NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 23-2734

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UNITED STATES OF AMERICA

v.

JEREMY GALINDEZ,

 Appellant

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On Appeal from the United States District Court for the 

Eastern District of Pennsylvania 

(District Court No. 5:22-cr-00266-001)

District Judge: Honorable Joshua D. Wolson

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

July 9, 2024

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Before: BIBAS, FREEMAN, RENDELL, Circuit Judges.

(Filed: July 22, 2024)

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O P I N I O N*

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* 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 Jeremy Galindez appeals his sentence imposed by the District Court for 

his conviction of possession of ammunition by a convicted felon in violation of 18 U.S.C. 

§ 922(g)(1). He argues that (1) this Court should vacate his sentence and remand for 

resentencing based on United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) 

Amendment 821, which retroactively lowered his criminal history score; and (2) the 

District Court plainly erred by inadequately explaining why it varied upwards and 

imposed an above-Guidelines sentence. Although Amendment 821 applies to Galindez, 

remanding the case for resentencing is an improper procedural remedy; and due to a lack 

of plain error regarding the adequacy of the District Court’s reasoning for the upward 

variance, we will affirm. 

I

Galindez pleaded guilty to possession of ammunition by a felon in violation of 18 

U.S.C. § 922(g)(1) after shooting a man in the leg during a bar fight.

1 The Presentence 

Investigation Report (“PSR”) determined that his total offense level was nineteen.2 PSR ¶ 

25. The PSR established that due to his three prior convictions, Galindez had five 

criminal history points. PSR ¶¶ 27, 29-31. Two “status points” were added because 

1 Galindez’s prior felony convictions include corruption of minors and lewd or lascivious 

exhibition. PSR ¶¶ 27, 29.

2 The base level for the offense was fourteen because a firearm was used in an aggravated 

assault. PSR ¶ 15. Five levels were added due to the firearm being discharged, and three 

additional levels were added because the victim suffered bodily injury during the 

shooting. PSR ¶ 16-17. Galindez received a three-level reduction due to accepting 

responsibility and timely notifying the government of his intent to plead guilty. PSR ¶ 23-

24. 
3

Galindez was on probation when he committed the immediate offense. PSR ¶ 32. The 

result was a criminal history category of IV. PSR ¶ 33. This produced a guideline range 

for his sentence of forty-six to fifty-seven months of incarceration. PSR ¶ 75. The District 

Court adopted the PSR’s calculations. App. 065-66. 

However, the District Court chose to vary upward sua sponte and imposed a sixtysix month sentence. The District Court stated:

I am ultimately very concerned here in this case. I—I think this conduct is 

problematic. I see a trouble[d] pas[t]. I see a pretty substantial criminal 

history here and frankly I am concerned that the criminal history that I’ve 

seen understates who Mr. Galindez is in the sense that he engaged in some 

pretty serious conduct and got off pretty lightly and the result of that was a 

relatively low score in the criminal history category process. I think he very 

easily could have been pushed up into category five if he had gotten heftier 

sentences for conduct that frankly from what I’ve read reads like it probably 

warranted it, and—and I would say that as much as anything more so than—

than seeing the video does lead me to think that a slight upward variance is 

appropriate here. I—so what I am going to do as a mechanical matter is I am 

going to vary upward one criminal history category I think that’s appropriate 

for the reason I just stated which would put me in a range of 57 to 71 months, 

and I am going to impose a sentence in the middle of that that’s 66 months[.]

App. 081-082. The District Court reiterated its reasoning in the Statement of Reasoning 

accompanying the Judgment which stated that: 

The defendant committed serious crimes as reflected in para[graphs] 27, 29, 

and 30 [of the PSR], but received minimal sentences for those crimes, 

resulting in a small number of criminal history points. Given the seriousness 

of the crimes and the defendant’s continued history of engaging in such 

conduct, I conclude that the criminal history score does not fully capture his 

past and his risk of recidivism. That, coupled with the wanton nature of the 

instant offense, leads me to conclude that an upward variance is appropriate. 

Galindez timely appealed. 
4

II3

A

Galindez argues that Amendment 821, which passed shortly after his sentencing,

applies to his case, and that this Court should thus remand the case for resentencing. This 

Court reviews whether a defendant is eligible for consideration of a reduced sentence due 

to the imposition of a retroactive sentencing guideline amendment under plenary review. 

United States v. McBride, 283 F.3d 612, 614 (3d Cir. 2002). Part A of Amendment 821 

amended Section 4A1.1 of the Guidelines to limit the overall criminal history impact of 

“status points.” Prior to the amendment, two “status points” were added if the defendant 

committed the instant offense “while under a[ny] criminal justice sentence.” U.S. Sent’g 

Guidelines Manual § 1B1.10 cmt. n.7. Following adoption of Amendment 821, an 

offender must have seven or more criminal history points before the two additional 

“status points” are added to the calculation. The Sentencing Commission stated that this 

change should be applied retroactively. Id. § 1B1.10(d). Under the new amendment, since 

Galindez’s subtotal criminal history points were fewer than seven, he would not have 

received the “status points.” This would have in turn reduced his guideline range to 

thirty-seven to forty-seven months. 

Although this amendment is applicable to Galindez, remanding for resentencing is 

not the appropriate remedy. New “substantive” amendments, like Amendment 821, are 

not applicable on appeal. See, e.g., United States v. Flemming, 617 F.3d 252, 267 (3d Cir. 

3 The District Court had jurisdiction under 18 U.S.C. § 3231. This Court has jurisdiction 

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. 
5

2010); United States v. Spinello, 265 F.3d 150, 160 (3d Cir. 2001); United States v. 

Marmolejos, 140 F.3d 488, 490-91 (3d Cir. 1998). The District Court correctly applied 

the guidelines that were in effect at the time of sentencing, so there is no error here. 

United States v. Omoruyi, 260 F.3d 291, 297 (3d Cir. 2001). Instead, Galindez may file a 

motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). See, e.g., United States v. 

Stewart, 86 F.4th 532, 535 (3d Cir. 2023).

B 

Galindez also urges that the District Court committed plain error by failing to 

adequately explain its reasoning for imposing an above-Guidelines sentence. Arguing that 

a district court failed to adequately explain the imposed sentence is a challenge of 

procedural error. Gall v. United States, 552 U.S. 38, 51 (2007).4

When, as here, a defendant fails to raise a procedural objection at sentencing, this 

Court reviews his claim for plain error. United States v. Flores-Mejia, 759 F.3d 253, 256 

(3d Cir. 2014) (en banc). To establish plain error, an appellant must (1) demonstrate that 

there was a legal error; (2) that it was plain and obvious; and (3) that it has affected his 

substantial rights, meaning that it was prejudicial and affected the outcome of the court 

proceedings. United States v. Olano, 507 U.S. 725, 732-34 (1993). If the appellant 

establishes plain error, this Court has the discretion to correct the error if it seriously 

affects the fairness, integrity, or reputation of judicial proceedings. Id. at 732. 

4 On appeal, Galindez notably only argues that the District Court committed procedural 

error and makes no argument that his sentence is substantively unreasonable. 
6

In order to allow for appellate review, the sentencing court must “provide a record 

sufficient to allow a reviewing court to conclude that the sentencing court exercised its 

discretion.” United States v. Ausburn, 502 F.3d 313, 328 (3d Cir. 2007). To survive 

review under a claim that a sentence is procedurally unreasonable, a district court must 

demonstrate that it: “(1) exercised its discretion by giving ‘meaningful consideration’ to 

the § 3553(a) factors; and (2) applied those factors reasonably by selecting a sentence 

grounded on reasons that ‘are logical and consistent with the [§ 3553(a)] factors.’” Id. 

Although Galindez argues that the District Court’s statements were insufficient to 

provide adequate explanation for his sentence, the record reveals otherwise. The District 

Court correctly followed sentencing procedure. First, it calculated the guideline range. 

Then, it gave meaningful consideration to the § 3553(a) factors, specifically noting that

Galindez: (1) chose to engage in an act of “potentially deadly violence” that was an 

“unwarranted escalation for a shove or a fight”; (2) came from a “substantially 

disadvantaged background”; (3) had a lack of employment history; (4) was willing to 

carry a firearm and engage in criminal conduct while on probation; (5) needed to be 

specifically deterred from future criminal activity and needed to receive just punishment; 

and (6) has a “long history of criminal conduct.” App. 078-080. Considering all of this, 

the District Court concluded that a “slight upward variance” was appropriate and varied 

upward one criminal history category. App. 082. The District Court further reiterated its 

reasoning in the Statement of Reasons. This is a sufficient explanation of reasoning to 

allow for appellate review and demonstrates that the District Court did not plainly err. 
7

In addition, Galindez argues that it was improper for the District Court to consider 

the types of prior crimes that Galindez committed instead of the sentences imposed for 

the prior crimes as required by the Sentencing Guidelines policy. Galindez draws 

attention to the statement made by the District Court: “[I]f he had gotten heftier sentences 

for conduct that frankly from what I’ve read reads like it probably warranted it . . . lead[s] 

me to think that a slight upward variance is appropriate here.” App. 081-082. Galindez

did not appeal the substantive reasonableness of the sentence, only the procedural 

reasonableness. This argument is not a procedural argument, but instead is a substantive

disagreement with how the District Court weighed the § 3553(a) factors. Moreover, the 

Guidelines allow a district court to vary upwards “[i]f reliable information indicates that 

the defendant’s criminal history category substantially under-represents the seriousness of 

the defendant’s criminal history or the likelihood that the defendant will commit other 

crimes, an upward departure may be warranted.” U.S.S.G. § 4A1.3(a)(1). The District 

Court made it clear that it believed that Galindez’s criminal history score did not 

accurately represent his criminal history and adequately explained so. Thus, the District 

Court adequately explained its reasoning for the upward departure, and thus there was no 

plain error. 

III

For the reasons stated above, we will affirm.