United States Court of Appeals
For the First Circuit
No. 07-1459
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE ANTONIO MATOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella, Circuit Judge,
and Stafford,* Senior District Judge.
Stuart W. Tisdale, Jr., with whom Tisdale & Davis, P.A., was
on brief, for appellant.
Margaret D. McGaughey, Appellate Chief, with whom F. Mark
Terison, Senior Litigation Counsel, and Paula D. Silsby, United
States Attorney, were on brief, for appellee.
July 10, 2008
*
Of the Northern District of Florida, sitting by designation.
Stafford, Senior District Judge. Jorge Antonio Matos
("Defendant"), appeals from his sentence on a guilty plea to one
count of conspiracy to distribute and to possess with the intent to
distribute 50 grams or more of cocaine base. We affirm.
Among other things, Defendant contends that his sentence
was unreasonable because the district court did not address the
reasonableness of the crack cocaine to powder cocaine ratio
inherent in the Sentencing Guidelines ("Guidelines"). Because
Defendant failed to raise this issue in the district court, we
review for plain error.1 To vacate Defendant's sentence for plain
error, we must find that (1) there was error; (2) the error was
plain and obvious; (3) the error affected Defendant's substantial
rights; and (4) the error impaired the fairness, integrity, or
public reputation of the judicial proceedings. United States v.
Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
In Kimbrough v. United States, 128 S. Ct. 558 (2007), the
Supreme Court held that district courts are free to consider, as
part of their analysis of the sentencing factors set forth in 18
1
While conceding that defense counsel did not object to the
trial judge's failure to consider the crack to powder disparity,
Defendant maintains that plain error is not the appropriate
standard of review because the judge purportedly failed to give
defense counsel an opportunity to object. According to Defendant,
the judge went—in one breath—from announcing the applicable
Guidelines range to pronouncing that he was going to sentence
Defendant to a below-the-Guidelines sentence, thus allowing no time
for defense counsel to raise the Kimbrough issue. Review of the
record convinces us, however, that defense counsel had ample
opportunity to raise a Kimbrough issue.
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U.S.C. § 3553(a), the 100:1 crack cocaine to powder cocaine ratio
used by the Sentencing Commission in setting sentencing ranges
under the Guidelines. Prior to Kimbrough, this court had held that
a sentencing court was without authority to make a "categorical,
policy-based rejection of the 100:1 ratio." United States v. Pho,
433 F.3d 53, 62 (1st Cir. 2006). In effect, Kimbrough changed the
landscape in this circuit regarding the sentencing court's ability
to depart from the Guidelines based on drug disparities.
Finding no on-point circuit precedent to guide our plain
error analysis in a Kimbrough context, we turn to United States v.
Antonakopoulos, 399 F.3d 68, 77-82 (1st Cir. 2005), wherein this
court set forth standards of review applicable to unpreserved
claims of sentencing error in the aftermath of United States v.
Booker, 543 U.S. 220, 245 (2005) (holding that the Guidelines are
advisory and not mandatory). In Antonakopoulos, the court
determined that, to satisfy the third and fourth prongs of the
plain error test in a Booker context, a defendant who is sentenced
under a mandatory Guidelines system must demonstrate a reasonable
probability that he would have received a more lenient sentence
under an advisory Guidelines scheme.
Because we find no reason to treat plain error analysis
in a Kimbrough context differently from plain error analysis in a
Booker context, we conclude that Defendant here must demonstrate a
reasonable probability that he would have received a more lenient
sentence had the district court considered the crack to powder
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cocaine disparity when sentencing Defendant. Defendant, however,
points to nothing in the record, nor can we find anything in the
record, to suggest that the district court would have imposed a
more lenient sentence had it been asked to consider the crack to
powder disparity. As explicitly stated by the district court, the
circumstances of Defendant's offense and "the reasons for
punishment in terms of deterrence, punishment, protection of the
community, all of those . . . abundantly here justify the sentence
that I'm going to impose." Defendant having thus failed to
establish plain error, we decline to vacate Defendant's sentence
based on his disparity argument.
Defendant also contends that the district court
committed procedural error by failing to give a reasoned
explanation for its choice of sentence, imposed an inherently
unreasonable sentence given that Defendant is middle-aged and has
no prior criminal history, and erroneously presumed that a
Guidelines sentence was reasonable. We find no merit to any of
these contentions.
We accordingly AFFIRM the judgment of the district court.
We REMAND the case to the district court where Defendant may file,
if he wishes, a motion for reduction in sentence pursuant to the
recent Guidelines amendment that lowers the Guidelines sentencing
range for certain categories of offenses involving crack cocaine.
U.S.S.G. Amend. 706.
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