2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-21-2009

USA v. Rivera

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4804

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Recommended Citation

"USA v. Rivera" (2009). 2009 Decisions. Paper 630.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-4804

 

UNITED STATES OF AMERICA

v.

JOSE RIVERA, Appellant

 

On Appeal from the United States District Court

for the Middle District of Pennsylvania

District Court No. 4-06-cr-00427-005

District Judge: The Honorable John E. Jones, III

 

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

September 17, 2009

Before: SLOVITER, FUENTES, and SMITH, Circuit Judges

(Filed: September 21, 2009)

 

 OPINION

 

SMITH, Circuit Judge.

On February 6, 2008, Jose Rivera pleaded guilty to one count of conspiracy to

distribute less than 100 grams of heroin, in violation of 21 U.S.C. § 846. Rivera’s

Sentencing Guidelines range, which was based on his classification as a “Career

Offender,” was 151 to 188 months. The District Court sentenced Rivera to 108 months of
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As we write for the benefit of the parties alone, who are familiar with the facts

and procedural history of this case, we confine our discussion to the legal issues presented

and include only those facts necessary to our disposition

2

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have

jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

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imprisonment, a special assessment of $100, and a three-year term of supervised release.1

Rivera argues that the District Court abused its discretion when it imposed the term of

imprisonment because (1) it relied on erroneous facts regarding his prior criminal history,

and (2) it failed to meaningfully consider the factors enumerated in 18 U.S.C. § 3553(a). 

We will affirm.2

 

First, Rivera argues that the District Court erred when it denied Rivera’s motion

for a downward departure based “on his minor role in the offense . . . and for overrepresentation of his criminal history . . . , where such denial was based in large part on

an erroneous reading of Rivera’s record.” Thus, it is clear that Rivera is not asserting that

the District Court incorrectly calculated his Sentencing Guidelines range, but rather that it

relied on erroneous information when it refused to exercise its discretion to depart. 

However, in such cases, “our precedent . . . mandates the conclusion that where a district

court allegedly made a mistake of fact when, in the exercise of its discretion, it refused to

grant a request for a downward departure, while aware of its authority to grant that

request, we lack jurisdiction to review that decision.” United States v. Minutoli, 374 F.3d

236, 243 (3d Cir. 2004); see also United States v. Cooper, 437 F.3d 324 (3d Cir. 2006)

(stating that this Court “declin[es] to review, after [United States v. Booker, 543 U.S. 220

(2005)], a district court’s decision to deny departure”). 
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In this case, the District Court stated that granting the motion for a downward

departure “would violate, in my view, the spirit of the departure provision . . . .” By

declining to exercise its discretion in an effort to remain faithful to the “spirit” of the

Sentencing Guidelines, rather than because it believed it was required to do so, the

District Court demonstrated that it recognized its authority to depart. See id. at 240 n.5

(noting that “district courts need not utter the magic words, ‘I recognize I have authority

to grant the downward departure,’” though “encourag[ing] them to do so”). We therefore

lack jurisdiction to review the District Court’s discretionary decision to deny Rivera’s

request for a downward departure. 

Second, Rivera contends that his sentence is unreasonable because various §

3553(a) factors warranted a reduced sentence. This Court reviews a district court’s

sentence for procedural and substantive reasonableness. United States v. Levinson, 543

F.3d 190, 195 (3d Cir. 2008). In doing so, we apply the “abuse of discretion” standard. 

United States v. Wise, 515 F.3d 207, 217–18 (3d Cir. 2008). In United States v. Cooper,

this Court stated that “a rote statement of the § 3553(a) factors should not suffice if at

sentencing either the defendant or the prosecution properly raises ‘a ground of recognized

legal merit.’” 437 F.3d at 329 (citation omitted). Nonetheless, the “court need not discuss

every argument made by a litigant,” nor must it “discuss and make findings as to each of

the § 3553(a) factors.” Id. Applying a deferential standard of review, this Court instead

looks to whether the § 3553(a) factors “were reasonably applied to the circumstances of

the case” and whether “the district judge imposed the sentence . . . for reasons that are

logical and consistent with the factors set forth in section 3553(a).” Id.
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Before the District Court, Rivera argued that several Section 3553(a) factors

warranted a below-guidelines sentence, including: (1) the need to avoid unwarranted

sentencing disparities; (2) the low rate of recidivism for non-violent offenders classified

as Career Offenders; (3) his age; (4) and his drug addiction. The record in this case

demonstrates that the District Court sufficiently considered these issues. With regard to

Rivera’s age, it noted that this factor should prompt “a desire to change,” but stated its

dismay at “why that didn’t hit [Rivera] a couple of years ago.” Similarly, the Court

discounted Rivera’s recidivism argument, questioning how Rivera could spend time in

prison at a young age for a drug offense and subsequently serve as, essentially, a mule for

drug traffickers. Finally, the District Court expressly stated that sentencing disparities

“really compel[led] [it] to look at a variance.” In fact, it granted a variance that balanced

the nature of the crime against the lower sentences received by others involved in the

conspiracy. Because the District Court sufficiently considered the issues raised by

Rivera, we believe that the District Court’s imposition of a 108-month term of

imprisonment was not procedurally unreasonable.

Furthermore, Rivera’s term of imprisonment was not substantively unreasonable. 

“[I]f the district court’s sentence is procedurally sound, we will affirm it unless no

reasonable sentencing court would have imposed 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) (en banc). In this case, the District Court concluded that a 108-

month term of imprisonment was reasonable, and we agree. 

For the reasons stated above, we will affirm the District Court’s decision. 
5