NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 14

- 3199

_____________

UNITED STATES OF AMERICA

v. MIGUEL A NGEL ROSARIO, Appellant
On Appeal from the United States District Court for the Middle District of Pennsylvania (District Court No.: 1

- 11

- cr - 000 76

- 0 02) District Judge: Honorable John E. Jones, III

Submitted under Third Circuit LAR 34.1(a)

March 16, 2015 Before: RENDELL, FUENTES and BARRY, Circuit Judges

(Opinion filed : March 16, 2015 )

O P I N I O N *

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

RENDELL, Circuit Judge Appellant Miguel Ang el Rosario appeals his 154

- month prison sentence, which was imposed when he pled guilty to: one count of bank robbery in violation of 18 U.S.C. § 2113(a); one count of armed bank robbery in violation of § 2113(a) & (d); and one
count of use of a firearm du ring a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). Rosario argues that his sentence is substantively unreasonable because it is disproportionate to his codefendants’ sentences. We will affirm.

I. Jurisdiction and Standard of Review
The D istrict Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have appellate jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. When reviewing a sentence on appeal, we first determine whether the sentencing court
committed a serious procedural error. 1 United States v. Wise , 515 F.3d 207, 218 (3d Cir. 2008). Next, we “review the substantive reasonableness of [a] sentence under an abuse

of

- discretion standard,” and “[a]s long as a sentence falls within the broad range of possible sen tences that can be considered reasonable . . . we must affirm.” Id.
II. Discussion The burden is on the criminal defendant to prove that his sentence is substantively unreasonable, United States v. Parker , 462 F.3d 273, 276 (3d Cir. 2006), and Rosario ha s failed to meet his burden here. Section 3553(a) provides that “[t]he court, in determining the particular sentence to be imposed, shall consider .

. . (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been

1 Rosario makes no claim of a procedural error.3

found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). In Parker , we provided a thorough analysis of § 3553(a)(6). Parker explains that “Congress’s primary goal in enacting § 3553(a)(6) was to promote national uniformity in sentencing rather tha n uniformity among co

- defendants in the same case.” 462 F.3d at 277. “Therefore, a defendant cannot rely upon § 3553(a)(6) to seek a reduced sentence designed to lessen disparity between co

- defendants’ sentences.” Id. However, Parker acknowledges that, “[a]lthough § 3553(a) does not require district courts to consider sentencing disparity among co

- defendants, it also does not prohibit them from doing so.” Id. “Where appropriate to the circumstances of a given case, a sentencing court may reasonably con sider sentencing disparity of co

- defendants in its application of those [§ 3553] factors.” Id. at 278 (emphasis added). For the comparison to be relevant, the codefendants naturally must be “similarly situated.” Id. If one codefendant has “a far less e xtensive criminal record” or “assisted in convicting his

co - defendants,” then the comparison is not relevant. Id. In sentencing Rosario, the District Court opted to account for the sentencing disparity between Rosario and his “cohorts and codefendants”

— i. e., ten other individuals
who were also involved in the same and/or related robberies: As to the sixth [§ 3553] factor, I want to speak to that because I think it needs to be addressed in the sense that we must avoid unwarranted sentencing disparities. .

. . It’s my considered judgment that your culpability falls in the middle range of some of your cohorts and codefendants, and I’m going to sentence you in a way that is consistent with that, understanding that to the extent that I can’t completely avoid a d isparity that some of that is triggered by the fact that you engaged in gun play and brandished a gun, which bought you a considerably higher sentence under the circumstances because of the provisions of the statute.4

So as I look at this I’m willing to go to the bottom of the advisory guideline range in this case. .

. . I do think that under the circumstances that the guidelines have it right in this case, and I can’t see any compelling reason to vary from the advisory guidelines. (App. 232

- 33.) The Dist rict Court’s decision to sentence Rosario to the bottom of the Guidelines range in order to mitigate some of the disparity in sentencing that would have otherwise resulted was not an abuse of discretion. Rosario wishes for us to look purely at
the number of robberies each codefendant committed and compare the sentence received, but the Guidelines care about more than just the number of robberies committed. Rosario’s codefendants did not all face the same charges, and they had different criminal
histories. Rosario has not shown that he is similarly situated to any of his codefendants with respect to the factors relevant to sentencing, and he has failed to establish that the
District Court abused its discretion.
III. Conclusion Accordingly, we will affirm th e District Court’s sentencing order.