United States v. Boysie Nicholas Curling , 312 F. App'x 293 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-14810 FEBRUARY 18, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 06-00312-CR-T-17-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BOYSIE NICHOLAS CURLING,
a.k.a. Victor Clark,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 18, 2009)
Before EDMONDSON, Chief Judge, TJOFLAT and BLACK, Circuit Judges.
PER CURIAM:
Defendant-Appellant Boysie Nicholas Curling appeals his convictions and
156-month total sentence for illegal re-entry into the United States after previously
being deported, 8 U.S.C. § 1326, and possession of firearms by a felon and illegal
alien, 18 U.S.C. § 922(g)(1), (5). No reversible error has been shown; we affirm.
On appeal, Curling argues that the district court abused its discretion in
admitting into evidence the judgment of his prior conviction for illegal re-entry into
the United States because admission of this evidence showed only his propensity to
commit the crimes in the indictment in violation of Fed.R.Evid. 404(b) and was
unfairly prejudicial under Fed.R.Evid. 403.
We review a district court’s evidentiary rulings for an abuse of discretion.
United States v. Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006). For evidence of
other crimes to be admissible under Rule 404(b), (1) the evidence must be relevant
to an issue other than the defendant’s character; (2) the act must be established by
sufficient proof to permit a jury finding that the defendant committed the extrinsic
act; and (3) the probative value of the evidence must not be outweighed
substantially by its undue prejudice, and the evidence must meet the other
requirements of Rule 403. United States v. Matthews, 431 F.3d 1296, 1310-11
(11th Cir. 2005).
2
The district court did not abuse its discretion in admitting this evidence. By
pleading not guilty to all counts and refusing to stipulate to his felon, illegal alien,
and previously deported statuses, Curling required the government to prove every
element of each offense. And evidence of his prior felony conviction for illegal
reentry properly was admitted because it was necessary to prove his felon and
illegal alien statuses for violations of sections 922(g)(1), (5).
Curling’s not guilty plea and refusal to stipulate also placed his intent and
knowledge at issue. Because the nature of Curling’s prior conviction was similar in
nature to the charged illegal re-entry count, the conviction was probative of his
intent in the charged offense. See Rule 404(b) (evidence of other crimes is
admissible to prove, among other things, intent, knowledge, or absence of mistake);
United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005) (“[a] similarity
between the other act and a charged offense will make the other offense highly
probative with regard to a defendant’s intent in the charged offense”). We also
conclude that the high probative value of the evidence was not outweighed
substantially by the danger of unfair prejudice and, thus, was not subject to
exclusion under Rule 403.1
1
Additionally, the court limited any prejudicial impact of the evidence by instructing the
jury about its limited purposes. See United States v. Edouard, 485 F.3d 1324, 1346 (11th Cir.
2007).
3
Curling next contends that the district court erred in denying his motions for
judgment of acquittal and new trial because the evidence was insufficient and
against the weight of the verdict to support his convictions. We review de novo a
preserved sufficiency-of-the-evidence challenge, viewing the evidence in the light
most favorable to the government, and taking all reasonable inferences and
credibility choices in the government’s favor. Matthews, 431 F.3d at 1309-10. We
review for an abuse of discretion the denial of a motion for a new trial based on the
weight of the evidence. United States v. Martinez, 763 F.2d 1297, 1312 (11th Cir.
1985).2
To support a conviction for illegal re-entry, the government must prove that
defendant is (1) an alien; (2) who previously was deported; (3) thereafter was found
in the United States; and (4) did not have permission to re-enter. 8 U.S.C. §
1326(a); United States v. Henry, 111 F.3d 111, 113 (11th Cir. 1997). Here,
evidence overwhelmingly supports this conviction: the evidence showed that
Curling was an alien who had been deported back to Jamaica in 2005 (after having
been convicted of illegal re-entry) and returned to Florida six months later without
permission. While Curling contends that no evidence showed that he entered the
2
With a motion for a new trial, the district court is not required to view the evidence in
the light most favorable to the verdict and may re-weigh the evidence and credibility of
witnesses. Id.4
United States voluntarily, the government is not required to prove a defendant’s
specific intent to reenter the United States without permission. See id. at 113-14.
About the firearm counts, the only element in dispute is whether Curling
knowingly possessed the firearms. See United States v. Salman, 378 F.3d 1266,
1267 n.2 (11th Cir. 2004) (noting elements of a section 922(g)(5) offense); United
States v. Deleveaux, 205 F.3d 1292, 1296-97 (11th Cir. 2000) (listing the elements
of a section 922(g)(1) offense). Both the sufficiency and the weight of the evidence
support the verdicts on these counts: Tamela Robinson, Curling’s former girlfriend
with whom he stayed after re-entering the United States, testified that Curling
brought a duffle bag into her home. She later looked in the bag and saw several
firearms. She also testified that Curling threatened her with one of the firearms
while the two of them were in her children’s room, where Curling slept. Contrary
to Curling’s assertion that Robinson’s testimony was not credible and
uncorroborated, it was corroborated by law enforcement’s discovery of the bag
containing the firearms in the children’s room along with men’s clothing and by
Robinson’s panicked state of mind when she interacted with the officers.3
We turn to Curling’s challenge to his sentence. He argues that the 156-month
sentence imposed by the district court -- which was twice the top of the applicable
3
Robinson called the police about Curling after he had threatened her with a large gun.
5
Sentencing Guidelines range of 78 months -- was unreasonable. We review
Curling’s sentence for reasonableness in the light of the factors set out in 18 U.S.C.
§ 3553(a). See United States v. Winingear, 422 F.3d 1241, 1244-46 (11th Cir.
2005). And we evaluate the reasonableness of a sentence using a deferential abuse-
of-discretion standard. Gall v. United States, 128 S.Ct. 586, 597 (2007).
Briefly stated, under section 3553(a), a district court should consider, among
other things, 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). “[T]he party who challenges the sentence bears the burden of
establishing that the sentence is unreasonable in the light of both [the] record and
the factors in section 3553(a).” United States v. Talley, 431 F.3d 784, 788
(11th Cir. 2005).
We conclude that Curling’s sentence was reasonable. Though his sentence
varied upward from the advisory guidelines range, it was seven years below the 20-
year statutory maximum he faced. See 8 U.S.C. § 1326(b)(2); Winingear, 422 F.3d
at 1246 (comparing, as one indication of reasonableness, the actual prison term
6
imposed against the statutory maximum). In addition, the district court explained
that it considered the section 3553(a) factors and that a sentence above the advisory
guidelines range was appropriate in Curling’s case. The court specifically noted the
egregious nature of Curling’s offenses -- including the large number of firearms he
possessed and how he threatened Robinson with the firearms and physically harmed
her -- and Curling’s lack of respect for immigration and criminal laws of the United
States, based on his immediate returns to the United States after deportation and
commission of felony offenses. The district court clearly considered the
seriousness of the offense, Curling’s history, the nature and circumstances of the
offense conduct, and the need for protection and deterrence in applying an upward
variance. See § 3553(a)(1), (2)(A)-(C).
And we conclude, based on the evidence in the record, that the district court
adequately justified its upward variance. See Gall, 128 S.Ct. at 597 (explaining that
a sentencing judge “must consider the extent of the deviation and ensure that the
justification is sufficiently compelling to support the degree of the variance”). The
record reflects that Curling twice had been deported for being in the United States
illegally; and, after both times, he re-entered shortly after deportation and
committed felony offenses. In addition, about the instant offenses, Curling
possessed eight firearms; and Robinson testified that Curling threatened her with
7
these firearms, and physically and sexually assaulted her, sometimes in front of her
children.
Here, the district court determined that the guidelines range did not yield a
reasonable sentence, and nothing in the record convinces us the sentence was
unreasonable. See id. (explaining “that the appellate court might reasonably have
concluded that a different sentence was appropriate is insufficient to justify reversal
of the district court”); see also United States v. Amedeo, 487 F.3d 823, 833-34
(11th Cir.), cert. denied, 128 S.Ct. 671 (2007) (affirming a substantial upward
variance based on extraordinary circumstances of cocaine distribution offense,
which included defendant’s distribution of cocaine to a minor and sexual assault).
AFFIRMED.
8