Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
2-28-2006
USA v. Reyes
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1931
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-1931
UNITED STATES OF AMERICA
v.
LIDIA REYES,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 04-cr-103-5)
District Judge: Honorable Yvette Kane
Argued December 15, 2005
Before: SLOVITER, SMITH, and VAN ANTWERPEN, Circuit Judges.
(Filed: February 28, 2006)
James J. West (Argued)
West Long LLC
105 North Front Street, Suite 205
Harrisburg, PA 17101
Counsel for Appellant
Thomas A. Marino, United States Attorney
Theodore B. Smith, III, Assistant U.S. Attorney (Argued)
Eric Pfisterer, Assistant U.S. Attorney
Office of the United States Attorney
228 Walnut Street
Harrisburg, PA 17108
Counsel for Appellees
____
OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.
Appellant Lidia Reyes challenges the legality of her sentence in the United States
District Court for the Middle District of Pennsylvania, claiming that (1) a disparity in
duration between her sentence and those of her co-defendants rendered her sentence
unreasonable, and (2) the District Court failed to affirmatively show that it understood the
United States Sentencing Guidelines to be advisory pursuant to the Supreme Court’s then-
two-month-old decision in United States v. Booker, 543 U.S. 220 (2005). We need not
consider this second contention as Reyes abandoned it, through counsel, at argument. We
conclude that we possess jurisdiction to consider Reyes’ first contention because Reyes
alleges her sentence was “imposed in violation of law” as required by 18 U.S.C. §
3742(a)(1). See United States v. Cooper, ___ F.3d ___, 2006 WL 330324 (3d Cir. (February
14, 2006)). Having jurisdiction pursuant to 18 U.S.C. § 3742(a)(1), we will affirm.
I.
Pursuant to a written plea agreement, Reyes pleaded guilty on October 28, 2004 to a
one-count information charging her with conspiracy to distribute 100 grams of heroin. A
presentence report was prepared, to which Reyes, through counsel, filed objections. At her
March 14, 2005 sentencing hearing, the District Court overruled those objections, except that
it granted Reyes a two-level reduction in her offense level for acceptance of responsibility.
The District Court then sentenced Reyes to a term of imprisonment of 135 months, which
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was at the bottom of what the District Court determined to be a guideline imprisonment range
of 135 to 168 months. At Reyes’ sentencing, the District Court stated in pertinent part:
THE COURT: Counsel, the basis for the sentence is as follows:
The Court is adopting the factual findings and the guideline
applications in the presentence report except as I have
previously noted. The defendant is being credited with
acceptance of responsibility and with the adjustment of drug
amounts attributable to her. The original offense level is
adjusted downward.
This is a very difficult case, [counsel], probably one of the
most difficult ones I’ve had in a while. I know that [the
defendant] has a number of compelling personal circumstances,
but at the same time I think the Government has demonstrated
that she has had a very serious involvement in the events that
were brought before this Court, it’s not just the [‘]girlfriend
of[’]. I mean, it’s clear to me that she was intimately involved
in drug dealing herself. And for that reason, I think that
protection of the community, deterrence, all of those factors
weigh against departing from the guideline range. I think it’s a
reasonable range under all of the circumstances.
COUNSEL: Understood, Your Honor.
Reyes now claims a disparity in her length of sentence relative to those of her co-defendants.1
II.
“The courts of appeals review sentencing decisions for unreasonableness.” Booker,
543 U.S. at 224. “To determine if the court acted reasonably in imposing the resulting
sentence, we must first be satisfied the court exercised its discretion by considering the
1
Argument confirmed that, among her co-defendants, Reyes received the third
highest sentence. One male and one female each received a longer sentence than Reyes.
Reyes does not claim bad faith on the part of the government; she contends only that her
sentence is the result of being sentenced first. Argument also confirmed that, on some
occasions, Reyes distributed heroin while her children were with her in her car.
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relevant factors.” Cooper, 2006 WL 330324, at *3 (citing 18 U.S.C. § 3553(a) factors).
While “[t]he record must demonstrate the trial court gave meaningful consideration to the §
3553(a) factors . . . . The court need not discuss every argument made by a litigant if an
argument is clearly without merit.” Id. “Nor must a court discuss and make findings as to
each of the § 3553(a) factors if the record makes clear the court took the factors into account
in sentencing.” Id. “[W]e apply a deferential standard, the trial court being in the best
position to determine the appropriate sentence.” Id. at *4. Indeed, as this Court recently
stated in Cooper:
“To sum up, appellants have the burden of demonstrating
unreasonableness. A sentence that falls within the guidelines
range is more likely to be reasonable than one outside the
guidelines range. There are no magic words that a district judge
must invoke when sentencing, but the record should demonstrate
that the court considered the § 3553(a) factors and any
sentencing grounds properly raised by the parties which have
recognized legal merit and factual support in the record.”
Id. at *5.
III.
Here, as discussed, the District Court granted a two-level reduction and sentenced
Reyes to a term of imprisonment of 135 months, which was at the bottom of what the
District Court correctly determined to be a range of 135 to 168 months based on the
advisory guidelines. Reyes has not met her burden on appeal of proving this sentence
was unreasonable. The court addressed relevant § 3553(a) factors and singled out the
need for “deterrence” and “protection of the community.” The court found that the
sentence was in “a reasonable range under all of the circumstances.” “Taken as a whole, .
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. . . We find the District Court’s judgment was reasonable under Booker.” Id.
IV.
As stated, counsel abandoned at argument Reyes’ second contention, namely that,
at sentencing, the District Court failed to provide sufficient proof that it knew the
guidelines were now advisory. Even had counsel not abandoned this argument, it is
without merit. “[W]e [will not] require district judges to routinely state by rote that they
have read the Booker decision or that they know the sentencing guidelines are now
advisory.” Id. at *3. “There are no magic words that a district judge must invoke when
sentencing.” Id. at 5. In addition, here, we must reject Reyes’ premise that the District
Court failed to express its understanding that the guidelines were advisory. The District
Court made plain reference not only to its power to “depart[] from the guideline range[,]”
but also to the § 3553(a) factors.
Accordingly, we will affirm the March 14, 2005 sentence of the District Court.
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