United States of America v. Richard Mathis

United States Court of Appeals
For the Eighth Circuit
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No. 17-3642
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Richard Mathis
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: September 28, 2018
Filed: December 27, 2018
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Before SMITH, Chief Judge, MELLOY and STRAS, Circuit Judges.
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SMITH, Chief Judge.
Richard Mathis challenges the 80-month sentence he received after pleading
guilty to being a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2), and 924(e). He specifically challenges the district court’s1
The Honorable John A. Jarvey, Chief Judge, United States District Court for1
the Southern District of Iowa.

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finding that he used a firearm to facilitate the crime of harboring a runaway. Based
on this finding, the district court imposed a four-level sentencing enhancement
pursuant to U.S.S.G. § 2K2.1(b)(6)(B). The court also varied upward. On appeal,
Mathis argues the district court abused its discretion in imposing the four-level
sentencing enhancement. He claims the district court erred in finding by a
preponderance of the evidence that he had harbored a runaway and had used or
possessed a firearm to facilitate that crime. Mathis also argues the district court
abused its discretion in varying upward.
I. Background
Mathis picked up a 15-year-old boy, K.G., from school and drove him to
Mathis’s house in Atallisa, Iowa. Mathis had met K.G. on a website called
“Meetme.com,” and Mathis had invited K.G. to come stay with him. An investigation
of Mathis’s online activity revealed frequent, sexually explicit communication with
young males in which Mathis promised to provide them with a place to live, a car,
and a job if they moved.
On February 15, 2013, K.G.’s mother reported him missing. Investigators
tracked K.G. to Mathis’s home by “pinging” his cell phone, and on February 25,
police questioned Mathis’s roommate, Wanda Gott, outside their residence. Gott
claimed no minors were inside the house. In fact, K.G. had been inside the house with
Mathis during the questioning. Gott later admitted knowing that K.G. was inside and
that he was a runaway.
About two weeks after the police visit to his home, Mathis took K.G. to K.G.’s
grandmother’s house in Cedar Rapids, Iowa. Once home, K.G. claimed Mathis had
molested him and threatened him with a gun. Specifically, K.G. claimed Mathis had
pointed a gun at him; he later retracted that statement but consistently maintained
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there had been guns inside the house, including a rifle near the front entrance. K.G.2
also described other threatening behaviors by Mathis and Gott to investigators. He
claimed Gott made large dogs lie in front of his bedroom door to prevent him from
leaving the house. Gott admitted that she did so. K.G. also claimed Mathis bragged
about beating people up in prison.
K.G. further told investigators that Gott discovered he was actually only 15
years old and that Mathis also found out he was underage from Gott, who had viewed
him on a missing persons website. K.G. claimed Mathis made him take the battery out
of his cell phone when he learned his actual age. K.G. also described an incident in
which Mathis told him to duck down as they drove across the Illinois state line to
visit a friend. According to K.G., Mathis feared he would get in trouble for taking
K.G. out of state.
On March 8, officers obtained a warrant to search Mathis’s house. The search
uncovered a rifle near the front entrance, just as K.G. had described. Mathis admitted
K.G. stayed at his house, but he claimed he believed K.G. was 19.
The State of Iowa charged Mathis with harboring a runaway and being a felon
in possession of a firearm. Those charges were later dismissed. The federal
government charged Mathis with being a felon in possession of a firearm, in violation
of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). In January 2014, Mathis pleaded
guilty to the possession charge and was sentenced to 180 months’ imprisonment. We
affirmed the sentence. United States v. Mathis, 786 F.3d 1068 (8th Cir. 2015).
The Supreme Court reversed this court’s judgment, Mathis v. United States,
136 S. Ct. 2243 (2016), and we remanded the case to the district court for
K.G. was charged with making a false report to law enforcement because of2
these inconsistencies.
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resentencing. United States v. Mathis, 832 F.3d 876 (8th Cir. 2016). The presentence
investigation report (PSR) prepared for Mathis’s 2017 resentencing indicated a base
offense level of 20, with a four-level enhancement pursuant to U.S.S.G.
§ 2K2.1(b)(6)(B) for using or possessing a firearm in connection with another felony
offense, i.e., in connection with harboring a runaway. Accounting for acceptance-of-
responsibility reductions, the PSR thus calculated a total offense level of 21. Based
on a criminal history category of IV and an offense level of 21, the PSR
recommended an imprisonment range of 57–71 months.
At resentencing, the district court found by a preponderance of the evidence
that Mathis had committed the crime of harboring a runaway and had used or
possessed a firearm to facilitate that crime. The district court thus adopted the PSR’s
recommended four-level enhancement. The court also varied upward from the
Guidelines range, imposing a sentence of 80 months.
II. Discussion
On appeal, Mathis argues the district court abused its discretion in imposing
the four-level sentencing enhancement. He claims the district court erred in finding
by a preponderance of the evidence that he had both harbored a runaway and had used
or possessed a firearm to facilitate that crime. Mathis also argues the district court
abused its discretion in varying upward.
A. Sentencing Enhancement
The Guidelines call for a four-level sentencing enhancement “[i]f the defendant
. . . used or possessed any firearm or ammunition in connection with another felony
offense; or possessed or transferred any firearm or ammunition with knowledge,
intent, or reason to believe that it would be used or possessed in connection with
another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). This enhancement applies “if the
firearm or ammunition facilitated, or had the potential of facilitating, another felony
offense.” Id. § 2K2.1 cmt. n.14(A). “‘Another felony offense’ . . . means any federal,
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state, or local offense . . . punishable by imprisonment for a term exceeding one year,
regardless of whether a criminal charge was brought, or a conviction obtained.” Id.
§ 2K2.1 cmt. n.14(C) (emphasis added). Mathis agrees that harboring a runaway
qualifies as a felony offense for § 2K2.1(b)(6)(B) purposes, but he denies having
committed the offense or having used his firearm “in connection with” that offense.
1. Harboring a Runaway
“In applying § 2K2.1(b)(6) when the defendant has not been convicted of
another state or federal felony offense, the district court must find by a preponderance
of the evidence that another felony offense was committed, and that use or possession
of the firearm ‘facilitated’ that other felony.” United States v. Littrell, 557 F.3d 616,
617 (8th Cir. 2009) (quoting U.S.S.G. § 2K2.1 cmt. n.14(A)). Mathis was never
convicted of harboring a runaway under Iowa law because the charge was dismissed.
The district court was required, therefore, to find that Mathis had in fact harbored a
runaway by a preponderance of the evidence.
Iowa law prohibits “harbor[ing] a runaway child with the intent of committing
a criminal act involving the child or with the intent of enticing or forcing the runaway
child to commit a criminal act,” or “harbor[ing] a runaway child with the intent of
allowing the runaway child to remain away from home against the wishes of the
child’s parent, guardian, or custodian.” Iowa Code § 710.8(2), (3). Iowa law defines
a “[r]unaway child” as “a person under eighteen years of age who is voluntarily
absent from the person’s home without the consent of the person’s parent, guardian
or custodian.” Id. § 710.8(1)(c). To be guilty of harboring a runaway child, the
defendant must either provide “aid, support, or shelter” to the runaway. See id.
§ 710.8(1)(b).
The district court’s finding that Mathis knowingly harbored a runaway child
is a question of fact, which we review for clear error. See United States v. Woods, 596
F.3d 445, 447 (8th Cir. 2010). A district court may conduct its own fact-finding and
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evidence-gathering to determine if an enhancement applies. United States v. Battle,
774 F.3d 504, 516 (8th Cir. 2014). Moreover, a district court is entitled to “special
deference” in its credibility determinations. Id. at 517; see also Woods, 596 F.3d at
448 (deferring to district court’s credibility determination where the district court
based a sentencing enhancement on statements made by defendant’s girlfriend to an
officer who testified at trial).
Here, the district court based its finding that Mathis had harbored a runaway
child on information contained in the PSR that was later corroborated at sentencing
by the investigating officers. According to the officers, Gott told them K.G. was at
Mathis’s house when police first came to look for him. She represented that she did
not know K.G.’s actual age until she discovered it on a missing persons website. Gott
admitted that she placed dogs in front of K.G.’s room to prevent him from leaving.
Officers also testified that K.G. told them Mathis learned from Gott that K.G. was
being sought as a missing person. K.G. also told officers that once Mathis learned his
actual age, he made him remove the battery from his cell phone. K.G. also related that
Mathis had expressed concern about driving K.G. across state lines because of his
age. Lastly, Mathis himself admitted that K.G. stayed at his house. Based on the
corroborated allegations in the PSR, the district court had sufficient evidence to
conclude that Mathis knew K.G. was both a minor and a runaway and harbored him
in violation of Iowa law.
2. Using or Possessing a Firearm in Connection with Another Felony
Before applying an § 2K2.1(b)(6) enhancement, the district court must find by
a preponderance of the evidence that the defendant used or possessed a firearm to
facilitate the commission of felony. See Littrell, 557 F.3d at 617. We have held that
“the enhancement is inapplicable if a firearm was present at the crime scene due to
‘mere accident or coincidence.’” United States v. Mangum, 625 F.3d 466, 467 (8th
Cir. 2010) (quoting United States v. Guiheen, 594 F.3d 589, 591 (8th Cir. 2010)).
However, “where a defendant keeps a firearm ‘at an easily accessible location’ while
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committing a felony offense, a sentencing court may infer that the firearm
‘emboldened the defendant to engage in the illegal act.’” Id. at 467–68 (quoting
Guiheen, 594 F.3d at 591).
A defendant need not have initially intended to use the firearm to facilitate
another felony. “[W]here a defendant keeps a firearm ‘at an easily accessible location’
while committing a felony offense,” id. at 467 (quoting Guiheen, 594 F.3d at 591),
“with knowledge . . . or reason to believe that” such firearm was facilitating the
commission of that felony, U.S.S.G. § 2K2.1(b)(6)(B), then that defendant cannot
escape the enhancement merely by claiming he did not subjectively intend to use or
possess the weapon to facilitate another felony.
Whether Mathis used or possessed his firearm to facilitate harboring K.G. is
a question of fact subject to review for clear error. See Littrell, 557 F.3d at 617. The
district court in this case heard testimony from officers that Mathis kept a gun in open
sight, and that K.G. was intimidated by the gun, as well as by Mathis’s criminal past.
Upon searching Mathis’s home, investigators found a gun matching the description
that K.G. supplied.
In light of this evidence, we cannot say the district court clearly erred in finding
that “the presence of the firearm, the presence of the dogs, [Mathis’s] past criminal
history all made known to [K.G.] or was intimidating to the victim, and therefore it
both facilitated and obviously had the potential to facilitate the offense.” Tr. of
Resentencing Hrg. at 51–52, United States v. Mathis, No. 3:13-cr-00033-JAJ-HCA-1
(S.D. Iowa Nov. 21, 2017), ECF No. 115.
K.G.’s testimony about Mathis’s use of the gun was not unequivocal, but the
officers’ testimony at trial provided the needed evidentiary preponderance to support
a finding that the enhancement applies. In applying the enhancement, the district
court necessarily deemed the officers’ testimony—and by extension, K.G.’s
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testimony—credible. “A district court’s assessment of a witness’s credibility is almost
never clear error given that court’s comparative advantage at evaluating credibility.”
Woods, 596 F.3d at 448 (citation ommited). We thus find the district court had
sufficient evidence to conclude that Mathis used a firearm to facilitate harboring a
runaway.
We hold the district court did not err in applying the § 2K2.1(b)(6)
enhancement.
B. Upward Variance
Mathis claims the court abused its discretion in varying upward. We disagree.
The PSR established a sentencing range of 57–71 months. At resentencing, the
government requested a sentence of 84 months, but the district court imposed an 80-
month sentence.
We may not presume a sentence outside the Guidelines to be unreasonable.
Gall v. United States, 552 U.S. 38, 51 (2007). An appellate court may consider the
extent of the deviation from the Guidelines, but it may not require “extraordinary
circumstances to justify a sentence outside the Guidelines.” United States v. Thorne,
896 F.3d 861, 866 (8th Cir. 2018) (cleaned up). While a district court must explain
its basis for varying from the Guidelines, it may consider factors already taken into
account by the Guidelines in explaining its variance. Id. at 865. Specifically, it may
consider factors under 18 U.S.C. § 3553(a), such as an offender’s criminal history,
his likelihood of recidivism, and his threat to the public. Id. “If the court ‘properly
treat[s] the Guidelines range as advisory, [it is] free to consider any sentencing facts
supported in the record by a preponderance of the evidence in setting [a] sentence,
subject only to the statutory maximum and the guiding factors in § 3553(a).’” Battle,
774 F.3d at 516 (alterations in original) (quoting United States v. Wade, 435 F.3d
829, 831–32 (8th Cir. 2016) (per curiam)).
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The district court considered Mathis’s extensive criminal history and cited3
protecting the public as justification for an upward variance. Mathis disputes this
rationale, arguing that the variance “could only be based on . . . unproven allegations”
because the Guidelines range already accounted for his record. Appellant Br. at 23.
This argument misunderstands our law. Not only may a district court consider factors
already accounted for by the Guidelines in imposing a sentence, but it may also
consider facts supported by a preponderance of the evidence—whether or not those
facts were proven in the form of a conviction. See Thorne, 896 F.3d at 865; Battle,
774 F.3d at 516.
In light of the evidentiary record and our deferential abuse-of-discretion
standard in reviewing sentences, we hold the district court did not err in varying
upward.
III. Conclusion
Having considered all of the arguments on appeal, we find no basis for
reversal. Accordingly, we affirm the judgment of the district court.
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Mathis’s PSR detailed a decades-long history of criminality, beginning with3
a burglary conviction in 1980. In total, the PSR indicated 18 separate criminal
convictions, and 9 arrests not resulting in conviction. Notably, Mathis was arrested
for “lascivious acts with a child” in 1986. Mathis’s prior convictions included
assaults, burglaries, thefts, multiple instances of disturbing the peace and criminal
mischief, trespass, false use of a financial instrument, escape, and reckless driving.
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