Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
9-6-2007
USA v. Cruz-Reyes
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1693
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"USA v. Cruz-Reyes" (2007). 2007 Decisions. Paper 473.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-1693
UNITED STATES OF AMERICA
v.
DOMINGO CRUZ-REYES, a/k/a Mingo, a/k/a Jay
Domingo Cruz-Reyes,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
District Court No. 05-cr-00340-2
District Judge: Hon. Christopher C. Conner
Submitted under Third Circuit LAR 34.1(a)
on February 1, 2007
Before: BARRY and ROTH, Circuit Judges
IRENAS*, District Judge
(Opinion filed: September 6, 2007)
OPINION
*Honorable Joseph E. Irenas, Senior District Judge for the District of New Jersey,
sitting by designation.
ROTH, Circuit Judge:
Domingo Cruz-Reyes appeals from his judgment of sentence, arguing it was based on
an incorrectly calculated sentencing guidelines range. We disagree and will affirm the
District Court.
I. Background and Procedural History
Because the parties are familiar with the facts and procedural posture, we will provide
only a brief synopsis of the events leading up to this appeal.
In November 2005, Cruz-Reyes pleaded guilty to one count of distribution and
possession with intent to distribute heroin and cocaine base in violation of 21 U.S.C. §
841(a)(1). In February 2006, he was sentenced to a term of 120 months. After sentencing,
the Probation Officer provided counsel with a new presentence report, which indicated a
lower base offense level than the report used at sentencing.
Cruz-Reyes timely appealed his sentence, arguing the sentence imposed was
unreasonable because it was based on an inaccurate presentence report.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
In general, the Court of Appeals reviews a sentence for reasonableness. United States
v. Booker, 543 U.S. 220, 261 (2005). The party challenging the sentence has the burden of
proving unreasonableness; review is highly deferential, “the trial court being in the best
position to determine the appropriate sentence in light of the particular circumstances of the
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case.” United States v. Cooper, 437 F.3d 324, 330 (3d Cir. 2006). In this case, the defendant
did not raise his objection at sentencing; thus we review for plain error. United States v.
Davis, 407 F.3d 162, 164-65 (3d Cir. 2005).
III. Analysis
Cruz-Reyes challenges the sentence imposed by the District Court because, he claims,
it was based on an inaccurate offense level calculation; had the District Court realized that
the base offense level was so much lower than the applicable career offender offense level,
it would have weighed the §3553(a) factors differently.
The presentence report used at sentencing reflected a base offense level of 26 and a
criminal category of VI. On this basis only, the guidelines range applicable to Cruz-Reyes
would have been 120-150 months. Cruz-Reyes, however, qualified as a career offender
subject to a 20-year maximum sentence; as a result, his base offense level was actually 32.
At sentencing, the District Court granted Cruz-Reyes a 7-level reduction because of
acceptance of responsibility and cooperation with the authorities; this brought the offense
level to 25 and the guidelines range to 110-137 months. After consideration of the §3553(a)
factors, including particularly Cruz-Reyes’ criminal history, the court sentenced him to 120
months’ incarceration.
During the sentencing hearing, the court also struck certain information about drug
sales obtained from confidential informants. Defense counsel conceded that this information
made no difference to the guidelines calculation.
Several days after the sentencing, the Probation Officer supplied Cruz-Reyes’ attorney
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with a revised presentence report that reflected the District Court’s order to strike the
information attributed to the confidential informants. The new presentence report identified
Cruz-Reyes’ offense level as 12 (rather than 26); it still indicated that because of Cruz-
Reyes’ career offender status the applicable offense level was 32.
The government argues that the base offense level named in the post-sentencing
revised presentence report was actually incorrect due to a typographical error (5.1 grams of
cocaine base were treated as cocaine and converted to 1.02 kilograms of marijuana instead
of the correct 102 kilograms). This appears to be true. But even if the difference between
the career offender level (which governed the calculation) and the base offense level had
been significant, there is no indication it would have changed the §3553 calculus in any way.
Cruz-Reyes had had nine separate sets of convictions in the previous fifteen years, with six
of those being drug trafficking offenses. A lower base offense level would have done
nothing to lessen the need to deter further criminal activity by this defendant and others.
There is no error here, plain or otherwise.
IV. Conclusion
For the reasons set forth above, we will affirm the judgment of the District Court.
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