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