2014 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

______________ No. 13

- 3378

______________ UNITED STATES OF AMERICA ,

v. MICHAEL RODRIGUEZ, Appellant

______________ A ppeal from the U nited S tates D istrict C ourt for the M iddle D istrict of P ennsylvania (D.C. No. 1

- 12

- cr - 0 0108

- 001 ) District Judge: Hon. John E. Jones III

______________ Submitted Under Third Circuit LAR 34.1(a) March 28, 2014

______________ Before: FUENTES and SHWARTZ, Circuit Judges , and ROSENTHAL , Distric t Judge

. * (Filed: March 31, 2014 )

______________ OPINION

______________ ROSENTHAL , District Judge

.

* The Honorable Lee H. Rosenthal, United States District Jud ge for the Southern District of Texas, sitting by designation.2 Defendant

- Appellant Michael Rodriguez pleaded guilty to a one

- count information charging him with distributing and possessing with intent to distri bute heroin, crack cocaine, and oxycodone, in violation of 21 U.S.C. § 841(a)(1). The United States District Court for the Middle District of Pennsylvania imposed a 27

- month sentence. In this appeal, Rodriguez argues only that the D is trict C ourt improper ly treated his juvenile adjudications as adult convictions in determining his sentence. We will affirm.
I We assume the parties’ familiarity with the facts and procedural history, which we recite only as needed to address the issue on appeal. On April 2 0, 2011, the Pennsylvania State Police arrested Rodriguez after he sold two bricks of heroin to a confidential informant. While on bail, in January 2012, Rodriguez sold crack to a confidential informant on three occasions. In addition, the police had inf ormation that Rodriguez had sold a large quantity of oxycodone from 2009 through 2011. On April 25, 2012, the grand jury indicted Rodriguez on two counts of violating 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. On December 13, 2012, a one

- count supersedin g information was filed charging Rodriguez with distributing and possessing, with intent to distribute, heroin, crack cocaine, and oxycodone, between January 1, 2011 through January 9, 2012, in violation of 21 U.S.C. § 841(a)(1).3 Rodriguez pleaded guilty to the superseding information on January 2, 2013. The written plea agreement included a nonbinding agreement that the advisory guideline imprisonment range was 21 to 27 months before adjusting for acceptance of responsibility. The presentence report cal culated a base level offense of 24 and a criminal history category of III, which generated a 63 to 78 month sentence. Rodriguez objected because it was above the range set out in his plea agreement. The D istrict C ourt sustained that objection, which the government did not resist, and set the advisory guideline range at 21 to 27 months, the “precise range that was contemplated in the plea agreement that defendant signed.” App. at 17. After hearing from Rodriguez, his counsel, and the government, the D istr ict C ourt proceeded to consider the § 3553(a) factors. The District C ourt noted that Rodriguez had a “remarkable criminal record” that “began at age 13” and “continued over the decade and a half since then. There are juvenile convictions , including one f or receipt of stolen property, two convictions for possession with intent to deliver a controlled substance, simple assault, and two convictions for simple possession.” Id. at 22

– 23 (emphasis added). The District C ourt noted that Rodriguez had “an adult criminal record that includes a conviction for a fight to avoid apprehension, three convictions for possession of marijuana and possession of paraphernalia, [and] five convictions for driving while operating privileges [were] suspended for DUI related offe nses.” Id. at 23. The court imposed a 27

- month sentence, the high end of the guideline range.4 Rodriguez appeals, arguing that the D istrict C ourt erred in treating his juvenile adjudications as adult convictions at sentencing. 1
II The parties assert tha t the abuse of discretion standard apples. United States v.
Jones , 566 F.3d 353, 366 (3d Cir. 2009) (quotation omitted). 2 W e first must “‘ensure that the District C ourt committed no significant procedural error in arriving at its decision.’” Id. (quotin g United States v. Wise , 515 F.3d 207, 217 (3d Cir. 2008)). “If we conclude that a court committed no procedural error, we then review the substantive reasonableness of the sentence.” Id.
III The District C ourt inaccurately referred to Rodriguez’s juven ile adjudications as juvenile convictions, but this was not a reversible procedural error. “Examples of procedural errors include ‘failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to cons ider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately

1 The D istrict C ourt had jurisdiction over this case under 18 U.S.C. § 3231, and we have appellate jurisdiction under 18 U.S.C. § 3742(a). 2 Although the parties identify abuse of discretio n as the standard, Rodriguez did not object during the sentencing hearing to his sentence or to the D istrict C ourt’s use of the word “conviction” to describe the adjudication of his juvenile cases ; plain error review applies. However, w hen a D istrict C our t does not abuse its discretion, plain error likely does not occur. See United States v. Dalfonso , 707 F.2d 757, 760 (3d Cir. 1983) (stating that plain error review is, “if anything, even more rigorous than the abuse of discretion standard”). As explaine d , the D istrict C ourt did not commit either plain error or abuse its discretion at sentencing, despite its inaccurate use of the word “conviction” to describe the resolution of Rodriguez’s juvenile cases.5 explain the chosen sentence.’” Id. (quoting Gall v. United States , 552 U.S. 38 , 51 (2007)). Rodriguez objected to the sentencing range in the PSR, stating that he “strongly believe[d] that the guideline range should be 21 to 27 months” based on the plea agreement. PSR Objs. at 1 (March 25, 2 013). The District C ourt sustained the objection and set the range as Rodriguez requested. Afte r noting Ro driguez’s juvenile record, the District C ourt discussed his “adult criminal record” a nd thoughtfully discussed the § 3553(a) factors. App. at 23. The District C ourt imposed a sentence within the guideline range the parties agreed to. The recor d belies the assertion that the District C ourt improperly calculated the guidelines range or imposed a sentence based on an erroneous view of Rodriguez’s juvenile record. The D istrict C ourt’s mi s statement was not a “significant procedural
error.” See Jon es, 566 F.3d at 366.
IV The sentence was also substantively reasonable. “As long as a sentence falls within the broad range of possible sentences that can be considered reasonable in light of the § 3553(a) factors, we must affirm.” Wise , 515 F.3d at 218 . The sentence was within the guideline range , and the D istrict C ourt carefully explained how the § 3553(a) factors led him to the sentence imposed. Finding no reversible error , we will affirm

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