United States v. Matthew Nisbett

• Court: Court of Appeals for the Third Circuit
• Decided: August 16, 2024
• Docket: 23-3120
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 23-3120 ____________

UNITED STATES OF AMERICA

v.

MATTHEW NISBETT, a/k/a Matthew Nesbett, Appellant

On Appeal from the United States District Court for the District of New Jersey (D.C. Criminal No. 3-23-cr-00573-001) District Judge: Honorable Peter G. Sheridan ____________

Submitted Under Third Circuit L.A.R. 34.1(a) on July 8, 2024

Before: BIBAS, FREEMAN, and RENDELL, Circuit Judges

(Opinion filed: August 16, 2024)

_______________

OPINION * _______________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. FREEMAN, Circuit Judge.

Matthew Nisbett pleaded guilty to a controlled substance offense and was

sentenced to 60 months’ imprisonment. On appeal, he challenges the reasonableness of

his sentence. We will affirm.

I

In July 2023, Nisbett pleaded guilty to possessing methamphetamine with intent to

distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).

At sentencing, the District Court reduced Nisbett’s total offense level from 34 to

29 because of his timely acceptance of responsibility and his minor role in the offense.

Additionally, both parties moved for a downward variance. The Court granted the

motion and varied downward by 10 levels. It explained that it did so based on Nisbett’s

military service, history of sexual abuse, drug and alcohol dependence, mental and

emotional issues, HIV-positive status, suicidal ideation, and incarceration at Rikers Island

at the time of sentencing. With a final offense level of 19 and a criminal history category

of V, Nisbett’s Sentencing Guidelines range was 57 to 71 months’ imprisonment.

After the Court announced the Guidelines range, the Court invited Nisbett to

allocute. Nisbett described his life circumstances, which included several traumatic

experiences. The Court acknowledged those circumstances, many of which were

addressed in written materials submitted before the hearing. It explained that it had

considered those circumstances when it granted its pre-allocution variance. It then

2 discussed the 18 U.S.C § 3553(a) factors—including many of the challenges Nisbett

spoke of—and imposed a sentence of 60 months’ imprisonment.

Nisbett did not object to the sentence, but he timely appealed.

II 1

Because Nisbett did not object in the District Court after the imposition of his

sentence, we review his claims for plain error. United States v. Flores-Mejia, 759 F.3d

253, 256 (3d Cir. 2014) (en banc). Under this demanding standard, we will remand only

when the error is “clear or obvious, affects substantial rights, and affects the fairness,

integrity[,] or public reputation of judicial proceedings.” Id. at 259 (citation and internal

quotation marks omitted). We discern no plain error here.

A

First, Nisbett argues that the District Court failed to properly weigh the 18 U.S.C

§ 3553(a) factors, and did not provide sufficient justifications on the record to support its

sentencing conclusions. We disagree.

While there is “no uniform threshold for sufficiency” courts must meet in

discussing the § 3553(a) factors, we require them to provide “more than a rote recitation

of the . . . factors” to uphold a sentence on appeal. United States v. Tomko, 562 F.3d 558,

567 (3d Cir. 2009) (en banc). A sentencing court must adequately explain its reasoning,

1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

3 but it “need not discuss and make findings as to each of the § 3553(a) factors so long as

the record makes clear that the court has taken them into account.” United States v.

Clark, 726 F.3d 496, 502 (3d Cir. 2013) (citation and internal quotation marks omitted).

The District Court’s analysis satisfied this standard. It addressed mitigating

factors, including Nisbett’s minor role in the drug trafficking scheme, his mental health

struggles, and his past traumas. It also addressed aggravating factors like the gravity of

his offense, his criminal history and potential for recidivism, and the importance of

deterring others in the community from committing similar offenses. It meaningfully

considered the § 3553(a) factors and explained its reasoning, so it committed no

procedural error.

B

Second, Nisbett argues the Court erred by deciding what sentence it would impose

before hearing allocution. The record does not support this argument. Although the

Court determined the sentencing range before allocution, it considered and addressed

Nisbett’s oral statements before announcing its sentence. Nisbett directs us to no

authority calling this sequence into doubt, nor are we aware of any. Even if we were to

assume this sequence was erroneous, Nisbett has not demonstrated a reasonable

probability that the sequencing affected his sentence. See Rosales-Mireles v. United

States, 585 U.S. 129, 134–35 (2018).

4 C

Finally, Nisbett argues that the District Court erred by failing to consider whether

to grant him a downward departure pursuant to United States Sentencing Guidelines

sections 4A1.3(b) and 5G1.3(d). 2 “[W]e lack jurisdiction to review the merits of a

district court’s discretionary decision to refuse a downward departure under the

Sentencing Guidelines once we determine that the district court properly understood its

authority to grant a departure. . . .” United States v. Minutoli, 374 F.3d 236, 239 (3d Cir.

2004).

Here, the District Court understood its authority to grant a downward departure

and asked defense counsel which departures Nisbett was seeking. Following an

exchange with the government, defense counsel responded that he would seek a variance

instead of a departure. Thus, Nisbett withdrew his departure request. To the extent that

Nisbett challenges the Court’s failure to consider his withdrawn request, we lack

jurisdiction to consider this claim.

* * *

For the foregoing reasons, we will affirm the judgment of sentence.

2 Nisbett also invokes a Guideline that is inapplicable without a government motion. No such motion was filed here.