              Case: 14-10442     Date Filed: 11/12/2014   Page: 1 of 8


                                                           [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 14-10442
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 8:13-cr-00222-JDW-MAP-1



UNITED STATES OF AMERICA,

                                                           Plaintiff - Appellee,


                                       versus

RICKY MUOIO,

                                                           Defendant - Appellant.

                           ________________________

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

                               (November 12, 2014)

Before MARCUS, WILLIAM PRYOR, and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Ricky Muoio appeals his convictions and sentence imposed after a jury

convicted him of possession with intent to distribute and distribution of
                 Case: 14-10442        Date Filed: 11/12/2014         Page: 2 of 8


methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). After

careful review of the record and the parties’ briefs, we affirm.

                                                  I.

       On April 11, 2013, a confidential informant who previously had purchased

substantial amounts of methamphetamine from Mr. Muoio went to Mr. Muoio’s

then-current residence to complete another purchase.1 Mr. Muoio did not answer

the door, but the informant heard sounds from within a bedroom at the front of the

residence. She knocked on the bedroom window. Mr. Muio, from within that

bedroom, asked who was there, and the informant identified herself. Mr. Muoio

then opened the front door for her and led her inside to the kitchen table. A few

minutes later, Mr. Muoio went back to the bedroom and returned with drugs to sell

to the informant. The informant purchased from Mr. Muoio approximately two

ounces of a substance later determined to contain 44.9 grams of methamphetamine.

Later, on April 24, 2013, law enforcement officers searched the residence. They

seized an additional 36.4 grams of methamphetamine, as well as various papers

bearing Mr. Muoio’s name, from the bedroom Mr. Muoio occupied when the

informant had knocked on the window.




1
  Because Mr. Muoio mounts a challenge to the sufficiency of the evidence against him, we
recite the facts relevant to his conviction in the light most favorable to the jury’s verdict. See
United States v. Haile, 685 F.3d 1211, 1219 (11th Cir. 2012).
                                                  2
                   Case: 14-10442       Date Filed: 11/12/2014      Page: 3 of 8


          A grand jury returned an indictment charging Mr. Muoio with one count of

distribution of 50 grams or more of a substance containing methamphetamine and

one count of possession with intent to distribute 5 grams or more of the same, all in

violation of 21 U.S. C. § 841(a)(1) and (b)(1)(B). Mr. Muoio pleaded not guilty.

While awaiting trial, he made several inculpatory statements to two cellmates, one

of whom owned the residence where Mr. Muoio was staying and where the drugs

were found.2 The cellmates testified at trial to Mr. Muoio’s admissions.

          Also at trial, the government introduced testimony from a witness who

previously had purchased multiple-ounce quantities of methamphetamine from Mr.

Muoio, as well as evidence of Mr. Muoio’s prior convictions for trafficking in

methamphetamine. The district court instructed the jury that evidence of Mr.

Muoio’s prior dealings could be considered “only for the limited purpose [of]

determining whether the defendant acted with the required intent and knowledge.”

“In other words,” the court stated, “you don’t prove someone’s guilt because he or

she committed a crime in the past, but it’s considered by you solely on the issue of

intent and knowledge.” The court gave a similar limiting instruction after the

testimony of the informant who purchased methamphetamine from Mr. Muoio.

          The jury found Mr. Muoio guilty on both counts in the indictment. The

probation office’s presentence investigation report recommended that the district


2
    The residence’s owner was jailed for a separate drug offense.
                                                  3
                Case: 14-10442       Date Filed: 11/12/2014       Page: 4 of 8


court sentence Mr. Muoio as a career offender under section 4B1.1 of the

sentencing guidelines. See U.S.S.G. § 4B1.1(a) (“A defendant is a career offender

if . . . the defendant has at least two prior felony convictions of . . . a controlled

substance offense.”). Mr. Muoio had two prior felony convictions for drug

trafficking offenses committed in September 2004 and in May 2005. At

sentencing, the district court applied the career offender enhancement over Mr.

Muoio’s objection (in which he argued the two convictions should be treated as

only one because the two offenses were consolidated for sentencing), pointing out

that prior convictions are treated separately where there is an intervening arrest.

The court imposed a below-guidelines sentence of 240 months’ imprisonment. 3

       This is Mr. Muoio’s appeal.

                                               II.

       Mr. Muoio first challenges the admission of his prior crimes and illicit

dealings as impermissible under Rules 403 and 404(b) of the Federal Rules of

Evidence. He contends the prior activities were both irrelevant to the offense

conduct and unduly prejudicial. We review for an abuse of discretion the district

court’s decision to admit evidence of prior crimes or bad acts under Rule 404(b).

United States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir. 2008). To be admissible

under Rule 404(b), this evidence must withstand a three-part test: (1) the evidence

3
 Mr. Muoio’s career offender status boosted his guidelines range to 360 months’ to life
imprisonment.
                                               4
               Case: 14-10442    Date Filed: 11/12/2014    Page: 5 of 8


must be relevant to an issue other than the defendant’s character; (2) the probative

value of the evidence must not be substantially outweighed by its undue prejudice;

and (3) the government must offer sufficient proof so that the jury could find that

the defendant committed the act sought to be admitted. See id. Mr. Muoio

contests the first two of these elements. We discuss them in turn.

      Evidence is relevant if it is both probative and material. See Fed. R. Evid.

401. Because Mr. Muoio pleaded not guilty, whether he possessed the requisite

intent to distribute methamphetamine was a material issue. See United States v.

Matthews, 431 F.3d 1296, 1311 (11th Cir. 2005). Evidence of prior drug dealings,

we have explained, is highly probative of intent to possess and distribute a

controlled substance. See id. This is especially so in a case, such as this one,

where the prior bad acts concern the same offense conduct and the same drug as

the offense charged. See United States v. Calderon, 127 F.3d 1314, 1331 (11th

Cir. 1997). Thus, despite Mr. Muoio’s assertions to the contrary, the evidence

satisfied the first element.

      Furthermore, we cannot say that the district court abused its discretion in

concluding that the evidence satisfied the second element of admissibility under

Rule 404(b). As we previously stated, the evidence was probative of a critical

contested element of the government’s case, the defendant’s intent. See United

States v. Dorsey, 819 F.2d 1055, 1060-61 (11th Cir. 1987) (explaining that, where


                                          5
               Case: 14-10442     Date Filed: 11/12/2014    Page: 6 of 8


the issue of intent dominates the case, the government’s need to use the evidence

weighs in favor of admissibility). To the extent the evidence was prejudicial in

nature, the district court’s detailed limiting instructions to the jury mitigated the

prejudicial effects. See Calderon, 127 F.3d at 1333. Indeed, in the absence of

evidence to the contrary, we must assume the jury followed the court’s well-

articulated instructions. United States v. Brazel, 102 F.3d 1120, 1145 (11th Cir.

1997); see also United States v. Sterling, 738 F.3d 228, 237-38 (11th Cir. 2013),

cert. denied, 134 S. Ct. 2682 (2014). For these reasons, we conclude the district

court did not abuse its discretion in admitting evidence of Mr. Muoio’s prior

crimes and bad acts.

      Next, Mr. Muoio challenges the sufficiency of the evidence against him. We

review the sufficiency of the evidence de novo, “viewing the evidence in the light

most favorable to the government and resolving all reasonable inferences and

credibility evaluations in favor of the jury’s verdict.” United States v. Haile, 685

F.3d 1211, 1219 (11th Cir. 2012). To sustain a conviction on the distribution

count, the government was required to show (1) knowing or intentional (2)

distribution (3) of a controlled substance. 21 U.S.C. § 841(a)(1). The government

supported each of these elements with testimony from the informant who

purchased drugs from Mr. Muoio. She testified that, after previously buying

methamphetamine from Mr. Muoio, she went to his residence and he again


                                           6
               Case: 14-10442     Date Filed: 11/12/2014    Page: 7 of 8


personally sold her the drug. Mr. Muoio contends the informant’s testimony was

not credible, citing her history of drug activity and “motive to lie,” but the jury

apparently decided otherwise. “We are bound by the jury’s credibility choices, and

by its rejection of the inferences raised by the defendant.” United States v.

Broughton, 689 F.3d 1260, 1277 (11th Cir. 2012) (internal quotation marks

omitted). The evidence was sufficient to sustain Mr. Muoio’s conviction on the

distribution count.

      As regards Mr. Muoio’s conviction for possession with intent to distribute,

the government was required to establish three elements: (1) knowledge, (2)

possession, and (3) intent to distribute. United States v. Garcia-Bercovich, 582

F.3d 1234, 1237 (11th Cir. 2009); see 21 U.S.C. § 841(a)(1). Mr. Muoio appears

to contest all three elements. We conclude, however, that the government

presented sufficient evidence of all three elements to sustain a conviction. A jury

reasonably could have inferred, based on documents bearing Mr. Muoio’s name

that law enforcement agents found in the bedroom (which also contained the

drugs) and based on the informant’s testimony that Mr. Muoio was in the bedroom

when she arrived and later returned to it to retrieve the methamphetamine that he

sold her, that Mr. Muoio knowingly possessed the methamphetamine the officers




                                           7
                Case: 14-10442        Date Filed: 11/12/2014       Page: 8 of 8


found in that room. 4 And Mr. Muoio’s dealings with the informant, as well as the

evidence the government admitted under Rule 404(b), established his intent to

distribute the drug. This evidence, although circumstantial, was sufficient to

sustain a conviction under section 841(a)(1). 5

       Finally, Mr. Muoio challenges his classification as a career offender under

U.S.S.G. § 4B1.1. We review the district court’s factual findings for clear error

and its application of the sentencing guidelines to those facts de novo. United

States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002). Although Mr. Muoio cites

U.S.S.G. § 4A1.2(a)(2) to contend that sentences ultimately imposed on the same

day are counted as one offense, that provision expressly does not apply “if the

sentences were imposed for offenses that were separated by an intervening arrest,”

as was indisputably the case here. Accordingly, the district court properly treated

the prior convictions (and resulting sentences) as separate for purposes of

sentencing Mr. Muoio as a career offender.

                                               III.

       For the foregoing reasons, we affirm Mr. Muoio’s convictions and sentence.

AFFIRMED.


4
  Trial testimony from Mr. Muoio’s cellmates, as well as from the undercover agents working
with the informant, corroborated the informant’s testimony.
5
  Mr. Muoio also challenges the district court’s finding that he was responsible for at least 50
grams of methamphetamine, but he does so only on the basis of his sufficiency of the evidence
argument. Because we conclude the evidence was sufficient to sustain a conviction on both
counts, his related argument necessarily fails.
                                                8
