             Case: 16-16312    Date Filed: 10/04/2017   Page: 1 of 9


                                                        [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 16-16312
                          Non-Argument Calendar
                        ________________________

                 D.C. Docket No. 8:14-cr-00516-RAL-AAS-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                     versus

TONY DONNELL MATHIS,
a.k.a. Don,
a.k.a. Toney Donnell Mathis,
a.k.a. Toney D. Mathis,

                                                            Defendant-Appellant.

                        ________________________

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

                               (October 4, 2017)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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        Tony Mathis appeals his convictions and 162-month total sentence after

being adjudicated guilty of possessing ammunition in violation of 18 U.S.C. §§

922(g)(1) and 924(e)(1) and possessing with intent to distribute crack cocaine in

violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C). On appeal, Mathis argues

that: (1) the district court abused its discretion by denying his motion for a mistrial

based upon the prosecutor making improper remarks to the jury; and (2) his total

sentence was procedurally unreasonable because the district court clearly erred by

relying on hearsay testimony to determine his base offense level and guideline

sentences. After careful review, we affirm in part and remand in part.

        We review a district court’s denial of a mistrial for abuse of discretion.

United States v. McGarity, 669 F.3d 1218, 1232 (11th Cir. 2012). As we’ve

acknowledged, a trial judge has discretion to grant a mistrial since he or she is in

the best position to evaluate the prejudicial effect of a statement or evidence on the

jury.    United States v. Newsome, 475 F.3d 1221, 1227 (11th Cir. 2007).

Nevertheless, we review de novo an underlying claim of prosecutorial misconduct.

United States v. Flanders, 752 F.3d 1317, 1332 (11th Cir. 2014).

        We review for clear error a district court’s findings of fact based on hearsay

evidence made during sentencing as well as its determination of the drug quantity

attributable to a defendant. United States v. Query, 928 F.2d 383, 384-86 (11th

Cir. 1991) (hearsay evidence); United States v. Almedina, 686 F.3d 1312, 1315


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(11th Cir. 2012) (drug quantity). We review the ultimate sentence a district court

imposes for “reasonableness,” which “merely asks whether the trial court abused

its discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008)

(quotation omitted).

      First, we are unpersuaded by the claim that the district court abused its

discretion by denying his motion for a mistrial based upon improper remarks made

by the prosecutor in closing argument. “To find prosecutorial misconduct, a two-

element test must be met: (1) the remarks must be improper, and (2) the remarks

must prejudicially affect the substantial rights of the defendant.” United States v.

Wilson, 149 F.3d 1298, 1301 (11th Cir. 1998) (quotations omitted). A defendant’s

substantial rights are prejudicially affected when a reasonable probability arises

that, but for the remarks, the outcome of the trial would have been different. Id.

We make “this determination in the context of the entire trial and in light of any

curative instruction.” Id. (quotation omitted).

      “[B]ecause the statements of counsel are not evidence, the district court may

rectify improper prosecutorial statements by instructing the jury that only the

evidence in the case is to be considered.” United States v. Jacoby, 955 F.2d 1527,

1541 (11th Cir. 1992). Furthermore, the jury is presumed to have followed any

curative instruction. Wilson, 149 F.3d at 1302.




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      Here, Mathis claims that the prosecutor’s remarks in closing argument

created an improper inference for the jury that Mathis spontaneously and

voluntarily had admitted to possessing everything in the residence before law

enforcement conducted a search. He points to the comments, among other things,

that: (1) “[the officers] found . . . exactly what Mr. Mathis said they would find,”

and (2) “Sergeant Rindos didn’t go into the house. She didn’t see what was found.

She was talking to Mr. Mathis. He told her about the gun, about the ballistics vest,

and about security.”

      Even if we were to assume, arguendo, that the challenged remarks were

improper, we conclude that they would not affect Mathis’s substantial rights. For

starters, the timing of his confession did not undermine the ability of the jury to

rely on it for making a conviction. As the record reveals, there was no testimony

that Mathis was improperly interrogated, or that his confession would have been

different if it occurred either before or after the search. Furthermore, the substance

of his confession was supported by a witness’s contemporaneous testimony that

“she just slept with Mr. Mathis in exchange for crack cocaine.” The long and short

of it is that we can discern precious little probative significance from the timing of

his confession.

      Moreover, the court’s instructions to the jury effectively cured any

inaccurate inferences that may be been caused by the prosecutor’s remarks.


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Following the government’s closing argument, during which the defendant

objected to the prosecutor’s comments at issue, the court issued a “special”

curative instruction to the jury, directing it that “there was absolutely no evidence

proving that Mr. Mathis, the defendant, was questioned before the start of the

search and the discovery of the items that were seized in the search” and

instructing it to ignore any arguments supporting that conclusion. The district

court also instructed the jury both at the beginning and end of trial that statements

made by the attorneys during opening and closing remarks were not evidence and

could not be considered in that way. In addition, during jury instructions, the

district court told the jury to consider Mathis’s confession with “caution and great

care,” emphasizing that it must determine how much weight to give it. A long line

of our case precedent presumes that the jury follows the court’s curative

instructions; and Mathis has presented no evidence that it did not. Wilson, 149

F.3d at 1302. Inasmuch as any improper remarks by the prosecutor did not affect

Mathis’s substantial rights, we affirm the denial of his motion for a mistrial. Id. at

1301; McGarity, 669 F.3d at 1232.

      We are also unpersuaded by Mathis’s claim that his total sentence is

procedurally unreasonable. In reviewing sentences for procedural reasonableness,

we “‘ensure that the district court committed no significant procedural error, such

as failing to calculate (or improperly calculating) the Guidelines range, treating the


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Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the

chosen sentence -- including an explanation for any deviation from the Guidelines

range.’” Pugh, 515 F.3d at 1190 (quoting Gall v. United States, 552 U.S. 38, 51

(2007)).1 “The government bears the burden of establishing the facts necessary to

support a sentencing enhancement by a preponderance of the evidence.” United

States v. Dimitrovski, 782 F.3d 622, 628 (11th Cir. 2015).                      Notably, “[t]he

principles and limits of sentencing accountability under [the relevant-conduct]

guideline are not always the same as the principles and limits of criminal liability.”

U.S.S.G. § 1B1.3, comment. (n.1). Rather, in determining the base offense level

under the relevant-conduct guideline, a court considers “all acts and omissions

committed, aided, abetted, counseled, commanded, induced, procured, or willfully

caused by the defendant.” Id. § 1B1.3(a)(1)(A).

       “[A] court may rely on hearsay at sentencing, as long as the evidence has

sufficient indicia of reliability, the court makes explicit findings of fact as to

credibility, and the defendant has an opportunity to rebut the evidence.” United


1
        The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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States v. Anderton, 136 F.3d 747, 751 (11th Cir. 1998). We have held, however,

the hearsay need only bear a “minimal indicia of reliability.” United States v.

Reme, 738 F.2d 1156, 1167 (11th Cir. 1984). Furthermore, a court’s failure to

make explicit findings about the reliability of hearsay testimony does not require

reversal when the reliability is apparent form the record.        United States v.

Docampo, 573 F.3d 1091, 1098 (11th Cir. 2009). If a defendant does not dispute

facts in the presentence sentence report (“PSI”), he is deemed to have admitted

them and is precluded from making “the argument that there was error in them.”

United States v. Beckles, 565 F.3d 832, 844 (11th Cir. 2009) (quotation omitted).

      Here, the district court did not clearly err by finding Mathis responsible, as

relevant conduct, for the one gram of crack cocaine purchased during the

controlled buy by the confidential information (“CI”). Again, what is necessary to

support the district court’s sentencing decision regarding hearsay testimony is a

“minimal indicia of reliability.” Reme, 738 F.2d at 1167. At sentencing, Detective

McKee testified about the standard practice of the force in searching a CI for

money and/or narcotics before going to a controlled buy and after returning, and

then discussed the CI’s statement in a report by Detective McClintick that Mathis

had sold the CI one gram of cocaine. Mathis takes issue with the admission at

sentencing of Detective McKee’s testimony concerning Mathis’s sale of the one

gram of cocaine to the CI.     Importantly, however, Detective McClintick had


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testified previously about the transaction, and his testimony was already on the

record and available for the district court’s consideration. In his earlier testimony,

McClintick relayed that the officers had taken the CI to the house, that no one was

at the house, the CI had waited for Mathis, that Mathis had arrived and had entered

the house through the front door, that the CI had entered the house through the

door to the west bedroom, and that the CI then had left the house through the same

door. Detective McClintick said that when the CI came out, he had one gram of

crack cocaine, and had reported that he had purchased five pieces of crack cocaine

from Mathis inside the west bedroom. As a result, McKee’s testimony about the

CI’s transaction was corroborated by the testimony of Detective McClintick, and

considering it all together, there was a sufficient indicia of reliability for the district

court to find, by a preponderance of the evidence, that Mathis was responsible, as

relevant conduct, for the one gram of cocaine either directly or by aiding and

abetting the transaction with the CI. Dimitrovski, 782 F.3d at 628; see also

U.S.S.G. § 1B1.3(a)(1)(A). We can discern no clear error in the district court’s

fact finding.

      Furthermore, while the district court did not make explicitly clear its

findings of fact as to the credibility of the testimony, the evidence was challenged

by Mathis through an objection and on cross-examination, and was subsequently

weighed by the court. Anderton, 136 F.3d at 751. We, therefore, infer that the


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court found the testimony of the officers to be reliable based on the record. See

Docampo, 573 F.3d at 1098. As for Mathis’s argument about the quantity of the

drugs, he did not object to it in the PSI. As a result, the drug quantity is deemed

admitted, and Mathis is precluded from making any argument on appeal about it.

Beckles, 565 F.3d at 832. For the foregoing reasons, we hold that Mathis’s total

sentence was procedurally reasonable because the district court did not select a

sentence based on clearly erroneous facts. Gall, 552 U.S. at 51.

      While we affirm the substantive issues raised in Mathis’s appeal, we note

that the judgment below incorrectly provides that Mathis was convicted of being a

felon in possession of a firearm (instead of possession of ammunition) and

possession of cocaine with intent to distribute (instead of possession of cocaine

base with intent to distribute). We “may remand with instructions to correct a

clerical error in the judgment.” United States v. James, 642 F.3d 1333, 1343 (11th

Cir. 2011). Accordingly, we affirm in part, and vacate in part and remand with

instructions to correct the clerical errors in the judgment. Id.

      AFFIRMED IN PART AND REMANDED IN PART.




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