Appellate Abandonment When the Appellant Fails to Challenge Alternative Evidentiary Grounds (Intrinsic/Direct Evidence) Supporting Admission

1. Introduction

Demetris Kewan Mackie was convicted by a jury of possessing a firearm as a convicted felon under 18 U.S.C. § 922(g)(1), and—because the jury found three qualifying prior felonies committed on different occasions—he was sentenced under the Armed Career Criminal Act (18 U.S.C. § 924(e)(1)) to 360 months’ imprisonment.

The prosecution’s narrative began with two Miami shootings within days of each other. On April 12, 2023, a man was shot outside a laundromat. On April 20, 2023, officers arrested Mackie at a restaurant and recovered a firearm from a green crossbody satchel he was wearing; ballistics linked that firearm to the April 12 shooting (and, at sentencing, also to the April 15 shooting).

On appeal, Mackie raised three categories of issues:

• Evidence: whether the district court improperly admitted evidence of the April 12 shooting and the victim’s injuries (photos/video).
• Sufficiency: whether the evidence proved Mackie’s knowing possession of the firearm.
• Sentencing: whether the 360-month sentence was procedurally and substantively unreasonable, including reliance on uncharged conduct and gang affiliation.

2. Summary of the Opinion

The Eleventh Circuit affirmed across the board.

• Sufficiency: The evidence permitted a reasonable jury to find knowing possession, either from Mackie’s dominion/control over the satchel containing the gun on April 20 or from evidence tying him to actual possession during the April 12 shooting.
• Evidentiary rulings:
  • The court declined to reach Mackie’s Rule 404(b) challenge because he failed to challenge the district court’s alternative holdings that the April 12 shooting evidence was intrinsic/direct evidence—an abandonment that required affirmance.
  • The limited injury-related exhibits (five photos of a blood trail and an eight-second hospital-bed video) were not unfairly prejudicial under Rule 403; any error would be harmless given the weight of the possession evidence.
• Sentencing: The district court permissibly considered uncharged conduct and gang affiliation proven by a preponderance of the evidence, and its upward variance (from a 262–327 month guideline range to 360 months) was adequately explained and reasonable under § 3553(a).

3. Analysis

3.1 Precedents Cited

A. Standards of review and appellate posture

• United States v. Barton, 909 F.3d 1323 (11th Cir. 2018): Cited for abuse-of-discretion review of evidentiary rulings and for harmless-error principles (“substantial prejudicial effect”). It frames how difficult it is to reverse on evidence admission absent meaningful outcome impact.
• United States v. Chafin, 808 F.3d 1263 (11th Cir. 2015): Used for de novo sufficiency review and the directive to view evidence in the light most favorable to the verdict.
• United States v. Ghertler, 605 F.3d 1256 (11th Cir. 2010): Cited for clear-error review of sentencing factfinding.
• United States v. Zinn, 321 F.3d 1084 (11th Cir. 2003): Cited for plain-error review where objections are not “clearly articulate[d]” at sentencing; important to the panel’s rejection of Mackie’s new-on-appeal reliability/admissibility complaints about sentencing information.
• Gall v. United States, 552 U.S. 38 (2007): Provides the two-step reasonableness framework (procedural then substantive) and deferential abuse-of-discretion review for sentences, including variances.

B. Sufficiency of the evidence and possession doctrine

• United States v. Holmes, 814 F.3d 1246 (11th Cir. 2016): Cited for the “reasonable trier of fact” sufficiency test.
• United States v. Beach, 80 F.4th 1245 (11th Cir. 2023): Reinforces that circumstantial and direct evidence are evaluated the same and that juries may choose among reasonable inferences.
• United States v. Morales, 987 F.3d 966 (11th Cir. 2021): Supplies the § 922(g)(1) elements (knowledge of felony status; knowing possession; interstate commerce), narrowing the dispute to “knowing possession.”
• United States v. Pedro, 999 F.2d 497 (11th Cir. 1993) and United States v. Leonard, 138 F.3d 906 (11th Cir. 1998): Provide the doctrinal definitions of actual vs. constructive possession; Leonard’s “dominion or control” over the container is pivotal to treating the satchel as a basis for constructive possession.
• United States v. Poole, 878 F.2d 1389 (11th Cir. 1989): Cited for the proposition that knowledge can be proven through surrounding circumstances—supporting the inference that Mackie’s reaction to police reflected knowledge the gun was in the bag.
• United States v. Ellisor, 522 F.3d 1255 (11th Cir. 2008): Emphasizes that the appellate question is whether reasonable minds could find guilt, not whether they must.

C. Evidence law: intrinsic evidence, Rule 404(b), Rule 403, and abandonment

• United States v. King, 751 F.3d 1268 (11th Cir. 2014): The linchpin for the panel’s disposition of the Rule 404(b) issue. King stands for the rule that an appellant must show all independent grounds supporting a ruling are wrong; failing to challenge one ground means affirmance is required.
• United States v. Campbell, 26 F.4th 860 (11th Cir. 2022) (en banc) and Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678 (11th Cir. 2014): Provide the abandonment doctrine—issues not adequately raised in the opening brief are deemed abandoned, including perfunctory references without developed argument and authority.
• United States v. Edouard, 485 F.3d 1324 (11th Cir. 2007) and United States v. Foster, 889 F.2d 1049 (11th Cir. 1989): Cited to support the district court’s ability to admit evidence that completes the narrative of the crime/investigation and is intertwined with the charged conduct.
• United States v. Lopez, 649 F.3d 1222 (11th Cir. 2011) and United States v. Ford, 784 F.3d 1386 (11th Cir. 2015): Lopez supplies the maxim that Rule 403 exclusion is an “extraordinary remedy” to be used sparingly; Ford supports admitting contextual evidence to present a coherent story.
• United States v. Guzman, 167 F.3d 1350 (11th Cir. 1999): Used in the harmless-error discussion—where the government’s case is overwhelming, evidentiary error is less likely to warrant reversal.

D. Sentencing: relevant conduct, § 3553(a), and variances

• United States v. Owens, 96 F.4th 1316 (11th Cir. 2024): Cited for the procedural error inquiry (including reliance on clearly erroneous facts) and for recognizing that certain facts can be “directly germane” to § 3553(a) factors.
• Kimbrough v. United States, 552 U.S. 85 (2007): Supplies the “sufficient, but not greater than necessary” parsimony principle and recognizes discretion in applying § 3553(a).
• United States v. Wilson, 788 F.3d 1298 (11th Cir. 2015): Confirms courts may consider uncharged/unconvicted conduct if proved by a preponderance of the evidence, supporting consideration of the April 15 shooting at sentencing.
• United States v. Trainor, 376 F.3d 1325 (11th Cir. 2004): Defines the preponderance standard (“more probable than not”), which the panel uses to uphold findings about the April 15 shooting and gang membership.
• United States v. Belfast, 611 F.3d 783 (11th Cir. 2010): Cited for two related propositions: (i) 18 U.S.C. § 3661 allows broad information at sentencing; (ii) judicial factfinding about relevant conduct supporting a sentence within the statutory maximum does not violate the Sixth Amendment.
• United States v. Butler, 39 F.4th 1349 (11th Cir. 2022): Supports giving weight to protection of the public and deterrence and treating certain conduct as germane to multiple § 3553(a) factors.
• United States v. Rosales-Bruno, 789 F.3d 1249 (11th Cir. 2015): Reaffirms that the weight assigned to each § 3553(a) factor is largely within the district court’s discretion.
• United States v. Kuhlman, 711 F.3d 1321 (11th Cir. 2013): Cited for the requirement that the district court offer specific justification for an above-guidelines sentence.
• United States v. Osorio-Moreno, 814 F.3d 1282 (11th Cir. 2016): Supports upward variance reasoning where criminal history reflects escalating or persistent lawlessness not fully captured by the guidelines.
• United States v. Duperval, 777 F.3d 1324 (11th Cir. 2015): Used to reject an unwarranted-disparity argument absent a showing that comparator defendants are “similarly situated.”
• United States v. Muho, 978 F.3d 1212 (11th Cir. 2020): The panel treats a below-statutory-maximum sentence as an indicator (not a guarantee) of reasonableness.
• United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc): Provides the appellate yardstick for substantive reasonableness—whether the panel is left with a “definite and firm conviction” that the district court made a clear judgment error in weighing § 3553(a).

3.2 Legal Reasoning

A. Sufficiency: two independent paths to “knowing possession”

The opinion is structured to make Mackie’s sufficiency challenge fail even if one factual theory were doubted. First, the panel accepted a constructive-possession inference from Mackie’s dominion and control over a crossbody satchel he wore into the restaurant and still wore when restrained, combined with his movement toward the bathroom after making eye contact with police (circumstantial evidence of consciousness of guilt/knowledge). Second, the panel treated April 12 as direct “possession” evidence: the firearm in the satchel was ballistically matched to casings from April 12, and the surveillance/investigation and physical-description testimony supported the inference that Mackie was the shooter.

Notably, the court did not require fingerprints/DNA on the gun or casings, nor an in-court identification by the victim, emphasizing the deference owed to reasonable jury inferences under Beach and Ellisor.

B. Evidence: the abandonment doctrine as the decisive move

The district court allowed April 12 shooting evidence on multiple bases: intrinsic/direct evidence, “inextricably intertwined” narrative evidence, and (alternatively) Rule 404(b). On appeal, Mackie argued only Rule 404(b). Applying United States v. King and the abandonment principles of United States v. Campbell and Sapuppo v. Allstate Floridian Ins. Co., the panel held that failing to challenge the intrinsic/direct-evidence rulings meant Mackie did not (and could not) carry his burden to show the admission decision was erroneous. This is the opinion’s most practically “precedent-like” contribution: it demonstrates that appellate framing can be dispositive even when a substantive evidentiary debate exists.

C. Rule 403: limited injury evidence as narrative context, plus harmlessness

The panel treated the blood-trail photos and brief hospital video as tightly cabined contextual evidence, consistent with the district court’s effort to avoid “harping” or cumulative gore. Relying on United States v. Lopez (Rule 403 exclusion is “extraordinary”), the court found no abuse of discretion. It also deployed United States v. Barton harmless-error analysis: even if admission were mistaken, the ballistics link and other evidence were strong enough that the exhibits were unlikely to have substantially influenced the verdict.

D. Sentencing: uncharged conduct and gang affiliation by a preponderance; variance justified by risk and history

The panel endorsed the district court’s use of sentencing evidence about the April 15 shooting and gang membership under United States v. Wilson (uncharged conduct) and United States v. Trainor (preponderance standard). It also rejected new-on-appeal complaints about the “admissibility and reliability” of that information via United States v. Zinn plain-error review, and reinforced the permissibility of broad sentencing information with United States v. Belfast and 18 U.S.C. § 3661.

Substantively, the court approved the variance rationale: Mackie’s “extensive” and “repetitive” criminal history (24 points—well above Category VI’s threshold), escalating conduct, and public-safety concerns. The district court’s partial crediting of childhood/mental health mitigation (declining the government’s requested 420 months) helped demonstrate a reasoned, individualized § 3553(a) assessment under Gall, Rosales-Bruno, and Kuhlman.

3.3 Impact

• Briefing strategy in evidentiary appeals: The decision underscores that appellants must attack every independent ground supporting admission (e.g., intrinsic/direct evidence and Rule 404(b)). Failing to do so can end the appeal without merits review of the challenged doctrine.
• Felon-in-possession trials with violent-context evidence: The court’s acceptance of shooting-context evidence as intrinsic/direct evidence (unchallenged on appeal here) illustrates how prosecutors may frame temporally close violent conduct as part of the possession narrative—especially where ballistics tie the weapon to the violence.
• Rule 403 limits are fact-sensitive: The opinion signals that modest, non-repetitive injury evidence can survive Rule 403 when it completes the story and is not unduly cumulative—particularly where the trial judge actively curates quantity and presentation.
• Sentencing exposure under ACCA: With a statutory maximum of life under § 924(e)(1), district courts have wide variance room. This case demonstrates that uncharged shootings and gang affiliation—if found more likely than not—may materially increase sentences through § 3553(a) reasoning even when guidelines already incorporate criminal history.

4. Complex Concepts Simplified

• Intrinsic evidence vs. Rule 404(b): “Intrinsic” evidence is part of the charged offense’s story—context that explains how events unfolded—rather than a separate “other bad act” offered to show propensity. If evidence is intrinsic, Rule 404(b)’s constraints may not apply in the same way.
• Rule 404(b) “other acts” evidence: Generally bars using other acts to prove character/propensity, but allows them for specific purposes like intent, knowledge, or absence of mistake.
• Rule 403 unfair prejudice: Not “damaging evidence,” but evidence that risks an improper emotional or irrational decision. Courts balance probative value against the danger of unfair prejudice and may limit the quantity or manner of presentation.
• Actual vs. constructive possession: Actual possession means physically holding or directly controlling the firearm; constructive possession can be shown by dominion/control over the firearm or over the container where it is hidden (like a bag worn by the defendant), plus circumstances supporting knowledge.
• Preponderance of the evidence at sentencing: A lower standard than “beyond a reasonable doubt.” The judge may find facts if they are more likely true than not, and use them to select a sentence within the statutory range.
• Upward variance: A sentence above the advisory guideline range based on § 3553(a) factors (public protection, deterrence, seriousness, history/characteristics), distinct from a guidelines “departure.”

5. Conclusion

United States v. Demetris Kewan Mackie affirms a felon-in-possession conviction and a significant upward-variant ACCA sentence, but its most instructive lesson is procedural: when a district court offers multiple independent rationales for admitting contested evidence, an appellant must challenge each one. By applying abandonment doctrine to unchallenged intrinsic/direct-evidence rulings, the Eleventh Circuit avoided revisiting Rule 404(b) and affirmed. The decision also reflects the circuit’s continued acceptance of (i) limited injury/context evidence under Rule 403 where the trial judge curates presentation and (ii) sentencing reliance on uncharged conduct and gang affiliation proven by a preponderance of the evidence.