United States v. Samuel Darryl Matthews , 279 F. App'x 956 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 4, 2008
No. 07-15161
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 07-00247-CR-T-26TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAMUEL DARRYL MATTHEWS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 4, 2008)
Before CARNES, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Samuel Matthews appeals his sentence of imprisonment for life for
attempting to produce a visual depiction of a minor engaged in sexually explicit
conduct. 18 U.S.C. §§ 2251(a), (e), 2. Matthews argues that his sentence is
unconstitutional and unreasonable. We affirm.
I. BACKGROUND
The United States Probation Office notified Agent Margaret Grow of the
Federal Bureau of Investigation that Matthews, a registered sex offender who was
on federal supervised release, had solicited individuals to take lewd photographs
of naked children. A confidential informant disclosed to Agent Grow that
Matthews had asked for help to find a young female child to photograph. In a
monitored conversation, the informant told Matthews that he had discovered a
mother willing to allow Matthews to photograph her eleven year old daughter, and
Matthews responded that he wanted to take sexually explicit photographs of the
child.
Matthews contacted an individual that he believed to be the child’s mother
and asked that she send him clothed pictures of the child. Matthews later admitted
to the mother that he planned to take sexually explicit photographs of the child.
Matthews was arrested when he attempted to meet the mother and child at an
agreed location. The police searched Matthews’s car and discovered five cameras,
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two of which were manufactured outside the United States, a book that described
how to photograph children, and undergarments for a female child.
Matthews was convicted of attempting to produce a visual depiction of a
minor engaged in sexually explicit conduct. 18 U.S.C. §§ 2251(a), (e), 2. The
presentence investigation report included Matthews’s history of crimes against
children. In 1984, Matthews pleaded guilty in a Florida court to two counts of
attempted sexual battery and two counts of lewd and lascivious acts in the
presence of a child under the age of 14, which involved the molestation and
fondling of 4 and 6 year old male and female children in hotel rooms. In 2000,
Matthews pleaded guilty in a federal court to possession of child pornography
obtained through interstate commerce and received a sentence of imprisonment for
37 months and supervised release of 36 months. While on supervised release,
Matthews used a computer in a library on two occasions to view photographs of
children in the nude and in sexually explicit positions and the court revoked his
release.
The presentence investigation report listed Matthews’s base offense level at
32, U.S.S.G. § 2G2.1, increased it by 4 levels because the offense involved a
minor under the age of 12, U.S.S.G. § 2G2.1(b)(1)(B), and increased it one more
level because Matthews had committed the offense after conviction for a prior sex
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offense. U.S.S.G. § 4B1.5(a)(1). Although the advisory sentencing range was
ordinarily between 324 and 405 months, the report stated that Matthews could be
sentenced to 420 months of imprisonment because he had two or more prior
convictions that involved the sexual exploitation of children. 18 U.S.C. § 2251(e).
Matthews did not object to the report.
The district court sentenced Matthews to imprisonment for life after
considering the advisory guideline range, the statutory mandatory minimum
sentence, and the statutory sentencing factors, 18 U.S.C. § 3553(a). The district
court found that the sentence was necessary because of Matthews’s “history and
characteristics relating to child molestation and child exploitation” and to protect
the public, particularly “the vulnerable public, our children.” Matthews objected
and argued that once he completed the statutory minimum sentence of 35 years, he
would be too old to pose any danger to the public.
II. STANDARDS OF REVIEW
We review de novo constitutional challenges to a sentence. United States v.
Chau, 426 F.3d 1318, 1321 (11th Cir. 2005). Arguments not raised in the district
court are reviewed for plain error. United States v. Ronda, 455 F.3d 1273, 1303
n.43 (11th Cir. 2006). We review the procedural and substantive reasonableness
of a criminal sentence for an abuse of discretion. Gall v. United States, 128 S. Ct.
4586, 594, 596–97 (2007). “[T]he party who challenges the sentence bears the
burden of establishing that the sentence is unreasonable in the light of both [the]
record and the factors in section 3553(a).” United States v. Talley, 431 F.3d 784,
788 (11th Cir. 2005).
III. DISCUSSION
Matthews raises four challenges to his sentence. All fail. We address each
argument in turn.
A. The District Court Did Not Plainly Err By Finding Facts Used To
Enhance Matthews’s Sentence.
Matthews presents two arguments about the constitutionality of his
sentence. First, Matthews argues that the district court violated his rights under
the Sixth Amendment when it enhanced his sentence based on facts not alleged in
the indictment or proved to the jury regarding the age of the victim and his prior
convictions for sex offenses. Second, Matthews argues that the district court
violated his rights under the Fifth and Sixth Amendments when it applied a
mandatory minimum sentence of 35 years based on his prior convictions. Both
arguments are foreclosed by controlling precedents.
The district court did not plainly err by enhancing Matthews’s sentence
based on its findings that Matthews had prior convictions and his most recent
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victim was less than 12 years old. See U.S.S.G. §§ 2G2.1(b)(1)(B), 4B1.5(a)(1).
These facts were contained in the presentence investigation report. Because
Matthews did not object to them, the facts were admitted as true, and the district
court could rely on them as supported by a preponderance of the evidence. See
United States v. Sheldon, 400 F.3d 1325, 1329–30 (11th Cir. 2005). The district
court viewed the guidelines as advisory and could use the extra-verdict findings to
enhance Matthews’s sentence. See United States v. Douglas, 489 F.3d 1117, 1129
(11th Cir. 2007), cert. denied, 128 S. Ct. 1875 (2008); United States v. Duncan,
400 F.3d 1297, 1302–03 (11th Cir. 2005).
The district court also did not err by applying the mandatory minimum
sentence. The Code mandates that “[a]ny individual who . . . attempts . . . to
violate . . . this section . . . [and] has 2 or more prior convictions under this chapter
. . . or under the laws of any [s]tate relating to the sexual exploitation of children . .
. shall be fined under this title and imprisoned not less than 35 years nor more than
life.” 18 U.S.C. § 2251(e). The facts underlying Matthews’s prior convictions for
sexual offenses did not have to be charged in the indictment or proved to the jury.
See Harris v. United States, 536 U.S. 545, 568, 122 S. Ct. 2406, 2420 (2002).
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B. Matthews’s Sentence Is Reasonable.
Matthews argues that his sentence of imprisonment for life was
substantively unreasonable because it was longer than necessary to fulfill the
purposes of sentencing. A sentence free of “significant procedural error” is
subject to deferential review for an abuse of discretion. Gall, 128 S. Ct. at 597.
Although the Sentencing Guidelines serve as a “starting point and the initial
benchmark,” the district court has the authority, based on its “individualized
assessment” of the facts, to weigh the factors listed in section 3553(a) and fashion
a sentence outside the guidelines. Id. at 596–97. As long as the district court
provides “justification . . . sufficiently compelling to support the degree of the
variance” from the guidelines range, id. at 597, and the term imposed adequately
achieves sentencing objectives, see United States v. Pugh, 515 F.3d 1179 (11th
Cir. 2008), Gall requires that we affirm.
The district court did not abuse its discretion by imposing a sentence of
imprisonment for life. The district court considered the § 3553(a) factors,
including the statutory purposes of sentencing and Matthews’s history as an
habitual sexual predator, and reasonably determined that a sentence of
imprisonment for life was sufficient but not greater than necessary. Matthews’s
sentence is reasonable.
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C. The District Court Did Not Have to Provide Notice to Sentence Matthews
Outside the Guidelines.
Matthews contends that the district court was required to provide him with
notice that it might vary above the advisory guideline range. This argument fails
because we have ruled that the notice requirement of Federal Rule of Criminal
Procedure 32(h) does not apply to a variance from the guidelines. United States v
Irizarry, 458 F.3d 1208, 1212 (11th Cir. 2006), cert. granted, 128 S. Ct. 828, 169
L.Ed.2d 625 (2008). Although Irizarry is pending review in the Supreme Court, it
is still controlling precedent. See United States v. Machado, 804 F.2d 1537, 1543
(11th Cir. 1986). The district court did not clearly err by failing to give Matthews
notice.
IV. CONCLUSION
Matthews’s sentence is AFFIRMED.
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