United States v. Jorge Mata

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15345 ELEVENTH CIRCUIT
OCTOBER 1, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00090-CR-3-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE MATA,
a.k.a. Officer George,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(October 1, 2010)
Before TJOFLAT, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Jorge Mata appeals his 200-month sentence imposed after pleading guilty to
conspiracy to distribute and possess with intent to distribute 100 kilograms or more
of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii), and 846.
On appeal, Mata raises two arguments. First, he asserts that the district court
clearly erred by rejecting his constitutional challenge to the validity of his state
court conviction for felony possession of cocaine, which was used to enhance
penalties pursuant to 21 U.S.C. § 841(b)(1)(B). Specifically, he argues that: (i) his
plea to that state charge was unknowing and involuntary because state-court
counsel incorrectly advised him that his conviction for possession of cocaine
would not be on his criminal record and could not be used against him in future
proceedings; and (ii) the court erroneously determined that his uncorroborated
testimony was insufficient to establish the invalidity of his prior conviction.
Second, he argues that his sentence, imposed following an upward variance
from his guideline range of 151 to 188 months’ imprisonment, was substantively
unreasonable. For the following reasons, we affirm.
I.
When consideration of a sentencing challenge is appropriate, “we review for
clear error a district court’s factual findings, and review de novo the application of
the law to those facts.” United States v. De La Cruz Suarez, 601 F.3d 1202,
1220-21 (11th Cir.), cert. denied, __ U.S. __, 130 S.Ct. 3532 (2010).
The statutory sentencing range for a violation of 21 U.S.C. § 841 that
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involves 100 kilograms or more of marijuana is 5 years’ to 40 years’ imprisonment
and at least 4 years’ supervised release. 21 U.S.C. § 841(b)(1)(B). Nevertheless, if
a person violates this section “after a prior conviction for a felony drug offense has
become final, such person shall be sentenced to a term of imprisonment which may
not be less than 10 years and not more than life imprisonment,” to be followed by
at least 8 years’ supervised release. Id.In order for the enhanced penalties to apply, the government must file, as it
did in this case, an information stating the previous conviction to be relied on, and
the defendant may then deny the conviction or claim that it was constitutionally
invalid by filing a written response. 21 U.S.C. § 851(a), (c). Mata filed a written
response challenging the constitutionality of his prior state drug conviction. If the
defendant challenges the use of a prior conviction, he must “set forth his claim, and
the factual basis therefor, with particularity in his response to the information[,]
[and] shall have the burden of proof by a preponderance of the evidence on any
issue of fact raised by the response.” 21 U.S.C. § 851(c)(2). The only evidence
Mata proffered in support of his claim that his state conviction was constitutionally
invalid was his own testimony that his state-court counsel told him that his
conviction could not be used against him in future proceedings.
A guilty plea, which amounts to the waiver of the constitutional rights
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against self-incrimination, to trial by jury, and to confront one’s accuser’s, is only
valid if it is entered intelligently and voluntarily. See Boykin v. Alabama, 395 U.S.
238, 242, 89 S.Ct. 1709, 1711-12, 23 L.Ed.2d 274 (1969). We must consider all of
the relevant circumstances surrounding the guilty plea to determine its
voluntariness. See United States v. Deal, 678 F.2d 1062, 1065 (11th Cir. 1982).
“[T]he voluntariness of the plea depends on whether counsel’s advice was
within the range of competence demanded of attorneys in criminal cases.” Hill v.
Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985) (quotation
omitted). Mata argues that his state-court counsel’s advice concerning the
collateral consequences of his guilty plea was wrong, and, therefore, the advice
was outside the range of competence demanded of attorneys.
To succeed on an ineffective-assistance-of-counsel claim, a defendant must
show by a preponderance of the evidence that (1) counsel’s performance was
deficient, and (2) this deficiency resulted in prejudice. Strickland v. Washington,
466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The two-part
standard is applicable to ineffective-assistance-of-counsel claims arising out of the
plea process, and the defendant can satisfy the “prejudice” requirement by showing
“a reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” Hill, 474 U.S. at 57-59, 106
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S.Ct. at 369-70.
Contrary to Mata’s assertion, state-court counsel is not required to warn a
defendant that his guilty plea “could have sentencing consequences if he [is] later
convicted in federal court.” McCarthy v. United States, 320 F.3d 1230, 1234 (11th
Cir. 2003). “Counsel’s affirmative misrepresentation in response to a specific
inquiry from the defendant may, however, under certain circumstances, constitute
ineffective assistance of counsel.” United States v. Campbell, 778 F.2d 764, 768-
69 (11th Cir. 1985), abrogated on other grounds by Padilla v. Kentucky, 130 S.Ct.
1473, 559 U.S. __, 176 L.Ed.2d 284 (2010) (declining to rule on the
collateral-versus-direct distinction).
Here, the district court did not clearly err by finding that Mata failed to
satisfy his burden of proof under 21 U.S.C. § 851(c)(2). Specifically, the record
supports the court’s conclusion that Mata failed to prove, by a preponderance of
the evidence, that his guilty plea was constitutionally invalid because the only
evidence he proffered was his own uncorroborated testimony that state-court
counsel told him that his conviction could never be used against him in future
proceedings. Moreover, even if state-trial counsel misinformed Mata that his state
court conviction would carry no collateral consequences, there is no evidence in
the record that he would not have pleaded guilty if counsel had given correct
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advice. See Hill, 474 U.S. at 57-59, 106 S.Ct. at 369-70.
II.
Mata argues that the district court abused its discretion in imposing a
custodial sentence outside of the guidelines range. He asserts that his
upward-variance sentence is substantively unreasonable because any notion he had
of actually killing a potential government witness “was quickly put to rest,” and
such conduct was adequately covered by the obstruction-of-justice enhancement
and his resulting loss of an acceptance-of-responsibility reduction.
We review the sentence imposed by the district court for reasonableness.
United States v. Williams, 526 F.3d 1312, 1321 (11th Cir. 2008). The Supreme
Court has clarified that the reasonableness standard means review for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d
445 (2007). “[T]he burden of establishing that the sentence is unreasonable in
light of the record and the § 3553(a) factors lies with the party challenging the
sentence.” Williams, 526 F.3d at 1322.
A sentence is procedurally unreasonable if the district court failed to
calculate or incorrectly calculated the Guidelines, treated the Guidelines as
mandatory, failed to consider the § 3553(a) factors, selected a sentence based on
clearly erroneous facts, or failed to adequately explain the chosen sentence. Gall,
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552 U.S. at 51, 128 S.Ct. at 597. The § 3553(a) factors include, inter alia, (1) the
applicable guideline range; (2) the nature and circumstances of the offense; (3) the
history and characteristics of the defendant; (4) the need for the sentence imposed
to reflect the seriousness of the offense, promote respect for the law, and provide
just punishment for the offense; (5) the need for adequate deterrence to criminal
conduct; (6) protection of the public from further crimes of the defendant; and
(7) the need to avoid unwarranted sentencing disparities. See 18 U.S.C.
§ 3553(a)(1)-(7).
Once we conclude that the court made no procedural errors, we will then
consider “the substantive reasonableness of the sentence,” under the totality of the
circumstances. Gall, 552 U.S. at 51, 128 S.Ct. at 597. A sentence is substantively
unreasonable if it is not supported by the § 3553(a) factors. Id. at 56, 128 S.Ct.
at 600. “The weight to be accorded any given § 3553(a) factor is a matter
committed to the sound discretion of the district court.” Williams, 526 F.3d at
1323 (quotation omitted).
After correctly calculating the advisory guideline range, the court may
impose a more severe or lenient sentence, as long as the resulting sentence is
reasonable. United States v. Valnor, 451 F.3d 744, 750 (11th Cir. 2006). If it
decides that a sentence outside that range is appropriate, it must “consider the
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extent of the deviation and ensure that the justification is sufficiently compelling to
support the degree of the variance.” Gall, 552 U.S. at 50, 128 S.Ct. at 597.
Accordingly, it must “includ[e] an explanation for any deviation from the
Guidelines range.” Id. We may consider the deviation, “but 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. “The fact that the appellate court might
reasonably have concluded that a different sentence was appropriate is insufficient
to justify reversal.” Id. Nonetheless, the district court’s discretion is not
unfettered. United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008).
Initially, we note that Mata does not challenge the procedural reasonableness
of his sentence and has abandoned any claim in this respect. See United States v.
Arnoldo Guzman, 558 F.3d 1262, 1265 (11th Cir. 2009) (holding that the
defendant abandoned a sentencing challenge by failing to raise it on appeal).
Second, his upward-variance sentence was substantively reasonable. The district
court balanced Mata’s request for mitigation, based on his guilty plea, against
(a) the seriousness of his offense—an interstate conspiracy involving 483 pounds
(or 219 kilograms) of marijuana, (b) the fact that he obstructed justice by soliciting
the murder of a potential witness, and (c) the fact that, rather than accepting
responsibility, he attempted to recant his prior admissions as to his role as a drug
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supplier.
In addition, the record reflects that the court gave due consideration to
mitigating factors because it began from the midpoint of his guideline
range—rather than the high end—before applying a 30-month variance, and
because Mata’s 200-month sentence exceeded the high end of his guideline range
by only 12 months, falling substantially below the statutory maximum term of life
imprisonment. Thus, the court’s reasoning merits deference and provides a
sufficiently compelling justification for the degree of variance in the instant case.
See Gall, 552 U.S. at 50, 128 S.Ct. at 597; United States v. Shaw, 560 F.3d 1230,
1239-41 (11th Cir.), cert. denied, 129 S.Ct. 2847 (2009). Accordingly, we affirm
Mata’s 200-month sentence.
AFFIRMED.
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