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. e du/thir dc ir c uit_2013/158PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 12

- 3575

____________

UNITED STATES OF AMERICA

v.

AN T ONIO FIGUEROA

a/k/a BABY FAT FACE

Antonio Figueroa

,

Appellant

On Appeal from the United States District Court for the District of New Jersey (D. C. No. 1

- 1 0

- cr

- 00 685

- 001) District Judge: Honorable Robert B. Kugler

Argued on July 17 , 201 3

Before: RENDELL, SMITH and ROTH, Circuit Judges2 (Opinion filed : September 3, 2013 )

Ralph A. Jacobs , Esquire ( Argued) Jacobs Singer Kivitz & Herman LLC

34 Tanner Street Haddonfield, NJ 08033

Couns el for Appellant

Glenn J. Moramarco , Esquire (Argued)

Office of United States Attorney Camden Federal Building & Courthouse 401 Market Street, Fourth Floor Camden, NJ 08101

Mark E. Coyne, Esquire

Office of United States Attorney 970 Broad Street, Suit e 700 Newark, NJ 07102

- 2535

Counsel for Appellee

O P I N I ON3 ROTH

, Circuit Judge :

Antonio Figueroa appeals the District Court‟s September 11, 2012, judgment s of conviction and sentence. Figueroa was convicted of civil rights violations un der 18 U.S.C. §§ 241 and 242 and sentenced to ten years imprisonment. On appeal, he challenges his conviction on four grounds: (1) the District Court erred by admitting the

out

- of

- court statemen t of co

- defendant Robert Bayard, (2) the

District Court erre d by excluding

, as cumulative

, police reports that Figueroa offered into evidence, (3) the District Court erred by allowing improper expert opinion testimony from a prosecution fact witness on issues of constitutional law, and (4) the District Court erred by refusing to give the jury Figueroa‟s requested instruction concerning specific intent. Figueroa challenges his sentence on two grounds: (1) the District Court erred by applying the drug distribution sentencing guideline to Fig ueroa‟s civil rights viol ations, and (2) his sentence was substantively unreasonable. For the following reasons, we will affirm the District Court‟s judgment s of conviction and sentence

.

I. Background

Figueroa joined the police force in Camden, New Jersey

, in 2003. In July 2008 , he was transferred to a new Special Operations Unit created to target guns, drugs and
violence in Camden‟s most crime ridden neighborhoods. Figueroa was assigned to the “fourth platoon” with his regular partner, Robert Bayard

, as well as Sergeant Dan Mo rris, and

officers Jason Stetser and Kevin Parry. On September 6, 2011, Figueroa and Bayard were charged in a six count superseding indictment with a series of civil rights violations

.4 In addition to five substantive civil rights violations, they

were ch arged with conspiring with Stetser, Parry, and Morris to deprive others of their civil rights. A three week jury trial began on November 15, 2011. Stetser, Parry, and Morris all

testified at trial as cooperating witnesses with plea
agreements. O ther law enforcement officers and citizens who were victims of or witnesses to the activities alleged in the

indictment also testified . Over the course of trial, t he government presented evidence regarding twelve incidents in which Figueroa allegedly deprived ind ividuals of their civil rights. There are six specific incidents of misconduct described below that are relevant to Figueroa‟s arguments on appeal.

August 9, 2008 : Figueroa and Stetser were conducting surveillance on an open

- air drug market and

observed “A.K” sell drugs to “T.C.” When they arrested the participants, Stetser found a bundle of crack cocaine and Figueroa found a bag filled with money. Morris, Figueroa

, and Stetser took some of this money for themselves. After the arrest, T.C. cooperated with the officers and gave them information about other drug

- dealing activity, but A.K. did not. Stetser and Figueroa attributed to A.K. drugs and a gun that were not actually found on him. Speci fically, they

attributed to him (1) drugs that Stetser had stashed in a nearby tree, (2) a handgun located in a house that T.C. told them about, and (3) the “re

- up stash” of drugs they found in a nearby garage. Figueroa wr ote the falsified police report

about this incident.

September 14, 2008 : Figueroa, Stetser , Parry, and Morris conducted illegal searches in the Winslow Court apartment complex based on information from an informant.5 The officers broke into Apartment C, where they found between $1,500 and $2,000, and then searched, without

consent or a warrant, Apartment G, where they found $10,000. When they found no drugs, they confronted their informant who pointed them to a mailbox in the complex, where they found a large stash of cocaine. Figueroa wrote the police report, in which he falsely claimed that they had seen someone take drugs out of the mai lbox, throw a bag in Apartment G and flee through Apartment C . The report stated that they had recovered only $1,531 in cash.

September 17, 2008 : Figueroa and Bayard arrested
“D.B.#1” on the street who then told them that he had a gun

at home. The officers then drove to his ho us e, coerced his mother into signing a consent to search form, and found a firearm in a bedroom closet. Figueroa‟s police report falsely claimed that he found the firearm in plain vie w after chasing

D.B.#1 into the ho us e and arresting him there. Figueroa also underreported the amount of money that was seized during

the events.

September 17, 2008: Figueroa, Bayard, Stetser, and Parry apprehended “A.F” and “T.R.” Angry that A.F. and T.R. had fought them, Figueroa, Bayard, Stetser, and Parry decided to plant drugs on A.F. and T.R. Bayard wrote the false police report about this incident.

April 3, 2009 : Figueroa, Stetser, and Parry, based on information from an informant, found “L.M .” in a car and searched the car, expecting to find drugs. They found no drugs in L.M.‟s car, but Parry found crack cocaine in the gas cap of a vehicle that was parked on the opposite side of the

street and several cars away. Figueroa falsely stated in t he6 police report that he had seen L.M. walking down the street carrying the drugs in his right hand. Parry gave the drugs he found in the gas cap to Figueroa, and Figueroa turned the drugs in as evidence.

August 21, 2009 : Stetser conducted a warrantles s search of a trailer based on a tip that “J.M.” was selling drugs out of it. He found 32 bags of crack cocaine in a compartment on the door of the trailer. Figueroa falsely claimed in his police report that he had observed J.M. engage

in a hand

- to

- hand drug transaction and that J.M. had 32 bags

of a rock

- like substance in his right pocket.

On December 9, 2011, the jury returned a guilty verdict against Figueroa on Count 1 of conspiracy to deprive others of civil rights and on Counts 2 and 3 of substanti ve civil rights violations relating to incidents occurring between September 14 and September 17, 2008. The jury acquitted

F igueroa of the remaining counts and acquitted Bayard on all counts. Figueroa filed motions for a judgment of acquittal, or

in the alternative, a new trial under Federal Rules of Criminal Procedure 29 and 33 on December 23, 2011. The District Court denied both motions. He was sentenced to ten years imprisonment on September 7, 2012. This appeal followed.

III. Discussion 1
Figueroa challenges both his conviction and sentence on appeal. Because the most significant issue in this appeal is the application of the drug distribution sentencing guideline

1 The District Court had jur isdiction over this case pursuant to 18 U.S.C. § 3231, and we have jurisdiction over the appeal pursuant to 28 U.S.C. § 129 1 and 18 U.S.C. § 3742(a)

.7 to Figueroa‟s civil rights violations, we will deal with that

issue first.

A. Appli cation of the Drug Distribution

Guideline

Figueroa argues that the District Court erred in applying the drug distribution sentencing guideline, U.S.S.G. § 2D1.1, to his civil rights violations in this case because he

was not convicted of offenses involvin g the distribution of drugs. 2

Figueroa was convicted of violations of 18 U.S.C. §§ 241 and 242. The applicable sentencing guideline for these violations is U.S.S.G. § 2H1.1. Under U.S.S.G. § 2H1.1(a), the base offense level should be the greatest of th e enumerated options, including “the offense level from the offense guideline applicable to any underlying offense.” U.S.S.G. § 2H1.1(a). Application Note 1 explains that “offense guideline applicable to any underlying offense” refers to “the offense gui deline applicable to any conduct established by the conviction that constitutes an offense under federal, state, or local law . . ..” U.S.S.G. § 2H1.1, Application Note 1. Where the conduct established by the conviction constitutes more than one underlyi ng offense, the court should look to the underlying offense that carries the highest offense level. U.S.S.G. § 2H1.1, Application Note 1.

2 We exercise plenary review over the District Court‟s construction of the Sentencing Guidelines but revi ew the
District Court‟s factual determinations for clear error. United

States v. Cordo , 324 F.3d 223, 229 (3d Cir. 2003).8 Additionally, under U.S.S.G. § 2H1.1(b), if the defendant was a public official or the offense was committed under c olor of law, the base offense level should be increased by 6 levels. U.S.S.G. § 2H1.1(b).

Here, the presentence report, in accordance with U.S.S.G. § 2H1.1, presented an analysis of the conspiracy‟s underlying offenses and offense levels. The presentenc e report concluded that applying U.S.S.G. § 2D1.1, the drug distribution sentencing guideline, would produce the highest offense level in Figueroa‟s case: an offense level of 26. 3
Once increased by 6 levels as provided in U.S.S.G. § 2H1.1(b), Figueroa‟s proposed offense level was 32. At sentencing, the District Court adopted this base offense level over Figueroa‟s objection.

In using U.S.S.G. § 2D1.1 to determine Figueroa‟s base offense level, the District Court relied heavily on a

recent case, United States v. Cortes

- Caban , 691 F.3d 1, 16 (1st Cir. 2012), in which the First Circuit Court of Appeals held that police officers who conspired to plant drugs on individuals to fabricate criminal offenses were properly convicted of conspiracy to possess contr olled substances with an intent to distribute in violation of 21 U.S.C. §§ 841(a) and

846. 4 The court reasoned that the plain language of 21 U.S.C.

3 The other underlying offenses and offense levels proposed in the presentence report were: (1) illegal searches (offense level 18) ; (2) false reports (offense level 8); larceny (offense level 6); and perjury (offense level 17).

4 A violation of § 841(a) falls under U.S.S.G. § 2D1.1 , and

thus the Cortes

- Caban analysis of the term “distribute” in § 841(a) is relevant to Figueroa‟s se ntencing under U.S.S.G. §9 § 841(a), which deems it “unlawful for any person knowingly or intentionally

— (1) to manufacture, distribut e, or dispense, or possess with intent to manufacture, distribute, or dispens e, a controlled substance . . . ”

, encompassed the police officers‟

conduct. Cortes

- Caban , 691 F.3d at 16 (quoting 21 U.S.C. § 841(a))

. The court focused on the meaning of “distr ibute” in the statute, noting that the Controlled Substances Act defines “to distribute” as “to deliver (other than by administering or dispensing) a controlled substance or a listed chemical” and defines “deliver” as “the actual, constructive, or attempte d transfer of a controlled substance or a listed chemical, whether or not there exists an agency relationship.” Id. at 17 (quoting 21 U.S.C. §§ 802(11), 802(8)). 5 Based on this definition of “distribute,” that court found that “[t]he
defendants‟ acts of transferring drugs amongst each other and to the victims constitutes an intent to distribute the drugs under § 841(a)(1), which results in a transfer of possession of a controlled substance, in other words a „distribution,‟” and upheld the police officers‟ convictions under 21 U.S.C. §§ 841(a) and 846. 6 Id. at 18, 26.

2D1.1.

5 The court interpreted “transfer” by reference to its commonly accepted meaning because it is not defined in the

Controlled Substances Act. Cortes

- Caban , 691 F.3d at 17 (“To transfer means „to carry or take from one per son or place to another . . . ; to move or send to a different location . . . ; to cause to pass from one person or thing to another.‟” (quoting Webster’s Third New International Dictionary 2426

- 27 (1993))).

6 We note that the police officers in Cortes

- Cab an , i n addition to being convicted of violations of 21 U.S.C. §§ 841(a) and 846, were also convicted of civil right s violations under 1810 In this case, the District Court, upon identifying the distribution of narcotics as an underlying offense based on relevant paragraphs of the superseding indictment, which “all allege traf ficking in drugs, planting of drugs on individuals,” reviewed the evidence from trial regarding four specific instances of drug distribution on August 9th, September 17th, April 3rd and August 21st. Applying the reasoning of Cortes

Caban , the District Cou rt stated: “The [ Cortes

- Caban ] defendants‟ act of transferring the drugs amongst each other
and to the victims constitutes . . . a distribution. And that‟s what happened in some of these instances here.” 7 On that basis, the District Court found “beyond a reasonable doubt

that [ Figueroa ] was involved in distribution of narcotics.” Because U.S.S.G. § 2D1.1 is the offense guideline applicable to the distribution of narcotics, the District Court applied U.S.S.G. § 2D1.1 here and adopted the proposed offense level

of 32. 8

U.S.C. § 241. Cortes

- Caban , 691 F.3d at 5

- 6.

7 We note that the District Court adopted the reasoning of

Cortes

- Caban i n a different context: whereas the court in

Cortes

- Caban adopted this interpretation of “distribute” in reviewing police officers‟ convictions of conspiracy to possess controlled substances with the intent to distribute, the

District Court in this case ad opted this interpretation in sentencing Figueroa for convictions of civil rights violations involving the distribution of drugs. However, this distinction does not affect our analysis here.

8 The District Court stated: “For this guideline to apply ther e only needs to be 28 grams. There‟s more than 28 grams in

those four instances. Therefore I think the Probation Department is correct as to the offense level, and I‟m going to11 We conclude that the District Court correctly found that Figueroa engaged in distribution of narcotics and therefore its application of U.S.S.G. § 2D1.1 was proper in this case. In so holding, we adopt the court‟s interpretation in

Cortes

- Caban of the meaning of “distribute” under 21 U.S.C. § 841(a). This interpretation comports with the plain language of the statute and its legislative history. Under the plain language of the statute, a “distribution” encompasses the

transfer of a contr olled substance from one person or place to another and thus the planting of controlled substances on

individuals to facilitate false arrests. Cortes

- Caban , 691 F.3d

at 17

- 18. Congress made a deliberate choice to use broad language in § 841(a), and court s have interpreted “distribute” broadly in the context of § 841(a). Id. Moreover, the statute carves out specific exceptions for legitimate activities, such as the distribution of drugs by certain registered persons and by

law enforcement officers lawful ly engaged in the enforcement of controlled substances laws, which supports the application of § 841(a) to conduct outside those exceptions. Id. at 18

- 19 (citing 21 U.S.C. §§ 822(b), 885(d)).

I n challenging his sentence

, Figueroa attempts to rely on Judge Torruella‟s dissent in Cortes

- Caban

. 9 Figueroa‟s

find the total offense level is 32 in this case for the reasons expressed.” Figueroa does not challenge the drug quantity calculation on appeal.

9 Judge Torruella dissented in Cortes

- Caban on the basis that the majority‟s “analysis incorrectly center[ed] on whether the officers‟ actions could properly constitute „distribution,‟ an issue . . . not before [the court] . . .” and “blurr[ed] the

distinction between the actus reus of one crime and the mens

rea of another (distribution versus possession with intent to12 reliance on this dissent is misplaced because Judge Torruella focused on the specific intent required to convict for possession of controlled substances with the intent to

distribute. Cortes

- Caban , 691 F.3d at 30

- 31 (Torruella, J., dissenting). Here, however, the District Court did not find that Figueroa possessed narcotics with the intent to distribute

but rather found that he was involved in the distribution of

na rcotics, a general intent crime. T he specific intent discussion in Judge Torruella‟s dissent is irrelevant here. 10

Figueroa also argues that, even under the Cortes

-

distribute) . . . .” Cortes

- Caban , 691 F.3d at 30

- 31 (Torruella, J., di ssenting). Because the police officers in Cortes

- Caban were convicted not of distribution but of possession with the intent to distribute, Judge Torruella asserted that the relevant inquiry was not whether the police officers‟ acts constituted

distributio n but whether the police officers had the specific

intent to distribute controlled substances. Id. He concluded that the government had not proven the requisite specific intent and thus the police officers‟ convictions under 21 U.S.C. §§ 841(a) and 846 s hould not be affirmed. Id. at 47.

10 Figueroa also attempts to distinguish Cortes

- Caban on the facts, but this attempt i s unavailing. First, he asserts that the police acts in Cortes

- Caban were entirely unlawful. Because his own acts were equally unlawfu l, this is not a convincing grounds on which to differentiate the instant case. Second, he argues that the police officers in Cortes

- Caban intended to introduce drugs into society‟s illicit channels. This is inaccurate: Judge Torruella noted in his diss ent that “the drugs never left the control or authority of the police
officers.” Cortes

- Caban

, 691 F.3d at 46 n.57 (Torruella, J., dissenting).13 Caban interpretation of “distribution” in § 841, there was no “distribution” here. Figueroa alleges that the only trans fer of drugs was from Figueroa to the police evidence room and that “[t]he act of turning drugs into the police evidence room simply is not a criminal drug offense.” T his is an in accurate characterization of the facts. At sentencing, Figueroa‟s

counsel s uggested that at least one of the incidents involved a

co

- conspirator planting drugs on a n individu al or on the

scene. He stated: “[t] hat except for Stetser‟s testimony about the stash in a tree, I believe all of the other incidents are

incidents where A ntonio Figueroa or someone with him at the scene took contraband and turned it in. And so, . . . I believe five out of six [of the incidents listed in the presentence report] don‟t fit into that category.” Moreover, the District Court stated in response , “[e]ven if one does [involve the planting of drugs], then [Figueroa] is to be judged under . . . the drug distribution guidelines . . ..”

Because we conclude that Figueroa engaged in the distribution of drugs in committing civil rights violations, th e District Court properly applied U.S.S.G. § 2D1.1 in sentencing him. 11 However, we urge that this application of the drug distribution sentencing guideline be strictly limit ed to civil rights violations in cases like this one where drug

distribution const ituted an active part of the civil rights

violation , and where, as here, the District Court specifically finds that the drug distribution was clearly established by the

11 We note that this application of § 841(a) to the planting of drugs by police officers is not a common applic ation. As the

court noted in Cortes

- Caban , there have not been any other decisions on prosecutions under § 841 for the planting of drugs. 691 F.3d at 22.14 offense of conviction

. 12

B

. Challenges to the Conviction

Turning to Figueroa‟s chall enge to his conviction, he

raises four arguments : (1) the District Court erred by admitting the out

- of

- court statemen t of co

- defendant Robert Bayard, (2) the District Court erred by excluding

, as cumulative

, police reports that Figueroa offered into

evide nce, (3) the District Court erred by allowing improper expert opinion testimony from a prosecution fact witness on issues of constitutional law, and (4) the District Court erred by refusing to give the jury Figueroa‟s requested instruction concerning speci fic intent. For the reasons that follow, these arguments are unavailing

, and we will affirm his conviction.

12 Figueroa also suggests in a footnote in his opening brief that “[a]pplying the Narcotics Distribu tion guidelines would . . . run afoul of [his] Sixth Amendment rights by virtue of the fact that the jury in this case . . . was not asked to consider a drug dealing case, thus its verdict cannot be construed as a finding that narcotics distribution occur r ed.” The District Court‟s application of the drug distribution sentencing guidelines did not violate Figueroa‟s Sixth Amendment rights. Under Apprendi v. New Jersey , “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” 530 U.S. 466, 490 (2000). Here, because Figueroa‟s sentence does not exceed the statutory maximum, this finding did not need to be made by a jury and thus Figueroa‟s Sixth Amendment rights were not violated.15 First, Figueroa argues that the District Court erred by admitting an out

- of

- court statement by co

- defendant Bayard. 13 Figueroa challenges the adm ission of the following testimony by co

- conspirator Parry regarding Bayard‟s out

- of

court statement about Figueroa:

Q. Did you have a conversation with Mr. Bayard during one of these three nights about the search at 1017 Spruce Street?

A. Yes, I did.

Q. What was said during that conversation?

A. Bayard was complaining about the report that Figueroa had written. He said the report was F‟d up. And he tried talking to Figs about the right way to write the report and he didn‟t

want to listen.

The D istrict Court admitted this statement as a statement in furtherance of the conspiracy under Federal Rule of Evidence 801(d)(2)(E ) which provides that a statement “made by the party‟s coconspirator during and in furtherance of the conspiracy” is not hearsay . Fed. R. Evid. 801(d)(2)(E). For a statement to be admitted under this rule, “the proponent

13 “We review a District Court‟s decision to admit or exclude evidence for abuse of discretion, although our review is plenary as to the district court‟s interpretation of the Federal

Rules of Evidence.” United States v. Duka , 671 F.3d 329, 348 (3d Cir. 2011) (internal quotation marks and citations omitted).16 must establish by a preponderance of the evidence that (1) the conspiracy existed; (2) both the defendant and the declarant were members of the conspiracy; and ( 3) the statement was made in the course of the conspiracy and in furtherance of the conspiracy.” United States v. Bobb , 471 F.3d 491, 498 (3d Cir. 2006). The furtherance requirement is usually given a broad interpretation. Duka , 671 F.3d at 348

Figue roa argues that Bayard‟s statement was not made in furtherance of the conspiracy and therefore the third prong

of this test was not met. I n response to Figueroa‟s post

- trial motion on this issue, the District Court held that the statement

was a comment on the inability to instruct a co

- conspirator on how to write police reports so that no one got into trouble.

We find ample evidence in the record to support the District
Court‟s conclusion that the writing of false reports was part of the conspiracy and th at Bayard‟s statement

, expressing concern about Figueroa‟s inept report

- writing

, was in furtherance of the conspiracy. 14

14 Figueroa also challenges the admission of this statement

under the Confrontation Clause and Bruton v. United States

, 391 U.S. 123 (1 968). The protections of the Confrontation

Clause and Bruton apply only to testimonial statements

. See

United States v. Berrios , 676 F.3d 118, 126

- 29 (3d Cir. 2012) (noting that “where nontestimonial hearsay is concerned, the

Confrontation Clause has no role to play in determining the admissibility of a declarant‟s statement” and that Bruton is also limited to testimonial statements). Bayard‟s statement to Parry was not a testimonial statement. See United States v

. Crawford, 541 U.S. 36, 51

- 52 (2004) (i dentifying as the core class of testimonial statements “ex parte in

- court testimony,” “extrajudicial statements,” and “statements . . . made under17 Second, Figueroa argues that the District Court erred by excluding

, under Federal Rule of Evidence 403

, police reports that Figueroa of fered into evidence

. 15 Under Rule 403, a court “may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly pres enting cumulative
evidence.” Fed. R. Evid. 403. Here, the District Court excluded the proffered police reports because the defendants failed to establish that the reports had any probative value beyond the fact that they were false , which the witness had already acknowledged in his testimony. On that basis, the

District Court concluded that giving these reports to the jury would “just wast[e] time.” We conclude that there was no error in the District Court‟s exclusion of these reports

.

Third, Figueroa argues that the District Court erred by allowing improper expert opinion testimony from a prosecution fact witness on issues of constitutional law. 16
Specifically, he alleges that prosecution fact witness Michael Lynch of the Camden Police Department impe rmissibly testified that a signed consent to search form was a

circumstances, which would lead an objective witness reasonably to believe that the statement would be availa ble for use at a later trial”). Therefore, Figueroa‟s Confrontation

Clause and Bruton argument is inapposite.

15 “We review a district court‟s decision to admit or exclude evidence for abuse of discretion, and such discretion is construed especially broad ly in the context of Rule 403.” United States v. Kemp , 500 F.3d 257, 295 (3d Cir. 2007) (internal quotation marks and citation omitted).

16 F o r sta n dard o f rev iew see footnote 13

.18 constitutional requirement rather than just local police department procedure.

On direct examination, Lynch stated that a consent to
search form must be signed before a search is conducted and then added, “that‟s not a Camden Police Department procedure, that the [sic] established by law and constitutional procedure.” Figueroa did not contemporaneously object to this statement but instead questioned Lynch further on this point on cross

- exam ination. Figueroa subsequently objected to “the law or legal concepts . . . coming from the witn ess stand, from fact witnesses” and asserted that Lynch‟s testimony “has confused the jurors into thinking they have gotten some guidance on what the constitut ional law is.” In response to Figueroa‟s objection, the District Court found that the jury had not been left with an impression that Lynch was testifying about what th e Constitution requires, stating , “[i]t was very clear to me and very clear to the jury [ that the Camden Police Department procedures] is what the witness was talking about.” At the conclusion of trial, t he District

Court properly instructed the jury on constitutional requirements concerning consent to search

. From our review of the record, we agree with the District Court‟s assessment that Lynch was testifying about Camden Police Department procedures, not constitutional law.

Fourth, Figueroa argues that the District Court erred by refusing to give the jury his requested instruction con cerning specific intent under 18 U.S.C. § 242

. 17 The District Court

17 “Review of the legal standard enunciated in a jury instruction is plenar y, . . . but review of the wording of the instruction, i.e. , the expression, is for abuse of discretion.”19 instructed the jury that to convict under § 242, the government must prove beyond a reasonable doubt that Figueroa (1) “acted under the color of law;” (2) “deprived a person or persons all eged in the particular count of the Indictment of their Constitutional liberty and property rights, without due process of law, or their Constitutional right to be free from unreasonable search and seizures;” and (3) “acted knowingly, intentionally, and wi llfully.” The District Court further instructed the jury :

T he specific intent required by law . . . is an intent to deprive a person of a federal right which has been made definite either by express

terms of the Constitution or laws of the United

States or by decisions interpreting them, or to act with reckless disregard of a constitutional requirement which has been made specific and

definite. . .

.

You may find the particular defendant under consideration acted with the requisite specific intent, even if you find the defendant had no real familiarity with the specific constitutional rights involved, provided you find that the defendant under consideration willfully and consciously did the act which deprived the person of his or her constitutional rights

.

You may find a particular defendant acted

United States v. Yeaman , 194 F.3d 442, 452 (3d Cir. 1999) (citations omitted).20 willfully if he performed an act in open defiance or reckless disregard of a constitutional [ re qu irement ] which has been made specific and

definite.

On appeal, Figueroa claims that the District Court erred by r ejecting the following proposed instruction on the issue of specific intent:

It is not necessary for the government to prove that the defendant was thinking in specific constitutional terms provided that the government proves that the defendant‟s aim was not to enforce local law but to deprive a citizen of a right and that right was protected by the

Constitution.

We find no error here. The District Court‟s jury instruction correctly stated the law. See United States v.

Johnstone , 107 F.3d 200, 208 (3d Cir. 1997) (holding that a defendant “need not be „thinking in constitutional terms‟ in order to be convicted of violating § 242” and that “it is enough to trigger § 242 liability if it can be proved . . . that a defendant exhibited reckless disregard for a co nstitutional or federal right.” (quoting Screws v. United States , 325 U.S. 91, 106 (1945)) )

. Furthermore, as the District Court noted, the use of the term “not to enforce local law” in Figueroa‟s proposed instruction is “very confusing.” W e conclude,

t herefore

, that the District Court ‟s jury instruction correctly

stated the law and that the c ourt did not abuse its discretion in rejecting Figueroa‟s proposed instruction

.

C. S ubstantive Reasonableness of the Sentence21 F inally, Figueroa argues that h is sentence was substantively unreasonable based on the discrepancy between the length of his sentence and those of his co

- conspirators.

We review a sentence for substantive reasonableness under an abuse of discretion standard, and the party challenging t he sentence bears the burden of showing unreasonableness.

United States v. Tomko , 562 F.3d 558, 567 (3d Cir. 2009). “A sentence that falls within the guidelines is more likely to be reasonable than one outside the guidelines range.” United

States v. Coo

per , 437 F.3d 324, 332 (3d Cir. 2006). Figueroa has not borne his burden of proving the substantive

unreasonableness of his within

- guidelines sentence. He has done no more than note the disparity between his sentence

and the sentences of his co

- conspirat ors . This alone does not

demonstrate substantive unreasonableness. See United States

v. Parker , 462 F.3d 273, 277 (3d Cir. 2006) (“Congress‟s primary goal in enacting § 3553(a)(6) was to promote national uniformity in sentencing rather than uniformity

am ong co

- defendants in the same case.”). Therefore

, Figueroa‟s sentence was not substantively unreasonable.

I V. Conclusion

For the foregoing reasons, we will affirm the District Court‟s judgment s of conviction and sentence.