NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 14

- 4165

_____________ UNITED STATES OF AMERICA

v. BENISAIDA MENO

- BRUNO,

Appellant

_______________ On Appeal from the United States District Court for the Midd le District of Pennsylvania (D.C. No. 1

- 11

- cr - 00230

- 002) District Judge: Honorable Yvette Kane

_______________
Submitted Under Third Circuit LAR 34.1(a)

June 18, 2015
Before: AMBRO, FUENTES, and GREENBERG , Circuit Judges

.

(Filed : September 9, 2015 )

_______________ OPINION *

_______________

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

FUENTES, Circuit Judge. Benisaida Meno

- Bruno challenges the reasonableness of her within

- guidelines range sentence. For the following reasons, we affirm. 1

I.

Meno

- Bruno , along with her husband and two stepson s, was involved in a large

scale cocaine and heroin distributi on ring. For her part, Meno

- Bruno was observed on multiple occasions handing drugs to her codefendants during pre

- arranged drug deals with confidential informants. The police arrested her in a vacant building used to store drugs, weapons, and large amounts of money. Meno

- Bruno was indicted on a four

- count indictment charging various drug offenses, including conspiracy to distribute and possess with the intent to distribute cocaine hydrochlorid e and heroin. In January 2014, s he was convicted on three counts by a jury.
The sentencing hearing took place in October 2014. At the hearing, but prior to imposition of the sentence, Meno

- Bruno’s counsel raised an objection to the Pre

Sentence Report arguing that the drug offense levels overstated the seriousness of the offense in light of the pending applicability of Amendment 782. The United States Sentencing Commission passed this Amendment in July 2014, which was t o take effect in

1 The District Court had subject matter jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.3

November 2014. 2 The Amendment “reduces by two levels the offense levels assigned to the quantities that trigger the statutory mandatory minimum penalties, resulting in corresponding guideline ranges that include the mandatory minimum penalties.” 3 The District Court rej ected Meno

- Bruno’s argument, explaining that “[it did n ot] know what [the factors] w[ould] be. I have to say that at this juncture, I would have a hard time saying the words that I find the offense level overstates the seriousness of the offense here. I clearly don’t think it does. I think what we have here is a lack of proof. . . . I think that Ms. Benisaida Meno

- Bruno, her involvement was much greater than what she is being held responsible for.” 4 After consideration of the § 3553(a) factors, the Dist rict C ourt found that Meno

- Bruno and her husband were operating drug premises, but it did not hold her responsible for the full amount of the drugs because Meno

- Bruno’s level of involvement was unclear. Ultimately, the District Court sentenced her to 21

- m onths ’ imprisonment. This appeal followed.

2 The Amendment further provided that “[t]he court shall not order a reduced term of imprisonme nt based on Amendment 782 unless the effective date of the court’s order is November 1, 2015, or later.” U.S.S.G. 1B1.10(e). The Sentencing Commission’s reasons for the one year delay included alleviating overcrowded prisons, accommodating the sheer numb er of prisoners affected, allowing courts time to prepare for the influx of cases, and accounting for the public safety interest involved with offenders’ reentry into society. 79 Fed. Reg. 44973

- 01.
3 79 Fed. Reg. 25996

- 02.
4 App. 44.4 II.
On appeal, Meno

- Bruno argues that the District Court’s sentence was unreasonable because it failed to consider the applicability of Amendment 782. We review sentences for both procedural a nd substantive re asonableness. 5 First, we begin with procedural error, determining whether the District Court erred , for example, by “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 355 3(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence

— including an explanation for any deviation from the Guidelines range.” 6 Absent procedural error, we then review for substantive reaso nableness. “ We will affirm a procedurally sound sentence as substantively reasonable ‘unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.’” 7

The thrust of M eno - Bruno’s argument is that the District Court erred in failing to consider and then to apply the two

- level downward variance permitted by Amendment

5 See United States v. Tomko , 562 F.3d 558, 567 (3d Cir. 2009) (en banc).
6 United States v. Hoffecker , 530 F.3d 137, 196 (3d Cir. 2008) (quoting Gall v. United States , 552 U.S. 38, 51 (2007) )

. 7 United States v. Grober , 624 F.3d 592, 599 (3d Cir. 2010) (quoting United States v. Tomko , 526 F.3d 558, 568 (3d Cir. 2009)).5

782. 8 The Amendment, however, went into effect on November 1, 2014, one month after
Meno

- Bruno was senten ced. While we appreciate Meno

- Bruno’s argument regarding proximity in time, the District Court properly applied the Guidelines in effect at the time of sentencing, and we may not apply the amendment retroactively on appeal. 9 Moreover, we also reject Meno

- Bruno’s argument that the District Court failed to consider application of the Amendment. The District Court considered the Amendment , but held that application in this case was not warranted because the sentence did not overstate the seriousness of the crime. Instead, the District Court found that, if anything, it likely understated Meno

- Bruno’s involvement in the scheme.
Thus, we conclude that the District Court properly calculated the advisory Guidelines range, gave thorough consideration to the appr opriate § 3553(a) factors, and adequately explained the reasoning for rejecting Meno

- Bruno’s request for a downward variance. Because Meno

- Bruno fails to prove that “no reasonable sentencing court would

8 While Meno

- Bruno characterizes this as a substantive unreasonableness argument, in truth it is an argument of procedural unreasonableness

— i.e., “the form that the sentencing procedure has taken, e.g. , a cour t’s failure to give meaningful review to a defendant’s substantive arguments.” United States v. Flores

- Mejia , 759 F.3d 253, 256

- 57 (3d Cir. 2014)

. Because Meno

- Bruno failed to object on the record to any misapplication of the § 3553(a) factors after his sentencing , our review is for plain error. Id. at 258.
9 United States v. Wise , 515 F.3d 207, 220 (“[W]e have previously ruled that a post

sentencing amendment reducing the base offense level applicable to a particular offense is a substantive change and is therefore not applied retroactively to cases on appeal.”).6

have imposed the same sentence,” we find neither pro cedural nor substantive unreasonableness. 10

III.
Accordingly, for all the reasons stated above, we affirm the District Court’s sentence. We note, however, that Meno

- Bruno may file a motion with the District Court seeking a reduction in his term of impri sonment. 11 The District Court may reduce his sentence, if appropriate, provided that the effective date of the order is November 1, 2015, or later. 12

10 Tomko , 562 F.3d at 568.
11 See 18 U.S.C. § 3582(c)(2); Wise , 515 F.3d at 220

- 21.
12 See U.S.S.G. § 1B1.10(a), (d), (e)(1), cmt. 6.