                Case: 18-13284       Date Filed: 12/20/2019       Page: 1 of 13


                                                                       [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             ________________________

                                     No. 18-13284
                               ________________________

                         D.C. Docket No. 3:17-cr-00112-MCR-1



UNITED STATES OF AMERICA,

                                                          Plaintiff - Appellee,

versus

GREGORY S. ROTHWELL, JR.,

                                                          Defendant - Appellant.

                               ________________________

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

                                    (December 20, 2019)

Before WILSON and GRANT, Circuit Judges, and MARTINEZ, ∗ District Judge.

PER CURIAM:


∗
  Honorable Jose E. Martinez, United States District Judge for the Southern District of Florida,
sitting by designation.
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      Gregory Rothwell, Jr., appeals his convictions and sentences for possession

of marijuana with intent to distribute and related firearms offenses. First, Rothwell

argues that the district court abused its discretion by failing to remove a juror who,

prior to deliberation, expressed concerns about his safety based on his close work

with state and county inmates. Second, Rothwell claims that the district court

clearly erred by considering certain conduct as relevant conduct under U.S.S.G.

§ 1B1.3(a)(2), which allowed the ten-year window for considering prior

convictions under U.S.S.G. § 4A1.2(e)(2) to run backwards from the time of that

conduct rather than from the July 2017 date of the instant offense. As a result, a

2005 conviction for the sale of marijuana was counted as a predicate offense for a

career-offender designation in U.S.S.G. § 4B1.1(a), and Rothwell was

subsequently sentenced as a career offender. After careful review, and with the

benefit of oral argument, we affirm on both issues.

                                 BACKGROUND

      A federal grand jury indicted Rothwell for possession with intent to

distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D) (Count

One); possession of a firearm in furtherance of a drug-trafficking offense, in

violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count Two); and possession of a firearm

by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count




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Three). The indictment alleged that the conduct occurred on or about July 13,

2017.

        Rothwell opted for a jury trial. After jury instructions but before the jury

began deliberating, Juror No. 6 expressed concern for his personal safety. For the

first time, Juror No. 6 revealed that as an employee of Walton County Public

Works, he regularly performed maintenance at the Walton County Jail and

regularly interacted with its prisoners. Prosecutors presented an exhibit of a jail

phone call that Juror No. 6 believed referenced the Walton County Jail. Defense

counsel asked the district court to remove Juror No. 6 and replace him with an

alternate. The defense argued that when a juror is concerned for his personal

safety, the juror is prejudging the case before jury deliberations.

        In response, and with the consent of both the prosecutor and defense

counsel, the district court conducted an in-chambers colloquy with Juror No. 6. At

the colloquy, the district court explained that if Rothwell was convicted, he would

not serve his sentence in the Walton County Jail, but rather in a federal prison.

Juror No. 6 explained that he was only worried about serving as the foreperson

because it could get him in trouble with inmates he encounters during his work.

The district court asked if, because he was not selected as the foreperson, Juror No.

6 could deliberate fairly and impartially. Juror No. 6 responded that he could. The

district court then asked if Juror No. 6 had already decided his verdict. He


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responded that he had not, and that he would deliberate with the rest of the jury as

a group. Juror No. 6 also said he was no longer concerned about his safety after

the district court explained that Rothwell would not be sentenced to Walton

County Jail.

      After the colloquy, defense counsel objected to Juror No. 6 serving on the

jury and the district court overruled that objection. Shortly after, the jury found

Rothwell guilty on all counts.

      Before sentencing, Probation prepared a presentence investigation report

(PSR) which alleged that Rothwell “began his involvement in illegal activities”

shortly after being released from state prison in April 2014. According to the PSR,

a co-conspirator told law enforcement officers that he, Rothwell, and another man

received marijuana for distribution from suppliers in California and that Rothwell

had been doing so from April 2014 up until his arrest in the instant case. Using

this testimony—and certain text messages and “drug activity” found on cell phones

in Rothwell’s storage unit—the PSR recommended that Rothwell’s marijuana-

related activities in 2014 and 2015 be considered “relevant conduct” for his instant

offense. Under § 4A1.2(e)(2), the PSR also recommended that the commencement

of the instant offense be 2014 rather than 2017.

      The PSR also noted Rothwell’s prior criminal history. Of importance here,

Rothwell was convicted of selling marijuana in February 2005. Additionally,


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Rothwell was adjudicated guilty of selling cocaine in March 2006, and of

trafficking cocaine, possessing a firearm as a felon, and possessing drug

paraphernalia in March 2011. Because Probation measured the commencement of

the instant offense from 2014, these offenses fell within the ten-year window for

considering prior convictions under § 4A1.2(e)(2) and could support Rothwell’s

designation as a career offender.

      Rothwell objected to the career-offender designation and argued that the

2014 and 2015 activity should not be considered relevant conduct. The district

court overruled the objection. It disagreed with defense counsel, explaining that

“for purposes of when the offense of conviction commences, you include relevant

conduct. And if the relevant conduct here was in 2014, then you go back ten years

from there, not from 2017.” The district court adopted the PSR’s recommendation

that, under § 4B1.1, Rothwell’s prior 2005 and 2006 offenses were qualifying

offenses.

      Rothwell was sentenced to 240-months’ imprisonment, comprised of 120

months’ imprisonment as to Counts One and Three plus 120 months’

imprisonment on Count Two, followed by five years of supervised release.




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                                    DISCUSSION

                                           I.

      We review the district court’s decision not to remove a sitting juror for abuse

of discretion. United States v. Moran, 778 F.3d 942, 958 (11th Cir. 2015). A

district court may remove and replace a seated juror, prior to deliberations, when

“facts arise that cast doubt on [the] juror’s ability to perform [his] duties.” United

States v. Godwin, 765 F.3d 1306, 1316 (11th Cir. 2014) (alteration accepted). Just

cause to remove a juror exists when the district court “finds evidence that the juror

cannot decide the issues fairly.” Moran, 778 F.3d at 966. “The decision to remove

a juror and replace him with an alternate is entrusted to the sound discretion of the

trial judge whenever facts are presented which convince the trial judge that the

juror’s ability to perform his duty as a juror is impaired.” United States v. Fajardo,

787 F.2d 1523, 1525 (11th Cir. 1986) (internal quotation mark omitted). We will

not disturb the district court’s decision “absent a showing of bias or prejudice to

the defendant . . . or to any other party.” Id. That is because the district court is in

the best position to determine jurors’ credibility when their bias is challenged.

United States v. Sammour, 816 F.3d 1328, 1338 (11th Cir. 2016). When a district

court finds that a juror is not biased, our deference “is at its pinnacle.” Id.

      The district court did not abuse its discretion by declining to remove Juror

No. 6. This conclusion is supported by our caselaw. In Sammour, we held that the


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district court did not abuse its discretion when it refused to remove a juror that

expressed safety concerns. Id. The juror in question wrote a note to the court clerk

asking if the jury would be offered a “jury protection program,” stating that the

case “reeks of Alquaida [sic]” and expressing “concerns for our safety.” Id. at

1333. The district court questioned the juror and concluded that the juror would be

fair and impartial. Id. at 1339. The district court also assured the juror that the

case had nothing to do with terrorism and that she was not in danger. Id.

       Here, like in Sammour, the district court did not abuse its discretion by

declining to remove Juror No. 6. 1 See id. at 1338; see also United States v. Jonas,

786 F.2d 1019, 1022–23 (11th Cir. 1986) (holding that district court did not abuse

its discretion in refusing to remove juror who, during trial, stated that he “had

pretty well made up my mind about” the case but stated he “would and could keep

his mind open until, in effect, the case was submitted to the jury.”). The district

court was in the best position to examine Juror No. 6’s credibility and potential

bias during the colloquy. See Fajardo, 787 F.2d at 1525. The district court



1
  On appeal, Rothwell relies on our decision in United States v. De La Vega, 913 F.2d 861 (11th
Cir. 1990). In De La Vega, we affirmed a district court’s decision to remove a Hispanic juror
over the juror’s concern that he would be blamed by the Hispanic community for whatever
verdict the jury reached. Id. at 869. The juror did not provide assurances that he could
deliberate fairly and impartially, nor did he tell the district court that he was comfortable
returning to the jury room to deliberate. Id. at 868 & n.6. Consistent with the deferential abuse
of discretion standard, we affirmed the district court’s decision to remove that juror. Id. at 869.
De La Vega does not, however, stand for the proposition that it would have been an abuse of
discretion if the district court had declined to remove the juror.
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explained to Juror No. 6 that if the jury found Rothwell guilty, he would not be

incarcerated in a state facility. Juror No. 6 assured the district court that he had not

determined his verdict, that he was prepared to deliberate with the jury as a group,

that he was no longer concerned for his safety, and that he was truly comfortable

going back to the jury room to deliberate. After thoroughly questioning Juror No.

6, the district court determined that he was capable of deliberating fairly and

impartially.

      To the extent that Rothwell attempts to argue that the entire jury was tainted

by Juror No. 6’s presence during deliberations, defense counsel neither asked the

district court to question the entire jury nor argued that the entire jury was tainted.

And the district court instructed Juror No. 6 during the colloquy to inform the other

jurors that “if there are any questions of the jurors about what we just discussed,

you just let them know that you’re satisfied and not concerned about any safety

issues.”

      Rothwell’s other argument—that Juror No. 6’s failure to disclose that he

worked in a position where he regularly encountered inmates proved his prejudice

and bias and should have been enough to remove him from the jury—is meritless.

Rothwell failed to raise this argument before the district court and we may not

“correct an error the defendant failed to raise in the district court unless there is:

‘(1) error, (2) that is plain, and (3) that affects substantial rights.’” United States v.


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Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). Under plain-error review, the

district court did not err by failing to remove the juror because the juror did not

misrepresent himself during voir dire. His answers were in-line with questioning. 2

        Because Rothwell cannot “establish, based on a cold record, that the district

court abused its broad discretion despite its superior vantage point,” the district

court did not err in refusing to remove Juror No. 6. See Sammour, 816 F.3d at

1338.

                                                 II.

        We review the district court’s consideration of past conduct as relevant

conduct under § 1B1.3 for clear error. See United States v. Maxwell, 34 F.3d 1006,

1011 (11th Cir. 1994). A finding is clearly erroneous if it leaves us “with a

definite and firm conviction that a mistake has been committed.” United States v.

Almedina, 686 F.3d 1312, 1315 (11th Cir. 2012). And if “a fact pattern gives rise

to two reasonable and different constructions, the factfinder’s choice between them

cannot be clearly erroneous.” Id. (internal quotation mark omitted).




2
  The record supports this conclusion. The district court asked the jury panel whether any of the
jurors were “associated . . . in any way with the judicial system?” Juror No. 6 did not respond.
The district court then asked whether any of the jurors had “ever worked in any capacity . . . for
any law enforcement agency” including any “correctional facility.” Juror No. 6 responded that
he had a second cousin who was a correctional officer in Walton County, Florida, but testified
that it would not affect his ability to be fair and impartial. Finally, the district court asked a
catch-all question, asking the jurors if they had any reservations about their ability to be fair and
impartial. Juror No. 6 did not respond.
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       A defendant is a career offender under the Sentencing Guidelines if he has at

least two prior felony convictions for either a crime of violence or a controlled

substance offense. U.S.S.G. § 4B1.1(a). 3 “Two prior felony convictions” means:

(1) the defendant committed the instant offense subsequent to sustaining at least

two felony convictions for either a crime of violence or a controlled-substance

offense; and (2) the sentences for at least two of those felony convictions are

counted separately for calculating criminal history points under § 4A1.1(a)–(c). Id.

at § 4B1.2(c).

       Prior felony convictions count as a criminal history point if the sentence for

the prior conviction was imposed within ten years of the commencement of the

instant offense. Id. at § 4A1.2(e)(2). But the “commencement of the instant

offense” also includes any relevant conduct. Id. at § 4A1.2, comment. 8. A district

court need only find that conduct is relevant under § 1B1.3 by a preponderance of

the evidence. See United States v. Hamaker, 455 F.3d 1316, 1336 (11th Cir.

2006).

       When U.S.S.G. § 3D1.2(d) requires grouping multiple counts, all acts and

omissions that were part of the same course of conduct or common scheme or plan




3
 Career offender status also requires that the defendant was at least 18 years old at the time he
committed the instant offense, and that the instant conviction is a felony that is either a crime of
violence or a controlled substance offense. U.S.S.G. § 4B1.1(a). The parties do not dispute that
Rothwell satisfies these other requirements.
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as the offense of conviction are considered relevant conduct. U.S.S.G.

§ 1B1.3(a)(2). In evaluating relevant conduct under § 1B1.3, we consider the

“similarity, regularity, and temporal proximity” between the instant offense and the

uncharged conduct. Maxwell, 34 F.3d at 1011. But, “[w]hen one of the above

factors is absent, a stronger presence of at least one of the other factors is

required.” U.S.S.G. § 1B1.3 comment. 5(B)(ii).

      Here, the indictment stated that the instant distribution offense occurred on

July 13, 2017. Ordinarily the ten-year window under § 4A1.2(e)(2) would begin to

run on that date. United States v. Cornog, 945 F.2d 1504, 1509 (11th Cir. 1991).

But the district court determined that Rothwell engaged in conduct relevant to the

instant offense as early as 2014—placing his June 2005 conviction for selling

marijuana within the ten-year window and resulting in his designation as a career

offender under § 4B1.1(a). Rothwell argues that the district court erred because, in

his view, the 2014 conduct is not encompassed in the same course of conduct or

common plan as the 2017 offense.

      This case turns on the standard of review. Demonstrating clear error is a

heavy burden, one that Rothwell has not overcome. Based on the record, we

cannot find a clear error in the district court’s decision to consider Rothwell’s

marijuana-related activities in 2014 and 2015 as relevant conduct for his instant




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2017 marijuana distribution offense. We reach this conclusion because the district

court’s decision was fully supported by the PSR and the evidence at trial.

      According to the PSR, from the time Rothwell was released from prison in

2014 until his arrest, he received marijuana for distribution from the same or

similar suppliers and received marijuana at the same house he shared with his

fellow drug traffickers. A fellow drug trafficker stated that he, Rothwell, and

another person rented a location in Destin, Florida and a provider from California

would deliver marijuana to that location. Rothwell used the Destin location to

“keep his weed at,” used the same provider as his fellow drug trafficker, and

received pound quantities of marijuana “on a regular basis.” The fellow drug

trafficker also stated that the most marijuana he witnessed Rothwell purchase to

sell was approximately three to five pounds in exchange for about $7,500.

      These statements were supported by the evidence yielded from the search of

Rothwell’s storage unit. At that place, officials found “smoking paraphernalia, a

digital scale, two cell phones, and three stacks of cash containing approximately

$10,000 in 20-dollar bills each.” The two cell phones were examined and among

the data extracted were text messages from September 2014 through October 2015

that discussed the distribution of marijuana. Further extracted were pictures of

Rothwell, dated between December 2014 and October 2015, in which he posed

with a firearm in his waistband, with large amounts of cash, and quantities of


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marijuana indicative of distribution. These facts suggest that Rothwell’s 2014 and

2015 activities were part of the same ongoing series of marijuana transactions as

the 2017 marijuana-distribution offense.

      Rothwell’s argument that his 2014 and 2015 conduct are temporally distant

from the instant 2017 offense is not completely lacking in merit. Another district

court or judge could have concluded that the 2014 and 2015 conduct were not part

of the same course of conduct as the instant offense. But recognizing that

possibility exists is not determinative in this context. Our standard here is highly

deferential. And “where a fact pattern gives rise to two reasonable and different

constructions, the factfinder’s choice between them cannot be clearly erroneous.”

Almedina, 686 F.3d at 1315 (internal quotation mark omitted).

      Since the district court’s conclusion that Rothwell engaged in conduct

relevant to the instant offense as early as 2014 was not an impermissible view of

the evidence, the district court did not err in designating Rothwell as a career

offender under § 4B1.1(a).

      AFFIRMED.




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