NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 17-2398

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UNITED STATES OF AMERICA

v.

RUBEN DARIO PENA-ORTIZ, 

also known as WILLIE DIAZ ROSA, 

also known as LORENZO ECHAVARIA

 Ruben Dario Pena-Ortiz,

 Appellant 

____________

Appeal from the United States District Court for the Eastern District of 

Pennsylvania 

(E.D. Pa. No. 16-cr-00476-1) 

District Judge: Honorable Edward G. Smith

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

April 13, 2018

Before: CHAGARES, VANASKIE, Circuit Judges, and BOLTON, District Judge.

(Filed: April 30, 2018)

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OPINION*

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 The Honorable Susan R. Bolton, Senior United States District Judge for the District of 

Arizona, sitting by designation.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
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BOLTON, District Judge.

Appellant Ruben Dario Pena-Ortiz pled guilty to re-entry after deportation on 

February 28, 2017. The United States District Court for the Eastern District of 

Pennsylvania sentenced him to 42 months’ imprisonment and three years of supervised 

release. He now challenges his sentence on appeal. For the reasons that follow, we will 

affirm the District Court’s sentence. 

I

Appellant, a citizen of the Dominican Republic, unlawfully entered the United 

States around 1995 and settled in Massachusetts. In 1996, on two separate occasions, 

Appellant was arrested and charged with distribution of a controlled substance. Neither 

charge was adjudicated at that time. Several years later, in 2003, Appellant was charged 

with possession with intent to distribute a controlled substance. In May 2004, he pled 

guilty to the possession charge and served 153 days’ imprisonment. Appellant was 

thereafter deported to the Dominican Republic on August 8, 2004.

In 2010, Appellant unlawfully re-entered the United States. On April 17, 2011, 

police stopped Appellant for erratic driving. He was charged with re-entry after 

deportation. Appellant’s arrest also alerted law enforcement to the un-adjudicated 1996 

charges. On December 13, 2011, Appellant pled guilty to the 1996 charges. He then pled 

guilty on February 15, 2012, to the unlawful re-entry charge and was sentenced to 30 

months’ imprisonment. He was deported for the second time on November 19, 2013. 
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Around April 2016, Appellant again unlawfully re-entered the United States. On 

May 31, 2016, Pennsylvania police arrested and charged him with forgery in an 

unsuccessful attempt to obtain a driver’s license under a false name using false 

documents. He pled guilty, received probation, and was released into the custody of U.S. 

Immigration and Customs Enforcement.

Appellant was indicted for re-entry after deportation and pled guilty on February 

28, 2017. He was sentenced on June 16, 2017. The parties agreed with the PSR’s 

calculation of offense level 13 and criminal history category IV, yielding a guideline 

sentencing range of 24 to 30 months. The PSR noted that U.S.S.G. § 5D1.1(c) advises 

against the ordinary imposition of supervised release on deportable defendants, but 

Application Note 5 suggests it should still be considered if it may “provide an added 

measure of deterrence and protection.”

The Government requested an upward variance. It argued that the Sentencing 

Guidelines failed to account for Appellant’s 1996 crimes, for which he was not convicted 

until after his first deportation. Appellant requested a downward variance based on the 

harsher confinement conditions for undocumented inmates, uncredited time served in 

state custody, and family responsibilities.

The District Judge determined that an upward variance was appropriate and

sentenced Appellant to 42 months’ imprisonment and three years of supervised release.

In explaining his sentence, the District Judge noted Appellant’s four prior nonimmigration felony convictions and the seriousness of the drug offenses. He considered 

Appellant’s personal circumstances and history, including his family circumstances. The 
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District Judge stated deterrence was an important function of Appellant’s sentence, 

noting that his previous 30-month sentence for unlawful re-entry had not deterred

Appellant from returning to the United States and engaging in other criminal conduct. He

described the need to impose a sentence that met the goals of sentencing, finding that 

“anything less than an upward departure would not adequately reflect the seriousness of 

the offense, or promote respect for the law, or afford deterrence, either specific or 

general, or protect the public from [Appellant’s] further crimes.”

II

The district court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231, and 

we have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C § 3742. Absent a 

contemporaneous objection, we review procedural sentencing challenges for plain error. 

United States v. Flores-Mejia, 759 F.3d 253, 258 (3d Cir. 2014) (en banc). “There must 

be an ‘error’ that is ‘plain,’ and that ‘affect[s] substantial rights.’” United States v. Olano, 

507 U.S. 725, 732 (1993) (quoting Fed. R. Crim. P. 52(b)). An error affects substantial 

rights if the defendant establishes “a reasonable probability that, but for the error, the 

outcome of the proceeding would have been different.” United States v. Azcona-Polano,

865 F.3d 148, 151 (3d Cir. 2017). And we will only exercise our discretion to correct 

such an error if it “seriously affects the fairness, integrity or public reputation of judicial 

proceedings.” Olano, 507 U.S. at 732 (quotations and modifications omitted). Absent any 

“significant procedural error,” we review sentences for substantive reasonableness under 

an abuse of discretion standard. United States v. Wise, 515 F.3d 207, 218 (3d Cir. 2008). 

We will affirm the sentence “unless no reasonable sentencing court would have imposed 
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the same sentence on that particular defendant for the reasons the district court provided.” 

United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009).

III

Appellant contends that the District Court erred by imposing supervised release 

without first addressing U.S.S.G. § 5D1.1(c)’s advice against its imposition upon 

deportable defendants. He further claims that his sentence is substantively unreasonable 

because the District Court justified the upward variance using unreliable information and 

imposed a greater sentence than necessary to achieve its aims. 

A

The first error Appellant raises is a procedural one. Namely, he contends that the 

District Court imposed supervised release without adequately explaining its reasons for 

doing so given the Guidelines’ advice against supervised release for deportable 

defendants. Because Appellant did not make a contemporaneous objection, we review for 

plain error. Only recently did we hold that a district court must explain and justify the 

imposition of supervised release on deportable defendants. See Azcona-Polano, 865 F.3d 

at 153 (“This explanation should directly address the presumption against imposing 

supervised release and provide the court's reasoning for taking a different course of action 

in the case before it.”) (quotations omitted). Indeed, this was not the law when Appellant 

was sentenced. Even if it had been, Appellant would still have to show that any error

affected his substantial rights. He cannot.

Our decision in Azcona-Polanco is instructive. The appellant there had a history—

duly cited by the district court at sentencing—of drug offenses, previous deportations, 
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unlawful re-entry into the United States, and an attempt to use fraudulent documents to 

remain in this country. Id. at 154–55. We accordingly found that any alleged deficiency 

in the district court’s explanation for imposing supervised release could not have affected 

the appellant’s substantial rights. Id. The same holds true here. 

Appellant has a similar background. He has a serious criminal history in addition 

to his immigration offenses. He has been deported twice. And he has twice unlawfully reentered the United States and committed additional crimes. In granting the upward 

variance, the District Judge noted Appellant’s criminal history. He discussed Appellant’s 

personal circumstances and history, including his explanation that he had re-entered the 

United States to reunite with his family. The District Judge emphasized the need for 

deterrence after finding that Appellant’s previous 30-month sentence for illegal re-entry 

had not deterred him from unlawfully re-entering another time. Had the District Judge

explicitly addressed the presumption against supervised release, there is no reasonable 

probability that he would have declined to impose it. Thus, we will affirm the imposition 

of a term of supervised release. 

B

Appellant also contests his sentence as substantively unreasonable. He claims the 

District Court provided insufficient justification and the resulting sentence violated the 

requirement to be “sufficient but not greater than necessary.” 18 U.S.C. § 3553(a). “In 

reviewing the reasonableness of a sentence outside the Guidelines range, appellate courts 

may [] take the degree of variance into account and consider the extent of a deviation 

from the Guidelines.” Gall v. United States, 552 U.S. 38, 47 (2007). We may not, 
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however, presume such a sentence is unreasonable or require an “extraordinary” 

circumstance to justify it. Id.

We look instead to the district court’s individualized application of the statutory 

sentencing factors. See id. at 50–51 (citing 18 U.S.C. § 3553(a)). The sentencing court 

should give “meaningful consideration” to all § 3553(a) factors and consider only reliable 

information. United States v. Olhovsky, 562 F.3d 530, 547 (3d Cir. 2009); United States 

v. Berry, 553 F.3d 273, 280 (3d Cir. 2009). Absent an adequate explanation, we will 

remand for resentencing. United States v. Levinson, 543 F.3d 190, 196 (3d Cir. 2008). 

Sentences should avoid unwarranted disparities and comply with the “overarching 

instruction” to be “sufficient but not greater than necessary” to accomplish the goals of 

sentencing. Kimbrough v. United States, 552 U.S. 85, 101, 108 (2007). This inquiry is 

highly deferential. We will not disturb a sentence “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. 

Appellant asserts that the District Judge’s justification for the upward variance is 

insufficient because he misread Appellant’s post-deportation criminal history and 

speculated about violence concerning his past drug crimes. We disagree. At sentencing, 

the District Judge stated: “But not only did you re[-]enter the United States, you then 

engaged in other criminal conduct. And that criminal conduct, as I’ve noted, is of a very 

serious nature.” (App. 98.) Appellant contends the District Judge was referring to his 

drug offenses and justified the upward variance on the inaccurate view that Appellant 

engaged in drug-related offenses after being deported. Yet the record shows that 
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Appellant’s sentence was based, not on the timing of his drug offenses, but on his entire 

criminal history. The District Judge found that Appellant’s repeated unlawful entries and 

multiple adult convictions “made a mockery of the laws of this nation,” thereby making 

an upward variance appropriate to meet the goals of sentencing. (App. 98.)

Appellant next argues that the District Judge’s comments on the nexus between 

the drug trade and violence were speculative, and therefore fail to justify the upward 

variance. This, too, fails to persuade us. The District Judge did note the violent nature of 

the drug trade and drug culture. Yet he specifically said there was no evidence that 

Appellant’s past offenses involved violence. And he relied on the PSR, which contained 

his criminal history, personal history and characteristics, and multiple unlawful entries to 

the United States. We can hardly say that no other reasonable sentencing court would 

have done the same.

Appellant lastly challenges the 42-month sentence as needlessly harsh. He cites 

the reduced access to rehabilitative programs that undocumented immigrants have and 

argues that it creates unwarranted sentencing disparities. It does not. The District Judge

specifically noted “that the guidelines are intended to avoid disparities among 

defendants.” (App. 97.) He conducted an individualized assessment and carefully

considered the § 3553(a) factors to craft a sentence that was “the minimum sufficient 

period of incarceration, but not greater than necessary, to accomplish the purposes of 

sentencing.” (App. 101.) Giving due deference to this reasoning, we will accordingly 

affirm Appellant’s sentence.

IV
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The judgment of the District Court will be affirmed.