           Case: 18-14239   Date Filed: 07/26/2019   Page: 1 of 12


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-14239
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:18-cr-00039-WS-N-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

CHARLES RAYMOND STAGNER,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                       ________________________

                              (July 26, 2019)

Before WILSON, ANDERSON, and HULL, Circuit Judges.

PER CURIAM:
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      Charles Raymond Stagner appeals his convictions and 132-month

concurrent sentences for possession with intent to distribute methamphetamine.

Stagner argues that: (1) the district court erred by denying his motion for a

judgment of acquittal because the government did not prove that he intended to

distribute methamphetamine; (2) the district court abused its discretion by

admitting evidence of his past conviction for conspiracy to manufacture

methamphetamine under Fed. R. Evid. 404(b); (3) the district court plainly erred

by not assessing a 2-level reduction for acceptance of responsibility; and (4) his

132-month sentences were substantively unreasonable because the district court

did not consider his drug addiction and erroneously stated that the mandatory

minimum did not account for his prior conviction.

                                          I.

      We review the denial of a motion for a judgment of acquittal de novo,

viewing all facts and inferences in the light most favorable to the government.

United States v. Holmes, 814 F.3d 1246, 1250 (11th Cir. 2016). The district

court’s denial of a motion for a judgment of acquittal will be upheld if a reasonable

trier of fact could conclude that the evidence establishes the defendant’s guilt

beyond a reasonable doubt. Id. We will not overturn the jury’s verdict if any

reasonable construction of the evidence would have allowed the jury to find the




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defendant guilty. United States v. Henderson, 893 F.3d 1338, 1348 (11th Cir.

2018).

        To convict a defendant of possession with intent to distribute a controlled

substance, the government must prove knowing possession and intent to distribute.

United States v. Williams, 865 F.3d 1328, 1344 (11th Cir. 2017), cert. denied, 138

S. Ct. 1282 (2018); see 21 U.S.C. § 841(a)(1). Knowledge, possession, and intent

can be proven by direct or circumstantial evidence. United States v. Poole, 878

F.2d 1389, 1391-92 (11th Cir. 1989). Intent to distribute can be proven

circumstantially from the quantity of drugs and the existence of implements, like

scales, that are commonly used in connection with the distribution of drugs. Id. at

1392.

        Here, the district court did not err in denying Stagner’s motion for a

judgment of acquittal because the evidence presented at trial, including that a

confidential informant bought methamphetamine from Stagner, officers searching

his home found 15 grams of methamphetamine along with razor blades, scales, and

small plastic baggies, and he admitted to selling methamphetamine, was sufficient

for a reasonable juror to find that he was guilty beyond a reasonable doubt.

                                           II

        We review evidentiary decisions for abuse of discretion. United States v.

Nerey, 877 F.3d 956, 974 (11th Cir. 2017). However, we review unpreserved


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evidentiary arguments for plain error. United States v. Jernigan, 341 F.3d 1273,

1280 (11th Cir. 2003). Under plain error review, the defendant must show

(1) error; (2) that was plain; (3) that affected his substantial rights; and (4) that

seriously affected the fairness of the judicial proceedings. Id.

      Evidence of a past crime is not admissible to prove a person’s character to

show that on a particular occasion the person acted in accordance with the

character. Fed. R. Evid. 404(b)(1). This evidence may be admissible for another

purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident. Fed. R. Evid. 404(b)(2). A

district court may exclude evidence if its probative value is substantially

outweighed by the danger of unfair prejudice, confusing the issues, misleading the

jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Fed. R. Evid. 403.

      To be admissible under Rule 404(b)(2), a prior act (1) must be relevant to an

issue other than the defendant’s character; (2) must be sufficiently proven to permit

a jury determination that the defendant committed that act; (3) must have probative

value that is not substantially outweighed by undue prejudice; and (4) must

otherwise satisfy Rule 403. Nerey, 877 F.3d at 974.

      A defendant who enters a not guilty plea makes intent a material issue,

which the government may prove by qualifying Rule 404(b) evidence. United


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States v. Sterling, 738 F.3d 228, 238 (11th Cir. 2013). Where the state of mind

required for the charged and extrinsic offenses is the same, the first prong of the

Rule 404(b) test is satisfied. Id. Prior convictions involving the same drug may be

probative of intent even if the crimes are not identical. See United States v. Smith,

741 F.3d 1211, 1226 (11th Cir. 2013) (holding that a prior conviction for

possession was probative of intent to distribute). A prior conviction involving the

same drug is probative even where the conviction is many years old. See id. at

1225-26.

      Extrinsic evidence of other crimes is inherently prejudicial to the defendant

because it may entice the jury to draw the prohibited inference that a defendant

previously convicted of a crime likely committed the same crime again. Sterling,

738 F.3d at 238. This type of evidence is disfavored because of the possibility for

its misuse, especially where the government has a strong case. Id. However, a

limiting instruction may mitigate unfair prejudice caused by the admission of a

prior conviction. United States v. Edouard, 485 F.3d 1324, 1346 (11th Cir. 2007).

This Court presumes that jurors follow the instructions of the district court. See

United States v. LaFond, 783 F.3d 1216, 1222 (11th Cir. 2015).

      Here, the district court did not abuse its discretion in admitting evidence of

Stagner’s past conviction for conspiracy to manufacture methamphetamine. First,

the past conviction was relevant to prove intent, which Stagner put at issue by


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pleading not guilty. See Fed. R. Evid. 404(b); Nerey, 877 F.3d at 974; Sterling,

738 P.3d at 238. As to Stagner’s argument on this prong of the Nerey test, which

he raises for the first time on appeal, the district court did not err, plainly or

otherwise. It was correct in concluding that the conviction was relevant, without

requiring proof of the state of mind required for both crimes, because this Court

has held that a past conviction involving the same controlled substance as the

charged crime is relevant to prove intent even where the crimes are not identical.

See Smith, 741 F.3d at 1226. Further, the past conviction, which occurred nine

years earlier, was not too remote to have probative value. See id. at 1225-26.

Next, the conviction met the second prong of the test because the government

introduced a certified copy. Nerey, 877 F.3d at 974. Finally, although the

evidence of the past conviction was prejudicial to Stagner, the district court

mitigated that prejudice by providing a limiting instruction at the time the

conviction was introduced. Edouard, 485 F.3d at 1346; LaFond, 783 F.3d at 1222.

Thus, the prejudicial effect did not substantially outweigh the conviction's

probative value. See Nerey, 877 F.3d at 974. Finally, there is no evidence that the

introduction of the conviction otherwise created a risk contemplated in Rule 403.

See id. Accordingly, the district court did not abuse its discretion in admitting

evidence of Stagner’s prior conviction under Rule 404(b).




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                                           III

      In reviewing a district court’s refusal to grant a reduction for acceptance of

responsibility, we review the district court’s interpretation of the guidelines de

novo and its factual findings for clear error. United States v. Mathews, 874 F.3d

698, 709 n.7 (11th Cir. 2017). However, where an appellant fails to clearly

articulate the grounds for an objection, we apply the plain error standard. See

United States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006). An error affects a

party’s substantial rights if it had a substantial influence on the outcome of the

case. United States v. Cruickshank, 837 F.3d 1182, 1191 (11th Cir. 2016). An

error is plain if it contradicts precedent from the Supreme Court or us directly

resolving the issue. Id.

      Under U.S.S.G. § 3E1.1, a defendant’s offense level is decreased by two

levels if he clearly demonstrates acceptance of responsibility. U.S.S.G. § 3E1.1(a).

The defendant bears the burden of demonstrating that he is entitled to a reduction

for his acceptance of responsibility. United States v. Gupta, 572 F.3d 878, 890

(11th Cir. 2009). The reduction is not intended to apply to a defendant “who puts

the government to its burden of proof at trial by denying the essential factual

elements of guilt.” U.S.S.G. § 3E1.1, comment. (n.2). However, a defendant who

goes to trial may be eligible for the reduction if he proceeded to trial to preserve

issues not related to factual guilt, such as a constitutional challenge to a statute or a


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challenge to the applicability of a statute to his conduct. Id. A defendant is not

eligible for an acceptance-of-responsibility reduction if he denies guilt in the face

of evidence to the contrary. United States v. Williams, 627 F.3d 839, 844 (11th

Cir. 2010).

      Here, as an initial matter, this claim should be reviewed for plain error

because Stagner did not raise it below. See Massey, 443 F.3d at 818. On the

merits, the district court did not plainly err in denying an acceptance-of-

responsibility reduction because Stagner proceeded to trial to challenge his factual

guilt. See U.S.S.G. § 3E1 .1, comment. (n.2). At trial, he contended that the

government had not proven his intent to distribute on Count 2 and had not proven

possession or intent to distribute on Count 1—challenging his factual guilt, not the

constitutionality of the criminal statute or its application to his undisputed conduct.

U.S.S.G. § 3E1 .1, comment (n.2). He continued to deny his factual guilt at

sentencing, despite the government having provided substantial evidence to the

contrary. Williams, 627 F.3d at 844. Further, any error was not plain because the

court’s decision was not contrary to binding precedent directly resolving the issue.

See Cruickshank, 837 F.3d at 1191. Moreover, even if there were error that was

plain, it would not have affected Stagner’s substantial rights, because a two-level

reduction would not have changed his guideline calculations. See Cruickshank,

837 F.3d at 1191. Stagner’s calculated guideline range, based on a total offense


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level of 24 and a criminal history category of II, was 57-71 months. However,

Count 2 carried a mandatory minimum of 120 months, making his guideline term

120 months. A two-level acceptance-of-responsibility reduction would have

reduced the calculated range to 46-57 months, but would not have affected the

ultimate guideline term of 120 months. Thus, any error in calculating Stagner’s

guideline range would not have changed the outcome of the case. See

Cruickshank, 837 F.3d at 1191.

                                         IV

      We review the reasonableness of a sentence under the deferential abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). The party

challenging the sentence bears the burden of showing the sentence is unreasonable

in light of the record and the § 3553(a) factors. United States v. Tome, 611 F.3d

1371, 1378 (11th Cir. 2010).

      The district court must impose a sentence “sufficient, but not greater than

necessary to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including

the need to reflect the seriousness of the offense, promote respect for the law,

provide just punishment for the offense, deter criminal conduct, and protect the

public from the defendant’s future criminal conduct. See 18 U.S.C. § 3553(a)(2).

The court must also consider the nature and circumstances of the offense and the

history and characteristics of the defendant. Id. § 3553(a)(1).


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      The weight given to any specific § 3553(a) factor is committed to the sound

discretion of the district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir.

2007). A court can abuse its discretion when it fails to consider relevant factors

that were due significant weight, gives an improper or irrelevant factor significant

weight, or commits a clear error of judgment by balancing the proper factors

unreasonably. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en

banc). District courts have broad leeway in deciding how much weight to give to

prior crimes the defendant has committed. United States v. Rosales-Bruno, 789

F.3d 1249, 1261 (11th Cir. 2015) (rejecting defendant’s argument that the district

court gave unreasonable weight to his criminal history in imposing a 60-month

upward variance). The district court may not apply a presumption of

reasonableness to the sentencing guideline range and must actually consider the

relevant statutory factors. Nelson v. United States, 555 U.S. 350, 352 (2009).

However, the district court need not discuss each individual factor on the record.

Irey, 612 F.3d at 1194-95. Rather, it is sufficient for the district court to

acknowledge that it has considered the defendant’s arguments and the § 3553(a)

factors. Id. We will vacate a sentence only if the district court “committed a clear

error in judgment in weighing the § 3553(a) factors.” Id. at 1190. If the district

court determines that a sentence outside the guideline range is warranted, it must




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ensure the justification is sufficiently compelling to support the degree of the

variance. Gall, 552 U.S. at 50.

      Here, the district court did not abuse its discretion by imposing substantively

unreasonable sentences. As the government concedes, the district court was not

correct in stating that the mandatory minimum did not take Stagner's prior

conviction into account. His prior conviction triggered the mandatory minimum,

raising his guideline range from 57-71 months to 120 months. 28 U.S.C.

§ 841(b)(1)(B). However, the district court did not support its 12-month upward

variance with that consideration alone. In imposing Stagner’s sentences, it also

cited his lack of remorse, the seriousness of the offense, and the need for respect

for the law, just punishment, deterrence, and protection of the public. 18 U.S.C.

§ 3553(a). Further, the district court acted within its discretion in considering

Stagner’s criminal history as a factor supporting an upward variance. See Rosales-

Bruno, 789 F.3d at 1261. The district court’s discussion showed that it considered

the § 3553(a) factors and found that they justified a 12-month upward variance.

See Irey, 612 F.3d at 1194-95; Gall, 552 U.S. at 50. In addition, because it

acknowledged that it considered Stagner’s arguments and the § 3553(a) factors, the

district court was not required to specifically address his drug addiction. See Irey,

612 F.3d at 1194-95. Thus, it cannot be said that the district court committed a




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clear error of judgment in weighing the § 3553(a) factors. See Irey, 612 F.3d at

1190.

        AFFIRMED.




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