USCA11 Case: 24-10027 Document: 34-1 Date Filed: 12/05/2024 Page: 1 of 12

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 24-10027 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DWAYNE ERIC THOMPSON,

Defendant-Appellant.

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Appeals from the United States District Court for the Middle District of Florida D.C. Docket No. 3:10-cr-00015-TJC-LLL-1 ____________________ USCA11 Case: 24-10027 Document: 34-1 Date Filed: 12/05/2024 Page: 2 of 12

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No. 24-10031 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DWAYNE ERIC THOMPSON,

Defendant-Appellant.

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Appeals from the United States District Court for the Middle District of Florida D.C. Docket No. 3:09-cr-00117-TJC-MCR-1 ____________________

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No. 24-10030 Non-Argument Calendar ____________________ USCA11 Case: 24-10027 Document: 34-1 Date Filed: 12/05/2024 Page: 3 of 12

24-10027 Opinion of the Court 3

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DWAYNE ERIC THOMPSON,

Defendant-Appellant.

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Appeals from the United States District Court for the Middle District of Florida D.C. Docket No. 3:23-cr-00067-TJC-JBT-1 ____________________

Before WILLIAM PRYOR, Chief Judge, and JILL PRYOR and BRASHER, Circuit Judges. PER CURIAM: Dwayne Eric Thompson appeals his conviction and sen- tence for possession of a firearm as a felon, 18 U.S.C. § 922(g)(1), and his sentence for violating supervised release. Thompson chal- lenges the sufficiency of the evidence, the denial of his motion for a mistrial and new trial, and the upward variance from his Sentenc- ing Guidelines range without prior notice. We affirm. USCA11 Case: 24-10027 Document: 34-1 Date Filed: 12/05/2024 Page: 4 of 12

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I. BACKGROUND A grand jury indicted Thompson with one count of posses- sion of a firearm by a convicted felon. 18 U.S.C. § 922(g)(1). At trial, Officer Walter Umland testified that he was on patrol when he saw a car driving with dark window tint, and records showed the regis- tered owner and driver, Thompson, had a pending investigation. Detective Thomas Sweat pulled Thompson over. Thompson and two female passengers got out of the car. During a search, officers found a firearm in the center console on top of other items. The women denied having a firearm in the car and denied seeing Thompson with a firearm. Further investigation revealed that Thompson was a convicted felon. Thompson was combative when Officer Umland obtained a DNA sample. On cross-examination, Officer Umland testified that he never saw Thompson with the fire- arm. Detective Sweat testified that he pulled Thompson over and located the firearm. He wore a fresh pair of gloves, did not touch anything before touching the firearm, and placed the firearm and ammunition in a brown bag to avoid contamination. He never saw Thompson physically possess the firearm. Quenita Mustafa, one of the passengers, testified that she did not know the firearm was in the car. Special Agent Lisa Gaul testi- fied that the firearm crossed international and state lines. Shernelle Smith testified that she examined the firearm and magazine and did not find any latent fingerprints. USCA11 Case: 24-10027 Document: 34-1 Date Filed: 12/05/2024 Page: 5 of 12

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Brooke Hoover testified that there was a mixture of four do- nors from both the firearm and magazine swabs, and Thompson was a possible contributor. She explained that the mixed DNA pro- file for the firearm swab was more than 700 billion times more likely to occur if the sample was from Thompson and 3 other indi- viduals as opposed to 4 unrelated individuals. She explained that the mixed DNA profile for the magazine swab was about 14,000 times more likely to occur if the sample was from Thompson and 3 other individuals as opposed to 4 unrelated individuals. On cross-examination, Hoover testified that DNA could reach a sur- face from direct contact or indirect transfer through an intermedi- ary. She stated that it was possible for DNA to transfer from an in- termediary but was not likely through dry touch. On redirect, Hoo- ver testified that it was more likely for DNA to end up on an item because it was directly handled than because it was transferred. The parties stipulated that Thompson knew he had been previously convicted of a felony. The government rested, and Thompson moved for a judgment of acquittal. He argued that the government did not prove he knowingly possessed the firearm be- cause no witness stated he possessed the firearm. The district court denied the motion. The defense called Charlesana Thomas, Thompson’s girl- friend and the second passenger. She testified that she did not see Thompson with a firearm the day of the stop and had never seen him with a firearm before. The defense also called Tearron Byrd, Thompson’s friend, who testified that a couple of days before the USCA11 Case: 24-10027 Document: 34-1 Date Filed: 12/05/2024 Page: 6 of 12

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traffic stop, he put the firearm in the console of Thompson’s car and forgot about it. He did not tell Thompson about the firearm. Byrd did not remember a lot as he had been drinking heavily. Thompson did not testify, and the defense rested. Thomp- son renewed his motion for a judgment of acquittal on the same grounds as his initial motion and because one of the defense’s wit- nesses stated it was his firearm. The district court denied the mo- tion. The district court instructed the jury, and the jury began to deliberate at 1:35 p.m. At 3:35 p.m., the court explained that it re- ceived two requests from the jury, including one for another ver- dict form. Before it was able to accommodate that request, the jury submitted a note stating, “There are 11 [g]uilty and 1 not [g]uilty[.] What do we do they are ready to [g]o [h]ome[?]” As the district court was preparing to discuss the communication with the parties, the jury submitted a verdict form, which read “NOT GUILTY 0 GUILTY 12 SO SAY WE ALL, NO” with the wrong date. The 0 looked like it had been written over a 1 and the 12 looked like it had been written over an 11. Thompson requested a mistrial on the ground that there was some coercion based on the changed vote of a holdout on the jury and the note showing that the jury wanted to go home. The district court determined that it could not accept the verdict form based on its inconsistencies. It declined to declare a mistrial because it could provide a charge under Allen v. United States, 164 U.S. 492 (1896). USCA11 Case: 24-10027 Document: 34-1 Date Filed: 12/05/2024 Page: 7 of 12

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The district court concluded that an Allen charge would not be coercive because the jury had deliberated for only two hours; the jury had not yet reported being deadlocked and instructed to continue; the modified charge would not imply that the jurors vio- lated their oaths or acted improperly by failing to reach a verdict; and the time between the supplemental instruction and verdict was unknown. The district court stated that it would instruct the jurors that they were not expected to give up their honest beliefs about the evidence. It denied Thompson’s motion for a mistrial over Thompson’s objection. The jury returned and the district court explained the com- munications it received and the issues with the verdict form. The district court then gave the jury the modified Allen charge. The jury exited at 4:13 p.m. and returned at 4:19 p.m. The jury found Thompson guilty. Thompson renewed his motion for a mistrial and filed a re- newed motion for judgment of acquittal or motion for new trial. He argued that the evidence was insufficient to prove that he knowingly possessed the firearm and that the verdict was the result of coercion or failure to follow the jury instructions. The district court denied Thompson’s motions. It ruled that there was sufficient evidence of constructive possession because of- ficers found the firearm in the center console of the vehicle Thomp- son owned and was driving and his DNA was on the firearm. It found that indirect transfer of DNA, though possible, was not prob- able and that Thompson was combative when Officer Umland USCA11 Case: 24-10027 Document: 34-1 Date Filed: 12/05/2024 Page: 8 of 12

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obtained his DNA sample. It further found that the jury could have disbelieved Byrd’s testimony as not credible. It also ruled that its Allen charge was not coercive because the sequence of events sug- gested that the first verdict form reflected the jury’s unanimous verdict and the Allen charge’s language was not coercive. Thompson’s presentence investigation report recorded a to- tal offense level of 18 and a criminal history category III, which re- sulted in a guideline range of 33 to 41 months of imprisonment. At sentencing, the district court stated it considered all the statutory sentencing factors, 18 U.S.C. § 3553(a), including the nature and circumstances of the offense, Thompson’s history and characteris- tics, the need to promote respect for law, afford adequate deter- rence, and protect the public from further crimes. It then imposed an “upward variance” of 60 months of imprisonment and a consec- utive sentence of 24 months of imprisonment for two supervised release violations. II. STANDARDS OF REVIEW Three standards of review govern this appeal. We review a challenge to the sufficiency of the evidence de novo, and we view the evidence and draw all reasonable inferences in the govern- ment’s favor. United States v. Beach, 80 F.4th 1245, 1255, 1258 (11th Cir. 2023). We will uphold a conviction “if a reasonable trier of fact could conclude that the evidence establishes the defendant’s guilt beyond a reasonable doubt.” Id. at 1255 (citation and internal quo- tation marks omitted). We review the denial of motions for a mis- trial and a new trial for abuse of discretion. United States v. Capers, USCA11 Case: 24-10027 Document: 34-1 Date Filed: 12/05/2024 Page: 9 of 12

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708 F.3d 1286, 1298 (11th Cir. 2013). We review for plain error an objection to the failure to provide notice of an upward variance when raised for the first time on appeal. United States v. Hall, 965 F.3d 1281, 1296 (11th Cir. 2020). III. DISCUSSION We divide our discussion in three parts. First, we explain that sufficient evidence supports Thompson’s conviction. Second, we explain that the district court did not abuse its discretion in denying his motions for a mistrial and new trial. Third, we explain that the district court did not plainly err in imposing an upward variance without providing notice. A. Sufficient Evidence Supports Thompson’s Conviction. Thompson argues that the government failed to present suf- ficient evidence that he knowingly possessed the firearm. A defend- ant’s mere presence near a firearm is insufficient to establish con- structive possession. United States v. Perez, 661 F.3d 568, 576 (11th Cir. 2011). The government must prove through direct or circum- stantial evidence that the defendant was aware of the firearm’s presence and had the ability and intent to exercise dominion and control over the firearm. Id. The government may establish con- structive possession when the defendant exercised ownership or control over the car concealing the firearm. United States v. Gunn, 369 F.3d 1229, 1234 (11th Cir. 2004). There was sufficient evidence that Thompson construc- tively possessed the firearm. Officers found the firearm in the cen- ter console of the car Thompson owned and was driving. See id. USCA11 Case: 24-10027 Document: 34-1 Date Filed: 12/05/2024 Page: 10 of 12

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Hoover testified that it was highly likely that Thompson’s DNA was on the firearm. Although she stated it was possible for Thomp- son’s DNA to transfer to the firearm from other objects, it was not likely, and the jury was allowed to accept this reasonable interpre- tation of the evidence. See Beach, 80 F.4th at 1256 (“The jury is free to choose among alternative, reasonable interpretations of the evi- dence.”). And officers testified that Thompson was combative when they took a DNA sample, which could suggest he knew about the firearm’s presence in the car. Cf. United States v. Wright, 392 F.3d 1269, 1274 (11th Cir. 2004) (holding that resisting arrest could show that the defendant realized officers would discover the firearm in a post-arrest search). The jury was free to discredit Byrd’s testimony that the firearm was his and Thomas’s testimony that she never saw Thompson with a firearm. See United States v. Estepa, 998 F.3d 898, 908 (11th Cir. 2021) (This Court must “assume that the jury made all credibility choices in support of the verdict.” (ci- tation and internal quotation marks omitted)). Sufficient evidence supports Thompson’s conviction. B. The District Court Did Not Abuse its Discretion in Denying Thompson’s Motions for a Mistrial and a New Trial. Thompson argues that he was entitled to a mistrial or new trial because either the jury did not follow the Allen instruction or the instruction coerced the jury into reaching a decision. District courts have broad discretion in issuing Allen charges but must take care not to “coerce any juror to give up an honest belief.” United States v. Anderson, 1 F.4th 1244, 1269 (11th Cir. 2021) (citation and internal quotation marks omitted). We have identified five USCA11 Case: 24-10027 Document: 34-1 Date Filed: 12/05/2024 Page: 11 of 12

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non-exhaustive factors we consider when reviewing the effect of an Allen instruction, including: the total length of deliberations, the number of times the court instructed the jury to resume delibera- tions, whether the court knew of the jury’s split, whether the in- structions imply jurors violate their oaths by failing to reach a ver- dict, and the time between the final instruction and the verdict. Brewster v. Hetzel, 913 F.3d 1042, 1053 (11th Cir. 2019). “[W]e con- sider the language of the charge and the totality of the circum- stances under which it was delivered.” Anderson, 1 F.4th at 1269 (ci- tation and internal quotation marks omitted). The district court did not abuse its discretion in denying Thompson’s motions for a mistrial and new trial. We presume the jury followed the Allen instruction. See United States v. Val- diviez-Garza, 669 F.3d 1199, 1201 (11th Cir. 2012). And the totality of the circumstances does not establish that the instruction was co- ercive. The first verdict form suggested the jury reached a unani- mous verdict before the Allen charge, which explains the short du- ration of deliberations after the charge. If a juror changed his posi- tion based on input from other members of the jury, that change does not constitute impermissible coercion. See Brewster, 913 F.3d at 1053 (“[S]uch pressure is a natural function of sending twelve persons into a jury room to deliberate.” (citation and internal quo- tation marks omitted)). The jury had been deliberating for only two hours before the charge, and the district court instructed the jury to continue deliberating once, omitted language about violat- ing their oaths, and included language about not giving up their USCA11 Case: 24-10027 Document: 34-1 Date Filed: 12/05/2024 Page: 12 of 12

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honest beliefs. See id.; Anderson, 1 F.4th at 1269. The Allen charge was not coercive. C. The District Court Did Not Plainly Err by Failing to Provide Notice Before Imposing an Upward Variance. Thompson argues that the district court plainly erred by fail- ing to provide notice before imposing an upward variance. We dis- agree. A district court must provide notice before imposing a de- parture, not a variance. Hall, 965 F.3d at 1295–96. The district court explained that it was imposing an upward variance and relied on the statutory sentencing factors, 18 U.S.C. § 3553(a), not a specific guideline departure provision, so it was not required to provide prior notice. See Hall, 965 F.3d at 1296. IV. CONCLUSION We AFFIRM Thompson’s conviction and sentences.