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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Nos. 01-1808 / 01-2920

UNITED STATES OF AMERICA

v.

MICHAEL MATTHEWS,

Appellant

Appeal from the United States District Co urt for the Eastern District of Pennsylvani a (D.C. Criminal Action Nos. 00-cr-00155-2/004 51-1) District Judge: Honorable Curtis Joyner

Submitted Under Third Circuit LAR 34.1(a ) January 15, 2002

Before: ALITO and ROTH, Circuit Judges SCHWARZER*, District Judge

(Memorandum Opinion filed February 8, 200 2 )

* The Honorable William W Schwarzer, Senior Di strict Judge for the Northern District of California, sitting by designation.

MEMORANDUM OPINION

ROTH, Circuit Judge:

Michael Matthews appeals from a final judgment of sentence by the United StatesDistrict Court for the Eastern District of Pennsylv ania. He was sentenced

to a total of thirty-four years incarceration after he pled guilt y to armed bank robbery, attempted armed bank robbery and to two counts of using, carr ying and brandishing a firearm during and in relation to a crime of violence, in v iolation of 18 U.S.C.  924(c). Matthews raises two issues in his appeal: (1) the District Court erred in imposing the mandated enhanced sentence under  924(c)(1)(C) for a second or subsequent conviction and (2) the District Court erred in fail ing to examine the factors set forth in U.S.S.G.  5K1.1 before determining the extent of the downwar d departure based on Matthews' cooperation. We have jurisdiction pursuant to 28 U.S.C.  1291 and 18 U.S.C.  3742(a). The standard of review is plain error because at senten cing Matthews did not object either to the enhanced sentence or to the extent of the downw ard departure. I. FACTS Matthews took part in the armed robberies and attempted armed robberies of four banks. He was charged in a twelve-count indictment . On August 17, 2000, he pled guilty to seven counts, including two violations of  924(c). As a result, on March 21, 2001, the District Court sentenced Matthews as follows: (1) Seven years on Count One of Cri minal Action No. 99-81 and Counts One, Five, Eight. and Eleven of Criminal Actio n No. 00-155-2, to run concurrently to each other; (2) Seven years on Count Two of Cri minal Action No. 99-81 pursuant to  924(c), to run consecutively to all other counts and; (3) Twenty years on Count Five of C riminal Action No. 00- 155-2 pursuant to  924(c), to run consecutively to all other counts.

The total sentence imposed was thirty-four yea rs incarceration. Because the District Court granted the government's 5K1.1 motio n, the period of incarceration was approximately 12 years below the minimum sentence i ndicated by the Sentencing Guidelines for the offenses of conviction. Pursuan t to 18 U.S.C.  3553(e), the downward departure includes a five year reduction o f the  924(c) mandatory minimum sentence for a second or subsequent offense. DISCUSSIONThe first issue before us is whether the Distr ict Court erred in

imposing the mandatory enhanced sentence for Matthews' second vi olation of 18 U.S.C.  924(c). The statute provides: (C) In the case of a second or subsequent conviction under this subsection, the person shall (i) be sentenced to a term of i mprisonment of not less than 25

years

Matthews argues that, since his guilty pleas w ere entered simultaneously,  924(c) cannot apply. First, he contends that he simply di d not have two convictions, only one, because he pled guilty to all offenses at the same time in one plea. Second, he argues that even if he did have more than one conviction of vio lating  924(c), neither was "second" or "subsequent" again because he pled simultane ously to both offenses. We do not

agree. The Supreme Court's decision in Deal v. United States, 508 U.S. 129 (1993), disposes of both contentions. In Deal, the defenda nt was convicted by a jury of six separate bank robberies and six counts of carrying and using a firearm during a crime of violence. Deal argued that his convictions on the second through sixth firearm counts were not "second or subsequent convictions" because Deal was convicted of the  924 offenses during the same trial. Id. at 132. The Court stated that it is unambiguous that t he word "conviction" refers to the finding of guilt by a judge or jury. Id. The phra se "second or subsequent conviction" does not mean that a defendant must first be convic ted of a crime and then, later, of a second crime. The Court interpreted the statute to mean simply one "conviction after the first conviction." Id. at 135. It follows from Deal that timing does not matt er. It does not matter whether a defendant is tried by a jury or pleads guilty and i t does not matter whether he pleads simultaneously or separately to multiple offenses, he is convicted of all the offenses. Each guilty plea is a separate conviction, one foll owing after the other, no matter how many times the word "guilty" is uttered. It is evident from the opinion of the Court in Deal and from the text of 18 U.S.C. 924(c) that if a defendant is convicted by plea, by jury or by judge

of more than one of the relevant charges under 18 U.S.C.  924(c), whether or not those convictions occur at the same time, he must receive the mandatory en hanced term of imprisonment. See also United States v. Casiano, 113 F. 3d 420 (3d Ci r. 1997) (upholding mandatory consecutive sentences where  924(c) violations charged in a single indictment during same course of criminal activity). For the above reasons, the District Court did not err, much less clearly err, in imposing the mandatory enhanced sentence. The second issue before us is whether the Dist rict Court erred in departing downward in the sentence imposed. Matthews argues that the district court failed to examine the factors set forth in U.S.S.G.  5K1.1, before determining the extent of the downward departure based on Matthews' cooperation. Matthews contends that the District Court did not follow the requirements subs equently set out in United States v. Torres, 251 F.3d 138 (3d Cir. 2001), that it make e xplicit findings justifying the departure. Under Torres, a sentencing court mus t indicate its consideration of the  5K1.1 factors as well as any factors outside those listed in  5K1.1. However, Torres only urges, but does not require, sentencing judges to m ake specific findings regarding each factor. Here, the District Judge was made well aware o f Matthews' cooperation from the Sentencing Memorandum and Motions for Departure Pur suant to Sentencing Guideline  5K1.1 and 18 U.S.C.  3553(e), which was filed by the government prior t o sentencing. In addition, at the commencement of Matthews' sente ncing hearing, the government recited for the District Court the grounds for the departure motions. The court heard this evidence and stated before imposing sentence, "Mr. Matthews, I want you to know, sir, that I've given you a substantial reduction in your sentence, pursuant to the government's  5K1.1 motion and 3553(e)." We conclude from the above that the District J udge did adequately consider the  5K1.1 factors. He, therefore, met the Torres requi rements and did not err, much less commit plain error.For the above reasons, we will affirm the judg ement of the District

Court.

TO THE CLERK:

Please file the foregoing Memorandum Opinion.

By the Court,

/s/ Jane R. Roth Circuit Judge