NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 16-2670
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UNITED STATES OF AMERICA
v.
CARLOS R. CRUZ,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE
DISTRICT OF PENNSYLVANIA
(D.C. Action No. 3-14-cr-00218-001)
District Judge: Honorable Richard P. Conaboy
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Submitted Under Third Circuit L.A.R. 34.1(a)
March 13, 2017
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Before: GREENAWAY, JR. and SHWARTZ, Circuit Judges, and
SIMANDLE,* Senior District Judge
(Opinion Filed: July 17, 2017)
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OPINION**
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*
The Honorable Jerome B. Simandle, Senior Judge of the United States District
Court for the District of New Jersey, sitting by designation. Judge Simandle assumed
senior status on June 1, 2017.
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
GREENAWAY, JR., Circuit Judge.
Carlos Cruz argues on appeal that this Court should reverse his sentence and
remand the case for resentencing. Cruz predicates his argument on the District Court’s
failure to adequately consider the relevant factors under 18 U.S.C. § 3553(a)(1) and (6) in
determining whether to grant him a variance from his United States Sentencing
Guidelines range. This was an issue that he did not raise below and is therefore not
properly before us. We will affirm.
I. Facts
On August 26, 2014, Cruz and three of his children were indicted on conspiracy to
distribute heroin and related charges. On November 24, 2015, Cruz pled guilty to Count
1 of the indictment. At sentencing, the District Court imposed a 96-month sentence.
Prior to doing so, the Court explained how the Sentencing Guidelines worked and how
Cruz’s sentence was calculated. The Court stated that based on Cruz’s criminal history
category and offense level, the Sentencing Guidelines recommended a sentence of
between 87 and 108 months. The Court also said it could rely on 18 U.S.C. § 3553 to
help it determine what it should consider when imposing a sentence. The Court
specifically mentioned that it should consider Cruz’s history, characteristics, and any
special characteristics that were provided by the presentence investigation report, by
counsel, or by Cruz himself. The Court acknowledged that Cruz’s counsel asked the
Court to consider Cruz’s characteristics in sentencing. Cruz’s counsel had also asked the
District Court to “consider imposing [a sentence at] the low end of the [Guidelines]
range, the 87 months.” App. 89. The District Court noted that it reviewed all of the
2
relevant sentencing factors and Cruz’s entire file. However, the Court asserted that it did
not find any characteristics or other reason under § 3553 that entitled Cruz to a variance
from the recommended Sentencing Guidelines range. The Court explained that the 96-
month sentence reflected a break for Cruz since it thought that he deserved a sentence at
the higher-end of the Sentencing Guidelines range. Cruz did not request a variance and
made no objection to the District Court’s sentence after it was imposed. This timely
appeal followed.
II. Analysis1
On appeal, Cruz argues that the District Court committed procedural error by
failing to properly consider the § 3553(a) factors when it imposed his sentence. “The
district court need not . . . make explicit findings as to each sentencing factor if the record
makes clear that the court took all the factors into account.” United States v. Begin, 696
F.3d 405, 411 (3d Cir. 2012). However, “[a] rote statement that the court has considered
each of the § 3553(a) factors is not a sufficient response to a specific colorable
argument.” Id.
First, Cruz argues that the District Court failed to specify on the record the
considerations which came into play in denying a variance pursuant to § 3553(a)(1). He
contends that, as evidence of his character, the Court should have considered his eight
years of sobriety and his employment at the Chandler Hotel where he risked his safety to
help an elderly woman who had suffered a fall. Next, Cruz contends that the Court failed
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
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to explain on the record why it denied a variance from the Guidelines range pursuant to §
3553(a)(6). Cruz argues that there is a great disparity between his sentence and those of
his co-defendants who engaged in similar conduct.
Contrary to Cruz’s claims, the District Court did explain the considerations behind
its imposition of Cruz’s 96-month sentence. The District Court noted that it had seen the
letter from Cruz’s supervisor regarding the rescue. And after Cruz’s arguments for the
imposition of the lowest sentence within the Guidelines range, the Court acknowledged
that it had reviewed his file and wanted to address two issues. First, the Court discussed
Cruz’s addiction and his attempt at drug rehabilitation—noting that had he left the drug
rehabilitation facility before finishing the program. The Court explained that Cruz’s
addiction did not absolve him of responsibility and mentioned that his actions led many
individuals down the path of drug addiction and death.
Next, the Court highlighted the distinct role that Cruz played in the illicit
enterprise. Cruz was the leader of the criminal activity, and his co-defendants were his
children. The Court stated that in “very, very few situations” had it seen a drug dealer
involve his family in his illegal enterprise “so very, very much.” App. 95. The Court
further explained that Cruz had taught his family to disrespect the law. After its response
to Cruz’s arguments for a sentence at the lowest end of the Guidelines range, the Court
stated that it did not find any characteristic or other factors under § 3553 that called for
reducing Cruz’s sentence. As such, the Court articulated the relevant considerations for
reducing Cruz’s sentence.
4
No matter how Cruz frames the issue, none of his appellate arguments are
preserved. Normally, we review the procedural reasonableness of a sentence for abuse of
discretion. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). Because
Cruz did not object to the sentence nor the manner in which it was imposed, we would
review his claim for plain error. See Fed. R. Crim. P. 52(b) (“A plain error that affects
substantial rights may be considered even though it was not brought to the court’s
attention.”); see also United States v. Flores-Mejia, 759 F.3d 253, 255 (3d Cir. 2014) (en
banc). However, Cruz’s failure to request a variance on the record forecloses our review.
Cruz’s claim that the District Court did not properly consider the § 3553(a) factors
in determining whether to grant a variance presents an issue that he did not place before
the Court during sentencing and, thus, has been raised for the first time on appeal.2
Cruz’s Guidelines range was between 87 and 108 months. The record shows that at
sentencing, Cruz did not seek a variance from the Guidelines range, but rather, only
requested that he be sentenced at the lowest end of the range. In his Sentencing
Memorandum, Cruz asked the Court “to impose a sentence in the lowest end of the
standard range.”3 App. 66. And at his sentencing hearing, Cruz pressed the Court to
impose a sentence at “the low end of the range, the 87 months.” App. 89. He reiterated
that “a sentence of 87 months meets the interest of justice from both sides of the aisle.”
2
“Variances . . . are discretionary changes to a guidelines sentencing range based
on a judge’s review of all the § 3553(a) factors and do not require advance notice.”
United States v. Brown, 578 F.3d 221, 226 (3d Cir. 2009).
3
In his Sentencing Memorandum, Cruz contended that his criminal history score
substantially overrepresented the seriousness of his criminal history or his likelihood of
re-offending and asked for a downward departure. Cruz does not raise the Court’s
rejection of this argument on appeal.
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App. 89. While imposing Cruz’s sentence, the District Court stated it had examined the §
3553(a) factors and “[found] no reason under [§] 3553, or anywhere else in the law . . . ,
that [it] should vary from the sentence that is recommended.” App. 97. Cruz did not
request a variance or even object to this ruling. Therefore, he did not preserve the
variance issue for appeal.
On appeal, Cruz would have us reverse his sentence and remand his case so that
the District Court can consider giving him a lower sentence than what he requested.
Because Cruz presents this issue for the first time on appeal, it is not properly before us.4
See Harris v. City of Philadelphia, 35 F.3d 840, 845 (3d Cir. 1994).
III. Conclusion
For the foregoing reasons, we will affirm the District Court.
Because we decide that Cruz’s argument is not properly before us, the
4
Government’s motion for summary action is denied as moot.
6