            Case: 15-10399   Date Filed: 02/21/2017   Page: 1 of 8


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-10399
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:09-cr-20210-JAL-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

SIRTAJ “TOSH” MATHAUDA,
a.k.a. Mark Bolan,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                             (February 21, 2017)

Before WILSON, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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       A jury found Sirtaj “Tosh” Mathauda guilty of: one count of conspiring to

commit mail and wire fraud, nine counts of mail fraud, and two counts of wire

fraud. Mathauda appeals his total sentence of 200 months’ imprisonment and the

district court’s denial of his motion to proceed pro se upon resentencing.1 First,

Mathauda argues that his 200-month sentence was substantively unreasonable

given (1) his old age and poor health, (2) that his driving-under-the-influence

convictions occurred within six years of each other, and (3) his non-citizenship

concerns. Second, Mathauda argues that he made a clear and unequivocal request

to proceed pro se before resentencing and the denial of that motion without

conducting a Faretta2 hearing violated his Sixth Amendment right to self-

representation.

                             I. Substantive Reasonableness

       We review the reasonableness of a sentence under a deferential abuse-of-

discretion standard. United States v. Brown, 772 F.3d 1262, 1266 (11th Cir. 2014)

(per curiam). Under this standard, we need only ensure that the district court’s

sentence is reasonable, and we will not set aside the sentence merely because

another sentence may have been more appropriate. See United States v. Irey, 612

F.3d 1160, 1191 (11th Cir. 2010) (en banc). The party challenging the sentence


1
  His first sentence was overturned by this court. See United States v. Mathauda, 740 F.3d 565,
566 (11th Cir. 2014) (per curiam).
2
  Faretta v. California, 422 U.S. 806 (1975).
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bears the burden of demonstrating that the sentence is unreasonable given the entire

record, the 18 U.S.C. § 3553(a) factors, and the substantial deference given to

sentencing courts. See United States v. Langston, 590 F.3d 1226, 1236 (11th

Cir.2009).

      In reviewing for substantive reasonableness, we examine whether the

§ 3553(a) factors support the sentence under the totality of the circumstances. See

United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (per curiam). A

sentence may be substantively unreasonable if a court unjustifiably relies on any

single § 3553(a) factor, fails to consider pertinent § 3553(a) factors, bases the

sentence on impermissible factors, or selects the sentence arbitrarily. See United

States v. Pugh, 515 F.3d 1179, 1191–92 (11th Cir. 2008). We do not apply a

presumption of reasonableness to sentences within the guideline range, but we

ordinarily expect such a sentence to be reasonable. See United States v. Stanley,

739 F.3d 633, 656 (11th Cir. 2014). Furthermore, a sentence imposed well below

the statutory maximum term of imprisonment is an indicator of a reasonable

sentence. Id.

      The district court did not abuse its discretion in sentencing Mathauda to 200

months’ imprisonment. Mathauda was sentenced below the middle of the guideline

range and well below the 25-year statutory maximum term of imprisonment, thus

indicating the sentence’s reasonableness. See 18 U.S.C. §§ 1341, 1343, 1349, 2326;


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Stanley, 739 F.3d at 656. The court was well within its discretion to weigh more

heavily the seriousness of Mathauda’s crime—as his fraudulent scheme caused $3.5

million in losses to numerous innocent victims—and the nature and extent of his

criminal history. See United States v. Overstreet, 713 F.3d 627, 636–40 (11th Cir.

2013). Mathauda does not argue that the court unjustifiably relied upon these

factors, but rather that his age, his health, the similarity and proximity of his prior

convictions, his ineligibility for prison programs, and his potential deportability

warranted a shorter sentence. Mathauda, however, has failed to prove that these

considerations render his within-guideline-range sentence unreasonable under the

totality of the circumstances, especially when considering the extent of the harm

caused by his crime. See Gonzalez, 550 F.3d at 1324; Pugh, 515 F.3d at 1192.

Thus, Mathauda’s 200-month sentence is substantively reasonable, and we affirm

the sentence.

                           II. Mathauda’s Faretta Rights

      We review de novo whether a defendant validly waived his right to counsel,

as a mixed question of law and fact. Stanley, 739 F.3d at 644.

      A criminal defendant may exercise his constitutional right to represent

himself—his Faretta rights—by making a knowing and intelligent waiver of his

Sixth Amendment right to counsel and by clearly and unequivocally asserting his

request to proceed pro se. See Gill v. Mecusker, 633 F.3d 1272, 1294 (11th Cir.


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2011). The defendant’s clear and unequivocal request to represent himself triggers

the court’s obligation to conduct a Faretta hearing, in which the defendant must be

informed of the advantages and disadvantages of self-representation. See id. at

1293. A defendant makes a clear and unequivocal request for self-representation

by, for example, affirmatively invoking his right to self-representation. See United

States v. Garey, 540 F.3d 1253, 1264–65 (11th Cir. 2008) (en banc).

      Even if a defendant properly invokes his Faretta rights, he can still waive

them if he requests self-representation but engages in subsequent conduct showing

a vacillating position on the issue. See Gill, 633 F.3d at 1294–95. For example, a

defendant fails to invoke his Faretta rights when he requests to proceed pro se,

while at the same time stating that he would prefer different counsel or continuing

to argue a substitution of counsel motion. See id. at 1295–96 (explaining that the

defendant’s vacillation made his request for self-representation equivocal). Upon a

questionable waiver of the right to counsel, the Supreme Court has directed that

courts should indulge in every reasonable presumption against waiver. See Brewer

v. Williams, 430 U.S. 387, 404, 97 S. Ct. 1232, 1242 (1977).

      Additionally, if the defendant properly invokes his Faretta rights, those

rights can still be adequately vindicated in non-jury proceedings so long as the

court allows the pro se defendant to argue freely on his own behalf and so long as

any disagreements between counsel and the pro se defendant (on issues that would


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normally be left to the discretion of counsel) are resolved in the defendant’s favor.

See McKaskle v. Wiggins, 465 U.S. 168, 179–81, 104 S. Ct. 944, 951–53 (1984)

(finding no error where, even though the lower court did not grant each of the

defendant’s motions, it never adopted counsel’s position over the defendant’s

position on a matter normally within the defense’s discretion).

      Mathauda waived his Faretta rights by vacillating on the issue. Mathauda’s

vacillation on the issue is as follows:

   • May 6, 2014, Mathauda filed a motion to proceed pro se for resentencing.
       o Magistrate judge held a Faretta hearing explaining the pros and cons
          of proceeding pro se.
       o Magistrate’s Report and Recommendation (R&R) stated that based on
          Mathauda’s request for appointed counsel, he should be appointed
          counsel.
       o Mathauda was appointed counsel.

   • August 3, 2014, Mathauda filed a pro se objection to the R&R stating he
     would prefer a different attorney.
       o Court adopted R&R on August 19, 2014 and noted Mathauda’s
          objections were untimely.

   • Mathauda filed a pro se motion to remove appointed counsel and reinstate
     another attorney. The appointed attorney filed a motion to withdraw for
     irreconcilable differences.
         o At a hearing on the motions, Mathauda requested to proceed pro se.
           The magistrate judge conducted a second Faretta hearing, authorized
           him to proceed pro se, and removed his appointed attorney.

   • November 26, 2014, four days before resentencing, Mathauda filed a pro se
     motion asking for a delay in the resentencing or to appoint counsel.

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         o At this attempted resentencing, Mathauda instructed the court that he
           wished to have counsel appointed for the resentencing.
         o The court appointed counsel and reset the resentencing for December
           18.

   • December 11, 2014, Mathauda filed a pro se motion to reassert his pro se
     status and to remove court-appointed counsel

   • December 18, 2014, the court addressed the pro se motion and explained
     that the court would not go back and forth on this issue any longer, a
     warning the court also delivered at the previous hearing, and proceeded with
     the resentencing.
        o Mathauda replied that he filed the pro se motions because he wanted
            to raise issues about his innocence but understood that the
            resentencing hearing was not the right time to raise them.
        o The court gave Mathauda an opportunity to speak on his own behalf,
            but he made no objections or sentencing-related arguments.

With this vacillation and the reasonable presumption against waiver of counsel,

Mathauda failed to clearly and unequivocally assert his Faretta rights and the

district court did not err in denying his motion without holding a third Faretta

hearing. See Brewer, 430 U.S. at 404, 97 S. Ct. at 1242; Gill, 633 F.3d at 1293–95.

      In any event, Mathauda’s Faretta rights were nevertheless vindicated during

the resentencing hearing, where the court provided Mathauda an opportunity to

make sentencing arguments on his own behalf after his appointed counsel made

substantive reasonableness arguments that Mathauda neither objected to nor

contradicted. See McKaskle, 465 U.S. at 179, 104 S. Ct. at 951. Although the

court did not rule on Mathauda’s non-sentencing pro se motions, the district court

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never adopted Mendez’s position as to sentencing over Mathauda’s position, or

lack thereof. See id. at 181. Accordingly, Mathauda’s Faretta rights were not

violated, and we affirm his sentence.

      After careful review of the record and consideration of the parties’ briefs, we

affirm.

      AFFIRMED.




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