United States of America v. Jose Rivera

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4804
UNITED STATES OF AMERICA
v.
JOSE RIVERA, Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
District Court No. 4-06-cr-00427-005
District Judge: The Honorable John E. Jones, III
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 17, 2009
Before: SLOVITER, FUENTES, and SMITH, Circuit Judges
(Filed: September 21, 2009)
OPINION
SMITH, Circuit Judge.
On February 6, 2008, Jose Rivera pleaded guilty to one count of conspiracy to
distribute less than 100 grams of heroin, in violation of 21 U.S.C. § 846. Rivera’s
Sentencing Guidelines range, which was based on his classification as a “Career
Offender,” was 151 to 188 months. The District Court sentenced Rivera to 108 months of

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1As we write for the benefit of the parties alone, who are familiar with the facts
and procedural history of this case, we confine our discussion to the legal issues presented
and include only those facts necessary to our disposition
2The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
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imprisonment, a special assessment of $100, and a three-year term of supervised release.1
Rivera argues that the District Court abused its discretion when it imposed the term of
imprisonment because (1) it relied on erroneous facts regarding his prior criminal history,
and (2) it failed to meaningfully consider the factors enumerated in 18 U.S.C. § 3553(a).
We will affirm.2
First, Rivera argues that the District Court erred when it denied Rivera’s motion
for a downward departure based “on his minor role in the offense . . . and for over-
representation of his criminal history . . . , where such denial was based in large part on
an erroneous reading of Rivera’s record.” Thus, it is clear that Rivera is not asserting that
the District Court incorrectly calculated his Sentencing Guidelines range, but rather that it
relied on erroneous information when it refused to exercise its discretion to depart.
However, in such cases, “our precedent . . . mandates the conclusion that where a district
court allegedly made a mistake of fact when, in the exercise of its discretion, it refused to
grant a request for a downward departure, while aware of its authority to grant that
request, we lack jurisdiction to review that decision.” United States v. Minutoli, 374 F.3d
236, 243 (3d Cir. 2004); see also United States v. Cooper, 437 F.3d 324 (3d Cir. 2006)
(stating that this Court “declin[es] to review, after [United States v. Booker, 543 U.S. 220
(2005)], a district court’s decision to deny departure”).

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In this case, the District Court stated that granting the motion for a downward
departure “would violate, in my view, the spirit of the departure provision . . . .” By
declining to exercise its discretion in an effort to remain faithful to the “spirit” of the
Sentencing Guidelines, rather than because it believed it was required to do so, the
District Court demonstrated that it recognized its authority to depart. See id. at 240 n.5
(noting that “district courts need not utter the magic words, ‘I recognize I have authority
to grant the downward departure,’” though “encourag[ing] them to do so”). We therefore
lack jurisdiction to review the District Court’s discretionary decision to deny Rivera’s
request for a downward departure.
Second, Rivera contends that his sentence is unreasonable because various §
3553(a) factors warranted a reduced sentence. This Court reviews a district court’s
sentence for procedural and substantive reasonableness. United States v. Levinson, 543
F.3d 190, 195 (3d Cir. 2008). In doing so, we apply the “abuse of discretion” standard.
United States v. Wise, 515 F.3d 207, 217–18 (3d Cir. 2008). In United States v. Cooper,
this Court stated that “a rote statement of the § 3553(a) factors should not suffice if at
sentencing either the defendant or the prosecution properly raises ‘a ground of recognized
legal merit.’” 437 F.3d at 329 (citation omitted). Nonetheless, the “court need not discuss
every argument made by a litigant,” nor must it “discuss and make findings as to each of
the § 3553(a) factors.” Id. Applying a deferential standard of review, this Court instead
looks to whether the § 3553(a) factors “were reasonably applied to the circumstances of
the case” and whether “the district judge imposed the sentence . . . for reasons that are
logical and consistent with the factors set forth in section 3553(a).” Id.

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Before the District Court, Rivera argued that several Section 3553(a) factors
warranted a below-guidelines sentence, including: (1) the need to avoid unwarranted
sentencing disparities; (2) the low rate of recidivism for non-violent offenders classified
as Career Offenders; (3) his age; (4) and his drug addiction. The record in this case
demonstrates that the District Court sufficiently considered these issues. With regard to
Rivera’s age, it noted that this factor should prompt “a desire to change,” but stated its
dismay at “why that didn’t hit [Rivera] a couple of years ago.” Similarly, the Court
discounted Rivera’s recidivism argument, questioning how Rivera could spend time in
prison at a young age for a drug offense and subsequently serve as, essentially, a mule for
drug traffickers. Finally, the District Court expressly stated that sentencing disparities
“really compel[led] [it] to look at a variance.” In fact, it granted a variance that balanced
the nature of the crime against the lower sentences received by others involved in the
conspiracy. Because the District Court sufficiently considered the issues raised by
Rivera, we believe that the District Court’s imposition of a 108-month term of
imprisonment was not procedurally unreasonable.
Furthermore, Rivera’s term of imprisonment was not substantively unreasonable.
“[I]f the district court’s sentence is procedurally sound, we will affirm it unless no
reasonable sentencing court would have imposed the same sentence on that particular
defendant for the reasons the district court provided.” United States v. Tomko, 562 F.3d
558, 568 (3d Cir. 2009) (en banc). In this case, the District Court concluded that a 108-
month term of imprisonment was reasonable, and we agree.
For the reasons stated above, we will affirm the District Court’s decision.

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