                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                    ______

                                       No. 09-3175
                                         ______

                           UNITED STATES OF AMERICA

                                            v.

                                  MATTHEW SANDERS
                                             Appellant
                                       ______

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                           (D.C. Criminal No. 2:07-cr-00362)
                    District Judge: Honorable Mary A. McLaughlin
                                        ______

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 December 17, 2010

       Before: JORDAN, HARDIMAN and VAN ANTWERPEN, Circuit Judges.

                                 (Filed December 17, 2010)
                                          ______

                                 OPINION OF THE COURT
                                         ______

VAN ANTWERPEN, Circuit Judge.

      Appellant Matthew Sanders (“Sanders”) was convicted following a jury trial and

now appeals his sentence For the reasons that follow, we will affirm the sentence

imposed by the District Court.
                                             I.

       Because we solely write for the parties, we will only briefly review the essential

facts. On December 29, 2006, Sanders entered a K-Mart store in Philadelphia,

Pennsylvania where he had previously worked as a security guard. Sanders convinced a

coworker to provide access to a secured area, permitting him to remain hidden inside the

store over night. The next morning, Sanders entered the manager’s office armed with a

handgun, held it to her head, and ordered her to open the store safe. Thereafter, Sanders

forced her to the office floor, restrained her with handcuffs, and removed $28,600 before

fleeing the premises.

       Following an investigation by police, Sanders was arrested and charged with

interfering with interstate commerce and firearms offenses in connection with the

robbery. While in pretrial custody at the federal detention center, Sanders admitted to

another inmate that he had robbed the K-Mart store. He also solicited assistance from

inmates in an attempt to create a false alibi and prevent the store manager from testifying

against him as a witness. Sanders was thus additionally charged with one count of

obstructing justice.

       On December 18, 2008, after a four day trial, Sanders was convicted of the

following charges: one count of interference with interstate commerce by robbery in

violation of 18 U.S.C. § 1951; one count of knowingly using and carrying a firearm

during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1); and

one count of obstructing justice, in violation of 18 U.S.C. § 1503(a).



                                             2
       As a career offender, Sanders was assigned a total offense level of 32 with a

criminal history category of VI.1 Because his offense involved a conviction under §

924(c) and there was no reduction for acceptance of responsibility, Sanders’ final

guideline range was 360 months to life imprisonment.

       On July 12, 2009, the District Court sentenced Sanders to a term of 360 months of

incarceration and a term of supervised release of five years. In addition, Sanders was

ordered to pay restitution in the amount of $28,600 and a special assessment of $300.

       Sanders now appeals this sentence.

                                             II.

       The District Court possessed jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction pursuant to 18 U.S.C. §§ 1291 and 3742(a).

       “Our responsibility on appellate review of a criminal sentence is limited yet

important: we are to ensure that a substantively reasonable sentence has been imposed in

a procedurally fair way.” United States v. Levinson, 543 F.3d 190, 195 (3d Cir. 2008).

“At both stages of our review, the party challenging the sentence has the burden of

demonstrating unreasonableness.” United States v. Tomko, 562 F.3d 558, 567 (3d Cir.

2009) (en banc). The abuse of discretion standard applies to both inquiries. Id.

       We thus assess Sanders’ sentence in two stages. We first must determine whether

the District Court committed a “significant procedural error,” for example, by “failing to

consider the § 3553(a) factors . . . or failing to adequately explain the chosen sentence.”

1
 The Probation Office and District Court utilized the November 1, 2008 edition of the
Sentencing Guidelines. There are no ex post facto concerns, and the appellant does not
dispute the calculations utilized in his case.
                                              3
Gall v. United States, 552 U.S. 38, 51 (2007); see United States v. Smalley, 517 F.3d 208,

214 (3d Cir. 2008).2 If the District Court’s decision is procedurally sound, we then

consider the substantive reasonableness of the sentence. In so doing, “[w]e do not seek to

second guess” the District Court. Levinson, 543 F.3d at 196. Moreover, “[a] sentencing

court need not make findings as to each factor if the record otherwise makes clear that the

court took the factors into account.” United States v. Lessner, 498 F.3d 185, 203 (3d Cir.

2007). Nevertheless, we must assure ourselves that the District Court has provided an

“explanation . . . sufficient for us to see that the particular circumstances of the case have

been given meaningful consideration within the parameters of § 3553(a).” Levinson, 543

F.3d at 196. Pursuant to this standard, we will affirm the District Court “unless no

reasonable sentencing court would have imposed the same sentence on that particular

defendant for the reasons the district court provided.” Tomko, 562 F.3d at 568.

                                             III.

       Sanders does not argue that the District Court committed any procedural errors in

fashioning his sentence, and our independent review of the record does not reveal any

procedural defects. Accordingly, the sole question presented is whether the sentence of

360 months is substantively reasonable.




2
  The § 3553(a) factors include: (1) the nature and circumstances of the offense
and the defendant’s history; (2) the need to reflect the seriousness of the crime,
adequately deter criminal conduct, protect the public, and provide training or
medical care; (3) the available sentences; (4) the established sentencing range; (5)
any pertinent sentencing policies; (6) the need to avoid sentencing disparities; and
(7) the need to provide restitution to victims. 18 U.S.C. § 3553(a)(1)-(7).
                                              4
       Sanders argues that the District Court abused its discretion in this regard by

imposing a sentence that was harsher than necessary and therefore inconsistent with the

overarching instruction present in the “parsimony provision” of § 3553(a).3 Specifically,

Sanders contends that his 360 month sentence amounts to a life sentence in light of his

age and HIV status, and that a lesser sentence would have been adequate. Moreover,

Sanders argues that the District Court failed to give proper regard to his mental health

issues and history of childhood abuse and substance abuse. Sanders contends that these

facts, when considered together, “cried-out for compassion and humanity rather than

permanent incapacitation.” Appellant’s Br. at 16.

       We disagree. The District Court imposed a sentence that was entirely reasonable

in light of the parsimony provision and factors set forth in § 3553(a). Sanders was

convicted of an armed robbery during which he held a gun to the head of a store manager,

forced her to the floor, and restrained her with handcuffs prior to removing a large sum of

money from the store safe. As the District Court noted, this was “a very serious, violent

crime,” and it was “very lucky that someone was not killed here.” Supp. App. at 51.

Sanders’ obstructive conduct prior to trial, which at minimum included efforts to

construct a false alibi and render a federal witness unavailable, further substantiates the

reasonableness of the sentence imposed. Similarly, 360 months is reasonable given the

appellant’s extensive and serious criminal history. As observed by the District Court,

Sanders accrued eight convictions in a twenty-three year period even though he was


3
  This provision states that “[t]he court shall impose a sentence sufficient, but not greater
than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.”
                                              5
incarcerated for eighteen of those years. Id. at 52. Four of those convictions were for

crimes of violence. Id.

       The record also indicates that the District Court gave “meaningful consideration”

to the § 3553(a) factors as well as Sanders’ arguments regarding mitigation and leniency.

During the July 12, 2009 sentencing hearing, the District Court explicitly considered the

nature and circumstances surrounding the robbery and subsequent obstructive conduct,

his extensive criminal history, and his absence of remorse. The District Court clearly

weighed these factors against Sanders’ personal background including the issues of

mental illness and childhood abuse as well as the testimony by his sister relating to the

same. Id. The court’s consideration of Sanders’ status as an HIV-positive inmate is also

evident. At the start of the sentencing proceeding, the District Court noted receipt of a

letter sent by the Bureau of Prisons concerning its ability to provide adequate healthcare

for inmates with AIDS. At the end of the proceeding, the court stated its intent to defer to

the Bureau in assigning Sanders to a facility that could best meet his needs. Taking all of

these factors into account, the District Court acknowledged that “for someone who is Mr.

Sanders’ age [, 360 months] could amount to a life sentence, but I do think that in view of

the history – and Mr. Sanders’ conduct in connection with this prosecution that that is the

sentence that fulfills the purposes of sentencing.” Id. at 53. “[A] district court’s failure

to give mitigating factors the weight a defendant contends they deserve” does not render

a sentence per se unreasonable. See United States v. Bungar, 478 F.3d 540, 546 (3d Cir.

2007). Given the seriousness of Sanders’ offenses and the significance of his criminal



                                              6
record, the District Court’s rejection of Sanders’ arguments regarding mitigation and

lenience was not unreasonable.

       Finally, contrary to Sanders’ contention on appeal, our decision in United States v.

Olhovsky, 562 F.3d 530 (3d Cir. 2009) does not compel a different determination.

Appellant’s Br. at 15. In Olhovsky, we held that a six-year sentence for possession of

child pornography was substantively unreasonable where the court committed procedural

errors and ignored substantial expert testimony that the defendant had a uniquely low

chance of recidivism. 562 F.3d at 550. Notably, the court concluded that the eighteen-

year-old defendant was unresponsive to counseling in spite of considerable expert

testimony to the contrary. Id. at 543, 549-51. Here, the District Court did not commit

any procedural errors. Moreover, whereas the appellant in Olhovsky presented

substantial testimonial support for leniency, Sanders provided the District Court with

only his own unsupported assertions that his age and HIV positive status warranted

imposition of a sentence less than 360 months. Neither of these factors prevented

Sanders from committing the instant offense, and the District Court acted well within its

discretion in concluding that a 360 month sentence was necessary to fulfill all of the

sentencing purposes mandated by § 3553(a).

                                            IV.




                                             7
       For the foregoing reasons, we will affirm Sanders’ conviction and judgment of

sentence.4




4
 We additionally deny Sander’s recently filed pro se motion to disqualify his counsel
without prejudice to his right to raise this issue by way of collateral attack under 28
U.S.C. § 2255.
                                             8
