United States v. Cimino ( 2022 )

Case: 21-10550 Document: 00516256490 Page: 1 Date Filed: 03/28/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 28, 2022
No. 21-10550
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Matthew Michael Cimino
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CR-349-1
Before Wiener, Dennis, and Haynes, Circuit Judges.
Per Curiam:*
Defendant-Appellant Matthew Michael Cimino appeals his guilty
plea conviction and his sentence for being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1). He challenges his conviction on two
grounds. He first contends that § 922(g)(1) is unconstitutional on its face and
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-10550 Document: 00516256490 Page: 2 Date Filed: 03/28/2022
No. 21-10550
as applied to him because it exceeds the scope of Congress’s authority under
the Commerce Clause. He next contends that the factual basis for his guilty
plea is insufficient because it does not include, as a mens rea element, that he
knew his possession of the firearm was in or affecting interstate commerce.
Because he raises both challenges for the first time on appeal, they are
reviewed for plain error only. See Puckett v. United States, 556 U.S. 129, 135
(2009). Cimino concedes that both of these challenges to his conviction are
foreclosed by our precedent and that he only raises them to preserve them
for potential future review. See United States v. Alcantar, 733 F.3d 143, 145-
46 (5th Cir. 2013); United States v. Dancy, 861 F.2d 77, 80-82 (5th Cir. 1988).
As for Cimino’s sentence, the district court applied an upward
departure pursuant to U.S.S.G. § 4A1.3(a)(1) and sentenced him to 42
months of imprisonment. The court determined that Cimino’s criminal
history category substantially underrepresented the seriousness of his
criminal history and the likelihood that he would commit other crimes.
We review the district court’s decision to impose an upward
departure, as well as the extent of such a departure, for abuse of discretion.
See United States v. Zelaya-Rosales, 707 F.3d 542, 546 (5th Cir. 2013). At
sentencing, the district court explained that the upward departure was based
on (1) Cimino’s status as a habitual offender, (2) the minimal terms of
imprisonment imposed for his previous convictions, (3) his continued
engagement in criminal behavior, and (4) the number of prior convictions
that were not scored due to their age. These bases are supported by the
record and are permissible for purposes of § 4A1.3. See United States v.
Lavalais, 960 F.3d 180, 189 (5th Cir. 2020), cert. denied, 141 S. Ct. 2807(2021); United States v. Lopez, 871 F.2d 513, 514-15 (5th Cir. 1989). Cimino’s
challenge to the imposed sentence is merely a disagreement with how the
district court weighed the relevant factors and thus “is not a sufficient
ground for reversal.” United States v. Malone, 828 F.3d 331, 342 (5th Cir.
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No. 21-10550
2016). We have upheld proportionately greater upward departures than the
nine month departure at issue here. See, e.g., Lavalais, 960 F.3d at 186, 189-
90 (upholding a 59-month upward departure from a guidelines maximum of
46 months); Zelaya-Rosales, 707 F.3d at 546 (upholding a six-month upward
departure from a guidelines maximum of six months).
AFFIRMED.
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