                                     PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               ____________

                    No. 12-3575
                   ____________

         UNITED STATES OF AMERICA

                         v.

              ANTONIO FIGUEROA
              a/k/a BABY FAT FACE

                 Antonio Figueroa,

                                  Appellant



   On Appeal from the United States District Court
            for the District of New Jersey
           (D. C. No. 1-10-cr-00685-001)
    District Judge: Honorable Robert B. Kugler



              Argued on July 17, 2013

Before: RENDELL, SMITH and ROTH, Circuit Judges
             (Opinion filed: September 3, 2013)


Ralph A. Jacobs, Esquire (Argued)
Jacobs Singer Kivitz & Herman LLC
34 Tanner Street
Haddonfield, NJ 08033

                    Counsel for Appellant




Glenn J. Moramarco, Esquire (Argued)
Office of United States Attorney
Camden Federal Building & Courthouse
401 Market Street, Fourth Floor
Camden, NJ 08101

Mark E. Coyne, Esquire
Office of United States Attorney
970 Broad Street, Suite 700
Newark, NJ 07102-2535

                    Counsel for Appellee



                       O P I N I ON




                             2
ROTH, Circuit Judge:

       Antonio Figueroa appeals the District Court‟s
September 11, 2012, judgments of conviction and sentence.
Figueroa was convicted of civil rights violations under 18
U.S.C. §§ 241 and 242 and sentenced to ten years
imprisonment. On appeal, he challenges his conviction on
four grounds: (1) the District Court erred by admitting the
out-of-court statement of co-defendant Robert Bayard, (2) the
District Court erred by excluding, as cumulative, police
reports that Figueroa offered into evidence, (3) the District
Court erred by allowing improper expert opinion testimony
from a prosecution fact witness on issues of constitutional
law, and (4) the District Court erred by refusing to give the
jury Figueroa‟s requested instruction concerning specific
intent. Figueroa challenges his sentence on two grounds: (1)
the District Court erred by applying the drug distribution
sentencing guideline to Figueroa‟s civil rights violations, and
(2) his sentence was substantively unreasonable. For the
following reasons, we will affirm the District Court‟s
judgments of conviction and sentence.

I.     Background

       Figueroa joined the police force in Camden, New
Jersey, in 2003. In July 2008, he was transferred to a new
Special Operations Unit created to target guns, drugs and
violence in Camden‟s most crime ridden neighborhoods.
Figueroa was assigned to the “fourth platoon” with his regular
partner, Robert Bayard, as well as Sergeant Dan Morris, and
officers Jason Stetser and Kevin Parry. On September 6,
2011, Figueroa and Bayard were charged in a six count
superseding indictment with a series of civil rights violations.




                               3
In addition to five substantive civil rights violations, they
were charged with conspiring with Stetser, Parry, and Morris
to deprive others of their civil rights. A three week jury trial
began on November 15, 2011. Stetser, Parry, and Morris all
testified at trial as cooperating witnesses with plea
agreements. Other law enforcement officers and citizens who
were victims of or witnesses to the activities alleged in the
indictment also testified. Over the course of trial, the
government presented evidence regarding twelve incidents in
which Figueroa allegedly deprived individuals of their civil
rights. There are six specific incidents of misconduct
described below that are relevant to Figueroa‟s arguments on
appeal.

        August 9, 2008:          Figueroa and Stetser were
conducting surveillance on an open-air drug market and
observed “A.K” sell drugs to “T.C.” When they arrested the
participants, Stetser found a bundle of crack cocaine and
Figueroa found a bag filled with money. Morris, Figueroa,
and Stetser took some of this money for themselves. After
the arrest, T.C. cooperated with the officers and gave them
information about other drug-dealing activity, but A.K. did
not. Stetser and Figueroa attributed to A.K. drugs and a gun
that were not actually found on him. Specifically, they
attributed to him (1) drugs that Stetser had stashed in a nearby
tree, (2) a handgun located in a house that T.C. told them
about, and (3) the “re-up stash” of drugs they found in a
nearby garage. Figueroa wrote the falsified police report
about this incident.

      September 14, 2008: Figueroa, Stetser, Parry, and
Morris conducted illegal searches in the Winslow Court
apartment complex based on information from an informant.




                               4
The officers broke into Apartment C, where they found
between $1,500 and $2,000, and then searched, without
consent or a warrant, Apartment G, where they found
$10,000. When they found no drugs, they confronted their
informant who pointed them to a mailbox in the complex,
where they found a large stash of cocaine. Figueroa wrote the
police report, in which he falsely claimed that they had seen
someone take drugs out of the mailbox, throw a bag in
Apartment G and flee through Apartment C. The report
stated that they had recovered only $1,531 in cash.

       September 17, 2008: Figueroa and Bayard arrested
“D.B.#1” on the street who then told them that he had a gun
at home. The officers then drove to his house, coerced his
mother into signing a consent to search form, and found a
firearm in a bedroom closet. Figueroa‟s police report falsely
claimed that he found the firearm in plain view after chasing
D.B.#1 into the house and arresting him there. Figueroa also
underreported the amount of money that was seized during
the events.

       September 17, 2008: Figueroa, Bayard, Stetser, and
Parry apprehended “A.F” and “T.R.” Angry that A.F. and
T.R. had fought them, Figueroa, Bayard, Stetser, and Parry
decided to plant drugs on A.F. and T.R. Bayard wrote the
false police report about this incident.

       April 3, 2009: Figueroa, Stetser, and Parry, based on
information from an informant, found “L.M.” in a car and
searched the car, expecting to find drugs. They found no
drugs in L.M.‟s car, but Parry found crack cocaine in the gas
cap of a vehicle that was parked on the opposite side of the
street and several cars away. Figueroa falsely stated in the




                             5
police report that he had seen L.M. walking down the street
carrying the drugs in his right hand. Parry gave the drugs he
found in the gas cap to Figueroa, and Figueroa turned the
drugs in as evidence.

       August 21, 2009: Stetser conducted a warrantless
search of a trailer based on a tip that “J.M.” was selling drugs
out of it. He found 32 bags of crack cocaine in a
compartment on the door of the trailer. Figueroa falsely
claimed in his police report that he had observed J.M. engage
in a hand-to-hand drug transaction and that J.M. had 32 bags
of a rock-like substance in his right pocket.

        On December 9, 2011, the jury returned a guilty
verdict against Figueroa on Count 1 of conspiracy to deprive
others of civil rights and on Counts 2 and 3 of substantive
civil rights violations relating to incidents occurring between
September 14 and September 17, 2008. The jury acquitted
Figueroa of the remaining counts and acquitted Bayard on all
counts. Figueroa filed motions for a judgment of acquittal, or
in the alternative, a new trial under Federal Rules of Criminal
Procedure 29 and 33 on December 23, 2011. The District
Court denied both motions. He was sentenced to ten years
imprisonment on September 7, 2012. This appeal followed.

III.  Discussion1
      Figueroa challenges both his conviction and sentence
on appeal. Because the most significant issue in this appeal is
the application of the drug distribution sentencing guideline

1
 The District Court had jurisdiction over this case pursuant to
18 U.S.C. § 3231, and we have jurisdiction over the appeal
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).




                               6
to Figueroa‟s civil rights violations, we will deal with that
issue first.

      A.      Application    of    the   Drug     Distribution
Guideline

       Figueroa argues that the District Court erred in
applying the drug distribution sentencing guideline, U.S.S.G.
§ 2D1.1, to his civil rights violations in this case because he
was not convicted of offenses involving the distribution of
drugs.2

       Figueroa was convicted of violations of 18 U.S.C. §§
241 and 242. The applicable sentencing guideline for these
violations is U.S.S.G. § 2H1.1. Under U.S.S.G. § 2H1.1(a),
the base offense level should be the greatest of the
enumerated options, including “the offense level from the
offense guideline applicable to any underlying offense.”
U.S.S.G. § 2H1.1(a). Application Note 1 explains that
“offense guideline applicable to any underlying offense”
refers to “the offense guideline applicable to any conduct
established by the conviction that constitutes an offense under
federal, state, or local law . . ..” U.S.S.G. § 2H1.1,
Application Note 1. Where the conduct established by the
conviction constitutes more than one underlying offense, the
court should look to the underlying offense that carries the
highest offense level. U.S.S.G. § 2H1.1, Application Note 1.

2
  We exercise plenary review over the District Court‟s
construction of the Sentencing Guidelines but review the
District Court‟s factual determinations for clear error. United
States v. Cordo, 324 F.3d 223, 229 (3d Cir. 2003).




                               7
Additionally, under U.S.S.G. § 2H1.1(b), if the defendant was
a public official or the offense was committed under color of
law, the base offense level should be increased by 6 levels.
U.S.S.G. § 2H1.1(b).

       Here, the presentence report, in accordance with
U.S.S.G. § 2H1.1, presented an analysis of the conspiracy‟s
underlying offenses and offense levels. The presentence
report concluded that applying U.S.S.G. § 2D1.1, the drug
distribution sentencing guideline, would produce the highest
offense level in Figueroa‟s case: an offense level of 26.3
Once increased by 6 levels as provided in U.S.S.G. §
2H1.1(b), Figueroa‟s proposed offense level was 32. At
sentencing, the District Court adopted this base offense level
over Figueroa‟s objection.

       In using U.S.S.G. § 2D1.1 to determine Figueroa‟s
base offense level, the District Court relied heavily on a
recent case, United States v. Cortes-Caban, 691 F.3d 1, 16
(1st Cir. 2012), in which the First Circuit Court of Appeals
held that police officers who conspired to plant drugs on
individuals to fabricate criminal offenses were properly
convicted of conspiracy to possess controlled substances with
an intent to distribute in violation of 21 U.S.C. §§ 841(a) and
846.4 The court reasoned that the plain language of 21 U.S.C.

3
  The other underlying offenses and offense levels proposed
in the presentence report were: (1) illegal searches (offense
level 18); (2) false reports (offense level 8); larceny (offense
level 6); and perjury (offense level 17).
4
  A violation of § 841(a) falls under U.S.S.G. § 2D1.1, and
thus the Cortes-Caban analysis of the term “distribute” in §
841(a) is relevant to Figueroa‟s sentencing under U.S.S.G. §




                               8
§ 841(a), which deems it “unlawful for any person knowingly
or intentionally— (1) to manufacture, distribute, or dispense,
or possess with intent to manufacture, distribute, or dispense,
a controlled substance . . .”, encompassed the police officers‟
conduct. Cortes-Caban, 691 F.3d at 16 (quoting 21 U.S.C. §
841(a)). The court focused on the meaning of “distribute” in
the statute, noting that the Controlled Substances Act defines
“to distribute” as “to deliver (other than by administering or
dispensing) a controlled substance or a listed chemical” and
defines “deliver” as “the actual, constructive, or attempted
transfer of a controlled substance or a listed chemical,
whether or not there exists an agency relationship.” Id. at 17
(quoting 21 U.S.C. §§ 802(11), 802(8)).5 Based on this
definition of “distribute,” that court found that “[t]he
defendants‟ acts of transferring drugs amongst each other and
to the victims constitutes an intent to distribute the drugs
under § 841(a)(1), which results in a transfer of possession of
a controlled substance, in other words a „distribution,‟” and
upheld the police officers‟ convictions under 21 U.S.C. §§
841(a) and 846.6 Id. at 18, 26.


2D1.1.
5
   The court interpreted “transfer” by reference to its
commonly accepted meaning because it is not defined in the
Controlled Substances Act. Cortes-Caban, 691 F.3d at 17
(“To transfer means „to carry or take from one person or place
to another . . . ; to move or send to a different location . . . ; to
cause to pass from one person or thing to another.‟” (quoting
Webster’s Third New International Dictionary 2426-27
(1993))).
6
  We note that the police officers in Cortes-Caban, in addition
to being convicted of violations of 21 U.S.C. §§ 841(a) and
846, were also convicted of civil rights violations under 18




                                 9
        In this case, the District Court, upon identifying the
distribution of narcotics as an underlying offense based on
relevant paragraphs of the superseding indictment, which “all
allege trafficking in drugs, planting of drugs on individuals,”
reviewed the evidence from trial regarding four specific
instances of drug distribution on August 9th, September 17th,
April 3rd and August 21st. Applying the reasoning of Cortes-
Caban, the District Court stated: “The [Cortes-Caban]
defendants‟ act of transferring the drugs amongst each other
and to the victims constitutes . . . a distribution. And that‟s
what happened in some of these instances here.”7 On that
basis, the District Court found “beyond a reasonable doubt
that [Figueroa] was involved in distribution of narcotics.”
Because U.S.S.G. § 2D1.1 is the offense guideline applicable
to the distribution of narcotics, the District Court applied
U.S.S.G. § 2D1.1 here and adopted the proposed offense level
of 32.8


U.S.C. § 241. Cortes-Caban, 691 F.3d at 5-6.
7
  We note that the District Court adopted the reasoning of
Cortes-Caban in a different context: whereas the court in
Cortes-Caban adopted this interpretation of “distribute” in
reviewing police officers‟ convictions of conspiracy to
possess controlled substances with the intent to distribute, the
District Court in this case adopted this interpretation in
sentencing Figueroa for convictions of civil rights violations
involving the distribution of drugs. However, this distinction
does not affect our analysis here.
8
  The District Court stated: “For this guideline to apply there
only needs to be 28 grams. There‟s more than 28 grams in
those four instances. Therefore I think the Probation
Department is correct as to the offense level, and I‟m going to




                              10
        We conclude that the District Court correctly found
that Figueroa engaged in distribution of narcotics and
therefore its application of U.S.S.G. § 2D1.1 was proper in
this case. In so holding, we adopt the court‟s interpretation in
Cortes-Caban of the meaning of “distribute” under 21 U.S.C.
§ 841(a). This interpretation comports with the plain
language of the statute and its legislative history. Under the
plain language of the statute, a “distribution” encompasses the
transfer of a controlled substance from one person or place to
another and thus the planting of controlled substances on
individuals to facilitate false arrests. Cortes-Caban, 691 F.3d
at 17-18. Congress made a deliberate choice to use broad
language in § 841(a), and courts have interpreted “distribute”
broadly in the context of § 841(a). Id. Moreover, the statute
carves out specific exceptions for legitimate activities, such as
the distribution of drugs by certain registered persons and by
law enforcement officers lawfully engaged in the enforcement
of controlled substances laws, which supports the application
of § 841(a) to conduct outside those exceptions. Id. at 18-19
(citing 21 U.S.C. §§ 822(b), 885(d)).

      In challenging his sentence, Figueroa attempts to rely
on Judge Torruella‟s dissent in Cortes-Caban.9 Figueroa‟s


find the total offense level is 32 in this case for the reasons
expressed.” Figueroa does not challenge the drug quantity
calculation on appeal.
9
  Judge Torruella dissented in Cortes-Caban on the basis that
the majority‟s “analysis incorrectly center[ed] on whether the
officers‟ actions could properly constitute „distribution,‟ an
issue . . . not before [the court] . . .” and “blurr[ed] the
distinction between the actus reus of one crime and the mens
rea of another (distribution versus possession with intent to




                               11
reliance on this dissent is misplaced because Judge Torruella
focused on the specific intent required to convict for
possession of controlled substances with the intent to
distribute. Cortes-Caban, 691 F.3d at 30-31 (Torruella, J.,
dissenting). Here, however, the District Court did not find
that Figueroa possessed narcotics with the intent to distribute
but rather found that he was involved in the distribution of
narcotics, a general intent crime.        The specific intent
discussion in Judge Torruella‟s dissent is irrelevant here.10

       Figueroa also argues that, even under the Cortes-


distribute) . . . .” Cortes-Caban, 691 F.3d at 30-31 (Torruella,
J., dissenting). Because the police officers in Cortes-Caban
were convicted not of distribution but of possession with the
intent to distribute, Judge Torruella asserted that the relevant
inquiry was not whether the police officers‟ acts constituted
distribution but whether the police officers had the specific
intent to distribute controlled substances. Id. He concluded
that the government had not proven the requisite specific
intent and thus the police officers‟ convictions under 21
U.S.C. §§ 841(a) and 846 should not be affirmed. Id. at 47.
10
   Figueroa also attempts to distinguish Cortes-Caban on the
facts, but this attempt is unavailing. First, he asserts that the
police acts in Cortes-Caban were entirely unlawful. Because
his own acts were equally unlawful, this is not a convincing
grounds on which to differentiate the instant case. Second, he
argues that the police officers in Cortes-Caban intended to
introduce drugs into society‟s illicit channels. This is
inaccurate: Judge Torruella noted in his dissent that “the
drugs never left the control or authority of the police
officers.” Cortes-Caban, 691 F.3d at 46 n.57 (Torruella, J.,
dissenting).




                               12
Caban interpretation of “distribution” in § 841, there was no
“distribution” here. Figueroa alleges that the only transfer of
drugs was from Figueroa to the police evidence room and that
“[t]he act of turning drugs into the police evidence room
simply is not a criminal drug offense.” This is an inaccurate
characterization of the facts. At sentencing, Figueroa‟s
counsel suggested that at least one of the incidents involved a
co-conspirator planting drugs on an individual or on the
scene. He stated: “[t]hat except for Stetser‟s testimony about
the stash in a tree, I believe all of the other incidents are
incidents where Antonio Figueroa or someone with him at the
scene took contraband and turned it in. And so, . . . I believe
five out of six [of the incidents listed in the presentence
report] don‟t fit into that category.” Moreover, the District
Court stated in response, “[e]ven if one does [involve the
planting of drugs], then [Figueroa] is to be judged under . . .
the drug distribution guidelines . . ..”

       Because we conclude that Figueroa engaged in the
distribution of drugs in committing civil rights violations, the
District Court properly applied U.S.S.G. § 2D1.1 in
sentencing him.11 However, we urge that this application of
the drug distribution sentencing guideline be strictly limited
to civil rights violations in cases like this one where drug
distribution constituted an active part of the civil rights
violation, and where, as here, the District Court specifically
finds that the drug distribution was clearly established by the

11
   We note that this application of § 841(a) to the planting of
drugs by police officers is not a common application. As the
court noted in Cortes-Caban, there have not been any other
decisions on prosecutions under § 841 for the planting of
drugs. 691 F.3d at 22.




                              13
offense of conviction.12

       B.     Challenges to the Conviction

       Turning to Figueroa‟s challenge to his conviction, he
raises four arguments: (1) the District Court erred by
admitting the out-of-court statement of co-defendant Robert
Bayard, (2) the District Court erred by excluding, as
cumulative, police reports that Figueroa offered into
evidence, (3) the District Court erred by allowing improper
expert opinion testimony from a prosecution fact witness on
issues of constitutional law, and (4) the District Court erred
by refusing to give the jury Figueroa‟s requested instruction
concerning specific intent. For the reasons that follow, these
arguments are unavailing, and we will affirm his conviction.


12
    Figueroa also suggests in a footnote in his opening brief
that “[a]pplying the Narcotics Distribution guidelines would .
. . run afoul of [his] Sixth Amendment rights by virtue of the
fact that the jury in this case . . . was not asked to consider a
drug dealing case, thus its verdict cannot be construed as a
finding that narcotics distribution occurred.” The District
Court‟s application of the drug distribution sentencing
guidelines did not violate Figueroa‟s Sixth Amendment
rights. Under Apprendi v. New Jersey, “[o]ther than the fact
of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be
submitted to a jury and proved beyond a reasonable doubt.”
530 U.S. 466, 490 (2000). Here, because Figueroa‟s sentence
does not exceed the statutory maximum, this finding did not
need to be made by a jury and thus Figueroa‟s Sixth
Amendment rights were not violated.




                               14
First, Figueroa argues that the District Court erred by
admitting an out-of-court statement by co-defendant
Bayard.13 Figueroa challenges the admission of the following
testimony by co-conspirator Parry regarding Bayard‟s out-of-
court statement about Figueroa:

       Q. Did you have a conversation with Mr.
       Bayard during one of these three nights about
       the search at 1017 Spruce Street?

       A. Yes, I did.

       Q. What was said during that conversation?

       A. Bayard was complaining about the report
       that Figueroa had written. He said the report
       was F‟d up. And he tried talking to Figs about
       the right way to write the report and he didn‟t
       want to listen.

        The District Court admitted this statement as a
statement in furtherance of the conspiracy under Federal Rule
of Evidence 801(d)(2)(E) which provides that a statement
“made by the party‟s coconspirator during and in furtherance
of the conspiracy” is not hearsay. Fed. R. Evid. 801(d)(2)(E).
For a statement to be admitted under this rule, “the proponent

13
   “We review a District Court‟s decision to admit or exclude
evidence for abuse of discretion, although our review is
plenary as to the district court‟s interpretation of the Federal
Rules of Evidence.” United States v. Duka, 671 F.3d 329,
348 (3d Cir. 2011) (internal quotation marks and citations
omitted).




                              15
must establish by a preponderance of the evidence that (1) the
conspiracy existed; (2) both the defendant and the declarant
were members of the conspiracy; and (3) the statement was
made in the course of the conspiracy and in furtherance of the
conspiracy.” United States v. Bobb, 471 F.3d 491, 498 (3d
Cir. 2006). The furtherance requirement is usually given a
broad interpretation. Duka, 671 F.3d at 348

       Figueroa argues that Bayard‟s statement was not made
in furtherance of the conspiracy and therefore the third prong
of this test was not met. In response to Figueroa‟s post-trial
motion on this issue, the District Court held that the statement
was a comment on the inability to instruct a co-conspirator on
how to write police reports so that no one got into trouble.
We find ample evidence in the record to support the District
Court‟s conclusion that the writing of false reports was part of
the conspiracy and that Bayard‟s statement, expressing
concern about Figueroa‟s inept report-writing, was in
furtherance of the conspiracy.14

14
   Figueroa also challenges the admission of this statement
under the Confrontation Clause and Bruton v. United States,
391 U.S. 123 (1968). The protections of the Confrontation
Clause and Bruton apply only to testimonial statements. See
United States v. Berrios, 676 F.3d 118, 126-29 (3d Cir. 2012)
(noting that “where nontestimonial hearsay is concerned, the
Confrontation Clause has no role to play in determining the
admissibility of a declarant‟s statement” and that Bruton is
also limited to testimonial statements). Bayard‟s statement to
Parry was not a testimonial statement. See United States v.
Crawford, 541 U.S. 36, 51-52 (2004) (identifying as the core
class of testimonial statements “ex parte in-court testimony,”
“extrajudicial statements,” and “statements . . . made under




                              16
        Second, Figueroa argues that the District Court erred
by excluding, under Federal Rule of Evidence 403, police
reports that Figueroa offered into evidence.15 Under Rule
403, a court “may exclude relevant evidence if its probative
value is substantially outweighed by a danger of . . . unfair
prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative
evidence.” Fed. R. Evid. 403. Here, the District Court
excluded the proffered police reports because the defendants
failed to establish that the reports had any probative value
beyond the fact that they were false, which the witness had
already acknowledged in his testimony. On that basis, the
District Court concluded that giving these reports to the jury
would “just wast[e] time.” We conclude that there was no
error in the District Court‟s exclusion of these reports.

        Third, Figueroa argues that the District Court erred by
allowing improper expert opinion testimony from a
prosecution fact witness on issues of constitutional law.16
Specifically, he alleges that prosecution fact witness Michael
Lynch of the Camden Police Department impermissibly
testified that a signed consent to search form was a


circumstances, which would lead an objective witness
reasonably to believe that the statement would be available
for use at a later trial”). Therefore, Figueroa‟s Confrontation
Clause and Bruton argument is inapposite.
15
   “We review a district court‟s decision to admit or exclude
evidence for abuse of discretion, and such discretion is
construed especially broadly in the context of Rule 403.”
United States v. Kemp, 500 F.3d 257, 295 (3d Cir. 2007)
(internal quotation marks and citation omitted).
16
   For standard of review see footnote 13.




                              17
constitutional requirement rather than just local police
department procedure.

        On direct examination, Lynch stated that a consent to
search form must be signed before a search is conducted and
then added, “that‟s not a Camden Police Department
procedure, that the [sic] established by law and constitutional
procedure.” Figueroa did not contemporaneously object to
this statement but instead questioned Lynch further on this
point on cross-examination. Figueroa subsequently objected
to “the law or legal concepts . . . coming from the witness
stand, from fact witnesses” and asserted that Lynch‟s
testimony “has confused the jurors into thinking they have
gotten some guidance on what the constitutional law is.” In
response to Figueroa‟s objection, the District Court found that
the jury had not been left with an impression that Lynch was
testifying about what the Constitution requires, stating, “[i]t
was very clear to me and very clear to the jury [that the
Camden Police Department procedures] is what the witness
was talking about.” At the conclusion of trial, the District
Court properly instructed the jury on constitutional
requirements concerning consent to search. From our review
of the record, we agree with the District Court‟s assessment
that Lynch was testifying about Camden Police Department
procedures, not constitutional law.

       Fourth, Figueroa argues that the District Court erred by
refusing to give the jury his requested instruction concerning
specific intent under 18 U.S.C. § 242.17 The District Court

17
     “Review of the legal standard enunciated in a jury
instruction is plenary, . . . but review of the wording of the
instruction, i.e., the expression, is for abuse of discretion.”




                              18
instructed the jury that to convict under § 242, the
government must prove beyond a reasonable doubt that
Figueroa (1) “acted under the color of law;” (2) “deprived a
person or persons alleged in the particular count of the
Indictment of their Constitutional liberty and property rights,
without due process of law, or their Constitutional right to be
free from unreasonable search and seizures;” and (3) “acted
knowingly, intentionally, and willfully.” The District Court
further instructed the jury:

       The specific intent required by law . . . is an
       intent to deprive a person of a federal right
       which has been made definite either by express
       terms of the Constitution or laws of the United
       States or by decisions interpreting them, or to
       act with reckless disregard of a constitutional
       requirement which has been made specific and
       definite. . ..

       You may find the particular defendant under
       consideration acted with the requisite specific
       intent, even if you find the defendant had no
       real familiarity with the specific constitutional
       rights involved, provided you find that the
       defendant under consideration willfully and
       consciously did the act which deprived the
       person of his or her constitutional rights.

       You may find a particular defendant acted


United States v. Yeaman, 194 F.3d 442, 452 (3d Cir. 1999)
(citations omitted).




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       willfully if he performed an act in open defiance
       or reckless disregard of a constitutional
       [requirement] which has been made specific and
       definite.

       On appeal, Figueroa claims that the District Court
erred by rejecting the following proposed instruction on the
issue of specific intent:

       It is not necessary for the government to prove
       that the defendant was thinking in specific
       constitutional terms provided that the
       government proves that the defendant‟s aim was
       not to enforce local law but to deprive a citizen
       of a right and that right was protected by the
       Constitution.

        We find no error here. The District Court‟s jury
instruction correctly stated the law. See United States v.
Johnstone, 107 F.3d 200, 208 (3d Cir. 1997) (holding that a
defendant “need not be „thinking in constitutional terms‟ in
order to be convicted of violating § 242” and that “it is
enough to trigger § 242 liability if it can be proved . . . that a
defendant exhibited reckless disregard for a constitutional or
federal right.” (quoting Screws v. United States, 325 U.S. 91,
106 (1945))). Furthermore, as the District Court noted, the
use of the term “not to enforce local law” in Figueroa‟s
proposed instruction is “very confusing.” We conclude,
therefore, that the District Court‟s jury instruction correctly
stated the law and that the court did not abuse its discretion in
rejecting Figueroa‟s proposed instruction.

       C. Substantive Reasonableness of the Sentence




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       Finally, Figueroa argues that his sentence was
substantively unreasonable based on the discrepancy between
the length of his sentence and those of his co-conspirators.
We review a sentence for substantive reasonableness under an
abuse of discretion standard, and the party challenging the
sentence bears the burden of showing unreasonableness.
United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009).
“A sentence that falls within the guidelines is more likely to
be reasonable than one outside the guidelines range.” United
States v. Cooper, 437 F.3d 324, 332 (3d Cir. 2006). Figueroa
has not borne his burden of proving the substantive
unreasonableness of his within-guidelines sentence. He has
done no more than note the disparity between his sentence
and the sentences of his co-conspirators. This alone does not
demonstrate substantive unreasonableness. See United States
v. Parker, 462 F.3d 273, 277 (3d Cir. 2006) (“Congress‟s
primary goal in enacting § 3553(a)(6) was to promote
national uniformity in sentencing rather than uniformity
among co-defendants in the same case.”).           Therefore,
Figueroa‟s sentence was not substantively unreasonable.

IV.   Conclusion

      For the foregoing reasons, we will affirm the District
Court‟s judgments of conviction and sentence.




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