US v. Matthew Cordero

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:14-cr-00042-JPB-JSK-2. Copies to all parties and the district court. [999717465]. [15-4305]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4305

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MATTHEW LEE CORDERO, a/k/a Matthew L. Cordero,
Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins.
John Preston Bailey,
District Judge. (2:14-cr-00042-JPB-JSK-2)

Submitted:

November 17, 2015

Decided:

December 14, 2015

Before WILKINSON, KEENAN, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Scott Curnutte, CURNUTTE LAW, Elkins, West Virginia, for
Appellant.
William J. Ihlenfeld, II, United States Attorney,
Stephen D. Warner, Assistant United States Attorney, Clarksburg,
West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Matthew

Lee

Cordero

pled

guilty

to

distribution

of

a

quantity of oxycodone, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C) (2012).

The district court determined that Cordero

was a career offender under U.S.S.G. § 4B1.1 and sentenced him
to a within-Guidelines sentence of 151 months’ imprisonment.
appeal,

Cordero

district

court

because

his

challenges
erred

two

in

prior

possession

with

intent

substance

were

not

exceeding

one

substantively

sentence,

designating
New

to

and

Cordero

him

Jersey

also

unreasonable.

a

by

therefore

arguing
a

state

distribute

punishable

year

predicates.

this

career

argues
Finding

that
no

offender

controlled

not

the

convictions

imprisonment
are

that

for

dangerous
for

career
his

On

terms

offender

sentence

reversible

error,

is
we

affirm.
Cordero

did

not

object

in

the

district

court

to

its

application of the career offender Guideline, and we therefore
review

his

challenge

for

plain

error.

United

States

v.

Hargrove, 625 F.3d 170, 183-84 (4th Cir. 2010).

To establish

plain

the

error,

Cordero

must

demonstrate

that

(1)

district

court committed an error; (2) the error was plain; and (3) the
error

affected

his

substantial

rights.

States, 133 S. Ct. 1121, 1126 (2013).

Henderson

v.

United

A “plain” error is one

that is “clear” or “obvious,” United States v. Olano, 507 U.S.
2

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725, 734 (1993), under “the settled law of the Supreme Court or
this circuit.”

United States v. Carthorne, 726 F.3d 503, 516

(4th Cir. 2013) (internal quotation marks omitted).
Section

4B1.1(a)

of

the

Guidelines

provides

that

a

defendant is a career offender if, among other conditions, he
“has at least two prior felony convictions of either a crime of
violence

or

a

§ 4B1.1(a)(3).

controlled

substance

offense.”

U.S.S.G.

A “prior felony conviction” is “a prior adult

federal or state conviction for an offense punishable by death
or imprisonment for a term exceeding one year, regardless of
whether such offense is specifically designated as a felony and
regardless of the actual sentence imposed.”

U.S.S.G. § 4B1.2

cmt. n.1.
We

conclude

that

the

district

court

properly

determined

that Cordero’s New Jersey state convictions were prior felony
convictions for purposes of the career offender Guideline.
convictions

were

§ 2C:35-5(b)(3),
Cordero

was

for

and,

as

a

eligible

to

be

imprisonment per count.
2C:44-1(e);

violations

State

v.

of

consequence
sentenced

of
to

N.J.
these
up

to

Stat.

The
Ann.

convictions,
five

years’

See N.J. Stat. Ann. §§ 2C:43-6(a)(3),
Natale,

878

A.2d

724,

738

&

n.10

(N.J. 2005); State v. Gardner, 551 A.2d 981, 985 (N.J. 1989);
see also United States v. Minnick, 949 F.2d 8, 9-10 (1st Cir.
1991) (holding New Jersey first-offense conviction for a crime
3

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in the third degree was punishable by imprisonment for a term
exceeding one year, within the meaning of 18 U.S.C. § 922(g)(1)
(2012)).
United

We reject as without merit Cordero’s contention that
States

v.

Simmons,

649

F.3d

(en banc), undermines this conclusion.

237

(4th

Cir.

2011)

See United States v.

Sellers, No. 14-4568, --- F.3d ---, 2015 WL 7273688, at *4 (4th
Cir. Nov. 18, 2015); United States v. Kerr, 737 F.3d 33, 35-36,
38-39 (4th Cir. 2013), cert. denied, 134 S. Ct. 1773 (2014).
Cordero thus fails to demonstrate plain error by the district
court.
Cordero

also

substantively

argues

that

unreasonable.

his

In

151-month

reviewing

sentence

the

is

substantive

reasonableness of a sentence, this court “take[s] into account
the

totality

of

the

circumstances.”

552 U.S. 38, 51 (2007).
calculated

Guidelines

reasonable.

United

(4th Cir.),

cert.

Gall

v.

United

States,

Any sentence within or below a properly
range

States

denied,

is
v.

135

presumptively
Louthian,

S. Ct.

421

756

substantively
F.3d

295,

(2014).

Such

306
a

presumption can only be rebutted by a showing that the sentence
is unreasonable when measured against the 18 U.S.C. § 3553(a)
(2012) factors.

Id.

We reject Cordero’s argument because it asks this court to
substitute its judgment for that of the district court.

While

this court may have weighed the § 3553(a) factors differently
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had it imposed sentence in the first instance, we defer to the
district court’s decision that a 151-month sentence, which is at
the bottom of Cordero’s Guidelines range, achieved the purposes
of sentencing in his case.

See Gall, 552 U.S. at 51 (explaining

that appellate courts “must give due deference to the district
court’s

decision

that

the

§ 3553(a)

factors,

on

a

whole,

justify” the sentence imposed); United States v. Rivera-Santana,
668 F.3d 95, 105 (4th Cir. 2012) (stating it was within district
court’s

discretion

to

accord

more

weight

to

a

host

of

aggravating factors in defendant’s case and to decide that the
sentence imposed would serve the § 3553 factors on the whole).
In

light

of

the

“extremely

broad”

discretion

afforded

to

a

district court in determining the weight to be given each of the
§ 3553(a)

factors

in

imposing

sentence,

United

States

v.

Jeffery, 631 F.3d 669, 679 (4th Cir. 2011), Cordero fails to
overcome the presumption that his within-Guidelines sentence is
substantively reasonable.
We

therefore

We dispense

with

contentions

are

affirm
oral

the

argument

adequately

district
because

presented

in

court’s

judgment.

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

AFFIRMED

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