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The Honorable Linda R. Reade, United States District Judge for the Northern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-4364

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Richard Mathis, *

*

Appellant. *

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Submitted: June 14, 2006

Filed: June 29, 2006

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Before BYE, LAY, and RILEY, Circuit Judges.

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BYE, Circuit Judge.

Richard Mathis pleaded guilty to sexual exploitation of a child in violation of

18 U.S.C. § 2251(a), and the district court1

 sentenced him to 214 months of

imprisonment. He appeals, asserting the district court imposed an unreasonable

sentence in violation of 18 U.S.C. §§ 3553(a) and 3582(a) by imposing the sentence

consecutive to an undischarged state sentence. Because the sentence is not

unreasonable and the district court correctly applied the factors under United States

Sentencing Guidelines (U.S.S.G.) § 5G1.3 and 18 U.S.C. § 3553(a), we affirm.
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North Carolina v. Alford, 400 U.S. 25, 37 (1970) (allowing a defendant to

plead guilty without admitting guilt by acknowledging the government’s evidence is

sufficient to obtain a conviction).

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I

 Mathis was living with a woman and T.A., her ten year old daughter from a

prior relationship. In January 2004, he took nine digital photographs of the girl in

sexually suggestive or explicit poses. The photographs depicted, among other things,

T.A. performing oral sex on Mathis. Other photographs depicted the girl posing in a

red dress and her mother’s underwear. The photographs, which were stored on disk,

were subsequently discovered by T.A.’s mother in Mathis’s toolbox in the garage. He

was charged with violating Iowa Code § 709.3, Sexual Abuse in the second degree.

After the state charge, a former girlfriend of Mathis came forward and claimed

her daughter, B.B., had been sexually abused by him as well. Another state charge

was filed on the basis of this allegation, and he pleaded guilty to sexually abusing T.A.

He entered an Alford2

 plea on four counts of sexually abusing B.B. The state judge

sentenced him to twenty-five years in both cases and ordered the sentences to be

served concurrently with each other. The state court also recommended his sentences

be served concurrently with any subsequently imposed federal sentence. 

On November 17, 2004, Mathis was indicted by a federal grand jury for sexual

exploitation of T.A. in violation of 18 U.S.C. § 2251(a). While admitting his four

state convictions for sexually abusing B.B., he denied committing the crimes and

argued the district court should not consider the facts underlying the B.B. convictions

as relevant conduct for federal sentencing purposes because he entered an Alford plea

to these charges. The district court sentenced him to 214 months of imprisonment to

be served concurrently with the undischarged state sentence related to the T.A.

offense, and consecutively to the undischarged state sentence related to the B.B.

offense. The district court also imposed a term of supervised release for fifteen years.
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United States v. Booker, 543 U.S. 220 (2005). 

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Mathis argues the district court did actually consider the conduct underlying

his conviction for exploiting B.B. However, the district court stated it did not

consider the conduct and Mathis provides nothing to substantiate his claim beside

conjecture. Accordingly, we conclude his argument to be without merit. 

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II

We review a district court’s interpretation and application of the sentencing

guidelines de novo. United States v. Porter, 439 F.3d 845, 848 (8th Cir. 2005). PostBooker,

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 we review the ultimate sentence imposed by the district court for

reasonableness, which is akin to our traditional abuse-of-discretion review. United

States v. Shafer, 438 F.3d 1225, 1227 (8th Cir. 2006). 

Section 5G1.3 addresses whether a sentence should run concurrent with or

consecutive to an undischarged prison term. According to § 5G1.3(b), a sentence

shall run concurrently to an undischarged term of imprisonment if the offense giving

rise to the state conviction was relevant conduct and the basis for an increase in the

offense level for the charged offense. While Mathis was sentenced to two state

offenses, only the conduct underlying his state court conviction for sexually exploiting

T.A. is the subject of the federal charges. The Supreme Court described § 5G1.3(b)

as part of the “safeguards built into the Sentencing Guidelines” to protect a defendant

“against having the length of his sentence multiplied by duplicative consideration of

the same criminal conduct.” Witte v. United States, 515 U.S. 389, 405 (1995). The

district court thus correctly applied § 5G1.3(b) with regard to the state court

conviction for exploiting T.A., ordering the two sentences to run concurrently.

The district court did not consider Mathis’s state court conviction for exploiting

B.B. nor the underlying conduct in computing his total offense level.4

 The district

court applied § 5G1.3(c) to make the federal sentence consecutive with his
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undischarged state court sentence for exploiting B.B. Section 5G1.3(c) provides the

court wide discretion to order a federal sentence to run consecutively to an

undischarged state offense. United States v. Atteberry, 447 F.3d 562, 564 (8th Cir.

2006). 

According to Application Note 3(A) to U.S.S.G. § 5G1.3, the objective of

imposing a sentence concurrently, partially concurrently, or consecutively under

§ 5G1.3(c) is to “achieve a reasonable incremental punishment for the instant offense

and avoid unwarranted disparities.” The sentencing guidelines create a procedure for

determining the “reasonable incremental punishment.” First, the court should

consider the statutory factors under 18 U.S.C. § 3584 (referencing 18 U.S.C.

§ 3553(a)). U.S.S.G. § 5G1.3, cmt. n.3. The § 3553(a) factors also guide the

appellate courts in determining whether the imposed sentence was reasonable. United

States v. Yahnke, 395 F.3d 823, 824 (8th Cir. 2005). Second, the court should

consider the type and length of the prior undischarged sentence. U.S.S.G. § 5G1.3,

cmt. n.3. Third, the court should consider the time served on the undischarged

sentence and the time likely to be served before release. Id. The fourth consideration

is whether the prior undischarged sentence may have been imposed in state court

rather than federal court, or at a different time before the same or different federal

court. Id. Finally, the district court should consider any other circumstance relevant

to the determination of an appropriate sentence for the instant offense. Id. The district

court considered these factors and used its discretion to impose a consecutive

sentence. This was not an abuse of discretion. See Shafer, 438 F.3d at 1227. 

Mathis does not argue the length of his sentence, which was within the advisory

guideline range, was unreasonable. Rather, he contends imposition of a consecutive

sentence is unreasonable because it was greater than necessary to satisfy 18 U.S.C. §

3553(a). When applying the factors under 18 U.S.C. § 3553(a), a district court is not

required to recite categorically each statutory factor, as long as it is clear the factors

were considered. United States v. Walker, 439 F.3d 890, 892 (8th Cir. 2006). Here,
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as in Walker, the district court acknowledged it was required to consider the § 3553(a)

factors and confirmed it did consider them. 

Mathis claims the consecutive federal sentence runs contrary to the state court

judge’s intent to have all sentences run concurrently. Despite Mathis labeling this a

“slap in the face” to the state court judge, the district court was well within its

discretion to impose a consecutive sentence, regardless of the state court’s sentence.

See Atteberry, 447 F.3d at 564.

We conclude the district court did not act unreasonably by imposing a

consecutive federal sentence to an undischarged state sentence. The district court

correctly applied the § 3553(a) factors and U.S.S.G. § 5G1.3. 

III

The district court’s judgment is affirmed. 

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