United States v. Thomas Johnson

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 5, 2009
No. 08-15701 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 08-20190-CR-JEM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

THOMAS JOHNSON,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(October 5, 2009)

Before EDMONDSON, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:

Thomas Johnson appeals his convictions and 360-month sentence for drug

and firearm offenses, 21 U.S.C. § 841(a)(1), 18 U.S.C. § 922(g)(1). No reversible

error has been shown; we affirm.

Johnson argues that the district court erred in admitting his prior drug

convictions because the convictions were not appropriate Fed.R.Evid. 404(b)

evidence, and the probative value of the convictions was outweighed by prejudice.

We review the district court’s Rule 404(b) rulings for an abuse of discretion.

United States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir. 2008).

Under Rule 404(b), evidence of other crimes is not admissible to show proof

of bad character. But it may be admissible to prove motive, knowledge, or intent.

See Fed.R.Evid. 404(b). To be admissible under Rule 404(b), the evidence must,

among other things, “be relevant to an issue other than defendant’s character”; and

the risk of undue prejudice from the evidence must not outweigh substantially its

probative value. Ellisor, 522 F.3d at 1267; see also Fed.R.Evid. 403.

Contrary to Johnson’s assertion, his prior drug convictions were probative of

his intent in the instant offenses. We have concluded that evidence of a

defendant’s prior drug dealings -- including a prior conviction for possession with

intent to distribute -- were highly probative of intent in instant similar offenses and,

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thus, admissible. See United States v. Diaz-Lizaraza, 981 F.2d 1216, 1224 (11th

Cir. 1993) (noting that “[t]he intent elements of the [defendant’s] two offenses

were identical: possession with intent to distribute”). The convictions also were

probative of Johnson’s knowledge of the drug trade, which showed his motive to

possess a gun. The risk of unfair prejudice was mitigated by the district court’s

limiting instruction that the evidence could not be used to determine Johnson’s

guilt in the instant offenses. See id. at 1225. On this record, we see no abuse.

Johnson also argues that insufficient evidence existed for a jury to convict

him. We review de novo a preserved sufficiency-of-the-evidence challenge,

“viewing the evidence in the light most favorable to the government, with all

reasonable inferences and credibility choices made in the government’s favor.”

United States v. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004) (internal quotation

omitted).

The government had to prove that Johnson knowingly possessed the gun and

the drugs. See United States v. Deleveaux, 205 F.3d 1292, 1296-97 (11th Cir.

2000) (listing the elements of a section 922(g)(1) offense); United States v. Poole,

878 F.2d 1389, 1391 (11th Cir. 1989) (listing the elements of a section 841(a)(1)

offense).1 Knowing possession can be shown by either actual or constructive

1
The other elements -- that Johnson had the qualifying felony conviction, that the gun
affected interstate commerce, and that the drug amount constituted enough for distribution -- are

3
possession, as long as there is a reasonable inference that the accused maintained

“dominion and control” over the weapon or drugs or over the premises on which

the weapon or drugs are concealed. See United States v. Sweeting, 933 F.2d 962,

965 (11th Cir. 1991); Poole, 878 F.2d at 1392.

Here, Detective John Saavedra testified that he observed Johnson conduct

three separate transactions outside an apartment where Johnson would take money

from a person, go into the apartment, and return to give the person an object. On

the last transaction, Saavedra saw Johnson hand the person a pink plastic bag.

Johnson later ran into the apartment when he saw police approaching him.

Officers recovered bags of drugs inside the apartment consistent with what

Saavedra had observed. And Saavedra also testified that he discovered a gun in the

waistband of Johnson’s pants during a search incident to arrest. This information

was corroborated by another officer involved in the arrest, who testified that he

heard Saavedra yell “gun” while searching Johnson. Testimony revealed that,

although the apartment was Johnson’s sister’s, Johnson was living there when he

was arrested.

On this record and drawing all inferences in the government’s favor, we

conclude that sufficient evidence existed for a reasonable jury to find that Johnson

not in dispute.

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possessed the gun and the drugs. Johnson’s appellate arguments focus on the

credibility of government witnesses. But credibility determinations are “within the

exclusive province of the jury.” United States v. Billue, 994 F.2d 1562, 1565 (11th

Cir. 1993). None of the testimony Johnson challenges as incredible was

unbelievable on its face. United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir.

1985).

Johnson challenges the district court’s refusal to grant him a mistrial based

on the government’s alleged improper statements during closing argument.2 A new

trial is required for prosecutorial misconduct if (1) the prosecutor’s remarks during

closing argument were improper, and (2) they prejudiced the defendant’s

substantial rights. United States v. Hall, 47 F.3d 1091, 1098 (11th Cir. 1995) .

To the extent that Johnson challenges government statements as improper

burden-shifting arguments, the district court instructed the jury repeatedly about

the proper burden. See United States v. Simon, 964 F.2d 1082, 1087 (11th Cir.

1992) (taint from improper burden-shifting arguments may be cured by curative

instructions from the court on the proper burden of proof, and the “jury is

presumed to follow jury instructions”). We also see no merit in Johnson’s

bolstering argument. Johnson put the credibility of government witnesses in issue

2
We review a district court’s refusal to grant a mistrial for an abuse of discretion. See
United States v. Knowles, 66 F.3d 1146, 1163 (11th Cir. 1995).

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when he, during his closing argument, argued that they had lied. The government

was allowed to argue credibility and did not unlawfully “place the prestige of the

government behind a witness by making explicit personal assurances of the

witness’s veracity or by indicating that information not presented to the jury

support[ed] the testimony.” United States v. Hernandez, 921 F.2d 1569, 1573

(11th Cir. 1991). And we cannot say, based on the strength and sufficiency of the

evidence against Johnson, that the outcome of his case would have been different

absent the supposedly improper remarks by the government. See Hall, 47 F.3d at

1098 (“[a] defendant’s substantial rights are prejudicially affected when a

reasonable probability arises that, but for the remarks, the outcome would be

different”).

Johnson argues that his sentence -- the low end of the applicable guidelines

range -- is unreasonable. We review a final sentence for procedural and

substantive reasonableness. United States v. Gonzalez, 550 F.3d 1319, 1323 (11th

Cir. 2008), cert. denied (Jun. 22, 2009) (No. 08-10528). A sentence may be

procedurally unreasonable if the district court fails to explain adequately the

chosen sentence. Id. We evaluate the substantive reasonableness of a sentence

under a deferential abuse-of-discretion standard. Gall v. United States, 128 S.Ct.

586, 597 (2007). The party challenging the reasonableness of the sentence bears

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the burden of establishing that the sentence is unreasonable in the light of both the

record and the 18 U.S.C. § 3553(a) factors. United States v. Talley, 431 F.3d 784,

788 (11th Cir. 2005).3

We conclude that Johnson’s guidelines sentence was reasonable. See id.

(noting that “ordinarily we would expect a sentence within the Guidelines range to

be reasonable”). First, no procedural error occurred. The district court considered

the parties’ arguments (including Johnson’s arguments offered in mitigation), the

statutory factors, and the presentence investigation report. After noting Johnson’s

extensive criminal history for drug crimes and his many lenient sentences in state

court, the district court concluded that Johnson needed a sentence longer than the

15-year mandatory minimum he requested to deter sufficiently and to punish him

and to protect the public from more crimes by him. The district court’s statement

of reasons was sufficient. See United States v. Rita, 127 S.Ct. 2456, 2468-69

(2007) (a lengthy explanation is not necessarily required when a judge decides to

follow the guidelines in a particular case, especially where a sentencing judge has

listened to the arguments of the parties, considered the supporting evidence, and

3
Under section 3553(a), a district court should consider the nature and circumstances of
the offense, the history and characteristics of the defendant, the need for the sentence to provide
adequate deterrence, respect for the law, and protection of the public, policy statements of the
Sentencing Commission, provision for the medical and educational needs of the defendant, and
the need to avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(1)-(7).

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was aware of the special conditions of the defendant).

Based on Johnson’s extensive criminal history and his continued criminality

in the light of his lenient state court sentences, we also conclude that Johnson’s

sentence substantively is reasonable. We cannot say that the 360-month sentence

failed to reflect the purposes of sentencing.

AFFIRMED.