NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 13a0624n.06 No. 11-2392 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v.

RI CARDO MATHEWS, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF MI CHI GAN

Be fore : SI L ER, MOORE, and ROGERS, Circuit J udg es. SILE R , Circuit J udg e. Def endant Ricardo Mathews appea ls the sentenc e im p o s e d f o ll o w in g his g uilty plea to possession with intent to distribute coca ine base. He challeng es his withinGuidelines sente n c e a s p r ocedur ally and substantively unrea sonable. For the rea sons set forth below, we AF FI RM the judgment of the district court. I

. I n 2011, Mathews pled g uilty to possession with intent to distribute an unspecifie d quantity of coca ine base in violation of 21 U.S.C. § 841(a) (1) and (b)( 1)(C). The prese ntence repor t (PSR) calc ulated Mat h ew s’s total offe nse level at 25 and criminal history cate g ory at V, and advised a Sentencing Guidelines rang e of 100 to 125 months in prison. Mathews o b j ec t ed t o the PSR calc ulations and moved for a below-G uidelines sentenc e under the 18 U.S.C. § 3553(a) fac tors. He arg ued that his criminal history cate g ory was over- repr esente d beca use he was sentenc ed in excessNo. 11-2392

United States v. Mathe ws of six ty day s for two marijuana -re lated convictions o n l y b eca use he failed to appea

r at court hear ings. Be cause his marijuana sentenc es wer e aty pical, Mathews argued that they sh o u ld not count toward his criminal history point total pursuant to USSG § 4A1.1(b) and should instead be counted as a pr ior sentenc e under

six ty day s in leng th pursuant to § 4A1.1(c ). Be fore discussing the mitigation fact o rs, the di strict court stated: “I have considere d all of the defendant’s requests for a lower sentenc e made here in court to day , as well as t he defenda nt’s
sentenc ing memorandum and reque st for a varia n ce , . . . .” I t also acknow ledg ed Mathews’ s arg ument on his criminal history point total but explained that his absenc e at court hear ings “doesn’ t cut in his favor.” The district cour t sentence d Mathews to 120 months of imprisonment and three y ear s of supervise d rele ase. I I

. Mathews conten ds that his sentenc e is proce durally unrea sonable beca use the sentenc ing judge misunderstood and failed to consider at mitigation that his criminal history cate g ory was overrepr esente d, and beca

use the district court improperly eli ci t ed information from Mathews at allocution about rele vant conduct. Since Mathews conce des that he did not prese rve his proce dural arg uments, see United States v. Bostic , 371 F.3d 865, 871 (6th Cir. 2004) , we revie w his c laims of proce dural unrea sonablene ss for plain err or. United S tates v. Vonner , 516 F.3d 382, 385–86 (6th Cir. 2008). A sentenc e can be proce durally unrea sonable if the district court failed to consider a rele vant § 3553(a) fac tor. United States v. McBride , 434 F.3d 470, 4 7 5 n . 3 (6 th Cir. 2006) (citing United States v. W

ebb , 403 F.3d 373, 383–85 ( 6th Cir. 2005)).

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United States v. Mathe ws A. I n this case , the district court declined to vary from the advisory Guidelines rang e not beca use it failed to understand or consider Mathews’ s marijuana -possession-re lated sentenc es, but beca use it deter mined that sufficie nt evidenc e supported his criminal history cate g ory of V. I t discussed Mathews’ s criminal history , including four prior violations of the Controlled Substance Act, the fac t that Mathews failed to complete probation twice, and Mathews’ s prior involvement in the state court sy stem. I n discussing Mathews’ s prior co n v i ct i o n s, the district court addre ssed his arguments reg arding his criminal history and reje cted their merits. See United States v. Chiolo , 643 F.3d 177, 184 (6th Cir. 2011)

. I ts r ationale “re flec ts [ its] considere d reje ction of those arguments, making it

unnece ssary fo r t h e court to expressly confirm this throug h mag ic words like, ‘I have considere d [Mathews’s] arguments and I reje ct them.’” See id

. Moreove r, Mathews’ s over- repr esenta tion arg ument is conce ptually straig htforwa rd. See United States v. Simmons , 587 F.3d 348, 361 (6th Cir. 2009). The district c ourt offe red de tailed, substantive reasoning , expli citly mentioned Mathew s’s arg ument conce rning his criminal history cate g ory , an d addre ssed and reje cted the argument by logic al implication. “When a district court adequately explains why it imposed a particula r sentenc e, espec ially one within the advisory Guidelines rang e, we do not further require that it ex haustively explain the obverse – why an alt er n ati ve sentenc e was not selec ted – in ever y instance.” United States v. Gale , 468 F.3d 929, 940 (6th Cir. 2006). We are satisfied that the district court considere d Mathews’ s “ar g uments and [had] a rea soned basis for exercising [i ts] own leg al decisionmaking authority .” Rita v. United States , 551 U.S. 338, 356 (2007); United States v. Richardson , 437 F.3d 550, 554 (6th Cir. 2006). - 3 -No. 11-2392

United States v. Mathe ws B. Mathews next arg

ues that the district cou rt violated his Fifth Amendment rig hts when it elicited information ab o ut r e le v a n t conduct and alleg edly used the information to justify its sentenc e. The district court prope rly permitted Mathew s the opportunity to make a sta tement to mitigate his
sentenc e, and Mathews opted to allocute. Fe d. R. Crim. P. 32(i)(4) (A)( ii); United States v. Thomas , 875 F.2d 559, 562–63 (6th Cir. 1989). During allocution, Mathews admitted to “hustling and selling drug s.” He specific ally contests the district court’s question to him about “s el l i ng ” cra ck coca ine when Mathews’ s plea ag ree ment admits to possession with intent t o distribute coca ine, not to distribut ing

coca ine. A defe ndant’s g uilty plea does not waive the Fifth Amendment privileg e ag ainst selfincrimination in the sentenc ing phase of the case . Mitchell v. United States , 526 U.S. 314, 322–24 (1999). Whil e the Fifth Amendment privileg e ag ainst self-inc rimination applies at allocution, the privileg e protec ts only ag ainst compe lled self-inc rimination. Baxter v . Palmigiano , 425 U.S. 308, 316 (1976). He does not argue that his allocution was involuntary , unknowing , or unintelligent. Moreove r, the nature of the information share d by Mathews is not incriminating , beca use the court did not inquire about fac tors which would impact the Guidelines rang e, such as the amount of drug s Mathews sold or his role in sel l i n g t h e d rugs. I nsofar as the admission that Mathews sold drug s could be c onstrued as incriminating , he admitted that fac t pr ior to the district court’s que stioning. Finally , the conduct on which his sentenc e is based is conduct which Mathews admitted in his plea ag ree ment. By pleading g uilty , Mathews “put[] nothing in dispute reg arding the essentials of [hi s]

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United States v. Mathe ws offe nse.” Mitchell , 526 U.S. at 3 23. Mathews’ s statements during the sentenc ing hear ing only further support the cour

t’s rationale in supporting its sentenc e and w ere not essential to it.

I I I

. M a th e w s n e xt c h a ll eng es his sentenc e for substantive rea sonablene ss, arguing that th e d is tr ic t court unrea sonably weig hed sever al § 3553(a) fac tors. See United States v. Conatser , 514 F.3d 508, 520 (6th Cir. 2008)

. Specifica lly , he argues that the district court assig ned unrea sonable weig ht to (1) the likelihood that he would continue to e ng ag e in c riminal behavior ; ( 2) his ha rm to unknow n victims, i.e., family members of drug users; (3) the statutory maxi mum sentenc e; and (4) his criminal history cate g ory of V. We r eview these arguments under the abuse of discre tion standard. United States v. Battaglia , 624 F.3d 348, 350 ( 6th Cir. 2010). A p r o p e r ly c a lc u lated advisory Guidelines rang e repr esents the starting point for substantiverea sonablene ss revie w beca use it is one of the § 3553(a) fac tors and beca use the Guidelines purport to take into considera

tion most, if not all, of the other § 3553(a) fac tors. Gall v. United States , 552 U.S. 38, 49 (2007). The sentenc ing court m u s t co n s i der all of the rele vant § 3553(a) fac tors and impose “a sentenc e of sufficie nt but not g reater leng th than nece ssary ” to comply with the purposes of § 3553(a ). Vonner , 516 F.3d at 397. Sentence s that fall within the a pplicable Guide lines rang e

are presumed to be rea sonable, a lthough the pr esumption is rebuttable. Id . at 389. Mathews’ s first two arg

uments rely on statements made by the district court that wer e taken out of context. Although Mathew s contends that the district c ourt was specula ting as to his futur e behavior , it is clea

r from the record that the di strict court was simply caut i o n i n g M at h ews that he would rec eive a signific ant sentenc e if he wer e to e ng ag e in c riminal activity ag ain. Simi larly , the - 5 -No. 11-2392

United States v. Mathe ws district court did not rely on any impact to victims in sentenc ing Mathews. Rather, the district court explained why it was reje cti n g Mathews’ s argument that he sold drug s to support his family

. Fur ther, counsel prese nt at sentenc ing was under a duty to preve nt the court from any misinformation

or prejudice by the court by noting an objection. Fe d. R. Crim. P. 52(b); Vonner , 516 F.3d at 385. No objection appea

rs on the rec ord. Wit h respe ct to M athews’ s third argument, the district court may consider the maxi mum penalty for Mathews’ s offe nse when weig hing the § 3553(a) fac tors, see 18 U.S.C. § 3553(a) (3)- (4), but it clearly did not rely exclusively upon the maxi mum statutory sentenc e. The rec ord ref

lects the district court’s consideration of the “widest po s s ible brea dth of information about [Mathews]” and the district court’s effort to “ensur e[] that the punishment

. . . suit[ s] not mere ly the offe nse but [Mathews].” W asman v. United States , 468 U.S. 559, 564 (1984). L astly , Mathews argues for a downwar d depar ture from the Guidelines beca use his criminal history
cate g ory “substantially over- repr esents the seriousness o f [hi s] criminal history ,” citing USSG § 4A1.3(b)( 1). Even if Mathews would have rec eive d sentenc es lasting less than six ty -day s for his marijuana possession convictions, thus amounting to a total of ten criminal history points instead of twelve, he would rema in a categ ory V offe nder. See USSG § 4A1.1(b), (c ); USSG § 5A. Her e, the district court considere d the applicable statutory and Gui d el i nes fac tors when deciding its withi n-Guidelines se ntence

. See U nited States v. Brooks , 628 F.3d 791, 796 ( 6th Cir. 2011). I ts de cision rested in la rg e part on Mathe ws’s cr iminal history and the need for deter renc e, but the court did not unrea sonably weig h those fac tors. AFF I RMED.

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