[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-10042

Non-Argument Calendar

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D.C. Docket No. 5:12-cv-00005-RS-LB-5

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

CHRISTOPHER MATHIS, 

 Defendant-Appellant. 

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No. 13-10055

Non-Argument Calendar

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D.C. Docket No. 5:12-cr-00005-RS-LB-6

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

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WILLIE JAMES MORGAN, 

 Defendant-Appellant. 

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Appeals from the United States District Court

for the Northern District of Florida

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(February 6, 2014)

Before WILSON, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM: 

Christopher Mathis and Willie Morgan appeal their convictions for 

conspiracy to distribute and possess with intent to distribute five or more kilograms 

of a substance containing a detectable amount of cocaine. 21 U.S.C. 

§ 841(b)(1)(A)(ii). Morgan also appeals his conviction for being a felon in 

possession of a firearm and ammunition. 18 U.S.C. §§ 922(g)(1), 924(a)(2). 

Mathis and Morgan argue, for the first time, that the district court should have 

questioned and replaced a juror who allegedly slept during the first day of trial and 

that their trial attorneys were ineffective for failing to object to the juror’s 

inattentiveness. We affirm Mathis’s and Morgan’s convictions, but we decline to 

review their arguments about ineffective assistance of trial counsel.

Because Mathis and Morgan did not object to the juror’s alleged sleeping in 

the district court, our review is for plain error. See United States v. Moriarty, 429 

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F.3d 1012, 1018 (11th Cir. 2005). “To establish plain error, a defendant must 

show there is (1) error, (2) that is plain, and (3) that affects substantial rights.” Id.

at 1019. “[T]he law of this circuit [is] that . . . there can be no plain error where 

there is no precedent from the Supreme Court or this Court directly resolving” the 

issue. United States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005).

The district court did not plainly err by failing to question and replace the 

juror. “Defense counsel [has] a duty to call a juror’s inattentiveness to the court’s 

attention.” United States v. Curry, 471 F.2d 419, 422 (5th Cir. 1973). Mathis’s 

and Morgan’s attorneys observed the juror allegedly sleeping during voir dire, but

decided to “keep him” because he was one of the only men on the jury panel. 

When the district court learned that the juror might have neglected to respond to a 

question during voir dire, the district court and Morgan’s attorney speculated that 

the juror had been sleeping during voir dire and the first day of trial. Mathis’s 

attorney, who was concerned that the juror was the “sole African-American” on the 

petit jury, commented that the juror might have been “concentrating.” The 

prosecutor suggested the juror’s behavior was “something . . . that possibly needs 

to be addressed,” but the district court decided not to question the juror about 

sleeping. Neither defense counsel objected to that decision. “There is no per se 

rule requiring an inquiry in every instance of alleged [juror] misconduct,” United 

States v. Hernandez, 921 F.2d 1569, 1577 (11th Cir. 1991), and we cannot fault the 

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district court for failing to investigate the juror’s alleged sleeping when defense 

counsel failed to object to it. When examined about his potential knowledge of 

any witnesses, the juror’s responses suggested that he was awake and attentive 

during the trial. See id. at 1577–78; United States v. Holder, 652 F.2d 449, 451 

(5th Cir. 1981). We will not permit Mathis and Morgan to disregard the juror’s 

behavior to “sew[] a defect into the trial, and later claim its benefit,” Curry, 471 

F.2d at 422, particularly when they fail to cite any precedent that requires the 

district court sua sponte to remove a sleeping juror.

We decline to address Mathis’s and Morgan’s arguments that their attorneys 

were ineffective. Mathis and Morgan failed to develop a record that would allow 

us to evaluate their arguments that their attorneys should have made a “formal 

motion to remove or object[] to the presence of the sleeping juror.” See United 

States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002). Mathis and Morgan can 

raise their arguments in a postconviction motion. See 28 U.S.C. § 2255.

We AFFIRM Mathis’s and Morgan’s convictions. 

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