United States v. Tywone Matthews ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-2763
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Tywone Derrel Matthews, also known as Lawon Davenport
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Dubuque
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Submitted: May 17, 2018
Filed: July 10, 2018
[Unpublished]
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Before WOLLMAN, BENTON, and STRAS, Circuit Judges.
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PER CURIAM.
Following a bench trial, the district court1 convicted Tywone Matthews of three
drug offenses involving the possession and distribution of heroin and fentanyl. 21
U.S.C. §§ 841(a)(1), 860(a). On appeal, Matthews challenges the sufficiency of the
evidence and an upward departure he received for causing a death. We affirm.
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The Honorable Leonard T. Strand, Chief Judge, United States District Court
for the Northern District of Iowa.
We begin with the sufficiency of the evidence. We will uphold a conviction
“if a reasonable factfinder could find the offense proved beyond a reasonable doubt,
even if the evidence rationally supports two conflicting hypotheses.” United States
v. Huggans, 650 F.3d 1210, 1222 (8th Cir. 2011) (citation omitted). Only if the
factfinder “would have had no choice but reasonably to doubt the existence of an
element of a charged crime” will we reverse. United States v. Acosta, 619 F.3d 956,
960 (8th Cir. 2010) (citation omitted).
For each of the two distribution counts, the government presented testimony
from drug buyers who identified Matthews as the seller. The government
corroborated the buyers’ testimony with a surveillance video showing Matthews
entering a car belonging to one of the buyers and eyewitness accounts from
government investigators. Even so, Matthews urges us to disregard the buyers’
testimony because it is not credible. We cannot do so. It was the factfinder’s
“prerogative to believe those witnesses” even in the face of attacks on their
credibility, particularly in light of the corroborating evidence. United States v. Lee,
687 F.3d 935, 941 (8th Cir. 2012).
The possession count presents a closer call. The government charged
Matthews with possession with intent to distribute heroin and fentanyl based on drugs
it found sitting in the open at a drug house where Matthews was present.
Specifically, officers discovered 22 packages of white powder containing heroin and
fentanyl, as well as several cellphones, drug-packaging material, and quinine (a
common cutting agent for heroin). Seeking to minimize his connection to the drugs,
Matthews claims that “[o]ther than his presence . . . on two dates, the government has
presented no proof that [he] had anything to do with the heroin distribution operation
there.” We disagree.
The government’s evidence adequately connected Matthews to the drugs, and
even more to the point, established that he constructively possessed them.
Constructive possession requires knowledge of an object’s presence and control over
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it. United States v. Peebles, 883 F.3d 1062, 1068 (8th Cir. 2018). The evidence
established both elements of constructive possession. In addition to finding the drugs
in Matthews’s presence, the government proved that he participated in the heroin
operation and used the drug house as a base of operations. As the district court
succinctly explained, “[t]he drugs were in plain view, Matthews knew they were
present, he had the ability to control them and, based on his past practice (including
a delivery . . . that very day) had the intent to do so.” These facts were sufficient to
establish constructive possession. See United States v. McClellon, 578 F.3d 846,
854–56 (8th Cir. 2009) (concluding there was sufficient evidence that a defendant
possessed drugs, in part based on testimony that he sold drugs out of the same room
where the drugs were found).
Finally, Matthews challenges an upward departure to his sentence for causing
a death. See U.S.S.G. § 5K2.1 (permitting a district court to upwardly depart when
the criminal behavior results in death). He does not dispute that he is eligible for the
departure or that the drugs he sold resulted in a death. Rather, he claims that the
district court abused its discretion because it inadequately considered the mitigating
factors he raised. See United States v. Nossan, 647 F.3d 822, 825 (8th Cir. 2011)
(reviewing the decision to depart for an abuse of discretion). We are confident that
the court gave due consideration to all of Matthews’s arguments, including any
mitigating circumstances, because the court explained why it departed, rejected the
government’s request for a twenty-two-level departure, and imposed a five-level
departure instead. Accordingly, we conclude that the court did not abuse its
discretion.
The judgment of the district court is affirmed.
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