[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 29, 2006
No. 06-11315 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00030-CR-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARY ALEXANDER MATTHEWS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(September 29, 2006)
Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Gary Alexander Matthews appeals his sentence of 120 months imprisonment
for knowingly possessing a stolen firearm, in violation of 18 U.S.C. § 922(j). For
the reasons that follow, we affirm.
Matthews was charged by information with knowingly possessing a stolen
firearm, in violation of 18 U.S.C. § 922(j).1 He was also arrested by state
authorities for revocation of parole in connection with the instant charges. He
waived the indictment and entered a guilty plea, admitting that he had possessed a
.25 semiautomatic pistol that he knew to be stolen and which had traveled in
interstate commerce.
The probation officer prepared a PSI, assigning a base offense level of 20
under U.S.S.G. § 2K2.1, with a two-level increase under U.S.S.G. § 2K2.1(b)(4)
because the weapon was stolen, a four-level increase under § 2K2.1(b)(5) because
Matthews possessed the firearm in connection with possession with intent to
distribute marijuana and cocaine, and a three-level decrease under U.S.S.G.
§ 3E1.1 for acceptance of responsibility. According to the PSI, when the car in
which Matthews, Vindia Raiford, and Joseph Durden were riding was stopped
during a drug investigation, police found drugs on Durden, as well as in the rear
1
Matthews initially was charged with possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g) and 924(e). He proceeded to trial on the charges, but the district
court declared a mistrial after the jury could not agree on a unanimous verdict. Thereafter, he was
charged by superceding indictment with possession of a firearm by a convicted felon, in violation
of 18 U.S.C. § 922(g), possession with intent to distribute controlled substances, in violation of 21
U.S.C. § 841, and carrying a firearm in relation to a drug trafficking offense, in violation of 18
U.S.C. § 924(c). This indictment was dismissed as part of the plea agreement.
2
seat of the car and in the center console. Raiford told police that she knew
Matthews to distribute drugs and that she had obtained drugs from him earlier that
day.
Matthews’s total offense level was 23. The probation officer determined
that Matthews’s criminal history category was VI based on prior convictions for
possession of a firearm by a convicted felon, obstruction, possession of cocaine,
and disorderly conduct. The PSI also noted several robbery charges that had not
resulted in criminal history points because they had occurred at least twenty years
earlier. The resulting guidelines range was 92 to 115 months imprisonment, and
the statutory maximum sentence was 120 months imprisonment. The probation
officer recommended that the court depart upward from the guidelines range under
U.S.S.G. § 4A1.3 and impose a sentence of 120 months imprisonment in light of
Matthews’s lengthy criminal history.
Matthews filed the following numerous objections to the PSI, including,
inter alia: (1) consideration of Raiford’s statements violated the Sixth Amendment
and Crawford v. Washington, 541 U.S. 36 (2004); and (2) the four-level
enhancement under § 2K2.1(b)(5) violated United States v. Booker, 543 U.S. 220
(2005).
At sentencing, the court addressed the objections by stating that the
3
objections were “voluminous,” and had no merit, and the court would not “dwell
on them.” The court warned counsel not to make “spurious” arguments or rehash
the issues, or it would embarrass counsel, and indicated that it intended “to get this
case over with.” Defense counsel then challenged the enhancement for possession
of the firearm in connection with possession of marijuana and cocaine, arguing that
the testimony from the first trial did not support the enhancement. According to
defense counsel, the police officer who testified at trial conceded that Raiford was
unreliable and that she had placed the drugs in the center console without
Matthews’s knowledge and after Matthews had been removed from the car by
police. Counsel also argued that the car did not belong to Matthews. The court
rejected these arguments, finding that the fact that Matthews’s clothes were in the
trunk of the car belied his claim that the car was borrowed. The government
argued that police also had found cocaine in Matthews’s underwear. The court
also noted that Matthews’s Booker claims were meritless under Eleventh Circuit
precedent. The court adopted the PSI calculations and found that an upward
departure was warranted in light of Matthews’s lengthy criminal history, including
many convictions for which no points had been scored, that Matthews had fathered
seven children out of wedlock with seven different women, and that he had listed
only $695 worth of legitimate earnings in his Social Security records.
4
Accordingly, the court sentenced Matthews to 120 months imprisonment, to run
consecutively to the term imposed on the revocation of parole in state court, and
denied credit for time served. Matthews now appeals.
Matthews makes three inter-twined arguments:2 (a) the sentence imposed
was unreasonable because the court erred by enhancing his sentence under
§ 2K2.1(b)(5), as the firearm was not “in connection with” any controlled
substance offense; (b) the court improperly considered remote convictions in
departing upward; and (c) the court ignored the sentencing factors in 18 U.S.C.
§ 3553(a) and failed to consider all of the sentencing factors such as the nature of
the offense, the fact that the prior trial ended in a mistrial, what would qualify as a
just punishment, and the need to avoid sentencing disparities.
After Booker, the district court is still required to correctly calculate the
guidelines range and we review a defendant’s sentence for reasonableness.3 United
States v. Dowd, 451 F.3d 1244, 1256 (11th Cir. 2006); United States v. Lee, 427
F.3d 881, 892 (11th Cir. 2005), cert. denied, 126 S.Ct. 1447 (2006); United States
2
Matthews also challenges the court’s consideration of hearsay evidence. Although
Matthews acknowledges that the court may consider hearsay testimony, he asserts that the hearsay
must be reliable. There is no merit to the claim that the use of hearsay evidence violated the Sixth
Amendment or Crawford, as the right does not apply in sentencing. United States v. Baker, 432
F.3d 1189, 1254 n.68 (11th Cir. 2005), cert. denied, 126 S.Ct. 1809 (2006).
3
Under this standard, we review the ultimate sentence for reasonableness, and not the
individual guidelines applications, which are subject to the same standards of review as pre-Booker.
United States v. Winingear, 422 F.3d 1241, 1244-45 (11th Cir. 2005).
5
v. Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005); United States v. Crawford,
407F.3d 1174, 1179 (11th Cir. 2005). Matthews bears the burden of showing that
his sentence was unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th
Cir. 2005).
Here, there is no Booker violation; the court may include extra-verdict
enhancements as long as it applies the guidelines in an advisory fashion. United
States v. Woodard, 2006 WL 2252700, *6 n.9 (No. 04-12056) (11th Cir. Aug. 8,
2006); United States v. Chau, 426 F.3d 1318, 1324 (11th Cir. 2005). Additionally,
Booker permits courts to consider relevant conduct as long as the sentence imposed
does not exceed the statutory maximum authorized by the verdict and the U.S.
Code.4 United States v. Poyato, 454 F.3d 1295, 1299 (11th Cir. 2006); United
States v. Duncan, 400 F.3d 1297, 1303 (11th Cir. 2005).
Next, Matthews challenges both the enhancement under § 2K2.1(b)(5) and
the upward departure under § 4A1.3. Post-Booker, we review the district court’s
application of the Guidelines under the same standards as pre-Booker: “The
district court’s interpretation of the sentencing guidelines is subject to de novo
review on appeal, while its factual findings must be accepted unless clearly
4
Furthermore, although Matthews’s challenges this court’s decision in United States v.
Rodriguez, 398 F.3d 1291 (11th Cir. 12005), only the U.S. Supreme Court or this court sitting en
banc may overrule a prior panel’s decision. United States v. Gort, 737 F.2d 1560, 1564 n.2 (11th
Cir. 1984).
6
erroneous.” United States v. Jordi, 418 F.3d 1212 (11th Cir. 2005). As noted, the
court must first correctly calculate the guidelines range, including any departures.
United States v. Crawford, 407 F.3d 1174, 1178-1179 (11th Cir. 2005). We
conclude that the court properly calculated the guidelines range.
Section 2K2.1(b)(5) indicates that the offense level is subject to a four-level
enhancement if the defendant used or possessed the firearm in connection with
another felony offense. (U.S.S.G. § 2K2.1(b)(5). The commentary does not define
“in connection with,” but this court has held that the phrase should be given its
ordinary meaning and does not require that the firearm facilitate the offense.
United States v. Rhind, 289 F.3d 690, 695 (11th Cir. 2002). Here, given the
proximity of the firearm to the drugs, Matthews’s control over the car, the fact that
police found drugs in Matthews’s underwear, and the fact that the other people in
the car implicated Matthews as the owner of the drugs, the district court properly
determined that the firearm was in connection with the controlled substances. As
this court has noted, drug dealers often use firearms to protect their drugs. United
States v. Morin, 33 F.3d 1351, 1353 (11th Cir. 1994).
To the extent that Matthews challenges the court’s consideration of his prior
convictions in applying an upward departure, he did not raise that issue before the
district court; therefore, we review for plain error. United States v. Hall, 314 F.3d
7
565, 566 (11th Cir. 2002); see also United States v. Olano, 507 U.S. 725, 731-32,
113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993). “Plain error occurs where (1) there
is an error; (2) that is plain or obvious; (3) affecting the defendant’s substantial
rights in that it was prejudicial and not harmless; and (4) that seriously affects the
fairness, integrity, or public reputation of the judicial proceedings.” Hall, 314 F.3d
at 566; Olano, 507 U.S. at 732.
Matthews cannot show plain error in the court’s consideration of his remote
convictions because there was reliable information that the criminal history
category under-represented Matthews’s criminal history. U.S.S.G. § 4A1.3(a)(1).
In imposing an upward departure, the court may consider prior sentences not used
in calculating the criminal history. U.S.S.G. § 4A1.3(a)(2)(A). Nevertheless, even
if the court did not consider these remote convictions, Matthews’s lengthy criminal
history supports the district court’s determination that the criminal history category
under-represented his past conduct.5 Thus, he cannot show that the court’s
decision amounted to plain error, and the court correctly calculated the guidelines
range, including the departure.
Finally, post-Booker, after calculating the sentencing range, the court must
5
Because Matthews’s criminal history category was VI, the court was authorized to increase
the guidelines range to account for the departure. United States v. Dixon, 71 F.3d 380, 383 (11th
Cir. 1995).
8
consider the sentencing factors set out in § 3553(a),6 but the court is not required to
mention each of the factors. United States v. Johnson, 451 F.3d 1239, 1244 (11th
Cir. 2006); United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). Here, a
review of the record indicates that the court considered the nature and history of
the defendant, the seriousness of the offense, the defendant’s criminal history, and
the need for punishment and deterrence. The court also stated that it had
considered Matthews’s arguments. Talley, 431 F.3d at 786. The fact that
Matthews’s prior trial ended in a mistrial is not a relevant consideration under
§ 3553(a). Thus, the court did not fail to consider the factors, and the sentence
imposed was reasonable in light of Matthews’s lengthy criminal history.7
Accordingly, we AFFIRM.
6
“[T]he nature and circumstances of the offense, the history and characteristics of the
defendant, the need for adequate deterrence and protection of the public, the pertinent Sentencing
Commission policy statements, and the need to avoid unwarranted sentencing disparities.” 18
U.S.C. § 3553(a)(1)-(7).
7
The district court’s commentary during sentencing appears to demonstrate that the court’s
attitude extended beyond mere impatience with Matthews and his counsel. The court’s statements
that it would not “dwell” on Matthews’s arguments are but one example. Although we do not
condone the court’s commentary, neither can we conclude that the sentence imposed was
unreasonable.
9