Clarifying the Notice Requirement for Upward Variances and Guidelines for Allen Instructions in United States v. Thompson

Introduction

United States v. Dwayne Eric Thompson (11th Cir., Dec. 5, 2024) addresses three critical issues in federal criminal practice:

  • Whether the evidence was sufficient to support a felon-in-possession conviction under 18 U.S.C. § 922(g)(1);
  • The propriety of an Allen instruction after equivocal jury communications and the denial of motions for mistrial and new trial; and
  • Whether a district court must give advance notice before imposing an upward variance under 18 U.S.C. § 3553(a).

The appellant, Dwayne Eric Thompson, a convicted felon, was charged in three consolidated appeals stemming from traffic stops in the Middle District of Florida. He challenged his jury conviction for possession of a firearm, the district court’s handling of juror deadlock and supplemental instructions, and the imposition of a sentence above the Sentencing Guidelines range without prior notice. The Eleventh Circuit affirmed on all issues, clarifying the standards for constructive possession, Allen charges, and notice for variances.

Summary of the Judgment

The Court of Appeals affirmed Thompson’s conviction and sentence. It held:

  1. Sufficiency of the Evidence: Viewing the record in the government’s favor, the jury could conclude beyond a reasonable doubt that Thompson constructively possessed a firearm found in the center console of a vehicle he owned and drove, especially given the presence of his DNA and his combative behavior during a post-stop DNA draw.
  2. Mistrial and New Trial Motions: The district court did not abuse its discretion in refusing a mistrial. An Allen instruction—carefully tailored to avoid coercion—was appropriate after the jury’s ambiguous note and defective verdict form, and the jury should be presumed to have followed it.
  3. Upward Variance Notice: A district court imposing an upward variance under the factors of 18 U.S.C. § 3553(a) need not provide the advance written notice required for Guideline departures.

Analysis

Precedents Cited

  • United States v. Perez, 661 F.3d 568 (11th Cir. 2011) – Elements of constructive possession; awareness plus dominion and control.
  • United States v. Gunn, 369 F.3d 1229 (11th Cir. 2004) – Constructive possession via control of vehicle containing the firearm.
  • United States v. Beach, 80 F.4th 1245 (11th Cir. 2023) – Standard for reviewing sufficiency of evidence; reasonable-inference rule.
  • Allen v. United States, 164 U.S. 492 (1896) – Authority for supplemental jury instructions to avoid hung juries.
  • United States v. Brewster, 913 F.3d 1042 (11th Cir. 2019) – Non-coercive Allen charge factors.
  • United States v. Anderson, 1 F.4th 1244 (11th Cir. 2021) – Broad discretion in Allen instructions and the “honest belief” safeguard.
  • United States v. Valdiviez-Garza, 669 F.3d 1199 (11th Cir. 2012) – Presumption that jury follows instructions.
  • United States v. Hall, 965 F.3d 1281 (11th Cir. 2020) – Notice required for Guidelines departures, not variances.

Legal Reasoning

Constructive Possession: The panel applied Perez and Gunn, requiring proof that Thompson knew of the firearm’s presence and had the ability and intent to control it. The location of the weapon in Thompson’s console, the DNA mixture evidence establishing a high probability of his direct contact, and his combative reaction to DNA collection all supported the inference of knowing control. The jury was entitled to reject defense theories of indirect transfer or third-party placement.

Allen Instruction and Jury Coercion: After a jury note indicating an 11–1 split and a defective verdict form, the court found no conclusive deadlock and avoided any language suggesting juror misconduct. Relying on Brewster and Anderson, the court considered five factors: total deliberation time, number of supplemental instructions, knowledge of a split, implied criticism of jury oath, and interval to verdict. Two hours of pre-charge deliberations, a single neutral reminder to continue, and an immediate verdict undercut any claim of coercion.

Upward Variance Notice: Under Hall, a district court need only provide advance notice for a Guidelines departure—a variance invoking a specific Guideline provision. Here, the court imposed a variance under § 3553(a), grounding its decision in the statutory factors rather than a departure provision. No notice requirement applied.

Impact

This decision offers three practical takeaways for practitioners:

  • DNA as Circumstantial Evidence: Courts may credit DNA-mixture statistics to establish constructive possession when direct control of the container is shown.
  • Allen Charges: Trial judges retain broad discretion to issue supplemental instructions but must tailor their language and timing to avoid the appearance of juror coercion.
  • Sentencing Practice: Advance written notice is unnecessary when a sentence exceeds the Guidelines range under § 3553(a) factors rather than a formal Guideline departure provision.

Complex Concepts Simplified

  • Constructive Possession: A person “constructively possesses” an item they do not physically hold but over which they have the power to control—e.g., a weapon in a compartment of their car.
  • Allen Instruction: A supplemental jury charge (from Allen v. United States) asking hold-out jurors to re-examine their views in light of the majority—but not to surrender honest convictions.
  • Departure vs. Variance: A “departure” adjusts a sentence based on an identified Guideline rationale; a “variance” adjusts under § 3553(a) without invoking a specific Guideline provision. Only departures trigger the Sentencing Guidelines’ written-notice requirement.
  • Plain-Error Review: When an issue is first raised on appeal, the appellant must show (1) error, (2) that is plain (clear under existing law), and (3) that affects substantial rights.

Conclusion

United States v. Thompson reaffirms that a defendant’s constructive possession can be proven through circumstantial evidence—such as control of a vehicle compartment and DNA on the weapon—and that district courts enjoy broad latitude when issuing Allen instructions, provided they take steps to avoid coercion. It also clarifies that the advance notice requirement for sentencing adjustments applies only to Guidelines departures, not § 3553(a) variances. This trio of holdings will guide trial and sentencing courts in fine-tuning both jury management and post-Guidelines sentencing practice.