United States v. Matthew Cordero , 632 F. App'x 121 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4305
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MATTHEW LEE CORDERO, a/k/a Matthew L. Cordero,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. John Preston Bailey,
District Judge. (2:14-cr-00042-JPB-JSK-2)
Submitted: November 17, 2015 Decided: December 14, 2015
Before WILKINSON, KEENAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Scott Curnutte, CURNUTTE LAW, Elkins, West Virginia, for
Appellant. William J. Ihlenfeld, II, United States Attorney,
Stephen D. Warner, Assistant United States Attorney, Clarksburg,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Matthew Lee Cordero pled guilty to distribution of a
quantity of oxycodone, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C) (2012). The district court determined that Cordero
was a career offender under U.S.S.G. § 4B1.1 and sentenced him
to a within-Guidelines sentence of 151 months’ imprisonment. On
appeal, Cordero challenges this sentence, arguing that the
district court erred in designating him a career offender
because his two prior New Jersey state convictions for
possession with intent to distribute a controlled dangerous
substance were not punishable by imprisonment for terms
exceeding one year and therefore are not career offender
predicates. Cordero also argues that his sentence is
substantively unreasonable. Finding no reversible error, we
affirm.
Cordero did not object in the district court to its
application of the career offender Guideline, and we therefore
review his challenge for plain error. United States v.
Hargrove, 625 F.3d 170, 183-84 (4th Cir. 2010). To establish
plain error, Cordero must demonstrate that (1) the district
court committed an error; (2) the error was plain; and (3) the
error affected his substantial rights. Henderson v. United
States, 133 S. Ct. 1121, 1126 (2013). A “plain” error is one
that is “clear” or “obvious,” United States v. Olano, 507 U.S.
2725, 734 (1993), under “the settled law of the Supreme Court or
this circuit.” United States v. Carthorne, 726 F.3d 503, 516
(4th Cir. 2013) (internal quotation marks omitted).
Section 4B1.1(a) of the Guidelines provides that a
defendant is a career offender if, among other conditions, he
“has at least two prior felony convictions of either a crime of
violence or a controlled substance offense.” U.S.S.G.
§ 4B1.1(a)(3). A “prior felony conviction” is “a prior adult
federal or state conviction for an offense punishable by death
or imprisonment for a term exceeding one year, regardless of
whether such offense is specifically designated as a felony and
regardless of the actual sentence imposed.” U.S.S.G. § 4B1.2
cmt. n.1.
We conclude that the district court properly determined
that Cordero’s New Jersey state convictions were prior felony
convictions for purposes of the career offender Guideline. The
convictions were for violations of N.J. Stat. Ann.
§ 2C:35-5(b)(3), and, as a consequence of these convictions,
Cordero was eligible to be sentenced to up to five years’
imprisonment per count. See N.J. Stat. Ann. §§ 2C:43-6(a)(3),
2C:44-1(e); State v. Natale, 878 A.2d 724, 738 & n.10
(N.J. 2005); State v. Gardner, 551 A.2d 981, 985 (N.J. 1989);
see also United States v. Minnick, 949 F.2d 8, 9-10 (1st Cir.
1991) (holding New Jersey first-offense conviction for a crime
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in the third degree was punishable by imprisonment for a term
exceeding one year, within the meaning of 18 U.S.C. § 922(g)(1)
(2012)). We reject as without merit Cordero’s contention that
United States v. Simmons, 649 F.3d 237 (4th Cir. 2011)
(en banc), undermines this conclusion. See United States v.
Sellers, No. 14-4568, --- F.3d ---, 2015 WL 7273688, at *4 (4th
Cir. Nov. 18, 2015); United States v. Kerr, 737 F.3d 33, 35-36,
38-39 (4th Cir. 2013), cert. denied, 134 S. Ct. 1773 (2014).
Cordero thus fails to demonstrate plain error by the district
court.
Cordero also argues that his 151-month sentence is
substantively unreasonable. In reviewing the substantive
reasonableness of a sentence, this court “take[s] into account
the totality of the circumstances.” Gall v. United States,
552 U.S. 38, 51 (2007). Any sentence within or below a properly
calculated Guidelines range is presumptively substantively
reasonable. United States v. Louthian, 756 F.3d 295, 306
(4th Cir.), cert. denied, 135 S. Ct. 421 (2014). Such a
presumption can only be rebutted by a showing that the sentence
is unreasonable when measured against the 18 U.S.C. § 3553(a)
(2012) factors. Id.We reject Cordero’s argument because it asks this court to
substitute its judgment for that of the district court. While
this court may have weighed the § 3553(a) factors differently
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had it imposed sentence in the first instance, we defer to the
district court’s decision that a 151-month sentence, which is at
the bottom of Cordero’s Guidelines range, achieved the purposes
of sentencing in his case. See Gall, 552 U.S. at 51 (explaining
that appellate courts “must give due deference to the district
court’s decision that the § 3553(a) factors, on a whole,
justify” the sentence imposed); United States v. Rivera-Santana,
668 F.3d 95, 105 (4th Cir. 2012) (stating it was within district
court’s discretion to accord more weight to a host of
aggravating factors in defendant’s case and to decide that the
sentence imposed would serve the § 3553 factors on the whole).
In light of the “extremely broad” discretion afforded to a
district court in determining the weight to be given each of the
§ 3553(a) factors in imposing sentence, United States v.
Jeffery, 631 F.3d 669, 679 (4th Cir. 2011), Cordero fails to
overcome the presumption that his within-Guidelines sentence is
substantively reasonable.
We therefore affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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