United States of America v. Franwan D. Mathis

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 5, 2023
Decided April 13, 2023
Before
DAVID F. HAMILTON, Circuit Judge
AMY J. ST. EVE, Circuit Judge
JOHN Z. LEE, Circuit Judge
Nos. 22-1636 & 22-1637
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANWAN D. MATHIS,
Defendant-Appellant.
Appeals from the United States District
Court for the Eastern District of
Wisconsin.
Nos. 2:20-cr-206-PP & 2:09-cr-254-PP
Pamela Pepper,
Chief Judge.
O R D E R
Franwan Mathis appeals two decisions: first, the verdict in his criminal trial and
the resulting 123-month prison term; second, the 10-month prison term imposed upon
the revocation of supervised release. His lawyer moves to withdraw from the appeals,
arguing that they are frivolous. See Anders v. California, 386 U.S. 738, 744 (1967). Mathis
responded to counsel’s motion. See CIR . R. 51(b). Because counsel carefully explains the
nature of the cases, addresses the potential issues that the appeals might involve, and
appears to analyze the issues thoroughly, we limit our review to counsel’s discussion
and the issues that Mathis raises. United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).

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Nos. 22-1636 & 22-1637 Page 2
Mathis was charged in 2020 in a three-count indictment for felony possession of a
handgun, possessing a controlled substance with intent to distribute, and possessing a
firearm to further a drug trafficking offense. 18 U.S.C. § 922(g)(1); 21 U.S.C. § 841(a)(1),
(b)(1)(C); 18 U.S.C. § 924(c)(1)(A)(i). The charges arose while he was on supervised
release for a drug crime from 2009. He had refused to talk with his probation officer,
and so a warrant was issued for his arrest. Law enforcement tracked him down at a gas
station, and he tried to flee. Once surrounded, officers searched him and his van, and
Mathis told them he was carrying a handgun in his waistband. The officers found
heroin, cocaine base, methamphetamine, and fentanyl in his van.
After he was indicted, Mathis filed several pretrial evidentiary motions; all were
denied. He sought disclosure of grand jury transcripts, suppression of lab reports about
the drugs, and the dismissal of the indictment because, he contended, an unauthorized
person was present at the grand jury proceedings.
At trial, the government presented evidence on all three charges. The officers
who arrested him testified that Mathis admitted that the drugs in the van and the gun
in his waistband were his. Expert chemists described the types and quantities of the
drugs. A police detective, offered as an expert in drug trafficking, opined that Mathis
was selling the drugs. The detective noted that Mathis possessed more drugs than a
typical user could consume (the methamphetamine alone would sustain a continuous
high for one week). Also, he added, the drugs were wrapped in individual doses,
Mathis had $400 in cash (useful for facilitating illicit drug transactions), drug traffickers
frequently carry a gun for protection, and drug traffickers often sell drugs out of cars to
evade detection. Finally, the detective said, Mathis’s cell phone contained text messages
that referred to drug types and prices. A jury found Mathis guilty of all three counts.
Next came sentencing. The sentencing hearing covered the jury’s verdict on the
three counts and the revocation of supervised release. In arguing for mitigation, Mathis
asked the court to consider his efforts at education and his low risk of reoffending. The
judge did so but also discussed the circumstances of Mathis’s offense (the quantity of
drugs and his attempt to evade arrest), his criminal history, and the ineffectiveness of
his prior criminal sentences to deter him from his latest crimes. The judge ordered a 60-
month mandatory minimum sentence for the § 924(c) conviction, a 63-month sentence
(at the bottom of the guidelines range) for the remaining two counts, and a 10-month
sentence for his supervised-release violations, all of which were to run consecutively.
Finally, the judge imposed a three-year term of supervised release.

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Nos. 22-1636 & 22-1637 Page 3
We start our review by focusing on the trial. Counsel first analyzes three pretrial
rulings and rightly concludes that they reveal no appealable issues. To begin, Mathis
could not plausibly argue that the court wrongly denied his motion to release grand
jury transcripts. They can be released if a defendant shows “that a ground may exist to
dismiss the indictment because of a matter that occurred before the grand jury.” F ED. R.
C RIM . P. 6(e)(3)(E)(ii). But Mathis argued only that it would be convenient to have the
transcripts. Second, a challenge to the court’s denial of Mathis’s pro se motion to
suppress the lab reports about the drugs would be frivolous; although Mathis did not
personally receive those reports from his counsel, the government turned them over to
counsel, thus meeting its obligations. See United States v. Holly, 940 F.3d 995, 1001
(7th Cir. 2019). Last, a contention that the court wrongly found that only authorized
persons appeared before the grand jury would necessarily fail as harmless in light of the
petit jury’s guilty verdict. See United States v. Philpot, 733 F.3d 734, 741 (7th Cir. 2013).
As for the trial itself, counsel considers, and rejects, a challenge to jury selection
and to the government’s opening statement and closing argument. Mathis raised no
objections during those stages of trial; therefore we would review jury selection and the
government’s statements for plain error. United States v. Tucker, 714 F.3d 1006, 1011–12
(7th Cir. 2013). But neither counsel nor we can discern any obvious problem in jury
selection. Likewise, the record does not show any statement from the prosecutor that
constituted a clear and obvious error affecting Mathis’s substantial rights.
See United States v. Eaden, 37 F.4th 1307, 1310 (7th Cir. 2022).
Counsel and Mathis next assess whether the evidence presented at trial was
insufficient to find Mathis guilty. In his Rule 51(b) response, Mathis contends that the
government’s evidence of his intent to sell drugs was “purely speculative” and did not
include techniques—wiretaps, searches of his home, and interrogations of the people he
texted with—that might have produced direct evidence of intent. But as counsel rightly
observes, a reasonable jury can rely on expert testimony to find an intent to distribute.
See United States v. Tingle, 880 F.3d 850, 854–55 (7th Cir. 2018). The expert detective’s
testimony here adequately suggested that Mathis intended to sell drugs: (1) Mathis had
a variety of drugs in quantities too large for personal use; (2) some were packaged in
individual doses; (3) he had a handgun, which is often used for protection during drug
sales; (4) he used his van to store the drugs, suggesting an attempt to evade detection of
sales; and (5) his $400 in cash and text messages about drug prices were consistent with
drug sales. Because the government presented sufficient evidence for a rational jury to
find that Mathis possessed illicit drugs with an intent to traffic them, it met its burden.
See United States v. Wilson, 879 F.3d 795, 802 (7th Cir. 2018).

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Nos. 22-1636 & 22-1637 Page 4
Likewise, sufficiency-of-evidence challenges to the two remaining counts would
necessarily fail. Mathis stipulated that the handgun was his and that he knew he could
not lawfully possess it, facts that suffice for a conviction for unlawful possession of a
firearm. See Greer v. United States, 141 S. Ct. 2090, 2095 (2021). And because the jury
permissibly determined that Mathis was selling drugs, Mathis’s simultaneous
possession of the gun supported the § 924(c) charge for possessing it to further a drug
crime. See United States v. Perryman, 20 F.4th 1127, 1134 (7th Cir. 2021).
Counsel next considers the sentence on the jury’s verdict, and we agree with him
that Mathis cannot reasonably contest it. Because Mathis did not object to any part of
the guidelines-range calculation, our review of potential procedural errors there would
be for plain error. See United States v. Oliver, 873 F.3d 601, 607 (7th Cir. 2017). And we
see none. The court correctly observed that the § 924(c) conviction carried a mandatory
60-month minimum and must run consecutively to any other sentence imposed.
18 U.S.C. §§ 924(c)(1)(A)(i), 924(c)(1)(D)(ii). For the remaining two counts, the judge
relied on an unopposed presentencing report to calculate correctly Mathis’s total
offense level of 22 and criminal history category of IV, U.S.S.G. §§ 2D1.1, 3D1.4(a)-(c),
4A1.1(a), 4A1.2(e)(1), leading to an advisory range of 63 to 78 months.
We also see no possible merit to a substantive challenge to the sentence. We
presume that a within-guidelines sentence is reasonable. See United States v. Konczak,
683 F.3d 348, 350 (7th Cir. 2012). And we see no basis to rebut that presumption for
Mathis’s prison term of 123 months, which combined the mandatory, consecutive
sentence of 60 months for the § 924(c) count and a bottom-of-the-guidelines range
sentence for the other two counts. The judge reasonably balanced Mathis’s mitigating
arguments against the concerns about his dangerous attempt to flee his arrest, his
extensive criminal history, and the ineffectiveness of his past sentences to deter his
criminal activity. See 18 U.S.C. § 3553(a); United States v. Sunmola, 887 F.3d 830, 841
(7th Cir. 2018). These comments also suffice to support the new three-year term of
supervised release, which falls within the statutory range. See 18 U.S.C. § 3583(b)(2);
United States v. Bloch, 825 F.3d 862, 869 (7th Cir. 2016).
We now turn to the revocation of supervised release from the 2009 conviction.
Because Mathis admitted to violating several conditions of his release and does not offer
a complex mitigating argument, we are not obligated to apply the Anders safeguards.
See United States v. Wheeler, 814 F.3d 856, 857 (7th Cir. 2016). But in an abundance of
caution, we do so anyway. See United States v. Brown, 823 F.3d 392, 394 (7th Cir. 2016).

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Nos. 22-1636 & 22-1637 Page 5
Counsel correctly concludes that an attack on the revocation of supervised
release and resulting prison term of 10 months would be pointless. Although counsel
reports that Mathis desires to challenge the revocation, see United States v. Wheaton,
610 F.3d 389, 390 (7th Cir. 2010), no plausible challenge to it is possible. In revoking
Mathis’s supervised release, the judge ensured that Mathis had notice of the charges
against him and his right to contest the charges. See F ED. R. C RIM . P. 32.1(b)(2). And his
admission to violating conditions of release (for refusing to contact his probation officer,
selling drugs, and carrying a gun) adequately supports the revocation. See United States
v. Mosley, 759 F.3d 664, 669 (7th Cir. 2014). Finally, the 10-month prison term was
substantively and procedurally reasonable. The court correctly, and without objection,
determined that Mathis committed a Grade A violation for committing a controlled-
substance offense, and he had a criminal-history category of VI, yielding a policy-
statement range of 33 to 41 months in prison. U.S.S.G. §§ 7B1.1(a)(1), 7B1.4(a). And the
court reasonably justified the below-guidelines term of 10 months by noting the
seriousness of Mathis’s refusal to talk to his probation officer. See 18 U.S.C.
§§ 3553(a)(1), 3583(e)(3).
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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