NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 09-2401

___________ UNITED STATES OF AMERICA

v. EDWARD CASTRO, JR. a/k/a EDDIE, a/k/a BIG E Edward Castro, Jr., Appellant

_____________ __________ On Appeal from the United States District Court for the Eastern District of Pennsylvania D.C. Criminal No. 2-03-cr-00173-002 (District Judge: Honorable R. Barclay Surrick)

______________ Submitted Pursuant to Th ird Circuit LAR 34.1(a) November 1, 2010 Before: SCIRICA, STAPLETON and ROTH, Circuit Judges. (Filed: November 12, 2010)

_________________ OPINION OF THE COURT

_________________ SCIRICA, Circuit Judge. On August, 10, 2004, Edward Castro, Jr. pleaded guilty to conspiracy to distribute more than 50 grams of cocaine base (“crack”) in violation of 21 U. S.C. § 846, possessionof crack with the intent to distribute in vi olation of 21 U.S.C. § 841(a)(1), and possession of crack with the intent to dist ribute within 1000 feet of a school in violatio n of 21 U.S.C. § 860(a). On April 28, 2006, the District Court sentenced Castro to 360 months’ imprisonment, ten years of supervised releas e, and imposed a $300 special assessment. Castro appealed his sentence arguing that th e District Court had erred in applying the 100:1 crack:powder ratio and had imprope rly applied guideline enhancements. We remanded for resentencing, United States v. Castro, 266 Fed. Appx. 92 (3d Cir. 2008), directing the District Court to consider the sentence in light of Kimbrough v. United States, 552 U.S. 85 (2007). But at the same tim e, we determined the District Court properly considered the sentenci ng factors in 18 U.S.C. § 3553(a). Castro , 266 Fed. Appx. at 94. At resentencing, the District Court adopted the same advisory guideline calculation, and sentenced Castro to 360 m onths’ imprisonment, eight years supervised release, and a $200 special assessment. Cast ro appeals his sentence, contending it is unreasonable. We will affirm. 1
I. Edward Castro, Jr., along with several ot hers, was involved in a conspiracy to produce and distribute crack cocaine in Readi ng, Pennsylvania. In January of 2000, Castro began supplying large qu antities of cocaine to Jose Se rrano, a leader of the crack distribution enterprise. Castro also contri buted financial resources to the criminal partnership, and later shared in the profits of the organization. At his sentencing hearing,

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

2Castro admitted that approximat ely 23 kilograms of crack co caine were distributed over the course of the crack selling conspiracy. Co-conspirator Jose Serrano testified at the hearing that Castro maintain ed a leadership position in the criminal enterprise. Moreover, it was also determined that duri ng the course of the conspiracy, Castro employed the use of firearms and bulletp roof vests to protect the operation. At the resentencing hearing, there wa s no objection to the sentencing guidelines offense level calculation and criminal history 2 , which provided for a sentence of life imprisonment. But Castro cont ended the length of his vacat ed sentence compared with the length of other co-defendants’ sentences was unreasonable. As noted, the District Court resentenced Castro to 360 months’ impr isonment, 8 years supervised release, and a $200 special assessment.
II. We generally review sentencing de cisions for abuse of discretion. Gall v. United
States , 552 U.S. 38, 51 (2007); United States v. Lychock , 578 F. 3d 214, 217 (3d Cir. 2009). Determining whether an abuse of discretion occurred requires a reasonableness analysis, which has both proced ural and substantive elements. Gall , 552 U.S. at 51. We first determine if there was procedural error. Id.

2 We ruled that the offense level calcul ation of 43, which included the various enhancements, was proper. Castro , 266 Fed. Appx. at 94. Cast ro’s criminal history score was III. He does not challenge these calcul ations. The guideline recommended sentence is life imprisonment.

3Procedural reasonableness “focuses on wh ether the District Court committed any error in calculating or e xplaining the sentence.” Lychock , 578 F. 3d at 217. At the resentencing hearing, the District Court pr operly calculated the guidelines range, adequately explained the chosen sentence, and sufficiently considered the 18 U.S.C § 3553(a) factors. See Gall , 552 U.S. at 51. Castro contends the District Court abused its discretion by failing to consider the factor in Section 3553(a)(6), which aims to “avoid unwarranted sentence disparitie s among defendants with simila r records who have been found guilty of similar conduct.” We disagree. “A defendant cannot rely upon Section 3553(a)(6) to seek a reduced sentence designed to lessen disparity betw een co-defendants’ sentences.” United States v. Parker , 462 F.3d 273, 277 (3d Cir. 2006). Section 3553(a)(6) does not address disparities among co-defendants’ sentences within a single case, but rather sentencing disparities among similarly situated defendants nationwide. United States v. Seligsohn , 981 F.2d 1418, 1428 (3d Cir. 1992) (citing United States v. Restrepo, 936 F. 2d 661, 670- 71 (2d Cir. 1991); United States v. Joyner , 924 F. 2d 454, 460-61 (2d Cir. 1991)). Giving proper consideration to the factors of Section 3553( a) does not require the sentencing court to consider disparities that may or may not ex ist among the sentences of co-defendants. There is no procedural error. Furthermore, Castro was not similarly situated to his co-defendants. Two codefendants received shorter sentences than Castro because they cooperated with authorities, and anot her co-defendant received a shorter sentence because he played a less

45 significant role in the conspiracy. The contentio n that Castro was similarly situated to his co-defendants lacks factual merit. The substantive reasonableness determin ation is based on the totality of the circumstances. Gall , 552 U.S., at 51. The substantive re asonableness of the sentence is reviewed under an abuse of discretion sta ndard, and a below guideline sentence may be granted a presumption of reasonableness. Id. As Castro’s sentence is below guideline range, and there is nothing in the record to in dicate any abuse of disc retion, the sentence imposed by the District Court is reasonable. The District Court properly considered all the relevant Section 3553(a) factors.
III. For the foregoing reasons, we will affirm th e judgment of convic tion and sentence.