### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 13

‐ 2525

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

E DWARD C.M. M OLTON

, J R

., Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Southern District of Illinois.

No. 3:12-CR-30116-MJR — Michael J. Reagan

, Judge

.

____________________

A RGUED D ECEMBER 11, 2013

— D ECIDED F EBRUARY 18, 2014

____________________

Before W OOD

, Chief Judge, and F LAUM and S YKES

, Circuit

Judges

.

F LAUM

, Circuit Judge

. A jury convicted Edward Molton,

Jr., of unlawful possession of a fi rearm by a convicted felon,

in violation of 18 U.S.C. § 922(g). The district court sentenced

Molton to 108 months’ imprisonment, which is substantially

higher than the advisory guidelines range of 63 to 78

months. Molton fi rst a tt acks his conviction, arguing that the

district court should have excluded evidence of his gangNo. 13

‐ 2525 2

a ffi liation, and that the evidence was insu ffi cient to support

a conviction. He then contends that his above

‐ guidelines

sentence is substantively unreasonable. We a ffi rm.

I. Background

On the evening of March 14, 2012, Kenneth Brown was

shot in the neck and head while driving in East St. Louis,

Illinois. FBI Special Agents Nick Manns and Bryan Yingling

were working the W.A.V.E. detail (a local

‐ state

‐ federal joint

force) in East St. Louis. They heard about the shooting over

their radios and went to the scene, where they saw that

Brown’s car was riddled with bullet holes. Brown had

already been taken to the hospital; he ultimately survived.

Agent Manns was familiar with Brown as the leader of

the Waverly Crips gang in East St. Louis. Concerned about

the welfare of the Brown family, Agents Manns and Yingling

drove to a house on 38th Street where Brown stayed with

family. The agents also expected some retaliation for Brown’s

shooting and believed that his associates might gather at the

38th Street home for that purpose.

When Agents Manns and Yingling arrived at Brown’s

residence, they saw people in the street in front of the house

and on the front porch. Some approached the agents; they

said they were Brown’s family members and were preparing

to visit Brown in the hospital. While speaking with them,

both agents saw a man (Molton) standing along a sidewalk to

the northeast of their car. Molton was standing across the

street from Brown’s house, near a chain link fence. Behind

Molton was a large tree. Molton neither approached the

agents nor spoke to them. The agents testified that he

appeared wary of them. Molton was standing with his rightNo. 13

‐ 2525 3

side turned away from the street and the agents. Although

the agents could not see his right side or right hand, they

believed he was holding a firearm. One of the family

members in the street then yelled toward the house, “It’s just

the feds.” Immediately thereafter, the agents testified that

they saw Molton make a quick movement, turn, and move

toward the large tree. That tree momentarily obstructed the

agents’ view of Molton, but then Molton returned to his

initial position and stood. Both agents believed that Molton

had dropped a firearm.

Agent Yingling approached Molton while Agent Manns,

walking the short path he had seen Molton take, retrieved a

semi

‐ automatic rifle from behind the tree. It was loaded with

nineteen live rounds, one of which was in the chamber. The

agents said that Molton was nervous, shaking, and sweating

profusely. They arrested him.

Brown’s family members denied knowing Molton and

vice versa, but they seemed unconcerned that Molton was

found across the street with a loaded assault rifle. Their lack

of alarm convinced the agents that Molton was not there to

harm the Brown family, but instead to support Brown and in

response to his being shot. The agents did not see anyone else

in the area. Later that night, though, another man (Torcus

Boone) was found hiding in the brush near Brown’s house,

across the street from where Molton had been standing.

Molton told Agent Manns that he lived on North 30th

Street in East St. Louis, about eighteen blocks away from 38th

Street. Molton said that just before his arrest, he had left his

grandmother’s house—located directly behind Brown’s

house—and walked to his girlfriend’s house, but no one had

answered the door. He was walking back to hisNo. 13

‐ 2525 4

grandmother’s house when he was arrested, he said. Molton

denied possessing a firearm or disposing of one.

Jevon Strayhorn, a cellmate of Molton’s while both were

awaiting trial, testified at Molton’s trial as a government

witness. According to Strayhorn, Molton told Strayhorn that

he was a “Tres Nine Waverly Crip,” and that he “put in

work” for his gang. Molton said that on the night of his

arrest, a friend—“one of the big people” in the Waverly

Crips—was shot in retaliation for a shooting that occurred

some time ago. After his friend was shot, Molton said that he

received a call, and that he and a partner went to the friend’s

house and got an assault rifle from someone on the porch. He

then walked across the street and waited for a friend to bring

something to wipe down the gun. When the agents’ car

arrived, Molton thought it was that friend. When someone

yelled, “It’s just the feds,” Molton ducked back and hid the

rifle by a tree. Molton shared with Strayhorn his concern that

his fingerprints would be found on the rifle, and he

experimented by pressing his hands on the stainless steel cell

doors to see if his fingerprints were left behind.

Molton was charged with unlawful possession of a

firearm by a convicted felon, in violation of 18 U.S.C.

§ 922(g). After a three

‐ day trial, the jury found him guilty.

The court sentenced him to 108 months’ imprisonment and

three years of supervised release. We will relay additional

information below about the trial and sentence.

II. Discussion

A. Evidence of Molton’s gang involvement

Before trial, Molton moved to preclude the government

from mentioning, in its case

‐ in

‐ chief, both Brown’s shootingNo. 13

‐ 2525 5

and Molton’s alleged gang involvement. The court denied

Molton’s motion, reasoning that Molton’s alleged

membership in Brown’s gang was relevant to multiple

aspects of the case: “the overarching factual scenario at issue,

Molton’s presence at the scene, and why he would have a

rifle.” We review this ruling for abuse of discretion. United

States v. Alviar

, 573 F.3d 526, 536 (7th Cir. 2009).

Relevant evidence is generally admissible under Federal

Rule of Evidence 402, but may be excluded if it is unduly

prejudicial. See Fed. R. Evid. 403. Evidence of gang affiliation

must be handled with care, because “a jury is likely to

associate gangs with criminal activity and deviant

behavior,” raising the “specter of guilt by association or a

verdict influenced by emotion.” United States v. Santiago

, 643

F.3d 1007, 1011 (7th Cir. 2011) (citation and internal

quotation marks omitted). Accordingly, “we examine the

care and thoroughness with which a district judge

considered the admission or exclusion of [such] evidence.”

Id. (citation omitted). Yet we have repeatedly upheld the

admission of gang affiliation evidence when it is more

probative than prejudicial. Id. ; see also United States v. King

,

627 F.3d 641, 649 (7th Cir. 2010) (admission of gang evidence

is appropriate “to demonstrate the existence of a joint

venture or conspiracy and a relationship among its

members” (citation omitted)); United States v. Montgomery

,

390 F.3d 1013, 1018–19 (7th Cir. 2004) (admission of gang

evidence proper to help establish motive); United States v.

Butler

, 71 F.3d 243, 250–51 (7th Cir. 1995) (evidence that

defendant acted as security in a gang was admissible

because it provided a motive for his gun possession).No. 13

‐ 2525 6

In this case, the district judge correctly summarized the

law and gave logical reasons for denying Molton’s motion to

exclude the evidence. We accord the district judge’s

evidentiary decision “great deference, and it will be

disturbed only if no reasonable person could agree with” it.

United States v. Ozuna

, 674 F.3d 677, 682 (7th Cir. 2012). We

have previously admitted gang affiliation evidence for the

purpose of showing motive, including in gun possession

cases. Montgomery

, 390 F.3d at 1018; United States v. Sargent

,

98 F.3d 325, 328 (7th Cir. 1996) (admission of gang

membership evidence was not unduly prejudicial because it

“was necessary to explain the motive behind the crime

charged”); Butler

, 71 F.3d at 251–52. The district judge also

gave a limiting instruction, and we have suggested that such

instructions help reduce concerns about the prejudice

inherent in this kind of evidence. See, e.g.

, Ozuna

, 674 F.3d at

682; Butler

, 71 F.3d at 251–52. For these reasons, the district

court’s evidentiary ruling was not an abuse of discretion.

B. Sufficiency of the evidence

Molton next argues that the evidence was insufficient to

support his unlawful

‐ possession conviction, and therefore

the district court erred in denying his motion for a judgment

of acquittal. We review sufficiency of evidence claims in the

light most favorable to the government and will uphold a

jury verdict if “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”

United States v. Love

, 706 F.3d 832, 837 (7th Cir. 2013). 1

1 The briefing is somewhat unclear, but to the extent Molton also argues

that he should have been granted a new trial, the standard is whether the

verdict is so contrary to the weight of evidence that the interests ofNo. 13

‐ 2525 7

In Molton’s case, the parties stipulated to multiple

elements of the crime, so the government needed to prove

only one thing beyond a reasonable doubt: that Molton

knowingly possessed a firearm on March 14, 2012. Molton

argues that no one saw him possess a firearm, that the

government’s case consisted only of circumstantial evidence,

that the agents did not know if anyone had been in the area

of the recovered firearm prior to their arrival, that Molton’s

alleged sweating could actually have been moisture from

rainfall that night, that Molton consistently denied having a

firearm to Agent Manns, that Molton was simply returning

to his grandmother’s home when he was arrested, and that

no fingerprints were found on the firearm. Molton also

contends that the agents could not have seen him clearly

because it was late, dark, and there were no streetlights.

Finally, Molton says, Strayhorn’s testimony was unreliable

and motivated by his desire for a lesser sentence.

These are all potential reasons that a jury might have

acquitted Molton—but this jury convicted him. The jury’s

determination was rational in light of the evidence it heard.

Two FBI agents, Manns and Yingling, testified that Molton

was near the home of a recently shot gang leader, standing

with his body angled so the agents could not see his right

side or right hand

. Molton appeared wary of them, and as

soon as someone yelled “It’s just the feds,” Molton

disappeared for a moment behind a nearby tree. Moments

later, the agents found a loaded rifle by that tree. Molton,

sweating and nervous, told the agents, “you couldn’t have

justice require a new trial. See United States v. Washington

, 184 F.3d 653,

658 (7th Cir. 1999). We would deny this challenge as well, for the district

court did not abuse its discretion on this record. See id. at 658–59.No. 13

‐ 2525 8

seen me, it’s too dark.” As a member of Brown’s gang,

Molton also had a motive to be carrying a firearm. Further,

Strayhorn testified that, while he shared a jail cell with

Molton, Molton told him that he was given the firearm by

someone on the front porch.

It was up to the jury to determine whether to credit the

testimony of these witnesses. United States v. Woolfolk

, 197

F.3d 900, 904 (7th Cir. 1999). The jury also saw a video from

the FBI agents’ dashboard camera. The jury therefore knew

how dark it was on Brown’s street that night—a factual

matter—but chose to believe the agents. Id. Next, Molton’s

argument that the government’s case consisted entirely of

circumstantial evidence is unpersuasive because our Pattern

Instruction requires the jury to consider both direct and

circumstantial evidence, does not say that one is more

compelling than the other, and states that the jury decides

how much weight to give each type of evidence. 7th Cir.

Crim. PJI 2.03. Finally, the lack of fingerprints on the firearm

is unsurprising: trial testimony established that the rifle was

well

‐ oiled, which reduces the odds of fingerprints. For these

reasons, we affirm Molton’s conviction.

C. Substantive reasonableness of the sentence

When reviewing a sentence, we must first be sure that

the district court committed no procedural error, United

States v. Hill

, 645 F.3d 900

, 905 (7th Cir. 2011), and none is

alleged or evident here. We then review whether the

sentence is substantively reasonable in light of the 18 U.S.C.

§ 3553(a) factors. United States v. Vallar

, 635 F.3d 271, 278 (7th

Cir. 2011). This substantive review is for an abuse of

discretion, irrespective of whether the sentence is above,

below, or within the advisory guidelines range. Gall v. UnitedNo. 13

‐ 2525 9

States

, 552 U.S. 38, 51 (2007). If, as here, the sentence is

outside the guidelines range, “the district court must

provide a justification that explains and supports the

magnitude of the variance.” United States v. Carter

, 538 F.3d

784, 789 (7th Cir. 2008). Thus, a more significant variance

requires a more significant justification. United States v.

Taylor, 701 F.3d 1166, 1174 (7th Cir. 2012). However, we will

uphold an above

‐ guidelines sentence as long as the district

court “offered an adequate statement of its reasons,

consistent with 18 U.S.C. § 3553(a),” for its sentence. United

States v. McIntyre

, 531 F.3d 481, 483 (7th Cir. 2008).

i. The Presentence Investigation Report

The statutory maximum was 120 months’ imprisonment,

and the PSR reported a guidelines range of 63 to 78 months

based in part on Molton’s criminal history, which involved

several prior offenses: aggravated unlawful use of a weapon

as a juvenile; armed robbery; battery; unlawful possession of

cannabis; and criminal trespass. Molton was on parole at the

time of the present offense.

The PSR noted that Molton does not have a good

relationship with either parent. “His mother was more

interested in maintaining her relationships with the men in

her life than her children, and his father was physically and

mentally abusive.” When Molton was twelve, his father

made him strip naked, and then struck him repeatedly with

an extension cord, breaking the skin. Due to the abuse,

Molton and his siblings avoided their father, who also used

alcohol and drugs. Molton threatened to commit suicide at

age eleven in an attempt to get maternal attention, after his

mother allowed a boyfriend to beat Molton. Molton is now

twenty

‐ three, and has been in and out of prison since ageNo. 13

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seventeen. He and his siblings were mostly raised by their

grandmother in East St. Louis.

ii. Analysis of the district court’s approach

The government sought a 120

‐ month sentence and

Molton sought a guidelines sentence. The district court

sentenced Molton to 108 months’ imprisonment, a $500 fine,

a $100 special assessment, and three years of supervised

release. The district judge explained his choice of sentence at

the sentencing hearing and in a sentencing memorandum.

At the sentencing hearing, the judge did exactly what we

have encouraged judges to do: explain the relevance of the

§ 3553(a) factors to their sentencing decision. See, e.g.

, Hill

,

645 F.3d at 905. For instance, the district judge considered

this particular defendant’s criminal history (“this is Mr.

Molton’s third felony involving a firearm”) as well as

mitigating considerations (his “horrific childhood”), his

characteristics (his “violent and dangerous” nature), and his

respect for law (“He has shown little or no respect for the

law beginning at a young age. He is only 23. He has criminal

history category of four and three weapon offenses. He was

on parole at the time of the instant offense and just 12 days

earlier was on electronic monitoring.”). The district judge

also considered specific deterrence (given Molton’s past, “I

am afraid he is likely to recidivate”; “in felonious gun

possession cases with [violent] individuals..., guideline

sentences do not deter”). The judge determined that a

guideline sentence was insufficient punishment for a

twenty

‐ three year old convicted of his third firearm offense.

Viewing this defendant in comparison to others, though, the

judge declined to sentence Molton to the statutory maximum

because that type of punishment “is reserved for the worstNo. 13

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of the worst.” See 18 U.S.C. § 3553(a)(6) (instructing district

judges to sentence defendants so as to “avoid unwarranted

sentence disparities among defendants with similar records

who have been found guilty of similar conduct”).

Molton argues that the district court did not

appropriately consider his background and upbringing. But

the judge did consider Molton’s “horrific childhood” and

abuse. The judge chose to focus to a greater extent on

Molton’s most recent six years of repeated crime, but this

sort of weighing is not an abuse of discretion. The district

court must impose a sentence that is “not greater than

necessary,” 18 U.S.C. § 3553(a), but the judge’s concern that

Molton would continue to recidivate is not unreasonable

given his record, and is consistent with the § 3553(a) factors. 2

Molton next takes issue with a thirty

‐ nine

‐ page

sentencing memorandum that the district court filed after

sentencing Molton. The memo first described East St. Louis’s

history as primarily one of government corruption, scarce

revenue, and crippling debt. It then relayed the city’s current

realities: lack of economic opportunities, social services, and

police presence; a declining population; and rampant crime,

violence, and corruption. This memo presented extensive

data on violent crime (murder, rape, assault, robbery, etc.) in

East St. Louis compared to other American (and

international) cities. Finally, the memo described forty

‐ five

prominent public corruption cases in the last thirteen years.

The memo mentioned Molton only three times in its thirty

‐

2 Molton also argues that the district court did not adequately consider

his “positive” qualities, but Molton did not point to anything specific for

the court to consider.No. 13

‐ 2525 12

nine pages, where it repeatedly emphasized that Molton was

not being blamed for the city’s decline.

In light of this memo, Molton argues that his sentence

was substantively unreasonable because the court gave

undue weight to irrelevant concerns like corruption and

punished Molton for others’ crimes. The memo is somewhat

unorthodox. However, we ultimately reject Molton’s

argument because we find that—viewing the memo in

conjunction with the court’s statements at the sentencing

hearing—the court weighed each of the § 3553(a) factors and

provided sufficient rationales for its sentence.

The portion of the memorandum that describes the city’s

history of corruption and its recent corruption cases is not

especially relevant to Molton’s sentence—the memo

provides no link between public corruption and gun

‐ related

offenses or violent crimes more generally. If the district

judge had commented only on corruption and not on

Molton’s specific characteristics, we would need to remand;

a district judge should consider general deterrence but must

also hand down an “individualized” sentence. Gall

, 552 U.S.

at 50. But the judge’s sentencing memorandum also details

violent crime in the city, and this consideration is valid as

part of the general deterrence analysis. In fact, our cases

have often viewed general deterrence as a means of

preventing like or related crimes. 3 Thus, the judge’s

3 For instance, we have approved of district judges considering other

corruption convictions or data when sentencing a defendant of a

corruption crime, or considering other violent crime convictions or data

when sentencing a defendant of a violent crime. See, e.g.

, Hill

, 645 F.3d at

911 (affirming a sentence in a corruption case where the court “ pointed

to the widespread corruption in East St. Louis and the need to deterNo. 13

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extended analysis of violent crime in East St. Louis ensured

the relevance of the sentencing memorandum.

True, this memo focuses on only one factor (general

deterrence), but that was intentional. The memo merely

buttressed the court’s analysis at the sentencing hearing,

which appropriately considered the other § 3553(a) factors.

Thus, when viewing the hearing and the memo together, we

find that the district court considered each of the § 3553(a)

factors and provided sufficient rationales for its sentence. In

such a situation, “we must give deference to the district

court’s determination that the [§ 3553(a)] factors justify” its

above

‐ guidelines sentence. Taylor, 701 F.3d at 1175.

III. Conclusion

We A FFIRM Molton’s conviction and sentence.

future public corruption”) ; United States v. Ingram

, 427 F. App’x. 531,

533–34 (7th Cir. 2011) (“ The district court, however, was permitted to

consider the level of violent crime in East St. Louis when gauging the

need for general deterrence to protect members of that community. ”);

United States v. Anderson

, 517 F.3d 953, 966 (7th Cir. 2008) (“The district

court referred to a number of recent public corruption scandals.... The

judge stressed the corrosive effect that corruption has on the public

trust.... Anderson [—who was convicted of fraud and bribery—]

believes that the judge put too much weight on the public corruption

scandals, but the judge was simply emphasizing the seriousness of the

nature of the crime and discussing the need for general deterrence.”);

United States v. Jordan

, 435 F.3d 693, 698 (7th Cir. 2006) (affirming

sentence for repeat child molester where trial judge said: “I think a

severe sentence is necessary to send a very strong message that this

conduct is outrageous, that this conduct is wrong, that this conduct

cannot be tolerated in a civilized society that cares for its children.”);

United States v. Brubaker

, 663 F.2d 764, 769 (7th Cir. 1981) (judge gave

stiffer sentence in order to generally deter, i.e., “to provide a deterrent to

any who might be otherwise inclined to act as you have acted.”).