802 F.3d 1185 (11th Cir. 2015), 14-10396, United States v. Matchett

Docket Nº:14-10396
Citation:802 F.3d 1185, 25 Fla.L.Weekly Fed. C 1636
Opinion Judge:WILLIAM PRYOR, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CALVIN MATCHETT, Defendant-Appellant
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee: Phillip Drew DiRosa, U.S. Attorney's Office, FORT LAUDERDALE, FL; Kathleen Mary Salyer, U.S. Attorney's Office, MIAMI, FL; Timothy J. Abraham, Wifredo A. Ferrer, Emily M. Smachetti, Vanessa Sisti Snyder, U.S. Attorney's Office, MIAMI, FL. For CA...
Judge Panel:Before WILLIAM PRYOR, JULIE CARNES, and SILER,[*] Circuit Judges.
Case Date:September 21, 2015
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
SUMMARY

Defendant pleaded guilty to being a felon in possession and subsequently challenged the denial of his motion to suppress the firearm and the calculation of his sentence. This appeal presents an issue of first impression: whether the vagueness doctrine of the Due Process Clause of the Fifth Amendment applies to the advisory Sentencing Guidelines. The court held that the vagueness doctrine applies... (see full summary)

 
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Page 1185

802 F.3d 1185 (11th Cir. 2015)

25 Fla.L.Weekly Fed. C 1636

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

CALVIN MATCHETT, Defendant-Appellant

No. 14-10396

United States Court of Appeals, Eleventh Circuit

September 21, 2015

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:13-cr-20630-KMM-1.

For UNITED STATES OF AMERICA, Plaintiff - Appellee: Phillip Drew DiRosa, U.S. Attorney's Office, FORT LAUDERDALE, FL; Kathleen Mary Salyer, U.S. Attorney's Office, MIAMI, FL; Timothy J. Abraham, Wifredo A. Ferrer, Emily M. Smachetti, Vanessa Sisti Snyder, U.S. Attorney's Office, MIAMI, FL.

For CALVIN MATCHETT, Defendant - Appellant: Brenda Greenberg Bryn, Andrew L. Adler, Federal Public Defender's Office, FORT LAUDERDALE, FL; Aimee Ferrer, Michael Caruso, Federal Public Defender, Federal Public Defender's Office, MIAMI, FL.

Before WILLIAM PRYOR, JULIE CARNES, and SILER,[*] Circuit Judges.

OPINION

WILLIAM PRYOR, Circuit Judge

This appeal presents an issue of first impression for this Court: whether the vagueness doctrine of the Due Process Clause of the Fifth Amendment applies to the advisory Sentencing Guidelines. Calvin Matchett pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and now challenges both the denial of his motion to suppress the firearm and the calculation of his sentence. Police Officer Jesse Smith stopped Matchett when he saw Matchett carrying a flat-screen television in a residential neighborhood on a weekday morning. After speaking with Matchett, Officer Smith frisked him based on his confrontational demeanor and the risk that he had a burglary tool that could be used as a weapon. When Officer Smith found a loaded handgun in Matchett's pocket, Matchett fought with Officer Smith for over three minutes in an attempt to flee. The district court did not err when it denied Matchett's motion to suppress. It also correctly determined that Matchett's previous convictions for burglary of an unoccupied dwelling were crimes of violence and that Matchett's resistance created a substantial risk of death or bodily injury in the course of fleeing from a law enforcement officer. We reject Matchett's argument that the definition of " crime of violence" in the Sentencing Guidelines is unconstitutionally vague in light of Johnson v. United States, __ U.S. __, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). The vagueness doctrine applies only to laws that prohibit conduct and fix punishments, not advisory guidelines. We affirm.

I. BACKGROUND

At approximately 9:00 a.m. on Tuesday, April 30, 2013, Police Officer Jesse Smith observed Matchett " carrying an unboxed, large flat screen television" down a residential street in the Bunche Park area of Miami Gardens, Florida. Officer Smith parked his marked police vehicle about twenty feet behind Matchett and turned on the blue lights. Officer Smith walked toward Matchett, identified himself, and told Matchett that he was not in any trouble. Officer Smith informed Matchett that he thought it was " kind of odd" to walk down the sidewalk in the morning carrying an unboxed television. After Matchett explained that he was carrying the television to a friend's house around the corner, Officer Smith asked Matchett to produce identification in case someone later reported the television as stolen.

Officer Smith testified that when Matchett put down the television, his demeanor changed immediately. Matchett " went from non-confrontational [to] almost like he was scared." Matchett's " eyes got wider," he was " tense," and he was " looking to his right and looking to his left as if [he was] about to run." Officer Smith had seen " this look hundreds and hundreds of times in [his] career," and he thought Matchett had a reason to run.

Officer Smith was concerned that Matchett might have had a burglary tool such as " a screwdriver, a pry bar, a knife, [or] anything of that nature" that could be used as a weapon and could be concealed in the pockets of his baggy jeans. Matchett " patt[ed] the outside of his pockets" pretending to look for identification, but did " not dig[] into them to look." Officer Smith noticed that Matchett " patted his right rear pocket, his left front pocket, and his left rear pocket, but never touched his right front pocket, which . . . heightened [Officer Smith's] awareness" that Matchett might have a weapon.

Officer Smith " stepped up" to Matchett, " grabbed him by his waistband," and said, " You're not under arrest. Don't move." Officer Smith patted him down and felt a handgun in Matchett's front right pocket. Officer Smith held onto the gun and asked Matchett why he had it. Matchett then " physically pulled away from [Officer Smith] and tried to run away."

Officer Smith grabbed Matchett with one hand on the waistband and the other on the gun and " had to throw him back into [a] fence to keep ahold of him." Officer Smith described the scuffle as " a wrestling match" and noted that Matchett " almost slipped away." The struggle lasted for " [w]ell over three minutes," and several cars and one pedestrian stopped to watch. Officer Smith suffered " lots of abrasions and scrapes," and both of his knees were bloodied. Officer Smith eventually pinned Matchett to the ground and held him there until another officer arrived. " At the end of the struggle, [the gun] was found . . . about ten feet away from [Officer Smith and Matchett] on the sidewalk." The gun was loaded.

After a grand jury indicted Matchett on one count of possession of a firearm and ammunition by a convicted felon, 18 U.S.C. § 922(g)(1), he moved to suppress the handgun. Matchett argued that Officer Smith illegally stopped and frisked him in violation of the Fourth Amendment because Officer Smith lacked reasonable suspicion to believe that criminal activity was afoot or that Matchett had a weapon. A magistrate judge issued a report and recommendation concluding that Officer Smith had reasonable suspicion to stop and frisk Matchett. The magistrate judge also found that Matchett's demeanor, coupled with the likelihood that a burglar might have a weapon or tool that could be used as a weapon, gave rise to a reasonable suspicion that Matchett was armed and posed a risk to Officer Smith's safety. The district court adopted the magistrate judge's report and recommendation and denied Matchett's motion to suppress. Matchett then pleaded guilty, but he reserved his right to appeal the denial of his motion to suppress.

The presentence investigation report calculated a base offense level of 24 with a criminal history category of 4 and a guideline range of 77 to 96 months of imprisonment. The calculated range included an enhancement for Matchett's two prior felony convictions for " crime[s] of violence," United States Sentencing Guidelines Manual § 2K2.1(a)(2) (Nov. 2014), and a two-level enhancement for " recklessly creat[ing] a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer," U.S.S.G. § 3C1.2. At sentencing, Matchett objected to both of these enhancements. He argued that his prior felony convictions for burglary of an unoccupied dwelling, Fla. Stat. § § 810.02(1)(b), (3)(b), were not " crime[s] of violence." He also argued that he neither attempted to flee nor recklessly endangered anyone.

The district court ruled that the presentence investigation report correctly calculated Matchett's offense level. It also determined that burglary of an unoccupied dwelling is a " crime of violence" under the guidelines. U.S.S.G. § 2K2.1(a)(2). The district court found that Matchett " recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer" under section 3C1.2 of the guidelines because Matchett had " in fact, caus[ed] injury" to Officer Smith--abrasions, scrapes, and bloodied knees--and " pos[ed] a substantial risk of even death or serious bodily injury by his continued resistance and his access to a loaded firearm." The district court sentenced Matchett to 96 months of imprisonment.

II. STANDARDS OF REVIEW

" The grant or denial of a motion to suppress evidence is reviewed in this Court as a mixed question of law and fact. We assess the district court's findings of fact under the clearly erroneous standard and review the application of the law to...

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