USA v. Carlos Matute

Filing

Opinion issued by court as to Appellant Carlos Matute. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-14681
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-00013-MP-GRJ-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS MATUTE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
________________________
(November 5, 2015)
Before HULL, MARCUS and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:

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After pleading guilty, Carlos Matute appeals his 99-month sentence for
possession with intent to distribute methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(A)(viii). On appeal, Matute argues that his sentence is
procedurally unreasonable. After review, we affirm.
I. PROCEDURAL REASONABLENESS
We review the reasonableness of a sentence for an abuse of discretion using
a two-step process, looking first at whether the sentence is procedurally
unreasonable and then at whether it is substantively reasonable in light of the
record and the 18 U.S.C. § 3553(a) sentencing factors. United States v. Pugh, 515
F.3d 1179, 1189-90 (11th Cir. 2008). A sentence is procedurally unreasonable if
the district court committed any significant procedural error, such as
miscalculating the advisory guidelines range, treating the guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence. Id. at 1190.
The party challenging the sentence bears the burden to show it is unreasonable.
United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
On appeal, Matute does not raise a substantive reasonableness challenge to
his 99-month sentence. Instead, Matute contends his sentence is procedurally
unreasonable because of three alleged sentencing errors. Specifically, Matute
argues that the district court: (1) announced the sentence before giving Matute the
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opportunity to allocute; (2) did not expressly indicate that the guidelines range was
advisory; and (3) did not adequately explain the chosen sentence, as required by 18
U.S.C. § 3553(c)(1).
At his sentencing, Matute did not raise any procedural errors. We review
Matute’s first two procedural reasonableness claims for plain error because he did
not object on these procedural grounds at sentencing. See United States v.
Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014) (explaining that because the
defendant “did not object to the procedural reasonableness at the time of his
sentencing, we review for plain error”).
However, we review de novo Matute’s third claim that the district court
failed to adequately explain the sentence as required by § 3553(c). See United
States v. Bonilla, 463 F.3d 1176, 1181 & n.3 (11th Cir. 2006) (explaining that
whether a district court complied with § 3553(c) is reviewed de novo regardless of
whether the defendant objected on this ground at sentencing).
We first outline what happened in Matute’s sentencing proceeding. At
sentencing, the parties agreed on the facts, and the only legal issue was whether
Matute should receive a minor role reduction under U.S.S.G. § 3B1.2. After
listening to the parties’ extensive discussion of the circumstances of the offense
and Matute’s role in driving four shipments of “almost pure” methamphetamine
from Atlanta to Tampa, the district court sustained Matute’s objection and granted
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a two-level minor-role reduction, finding that Matute “was simply a courier,
although he did it four times.”
The district court recalculated Matute’s advisory guidelines range as 87 to
108 months’ imprisonment. The district court then began to pronounce the
sentence, stating that Matute should be committed to the Bureau of Prisons for 99
months, when Matute’s counsel interjected and advised that both he and Matute
wished to address the court. The district court apologized, acknowledging that it
“should have let [them] do that.” The district court stated that it would listen to
Matute, his counsel, and the government’s counsel “as to anything they would like
to offer concerning the sentence to be imposed.”
Matute’s counsel asked for safety-valve relief and for a sentence below the
mandatory, minimum ten-year sentence. He also asked the district court “to
consider something lower than the guideline range in this case,” arguing that
Matute had no other criminal history, had been a successful contractor in Atlanta,
had made the drug trips only because his contractor work had dried up, and would
be deported to Honduras upon completion of his sentence. Matute also personally
addressed the district court, apologized for his actions, explained that he had
“never had any intentions of doing what [he] ended up doing,” and promised that
he would “never do it again.”

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After listening to Matute’s mitigation arguments and allocution, the district
court thanked him and asked whether counsel for the government wished to speak.
The government’s counsel declined, stating that he had already made his argument.
The district court then found that the presentence investigation report was
accurate and complete and again determined that Matute should be committed to
the Bureau of Prisons for 99 months. The district court acknowledged that Matute
met the criteria for safety-valve relief set forth in § 3553. The district court further
stated that a sentence imposed at the “mid-range of the guidelines” was
“appropriate in this case, given consideration to the guidelines, the statute, and the
policy statements.” The district court waived the payment of a fine, imposed a
five-year term of supervised release, and outlined the terms and conditions of
supervised release.
When the district court asked the parties for objections as to the sentence
imposed, Matute stated that he objected to “the granting of just a two-level
reduction under [U.S.S.G. § ] 3B1.2 [for a minor role] and not the four level” and
to the sentence falling in the middle of the guidelines range “given Mr. Matute’s
lack of criminal history.”
II. ALLOCUTION
“Allocution is the right of the defendant to make a final plea on his own
behalf to the sentencing judge before his sentence.” United States v. Carruth, 528
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F.3d 845, 846 (11th Cir. 2008). Rule 32 protects the defendant’s right of
allocution by requiring the sentencing court, before imposing sentence, to “address
the defendant personally in order to permit the defendant to speak or present any
information to mitigate the sentence.” Fed. R. Crim. P. 32(i)(4)(A).
Here, Matute admits that the district court gave him an opportunity to
allocute, but contends the district court nonetheless violated Rule 32(i)(4)(A)
because the court had already “reached its decision” and announced the sentence.
However, our predecessor circuit has addressed very similar circumstances, “in
which there was neither total failure to comply with the rule nor strict compliance
with its terms and provisions,” and concluded that a remand for resentencing is not
required. See Gordon v. United States, 438 F.2d 858, 880-82 (5th Cir. 1971).1
Here, as in Gordon, the defendant’s allocution rights were not abridged. As
soon as the district court realized its mistake and before the sentencing had
concluded, the district court gave both Matute and his counsel an opportunity to
address the court and offer arguments in mitigation. Indeed, unlike the defendant
in Gordon, Matute accepted the district court’s invitation to allocute, apologized
for committing his offense, and vowed that he would never commit that offense

1

In Bonner v. City of Prichard, this Court adopted as binding precedent all decision of the
former Fifth Circuit handed down on or before September 30, 1981. 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc).
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again. A remand for resentencing for literal compliance with Rule 32(i)(4)(A) is
not warranted. At a minimum, there is no plain error under the facts of this case.
II. ADVISORY GUIDELINES
Under the remedial holding of United States v. Booker, 543 U.S. 220, 125 S.
Ct. 738 (2005), a district court must apply the Sentencing Guidelines in an
advisory, not mandatory, manner. United States v. Shelton, 400 F.3d 1325, 133031 (11th Cir. 2005).
Here, we find no error, much less plain error. Nothing in the record suggests
the district court considered the Sentencing Guidelines to be mandatory. While
Matute points out that the district court never used the word advisory during the
sentencing hearing, the record as a whole indicates that the district court
understood that the Sentencing Guidelines are advisory.
For example, at Matute’s plea hearing, the district court advised Matute that
the court had the “authority to impose a sentence that is more severe or one that is
less than that sentence recommended by the guidelines.” During the sentencing
hearing, the district court listened without objection as Matute’s counsel argued for
a sentence below the guidelines range. Further, the district court’s explanation of
the sentence indicates not that it felt constrained by the guidelines range, but rather
that it found a sentence within the guidelines range to be the “appropriate”
sentence in Matute’s case. Finally, the statement of reasons completed by the
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district court explicitly describes the guidelines range calculated by the district
court as advisory.
III. COMPLIANCE WITH 18 U.S.C. § 3553(c)
Under 18 U.S.C. § 3553(c), a district court, “at the time of sentencing, shall
state in open court the reasons for its imposition of the particular sentence.” 18
U.S.C. § 3553(c). In doing so, the district court should “tailor its comments to
show that the sentence imposed is appropriate” in light of the 18 U.S.C. § 3553(a)
factors. 2 Bonilla, 463 F.3d at 1181.
That said, in explaining the chosen sentence, the district court is not required
to incant specific language or articulate its consideration of each individual
§ 3553(a) factor, so long as the record as a whole reflects the district court’s
consideration of the § 3553(a) factors. Id. at 1181-82. When the district court fails
to mention the § 3553(a) factors, we look to the record to see if the district court
did, in fact, consider the relevant factors. See United States v. Dorman, 488 F.3d
936, 944 (11th Cir. 2007).

2

The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).
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As an initial matter, although Matute cites § 3553(c)(1), the district court
was not required to comply with § 3553(c)(1) in this case. Under § 3553(c)(1), if
the sentence “is of the kind, and within the range, [recommended by the
Sentencing Guidelines], and that range exceeds 24 months,” the district court must
state its reasons “for imposing a sentence at a particular point within the range.”
Id. § 3553(c)(1) (emphasis added). Matute’s advisory guidelines range of 87 to
108 months was a range of 21 months and thus did not exceed 24 months, as
required by § 3553(c)(1). See id.; United States v. Veteto, 920 F.2d 823, 826 (11th
Cir. 1991) (explaining that § 3553(c)(1) requires “that a sentencing court shall state
the reason for imposing a sentence at a particular point within the range when the
range exceeds 24 months.” (emphasis added) (quotation marks omitted)).
Therefore, the district court was required to comply with § 3553(c)’s prefatory
clause and give its reasons for the chosen sentence, but it was not required to
further explain why it chose that particular point within the advisory guidelines
range. See 18 U.S.C. § 3553(c). 3

3

In United States v. Williams, this Court indicated that § 3553(c)(1) applies “if the
sentence . . . exceeds 24 months.” 438 F.3d 1272, 1274 (ellipsis in original). However, as the
statute explicitly states, it is the advisory guidelines range, and not the sentence itself, that must
exceed 24 months. See 18 U.S.C. § 3553(c). The misstatement in Williams is dicta, however,
because, the parties in Williams did not dispute that § 3553(c)(1) applied and that the district
court had not complied with it. Williams, 438 F.3d at 1274 (noting that the issue was
“uncontested” and vacating the sentence because the sentencing court “offered no reason for the
life sentence it elected to impose on 26-year-old Williams”). Furthermore, our prior precedent in
Veteto, cited and relied upon in Williams, correctly states that § 3553(c)(1) applies “when the
range exceeds 24 months.” 920 F.2d at 826; see also United States v. James, 280 F.3d 206, 2079

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Matute argues that the district court did not adequately explain the chosen
sentence because the district court did not mention the § 3553(a) factors or refer to
his mitigation arguments.
We disagree. This was a “conceptually simple” drug courier case. See Rita
v. United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468 (2007). As such, while
the district court’s explanation for the within-guidelines sentence was brief, it was
enough to indicate that “the judge rest[ed] his decision upon the [Sentencing]
Commission’s own reasoning that the Guidelines sentence [was] a proper
sentence.” See id. at 356-57, 127 S. Ct. at 2468. This brief explanation is legally
sufficient given the straightforward nature of Matute’s drug courier case. See id.
(“[G]iven the straightforward, conceptually simple arguments before the judge, the
judge’s statement of reasons here, though brief, were legally sufficient”). While
the district court did not explicitly refer to the § 3553(a) factors, it did state that it
had considered “the statute,” which we take to mean § 3553, to which the district
court had just referred in connection with safety-valve relief. Moreover, a review
of the sentencing transcript as a whole indicates that the district court considered
facts implicating several § 3553(a) factors, including the sentencing guidelines (to

08 (2d Cir. 2002) (concluding that § 3553(c)(1) is not implicated where the defendant was
sentenced within a guidelines range of 57 to 71 months’ imprisonment); United States v.
Woodrum, 959 F.2d 100, 101 (8th Cir. 1992) (stating that the defendant’s sentence within a
guidelines range of 21 to 27 months did not present “a case in which the applicable sentencing
range spans more than twenty-four months,” to “trigger the requirement that the district court
state its reason for imposing the sentence at a particular point within that range”).
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which it explicitly referred), the nature and circumstances of Matute’s offense (as
reflected in discussion of Matute’s role), and Matute’s history and characteristics
(as reflected in defense counsel’s mitigation arguments). See Dorman, 488 F.3d at
944 (concluding that district court’s failure to explicitly mention the § 3553(a)
factors did not require a remand in light of the district court’s consideration of the
defendant’s objections and motion for a downward departure, which implicated
several § 3553(a) factors). Accordingly, we conclude that under the particular
circumstances of this case the district court gave an adequate explanation for the
chosen sentence and complied with § 3553(c). 4
For all these reasons, Matute has not shown that his sentence is procedurally
unreasonable.
AFFIRMED.

4

We note, however, it would be highly preferable for a district court explaining the
chosen sentence to acknowledge clearly that it has considered the § 3553(a) sentencing factors.
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