Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1875
UNITED STATES,
Appellee,
v.
ULISES MATOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Selya, Lynch and Lipez,
Circuit Judges.
Christopher R. Goddu, Assistant Federal Defender on brief for
appellant.
Robert Clark Corrente, United States Attorney, Donald C.
Lockhart, Assistant U.S. Attorney, and Kenneth P. Madden, Assistant
U.S. Attorney, on brief for appellee.
July 15, 2005
Per Curiam. Ulises Matos appeals from a sentence imposed
following his guilty plea to seven drug trafficking and firearm
counts. He was sentenced as a career offender at the low end of
the applicable guideline sentencing range, as recommended by the
government pursuant to the terms of the plea agreement. In his
original brief, Matos argued that his sentence was invalid under
Blakely v. Washington, 542 U.S. 296 (2004), because the facts that
qualified him as a career offender had not been submitted to a jury
and proved beyond a reasonable doubt. While his appeal was
pending, the Supreme Court decided United States v. Booker, 543
U.S. ___, 125 S.Ct. 738 (2005). At our invitation, the parties
filed supplemental briefs in light of Booker. Matos concedes that
the Blakely/Booker issues he raises on appeal were not preserved
below. Having considered his argument, we conclude that he failed
to satisfy the standard set forth in United States v.
Antonakopoulos, 399 F.3d 68 (1st Cir. 2005).
We turn to the dispositive issue: whether Matos has shown that
there is a "reasonable probability that the district court would
impose a different sentence more favorable to the defendant under
the new 'advisory Guidelines' Booker regime." Id. at 75. The
comments made by the district court at sentencing work against
Matos' claim. The sentencing court found that Matos' criminal
history was "way off the charts" and that his conduct in this case
was "particularly heinous." It specifically determined that the
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sentence imposed was not too harsh, and that the government would
have been justified in recommending a "much higher sentence." In
imposing sentence, the court stated that "such a lengthy term is
necessary in order to incapacitate this career drug dealer and to
protect society from him."
In light of those statements by the sentencing court, Matos'
reliance upon studies critical of the career offender guideline
provision and his new claims of a troubled upbringing (directly
contradicting his recounting of his childhood as reported in the
presentence investigation report) are insufficient to demonstrate
a "reasonable probability" that he would receive a more lenient
sentence under the new advisory guidelines regime.
Matos' sentence is affirmed. See 1st Cir. R. 27(c).
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