USCA11 Case: 21-10848 Date Filed: 07/07/2022 Page: 1 of 12
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10848
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MATTHEW JAMES CHOY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cr-20165-CMA-1
____________________
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2 Opinion of the Court 21-10848
Before JILL PRYOR, BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
Matthew Choy appeals the procedural and substantive
reasonableness of his sentence, and he also claims that the
government broke a promise it made in the plea agreement. The
district court sentenced Choy to 48 months in prison for sending
violent interstate threats, deviating somewhat from the Sentencing
Guidelines range of 33–41 months. We hold that the sentence was
in all aspects reasonable. The government complied with the plea
agreement, and the district court acted within its significant
discretion when it imposed the higher sentence. We thus affirm.
I.
After a falling out with two friends, Choy began sending
them threats and harassing messages through Facebook. His
messages were often replete with profanity and racial slurs, and he
tormented his victims with threats of ghastly violence against them
and their families. “I cant wait to fight and kill you”; “don’t make
me start killing families because that’s next”; “next time im raping
your [] sister and taking [her] apart with a chain”; “whatever im
probably being investigated.. i dont care.. whatever happens
happens.. but again.. id rather but if im going to jail someone is
getting killed.. im not going to jail for anything less than murder”;
“i havnt even thrown a punch yet and look what i can do”; “give
[him] and knife and me a bottle.. we will see loser dies.”
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21-10848 Opinion of the Court 3
The two victims did what they could to protect themselves.
Both reported the messages to local police and secured restraining
orders against Choy. But Choy simply ignored those court orders
and barraged them with more messages—for ten years. All told,
he sent the victims over three thousand abusive messages.
Choy was eventually arrested. On that day, law
enforcement discovered three large foldable knives stashed in the
center console of Choy’s car. This finding was troubling because
of its similarity to one of Choy’s earlier messages: “I HAVE A GUN
AND KNIFE IN MY TRUCK FOR NO OTHER REASON THAN
SLAUGHTER YOUR FRIENDS WHEN I SEE THEM I NEED TO
RAPE AND KILL [them].” When agents searched the contents of
his computer, they found a story Choy had written about a man
finding his girlfriend cheating on him with a friend and then
stabbing them to death. They also learned that Choy had run
internet searches to find out where his victims lived.
Choy pleaded guilty to “intentionally transmitting in
interstate commerce a communication that contained a threat to
injure the person of another.” See
18 U.S.C. § 875(c). For
sentencing, the probation officer calculated an offense level of 22
and a criminal history category of I, which set a Guidelines range
of 41–51 months. Choy objected, arguing that a 6-point
enhancement for “conduct evidencing an intent to carry out such
a threat” was not applicable. See U.S. Sentencing Guidelines
§ 2A6.1(b)(1). He also requested a 3-point reduction for acceptance
of responsibility. See id. § 3E1.1.
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4 Opinion of the Court 21-10848
At the sentencing hearing, the district court held that both
the § 2A6.1(b)(1) enhancement and part of the § 3E1.1 reduction
applied and thus calculated a lower offense level of 20 for a
Guidelines range of 33–41 months. It then considered Choy’s
“history and characteristics,” “the statements of the victims,” “the
nature of the criminal conduct,” “the destruction that Mr. Choy’s
threatening words has wrought upon these two victims,” the need
to “promote respect for the law,” and the need to deter Choy from
“future threatening conduct” toward the victims. See
18 U.S.C.
§ 3553(a). And on those grounds the district court deviated from
the Guidelines and imposed a 48-month sentence. Choy appeals.
II.
We review whether a sentence is reasonable for abuse of
discretion. United States v. Livesay,
525 F.3d 1081, 1090 (11th Cir.
2008). We first consider whether the district court committed
procedural error—such as “failing to adequately explain the chosen
sentence” or the “deviation from the Guidelines range,” or giving
“significant weight to an improper or irrelevant” § 3553(a) factor.
Gall v. United States,
552 U.S. 38, 51 (2007); United States v. Irey,
612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quotation omitted).
We then ask whether the sentence is substantively reasonable.
Livesay,
525 F.3d at 1091. Even if the sentence is above the
Guidelines range, we “must give due deference to the district
court’s decision that the § 3553(a) factors, on a whole, justify the
extent of the variance.” Id. (quotation omitted).
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21-10848 Opinion of the Court 5
III.
Choy argues that (1) the district court failed to adequately
explain its sentence, (2) considered an improper factor—
rehabilitation—while sentencing him, (3) erred in applying the
U.S.S.G. § 2A6.1(b)(1) conduct enhancement, and (4) announced a
substantively unreasonable sentence. He also argues (5) that the
government breached the plea agreement. None of his arguments
withstand scrutiny.
A.
Choy argues that the district court failed to adequately
explain its sentence, claiming that it never divulged which path it
took to sentence him outside the Guidelines—a variance or a
departure. A variance occurs “when the court determines that a
guidelines sentence will not adequately further the purposes
reflected in
18 U.S.C. § 3553(a)” and relies on those factors to
impose a different sentence. United States v. Hall,
965 F.3d 1281,
1295 (11th Cir. 2020). Departure is “a term of art” referring to a
sentence based on one of the Guidelines provisions that allows a
district court to depart from the default Guidelines range when
additional criteria are met.
Id. (quotation omitted). Either way, a
district court’s reasons for imposing an above-Guidelines sentence
must be “sufficiently compelling to support the degree of the
variance” or departure. United States v. Harris,
964 F.3d 986, 988
(11th Cir. 2020).
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6 Opinion of the Court 21-10848
The district court here more than adequately justified its
sentencing decision “to allow for meaningful appellate review.”
Livesay,
525 F.3d at 1090. Even though the court said that it was
making “an upward departure from the advisory guideline range,”
it actually imposed both a departure and a variance. See United
States v. Kapordelis,
569 F.3d 1291, 1316 (11th Cir. 2009). The
district court clarified that it was granting the “upward departure”
that the government had requested. And its reasoning reflected a
conclusion that the § 3553(a) factors—mainly the need for
deterrence and the need to protect the victims from Choy—
demanded an upward variance. See id. When the court imposed
the sentence, it considered Choy’s history and characteristics, the
nature of his criminal conduct, “the destruction that Mr. Choy's
threatening words has wrought upon these two victims,” and the
need to deter Choy from threatening the victims. The district
court thus sufficiently explained the deviation to allow for
meaningful review. See Harris, 964 F.3d at 988–89.
B.
Choy also argues that the district court considered an
improper factor—his rehabilitation—when determining the length
of his sentence. But he concedes that we review this issue only for
plain error because he did not raise it below. Choy thus must
identify (1) an error (2) that was plain and (3) that affected his
substantial rights. See United States v. Vandergrift,
754 F.3d 1303,
1307 (11th Cir. 2014). “If all three conditions are met, we then
decide whether the error seriously affected the fairness, integrity,
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21-10848 Opinion of the Court 7
or public reputation of judicial proceedings.”
Id. (alterations
adopted and quotation omitted).
A district court may not consider “a defendant’s
rehabilitative needs when imposing or lengthening a prison
sentence.”
Id. at 1309. This, of course, is not a total ban—the
district court may discuss “the opportunities for rehabilitation
within prison or the benefits of specific treatment or training
programs” during the sentencing hearing.
Id. at 1311 (quoting
Tapia v. United States,
564 U.S. 319, 334 (2011)). But it may not
consider rehabilitation while determining the length of the
sentence.
Id.
When the district court explained why it was imposing a
longer sentence it said, “Mr. Choy needs to be in a Bureau of
Prisons facility receiving mental health treatment for a prolonged
period of time without the ability of escape, and thereafter a 90-day
residential program upon his release at a minimum to ensure that
he does not further threaten these two victims.” The district court
was properly concerned about the possibility that Choy would
“escape” and “further threaten” the victims. See
18 U.S.C.
§ 3553(a)(2)(C). But by discussing Choy’s need for “mental health
treatment for a prolonged period of time,” the court improperly
considered Choy’s need for rehabilitation. See United States v.
Alberts,
859 F.3d 979, 986 (11th Cir. 2017). And because this was
prohibited by our precedent, the error was plain.
Id.
But even if the district court improperly considered
rehabilitation when fashioning Choy’s sentence, Choy must also
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show that this error affected his substantial rights. And he has not
done so here. Under this third prong of plain-error review, Choy
must show that the error “affected the outcome of the district court
proceedings”; this often requires “a specific showing of prejudice.”
Vandergrift, 754 F.3d at 1312 (quoting United States v. Olano,
507
U.S. 725, 734–35 (1993). Choy argues that he “would have received
a lighter sentence” if the district court had set aside the need for
rehabilitation. But the facts do not support this conclusion.
For one, the district court did not mention rehabilitation
when it pronounced Choy’s sentence. It mentioned several other
§ 3553(a) factors and highlighted the gravity of “the destruction
that Mr. Choy’s threatening words has wrought upon these two
victims.” Beyond that, the court repeatedly voiced its concern that
Choy needed to serve a longer sentence because he had incessantly
threatened the victims’ safety: “[F]rankly, I’m somewhat
concerned whether [the 48-month sentence] is sufficient. I am not
sure that Mr. Choy upon his release will not continue threatening
these two victims.” The district court’s primary concerns in
sentencing Choy were to protect the victims and to deter him from
“future threatening conduct,” so Choy has not shown that the
district court would have imposed a shorter sentence if it had not
considered his need for rehabilitation. See Vandergrift, 754 F.3d at
1312; Alberts, 859 F.3d at 986.
C.
Choy’s next claim is that the district court erred by relying
on U.S.S.G. § 2A6.1(b)(1), which applies when a defendant not only
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21-10848 Opinion of the Court 9
makes a threat but also commits “any conduct evidencing an intent
to carry out” the threat. For a court to consider a defendant’s pre-
threat conduct, there must be “a substantial and direct connection”
between that conduct and the threat. U.S.S.G. § 2A6.1(b)(1) app.
n.1; United States v. Taylor,
88 F.3d 938, 943 (11th Cir. 1996).
But we need not decide whether Choy intended to act on his
threats. The district court said that “the sentence I am announcing
would be the same regardless of whether” § 2A6.1(b)(1) “applied or
not.” Without the enhancement, Choy’s offense level would have
been 14, with a Guidelines range of 15–21 months. Because the
district court would have imposed the same sentence based on the
lower Guidelines range, any error it made in applying § 2A6.1(b)(1)
was harmless. See United States v. Keene,
470 F.3d 1347, 1348–49
(11th Cir. 2006). The question therefore is whether (after setting
aside § 2A6.1(b)(1)) the sentence is substantively reasonable, which
we address below. Id. at 1349.
D.
Choy also claims that his sentence was substantively
unreasonable. But to support that claim he only repurposes
procedural arguments—that the district court failed to adequate
explain the deviation from the Guidelines and that it improperly
relied on Choy’s need for rehabilitation to do so. And the fact that
the district court imposed a variance above the Guidelines “carries
no presumption of unreasonableness.” Irizarry v. United States,
553 U.S. 708, 714 (2008). Instead, a sentence is substantively
unreasonable only when we are “left with the definite and firm
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10 Opinion of the Court 21-10848
conviction that the district court committed a clear error of
judgment in weighing the § 3553(a) factors” and thus arrived “at a
sentence that lies outside the range of reasonable sentences
dictated by the facts of the case.” Irey,
612 F.3d at 1190 (quotation
omitted).
We are left with no such conviction here. The district court
did not abuse its discretion when it concluded that the Guidelines
range did not reflect the severity of Choy’s actions and that Choy’s
behavior revealed that he still posed a threat to the two victims.
And even though his 48-month sentence is more than double the
Guidelines range without the § 2A6.1(b)(1) enhancement, the
court had discretion to assess the § 3553(a) factors and conclude
that more time was necessary to protect the victims and to deter
him from further threatening behavior. See Harris, 964 F.3d at 989.
Choy’s sentence was thus substantively reasonable.
E.
Lastly Choy argues that the government breached the plea
agreement when it refused to recommend a reduction for
acceptance of responsibility under U.S.S.G. § 3E1.1. But the
government points out that its promise to make that
recommendation carried a condition: Choy could not commit
“any misconduct after entering into this plea agreement, including
but not limited to committing a state or federal offense, violating
any term of release, or making false statements or
misrepresentations to any governmental entity or official.”
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21-10848 Opinion of the Court 11
The parties dispute whether several emails Choy sent after
signing the plea agreement constituted “misconduct.” When
interpreting the meaning of a disputed term in a plea agreement,
we review the agreement de novo, applying “an objective
standard” to “decide whether the government’s actions” were
“inconsistent with what the defendant reasonably understood
when he entered his guilty plea.” United States v. Copeland,
381
F.3d 1101, 1104, 1105 (11th Cir. 2004) (quotation omitted). If a
term is ambiguous, we interpret it against the government to
ensure that the defendant was “adequately warned of the
consequences of the plea.”
Id. at 1105–06 (quotation omitted). But
when the terms are clear, we apply only “the unambiguous
meaning of the language in the agreement.”
Id. at 1106.
In those his messages to family and friends—which Choy
knew were monitored—he said, “HEY FBI ILL TRADE YOU A
MANSLAUGHTER PLEA FOR THE OPPORTUNITY TO KILL
THE VICTIM.. EACH PERSON GETS A KNIFE, LOSER
DIES..YOU GET ME IN JAIL EITHER WAY..THINK ABOUT
IT.” A few days later he said, “I WANT WHAT’S OWED TO ME
AND IF I CANT GET IT NOW. FINE BUT WHEN I SEE [the
victim] AGAIN, ITS GOING TO HAPPEN WHETHER HE’S
READY OR NOT.” And two weeks later, “I TOTALLY ACCEPT
RESPONSIBILITY FOR THE ONE THREAT, WHAT I DON’T
HAVE IS REMORSE!! THIS SHOULD BE HANDLED
THROUGH MUTUAL COMBAT AND IT WILL WHEN I GET
OUT.” The messages left no doubt that Choy had not withdrawn
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12 Opinion of the Court 21-10848
from criminal conduct and instead intended to harm the victims
when he was released.
Choy argues that he fulfilled his end of the bargain because
the emails did not constitute “criminal conduct.” But the terms of
the plea agreement are quite clear that it prohibited more
“misconduct” than violations of criminal law. Choy
communicated to the government that he intends to kill one of his
victims when he is released, and that qualifies as misconduct. Nor
can Choy avoid this fact by arguing that the government cannot
fault him for these statements because he had sent similar emails
before. The government did not improperly rely “solely on facts
of which it was aware prior to entering the plea agreement.” See
United States v. Hunter,
835 F.3d 1320, 1326 (11th Cir. 2016).
When Choy signed the plea agreement, he committed to refraining
from any future misconduct, and he broke that promise. The
government thus was not obligated to recommend the § 3E1.1
reduction.
* * *
Choy’s sentence is reasonable, and the government heeded
the plea agreement.
AFFIRMED.
