[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-11703 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 2, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 5:09-cr-00027-HL-CWH-6
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
________________________
(March 2, 2012)
Before WILSON, PRYOR, and KRAVITCH, Circuit Judges.
PER CURIAM:
Santonio Mattox pled guilty to two counts of using a telephone to conspire
to possess cocaine with the intent to distribute in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(C), 843(b), and 846. He now appeals his eighty-four month
sentence as procedurally and substantively unreasonable. He argues that the
district court inadequately explained its upward variance from the recommended
Sentencing Guidelines range. After reviewing the briefs and record, we vacate
Mattox’s sentence and remand for resentencing.
We review the reasonableness of a defendant’s sentence under an
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 46, 128 S. Ct.
586, 594 (2007). Under an abuse-of-discretion 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 omitted). We must first
“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. We will remand a sentence as procedurally unreasonable if a district court
fails to adequately explain its deviation from the Guidelines range in a way that
allows for meaningful appellate review. United States v. Livesay, 525 F.3d 1081,
1093–94 (11th Cir. 2008).
Mattox and seven other codefendants were indicted by a grand jury. Mattox
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was charged with (1) conspiracy to distribute cocaine and cocaine base and (2)
using a telephone to commit a drug trafficking offense. Initially Mattox pled not
guilty. After a plea agreement was reached, he pled guilty to a superseding
information that charged him with two counts of using a telephone to conspire to
possess cocaine with the intent to distribute.
In November 2009, the district court held Mattox’s first sentencing hearing.
Although the Guidelines range for each offense was thirty-three to forty-one
months, the district court sentenced Mattox to forty-two months for each count to
be served consecutively, for a total sentence of eighty-four months. The district
court reasoned that the upward variance was necessary because of the need to
avoid unwarranted sentence disparities among coconspirators, especially noting
coconspirator, Nathaniel Bell’s, sentence. Although Bell pled guilty to two counts
of using a telephone to commit a drug trafficking offense, Bell stipulated that he
was accountable for forty-nine grams of crack cocaine; whereas, Mattox pled only
to powder cocaine. Bell was sentenced to seventy-two months, although his
suggested Guidelines range was eighty-four to ninety-six months.
Mattox appealed his eighty-four month sentence, and this court vacated it in
United States v. Mattox (Mattox I), 402 F. App’x 507 (11th Cir. 2010) (per
curiam). We found two major gaps in the district court’s explanation of Mattox’s
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sentence. First, when the district court stated the need to avoid sentencing
disparities between coconspirators as a reason to vary Mattox’s sentence upward,
the district court did not clearly state that it recognized that Bell’s crack cocaine
crimes were more serious than Mattox’s powder cocaine crimes. Id. at 510.
Second, the district court varied downward when sentencing Bell but varied
upward when sentencing Mattox. Id. at 511. We found that the district court did
not adequately explain how the differences in sentences between Bell and Mattox
accomplished its purpose of avoiding unwarranted sentence disparities. Id.
Because those gaps amounted to procedural error, we remanded. Id. at 512.
In Mattox’s second sentencing the Guidelines range remained the same and
the district court, again, varied upward to impose a total eighty-four month
sentence. When explaining the sentence, the district court abandoned its original
reasoning of the need to avoid sentence disparity. Instead the district court
claimed that it entered an upward variance because Mattox is a career offender and
his plea agreement minimized “the nature of the crimes of which he was initially
alleged to be a part.”
Although district courts can rely on relevant conduct when sentencing a
defendant, when a district court relies on uncharged criminal conduct, the conduct
must be proved by a preponderance of the evidence. See United States v. Lindsey,
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482 F.3d 1285, 1294 (11th Cir. 2007) (citing United States v. Faust, 456 F.3d
1342, 1347 (11th Cir. 2006)). Here, the only finding the district court made
regarding the uncharged conduct was: “His conviction in this case for two counts
of the use of a telephone for distribution of cocaine minimizes the nature of the
crimes of which he was initially alleged to be a part. His sentence exposure has
been greatly reduced on the plea and the stipulation that he entered.” The district
court did not take the necessary steps and find by a preponderance of the evidence
that Mattox committed any of the alleged crimes in the original indictment.
Therefore, the district court has not adequately explained its upward variance in a
way that permits us to meaningfully review Mattox’s sentence. Due to the limited
explanation of the district court, we vacate Mattox’s sentence and remand this case
for further proceedings consistent with this opinion.
VACATED AND REMANDED.
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