Transcript of Matthew Wayne Austin sentencing hearing

Transcript of Matthew Wayne Austin sentencing hearing

Ms Bell: The guidelines were originally a Criminal History Category V and an imprisonment range of 324 months to 405 months, Your Honor. That's a considerable sentence, Your Honor.

Mr. Austin has a history with selling narcotics. His admissions were that he was selling narcotics back to the age of thirteen. He has convictions for narcotics offenses.

And so a lengthy sentence is appropriate, given what his admissions were in this case; that he was moving many, many pound quantities per week and importing it himself from California through a gentleman named Chad Walker.

And so the Government took his assistance and his cooperation into consideration when we capped it at 240 months, and that's where the Court is today.

(Attorney/client sotto-voice conference.)

THE DEFENDANT: I'd just like to apologize for everything that I've done. It's something I'm going to have to live with the rest of my life. I regret it every day.

And I would like to ask Your Honor to just have mercy on me.

I'm sorry for all the people I hurt. I'm not going to be there for my children. I just wanted to say sorry to everybody. (Crying.) That's it.

THE COURT: Thank you, sir. Counsel?

MS. GUNDEN: Your Honor, this case began when an individual by the name of Hunter Howard - I believe he's being sentenced in this court this morning — was arrested on April the 25th of last year.

And, at that time, Mr. Hunter told the Government that his source of the methamphetamine that was found on his possession at the time of his arrest was Mr. Austin. Mr. Austin later confirmed that was true, but that arrest was on the 25th of April.

On the 26th of April, a search warrant was obtained for the Austin residence. That is where Matthew, his wife, and children resided; although, Matthew was not -- he and his wife were separated but working on getting back together. So he was in and out of that residence. That search warrant was executed on April the 30th.

And then on May the 2nd of last year, a representative from the DEA Task Force, from DPS and from ATF went to interview Mr. Austin at the Potter County Jail.

And, you know, I often ask myself: "Why do these guys, like, spill their guts, you know, when law enforcement comes to talk to them? Why do they volunteer all of this comes to talk to them: why do they volunteer all or this information? Why do they answer all of their questions?"

And so this weekend, preparing for this hearing, l went back. and i listened to that actual interview. and so I've condensed it into very brief snippets that I think it's important for the Court to hear in the context of the argument I need to make before the court today.

And so I would ask Ms. Castanon to go ahead and play the first snippet

(Audio Clip 1 played; transcribed as follows:)

AGENT WILSON: "May 2nd, 2018. The time is --

UNIDENTIFIED SPEAKER:1:15.

AGENT WILSON: "1:15 p.m.
"Okay. Matthew, before we get started, we'll read you your rights. Okay? And then we'll -- we"ll get into our conversation here in a sec.

I spoke with the Assistant U.S. Attorney. Anna Bell, who is looking at this case. Okay? She -- her -- what she said to me, and which is so true with the federal system, that the federal system is a system of cooperation. Okay?

Cooperation is a big thing in the -- in the federal system compared to the state system, because that can help you out. Okay?

"Be honest with us, because if we -- if we -- if there's some untruths or there's some lying. things go south in a -- in a hurry with us. Okay? Be honest with us. Um. you're the only one who can help yourself out. None of these other people that are still out here are going to help you.

And I've been doing this thirty-four years; they don't help. (Chuckles.) They won't even put nothing on your commissary. bro. (Chuckles.) Okay. Maybe your wife might. But you know what I'm saying? But that's the way it is. so --
"With that being said, I'm going to read you your Miranda Warnings. Okay? You have the right to remain --"

(Clip 1 concluded.)

MS. GUNDEN: And then if you'll go to Clip 2. please.

(Audio Clip 2 played; transcribed as follows:)

AGENT WILSON: "Question I'm going to ask you, you don't have an attorney right now, do you?

THE DEFENDANT: "No, sir.

AGENT WILSON: "Okay. Okay. Okay. Who wants to start? Talking to Agent Snelgrooes here, he said that you had
some information that you may be willing to give up your source?

THE DEFENDANT: "Yes, sir.

AGENT WILSON: "Okay. Why don't you tell us about
that."

(Clip 2 concluded.)

MS. GUNDEN: And that -- on both of those occasions. that was the representative from the DEA Task Force. But, immediately after that, they had Mr. Austin go back to his childhood and talk about any activities he was involved in concerning drugs from the time of his teenage years. He answered all of their questions. This went on for awhile. You know, he described what he did, the people that he dealt with that he knew from that time in his life.

He talked about, you know, after he got married and his wife got pregnant, that he had gotten a job in the oil field. And, for three years — he made journeyman — he worked in the oil field, but because of his skeletal disease--which is discussed in the Presentence Report, he basically lost that job because he was no longer able to continue that work. And that's how he got back into the drug trade.

But, at that point, Mr. Austin expresses concerns that he has about all this information he's providing that is obviously very incriminating towards himself.

So if you would play Clip 3, please.

(Audio Clip 3 played; transcribed as follows:)

THE DEFENDANT: "I'm feeling like I'm just more incriminating myself right now than helping (unintelligible.
jail doors slamming).

AGENT WILSON: "They said, when you show cooperation, take responsibility for things, that helps you with the federal system.

THE DEFENDANT: "Well, I know --

AGENT WILSON: "Especially -- especially with this prosecutor.

THE DEFENDANT: "Well, I know that I can, uh -- I can get to my guy's guy.

AGENT WILSON: "Okay.

THE DEFENDANT: "Because he's been wanting to meet with me for a long time already.

AGENT WILSON: "Okay. And I think you had that conversation with Agent Snelgrooes. So why don't you -- why don't you pick up there, because I --

THE DEFENDANT: "Okay.

AGENT WILSON: "Who --"

(Clip 3 concluded.)

MS. GUNDEN: Again, he was told by the DEA representative that cooperation in the federal system is the total key. So. at that point in the interrogation or questioning, the -- all of the agents were more focused on the present, and that included questions about activities directly preceding the execution of that search warrant. He answered many questions about who his source of methamphetamine had been for the six months that he had been dealing again.

He described his local connection, who, as Ms. Bell stated, was a man by the name of Chad Walker, and that the source for Chad Walker was actually in California. He described how -- his knowledge of how Chad Walker was bringing the drugs into Amarillo, how they were delivered to -- to Mr. Austin.

They wanted information on the total quantities that he had dealt with over the past six months. They asked questions about all the people that purchased drugs for him.

He answered everything.

They also wanted to know if he could make stuff happen, if he could arrange another drug transaction that could take place.

Then if we'll go to Clip No. 4. please.

(Audio Clip 4 played; transcribed as follows:)

THE DEFENDANT: "I don't know, man. I really don't.

AGENT WILSON: "All right.

THE DEFENDANT: "I mean, there's no sense in lying this far in.

AGENT WILSON: "Nope. Ain't no sense in lying at all. You know, you said you -- your main focus is taking care of your wife and your family right now.

"You've got a -- what did you say? An eleven-year-old and a what? A thirteen - -

THE DEFENDANT: "Nine-year-old.

AGENT WILSON: "A nine-year-old.

UNIDENTIFIED DPS AGENT: "They -- they see all this stuff?

THE DEFENDANT: "No.

UNIDENTIFIED DPS AGENT: "Because I notice a lot of your stuff is super late at night or --"

(Clip 4 concluded.)

MS. GUNDEN: So, again -- and that was both the DEA agent and the DPS agent speaking in that clip. But they'r emphasizing how important it is for him to cooperate so that he can take care of his children and his family.

And he's the one that said, you know, there's -- "I'm not going to lie to you. There's no sense in me lying now. " To my knowledge, no one has ever accused him of not being truthful throughout this whole situation.

Again, he answered all the questions that they asked him. They wanted to know of any other large suppliers in Amarillo that he might know about. He gave them that information. He also told them about an individual in Arizona who he was aware of that could be a source of methamphetamine.

And then if we go to Clip 5.

(Audio Clip 5 played; transcribed as follows:)

UNIDENTIFIED DPS AGENT: "Did -- when did she get out; this morning?

THE DEFENDANT: "Yesterday"

UNIDENTIFIED DPS AGENT: "Okay. Who -- who had your kids the whole time: do you know?

THE DEFENDANT: "My mother.

UNIDENTIFIED DPS AGENT: "Your mother. Okay. So I knew she texted -- she had been talking to -- I didn't know if it was her mother or your mother. She'd been talking to somebody. So they were taken care of?

THE DEFENDANT: "Yeah.

UNIDENTIFIED DPS AGENT: "Were they probably at your house or your mom's house or --

THE DEFENDANT: "Yeah.

UNIDENTIFIED DPS AGENT: "Okay. And how -- how is -- how is that conversation going to go? You were trying to get back in their life. right? I mean, that was the -- you got -- I know you -- you said you had a little trouble, but y'all were trying to get back.

THE DEFENDANT: "Yeah. I don't know.

UNIDENTIFIED DPS AGENT: "I'm not -- I'm not trying to dick with you, man, but I -- you know.

THE DEFENDANT: "It's going to be hard to tell -- to tell them. I love my son more than life itself.

UNIDENTIFIED DPS AGENT: "It's nuts how something so little could have a profound impact on you, huh? "That's why you're doing this, to take care of them. take care of Caroline?

THE DEFENDANT: "I just feel stuck.

UNIDENTIFIED DPS AGENT: "Yeah.

THE DEFENDANT: "I didn't know what else to do.

UNIDENTIFIED DPS AGENT: "Okay.

THE DEFENDANT: "Filed for disability. I have a lot of medical problems.

UNIDENTIFIED DPS AGENT: "Yeah. You said your hips keep you from doing a lot of work?

THE DEFENDANT: "I had two hip replacements. Honestly. I mean, I'm not being -- I have a skeletal disease. so I'm in pain a lot.

UNIDENTIFIED DPS AGENT: "Your disease, is it -- is it -- I mean, it's not terminal, is it?

THE DEFENDANT: "It's skippy (phonetic).

UNIDENTIFIED DPS AGENT: "Yeah.

THE DEFENDANT: "It's not terminal.

UNIDENTIFIED DPS AGENT: "Yeah.

THE DEFENDANT: "And, uh, I feel stuck, man.

UNIDENTIFIED DPS AGENT: "Yeah.

THE DEFENDANT: "They wouldn't give me any disability. They said that because I had bought some houses in 2015, which I was in prison in 2015.

UNIDENTIFIED DPS AGENT: "Are you talking about your identity --

THE DEFENDANT: "It was --

UNIDENTIFIED DPS AGENT: ".. theft and --

THE DEFENDANT: "-. identity theft --

UNIDENTIFIED DPS AGENT: ".. all that crap.

THE DEFENDANT: -- yeah. And I just felt stuck. being cornered. I don't know.

UNIDENTIFIED DPS AGENT: "Yeah. All of these -- all the stuff that you had prior to us getting there, where did all of that go?

THE DEFENDANT: "Just to other people.

UNIDENTIFIED DPS AGENT: "Oh, so you got -- you just sold it quick?

THE DEFENDANT: "Yeah.

UNIDENTIFIED DPS AGENT: "You said: You want it. come get it now?

THE DEFENDANT: "Yeah.

UNIDENTIFIED DPS AGENT: "Okay. Over the weekend? Like I said, there's -- you know, you're looking out for your family, and that's •- that's -- that's something you got to do in this situation. That's what you feel like you got to do. so if there's anything else that you can think of?

THE DEFENDANT: "I mean, I don't know other than --

UNIDENTIFIED DPS AGENT: "Who else -- is -- are you - are you the plug here for Amarillo?"

(Clip 5 concluded.)

MS. GUNDEN: Again, more emphasis on cooperation. you know, that will help to take care of your family. He answered more questions about the information he had about another individual in Amarillo that's a large supplier.

And then they asked him again, you know: "Could you make something happen? Could you arrange another load to come in?" And he said, "Without a doubt, I would be able to do that."

And then the last clip. Your Honor.

(Audio Clip 6 played; transcribed as follows:)

AGENT WILSON: "I'll go talk to my boss and the AUSA, and we'll go from there. Okay? So you're confident you can make something happen?

THE DEFENDANT: "Without a doubt."

(Clip 6 concluded.)

MS. GUNDEN: And I'm sure at that time the agents were aware that would probably be a problem, because they knew he had a blue warrant for a parole violation.

But, again, this was on April -- I'm sorry, on May 2nd when this interview took place. He was indicted on July 26th. There was no twenty-year count in that indictment and this was after he had provided all of this information that the Government says was fully taken into consideration when they. you know, allowed him to plead to a count with a twenty-year cap. That was something that was negotiated after, after he was indicted federally and had counsel.

But then, after he pled, we participated in a two-hour debriefing on December the 28th of last year. And it took me awhile before I could do that, because there was a lot of phone downloads: there was a ton of jail calls, which my office went through all of that to make sure that, you know. if there was anything in that that needed to be explained, we could do that during that debriefing. Not a single question was asked about any of that.

But I know what occurred in that meeting, because I was present and I took a lot of notes. And, again, he answered every single question about how he had met Mr. Howard, how he had met Mr. Walker, who is the Amarillo connection to the California source. He explained everything that he understood about how that business was conducted. The source in California he only knew by his first name. He didn't know a last name. He had never met the man, be -- he had talked to him, I think, once or twice was what he said, because all of his dealings were with Chad Walker, who was like the middleman.

But he provided information about several occasions when wire transfers were sent to the wife of the California source, and through Wells Fargo bank, through Walmart, and he provided the name of the individual who was sending the money via the wires. I'm -- I'm extremely confident that nobodyever bothered to follow up on that.

He provided information on Mr. Walker having drugs sent through overnight mail to a specific address in Amarillo. I doubt there was any follow-up on that

Again, he answered all their questions about quantities and people that were purchasing, gave more explicit descriptions of those individuals. He gave them information about where Mr. Walker had a house, in -- not in Amarillo, outside of Amarillo, but in this area.

He gave them names of people that he knew to have been transporters for Mr. Walker, who were actually transporting from California to Amarillo. He gave more information on the Arizona source.

And then they came back and hit him with more questions about the large supplier in Amarillo, who he wasn't dealing with, but who he knew things about. They wanted to know all of the properties that he owned or that he had ever owned. He gave them all the information he had.

So it was, again, two hours of very intense cooperation. He can only tell them what he knows. He can't bring them a case on a silver platter. He can only give them what he knows from his own personal knowledge or things that he's heard if -- you know, if he's very clear about that.

So the drugs that were actually seized from Mr. Howard —— and if you can put that exhibit up —— was 392 grams of methamphetamine that was obtained from Mr. Howard at the time of his traffic stop.

Under the guidelines -- and I checked this with the -- you know, because this converted drug weight just started in the 2018 guidelines manual, but it comes out the same if we did the old calculation method of converting everything to marijuana.

And, as I've explained to Mr. Austin, because Mr. Howard said that that methamphetamine came from Mr. Austin and Mr. Austin admitted that was true, that that can clearly be counted against him in these calculations.

Then when they executed the warrant at the Austin residence, there was 209.8 grams of methamphetamine, which is 4,196 kilograms in converted drug weight, and 4.17 grams of heroin, which is 4.17 kilograms of converted drug weight.

So when you add all of that together, that's 11,668.17 kilograms, which would put Mr. Austin at an offense level of 34. Because there was a firearm at the residence, there was a plus two. So he'd be at a 36; minus three for acceptance would put him at a Level 33.

At a Level 33, with a Criminal History Category V, that's 210 to 262 months. That's already, you know, a high sentence. And it's -- it's my position that -- I know the guidelines permit this, you know, to go back through someone's whole life and use every piece of information that they provide and use that in calculating the appropriate guideline, but just because the guidelines permit it, it doesn't make it right; it doesn't make it always appropriate.

And from my perspective, I just don't see how we can ever expect defendants to believe that they have been treated fairly in the system when this is what happens, and this is happening more and more and more because the emphasis is on making cases and getting convictions.

You know, you've heard what they said to him, and in May, they're telling him, if you cooperate, if you cooperate, if you cooperate, that will go a long way to help you out in the federal system.

You know, over two months later, because it was late July when he's indicted, you know, his cooperation certainly didn't appear to help him very much at all, but, yet, he continued. You know, we went back, and we gave them more information.

And so we're asking in this case for the Court to consider that a sentence of 210 months, which is at the bottom of that guideline, would be appropriate. It's not a light sentence. It's not a lenient sentence.

You know, Mr. Austin deserves to be punished. He acknowledges that, but, again, I think there needs to be some recognition, you know, for how this all goes down, how this is all working these days.

A sentence of 210 months is seventeen and a half years. If he got all of his good time, that would still be a sentence of fifteen years, and a fifteen-year sentence for this man is going to be rough. It's going to be hard time because of the medical conditions that he has.

He was back in the game for six months. It was wrong. He shouldn't have done it. But 210 months for six months of activity I think would be a very appropriate sentence for this Court to impose, considering all of the dictates that this Court is obligated to consider.

And, finally, Your Honor, we would ask for a recommendation --

(Attorney/client sotto-voce conference.)

MS. GUNDEN: -- that he be placed in a facility as close to, I guess, Denver as his security classification would permit.

THE COURT: Thank you, Counsel. Counsel, do you know of any reason why a sentence cannot lawfully be imposed at this time?

MS. GUNDEN: No reason, Your Honor.

THE COURT: Mr. Austin, are you ready for me to pass sentence upon you?

THE DEFENDANT: Yes, sir.

THE COURT: The Court accepts the Plea Agreement in this case. It will embody in the judgment and sentence the disposition provided in the Plea Agreement.

The Court is required by statute to impose a sentence that is sufficient, but not greater than necessary, to comply with the purposes for sentencing set forth in Title 18, United States Code, Section 3553(a)(2) and is to
consider all of the factors of Section 3553(a), which the Court has done.

In this case, I've determined that a sentence of 240 months is sufficient, but not greater than necessary.

Before I impose the formal sentence, I want to address the arguments that Ms. Gunden has made on behalf of the Defendant. I want the record to reflect my reasoning regarding this sentence.

First of all, I think it's important to keep in mind why sentences for these types of offenses are so severe and why the advisory guidelines are as high as they are. Often in sentencings, we don't look upon the crime itself. There's a focus on something else, and, indeed, Ms. Gunden's argument is primarily a focus on whether the Defendant has been adequately rewarded for his cooperation, and I'm going to address that in a moment.

But it is extremely important that we not lose sight of the nature of the crime for which the Defendant is being sentenced and punished. I often use the term "poison" when I refer to methamphetamine. We have to understand that what we're talking about here is the peddling, the sale of poison.

When Mr. Austin was referring to the people he hurt, I actually thought he was going to talk about the people who use the methamphetamine. His focus instead —— and I don't fault him for this —— was on family, but those are not the only people who are hurt in a crime of this type. In fact, the people who are largely hurt are the people who are becoming addicted to or trying to sustain an addiction to methamphetamine, which is a horribly addictive drug.

So I do think it's important before we get into the details of this that we focus on the nature of the crime, which -- which, in fact, is one of the statutory factors that I'm required to consider.

Now, regarding the cooperation and whether the Defendant was adequately rewarded, let's begin with where the
sentence imposed compares to what the advisory guideline range would have been. And although Ms. Gunden criticizes the guidelines, it's also important to note there is no objection here to what the advisory guideline range would have been, and it would have been 324 to 405 months.

So the sentence that the Defendant is receiving by virtue of the statutory maximum is a sentence of about
74 percent of the low end of what the guideline range would have been. That's important to remember. The sentence he's receiving is about three-quarters of what the bottom of the advisory guideline range would have been. And, as Government counsel points out, where the criminal history category is a V, it's not unusual for the sentence to be higher within the advisory guideline range than the bottom.

Additionally, let's think about what might have occurred had there been a 5K Motion for Downward Departure.
I've been doing this now under the guidelines from the very beginning of the guidelines when they took effect in 1987.

And, in my experience, based on the cooperation that's been described here, it would not have been unusual for the Government to move for a two- or a three-level decrease in the offense level.

So let's took at what a two-level decrease would have been. He is beginning at an offense level of 37, criminal history category of V. Had there been a two-level decrease, the advisory guideline range would have been 262 to 327 months. So, in other words, the sentence he's receiving is lower than the guideline range would have been had there been a two-level decrease.

But let's say there had been a three-level decrease. With a criminal history category of V and an offense level of 34, that range would have been 235 to 293 months. So while there is a small slice of that range that would have fallen
below the statutory maximum, the vast majority of that range would have exceeded it and been capped.

So my point here is that, even if there had been a 5K motion, in my experience, it would have been in the range of two or three levels, given what's being described here, and the Defendant still benefited from the Plea Agreement.

So I say that because I want Mr. Austin to understand and Ms. Gunden, who is a very capable lawyer, to understand, as well as his family and friends, how I look at this case and why I personally believe that Mr. Austin did receive the benefit of his cooperation through the Plea Agreement that he reached.

Accordingly, on Count One of the Superseding Information, it is adjudged that the Defendant is hereby committed to the custody of the Bureau of Prisons for a term of 240 months.

It is ordered that the Defendant pay a mandatory special assessment of $100.
Restitution is not applicable.

The Court is not imposing a fine due to the Defendant's inability to pay a fine.