2020   Page: 1 of 8


                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 18-14125
                       Non-Argument Calendar
                     ________________________

             D.C. Docket No. 5:17-cr-00013-MTT-CHW-7



UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                 versus

RUSSELL TODD MATHIS,

                                                        Defendant-Appellant.

                     ________________________

              Appeal from the United States District Court
                  for the Middle District of Georgia
                    ________________________

                           (February 10, 2020)
              Case: 18-14125      Date Filed: 02/10/2020   Page: 2 of 8


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



                                           2
               Case: 18-14125      Date Filed: 02/10/2020    Page: 3 of 8


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


                                            3
              Case: 18-14125     Date Filed: 02/10/2020      Page: 4 of 8


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


                                          4
                Case: 18-14125        Date Filed: 02/10/2020       Page: 5 of 8


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.
                                                5
              Case: 18-14125     Date Filed: 02/10/2020   Page: 6 of 8


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


                                          6
              Case: 18-14125     Date Filed: 02/10/2020   Page: 7 of 8


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


                                          7
                Case: 18-14125   Date Filed: 02/10/2020    Page: 8 of 8


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.




                                          8
