NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 13-1112

UNITED STATES OF AMERICA

v.

FELIX PENA-JAQUEZ

a/k/a Felix Pena 

a/k/a Felix Antonio Pena

a/k/a Carlos Rosario

Felix Pena-Jaquez,

 Appellant

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania 

(D.C. No. 5-12-cr-00103-001)

District Judge: Honorable James Knoll Gardner 

 

Submitted under Third Circuit LAR 34.1(a)

on September 4, 2014

Before: GREENAWAY, JR., VANASKIE and ROTH, Circuit Judges

(Opinion filed: October 9, 2014)

O P I N I O N 
2

ROTH, Circuit Judge:

Felix Pena-Jaquez appeals from a final judgment of conviction and sentence on 

charges of illegal reentry after deportation, in violation of 8 U.S.C. §§ 1326(a) & (b)(2). 

Pena-Jaquez pleaded guilty and was sentenced to fifty-seven months’ imprisonment, 

which was within the advisory Sentencing Guidelines range. On appeal, Pena-Jaquez 

argues that his sentence is procedurally unreasonable because, in the Presentence 

Investigation Report (PSR), the District Court refused to excise references to charges 

dismissed in a previous criminal prosecution and because the District Court failed to 

meaningfully consider his request for a downward variance. We conclude that the 

District Court did not meaningfully consider each of Pena-Jaquez’s mitigation arguments,

and so we will vacate and remand.

I.1

We recently held that criminal defendants must make a separate and 

contemporaneous objection to a procedural error at sentencing “in order to preserve the 

error and avoid plain error review.” United States v. Flores-Mejia, 753 F.3d 253, 258 (3d 

Cir. 2014) (en banc). We also held in Flores-Mejia that we would “not apply this new 

rule retroactively” to criminal defendants sentenced prior to the issuance of that opinion. 

Id at 259. We therefore review the District Court’s sentence for abuse of discretion. Id. 

A.

 

1

The District Court had jurisdiction under 18 U.S.C. § 3231. We exercise jurisdiction 

over Pena-Jaquez’s appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
3

Pena-Jaquez first argues that the District Court abused its discretion by 

considering state criminal charges that had been filed against Pena-Jaquez, but had been 

dismissed. We have previously held “that a bare arrest record—without more—does not 

justify an assumption that a defendant has committed other crimes.” United States v. 

Berry, 553 F.3d 273, 284 (3d Cir. 2009). Here, however, the District Court did not rely 

on a bare arrest record or any unsupported speculation about Pena-Jaquez’s background 

in considering the § 3553(a) factors. During the statement of reasons for selecting the 

sentence, the District Court did not mention any charges against Pena-Jaquez that did not 

result in convictions. The only reference the District Court made to charged crimes that 

did not result in convictions came at the beginning of the sentencing in response to PenaJaquez’s objection. And even then the District Court noted that it “agree[d] with the 

thrust of the objection, that simply because” Pena-Jaquez was charged with particular 

offenses, “it does not mean that he was convicted of those offenses

The fact that Pena-Jaquez’s PSR contained references to these charges does not 

constitute reversible error. The Sentencing Guidelines expressly permit sentencing courts 

to consider evidence of “[p]rior similar adult criminal conduct not resulting in a criminal 

conviction” for purposes of a departure. U.S.S.G. § 4A1.3(a)(2)(E). Federal law 

provides that “[n]o limitation shall be placed on the information concerning the 

background, character, and conduct of a person convicted of an offense which a court of 

the United States may receive and consider for the purpose of imposing an appropriate 

sentence.” 18 U.S.C. § 3661. It was not an abuse of discretion for the District Court to 
4

overrule Pena-Jaquez’s objection to the single sentence in his PSR that truthfully 

identified criminal charges that had not resulted in convictions.

B.

In response to a procedural challenge to a criminal sentence, we review the record 

of the District Court proceedings to ensure that “the district judge ‘has considered the 

parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking 

authority.’” United States v. Begin, 696 F.3d 405, 411 (3d Cir. 2012) (quoting United 

States v. Merced, 603 F.3d 203, 214 (3d Cir. 2010)). For a District Court to meaningfully 

consider a defendant’s sentence arguments, “one concrete requirement” is that “the court 

must acknowledge and respond to any properly presented sentencing argument which has 

colorable legal merit and a factual basis.” Id. (internal quotation marks omitted).

At his sentencing hearing, Pena-Jaquez made four arguments in support of his 

request for a downward variance. Specifically, Pena-Jaquez argued that he had close 

family ties in the United States, that his criminal history was inflated by a single old and 

relatively minor offense, that he had been in state custody for a substantial period of time 

after his illegal reentry, and that he provided substantial cooperation with law 

enforcement as part of his 2008 conviction for a marijuana conspiracy. One witness—

Pena-Jaquez’s sister—testified on the defendant’s behalf, testifying that Pena-Jaquez was 

greatly missed by his family, who looked forward to a time when he would no longer be 

incarcerated.

After hearing from the government with respect to sentencing, the District Court 

sentenced Pena-Jaquez to a term of imprisonment of fifty-seven months against a 
5

Guidelines range of forty-six to fifty-seven months.2 In explaining the reasons for the

sentence, the District Court made statements that alluded to some, but not all, of defense 

counsel’s sentencing arguments without explicitly ruling on them. With respect to family 

ties, the District Court stated that Pena-Jaquez would be deported regardless of the 

sentence the Court imposed. In considering the defendant’s history and characteristics, 

the District Court provided a detailed recitation of Pena-Jaquez’s prior convictions and 

terms of incarceration. The District Court also referred to Pena-Jaquez’s cooperation 

with local government authorities during his 2008 arrest on drug charges, but explained 

“[t]hat cooperation and benefit was limited to that particular case.” 

Despite these statements, the District Court did not explicitly respond to PenaJaquez’s request for a downward variance, nor did the District Court clearly explain that 

the reasons offered did not warrant a reduced sentence.3 Furthermore, the District Court 

did not respond to Pena-Jaquez’s arguments regarding the age of the convictions 

contributing to his criminal history points or his already lengthy incarceration. This 

failure to address Pena-Jaquez’s arguments requires us to vacate the sentence and remand

for resentencing. See, e.g., United States v. Sevilla, 541 F.3d 226, 233 (3d Cir. 2008), 

overruled on other grounds by Flores-Mejia, 759 F.3d at 258.

 

2

Pena-Jaquez did not object to the calculation of his Guidelines range.

3 At one point, the District Court also apparently misunderstood the timeline central to 

Pena-Jaquez’s cooperation argument, stating that Pena-Jaquez’s cooperation in 2008 

“unfortunately . . . did not deter the defendant from his illegal reentry crime,” which was 

committed in 2006. This statement alone supports the conclusion that the District Court 

abused its discretion by imposing a procedurally unreasonable sentence because it 

constitutes a clearly erroneous factual conclusion. See United States v. Tomko, 562 F.3d 

558, 567–68 (3d Cir. 2009) (en banc). 
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II.

For the foregoing reasons, we will vacate the Pena-Jaquez’s sentence and remand 

for resentencing.