United States v. Sirtaj "Tosh" Mathauda

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-10399
Non-Argument Calendar
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D.C. Docket No. 1:09-cr-20210-JAL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SIRTAJ “TOSH” MATHAUDA,
a.k.a. Mark Bolan,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(February 21, 2017)
Before WILSON, JULIE CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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A jury found Sirtaj “Tosh” Mathauda guilty of: one count of conspiring to
commit mail and wire fraud, nine counts of mail fraud, and two counts of wire
fraud. Mathauda appeals his total sentence of 200 months’ imprisonment and the
district court’s denial of his motion to proceed pro se upon resentencing.1 First,
Mathauda argues that his 200-month sentence was substantively unreasonable
given (1) his old age and poor health, (2) that his driving-under-the-influence
convictions occurred within six years of each other, and (3) his non-citizenship
concerns. Second, Mathauda argues that he made a clear and unequivocal request
to proceed pro se before resentencing and the denial of that motion without
conducting a Faretta2 hearing violated his Sixth Amendment right to self-
representation.
I. Substantive Reasonableness
We review the reasonableness of a sentence under a deferential abuse-of-
discretion standard. United States v. Brown, 772 F.3d 1262, 1266 (11th Cir. 2014)
(per curiam). Under this standard, we need only ensure that the district court’s
sentence is reasonable, and we will not set aside the sentence merely because
another sentence may have been more appropriate. See United States v. Irey, 612
F.3d 1160, 1191 (11th Cir. 2010) (en banc). The party challenging the sentence
1
His first sentence was overturned by this court. See United States v. Mathauda, 740 F.3d 565,
566 (11th Cir. 2014) (per curiam).
2
Faretta v. California, 422 U.S. 806 (1975).
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bears the burden of demonstrating that the sentence is unreasonable given the entire
record, the 18 U.S.C. § 3553(a) factors, and the substantial deference given to
sentencing courts. See United States v. Langston, 590 F.3d 1226, 1236 (11th
Cir.2009).
In reviewing for substantive reasonableness, we examine whether the
§ 3553(a) factors support the sentence under the totality of the circumstances. See
United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (per curiam). A
sentence may be substantively unreasonable if a court unjustifiably relies on any
single § 3553(a) factor, fails to consider pertinent § 3553(a) factors, bases the
sentence on impermissible factors, or selects the sentence arbitrarily. See United
States v. Pugh, 515 F.3d 1179, 1191–92 (11th Cir. 2008). We do not apply a
presumption of reasonableness to sentences within the guideline range, but we
ordinarily expect such a sentence to be reasonable. See United States v. Stanley,
739 F.3d 633, 656 (11th Cir. 2014). Furthermore, a sentence imposed well below
the statutory maximum term of imprisonment is an indicator of a reasonable
sentence. Id.
The district court did not abuse its discretion in sentencing Mathauda to 200
months’ imprisonment. Mathauda was sentenced below the middle of the guideline
range and well below the 25-year statutory maximum term of imprisonment, thus
indicating the sentence’s reasonableness. See 18 U.S.C. §§ 1341, 1343, 1349, 2326;
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Stanley, 739 F.3d at 656. The court was well within its discretion to weigh more
heavily the seriousness of Mathauda’s crime—as his fraudulent scheme caused $3.5
million in losses to numerous innocent victims—and the nature and extent of his
criminal history. See United States v. Overstreet, 713 F.3d 627, 636–40 (11th Cir.
2013). Mathauda does not argue that the court unjustifiably relied upon these
factors, but rather that his age, his health, the similarity and proximity of his prior
convictions, his ineligibility for prison programs, and his potential deportability
warranted a shorter sentence. Mathauda, however, has failed to prove that these
considerations render his within-guideline-range sentence unreasonable under the
totality of the circumstances, especially when considering the extent of the harm
caused by his crime. See Gonzalez, 550 F.3d at 1324; Pugh, 515 F.3d at 1192.
Thus, Mathauda’s 200-month sentence is substantively reasonable, and we affirm
the sentence.
II. Mathauda’s Faretta Rights
We review de novo whether a defendant validly waived his right to counsel,
as a mixed question of law and fact. Stanley, 739 F.3d at 644.
A criminal defendant may exercise his constitutional right to represent
himself—his Faretta rights—by making a knowing and intelligent waiver of his
Sixth Amendment right to counsel and by clearly and unequivocally asserting his
request to proceed pro se. See Gill v. Mecusker, 633 F.3d 1272, 1294 (11th Cir.
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2011). The defendant’s clear and unequivocal request to represent himself triggers
the court’s obligation to conduct a Faretta hearing, in which the defendant must be
informed of the advantages and disadvantages of self-representation. See id. at
1293. A defendant makes a clear and unequivocal request for self-representation
by, for example, affirmatively invoking his right to self-representation. See United
States v. Garey, 540 F.3d 1253, 1264–65 (11th Cir. 2008) (en banc).
Even if a defendant properly invokes his Faretta rights, he can still waive
them if he requests self-representation but engages in subsequent conduct showing
a vacillating position on the issue. See Gill, 633 F.3d at 1294–95. For example, a
defendant fails to invoke his Faretta rights when he requests to proceed pro se,
while at the same time stating that he would prefer different counsel or continuing
to argue a substitution of counsel motion. See id. at 1295–96 (explaining that the
defendant’s vacillation made his request for self-representation equivocal). Upon a
questionable waiver of the right to counsel, the Supreme Court has directed that
courts should indulge in every reasonable presumption against waiver. See Brewer
v. Williams, 430 U.S. 387, 404, 97 S. Ct. 1232, 1242 (1977).
Additionally, if the defendant properly invokes his Faretta rights, those
rights can still be adequately vindicated in non-jury proceedings so long as the
court allows the pro se defendant to argue freely on his own behalf and so long as
any disagreements between counsel and the pro se defendant (on issues that would
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normally be left to the discretion of counsel) are resolved in the defendant’s favor.
See McKaskle v. Wiggins, 465 U.S. 168, 179–81, 104 S. Ct. 944, 951–53 (1984)
(finding no error where, even though the lower court did not grant each of the
defendant’s motions, it never adopted counsel’s position over the defendant’s
position on a matter normally within the defense’s discretion).
Mathauda waived his Faretta rights by vacillating on the issue. Mathauda’s
vacillation on the issue is as follows:
• May 6, 2014, Mathauda filed a motion to proceed pro se for resentencing.
o Magistrate judge held a Faretta hearing explaining the pros and cons
of proceeding pro se.
o Magistrate’s Report and Recommendation (R&R) stated that based on
Mathauda’s request for appointed counsel, he should be appointed
counsel.
o Mathauda was appointed counsel.
• August 3, 2014, Mathauda filed a pro se objection to the R&R stating he
would prefer a different attorney.
o Court adopted R&R on August 19, 2014 and noted Mathauda’s
objections were untimely.
• Mathauda filed a pro se motion to remove appointed counsel and reinstate
another attorney. The appointed attorney filed a motion to withdraw for
irreconcilable differences.
o At a hearing on the motions, Mathauda requested to proceed pro se.
The magistrate judge conducted a second Faretta hearing, authorized
him to proceed pro se, and removed his appointed attorney.
• November 26, 2014, four days before resentencing, Mathauda filed a pro se
motion asking for a delay in the resentencing or to appoint counsel.
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o At this attempted resentencing, Mathauda instructed the court that he
wished to have counsel appointed for the resentencing.
o The court appointed counsel and reset the resentencing for December
18.
• December 11, 2014, Mathauda filed a pro se motion to reassert his pro se
status and to remove court-appointed counsel
• December 18, 2014, the court addressed the pro se motion and explained
that the court would not go back and forth on this issue any longer, a
warning the court also delivered at the previous hearing, and proceeded with
the resentencing.
o Mathauda replied that he filed the pro se motions because he wanted
to raise issues about his innocence but understood that the
resentencing hearing was not the right time to raise them.
o The court gave Mathauda an opportunity to speak on his own behalf,
but he made no objections or sentencing-related arguments.
With this vacillation and the reasonable presumption against waiver of counsel,
Mathauda failed to clearly and unequivocally assert his Faretta rights and the
district court did not err in denying his motion without holding a third Faretta
hearing. See Brewer, 430 U.S. at 404, 97 S. Ct. at 1242; Gill, 633 F.3d at 1293–95.
In any event, Mathauda’s Faretta rights were nevertheless vindicated during
the resentencing hearing, where the court provided Mathauda an opportunity to
make sentencing arguments on his own behalf after his appointed counsel made
substantive reasonableness arguments that Mathauda neither objected to nor
contradicted. See McKaskle, 465 U.S. at 179, 104 S. Ct. at 951. Although the
court did not rule on Mathauda’s non-sentencing pro se motions, the district court
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never adopted Mendez’s position as to sentencing over Mathauda’s position, or
lack thereof. See id. at 181. Accordingly, Mathauda’s Faretta rights were not
violated, and we affirm his sentence.
After careful review of the record and consideration of the parties’ briefs, we
affirm.
AFFIRMED.
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