United States v. Mata

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 22, 2024
• Docket: 23-4355
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 22 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-4355 D.C. No. Plaintiff - Appellee, 1:23-cr-00053-JLT-SKO-1 v. MEMORANDUM*

GABRIEL MATA,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of California Jennifer L. Thurston, District Judge, Presiding

Submitted November 20, 2024** San Jose, California

Before: GRABER, FRIEDLAND, and BUMATAY, Circuit Judges.

Gabriel Mata appeals from a judgment of the district court sentencing him to

33 months’ imprisonment. Because Mata did not object during sentencing, we

review for plain error whether the district court erred by failing to invite allocution.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). United States v. Williams, 5 F.4th 973, 978 (9th Cir. 2021). And we review the

district court’s factual findings under the Sentencing Guidelines for clear error.

United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc). We

have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(e). We vacate in

part, affirm in part, and remand for resentencing at which Mata is invited to allocute.

1. The district court committed plain error by failing to invite Mata to allocute

at sentencing. Before imposing a sentence, a district court must “address the

defendant personally in order to permit the defendant to speak or present any

information to mitigate the sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii); see also

United States v. Daniels, 760 F.3d 920, 923 (9th Cir. 2014). We review whether the

district court failed to invite Mata to allocute for plain error, which requires “(1) an

error, (2) that was clear or obvious, (3) that affected substantial rights, and (4) that

seriously affected the fairness, integrity or public reputation of judicial proceedings.”

Daniels, 760 F.3d at 923 (cleaned up). The government concedes that the district

court did not invite Mata to allocute, and it also concedes that this failure constituted

reversible error. We agree.1 Our precedent is “quite clear” that “when a district

court could have lowered a defendant’s sentence, we have presumed prejudice and

1 Because we conclude that the district court committed reversible error under Federal Rule of Criminal Procedure 32(i)(4)(A)(ii), we do not reach Mata’s argument that the district court violated his right to due process by failing to invite him to allocute.

2 23-4355 remanded.” Id. at 925 (quotation marks omitted). Here, the district court could have

imposed a lesser sentence on Mata, because a 33-month term represented the high

end of the Guidelines range.

2. The district court did not clearly err in finding, by a preponderance of the

evidence, that Mata possessed a firearm after his escape from a halfway house.2

Mata contends that the court clearly erred in finding he possessed a firearm and thus

should have applied U.S.S.G. § 2P1.1(b)(3) to his sentence, resulting in a four-level

adjustment. We review the district court’s factual findings, including Mata’s

possession of a firearm after his escape, for clear error. Gasca-Ruiz, 852 F.3d at

1170. To meet the preponderance standard, the government had to show that it was

“more likely true than not” that Mata possessed a firearm after his escape. United

States v. Collins, 109 F.3d 1413, 1420 (9th Cir. 1997).

The evidence showed that: (1) Mata’s wife told police officers that she saw

him holding a gun in his front sweatshirt pocket during the incident; (2) Mata’s wife

described the firearm to a police officer as black in color and similar to the officer’s

weapon; (3) Mata threatened to shoot his wife and the police during the incident; (4)

Mata’s wife mentioned that Mata usually carried a firearm in his sweater pocket or

2 The parties dispute whether the government had to prove that Mata possessed a firearm by clear and convincing evidence or by a preponderance of evidence. We recently settled that debate and held that a “preponderance of the evidence” standard satisfies due process for fact-finding under the Guidelines. United States v. Lucas, 101 F.4th 1158, 1162 (9th Cir. 2024) (en banc).

3 23-4355 his lap; and (5) Mata’s wife’s sister stated that she saw Mata trying to conceal

something in his front sweatshirt pocket during the incident. In response to this

evidence, Mata claims that what the witnesses saw may have been a “replica gun

that was inoperable or a mere toy.” But he presents no evidence for this speculative

theory. And he further claims that his contemporaneous use of methamphetamine

impaired his cognitive abilities such that he was “merely bluffing” when he

threatened to shoot his wife and the police. But this claim is similarly unsupported

by the evidence. Thus, the district court did not clearly err in finding that Mata likely

possessed a firearm after his escape.

VACATED IN PART, AFFIRMED IN PART, AND REMANDED FOR

RESENTENCING AT WHICH THE DEFENDANT IS INVITED TO

ALLOCUTE.

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