Filed: Mar. 24, 2014
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Summary: Case: 13-11966 Date Filed: 03/24/2014 Page: 1 of 21 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-11966 Non-Argument Calendar _ D.C. Docket No. 9:12-cr-80220-DTKH-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BRANDON BIVINS, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (March 24, 2014) Before TJOFLAT, HULL and JORDAN, Circuit Judges. PER CURIAM: Case: 13-11966 Date Filed: 03/24/201
Summary: Case: 13-11966 Date Filed: 03/24/2014 Page: 1 of 21 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-11966 Non-Argument Calendar _ D.C. Docket No. 9:12-cr-80220-DTKH-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BRANDON BIVINS, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (March 24, 2014) Before TJOFLAT, HULL and JORDAN, Circuit Judges. PER CURIAM: Case: 13-11966 Date Filed: 03/24/2014..
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Case: 13-11966 Date Filed: 03/24/2014 Page: 1 of 21
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11966
Non-Argument Calendar
________________________
D.C. Docket No. 9:12-cr-80220-DTKH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRANDON BIVINS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 24, 2014)
Before TJOFLAT, HULL and JORDAN, Circuit Judges.
PER CURIAM:
Case: 13-11966 Date Filed: 03/24/2014 Page: 2 of 21
After a jury trial, defendant-appellant Brandon Bivins appeals his conviction
and sentence for possessing a firearm and ammunition after being convicted of a
felony, in violation of 18 U.S.C. § 922(g). After careful review, we affirm.
I. FACTS AND PROCEDURAL HISTORY
A. The Broward County Sheriff’s Office’s Gambling Investigation
In May 2011, officers of the Broward County Sherriff’s Office (the
“Broward officers”) received information from a confidential informant (“CI”)
about an illegal sports betting operation in a sporting goods store in Lauderdale
Lakes, Florida. A second CI informed the officers that a person named “Coach B,”
later identified as defendant Bivins, was the “key figure” in a gambling operation
associated with the South Florida Youth Football League. Defendant Bivins was
the president and coach of a team in that youth football league. Coaches and
league officials placed bets of as much as $100,000 on youth football games.
The officers later learned that defendant Bivins and others moved their
gambling operations from the sporting goods store to a barbershop in Lauderhill,
Florida. Between June 2011 and October 2012, undercover detectives and CIs
went to the barbershop in Lauderhill and, while in defendant Bivins’s presence,
placed bets on professional sporting events.
B. The Identification and Investigation of Bivins’s Residence
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The officers also investigated defendant Bivins’s activities outside of the
barbershop. At least prior to May 2012, Bivins rented a house located at 10393 El
Caballo Court in Delray, Florida (the “El Caballo residence”), which is in Palm
Beach County. The officers observed Bivins leave the house in the morning, drive
to the barbershop in Lauderhill, and return to the El Caballo residence from the
barbershop in the evening.
The Broward officers assisted by Agent Jonathan Wildove, from the Palm
Beach County Sheriff’s Office, conducted three trash-pulls from the El Caballo
residence.
During the first trash-pull, on September 5, 2012, the officers found: (1) an
HP Photosmart printer box; (2) a “hand[]written score sheet”; (3) an “Accord
Certificate of Liability Insurance for the Fort Lauderdale Hurricanes,” the youth
football team of which Bivins was said to be the president and coach; and (4)
“school documents for Tyren Bivins,” which were addressed to Bivins at the El
Caballo residence. One week later, in a September 12 trash-pull, the officers
found: (1) mail addressed to Bivins, albeit at an address other than the El Caballo
residence; (2) “Bank of America documents addressed to the Fort Lauderdale
Hurricanes,” also sent to a different address; (3) mail addressed to the barbershop;
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(4) gambling documents like wager tally sheets, payout documents, and betting
receipts; and (5) a “[f]inancial [r]eport for the Florida Youth Football League.”1
In the third trash-pull on October 10, the officers found: (1) “several
gambling/wager documents . . . which were itemized by player”; (2) “several
[w]ager [s]ummary [r]eports itemized by bet type”; (3) “several payout betting
receipts titled West Palm Beach Fantasy League”; (4) “figure sheets”; and (5)
“banking documents.”
C. The Search Warrant for the El Caballo Residence
In light of this evidence, Agent Wildove and Broward Detective Solomon
Barnes applied for a warrant to search the El Caballo residence and submitted a
probable cause affidavit (the “warrant affidavit”). Wildove and Barnes averred
that they had probable cause to believe that the El Caballo residence contained
“property . . . therein that has been used to commit any crime, or constitute[d]
evidence relevant to proving that a crime has been committed.” They stated the El
Caballo residence was “the premises of, or occupied by, or under the control of:
Brandon D. Bivins, black male born on March 19, 1976.”
The officers listed two crimes: (1) bookmaking, see Fla. Stat. § 849.25; and
(2) keeping a gambling house, see Fla. Stat. § 849.01. They had probable cause to
1
Defendant Bivens later informed the district court, and the government did not dispute,
that the address on the mail to Bivens and on the bank documents was 4297 Southwest 34th
Terrace, Fort Lauderdale, Florida.
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believe these types of evidence were in the El Caballo residence: (1) “[a]ny and all
U.S. Currency . . . and financial records”; (2) “[a]ny and all records of individual
wagering accounts of bettors”; and (3) “[a]ny and all computer[]s.”
The officers detailed information about their investigation of the gambling
operation as “facts establishing [their] basis for probable cause.” They
acknowledged that the investigation began in May 2011 and stated: “[d]uring the
month of May 2011, the Broward County Sheriff’s Office Money Laundering Task
Force (MLTF) received information from a reliable confidential source . . . that an
ongoing illegal gambling operation related to sports betting, was operating at a
location in the city of Lauderdale Lakes, Florida.” The officers explained the
second CI’s role, stating: “[i]nformation received from another confidential
informant utilized by the Broward [County] Sheriff’s Office who has proven to be
reliable advised the key figure in the gambling operation with the South Florida
Youth Football League was ‘Coach B’ of the Fort Lauderdale Hurricanes.” The
officers described each piece of evidence recovered during the three trash-pulls.
On October 19, a state magistrate judge found probable cause and issued a
warrant to search the El Caballo residence.
D. The Search of the El Caballo Residence
On October 29, officers executed the search warrant at the El Caballo
residence. A few hours earlier, they arrested Bivins on an arrest warrant.
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During the search, the officers found, inter alia: (1) a fully loaded Ruger
.357 double action revolver lying underneath a pile of dirty and clean clothing on
the floor of a closet adjacent to the master bedroom; (2) a box containing
approximately 20 rounds of .357 Magnum bullets in the kitchen pantry; (3)
$19,000 in U.S. currency lying on an otherwise-empty bookshelf located in the
middle of the garage; and (4) a bag containing various documents, including a
color copy of Bivins’s Florida driver’s license and a Florida application for a Class
G firearms license bearing Bivins’s name, both located in a second closet adjacent
to the master bedroom.
A federal grand jury indicted Bivins of knowingly possessing a firearm and
one or more rounds of ammunition on October 29, 2012, after previously being
convicted of a felony in violation of 18 U.S.C. § 922(g). Bivins pleaded not
guilty. 2
E. Bivins’s Suppression Motion
Prior to trial, defendant Bivins filed a motion to suppress all evidence seized
during the October 29 search. Relying on Franks v. Delaware, 438 U.S. 154, 98 S.
Ct. 2674 (1978), Bivins argued that the search violated the Fourth Amendment
2
Thereafter, the grand jury returned a superseding indictment, adding a second count
which alleged that Bivins also had violated § 922(g) by possessing a firearm on May 8, 2012.
Bivins pleaded not guilty to both counts in the superseding indictment. However, before trial,
the government moved to voluntarily dismiss this second count, and the district court granted the
motion.
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because the warrant affidavit contained intentional, material omissions and, had the
officers included the omitted facts, probable cause would be lacking.
The district court heard oral arguments on Bivins’s suppression motion.3
Bivins’s attorney did not dispute the truthfulness of the statements contained in the
warrant affidavit. Rather, Bivins’s attorney argued that the officers omitted two
types of facts from the warrant affidavit—facts about the CIs and the three trash-
pulls.
As to the CIs, Bivins’s attorney argued that the warrant affidavit did not
include facts allowing the magistrate judge to assess the CIs’ credibility. As to the
trash-pulls, Bivins’s attorney contended that the warrant affidavit failed to disclose
that: (1) the mail to the youth football team was not addressed to the El Caballo
residence; (2) Tyren Bivins, whose school records (addressed to the El Caballo
residence) were recovered, was Bivins’s son; (3) the mail addressed to Bivins also
was not addressed to the El Caballo residence; and (4) the mail addressed to the
barbershop was actually addressed to “Felicia Bivins.” 4 Bivins’s attorney argued
that, if the officers had included these additional facts, it would have been apparent
that there was only a tenuous connection between Bivins and the property to be
3
This hearing was not an evidentiary hearing under Franks. The district court only heard
argument on the suppression motion.
4
“Felicia Bivins” was apparently Bivins’s girlfriend, Felicia Roberts.
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searched, calling into question the magistrate judge’s probable cause
determination.
The district court orally denied Bivins’s motion to suppress. The district
court concluded that it was “not only irrelevant but immaterial that the affidavit in
support of the search warrant neglected to point out that the mail that was retrieved
from a trash pull at the home to be searched had been addressed to another
location.” According to the district court, the central question was whether “[t]he
information or the contents that were found . . . would . . . lead a reasonable person
to conclude . . . that it’s evidence of that crime and that more evidence of a crime
would be found inside the home.” The district court found that the answers to
these questions were “clearly, yes.”
F. Bivins’s Motion in Limine as to Gambling Investigation
The case proceeded to trial. Bivins’s attorney made a motion in limine to
exclude evidence about the gambling investigation (which had led to the search) as
inadmissible under Rule 403 of the Federal Rules of Evidence. He argued that the
jury did not “need to know what [the officers] were investigating, just that there
was a warrant issued by a judge and it was executed.”
The government responded that the presence of the firearm and Bivins’s
alleged gambling activity were “inextricably intertwined with one another,” as
evidence regarding Bivins’s gambling operation was evidence of Bivins’s motive
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for possessing a firearm. The government’s theory, in light of the $19,000 in U.S.
currency found in the garage, was that “the firearm was there to protect the
proceeds of the gambling activity.” 5
The district court denied Bivins’s motion in limine, concluding that the
evidence of gambling activity was in fact inextricably intertwined with the firearm
crime. The district court explained that “the presence of a large amount of money
in cash and the allegation that it represents the proceeds of illegal activity would
allow a reasonable trier of fact to conclude that one might well arm himself to be
able to protect that money.”
G. Trial
During the four-day trial, the gambling investigation was mentioned in the
attorneys’ statements and briefly in four witnesses’ testimony.
In their opening statements, the prosecutor and Bivins’s attorney mentioned
the gambling investigation. The prosecutor stated that the evidence would “go and
show October 29th, 2012, agents of the Broward County Sheriff’s Office, together
with Palm Beach County Sheriff’s Deputies [were] executing a search warrant for
gambling at an address of 10393 El Cabillo [sic] Court.” He explained that: (1)
“the agents were looking for records of gambling” in the “million dollar mansion”;
5
In the alternative, the government argued that the gambling-investigation evidence was
admissible extrinsic evidence under Rule 404(b) of the Federal Rules of Evidence. The district
court rejected this alternative argument because the government did not give adequate notice of
its intent to use extrinsic evidence as required by Rule 404(b).
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and (2) after obtaining a search warrant for gambling, the agents “discovered in the
bedroom, [a] loaded .357 Magnum Ruger revolver sitting in a pile of the
Defendant’s clothes, one of the rooms he maintained next to the master bed.”
Bivins’s attorney advised the jury: “Whether [Bivins] was being investigated
or this property was being investigated for gambling is irrelevant.”
Four government witnesses mentioned the gambling investigation. First,
Detective Gonzalo Gandarillas testified that on October 29, he followed Bivins
when Bivins left the El Caballo residence, he assisted in arresting Bivins, and he
was “assisting Detective Solomon Barnes in connection with a gambling
operation.” Likewise, Detective Richard Olson testified that he assisted in the
execution of the search warrant at El Caballo Court and they were looking for any
documents and moneys in a gambling investigation.
During Bivins’s attorney’s cross-examination, Detective Wildove, who
signed the warrant affidavit, affirmed that he assisted Detective Barnes in
investigating Bivins. Bivins’s attorney asked Detective Wildove: “[a]nd in
assisting Agent Barnes, that was in regards to a gambling investigation?” Detective
Wildove answered: “Yes.” Bivins’s attorney also asked him if “the purpose of the
affidavit was to search the residence to look for evidence of gambling or gambling
operation?” Detective Wildove answered affirmatively.
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Bivins’s attorney also asked Detective Wildove: “In that application, you are
indicating a litany, a list of things, substantial list of things that you think may
indicate a gambling operation may have been conducted either by Mr. Bivins or
may be found in that residence . . . [a]nd . . . there wasn’t a directive towards
firearms or anything of that sort, correct?” The government challenged the
relevance of the question, but the district court overruled the objection. The
district court advised the jury that it “should not infer the fact that a search warrant
was issued that anybody thought Mr. Bivins was in knowing possession of a
firearm.” Detective Wildove acknowledged that he did not “indicate part of the
purpose of the warrant was [to obtain] evidence of a firearm.”
Detective Barnes also mentioned the gambling investigation. The
prosecutor asked him if he “determine[d] there was a business location connected
to Mr. Bivins being used for gambling purposes?” Detective Barnes said that there
was. Detective Barnes testified that there were “[a]ctually two businesses, one
Showtime Sports and Red Carpet Cuts Barber Shop.”
After Detective Barnes’s statement, the district court interrupted the
questioning and instructed the jury that there was no gambling charge or proof
against defendant Bivins and that the gambling was discussed only to show why
the police went to the house in the first place, as follows:
Let me stop for a second now. I want to come back to this because
one of the cardinal principles in any trial . . . is that somebody is on
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trial only for the charge in the indictment. And the jury knows there
is one charge in this case, and the charge is a charge, an allegation that
Mr. Bivins having previously been convicted of a felony offense, that
he knowingly possessed a gun and/or ammunition in and affecting
interstate commerce . . . .
Now, there is no gambling charge present in this case. We’ve
talked about it because, clearly, the jury needed to know, number one,
why did the police go to the house in the first place?
But, I want to be very clear . . . if the Detective talked about a
business associated where there may have been a suspicion, all right.
Suspicion, no, there is no proof of gambling at this point . . . .
Mr. Bivins is not on trial for the charge of gambling.
The last mention of gambling came during the government’s rebuttal closing
argument. The prosecutor stated that: “[t]here is only one person in the house who
had an interest in the firearms and had the means and opportunity and ability to use
the gun and he is seated right there, Brandon Bivins.” The prosecutor contended
that the money found in the house had come from “the Red Carpet Haircut Barber
Shop,” which was “one of the two locations [law enforcement officers] were
investigating for the gambling operation.”
Shortly thereafter, the district court gave another limiting instruction that
there was no proof of illegal gambling, as follows:
I want to come back to this again.
In our case, there is evidence there is cash in the home. Okay.
Certainly, the jury may consider and make its own judgment call
whether someone who has a lot of cash might want to have a gun to
protect themselves and deter others from coming in.
12
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That is a jury question.
I want to be very careful here. There is a lot of talk about
gambling, and we all understand that, but there has been no proof that
there is illegal gambling.
After deliberations, the jury found defendant Bivins guilty of the one count
of possessing a weapon and ammunition after being convicted of a felony, in
violation of 18 U.S.C. § 922(g).
H. Sentencing
Bivins’s presentence investigation report (“PSI”) reported that Bivins had
three prior felony convictions for violent felonies or serious drug offenses, and thus
was subject to a fifteen-year mandatory minimum sentence under 18 U.S.C.
§ 924(e). The three prior felony convictions were: (1) a 1994 state court
conviction for aggravated assault; (2) a 1996 state court conviction for aggravated
assault with a deadly weapon; and (3) 1997 state court convictions for possession
of cocaine with intent to deliver/sell and possession of marijuana with intent to
deliver/sell.
The PSI recommended an obstruction of justice enhancement because,
during his trial, Bivins presented the testimony of his girlfriend, Felicia Roberts.
Roberts testified that, in July or August 2012, at the instruction of Bivins’s father,
she moved the firearm from the kitchen pantry to the closet and never told Bivins
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about doing so. The PSI stated that Roberts’s testimony was false and Bivins
knowingly presented perjurious testimony.
Bivins also was subject to the armed career criminal enhancement under
§ 4B1.4 of the guidelines, making his total offense level 33. See U.S.S.G.
§ 4B1.4(a), (b)(3)(B). With a criminal history category VI, Bivins’s advisory
guidelines range was 235 to 293 months’ imprisonment. See U.S.S.G. Ch. 5, Pt. A
(sent’g table).
After ruling on objections and hearing from the parties, the district court
imposed a sentence of 235 months’ imprisonment. Bivins appealed.
II. DISCUSSION
A. Bivins’s Motion to Suppress
On appeal, Bivins contends that the warrant affidavit contained
misstatements and omissions, invalidating the warrant and search and violating the
Fourth Amendment. 6
The Fourth Amendment requires that “absent certain exceptions, police
obtain a warrant from a neutral and disinterested magistrate before embarking upon
a search.” Franks, 438 U.S. at 164, 98 S. Ct. at 2681. A warrant must be
supported by a sworn affidavit containing information which “is believed or
6
A district court’s denial of a motion to suppress evidence raises a mixed question of law
and fact, and we review the district court’s factual findings for clear error and its application of
law to those facts de novo. United States v. Bautista-Silva, 567 F.3d 1266, 1271 (11th Cir.
2009).
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appropriately accepted by the affiant as true.” Id. at 165, 98 S. Ct. at 2681. The
warrant affidavit must “set forth particular facts and circumstances underlying the
existence of probable cause, so as to allow the magistrate to make an independent
evaluation of the matter.”
Id. “Affidavits supporting arrest warrants are
presumptively valid.” United States v. Kapordelis,
569 F.3d 1291, 1309 (11th Cir.
2009) (citing
Franks, 438 U.S. at 154,
171, 98 S. Ct. at 2684).
Bivins points to these four omissions from the affidavit: (1) the lack of any
statement describing the officers’ basis for believing the CIs to be reliable; (2) the
failure to state that Mr. Bivins’s name did not appear on the insurance policy for
the Fort Lauderdale Hurricanes youth football team recovered during the first
trash-pull; (3) the failure to state how Tyren Bivins is related to defendant Bivins
in the reference to the Tyren Bivins school documents recovered during the first
trash-pull; and (4) the failure to state that the bank documents addressed to Bivins
were addressed to him at a location other than the El Caballo residence (where they
found the trash).
As to each alleged omission, Bivins has not carried his burden to show he
was entitled to a Franks hearing as to the warrant affidavit. First, Bivins does not
point to any evidence suggesting that the officers acted deliberately or recklessly in
making any omissions. See Madiwale v. Savaiko, 117 F.3d 1321, 1327 (11th Cir.
1997). None of the claimed omitted information on its face is so clearly critical to
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the probable cause determination that its omission created a presumption of
recklessness. See Madiwale, 117 F.3d at 1327. Even if these facts had been
included, the warrant affidavit would still have supported the probable cause
determination.
Second, there was more than enough truthful information in the affidavit
suggesting that evidence of illegal gambling would be found in the El Caballo
residence and linking Bivins to that residence. The affidavit explained that
officers: (1) had found various items associated with gambling in the trash outside
the house; (2) observed Bivins leave and return to the residence; and (3) found
mail addressed to Bivins in the trash-pulls, suggesting Bivins had brought his mail
to the El Caballo residence, even if he had not received it there.
Furthermore, the affidavit did not purport to establish probable cause that
Bivins conducted gambling activities in the house. Rather, the affidavit stated only
that probable cause existed to believe that there was evidence of gambling activity
to be found in the El Caballo residence. The facts in the warrant affidavit—with or
without the alleged omitted information—supported this conclusion of probable
cause. Accordingly, the district court did not err in denying the motion to
suppress.
B. Bivins’s Motion in Limine
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Next, Bivins argues that the district court improperly allowed evidence of
Bivins’s alleged gambling activities to be introduced during the trial. 7 Over the
course of the four-day trial, the gambling evidence came up only three times
during the attorneys’ arguments and four times during all of the witnesses’
testimony. Importantly, the jury never learned the details about the gambling
operation the officers suspected Bivins of operating, including the fact that the
investigation linked Bivins to large wagers on youth football games.
Evidence of “criminal activity other than the charged offense” is admissible
and not subject to Rule 404(b)’s barrier to the admission of extrinsic evidence if it
is: (1) “an uncharged offense which arose out of the same transaction or series of
transactions as the charged offense”; (2) “necessary to complete the story of the
crime”; or (3) “inextricably intertwined with the evidence regarding the charged
offense.” United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998) (internal
quotation marks omitted). Evidence is “inextricably intertwined” to the charged
offense if it is an integral and natural part of a witness’s testimony regarding the
charged offense.
Id.
We cannot say that the district court clearly abused its discretion in
determining that the evidence of the gambling investigation was inextricably
7
We review a district court’s evidentiary ruling for a clear abuse of discretion, keeping in
mind that a district court “has broad discretion to determine the admissibility of evidence.”
United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998).
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intertwined with the evidence regarding the firearm. See United States v. Thomas,
242 F.3d 1028, 1032 (11th Cir. 2001) (holding in a § 922(g) case that evidence of a
defendant’s drug trafficking activities could be “relevant to proving that he
knowingly possessed . . . weapons”).
In Thomas, the district court admitted evidence that a CI had twice gone to
the defendant’s home and purchased crack cocaine before officers executed a
search warrant of that residence and found one rifle in the closet and another in a
truck parked in the driveway. Id. at 1030–31. This Court affirmed the § 922(g)
conviction, explaining that “[t]he fact that Thomas was engaged in selling crack
from his home is relevant evidence from which to infer that he knowingly
possessed rifles found in the closet of that home and in his truck.”
Id. at 1032–33;
see also United States v. Troya,
733 F.3d 1125, 1130–32 (11th Cir. 2013)
(providing that, in a case charging drug trafficking and firearms offenses, evidence
of uncharged shooting and uncharged attempted home invasion was inextricably
intertwined with the charged offenses because the shooting was done to protect the
drug operation and the home invasion showed the defendant’s method of obtaining
drugs to sell).
Likewise here, the fact that Bivins was suspected of spearheading a
gambling operation was relevant information from which the jury could infer that
he knowingly possessed the revolver found in his closet. This was particularly true
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in light of the large amount of currency located in his garage. As the district court
pointed out, the gambling investigation evidence gave rise to a possible
explanation of the source of the $19,000. 8 A reasonable jury might consider it
more likely that an individual would keep a firearm in his home to protect a large
amount of currency if the jury suspected that the currency came from illegal
conduct.
Even if the district court abused its discretion by admitting the evidence, any
error was harmless. See United States v. Hands, 184 F.3d 1322, 1329 (11th Cir.
1999) (“An erroneous evidentiary ruling will result in reversal only if the resulting
error was not harmless.”). The district court gave two detailed limiting
instructions, ensuring that the limited, vague references to the gambling
investigation did not prejudice Bivins. See United States v. McNair,
605 F.3d
1152, 1204–05 (11th Cir. 2010) (providing that district court’s limiting instructions
ensured that defendants were not prejudiced by admission of other bad acts
evidence under Rule 404(b)).9
8
No witness testified, and the government did not explicitly argue, that the currency came
from the gambling operation.
9
To the extent that Bivins argues on appeal that the gambling investigation should have
been excluded under Rule 403 of the Federal Rules of Evidence, we reject that argument as well.
As we explained, the evidence had some probative value and the possibility for undue prejudice
was obviated by the district court’s emphatic and repeated limiting instructions.
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In addition, the evidence of Bivins’s guilt of knowingly possessing the
handgun after being convicted of a felony was overwhelming. Bivins stipulated to
the prior felony conviction. The government’s evidence showed the items were
found in Bivins’s rental home and Bivins had been in the home the day of the
search. The government also introduced a completed application for a Florida
concealed weapons license bearing Bivins’s name and other identifying
information.
Bivins has not shown reversible error as to his motion in limine.
C. Bivins’s Substantive Reasonableness Challenge to His Sentence
Bivins does not challenge his guidelines calculations, but Bivins does argue
that his 235-month sentence was substantively unreasonable. We review the
substantive reasonableness of a sentence under a deferential abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51,
128 S. Ct. 586, 597 (2007). A
defendant challenging his sentence bears the burden of showing that the sentence is
unreasonable in light of the record and the § 3553(a) factors. United States v.
Tome,
611 F.3d 1371, 1378 (11th Cir. 2010). Although this Court does not
presume that a sentence within the guidelines range is reasonable, we ordinarily
expect such a within-guidelines range sentence will be deemed reasonable. United
States v. Gonzalez,
550 F.3d 1319, 1324 (11th Cir. 2008).
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Here, Bivins has not shown his sentence was substantively unreasonable.
His sentence was at the bottom of the guidelines range of 235 to 293 months’
imprisonment, well below his statutory maximum sentence of life imprisonment.
The factors that led the district court to this sentence were: (1) when Bivins
received his first adult felony conviction, in 1994, he lost his right to possess a
firearm, and yet “in 1995, a year later, he was arrested and . . . he pled guilty to the
crime of carrying a concealed firearm”; (2) the seriousness of Bivins’s prior
convictions; (3) the need to “get[] the message home to Mr. Bivins that he just
cannot possess a firearm”; and (4) the need to “send a message to the rest of the
community that if you do possess a firearm and you’ve been previously convicted
of a felony offense, then it’s a very serious offense.” The district court also stated
that it considered the other factors listed in 18 U.S.C. § 3553(a) and concluded that
“a sentence within the advisory guidelines range would be sufficient, but not
greater than necessary to achieve the goals that Congress has set forth.”
In light of this record, we cannot say that Bivins has shown his sentence was
substantively unreasonable.
III. CONCLUSION
For the reasons explained, we affirm Bivins’s conviction and 235-month
sentence.
AFFIRMED.
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