In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐2525
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
EDWARD C.M. MOLTON, JR.,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:12-CR-30116-MJR — Michael J. Reagan, Judge.
____________________
ARGUED DECEMBER 11, 2013 — DECIDED FEBRUARY 18, 2014
____________________
Before WOOD, Chief Judge, and FLAUM and SYKES, Circuit
Judges.
FLAUM, Circuit Judge. A jury convicted Edward Molton,
Jr., of unlawful possession of a firearm by a convicted felon,
in violation of 18 U.S.C. § 922(g). The district court sentenced
Molton to 108 months’ imprisonment, which is substantially
higher than the advisory guidelines range of 63 to 78
months. Molton first attacks his conviction, arguing that the
district court should have excluded evidence of his gang
No. 13‐2525 2
affiliation, and that the evidence was insufficient to support
a conviction. He then contends that his above‐guidelines
sentence is substantively unreasonable. We affirm.
I. Background
On the evening of March 14, 2012, Kenneth Brown was
shot in the neck and head while driving in East St. Louis,
Illinois. FBI Special Agents Nick Manns and Bryan Yingling
were working the W.A.V.E. detail (a local‐state‐federal joint
force) in East St. Louis. They heard about the shooting over
their radios and went to the scene, where they saw that
Brown’s car was riddled with bullet holes. Brown had
already been taken to the hospital; he ultimately survived.
Agent Manns was familiar with Brown as the leader of
the Waverly Crips gang in East St. Louis. Concerned about
the welfare of the Brown family, Agents Manns and Yingling
drove to a house on 38th Street where Brown stayed with
family. The agents also expected some retaliation for Brown’s
shooting and believed that his associates might gather at the
38th Street home for that purpose.
When Agents Manns and Yingling arrived at Brown’s
residence, they saw people in the street in front of the house
and on the front porch. Some approached the agents; they
said they were Brown’s family members and were preparing
to visit Brown in the hospital. While speaking with them,
both agents saw a man (Molton) standing along a sidewalk to
the northeast of their car. Molton was standing across the
street from Brown’s house, near a chain link fence. Behind
Molton was a large tree. Molton neither approached the
agents nor spoke to them. The agents testified that he
appeared wary of them. Molton was standing with his right
No. 13‐2525 3
side turned away from the street and the agents. Although
the agents could not see his right side or right hand, they
believed he was holding a firearm. One of the family
members in the street then yelled toward the house, “It’s just
the feds.” Immediately thereafter, the agents testified that
they saw Molton make a quick movement, turn, and move
toward the large tree. That tree momentarily obstructed the
agents’ view of Molton, but then Molton returned to his
initial position and stood. Both agents believed that Molton
had dropped a firearm.
Agent Yingling approached Molton while Agent Manns,
walking the short path he had seen Molton take, retrieved a
semi‐automatic rifle from behind the tree. It was loaded with
nineteen live rounds, one of which was in the chamber. The
agents said that Molton was nervous, shaking, and sweating
profusely. They arrested him.
Brown’s family members denied knowing Molton and
vice versa, but they seemed unconcerned that Molton was
found across the street with a loaded assault rifle. Their lack
of alarm convinced the agents that Molton was not there to
harm the Brown family, but instead to support Brown and in
response to his being shot. The agents did not see anyone else
in the area. Later that night, though, another man (Torcus
Boone) was found hiding in the brush near Brown’s house,
across the street from where Molton had been standing.
Molton told Agent Manns that he lived on North 30th
Street in East St. Louis, about eighteen blocks away from 38th
Street. Molton said that just before his arrest, he had left his
grandmother’s house—located directly behind Brown’s
house—and walked to his girlfriend’s house, but no one had
answered the door. He was walking back to his
No. 13‐2525 4
grandmother’s house when he was arrested, he said. Molton
denied possessing a firearm or disposing of one.
Jevon Strayhorn, a cellmate of Molton’s while both were
awaiting trial, testified at Molton’s trial as a government
witness. According to Strayhorn, Molton told Strayhorn that
he was a “Tres Nine Waverly Crip,” and that he “put in
work” for his gang. Molton said that on the night of his
arrest, a friend—“one of the big people” in the Waverly
Crips—was shot in retaliation for a shooting that occurred
some time ago. After his friend was shot, Molton said that he
received a call, and that he and a partner went to the friend’s
house and got an assault rifle from someone on the porch. He
then walked across the street and waited for a friend to bring
something to wipe down the gun. When the agents’ car
arrived, Molton thought it was that friend. When someone
yelled, “It’s just the feds,” Molton ducked back and hid the
rifle by a tree. Molton shared with Strayhorn his concern that
his fingerprints would be found on the rifle, and he
experimented by pressing his hands on the stainless steel cell
doors to see if his fingerprints were left behind.
Molton was charged with unlawful possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g). After a three‐day trial, the jury found him guilty.
The court sentenced him to 108 months’ imprisonment and
three years of supervised release. We will relay additional
information below about the trial and sentence.
II. Discussion
A. Evidence of Molton’s gang involvement
Before trial, Molton moved to preclude the government
from mentioning, in its case‐in‐chief, both Brown’s shooting
No. 13‐2525 5
and Molton’s alleged gang involvement. The court denied
Molton’s motion, reasoning that Molton’s alleged
membership in Brown’s gang was relevant to multiple
aspects of the case: “the overarching factual scenario at issue,
Molton’s presence at the scene, and why he would have a
rifle.” We review this ruling for abuse of discretion. United
States v. Alviar, 573 F.3d 526, 536 (7th Cir. 2009).
Relevant evidence is generally admissible under Federal
Rule of Evidence 402, but may be excluded if it is unduly
prejudicial. See Fed. R. Evid. 403. Evidence of gang affiliation
must be handled with care, because “a jury is likely to
associate gangs with criminal activity and deviant
behavior,” raising the “specter of guilt by association or a
verdict influenced by emotion.” United States v. Santiago, 643
F.3d 1007, 1011 (7th Cir. 2011) (citation and internal
quotation marks omitted). Accordingly, “we examine the
care and thoroughness with which a district judge
considered the admission or exclusion of [such] evidence.”
Id. (citation omitted). Yet we have repeatedly upheld the
admission of gang affiliation evidence when it is more
probative than prejudicial. Id.; see also United States v. King,
627 F.3d 641, 649 (7th Cir. 2010) (admission of gang evidence
is appropriate “to demonstrate the existence of a joint
venture or conspiracy and a relationship among its
members” (citation omitted)); United States v. Montgomery,
390 F.3d 1013, 1018–19 (7th Cir. 2004) (admission of gang
evidence proper to help establish motive); United States v.
Butler, 71 F.3d 243, 250–51 (7th Cir. 1995) (evidence that
defendant acted as security in a gang was admissible
because it provided a motive for his gun possession).
No. 13‐2525 6
In this case, the district judge correctly summarized the
law and gave logical reasons for denying Molton’s motion to
exclude the evidence. We accord the district judge’s
evidentiary decision “great deference, and it will be
disturbed only if no reasonable person could agree with” it.
United States v. Ozuna, 674 F.3d 677, 682 (7th Cir. 2012). We
have previously admitted gang affiliation evidence for the
purpose of showing motive, including in gun possession
cases. Montgomery, 390 F.3d at 1018; United States v. Sargent,
98 F.3d 325, 328 (7th Cir. 1996) (admission of gang
membership evidence was not unduly prejudicial because it
“was necessary to explain the motive behind the crime
charged”); Butler, 71 F.3d at 251–52. The district judge also
gave a limiting instruction, and we have suggested that such
instructions help reduce concerns about the prejudice
inherent in this kind of evidence. See, e.g., Ozuna, 674 F.3d at
682; Butler, 71 F.3d at 251–52. For these reasons, the district
court’s evidentiary ruling was not an abuse of discretion.
B. Sufficiency of the evidence
Molton next argues that the evidence was insufficient to
support his unlawful‐possession conviction, and therefore
the district court erred in denying his motion for a judgment
of acquittal. We review sufficiency of evidence claims in the
light most favorable to the government and will uphold a
jury verdict if “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
United States v. Love, 706 F.3d 832, 837 (7th Cir. 2013).1
1 The briefing is somewhat unclear, but to the extent Molton also argues
that he should have been granted a new trial, the standard is whether the
verdict is so contrary to the weight of evidence that the interests of
No. 13‐2525 7
In Molton’s case, the parties stipulated to multiple
elements of the crime, so the government needed to prove
only one thing beyond a reasonable doubt: that Molton
knowingly possessed a firearm on March 14, 2012. Molton
argues that no one saw him possess a firearm, that the
government’s case consisted only of circumstantial evidence,
that the agents did not know if anyone had been in the area
of the recovered firearm prior to their arrival, that Molton’s
alleged sweating could actually have been moisture from
rainfall that night, that Molton consistently denied having a
firearm to Agent Manns, that Molton was simply returning
to his grandmother’s home when he was arrested, and that
no fingerprints were found on the firearm. Molton also
contends that the agents could not have seen him clearly
because it was late, dark, and there were no streetlights.
Finally, Molton says, Strayhorn’s testimony was unreliable
and motivated by his desire for a lesser sentence.
These are all potential reasons that a jury might have
acquitted Molton—but this jury convicted him. The jury’s
determination was rational in light of the evidence it heard.
Two FBI agents, Manns and Yingling, testified that Molton
was near the home of a recently shot gang leader, standing
with his body angled so the agents could not see his right
side or right hand. Molton appeared wary of them, and as
soon as someone yelled “It’s just the feds,” Molton
disappeared for a moment behind a nearby tree. Moments
later, the agents found a loaded rifle by that tree. Molton,
sweating and nervous, told the agents, “you couldn’t have
justice require a new trial. See United States v. Washington, 184 F.3d 653,
658 (7th Cir. 1999). We would deny this challenge as well, for the district
court did not abuse its discretion on this record. See id. at 658–59.
No. 13‐2525 8
seen me, it’s too dark.” As a member of Brown’s gang,
Molton also had a motive to be carrying a firearm. Further,
Strayhorn testified that, while he shared a jail cell with
Molton, Molton told him that he was given the firearm by
someone on the front porch.
It was up to the jury to determine whether to credit the
testimony of these witnesses. United States v. Woolfolk, 197
F.3d 900, 904 (7th Cir. 1999). The jury also saw a video from
the FBI agents’ dashboard camera. The jury therefore knew
how dark it was on Brown’s street that night—a factual
matter—but chose to believe the agents. Id. Next, Molton’s
argument that the government’s case consisted entirely of
circumstantial evidence is unpersuasive because our Pattern
Instruction requires the jury to consider both direct and
circumstantial evidence, does not say that one is more
compelling than the other, and states that the jury decides
how much weight to give each type of evidence. 7th Cir.
Crim. PJI 2.03. Finally, the lack of fingerprints on the firearm
is unsurprising: trial testimony established that the rifle was
well‐oiled, which reduces the odds of fingerprints. For these
reasons, we affirm Molton’s conviction.
C. Substantive reasonableness of the sentence
When reviewing a sentence, we must first be sure that
the district court committed no procedural error, United
States v. Hill, 645 F.3d 900, 905 (7th Cir. 2011), and none is
alleged or evident here. We then review whether the
sentence is substantively reasonable in light of the 18 U.S.C.
§ 3553(a) factors. United States v. Vallar, 635 F.3d 271, 278 (7th
Cir. 2011). This substantive review is for an abuse of
discretion, irrespective of whether the sentence is above,
below, or within the advisory guidelines range. Gall v. United
No. 13‐2525 9
States, 552 U.S. 38, 51 (2007). If, as here, the sentence is
outside the guidelines range, “the district court must
provide a justification that explains and supports the
magnitude of the variance.” United States v. Carter, 538 F.3d
784, 789 (7th Cir. 2008). Thus, a more significant variance
requires a more significant justification. United States v.
Taylor, 701 F.3d 1166, 1174 (7th Cir. 2012). However, we will
uphold an above‐guidelines sentence as long as the district
court “offered an adequate statement of its reasons,
consistent with 18 U.S.C. § 3553(a),” for its sentence. United
States v. McIntyre, 531 F.3d 481, 483 (7th Cir. 2008).
i. The Presentence Investigation Report
The statutory maximum was 120 months’ imprisonment,
and the PSR reported a guidelines range of 63 to 78 months
based in part on Molton’s criminal history, which involved
several prior offenses: aggravated unlawful use of a weapon
as a juvenile; armed robbery; battery; unlawful possession of
cannabis; and criminal trespass. Molton was on parole at the
time of the present offense.
The PSR noted that Molton does not have a good
relationship with either parent. “His mother was more
interested in maintaining her relationships with the men in
her life than her children, and his father was physically and
mentally abusive.” When Molton was twelve, his father
made him strip naked, and then struck him repeatedly with
an extension cord, breaking the skin. Due to the abuse,
Molton and his siblings avoided their father, who also used
alcohol and drugs. Molton threatened to commit suicide at
age eleven in an attempt to get maternal attention, after his
mother allowed a boyfriend to beat Molton. Molton is now
twenty‐three, and has been in and out of prison since age
No. 13‐2525 10
seventeen. He and his siblings were mostly raised by their
grandmother in East St. Louis.
ii. Analysis of the district court’s approach
The government sought a 120‐month sentence and
Molton sought a guidelines sentence. The district court
sentenced Molton to 108 months’ imprisonment, a $500 fine,
a $100 special assessment, and three years of supervised
release. The district judge explained his choice of sentence at
the sentencing hearing and in a sentencing memorandum.
At the sentencing hearing, the judge did exactly what we
have encouraged judges to do: explain the relevance of the
§ 3553(a) factors to their sentencing decision. See, e.g., Hill,
645 F.3d at 905. For instance, the district judge considered
this particular defendant’s criminal history (“this is Mr.
Molton’s third felony involving a firearm”) as well as
mitigating considerations (his “horrific childhood”), his
characteristics (his “violent and dangerous” nature), and his
respect for law (“He has shown little or no respect for the
law beginning at a young age. He is only 23. He has criminal
history category of four and three weapon offenses. He was
on parole at the time of the instant offense and just 12 days
earlier was on electronic monitoring.”). The district judge
also considered specific deterrence (given Molton’s past, “I
am afraid he is likely to recidivate”; “in felonious gun
possession cases with [violent] individuals…, guideline
sentences do not deter”). The judge determined that a
guideline sentence was insufficient punishment for a
twenty‐three year old convicted of his third firearm offense.
Viewing this defendant in comparison to others, though, the
judge declined to sentence Molton to the statutory maximum
because that type of punishment “is reserved for the worst
No. 13‐2525 11
of the worst.” See 18 U.S.C. § 3553(a)(6) (instructing district
judges to sentence defendants so as to “avoid unwarranted
sentence disparities among defendants with similar records
who have been found guilty of similar conduct”).
Molton argues that the district court did not
appropriately consider his background and upbringing. But
the judge did consider Molton’s “horrific childhood” and
abuse. The judge chose to focus to a greater extent on
Molton’s most recent six years of repeated crime, but this
sort of weighing is not an abuse of discretion. The district
court must impose a sentence that is “not greater than
necessary,” 18 U.S.C. § 3553(a), but the judge’s concern that
Molton would continue to recidivate is not unreasonable
given his record, and is consistent with the § 3553(a) factors.2
Molton next takes issue with a thirty‐nine‐page
sentencing memorandum that the district court filed after
sentencing Molton. The memo first described East St. Louis’s
history as primarily one of government corruption, scarce
revenue, and crippling debt. It then relayed the city’s current
realities: lack of economic opportunities, social services, and
police presence; a declining population; and rampant crime,
violence, and corruption. This memo presented extensive
data on violent crime (murder, rape, assault, robbery, etc.) in
East St. Louis compared to other American (and
international) cities. Finally, the memo described forty‐five
prominent public corruption cases in the last thirteen years.
The memo mentioned Molton only three times in its thirty‐
2 Molton also argues that the district court did not adequately consider
his “positive” qualities, but Molton did not point to anything specific for
the court to consider.
No. 13‐2525 12
nine pages, where it repeatedly emphasized that Molton was
not being blamed for the city’s decline.
In light of this memo, Molton argues that his sentence
was substantively unreasonable because the court gave
undue weight to irrelevant concerns like corruption and
punished Molton for others’ crimes. The memo is somewhat
unorthodox. However, we ultimately reject Molton’s
argument because we find that—viewing the memo in
conjunction with the court’s statements at the sentencing
hearing—the court weighed each of the § 3553(a) factors and
provided sufficient rationales for its sentence.
The portion of the memorandum that describes the city’s
history of corruption and its recent corruption cases is not
especially relevant to Molton’s sentence—the memo
provides no link between public corruption and gun‐related
offenses or violent crimes more generally. If the district
judge had commented only on corruption and not on
Molton’s specific characteristics, we would need to remand;
a district judge should consider general deterrence but must
also hand down an “individualized” sentence. Gall, 552 U.S.
at 50. But the judge’s sentencing memorandum also details
violent crime in the city, and this consideration is valid as
part of the general deterrence analysis. In fact, our cases
have often viewed general deterrence as a means of
preventing like or related crimes.3 Thus, the judge’s
3 For instance, we have approved of district judges considering other
corruption convictions or data when sentencing a defendant of a
corruption crime, or considering other violent crime convictions or data
when sentencing a defendant of a violent crime. See, e.g., Hill, 645 F.3d at
911 (affirming a sentence in a corruption case where the court “pointed
to the widespread corruption in East St. Louis and the need to deter
No. 13‐2525 13
extended analysis of violent crime in East St. Louis ensured
the relevance of the sentencing memorandum.
True, this memo focuses on only one factor (general
deterrence), but that was intentional. The memo merely
buttressed the court’s analysis at the sentencing hearing,
which appropriately considered the other § 3553(a) factors.
Thus, when viewing the hearing and the memo together, we
find that the district court considered each of the § 3553(a)
factors and provided sufficient rationales for its sentence. In
such a situation, “we must give deference to the district
court’s determination that the [§ 3553(a)] factors justify” its
above‐guidelines sentence. Taylor, 701 F.3d at 1175.
III. Conclusion
We AFFIRM Molton’s conviction and sentence.
future public corruption”); United States v. Ingram, 427 F. App’x. 531,
533–34 (7th Cir. 2011) (“The district court, however, was permitted to
consider the level of violent crime in East St. Louis when gauging the
need for general deterrence to protect members of that community.”);
United States v. Anderson, 517 F.3d 953, 966 (7th Cir. 2008) (“The district
court referred to a number of recent public corruption scandals…. The
judge stressed the corrosive effect that corruption has on the public
trust…. Anderson [—who was convicted of fraud and bribery—]
believes that the judge put too much weight on the public corruption
scandals, but the judge was simply emphasizing the seriousness of the
nature of the crime and discussing the need for general deterrence.”);
United States v. Jordan, 435 F.3d 693, 698 (7th Cir. 2006) (affirming
sentence for repeat child molester where trial judge said: “I think a
severe sentence is necessary to send a very strong message that this
conduct is outrageous, that this conduct is wrong, that this conduct
cannot be tolerated in a civilized society that cares for its children.”);
United States v. Brubaker, 663 F.2d 764, 769 (7th Cir. 1981) (judge gave
stiffer sentence in order to generally deter, i.e., “to provide a deterrent to
any who might be otherwise inclined to act as you have acted.”).