           Case: 18-11600   Date Filed: 06/13/2019   Page: 1 of 15


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-11600
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 5:17-cr-00026-RH-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

MICHAEL J. BAXTER,

                                                          Defendant-Appellant.

                       ________________________

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

                              (June 13, 2019)

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

PER CURIAM:
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      This case began when Michael Baxter, a Florida corrections officer, was

charged with one count of acting under the color of law and depriving an inmate,

Glover, of his right not to be subjected to cruel and unusual punishment while in

official custody, in violation of 18 U.S.C. § 242; and one count of falsification of

records, in violation of 18 U.S.C. § 1519. Baxter was tried by a jury, found not

guilty of the § 242 offense, but guilty of the § 1519 offense. He appeals his

conviction and 60-month sentence for falsification of records, in violation of 18

U.S.C. § 1519. Baxter raises four issues on appeal. First, he argues that the

district court erred in granting the government’s Batson1 challenge because it did

not present a prima facie case of racial motivation for the challenged peremptory

strike. Second, he argues that the district court abused its discretion in denying his

motion for a new trial because the jury’s guilty verdict was inconsistent with its

acquittal on the charged deprivation of Eighth Amendment rights. Third, he argues

that the district court erred in considering acquitted conduct at sentencing because

the government did not prove by a preponderance of the evidence that he used

excessive force against an inmate. Fourth, he argues that the district court abused

its discretion and imposed a substantively unreasonable above-guideline sentence

because it considered improper factors, weighed the 18 U.S.C. § 3553(a) factors



      1
          Batson v. Kentucky, 476 U.S. 79 (1986).

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unreasonably, and did not sufficiently explain its justification for the three-month

upward variance.

                                           I.

      In reviewing a Batson challenge, we give great deference to the district

court’s finding whether a prima facie case of discrimination existed. United States

v. Walker, 490 F.3d 1282, 1291 (11th Cir. 2007). We review the district court’s

findings regarding the actual motivation behind the challenged strike for clear

error. Id.

      The Equal Protection Clause forbids a prosecutor from striking potential

jurors solely on account of their race, and the Supreme Court has extended that

restriction to strikes by defense counsel. Id. at 1290. In Batson, the Supreme

Court articulated a three-part test to evaluate the validity of challenges to

peremptory strikes: (1) the moving party must make a prima facie showing that a

peremptory challenge was exercised on the basis of race; (2) the non-moving party

must offer a race-neutral basis for striking the juror in question; and (3) the trial

court must determine whether the moving party has shown purposeful

discrimination. Id. at 1291.

      The prima facie case determination is not to be based on numbers alone but

on the totality of the circumstances. United States v. Hill, 643 F.3d 807, 839 (11th

Cir. 2011). The district court should consider all relevant circumstances


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supporting the challenging party’s assertion of discrimination, including the

striking party’s pattern of striking venire members of a particular race, questions or

statements during voir dire that support an inference of discriminatory purpose, the

subject matter of the case being tried, the race of the defendant, and the racial

composition of the pool of the remaining potential jurors. United States v.

Robertson, 736 F.3d 1317, 1326 (11th Cir. 2013).

      At the second step of the Batson inquiry, the striking party’s reason need not

be a good one so long as it is not discriminatory. Hill, 643 F.3d at 837. The reason

only needs to be plausible and not discriminatory, and may be superstitious, silly,

or trivial as long as it was race-neutral. Walker, 490 F.3d at 1291.

      At the third step, the district court has great discretion to accept the striking

party’s race-neutral reason as the truth or to reject it as pretextual. Robertson, 736

F.3d at 1328. We recognize that the district court’s perception of the attorney’s

credibility is essential to determining whether the proffered reason was pretextual,

and the record does not always reflect all that the district court saw and heard.

Walker, 490 F.3d at 1293-94. Thus, we give great deference to the district court

because it is in a better position to make credibility decisions than we are as the

reviewing court. Id. at 1294. But the district court must focus on the genuineness

of the non-moving party’s proffered explanation rather than its reasonableness. Id.

In Walker, we found no error in the district court’s decision to reject the


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defendant’s peremptory strike of a potential juror based on his body language

when the district court emphasized that it found that the defendant’s stated reason

for the strike was not genuine. Id. at 1293 n.13, 1294. Specifically, the district

court found that the potential juror “ha[d] not demonstrated any body language that

[the court] could see” and the defendant did not identify any specific body

language that was “sufficient to persuade [the court] that the reason articulated for

[the juror’s] elimination was a race neutral reason.” Id. at 1293 n.13.

      We apply harmless error review to a misapplication of Batson that results in

an otherwise qualified juror being seated. United States v. Williams, 731 F.3d

1222, 1236 (11th Cir. 2013). Under harmless error review, the government bears

the burden of showing that the error did not affect the defendant’s substantial

rights. Id.

      Here, the district court did not clearly err in determining that Baxter’s

motive for striking Juror M was based on her race and disallowing it. Walker, 490

F.3d at 1291. The court properly determined that the government presented a

prima facie case of race-based discrimination. While Baxter argues that the

government did not show a prima facie case of race-based discrimination because

striking two out of three African Americans on the venire did not establish a

pattern of striking African American jurors, the prima facie case does not succeed

or fail based on numbers alone. See Hill, 643 F.3d at 839. The district court could


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infer that Baxter wanted to strike African American potential jurors because the

defendant was a white corrections officer, the victim (Glover) was a black inmate,

and the government’s theory of the case included allegations that Baxter’s use of

force was motivated by Glover’s impending interracial marriage and that Baxter

had used a racial slur when referring to the relationship. See Robertson, 736 F.3d

at 1326. And, as the government noted, Juror M had not given any responses that

would offer a facially race-neutral reason for using a peremptory strike. Thus,

based on the totality of the circumstances, this Court defers to the district court’s

prima facie case determination. It was within the district court’s sound discretion

to determine that Baxter’s explanation for the strike—that Juror M had exhibited

negative body language—was not genuine based on the court’s observation of

Juror M and its finding that she had not demonstrated negative body language. See

Walker, 490 F.3d at 1293-94, 1293 n.13. Further, the district court did not find

Baxter’s explanation that Juror M had stretched away, crossed her arms, and

appeared tight and negative unreasonable but found that it was a pretext for racial

discrimination instead of a genuine non-discriminatory reason. Walker, 490 F.3d

at 1294. Because the district court had an opportunity to observe Juror M and

evaluate Baxter’s attorney’s credibility, it did not clearly err in finding that

Baxter’s motivation for striking Juror M was actually because of her race and

properly disallowed the strike.


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                                            II.

      We review the denial of a motion for a new trial for an abuse of discretion.

United States v. Perez-Oliveros, 479 F.3d 779, 782 (11th Cir. 2007). The district

court has the discretion under Fed. R. Crim. P. 33 to grant a new trial “if the

interest of justice so requires.” United States v. Albury, 782 F.3d 1285, 1295 (11th

Cir. 2015) (quotation marks omitted). In considering the motion, the district court

may weigh the evidence and consider the credibility of witnesses. Id. But we will

only overturn the denial of a motion for a new trial if the evidence “preponderates

heavily against the verdict, such that it would be a miscarriage of justice to let the

verdict stand.” Id. (quotation marks and brackets omitted).

      A jury’s verdicts are insulated from review on the ground that they are

inconsistent as long as there was sufficient evidence to support its finding of guilt.

Id. The jury is free to choose among reasonable constructions of the evidence in

reaching its guilty verdict. See United States v. Foster, 878 F.3d 1297, 1304 (11th

Cir. 2018). If the defendant testified at trial, the jury is free to disbelieve his

statements and consider them as substantive evidence of his guilt. United States v.

Shabazz, 887 F.3d 1204, 1220 (11th Cir. 2018).




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      To prove a violation of 18 U.S.C. § 242, the government must present

evidence that establishes beyond a reasonable doubt that the defendant acted

(1) willfully and (2) under color of law (3) to deprive a person of rights protected

by the Constitution or laws of the United States. United States v. House, 684 F.3d

1173, 1198 (11th Cir. 2012). To prove that a defendant falsified records in

violation of 18 U.S.C. § 1519, the government must show that the defendant (1)

knowingly (2) altered, destroyed, mutilated, concealed, covered up, falsified, or

made a false entry in a record or document (3) with the intent to impede, obstruct,

or influence an investigation. See United States v. Hunt, 526 F.3d 739, 743 (11th

Cir. 2008); see also 18 U.S.C. § 1519.

      Here, the district court did not abuse its discretion in denying Baxter’s

motion for a new trial. Notably, deprivation of a constitutional right under color of

law and falsification of records are distinct crimes with no overlapping elements,

so an acquittal on the first and a guilty verdict on the second are not inherently

inconsistent. Compare House, 684 F.3d at 1198 with Hunt, 526 F.3d at 743. Even

if the jury acquitted Baxter on Count One because it believed his version of events,

it could still find that he had knowingly fabricated some portion of his report to

influence the use-of-force investigation. Hunt, 526 F.3d at 743. It is equally

possible that the jury did not believe Baxter’s version of events but found that the

government had not proven one or more elements of the excessive force claim


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beyond a reasonable doubt. See House, 684 F.3d at 1198. Nonetheless, even if the

jury’s verdicts were inconsistent, they were insulated from review on that basis

because the guilty verdict on Count Two was supported by sufficient evidence.

See Albury, 782 F.3d at 1295. Baxter’s report stated that Glover advanced toward

Baxter and “forcefully” struck his head against Baxter’s, but Silcox testified that

Baxter approached Glover and Glover did not “head-butt” Baxter, but their heads

simply “collided.” The report also stated that Baxter punched Glover when he

“charged” towards him and kicked him in the head and shoulders in response to

continued resistance, but witnesses testified that Baxter kicked Glover in the face,

Glover did not resist while on the floor, and Silcox was able to subdue Glover with

a chokehold. While testimony from other witnesses supported the statements in

the report, the jury was free to choose among reasonable constructions of the

evidence in reaching its conclusion that at least some of the statements in the report

were false. See Foster, 878 F.3d at 1304. In particular, the jury was free to

disbelieve Baxter’s trial testimony and consider it as substantive evidence that he

had falsified records. See Shabazz, 887 F.3d at 1220. Moreover, this evidence does

not demonstrate that it would be a miscarriage of justice to let the verdict stand.

Id.




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                                          III.

      We review de novo the district court’s interpretation and application of the

Sentencing Guidelines and constitutional challenges to a federal sentence. United

States v. Maddox, 803 F.3d 1215, 1220 (11th Cir. 2015). We review the court’s

factual findings at sentencing for clear error. Id.

      The Supreme Court has held that a district court may consider at sentencing

any conduct underlying the defendant’s acquitted charge so long as the government

proves the occurrence of that conduct by a preponderance of the evidence. United

States v. Watts, 519 U.S. 148, 157 (1997). We added that the resulting sentence

must fall below the maximum statutory penalty authorized by the jury’s verdict.

Maddox, 803 F.3d at 1220. Acquitted conduct may be considered at sentencing

because an acquittal does not mean that the defendant was innocent of the charged

conduct but only that the jury found that the conduct was not proven beyond a

reasonable doubt. Id. at 1221. Moreover, the jury’s general not-guilty verdict does

not reveal whether it rejected any particular fact, so facts underlying the acquitted

charge may still be proven at sentencing by a preponderance of the evidence. See

id.

      Here, as an initial matter, Baxter argues that Watts should be overruled,

citing to several district court opinions from other circuits disagreeing with Watts’s

holding that consideration of acquitted conduct may be considered at sentencing.


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Because Watts remains binding precedent, the district court did not violate

Baxter’s constitutional rights by considering conduct underlying the acquitted

excessive force charge as long as the conduct was proven by a preponderance of

the evidence and the resulting sentence was below the statutory maximum. See

Watts, 519 U.S. at 157; Maddox, 803 F.3d at 1220.

      First, the district court did not err in finding that the government proved by a

preponderance of the evidence that Baxter used excessive force against Glover.

See Maddox, 803 F.3d at 1220. While evidence showed that Glover raised his

voice, was “flailing around,” and was talking with his hands, witness accounts

varied regarding whether Glover headbutted Baxter or if their heads simply

collided at some point. But Silcox, who was present for the entire incident, and

several other witnesses testified that they did not observe Glover strike, punch,

kick, or grab Baxter at any point or, at least, when he was on the ground.

Witnesses consistently testified, however, that Baxter punched Glover in the face

twice and kicked Glover in the head or face twice while he was lying on the

ground. While Baxter testified that he kicked Glover to overcome his physical

resistance and grabbing, other witnesses testified that Glover may have reached for

Baxter but never grabbed him. Accordingly, the district court did not clearly err in

finding that Baxter did not have a legitimate reason for kicking Glover when he

was on the ground. In addition, Baxter’s 60-month sentence was well below the


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statutory maximum of 240 months’ imprisonment. See Maddox, 803 F.3d at 1220.

Thus, the district court did not err in considering the acquitted use-of-force conduct

at sentencing.

                                         IV.

      We review the substantive reasonableness of a sentence under the deferential

abuse-of-discretion standard of review. Gall v. United States, 552 U.S. 38, 41

(2007). The party who challenges the sentence bears the burden of showing that

the sentence was unreasonable considering 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 crime, promote respect for the law,

provide just punishment, deter criminal conduct, and protect the public from the

defendant’s future criminal conduct. 18 U.S.C. § 3553(a), (a)(2)(A)-(C); see also

United States v. Irey, 612 F.3d 1160, 1196 (11th Cir. 2010) (en banc). The court

must also consider “the nature and circumstances of the offense and the history and

characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). In considering these

factors, the district court does not have to discuss each one individually but must

acknowledge its consideration of the defendant’s arguments and the § 3553(a)




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factors as a whole. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.

2008).

      We do not presume that a sentence outside the guideline range is

unreasonable, but we must consider the extent of any variance and “give due

deference to the district court’s decision that the § 3553(a) factors, on a whole,

justify the extent of the variance.” United States v. Turner, 626 F.3d 566, 573

(11th Cir. 2010) (quotation marks omitted). When the district court decides after

“serious consideration” that a variance is appropriate based on the § 3553(a)

factors, it should explain that variance “with sufficient justifications.” Gall, 552

U.S. at 46-47. The court’s justification must be “compelling enough to support the

degree of the variance and complete enough to allow meaningful appellate

review,” but an “extraordinary justification” is not required for a sentence outside

the guideline range. United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009)

(quotation marks omitted).

      We will only remand for resentencing when we are left with the definite and

firm conviction that the district court committed a clear error of judgment in

weighing the § 3553(a) factors by arriving at a sentence that lies outside the range

of reasonable sentences dictated by the facts of the case. United States v. Pugh,

515 F.3d 1179, 1191 (11th Cir. 2008). The weight to be given each § 3553(a)

factor is within the district court’s sound discretion. United States v. Kuhlman, 711


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F.3d 1321, 1327 (11th Cir. 2013). However, a district court can abuse its

discretion when it (1) fails to consider relevant factors that were due significant

weight, (2) gives significant weight to an improper or irrelevant factor, or

(3) commits a clear error of judgment by balancing the proper factors

unreasonably. Id. at 1326-27.

      Here, the district court’s 3-month upward variance to a 60-month sentence

was substantively reasonable. First, the district court considered all the relevant

§ 3553(a) factors presented at sentencing. See Kuhlman, 711 F.3d at 1326;

Gonzalez, 550 F.3d at 1324. Contrary to Baxter’s argument, it considered

mitigating factors, such as Baxter’s personal history and characteristics, stating that

he had an otherwise “exemplary” record and this was an isolated event. 18 U.S.C.

§ 3553(a)(1). It also considered Baxter’s support of his family, including his

children. 18 U.S.C. § 3553(a)(l). But the court balanced these mitigating factors

against the nature and circumstances of the offense, finding that it was an

“egregious event” and that Baxter had used unnecessary and excessive force

against Glover, causing serious injury. 18 U.S.C. § 3553(a)(1). Balancing all of

the relevant factors, it concluded that a term of imprisonment was warranted. See

Kuhlman, 711 F.3d at 1326. And while Baxter repeats that consideration of

conduct underlying the acquitted excessive force charge was improper, that




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argument fails for the reasons discussed above. Thus, the district court did not

abuse its discretion in considering and weighing the relevant § 3553(a) factors.

        In addition, the district court sufficiently explained its three-month upward

variance based on its consideration of the § 3553(a) factors. Turner, 626 F.3d at

573. It emphasized the need for general deterrence within the department of

corrections regarding false reports about the use of force as the most compelling

reason for the upward variance. See Shaw, 560 F.3d 1230, 1238; 18 U.S.C.

§ 3553(a)(2)(B). Further, it considered the government’s argument that an above-

guideline sentence would promote respect for the law, particularly in light of

Baxter’s role as a high-ranking corrections officer. 18 U.S.C. § 3553(a)(2)(A);

Turner, 626 F.3d at 573. Because the court properly weighed the § 3553(a) factors

and adequately explained its reasoning for the three-month upward variance, it did

not commit a clear error of judgment in fashioning its sentence. Pugh, 515 F.3d at

1191.

        For the foregoing reasons, the judgment of the district court is

        AFFIRMED.




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