United States v. Matthews

• Decision Date: 16 May 2014
• Docket Number: No. 13–1256.,13–1256.
• Citation: 749 F.3d 99
• Court: U.S. Court of Appeals — First Circuit
• Parties: UNITED STATES of America, Appellee, v. Levell MATTHEWS, Defendant, Appellant.

749 F.3d 99

UNITED STATES of America, Appellee,

v.Levell MATTHEWS, Defendant, Appellant.

No. 13–1256.

United States Court of Appeals, First Circuit.

May 16, 2014.

Joseph M. Bethony, with whom Gross, Minsky, Mogul, P.A., was on brief, for appellant.

Margaret D. McGaughey, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

Before LYNCH, Chief Judge, THOMPSON and KAYATTA, Circuit Judges.

THOMPSON, Circuit Judge.

OVERVIEW

Levell Matthews stands convicted of one count of conspiring with others to make false statements to a firearms dealer, three counts of possessing a firearm followinga felony conviction, and one count of possessing marijuana. He complains about the district court's rulings denying him a judgment of acquittal on the marijuana-possession count and enhancing his sentence four levels for possessing a gun “in connection with” felony drug trafficking. Finding none of his arguments persuasive, we affirm.

HOW THE CASE GOT HERE

We summarize the trial evidence against Matthews in the light most favorable to the jury's verdict. See, e.g., United States v. Acosta–Colón, 741 F.3d 179, 191 (1st Cir.2013).

Arrest and Indictment

This is not Matthews's first scrape with the law. In 2009 he was convicted in New York of possessing cocaine with intent to distribute—a crime punishable by more than one year's imprisonment. Some time after he got off parole for that offense, he headed to Maine, staying occasionally with Taleek McFadden and Victor Morales at Renee Weeks's house. No Boy Scout himself, McFadden would later get locked up for selling crack cocaine.

In October 2011 Matthews and Morales walked into a store called Frati the Pawn Brokers. We will refer to this shop as “Frati's,” to avoid any confusion with its eponymous owner, Orlando Frati, who—importantly—is a federally—licensed firearms dealer. Matthews checked out a couple of guns while there, actually holding them in his hand.

About two weeks later, Matthews and Morales stopped by Frati's again, this time with Weeks in tow. Matthews zeroed in on a Taurus .45 caliber pistol, picking it up to get a closer look. Weeks then told Frati that she wanted to buy the pistol. Frati handed Weeks the federal form—“Form 4473”—that anyone trying to buy a gun must complete. After getting the filled-out document, Frati ran a background check on her to see whether the sale could take place that day. He learned that Weeks's name went to “delayed status,” which meant the sale could not happen right away, so Matthews, Morales, and Weeks took off. ¹ Suspecting that Weeks wanted to buy the gun for Matthews, Frati tipped off ATF agent Brent McSweyn, who began to investigate.²

Around this time, Matthews—while riding in a car owned by Weeks but driven by McFadden—was searched by local police during a traffic stop. Turned out Matthews had $2,500 in cash on him, though that is basically all we know about the stop.

Fast forward a few weeks. Acting on Agent McSweyn's instructions, Frati called Weeks to let her know that she could buy the Taurus pistol. She said that she would be there in ten minutes. Waiting for her to show up, Agent McSweyn placed ATF agent Paul McNeil in an unmarked car outside Frati's and ATF agent Daniel Woolbert in the store, posing as an employee. Agent McSweyn then hid in the store's back room.

Eventually, Weeks drove over with Matthews and another woman. Only Weeks went inside, though, with $250 Matthews had given her to buy the pistol. Her mission complete, Weeks jumped back into her car's driver's seat and put the pistol (unloaded, with the safety lock on) on her lap, seconds before Agent McNeil approached the driver's side and Agent McSweyn approached the passenger's side. Agent McSweyn ordered Matthews—who was sitting in the front passenger seat—out of the car. And then Agent McSweyn frisked Matthews for weapons. Matthews had $967 in his pocket, with a $50 bill on his seat in the car.

Agent McNeil told Matthews that he was not under arrest. But Matthews wanted to “clear things up.” So Agent McNeil read Matthews his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Matthews started talking. No way would he ever ask Weeks to get him a gun, Matthews said, because he was a convicted felon and knew that he could not have a firearm. That statement did not jibe with Matthews's going to Frati's and actually looking at guns, Agent McNeil shot back. Matthews replied, “uh oh.”

As they talked, Agent McNeil smelled burnt marijuana and asked Matthews what he had “taken that day.” Matthews admitted that he had smoked two “blunts” (cigars in which the tobacco has been replaced with marijuana) but said that there was no marijuana in Weeks's car. “You want to know where you fucked up?” Matthews then asked McNeil. “What you should have done,” Matthews said, was “wait to see where” Weeks took “the gun to see who she [was] buying it for.” A smiling Agent McNeil simply fired back, “some people” might say that is “exactly what we did do. We didn't arrest Ms. Weeks at the counter. We waited to see, when she left the store, who was in the car and who she was getting the gun for.” “Oh,” Matthews exclaimed, catching Agent McNeil's drift, “because she was in the store that I had been [in], bought the gun that I had looked at, came out to the car that I was sitting in, and I have [hundreds of dollars] in my pocket[?]” Bingo, Agent McNeil basically said—to which Matthews replied, “that's cold” (with “cold” being slang for “harsh,” or so Agent McNeil testified).

Agent McSweyn then arrested Matthews. Knowing the jig was up, Matthews said that he had some “weed” stuffed in his underwear—3.2 grams worth, tests showed. He also said that he had $4,000 hidden in his sock, though he actually had $3,700. For anyone keeping track, that is $7,217 in cash law enforcement had caught him with over a fairly short period (we are talking weeks).

A federal grand jury later indicted Matthews, with the operative document charging him with one count of conspiracy to make false statements on a federal firearms application,³ three counts of gun possession by a previously convicted felon,⁴ and one count of marijuana possession.⁵ Matthews pled not guilty to all charges. And a jury trial followed in due course.

Trial and Sentencing

The trial testimony came in consistent with the facts described above. What we have not mentioned yet is that Weeks—having copped a plea and agreed to testify for the government—told the jury about Matthews's involvement with crack cocaine, saying that she had seen him with crack and had bought crack from him before. Asked whether she was “promised crack” if she helped with the gun buy, Weeks answered “yes.” Matthews's counsel attacked her credibility by getting her to talk about how she was a chronic drug abuser, with crack and marijuana being her go-to drugs.

Matthews moved for acquittal at the close of the government's case. SeeFed.R.Crim.P. 29(a). As relevant here, he argued that prosecutors had failed to prove an element required by § 844—namely, that he did not have a valid prescription for the marijuana. Convinced that the non-existence of a valid prescription is not an element of a § 844 offense, the district court denied the motion. After the jury convicted him on all counts, Matthews again moved for acquittal on this theory. SeeFed.R.Crim.P. 29(c). But the court denied that motion too.

At sentencing the parties battled over whether the district court should hand Matthews a four-level enhancement under the federal sentencing guidelines for possessing a firearm in connection with another felony. SeeUSSG § 2K2.1(b)(6). Leaning heavily on United States v. Cannon, 589 F.3d 514 (1st Cir.2009), the court imposed the enhancement, describing the other felony as “drug trafficking” rather than marijuana possession, and concluding Matthews had possessed a gun in connection with that offense. This enhancement helped set Matthews's sentencing range at 70–87 months in prison. And, ultimately, the court imposed a 70–month term.

This appeal followed. In resolving it, we will add a few more details as we discuss specific issues.

OUR TAKE ON THE CASE

As we mentioned at the beginning of this opinion, Matthews challenges the denial of his acquittal motion on the marijuana-possession count plus the imposition of the four-level sentencing enhancement. As we also noted, his arguments do not carry the day for him, for reasons we now explain.

Judgment of Acquittal

First up is the judgment-of-acquittal issue, which we review de novo.See, e.g., United States v. Dávila–Nieves, 670 F.3d 1, 7 (1st Cir.2012).

Section 844—a provision under the Controlled Substance Act (“CSA”) forming the basis of Matthews's marijuana-possession conviction—pertinently provides that

[i]t shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice.

21 U.S.C. § 844(a)(1) (emphasis added). Matthews reads the “unless” clause as requiring the government to prove that he did not have a valid marijuana prescription. But another statute that he does not mention or cite—21 U.S.C. § 885, titled “Burden of proof; liabilities”—undoes his theory.

Subsection (a)(1) of § 885—titled “Exemptions and exceptions; presumption in simple possession offenses”—declares in relevant part that

[i]t shall not be necessary for the United States to negative any exemption or exception set forth in this subchapter in any ... indictment ... or in any trial ... and the burden of going forward with the evidence with respect to any such exemption or exception shall be upon the person claiming its benefit.

Subsection (a)(2) adds that in § 844(a) prosecutions “any label identifying such substance ... shall be admissible in evidence” and...