           Case: 19-11604   Date Filed: 08/07/2020   Page: 1 of 11



                                                         [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-11604
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 4:18-cr-00017-CDL-MSH-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

RODNEY BURKE,

                                                         Defendant-Appellant.

                      ________________________

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

                             (August 7, 2020)

Before JORDAN, NEWSOM, and BRANCH, Circuit Judges.

PER CURIAM:
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       Rodney Burke appeals his convictions for possession with intent to

distribute 50 grams or more of methamphetamine 1 and possession of a firearm by a

convicted felon. 2 Burke argues that the government failed to present evidence

sufficient to sustain a conviction for possession of a firearm by a convicted felon

pursuant to Rehaif v. United States, 139 S. Ct. 2191 (2019). 3 Burke also argues

that the district court plainly erred while re-charging the jury by failing to instruct

as to the burden of proof required for a special-verdict question concerning the

amount of methamphetamine attributable to him.4 We affirm.



       1
           21 U.S.C. § 841(a)(1), (b)(1)(B)(viii).
       2
           18 U.S.C. § 922(g)(1).
       3
         Burke also asserts for the first time on appeal that the written stipulation providing that
Burke had been convicted of a felony, which he and his trial counsel signed, referred in the first
paragraph to an unknown individual named “Marcus Crocker,” and that “[t]his error alone should
be enough to negate the stipulated facts contained therein.” Burke, however, provides no citation
to authority in support of this proposition, and no supporting argument as to why he is entitled to
relief under plain error review. This argument is therefore waived. United States v. Flores, 572
F.3d 1254, 1265 n.3 (11th Cir. 2009) (explaining that a bare allegation without any supporting
authority will be deemed waived on appeal); see also Sapupo v. Allstate Floridian Ins. Co., 739
F.3d 678, 681 (11th Cir. 2014) (“We have long held that an appellant abandons a claim when he
either makes only passing references to it or raises it in a perfunctory manner without supporting
arguments and authority.”).
       4
          Burke also raises, for the first time on appeal, two ineffective assistance of counsel claims
relating to the weight and quantity of the drugs. We do not review claims for ineffective assistance
of counsel on direct appeal where the claims were not raised before the district court and there has
been no opportunity to develop a record of evidence relevant to the merits of the claims. United
States v. Franklin, 694 F.3d 1, 8 (11th Cir. 2012). Should Burke choose to pursue these claims
further, they would be better resolved in a 28 U.S.C. § 2255 proceeding, where an evidentiary
hearing may be held. See United States v. Camacho, 40 F.3d 349, 355 (11th Cir. 1994), overruled
in part on other grounds by United States v. Sanchez, 269 F.3d 1250 (11th Cir. 2001); see also
Griffith v. United States, 871 F.3d 1321, 1336, 1340 (11th Cir. 2017) (ordering an evidentiary
hearing on a § 2255 motion where petitioner alleged that his trial counsel failed to challenge the
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                                           I. Discussion

                               A. Sufficiency of the Evidence

       Burke argues that the government failed to supply evidence at trial that he

knew he belonged to the relevant category of persons barred from possessing a

firearm as required by the Supreme Court’s holding in Rehaif.5 We review

Burke’s challenge to the sufficiency of the evidence for plain error because he

failed to raise it before the district court. United States v. Reed, 941 F.3d 1018,

1020 (11th Cir. 2019). Burke must prove that (1) an error occurred (2) that was

plain and (3) affected his substantial rights. United States v. Moore, 954 F.3d

1322, 1337 (11th Cir. 2020). As to the third-prong, Burke bears the burden of

persuasion in establishing a reasonable probability that, but for the errors, the

outcome of the proceeding would have been different. United States v. Olano, 507

U.S. 725, 734 (1993); Molina-Martinez v. United States, 136 S. Ct. 1338, 1343

(2016). And we may consult the entire record when evaluating an error for its

effect on a defendant’s substantial rights. Moore, 954 F.3d at 1337. If the first




usability of the mixture or substance relied on to convict him at trial). Thus, we decline to entertain
Burke’s ineffective assistance claims at this juncture.
       5
          To the extent Burke also argues that, under Rehaif, the government was required to
present evidence that Burke knew possessing a firearm as a convicted felon was a prohibited act,
he mischaracterizes the holding of Rehaif. See Rehaif, 139 S. Ct. at 2200 (holding that, in order to
convict a defendant of violating § 922(g), “the Government must prove both that the defendant
knew he possessed a firearm and that he knew he belonged to the relevant category of persons
barred from possessing a firearm”).
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three prongs are met, we may exercise our discretion to correct the plain error only

if it “seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Olano, 507 U.S. at 732 (alteration and internal quotations omitted).

       The government concedes plain error occurred. Because Burke’s trial took

place before the Supreme Court decided Rehaif, the law at the time did not require

the government to prove that Burke knew he belonged to the relevant category of

persons barred from possessing a firearm. Nevertheless, upon review of the entire

record, Burke cannot show that this error affected his substantial rights. The

stipulation and the presentence investigation report establish that Burke had

previously been convicted of five felonies, and Burke was sentenced to multiple

years’ confinement for two of these convictions. Thus, the record clearly

demonstrates that Burke knew he was a felon. See Moore, 954 F.3d at 1337–38

(finding that the defendants’ previous confinements and stipulations regarding

prior felonies sufficiently demonstrated their knowledge of their status as felons);

United States v. Reed, 941 F.3d 1018, 1022 (11th Cir. 2019) (finding that the

defendant’s eight prior felonies and 18-years of confinement “establish[ed] that

Reed knew he was a felon [and] he cannot prove that the errors affected his

substantial rights or the fairness, integrity, or public reputation of his trial”).

Accordingly, Burke cannot show that his substantial rights were affected by the




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government’s failure to introduce evidence regarding his knowledge of his status

as a felon.

                                B. Jury Instruction

      Burke argues that the district court failed to instruct the jury to make a drug-

quantity finding beyond a reasonable doubt when it provided a second jury charge.

He further contends that this omission affected his substantial rights and distorted

the fairness and integrity of the proceedings. We disagree that plain error

occurred.

      At the beginning of the trial, the district court informed the jury that “[i]t

will be the government’s burden to prove the defendant guilty beyond a reasonable

doubt.” Later, when instructing the jury prior to deliberations, the district court

reiterated the burden of proof incumbent upon the government, stating that “[t]he

government must prove guilt beyond a reasonable doubt,” explaining what a

reasonable doubt is, and emphasizing that “the government’s burden of proof is

heavy.” The district court advised the jury that “[i]f you are convinced that the

defendant has been proved guilty beyond a reasonable doubt, then you would say

so in your verdict. If you are not convinced, then you would say that in your

verdict.” The district court then instructed the jury as follows:

      The defendant can be found guilty of [possession of methamphetamine
      with intent to distribute] only if all of the following facts are proved
      beyond a reasonable doubt: One, that the defendant knowingly
      possessed methamphetamine; . . . two, that the defendant intended to
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      distribute the methamphetamine; and three, that the weight of the
      methamphetamine defendant possessed was more than 50 grams.

      . . . The defendant is charged with possessing and intending to distribute
      at least 50 grams of methamphetamine. But you may find the defendant
      guilty of the crime even if the amount of the controlled substance for
      which he should be held responsible is less than 50 grams. So if you
      find the defendant guilty, you must also unanimously agree on the
      weight of the methamphetamine the defendant possessed and specify
      that on the verdict form. 6

On the second day of deliberations, the jury sent a few notes regarding the

determination of the weight of the drugs. The jury first asked, “Why are we being

given a choice of two different amounts of possession? We have a juror

questioning that you gave a choice and is having a hard time with evidence over

the choice on our verdict on the weight.” The district court responded, “As the fact

finder, the jury must make this determination.” Meanwhile, the district court and

counsel continued discussing whether the initial charge regarding the weight of the

drugs had created the potential for juror confusion. During this discussion, the jury

sent another note stating, “[T]he jury is unanimous that the defendant is guilty of

      6
          The verdict form, in relevant part, instructed that:

      If you find the Defendant guilty of Count One, answer the following question:

      We, the jury, having found Defendant guilty of the offense charged in Count One further
      find with respect to Count One that the Defendant possessed with intent to distribute
      methamphetamine in the amount shown (place an X in the appropriate space):

                _____ WEIGHING 50 GRAMS OR MORE

                _____ WEIGHING LESS THAN 50 GRAMS

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Count 1, possession of methamphetamine with intent to distribute. The jury is

divided on the weight.” This note was followed immediately by a third and final

note:

        We are stuck on the second issue of over or under 50 grams. One juror
        says you’re asking how much of the 51 grams is [Burke] responsible
        for since he only paid $500 and [another person] paid $2,000.
        Therefore, he’s only responsible for one-fourth of 12.4 grams. Our
        question: Is that the purpose of Part 2, to decide his responsibility over
        or under 50 grams?

        After a long discussion with the parties’ counsel, the district court concluded

that its initial instruction contained an error that could have been the source of the

jury’s confusion. Accordingly, the district court called back the jury and told them

that the previous instruction as to the elements required to find Burke guilty of

Count I were “not entirely clear or accurate,” and that it was going to clarify “the

instructions” and then have the jury “start [its] deliberations anew.” The district

court re-instructed the jury thus:

        In order for the defendant to be found guilty of the crime of possession
        of a controlled substance with intent to distribute it, you must find that
        the government has proved the following by—beyond a reasonable
        doubt: that the defendant knowingly possessed methamphetamine and
        that the defendant intended to distribute the methamphetamine. Those
        are the elements of the federal crime of possession with intent to
        distribute a controlled substance.

        Now, as the fact finder—and you should not ask yourself why you’ve
        got to determine this. But as the fact finder, you have got to make a
        specific finding unanimously as to the amount, whether it’s more or less
        than the 50 grams as indicated on the verdict form.


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The district court went on to make two more important statements. First, it

summarized its new instructions thus:

      But if you find that the government has proven beyond a reasonable
      doubt that he knowingly possessed methamphetamine and that he
      intended to distribute the methamphetamine, then you’ve got to
      determine the amount of methamphetamine that he possessed and
      intended to distribute, whether that’s more or less than 50 grams.

Second, the district court emphasized: “Now, of course, what I told you yesterday

about possession and what constitutes possession and that type thing, that—all of

that still stands. All of those other instructions still apply.” Burke did not raise

any objection to the second instruction with regard to the burden of proof. Soon

after this second instruction, the jury formally returned a guilty verdict as to Count

I and a determination that the drug quantity involved was greater than 50 grams.

      On appeal, Burke argues that the district court plainly erred when it did not

directly tie the beyond-reasonable-doubt burden of proof to the quantity

determination in the same manner as it had in its initial instruction. Specifically,

he argues that the jury instructions did not go far enough because the weight of the

methamphetamine increased the mandatory-minimum sentence, and any fact that

increases the mandatory-minimum sentence for a crime is an “element” that a jury




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must find was proven beyond a reasonable doubt, pursuant to Alleyne v. United

States, 570 U.S. 99, 103–04 (2013).7

       We review the legal correctness of an unobjected to aspect of a jury

instruction for plain error. Fed. R. Crim. P. 30(d). As discussed with the

evidentiary sufficiency issues above, this standard of review requires Burke to

prove a plain error occurred that affected his substantial rights. Moore, 954 F.3d at

1337. “Jury instructions will not be reversed for plain error unless ‘the charge,

considered as a whole, is so clearly erroneous as to result in a likelihood of a grave

miscarriage of justice,’ or the error ‘seriously affects the fairness, integrity, or

public reputation of judicial proceedings.’” United States v. Starke, 62 F.3d 1374,

1381 (11th Cir. 1995) (quoting United States v. Pope, 747 F.2d 632, 675 (11th Cir.

1984)).

       Although the district court’s second jury instructions on Count I are not a

model of clarity as to the burden of proof required for the quantity determination,

any resulting ambiguity is minor and does not result in plain error when viewing




       7
         Burke was indicted in Count I for violating 21 U.S.C. § 841(a)(1), which makes it
unlawful for any person knowingly or intentionally to “possess with intent to . . . distribute . . . a
controlled substance.” Count I also invoked the “penalty” subsection of § 841, which in relevant
part provides that anyone convicted of violating subsection (a) where the violation involved “50
grams or more of a mixture or substance containing a detectable amount of methamphetamine”
who also has a prior conviction for a serious drug or violent felony “shall be sentenced to a term
of imprisonment which may not be less than 10 years.” 21 U.S.C. § 841(b)(1)(B)(viii). At
Burke’s sentencing, the district court applied the 10-year statutory minimum.
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the entire record. 8 Specifically, viewing the new recitation of the Count I elements

within the context of the entire trial, initial instructions, jury questions, and re-

charge, we conclude that the jury was adequately apprised of the burden of proof

and thus no plain error was committed.

       The district court provided ample instruction as to the burden of proof from

start to finish during its proceedings. It opened the trial and the initial jury charge

with an unequivocal recitation of the burden of proof, which it required the jury to

explicitly use “in [its] verdict.” That verdict, in turn, was to be memorialized on a

verdict form that contained both the two-element recitation of the Count I offense

and the special verdict question regarding the quantity of drugs. Thus, the district

court’s instructions to use the beyond a reasonable doubt standard in the “verdict”

were manifestly tied to the quantity determination. Furthermore, after giving the

new instruction, the district court summarized its new instructions in a single

sentence which reiterated the burden of proof and the need to make a quantity

determination. And the district court stated that all of its previous instructions

applied—which included its mention of the beyond reasonable doubt standard at




       8
         As an initial matter, we pass no judgment as to the prudence or propriety of the district
court’s decision to alter the first jury charge. We are concerned only with the question of whether
the record demonstrates that the jury was sufficiently instructed to find Burke possessed at least
50 grams of methamphetamine beyond a reasonable doubt.
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the beginning of trial and initial jury charge. In full view of all these record

details, the district court’s re-charge was not plainly erroneous.

      Arguing to the contrary, Burke cites to United States v. Delgado-Marrero,

744 F.3d 167 (1st Cir. 2014), where the First Circuit found plain error in a situation

somewhat similar to the one here. In Delgado-Marrero, the First Circuit found

plain error where a trial court, following the jury’s return of a guilty verdict and

after indicating it was going to dismiss the jury, granted the government’s request

for a special verdict instruction asking the jury to determine the quantity of drugs

involved but without addressing the applicable burden of proof. 744 F.3d at 186.

Delgado-Marrero is inapposite to the situation at hand, however, because there the

special verdict question was provided to the jury after they had already reached a

verdict on the substantive counts. Id. at 183–84. The First Circuit expressly based

its holding on “the timing and manner in which the question was presented,” which

demonstrated that “the jurors understandably may have failed to appreciate that the

additional question represented something more than an inconsequential

afterthought standing in the way of heading home.” Id. at 187. The same cannot

be said here, where the jury made its drug-quantity determination at the same time

and on the same verdict form as its determination as to Count I. Accordingly,

Burke’s challenge to the district court’s jury instruction fails.

      AFFIRMED.


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