United States v. Matthews, 20-10554

• Decision Date: 06 July 2021
• Docket Number: No. 20-10554,20-10554
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dean MATTHEWS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

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UNITED STATES of America, Plaintiff-Appellee,
v.
Dean MATTHEWS, Defendant-Appellant.

No. 20-10554

United States Court of Appeals, Eleventh Circuit.

July 6, 2021

Jordane E. Learn, U.S. Attorney's Office, TALLAHASSEE, FL, Robert G. Davies, U.S. Attorney's Office, Northern District of Florida, PENSACOLA, FL, for Plaintiff - Appellee.

Randall Scott Lockhart, Federal Public Defender's Office, PENSACOLA, FL, Randolph Patterson Murrell, Richard Michael Summa, Federal Public Defender's Office, TALLAHASSEE, FL, for Defendant - Appellant.

Before WILSON, ROSENBAUM, and ED CARNES, Circuit Judges.

WILSON, Circuit Judge:

Defendant-Appellant Dean Matthews appeals his 57-month sentence for making false statements to a firearms dealer. On appeal, Matthews reasserts objections that he raised at sentencing to the base offense level adopted by the district court. Matthews specifically takes issue with the application of sentencing enhancements for (1) an offense involving a semiautomatic firearm that is capable of accepting a large capacity magazine, and (2) having a prior conviction for a crime of violence. Because we find no reversible error by the district court, we affirm.

I.

A. Background

On September 23, 2019, Dean Matthews pled guilty to a single count of making a false statement to a firearms dealer, in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(2). According to the plea agreement's factual proffer, on April 1, 2019, Matthews attempted to purchase a DPMS Oracle 5.56 rifle from Mike's Outdoor Sports/Mike's Gun Shop (Mike's Gun Shop), a federally licensed firearms dealer in Pensacola, Florida. As part of the purchase process, Matthews completed and signed Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) Form 4473—the Firearms Transaction Record. However,

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Matthews was denied the purchase of the rifle due to his inability to pass a background check. A subsequent review of Matthews's ATF Form 4473 revealed that he falsely answered "no" when asked if he was subject to a court order restraining him from harassing, stalking, or threatening an intimate partner. At the time of the attempted purchase, Matthews was under an injunction restraining him from having any contact with the listed victim in a pending 2019 felony sexual assault case.

B. PSI and Sentencing

Matthews's presentence investigation report (PSI) began with a base offense level of 22, pursuant to U.S.S.G. § 2K2.1(a)(3), because (1) the offense involved a semiautomatic firearm capable of accepting a large capacity magazine, and (2) he had a prior felony conviction for a crime of violence. The probation officer found that the firearm "held 31 rounds" and that Matthews's prior conviction for Florida felony battery constituted a crime of violence. The offense level was decreased by three points for timely acceptance of responsibility, for a total offense level of 19. Matthews's criminal history was in category III, resulting in an advisory Guidelines range of 37 to 46 months.

Matthews filed written objections to the PSI's calculation of his base offense level, arguing, as relevant here: (1) that his prior felony battery conviction under Fla. Stat. § 784.041 does not qualify as a crime of violence; and (2) that it was error to conclude his offense involved a firearm capable of accepting a large capacity magazine because, at the time of the offense, the rifle was not loaded with a magazine and Matthews never came into possession of either the rifle or a magazine. In support of his second objection, Matthews noted that the rifle can accommodate different sizes of magazines and that there was no evidence establishing what magazine, if any, he would have purchased with the rifle.

The district court quickly dispensed with Matthews's first objection at sentencing, noting that it was bound by precedent to conclude that Matthews's felony battery conviction constituted a crime of violence. See United States v. Vail-Bailon , 868 F.3d 1293, 1295 (11th Cir. 2017) (en banc) (holding that Florida felony battery categorically qualifies as a crime of violence).

To rebut Matthews's second objection, the Government pointed to portions of Matthews's PSI which stated that Matthews was "a former infantryman in the U.S. Army Reserve, trained in combat and marksmanship," making it "highly improbable" that he "purchased the firearm in question without knowing it came with a 30-round magazine and that he would receive both had his application been approved." The Government also presented testimony from Mary Evans, the ATF agent responsible for investigating Matthews's case. Agent Evans confirmed that the "standard magazine" for the rifle in question is a 30-round magazine, but noted that firearms "generally do not have the magazines in" them when people are looking at them at the store. On cross-examination, Agent Evans admitted that she did not ask the salesperson whether they discussed with Matthews what type of magazine would come with the firearm. In response to Agent Evans's testimony, Matthews argued that at the time of the false statement the firearm did not have a magazine and the facts must be judged at the time of the offense.

The court overruled Matthews's objections, adopted the recommendations in the PSI, and ruled:

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I think the evidence I heard is that there was no magazine attached to [the rifle], but I think what I heard was that [Matthews] was purchasing or attempting to purchase a specific firearm which comes standard with a magazine of 30 rounds. And so I think I can

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