[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15932 ELEVENTH CIRCUIT
NOVEMBER 10, 2010
Non-Argument Calendar
________________________ JOHN LEY
CLERK
D. C. Docket No. 09-00027-CR-HL-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANTONIO DEWAYNE MATTOX,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(November 10, 2010)
Before CARNES, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Santonio Dewayne Mattox appeals his 84-month sentence, which the district
court imposed after varying upward from Mattox’s advisory guidelines range of 33
to 41 months. Mattox contends that his sentence is procedurally and substantively
unreasonable. Under the specific, and somewhat unusual, facts of this case it is
impossible to determine the basis for the district court’s decision to impose a
substantial upward variance from the guidelines range. Because the district court
did not adequately explain Mattox’s sentence, we vacate and remand for
resentencing so that the procedural error can be corrected.
I.
Mattox entered into a plea agreement with the government and later pleaded
guilty to two counts of using a telephone to conspire to distribute cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 843(b), and 846. At Mattox’s
change of plea hearing in September 2009, the government explained to the
district court that there was an error in Count Two of the information, which had
charged Mattox with using a telephone to unlawfully conspire with intent to
distribute “cocaine base, also known as crack cocaine.” The district court offered
to amend the information by striking out the word “base.” The parties agreed that
the charges against Mattox involved powder instead of crack cocaine.1 The court
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There was never any doubt that Count One, which also charged Mattox with using a
telephone to conspire to commit a drug offense, involved powder cocaine.
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accepted that as a fact and asked Mattox if he understood Count Two. Mattox
stated that he did. Mattox also agreed that the facts stipulated in the plea
agreement were true and that for purposes of sentencing he would be held
accountable for 60 grams of powder cocaine. The district court accepted Mattox’s
guilty plea and later entered judgment against him for two counts of violating 21
U.S.C. § 843(b).
About two months after the change of plea hearing, the district court held a
sentence hearing. During that hearing, Mattox’s counsel stated that the defense
had no objections to the pre-sentence investigation report, which set Mattox’s base
offense level at 16 under U.S.S.G. § 2D1.1(c)(12) based on his accountability for
60 grams of cocaine. Mattox received a three-level reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1(a) & (b), making his total offense level 13.2
Mattox’s counsel pointed out to the court that Mattox’s guidelines range was 33
months to 41 months and that the government had filed a motion for a downward
departure based on substantial assistance under U.S.S.G. § 5K1.1.
2
The PSR also stated that Mattox qualified as a career offender under U.S.S.G. § 4B1.1,
which provided that, because the statutory maximum term of imprisonment for his underlying
offense of conviction was 4 years, his offense level was 12, which would then be lowered based
on acceptance of responsibility. See U.S.S.G. § 4B1.1(b)(G). The offense level for a career
offender, however, is either the offense level from the table in § 4B1.1(b) or the otherwise
applicable offense level, whichever is greater. See id. § 4B1.1(b). In Mattox’s case the
otherwise applicable offense level (13) was higher, so it applied.
3
The district court acknowledged the guidelines range and Mattox’s criminal
history category, which was VI because he was a career offender. The court
accepted the PSR and imposed a sentence of imprisonment, with this explanation:
The pre-sentence report has been prepared, filed, considered,
and accepted. Mr. Maddox is adjudicated guilty of Counts One and
Two of the superseding information.
The sentencing guidelines have been considered and taken into
account, and the Court has calculated and announced the guideline
sentencing range, the offense level. The Court has considered the
need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct.
The Court has reviewed the guideline range in your case, Mr.
Mattox, as well as the guideline range of your co-defendants. One of
your codefendants committed similar criminal conduct, had a less
severe criminal history category, and the advisory sentencing
guideline range was calculated to be 84 to 96 months. Therefore, I
have elected to consider a variance in your case.
I have determined a term of imprisonment of 96 months will be
appropriate[;] however, considering the government’s motion for
sentence reduction for substantial assistance pursuant to U.S.S.G. [§]
5K1.1 and 18 U.S.C. [§] 3553(e), you are committed to the Bureau of
Prisons for a period of 42 months on each count to be served
consecutively for a total imprisonment of 84 months.
Doc. 208 at 171–72 (emphasis added).
One of Mattox’s codefendants, Nathaniel Bell, had been sentenced by the
same district court judge, on the same day, just a few minutes before Mattox. The
record indicates that Bell was the person the district court had in mind when it
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referred to Mattox’s codefendant who “committed similar criminal conduct, had a
less severe criminal history category” than Mattox did, and had a guidelines range
of 84 to 96 months.3
Bell’s PSR4 shows that he pleaded guilty to two counts of using a telephone
to commit a drug trafficking offense, in violation of 21 U.S.C. § 843(b) and that
Bell had stipulated in his plea agreement that he was accountable for 49 grams of
crack cocaine. As a result, Bell’s base offense level was 28 under U.S.S.G. §
2D1.1(c)(6). Bell received a three-level reduction for substantial assistance to the
government, making his total offense level 25. Applying Bell’s category IV
criminal history, the PSR calculated Bell’s guidelines range as 84 to 105 months.
There was a 48-month statutory maximum for each count, however, which made
Bell’s guidelines range 84 to 96 months. Mattox was convicted of the same
offense as Bell, except that Mattox’s crime involved powder cocaine, which has a
lower base offense level than the levels set for crack cocaine crimes. Compare
U.S.S.G. § 2D1.1(c)(12), with id. § 2D1.1(c)(6). Bell had a higher guidelines
range than Mattox because Bell’s crime involved crack.
3
Mattox had seven other codefendants, three of whom were convicted of using a
telephone to commit a drug trafficking offense in violation of 21 U.S.C. § 843(b), but they
received sentences ranging from 12 to 48 months imprisonment. Only Bell had a guidelines
range of 84 to 96 months.
4
The record in this case was supplemented with Bell’s PSR.
5
During Bell’s sentence hearing, which was just before Mattox’s, counsel for
Bell told the district court that Bell had been an employee of the City of Macon,
Georgia for four years.5 Counsel stated that the two counts against Bell were
based on two phone calls about drugs, and during one call Bell specifically
requested “two rocks of crack cocaine.” Counsel commented that the government
had filed a motion for a downward departure based on substantial assistance under
U.S.S.G. § 5K1.1, and he asked the court to sentence Bell “at the bottom of the
guidelines of whatever the 5K reduction is.”
The district court found that, based on the evidence presented, Bell had
“been a good employee for the city” and had “provided commendable service to
[his] employer and the public.” The court noted Bell’s criminal history category
of IV and the fact that he had three prior convictions that included possession with
intent to distribute cocaine, selling cocaine, possession with intent to distribute
phenobarbital, and possession of a firearm by a convicted felon. The court
mentioned that Bell’s guidelines range was 84 to 96 months, and defense counsel
agreed that was correct. Then the court imposed this sentence of imprisonment on
5
We take judicial notice of the district court’s record of Bell’s sentence hearing.
See United States v. Glover, 179 F.3d 1300, 1302 n.5 (11th Cir. 1999) (“A court may take
judicial notice of its own records and the records of inferior courts.”); see also Nguyen v. United
States, 556 F.3d 1244, 1259 n.7 (11th Cir. 2009).
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Bell:
Having considered the government’s motion for sentence reduction
pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), I depart
downward and commit you to the Bureau of Prisons for a period of 36
months on each count, to be served consecutively, for a total term of
72 months.
Thus, Bell had been sentenced to 12 months below the low end of his
guidelines range, which was also 12 months below the 84-month sentence
imposed on Mattox, who was sentenced to 43 months more than the high end of
his guidelines range.
II.
We review a defendant’s sentence for reasonableness, applying an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 594
(2007). Under that standard, “we will reverse only if we find that the district court
has made a clear error of judgment.” United States v. Pugh, 515 F.3d 1179, 1191
(11th Cir. 2008) (quotation marks omitted). First we must “ensure that the district
court committed no significant procedural error, such as . . . failing to adequately
explain the chosen sentence—including an explanation for any deviation from the
Guidelines range.” Gall, 552 U.S. at 51, 128 S.Ct. at 597.
When sentencing Mattox, the district court stated that it was considering the
need to avoid unwarranted sentence disparities. It also stated that it was
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considering Mattox’s guidelines range in relation to Bell’s, observing that Bell had
“committed similar criminal conduct, had a less severe criminal history category,”
and had a guidelines range of 84 to 96 months.
There are two gaps in the district court’s explanation of Mattox’s sentence
in relation to Bell’s. First, Bell pleaded guilty to a crime involving crack cocaine,
unlike Mattox, who pleaded guilty to a powder cocaine crime. Especially given
the confusion about the charge against Mattox, it is not clear from the record that
the district court recognized that Bell’s crime was under most standards worse
(crack instead of powder) than Mattox’s and took that difference into account
when it increased Mattox’s sentence in light of Bell’s. The court’s statement that
the two had committed “similar criminal conduct” may indicate that it either
thought Bell’s crime had involved powder cocaine or that Mattox’s crime had
involved crack, either of which would have been a mistake.
The second explanation gap arises because the district court had varied
downward when it sentenced Bell, going below his guidelines range of 84 to 96
months and sentencing him to 72 months. In light of that downward variance, it is
not clear from the record how varying upward to sentence Mattox to 84 months
would accomplish the district court’s purpose, which it described as “the need to
avoid unwarranted sentence disparities among defendants with similar records
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who have been found guilty of similar conduct.”
Those explanation gaps amount to a procedural error in Mattox’s sentence.
See Gall, 552 U.S. at 51, 128 S.Ct. at 597. Although the district court was not
required to “recite a laundry list of the § 3553(a) factors,” United States v. Scott,
426 F.3d 1324, 1329 (11th Cir. 2005), or “compose a doctoral thesis to explain”
the sentence, United States v. Irey, 612 F.3d 1160, 1195 (11th Cir. 2010), more of
an explanation of the variance from the guidelines range was necessary in this case
in light of some of the ambiguities and contradictions revealed by the record. See
Gall, 552 U.S. at 51, 128 S.Ct. at 597.
We cannot tell if the district court took into account any guidelines
sentencing disparity between Mattox’s powder cocaine offense and Bell’s crack
cocaine offense when it found that codefendant Bell had “committed similar
criminal conduct.” If the court concluded that Bell and Mattox’s sentences should
be adjusted to account for unwarranted sentencing disparities between crack and
powder cocaine offenses, that decision would not necessarily have constituted an
abuse of discretion. See Kimbrough v. United States, 552 U.S. 85, 110, 128 S.Ct.
558, 575 (2007) (“[I]t would not be an abuse of discretion for a district court to
conclude when sentencing a particular defendant that the crack/powder disparity
yields a sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in
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a mine-run case.”).6 In the present case, however, the district court did not
indicate that the crack/powder disparity played any part in its sentencing decision
and did not seem to focus on how the particular circumstances of Mattox’s powder
cocaine case could result in a sentencing disparity when compared to Bell’s crack
cocaine case. Cf. id. at 111, 128 S.Ct. at 576 (“[I]n determining that 15 years was
the appropriate prison term, the District Court properly homed in on the particular
circumstances of Kimbrough’s case and accorded weight to the Sentencing
Commission’s consistent and emphatic position that the crack/powder disparity is
at odds with § 3553(a).”).
Adding to the confusion is the error in the information charging Mattox
with an offense involving crack instead of a powder cocaine. That error was
verbally corrected at Mattox’s plea hearing when the government told the district
court that his offense involved powder even though the indictment referred to
6
Kimbrough involved a district court’s determination that a guidelines sentence for a
crack cocaine offense was too harsh in light of the disparity between sentences for crack and
powder cocaine. See Kimbrough, 552 U.S. at 91, 128 S.Ct. at 564 (explaining that a district
court may find that a guidelines sentence for a crack cocaine offense is “‘greater than necessary’
to serve the objectives of sentencing,” and “[i]n making that determination, the judge may
consider the disparity between the Guidelines’ treatment of crack and powder cocaine offenses.”)
(citing 18 U.S.C. § 3553(a)). Following the logic of Kimbrough, however, a district court might
also consider the disparity between the guidelines’ treatment of crack and powder cocaine
offenses in reasoning that the punishment for a powder cocaine offense should be higher in order
to be closer to that for crack cocaine. Under some circumstances, a higher sentence for a powder
cocaine offense might comport with the district court’s statutory directive under 18 U.S.C. §
3553(a) to impose a “sufficient” sentence and might enable the court to avoid unwarranted
sentencing disparities, which it is required to consider under § 3553(a)(6).
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crack. Even after that verbal clarification, however, it is impossible to tell from
the record whether the district court concluded in sentencing Mattox or Bell that
“the crack/powder disparity yields a sentence ‘greater than necessary’ to achieve §
3553(a)’s purposes,” Kimbrough, 552 U.S. at 111, 128 S.Ct. at 576, and on that
basis decided to treat the two crimes as identical. If the district court did reach
some kind of a Kimbrough conclusion, there is no explanation in the record for it.
Cf. Gall, 552 U.S. at 50, 128 S.Ct. at 597 (“After settling on the appropriate
sentence, [the district court] must adequately explain the chosen sentence to allow
for meaningful appellate review and to promote the perception of fair
sentencing.”).
Particularly because the deviation from Mattox’s guidelines range was
substantial (from a 33–41 months guidelines range to an 84-month sentence), more
of an explanation of the sentence is required under the facts of this case. See id.
(explaining that if the district judge “decides that an outside-Guidelines sentence
is warranted, he must consider the extent of the deviation and ensure that the
justification is sufficiently compelling to support the degree of the variance. We
find it uncontroversial that a major departure should be supported by a more
significant justification than a minor one.”). Although the district court mentioned
some differences between Mattox’s and Bell’s cases, such as Mattox’s criminal
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history category of VI and Bell’s category of IV, in light of the gaps in the
explanation we cannot determine whether that actually was the sole basis for the
substantial upward variance in Mattox’s case or whether the variance was affected
by the court overlooking the fact that Mattox’s crime involved powder cocaine
while Bell’s involved crack.
For these reasons, Mattox’s sentence is VACATED, and the case is
REMANDED for further proceedings consistent with this opinion.
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