17-3520
United States v. Matias

                                UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal 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 6th day of February, two thousand twenty.

PRESENT:            JOSÉ A. CABRANES,
                    ROBERT D. SACK,
                    RAYMOND J. LOHIER, JR.,
                                 Circuit Judges.


UNITED STATES OF AMERICA,

                           Appellee,                       17-3520

                           v.

LENNY MATIAS,

                           Defendant-Appellant.


FOR APPELLEE:                                          J. MATTHEW HAGGANS (Susan Corkery,
                                                       on the brief), Assistant United States
                                                       Attorneys, for Richard P. Donoghue,
                                                       United States Attorney for the Eastern
                                                       District of New York, Brooklyn, NY.

FOR DEFENDANT-APPELLANT:                               JEREMY GORDON, Jeremy Gordon, PLLC,
                                                       Mansfield, Texas.

       Appeal from an October 25, 2017 judgment of the United States District Court for the
Eastern District of New York (Sandra J. Feuerstein, Judge).

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     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

        In 2017, Defendant-Appellant Lenny Matias (“Matias”) pleaded guilty to possession with
intent to distribute and distribution of twenty-eight grams or more of cocaine base, and a substance
containing cocaine, in violation of 21 U.S.C §§ 841(a)(1), 841(b)(1)(B)(iii) and 841(b)(1)(C). For this
conduct, he was sentenced principally to 235 months of imprisonment. At the same time, Matias
pleaded guilty to violating the terms of his supervised release as set forth in his conviction from
2014 for conspiring to distribute and possess with intent to distribute at least one kilogram of heroin
and five kilograms of cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). For this conduct, he
was sentenced to 60 months of imprisonment. The two sentences were imposed consecutively.

        On appeal, Matias challenges the procedural reasonableness of the District Court’s decision
to make the sentences consecutive. Specifically, Matias argues that his sentence should be set aside
because the District Court made the sentences consecutive under the erroneous impression that it
had to do so.

        We assume the parties’ familiarity with the underlying facts, the procedural history of the
case, and the issues on appeal.

        “Procedural error occurs when the district court (1) fails to calculate the Guidelines range;
(2) is mistaken in the Guidelines calculation; (3) treats the Guidelines as mandatory; (4) does not give
proper consideration to the § 3553(a) factors; (5) makes clearly erroneous factual findings; (6) does
not adequately explain the sentence imposed; or (7) deviates from the Guidelines range without
explanation.” United States v. Johnson, 

, 51 (2d Cir. 2009).

          Ordinarily, we review the reasonableness of a sentence under the abuse of discretion
standard. United States v. Sampson, 

, 311 (2d Cir. 2018). However, when the appellant
fails to object to alleged error in the District Court, we review only for plain error. United States v.
Villafuerte, 

, 208 (2d Cir. 2007). Here, both parties agree that Matias failed to object to
the alleged procedural unreasonableness of his sentencing during the relevant District Court
proceedings. Therefore, the plain error standard clearly applies. “Under the plain error standard, an
appellant must demonstrate that (1) there is an error; (2) the error is clear or obvious, rather than
subject to reasonable dispute; (3) the error affected the appellant’s substantial rights; and (4) the
error seriously affects the fairness, integrity or public reputation of judicial proceedings.” United
States v. Balde, 

, 96 (2d Cir. 2019) (quotations marks omitted).

       Applying that standard here, we do not find that the District Court plainly erred. Matias
focuses his appeal on a particular exchange between the Government and the District Court during
sentencing. As he correctly states, the Government did argue to the Court that “the law requires that

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any sentence that you give [for violating supervised release] . . . be served consecutive to the criminal
conviction.” Matias App. 22. And as he also correctly states, and the Government now concedes,
the Government, in making this argument, got the law wrong. Because the United States Sentencing
Guidelines are not mandatory, no such requirement for consecutive sentences exists. See United States
v. Booker, 

(2005).

        Nonetheless, Matias incorrectly imputes the Government’s error to the District Court. True,
the District Court, in responding to the Government, did not issue a definitive correction. But nor
did the District Court suggest that it agreed with the Government’s contention that the sentences
must be served consecutively. Indeed, in replying to the Government, the District Court noted that
the consecutive sentence for 60 months was the same as what “probation [was] recommending”—
an acknowledgement that any proposed sentence was merely a recommendation because the ultimate
sentence was not commanded by law, but rather left up to the sound discretion of the District
Court. Matias App. 22-23.

        Other statements throughout the course of the District Court’s proceedings indicate that it
did not suffer from the same misapprehension as the Government. During the plea proceeding, for
example, the Court had also referred to the Violation of Supervised Release Report, and stated that
the report was “recommending five years imprisonment consecutive to any sentence under the new
offense.” Gov. App. 29 (emphasis added). When defense counsel then asked that sentencing for the
new conviction and the violation of supervised release occur simultaneously, the Court responded
by ensuring that defense counsel and defendant “underst[ood] that doesn’t mean [the sentences] will
be concurrent.” Gov. App. 29.

        This language indicates that the District Court recognized that the decision to impose
consecutive or concurrent sentences is discretionary. And even if we did find that the District Court
did not articulate its position as clearly as it might have, the presence of error is certainly subject to
“reasonable dispute.” 

.

       Accordingly, we find that the District Court did not plainly err, and that its decision to
impose Matias’s sentences consecutively was not procedurally unreasonable.

                                           CONCLUSION

       We have reviewed all of the arguments raised by Matias on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the judgment of the District Court.


                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk



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