2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-8-2002

USA v. Matthews

Precedential or Non-Precedential:

Docket 1-1808

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Recommended Citation

"USA v. Matthews" (2002). 2002 Decisions. Paper 111.

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/111
 NOT PRECEDENTIAL 

 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 Court 

 for the Eastern District of Pennsylvania 

 (D.C. Criminal Action Nos. 00-cr-00155-2/00451-1) 

 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, 2002 ) 

 

 * The Honorable William W Schwarzer, Senior District 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 States 
District Court for the Eastern District of Pennsylvania. He was sentenced 

to a total of 

thirty-four years incarceration after he pled guilty to armed bank 

robbery, attempted 

armed bank robbery and to two counts of using, carrying and brandishing a 

firearm 

during and in relation to a crime of violence, in violation 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 failing 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. 

 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 sentencing Matthews did not 

object either to 

the enhanced sentence or to the extent of the downward 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 Criminal Action No. 99-81 

and Counts One, 

 Five, Eight. and Eleven of Criminal Action No. 00-155-2, to run 

 concurrently to each other; 

 (2) Seven years on Count Two of Criminal Action No. 99-81 

pursuant to 

 924(c), to run consecutively to all other counts and; 

 (3) Twenty years on Count Five of Criminal Action No. 00-

155-2 pursuant to 

 924(c), to run consecutively to all other counts. 

 The total sentence imposed was thirty-four years incarceration. 

Because the 

District Court granted the government's 5K1.1 motion, the period of 

incarceration was 

approximately 12 years below the minimum sentence indicated by the 

Sentencing 

Guidelines for the offenses of conviction. Pursuant to 18 U.S.C. 

3553(e), the 

downward departure includes a five year reduction of the  924(c) 

mandatory minimum 

sentence for a second or subsequent offense. 

 DISCUSSION 

 
 The first issue before us is whether the District Court erred in 

imposing the 

mandatory enhanced sentence for Matthews' second violation 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 imprisonment of not less 

than 25 

 years 

 Matthews argues that, since his guilty pleas were entered 

simultaneously,  924(c) 

cannot apply. First, he contends that he simply did 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 violating  924(c), 

neither was "second" 

or "subsequent" again because he pled simultaneously 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 defendant 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 the word "conviction" 

refers to the 

finding of guilt by a judge or jury. Id. The phrase "second or 

subsequent conviction" 

does not mean that a defendant must first be convicted 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 matter. It does not matter 

whether a 

defendant is tried by a jury or pleads guilty and it 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 following 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 enhanced term of 

imprisonment. See 

also United States v. Casiano, 113 F. 3d 420 (3d Cir. 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 District 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 subsequently set out in 

United States v. 

Torres, 251 F.3d 138 (3d Cir. 2001), that it make explicit findings 

justifying the 

departure. Under Torres, a sentencing court must 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 make specific findings 

regarding each 

factor. 

 Here, the District Judge was made well aware of Matthews' cooperation 

from the 

Sentencing Memorandum and Motions for Departure Pursuant to Sentencing 

Guideline 

5K1.1 and 18 U.S.C.  3553(e), which was filed by the government prior to 

sentencing. 

In addition, at the commencement of Matthews' sentencing 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 Judge did adequately 

consider the 

5K1.1 factors. He, therefore, met the Torres requirements and did not 

err, much less 

commit plain error. 
 For the above reasons, we will affirm the judgement of the District 

Court. 

 

TO THE CLERK: 

 Please file the foregoing Memorandum Opinion. 

 By the Court, 

 /s/ Jane R. Roth 

 Circuit Judge