2013 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. 11

- 3933

______________ UNITED STATES OF AMERICA,

v. MIGUEL SANDOVAL

- CASTILLO , Appellant

_______________ Appeal from the United States District Court For the Eastern District of Pennsylvania (D.C. Criminal No. 5

- 11

- cr - 00214

- 001 ) District Judge: Honorable James Knoll Gardner

______________ Submitted Under Third Circuit LAR 34.1(a) September 28 , 20 12 Before: McKEE, Chief Judge , JORDAN and VANASKIE , Circui t Judges (Opinion Filed : May 22, 2013)

______________ OPINION

______________ MCKEE, C hief Judge Miguel Sandoval

- Castillo has appealed the district court’s refusal to grant a downward variance from the sentence suggested by the applicable guidelines range following his conviction for illegal reentry in violation of 8 U.S.C. §§ 1326(a) and (b)(2)

. For the reasons that follow, we will dismiss this appeal

.2 As we write only for the parties who are familiar with the facts and procedural history of this case, we need not det ail them here. Sandoval

- Castillo pled guilty to one count of illegal reentry after deportation, in violation of 1 8 U.S.C. § 1326(a) and (b)(2 ), and was sentenced to thirty months’ imprisonment, a three year term of supervised release, and a special assess ment of $100.00. This appeal follow ed

. I. 18 U.S.C. § 3742 per mits a defendant to appeal a sentence based on a belief that the District Court lacked the authority to grant a downward modification, but does not permit an appeal where the claim is merely th at the trial court abused its discretion. United
States v. Ruiz , 536 U.S. 622, 627 (2002). I f the D istrict C ourt understood that it had the authority to downwar dly depart from the sentencing g uidelines but chose not to, we lack jurisdiction to review tha t decision. Id

. ; see also United States v. Cooper , 437 F.3d 324,
332

- 33 (3d Cir. 2006) ( concluding “18 U.S.C. §§ 3742(a) and (b) reflect Congress’ intent to foreclose review of a sentencing court’ s decision not to depart ” from advisory
g uidelines (citatio n omitted)). 1
Sandoval

- Castillo contends that the D istrict C ourt failed to adequately consider a variance from the guidelines and imposed a substantive ly unreasonable sentence. Specifically, he argues the District Court failed to adequately address the factors set forth

1 The question of whether this court’s jurisdiction has been properl y invoked is reviewed de novo. In re Blatstein , 192 F.3d 88, 94 (3d Cir. 1999).3 in 18 U.S.C. § 3553(a)(1), by not adequately accounting for his relative level of cultural assimilation or the fact that his conviction is not in a “ fast

- track ” jurisdiction.
T he D istrict C ourt is obligated to impose a sentence that is no greater than necessary to accomplish the statutory purpose of sentencing while considering each of the factors set forth in 18 U.S.C. § 3553(a) along with any other arguments properly raised by the parties

. United States v. Booker , 543 U.S. 220 (2005) ; Rita v. United States , 551 U.S. 338 (2007); Kimbrough v. United States , 552 U.S. 85 (2007); Cooper , 437 F.3d at 332. Our review of this record convinces us that the D istrict C ourt considered the relevant facts and arguments as required by § 3553(a), an d that t he court knew it could deviate from the advisory Guidelines. The D istrict C ourt considered, inter alia , Castillo

Sandoval’s age upon entry into the United States, the nature and extent of his criminal history, the extent to which he had family in the United States, and his risk of recidivism

. T hat court also considered whether the absence of a “ fast track ” program in the Eastern District of Pennsylvania warranted a downward modification, but rejected it because Sandoval

- Castillo most likely would not have qualified for such a program because of the nature of his criminal history and because he had not waive d his appellate rights

. Finally,

a fter hearing arguments pertaining to the appropriate sentence under 18 U.S.C. § 3553(a), the D istrict C ourt i mposed a sentence at the bottom of the Guideline range , concluding that a thirty month sentence is “the sentence which is sufficient, but not greater than necessary to comply with those sentencing factors.”4 Thus, the court’s refusal to grant a downward var iance was not due to a mistake of law about the court’s authority to grant such an adjustment. Accordingly, we lack jurisdiction to cons ider this appeal , and the appeal will be dismissed.