U.S. v. Mateo

• Decision Date: 26 December 2006
• Docket Number: No. 05-2266.,05-2266.
• Citation: 471 F.3d 1162
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dennys MATEO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1162

471 F.3d 1162

UNITED STATES of America, Plaintiff-Appellee, v. Dennys MATEO, Defendant-Appellant.

No. 05-2266.

United States Court of Appeals, Tenth Circuit.

December 26, 2006.

Edward O. Bustamante, Albuquerque, NM, appearing for Appellant.

Gregory James Fouratt, Assistant United States Attorney (David C. Iglesias, United States Attorney, and Laura Fashing, Assistant United States Attorney, on the brief), Office of the United States Attorney for the District of New Mexico, Albuquerque, NM, appearing for Appellee.

Before TACHA, Chief Circuit Judge, KELLY, and MURPHY, Circuit Judges.

TACHA, Chief Circuit Judge.

Dennys Mateo pleaded guilty to one count of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). After correctly calculating the advisory Sentencing Guidelines range of 15 to 21 months' imprisonment, the District Court considered the sentencing factors under 18 U.S.C. § 3553(a), determined that this range was insufficient, and imposed a sentence of 120 months' imprisonment—the statutory maximum. On appeal, Mr. Mateo argues that the District Court erred by considering facts concerning prior arrests that did not result in convictions and maintains that the sentence imposed is unreasonable. We take jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

I. BACKGROUND

On May 20, 2004, a confidential informant told a Drug Enforcement Administration ("DEA") agent that Mr. Mateo would be involved in a cocaine transaction at 8:00 p.m. at a video store parking lot in Albuquerque, New Mexico. Upon investigation, the DEA agent discovered that Mr. Mateo had been previously convicted of grand theft, a third degree felony, on April 13, 1998, in Miami, Florida. The night of May 20, 2004, the Albuquerque police set up surveillance at the parking lot. When a white BMW matching the description given by the informant arrived, the police approached the car and asked Mr. Mateo, the driver, to step out of the car. As Mr. Mateo complied, the officer observed a revolver in plain view in the side pocket of the driver's side door. The gun was a Smith & Wesson, Lady Smith, .38 caliber five-shot revolver, loaded with five rounds of ammunition. Aware that Mr. Mateo was a felon, officers immediately arrested Mr. Mateo. A search of the vehicle found suspected counterfeit currency but no narcotics.

On June 23, 2004, a grand jury indicted Mr. Mateo on a single count charging him with being a felon in possession of a firearm and ammunition. Mr. Mateo pleaded guilty to the indictment. Subsequently, the probation office prepared a presentence report ("PSR"). The PSR determined Mr. Mateo's base offense level to be 14. See United States Sentencing Guidelines Manual ("U.S.S.G." or "Guidelines") § 2K2.1(a)(6)(A). He received a two-level reduction in his offense level for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1, for a total offense level of 12. The PSR placed Mr. Mateo at a criminal history category of III because he had six criminal history points for five prior convictions. Based on the total offense level of 12 and a criminal history category of III, the PSR calculated the advisory Guidelines imprisonment range to be 15 to 21 months. Mr. Mateo filed three objections to the PSR contesting the application of the Guidelines in determining his criminal history category, but he did not object to any of the factual statements included in the PSR, including those detailing the factual circumstances of multiple prior arrests. At a hearing on June 13, 2005, the District Court ruled against Mr. Mateo's objections to the PSR and gave notice to the Government and to Mr. Mateo that it was considering a sentence above the advisory Guidelines range.¹

The PSR discloses the following information. Mr. Mateo was born in Cuba in 1972 and lived there until he was granted political asylum in the United States in 1995. The report assessed six criminal history points for five convictions including (1) a 1996 conviction for grand theft of a jewelry store in Oakland Park, Florida; (2) a 1996 conviction for possession of marijuana in Miami, Florida; (3) a 1997 conviction for possession of marijuana in Miami, Florida; (4) a 1997 conviction for grand theft of a home in Miami, Florida; and (5) a 2003 conviction for shoplifting in Albuquerque, New Mexico.

Of particular importance in this case, the PSR discloses the following facts about the 1997 grand theft conviction. In early May 1997, Mr. Mateo and another individual approached an apartment where a man was standing at the front door. Mr. Mateo and his accomplice each aimed a .38 caliber revolver at the victim's head and forced him into the apartment. There, they tied him up with a phone cord and covered his head with a pillow case. Several electronic items were taken from the apartment. Mr. Mateo was arrested on May 14, 1997, a few days after the incident, and was initially charged with robbery and kidnapping with a deadly weapon. Ultimately, the robbery charge was reduced to a lesser charge of grand theft and the kidnapping charge was dismissed. On April 13, 1998, after pleading nolo contendere to the felony grand theft charge Mr. Mateo was sentenced to 364 days in the county jail.

In addition to these five convictions, the PSR includes records of seven additional prior arrests that did not lead to convictions, and one additional pending charge.² Among the prior arrests was one for attempted murder. The PSR indicates that police arrested Mr. Mateo on May 14, 1997, in Miami, Florida after receiving a report that Mr. Mateo and two other individuals fired a gun four to five times at the victim as he was stopped in his car at a traffic light. Three rounds struck the victim's vehicle. The victim explained that the shooting may have been related to the home invasion that had occurred a few days prior (and for which Mr. Mateo was arrested and convicted in Miami). The subjects were positively identified, but the victim could not indicate which suspect fired the shots. The prosecutor filed a nolle prosequi on April 13, 1998.

On October 31, 1999, the Texas Department of Public Safety arrested Mr. Mateo for conspiracy to deliver a controlled substance. The PSR indicates that the case was "rejected" by the District Attorney, but it includes the following information about the factual background of the arrest:

According to [Mr. Mateo's] signed statement, [Mr. Mateo] agreed to take a van that contained cocaine from Albuquerque, New Mexico to Miami, Florida. [Mr. Mateo] had two friends drive the van while [he] followed the van in his car. The van was stopped for a traffic violation and was subsequently searched. The cocaine was in the form of a brick rolled in a pair of pants inside a plastic bag on the floor. A few miles later, [Mr. Mateo] was stopped and was found to be in possession of a bag of marijuana. [Mr. Mateo] took full responsibility for the cocaine and stated to officers his friends did not know the cocaine was in the van. During a search of the van, officers located a firearm.

Less than a year later, on August 17, 2000, Mr. Mateo was arrested in New Mexico, and charged in United States District Court for the District of New Mexico with distribution of cocaine, conspiracy, and aiding and abetting. The indictment in this case was dismissed without prejudice on October 11, 2000.

On October 19, 2001, police officers in Albuquerque, New Mexico arrested Mr. Mateo for aggravated battery with a deadly weapon, armed robbery, conspiracy, kidnapping, and tampering with evidence related to a jewelry store robbery in August 2000. According to the PSR, the police reports indicate that witnesses said three Cuban males jumped the counter and robbed the store at gunpoint, pushing one victim onto the floor and putting the barrel of a gun to his head. A confidential informant indicated that Mr. Mateo was involved in the robbery and one of the perpetrators confirmed this information. Mr. Mateo went to trial on these charges, but the court ordered a mistrial after the jury could not reach a verdict. On August 27, 2002, the District Attorney filed a nolle prosequi.

At the sentencing hearing in this case, the Government took the position that the Guidelines are presumptively reasonable, and while not advocating a sentence above the advisory Guidelines range, informed the court that it would support an upward variance if the court imposed such a sentence. Mr. Mateo's attorney maintained that the advisory Guidelines range was reasonable given the facts surrounding the current conviction, and observed that Mr. Mateo's only prior felony conviction for grand theft was not drug related.

After correctly calculating the Guidelines range and acknowledging the advisory nature of the Guidelines after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the District Court held that in light of the sentencing factors provided by 18 U.S.C. § 3553(a), the Guidelines range of 15 to 21 months was unreasonable. The court specifically discussed the following § 3553(a) factors:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant[.]

See 18 U.S.C. § 3553(a)(1)-(2). The court explained its concerns regarding the adequacy of the advisory Guidelines range in relation to the cited sentencing factors by observing that Mr. Mateo's record of fourteen total arrests (including the five for which he was convicted) and two felony convictions in three different states since he arrived in the United States from Cuba in 1995 indicates "a commitment to a criminal lifestyle." The court acknowledged that Mr. Mateo was...