NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-2281
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UNITED STATES OF AMERICA
v.
JEMEL MARCANO,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 08-cr-00113-001)
District Judge: Honorable James Knoll Gardner
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Submitted Under Third Circuit LAR 34.1(a)
on May 27, 2010
Before: McKEE, Chief Judge, and
RENDELL, and STAPLETON , Circuit Judges.
(Filed: June 1, 2010)
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OPINION OF THE COURT
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RENDELL, Circuit Judge.
Jemel Marcano appeals from his sentence of 240 months’ imprisonment for
convictions on two counts of possession of heroin with intent to distribute and two counts
of distribution of heroin, in violation of 21 U.S.C. § 841(a)(1), and possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Marcano’s guideline
sentencing range was 262 to 327 months and the District Court was required to impose a
15-year mandatory minimum sentence pursuant to the Armed Career Criminal Act
because of Marcano’s firearm conviction. Marcano contends that his sentence was
procedurally unreasonable because the District Court did not address his sentencing
argument that the mandatory minimum was a sufficiently severe sentence given
Marcano’s prior sentences. He also urges that imposing 240 months’ incarceration was
substantively unreasonable because it is greater than necessary in order to accomplish the
purposes of sentencing. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231.
We exercise jurisdiction pursuant to 28 U.S.C. § 1291. We will affirm.
Because we write only for the parties who are familiar with the factual context and
procedural history of this case, we recite only the facts that are relevant to our analysis.
At the time of sentencing, Marcano was 32 years old and his criminal history indisputably
qualified him as an Armed Career Criminal, based on his convictions for armed robbery,
distribution of crack cocaine, and possession with intent to deliver heroin and cocaine.
Marcano previously served 48 months for distributing crack cocaine, and has also served
numerous other prison sentences, ranging from 34 days to three years, resulting from his
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convictions, a parole violation, and a violation of supervised release. At Marcano’s
sentencing hearing, neither the government nor the defense objected to the presentence
report, which calculated Marcano’s sentencing guideline range to be 262 to 327 months’
imprisonment, with a mandatory minimum of 15 years’ imprisonment. At the beginning
of the hearing, the District Court noted that it had read both the government’s and
Marcano’s sentencing memoranda. Marcano then testified on his own behalf and his
counsel presented argument, including arguments that Marcano contends the District
Court ignored.
On appeal, Marcano urges that the District Court erred both procedurally and
substantively by failing to address his counsel’s argument that a 15 year sentence would
be sufficient but not greater than necessary to accomplish the sentencing goals, urging
that Marcano had faced only relatively short sentences before. We review the District
Court’s sentencing for reasonableness based on the totality of the circumstances, under an
abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). As we noted
in United States v. Ausburn:
In considering a criminal defendant's claim that a sentence is
unreasonable, a reviewing court asks whether the district
court: (1) exercised its discretion by giving meaningful
consideration to the § 3553(a) factors; and (2) applied those
factors reasonably by selecting a sentence grounded on
reasons that are logical and consistent with the § 3553(a)
factors. When we reach this last step, we apply a deferential
standard, the trial court being in the best position to determine
the appropriate sentence in light of the particular
circumstances of the case.
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502 F.3d 313, 329 (3d Cir. 2007) (quotations omitted).
The first step of review described above has been characterized as “procedural”
review and the second step has been characterized as “substantive” review. Id. A district
court’s explanation of its rationale need not be perfect, as judges typically rule from the
bench. Id. Marcano claims that the District Court erred in failing to “acknowledge and
respond to any properly presented sentencing argument which has colorable legal merit
and a factual basis.” Id. at 329. However, we find that the District Court coherently and
completely explained its rationale for sentencing Marcano to a below-guidelines sentence
of 240 months and properly responded to Marcano’s sentencing arguments. App. 194-
206. In fact, the District Court’s explanation of its sentencing rationale, and its
consideration of the 18 U.S.C. § 3553(a) sentencing factors, is exceedingly thorough and
commendable.
The District Court “considered the defendant’s sentencing grounds,” (App. 195),
noted that Marcano had “made crime a way of life since his youth,” (App. 196), engaged
in a lengthy discussion of Marcano’s criminal history including the prior sentences
served, (App. 197-97), found that Marcano was likely to commit crimes again if on the
street, (App. 198), and found it disturbing that his criminal history included a violent
felony. The District Court acknowledged that the guidelines were only advisory, and
despite “seriously consider[ing] the guidelines,” sentenced Marcano below the guidelines
because that range “was slightly but not considerably too high under all of the
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circumstances.” App. 199. In varying downward from the guidelines, the District Court
noted that the offense at issue involved a relatively small amount of drugs and that the
gun Marcano possessed was not on his person. Id.
The District Court further explained that it took into account both the nature and
circumstances of the offense and Marcano’s personal and criminal history in order to
impose “a sentence sufficient but not greater than necessary to comply with the purposes
set forth in [18 U.S.C. § 3553].” App. 200. The District Court noted that the offense at
issue was “particularly serious,” (App. 200), that Marcano’s criminal history
demonstrated “prominent recidivism . . show[ing] a consistent and longstanding
disrespect for the law,” (App. 201), and that Marcano did “not have a strong parental
direction . . suffers from a substance abuse problem . . . to his credit, acquired a GED
while in prison . . . but . . . really ha[d]n’t utilized his education in the pursuit of any
legitimate employment.” App. 201-02. The District Court explicitly and thoroughly
considered the need to deter Marcano and the general public from criminal activity, the
need for Marcano to receive vocational training, the need to protect the public, and the
need to avoid unwarranted sentencing disparities. App 202-05.
Based on the above, it is clear that Marcano’s sentence is both procedurally and
substantively reasonable and that the District Court did not abuse its discretion. Contrary
to Marcano’s claims on appeal, the Court addressed the severity of Marcano’s sentence,
recognized that his prior sentences had been significantly shorter, and properly supported
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its finding that the sentence imposed was sufficient, but not greater than necessary to
satisfy the purposes of sentencing. For the foregoing reasons we will AFFIRM the
Judgment and Commitment Order of the District Court.
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