United States v. Matthews ( 2023 )

21-2503
United States v. Matthews
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM-
MARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FED-
ERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
9th day of January, two thousand twenty-three.
Present:
DEBRA ANN LIVINGSTON,
Chief Judge,
BARRINGTON D. PARKER,
ALISON J. NATHAN,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 21-2503
DEANDRA BLOSCHICHAK, AKA Tash, AKA Tosh,
Defendant,
JOHN MATTHEWS, AKA Jay, AKA Gotti,
Defendant-Appellant.
_____________________________________
For Appellee: NICHOLAS J. PINTO, New York, NY.
For Defendant-Appellant: NATASHA M. FREISMUTH and Sandra S. Glover, on the
brief, Assistant U.S. Attorneys (for Vanessa Roberts
Avery, United State Attorney District of Connecticut).
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Appeal from a judgment of the United States District Court for the District of Connecticut
(Thompson, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant-Appellant John Matthews appeals from his judgment of conviction in the United
States District Court for the District of Connecticut for conspiracy to distribute and to possess with
the intent to distribute fentanyl and heroin, in violation of 21 U.S.C. §§ 846, 841(a)(1), and
841(b)(1)(C). The district court sentenced Matthews to 136 months’ imprisonment and four
years’ supervised release. On appeal, Matthews challenges the reasonableness of his sentence.
We assume the parties’ familiarity with the underlying facts, the procedural history of the case,
and the issues on appeal.
“We review sentencing decisions for procedural and substantive reasonableness.” United
States v. Eaglin, 913 F.3d 88, 94 (2d Cir. 2019). Our review of a sentence is “akin to review for
abuse of discretion, under which we consider whether the sentencing judge exceeded the bounds
of allowable discretion, committed an error of law in the course of exercising discretion, or made
a clearly erroneous finding of fact.” United States v. Corsey, 723 F.3d 366, 374 (2d Cir. 2013)
(citation omitted). We find substantive error “only in exceptional cases where the trial court’s
decision ‘cannot be located within the range of permissible decisions.’” United States v. Cavera,
550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting United States v. Rigas, 490 F.3d 208, 238 (2d
Cir. 2007)). We find procedural error where, inter alia, the district court “makes a mistake in its
Guidelines calculation,” “does not consider the [18 U.S.C.] § 3553(a) factors,” or “fails adequately
to explain its chosen sentence.” Id. at 190.
Matthews argues that the district committed procedural error by failing to consider the
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harsh conditions of his incarceration during the COVID-19 pandemic as a factor supporting a
lower sentence. We are unpersuaded. “[W]e entertain a strong presumption that the sentencing
judge has considered all arguments properly presented to her [or him], unless the record clearly
suggests otherwise.” United States v. Fernandez, 443 F.3d 19, 29 (2d Cir. 2006), abrogated on
other grounds by Rita v. United States, 551 U.S. 338, 346–51 (2007). That “presumption is es-
pecially forceful when, as was the case here, the sentencing judge makes abundantly clear that she
[or he] has read the relevant submissions and . . . considered the § 3553(a) factors.” Id. Mat-
thews has failed to identify anything in the record to rebut this presumption. We thus decline to
find procedural error on this ground.
Matthews’s contention that the district court placed undue weight on factors already con-
sidered by the Guidelines—namely his criminal history and his flight from the police at the time
of his arrest—is similarly unpersuasive. The court effectively imposed a sentence of 168 months’
imprisonment, accounting for Matthews’s 32 months of pretrial detention. As the district court
noted, this was a sentence “in the upper part of the [Guidelines] range” of 140 to 175 months, but
“not at the very top of the range.” App’x 106. We have held that “[w]hen a factor is already
included in the calculation of the Guidelines sentencing range, a judge” may “rely on that same
factor to impose a sentence above or below the range” as long as they “articulate specifically the
reasons that this particular defendant's situation is different from the ordinary situation covered by
the Guidelines calculation.” United States v. Sindima, 488 F.3d 81, 87 (2d Cir. 2007) (alteration
omitted). It thus follows, a fortiori, that a court may rely on such factors in imposing a sentence
at the upper end of the Guidelines range. And, here, the district court clearly articulated its rea-
sons for concluding that Matthews’s past conduct militated in favor of a longer sentence, noting
Matthew’s particularly concerning pattern of past conduct and concluding that he is “an individual
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from whom society needs to be protected.” App’x 105. Accordingly, we do not think that the
district court procedurally erred in relying on these factors in imposing its sentence.
Finally, to the extent Matthews argues that his sentence is substantively unreasonable, we
disagree. Although we have declined to adopt any presumption that a within-Guidelines sentence
is reasonable, we have held that “[i]n the overwhelming majority of cases, a Guidelines sentence
will fall comfortably within the broad range of sentences that would be reasonable in the particular
circumstances.” United States v. Bryant, 976 F.3d 165, 181 (2d Cir. 2020) (quoting Fernandez,
443 F.3d at 27). This is such a case. The district court’s 136-month sentence, which falls below
the top of the Guidelines range even accounting for Matthews’s additional 32 months of pretrial
detention, is not “shockingly high” in light of the seriousness of his offense, his pattern of similar
behavior, and the other factors cited by the district court. United States v. Rigas, 583 F.3d 108,
123 (2d Cir. 2009). There is thus no basis upon which to find the sentence substantively unrea-
sonable. 1
* * *
We have considered Matthews’s remaining arguments and conclude they lack merit. We
therefore AFFIRM the district court’s judgment.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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Because we hold that Matthews’s challenge to the substantive reasonableness of his sentence
fails on the merits, we need not consider the government’s contention that Matthews waived any argument
that a sentence below 175 months is substantively unreasonable.
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