               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 19a0105n.06

                                       Case No. 18-3430

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                   FILED
                                                                             Mar 06, 2019
UNITED STATES OF AMERICA,                            )                   DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff-Appellee,                           )
                                                     )     ON APPEAL FROM THE UNITED
v.                                                   )     STATES DISTRICT COURT FOR
                                                     )     THE NORTHERN DISTRICT OF
JASAUN MATTICE,                                      )     OHIO
                                                     )
       Defendant-Appellant.                          )


BEFORE: SUTTON, WHITE, and DONALD, Circuit Judges.

       BERNICE BOUIE DONALD, Circuit Judge. Jasaun Mattice pleaded guilty to a 44-

count indictment that included bank fraud, possession of counterfeit securities, and aggravated

identity theft, stemming from two check-forgery schemes. The district court sentenced him to 79-

months’ imprisonment.        Mattice appeals, arguing that his sentence is procedurally and

substantively unreasonable. We AFFIRM.

                                                I.

       Mattice was the mastermind behind two check-forgery schemes, one in 2014 and the other

in 2016, that involved creating fraudulent checks. Mattice would create the checks using the names

and bank information belonging to small businesses, individuals and a Catholic charity, and

deposit them into his bank account. On October 13, 2016, Mattice was indicted and arrested on

28 counts related to the 2014 scheme. Undeterred by his indictment and detention, Mattice
Case No. 18-3430, United States v. Mattice


continued his check-forgery scheme from jail, this time directing his co-conspirators to forge and

cash checks using bank information belonging to a telemarketing company. Consequently, the

grand jury issued a superseding indictment with 16 additional charges. Mattice passed counterfeit

checks valued at $30,935.81 in 2014 and $9,9031.81 in 2016, for an aggregate loss of $40,839.

       In March 2017, Mattice notified the district court that he wished to terminate his appointed

counsel and represent himself. After alerting Mattice of the “disadvantage[s]” of proceeding pro

se, and after advising Mattice that the court would not “give [Mattice] any leeway,” the court

ultimately granted his request. However, on January 22, 2018, two days before trial, Mattice had

a change of heart and informed the court that he would “let the lawyer do it all.” That same day—

after the court recessed to allow Mattice to consult with his counsel—Mattice pleaded guilty to the

44-count superseding indictment, which included bank fraud, in violation of 18 U.S.C. §§ 1344

and 2; possessing a counterfeit security, in violation of 18 U.S.C. §§ 513(a) and 2; aggravated

identity theft, in violation of 18 U.S.C. §§ 1028A(a)(1) and 2; and bank fraud and conspiracy to

commit bank fraud, in violation of 18 U.S.C. §§ 1349 and 1344. As part of Mattice’s plea

agreement, the government agreed to recommend a two-level reduction for Mattice accepting

responsibility.

       Mattice’s Presentence Investigation Report (“PSR”) indicated a base offense level of 7.

From there, he received a 6-level increase because the total loss was more than $40,000, see

U.S.S.G. § 2B1.1(b)(1)(D); a 2-level increase because the offenses involved 10 or more victims,

see § 2B1.1(2)(A); a 2-level increase for producing an unauthorized access or counterfeit access

device, see § 2B1.1(b)(11)(B)(i); a 4-level increase for his role as a leader of the check-forgery

scheme involving five or more participants, see § 3B1.1(a); a 2-level reduction for acceptance of

responsibility, see § 3E1.1(a); and an additional 1-level reduction for timely notifying the



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government of his intention to enter a guilty plea, see § 3E1.1(b). Mattice’s PSR calculated a total

offense level of 18. Mattice also had a lengthy criminal history, resulting in a criminal history

category of V. At sentencing, the district court began by addressing Mattice’s objections to the

PSR, which included objections to: (1) the 4-level enhancement for his role as a leader of the

scheme; (2) his criminal history category; and (3) the guidelines, arguing that they “should be

reduced.” The district court denied Mattice’s objections.

       To Mattice’s benefit, however, the district court did not adopt the 2-level increase for the

number of victims because the government advised the court that there were not 10 or more victims

involved in Mattice’s offenses. However, the district court also declined to adopt the additional

1-level reduction under § 3E1.1(b), concluding that Mattice was not entitled to more than a 2-level

reduction because the additional 1-level reduction may only apply upon the government’s motion,

one it declined to make. See § 3E1.1(b). As such, the district court recalculated Mattice’s total

offense level to be 17, resulting in a sentencing guideline range of 46 to 57 months for counts

1 through 24 and 29 through 44. Additionally, the minimum sentence for counts 25 through 28,

aggravated identity theft, was 24 months to be served consecutively. See 18 U.S.C. § 1028A.

After recognizing that Mattice had “no crimes of violence in [his] background[,]” the court went

on to note that Mattice was convicted of numerous similar offenses, including theft,

telecommunications fraud, forgery and identity fraud.

       The district court advised Mattice that it would consider the § 3553 factors and compare

them with Mattice’s background, character, and history, to “fashion . . . a sentence . . . sufficient

but not greater than necessary to meet the ends of justice.” After determining that Mattice

“need[ed] something to stop [him] from committing these crimes[,]” the court sentenced him to




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24 months for counts 25 through 28, and 55 months for the remaining counts, for a within-guideline

sentence of 79 months’ imprisonment.

                                                 II.

       Mattice now appeals his sentence, arguing that the district court’s sentence was

substantively and procedurally unreasonable. We review the reasonableness of a district court’s

sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). However, when a

party fails to raise a specific objection in the district court “we review its substantive import for

plain error.” Unites States v. Stall, 581 F.3d 276, 283 (2009) (citing United States v. Vonner, 516

F.3d 382, 391-92 (6th Cir. 2008) (en banc)).

       A sentence within a correctly calculated guidelines range is entitled to a rebuttable

presumption of reasonableness. United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007) (citing

Gall, 552 U.S. at 50-52). A sentence is procedurally unreasonable “where the district court fails

to properly calculate the Guidelines range, treats the Guidelines as mandatory, fails to consider the

§ 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails to adequately explain

the chosen sentence.” United States v. Jeter, 721 F.3d 746, 756 (6th Cir. 2013) (alterations and

internal quotation marks omitted) (quoting Gall, 552 U.S. at 51). “Conversely, a sentence may be

considered substantively unreasonable when the district court selects a sentence arbitrarily, bases

the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an

unreasonable amount of weight to any pertinent factor.” United States v. Robinson, 778 F.3d 515,

519 (6th Cir. 2015) (alteration, internal quotation marks and citation omitted).

       Mattice argues that the district court failed to properly consider: (1) that his acceptance of

responsibility warranted a 3-level reduction to his offense level, instead of a 2-level reduction; (2)

that the amount of loss related to his offenses only marginally exceeded the $40,000 threshold



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Case No. 18-3430, United States v. Mattice


required for a 6-level enhancement under § 2B1.1(b)(1)(D); and (3) the need to avoid unwarranted

disparities between his sentence and that imposed on his co-conspirators. Lastly, Mattice argues

that the district court erred by failing to grant his request for a downward departure based on his

non-violent criminal history. These arguments lack merit.

       We begin first with Mattice’s argument that the district court erred in denying him an

additional 1-level reduction to his offense level for acceptance of responsibility. Under § 3E1.1(b),

a defendant may be granted an additional 1-level reduction for acceptance of responsibility “upon

motion of the government” indicating that the defendant has “timely notif[ied] authorities of his

intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial

and permitting the government and the court to allocate their resources efficiently.” At sentencing,

the government advised the court that it would not move for the additional reduction to Mattice’s

offense level, stating that it “had engaged in . . . at least two weeks of trial prep” and that “[t]here

were quite a bit of resources invested by [the government] for [Mattice] to plead [guilty] two days

before trial.” Because the additional reduction was contingent upon the government’s motion—

one it declined to make for legitimate reasons—the district court did not err in denying Mattice the

additional reduction. See United States v. Collins, 683 F.3d 697, 707 (6th Cir. 2012) (“Because

the . . . language of § 3E1.1(b) explicitly recognizes both a government interest in avoiding trial

preparation and in the efficient allocation of government resources, this Court agrees that both are

legitimate government interests that justify the withholding of a § 3E1.1(b) motion.”).1 Mattice

fails to provide any precedent supporting a contrary position.




1
 Mattice contends that “[t]he government and the Court [failed to] give [him] the proper deference
that he did not know all of the consequences of going to trial versus pleading guilty, as he was pro
se.” As stated, the district court fully apprised Mattice of the disadvantages of proceeding as a pro
se defendant and that he would not receive any leeway from the court. Mattice points to no
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       Next, Mattice argues that the district court erred by failing to consider that the total loss

related to his offenses only marginally exceeded $40,000. Because Mattice failed to raise this

below, we review it for plain error. Stall, 581 F.3d at 283. Section 2B1.1(b)(1)(D) provides for a

6-level enhancement if the loss related to the defendant’s offense exceeds $40,000. Mattice does

not dispute that the total loss in his case exceeds $40,000. Rather, he contends that, because the

loss was only $839 over the $40,000 threshold, the district court erred in applying the 6-level

enhancement. This argument finds no support in law or fact. Because the total loss exceeded

$40,000, the district court did not err, let alone plainly err, in applying the 6-level enhancement.

       Mattice further argues that the district court erred by failing to consider the disparity

between his sentence and those of his equally culpable co-conspirators. But disparity between co-

defendants is of no moment under § 3553(a)(6). See, e.g., United States v. Simmons, 501 F.3d

620, 623 (6th Cir. 2007) (noting that this subsection is “not concerned with disparities between

one individual’s sentence and another individual’s sentence, despite the fact that the two are co-

defendants”). Instead, § 3553(a)(6) “is concerned with national disparities among the many

defendants with similar criminal backgrounds convicted of similar criminal conduct,” id.

(emphasis added), an argument Mattice does not make.

        This leaves Mattice’s argument that the district court erred by failing to grant his request

for a downward departure based on his criminal history under § 4A1.3. As Mattice’s argument

goes, because he has “no history of violence,” and most of his fraud crimes were related to “minor

drug use,” the district court should have granted a departure. Appellant’s Br. at 26. Here, because

Mattice takes issue with the district court’s denial of a downward departure and fails to argue,




authority that entitles him to such deference because of his self-imposed impairment. Thus, we
reject this argument.
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Case No. 18-3430, United States v. Mattice


much less demonstrate, that the district court “was not aware of or did not understand its discretion

to make such a departure,” we do not review the district court’s denial. Mapp, 311 F. App’x at

740.

                                                III.

       Because Mattice fails to demonstrate that his sentence is procedurally or substantively

unreasonable, we AFFIRM his sentence.




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