                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 13-3178
                                   _____________

                          UNITED STATES OF AMERICA

                                          v.

                             EDGUARDO SANTIAGO,
                                  a/k/a Egge

                             EDGUARDO SANTIAGO,
                                            Appellant
                                _______________

                 On Appeal from the Eastern District of Pennsylvania
                            (D.C. No. 5-12-cr-00025-001)
                  District Judge: Honorable James Knoll Gardner
                                 _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 18, 2015

       Before: FUENTES, GREENAWAY, JR., and SLOVITER, Circuit Judges.

                           (Opinion Filed: October 1, 2015)
                                  _______________

                                     OPINION*
                                  _______________




      *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
FUENTES, Circuit Judge.

       Edguardo Santiago challenges the reasonableness of his within-guidelines range

sentence. For the following reasons, we will affirm.

                                              I.

       On March 26, 2011, police officers responded to a shooting reported at Santiago’s

residence. After finding a gun in the residence, the officers obtained a search warrant and

returned to the residence. The officers’ search yielded 210 grams of crack, 8.6 grams of

cocaine, 13.4 grams of marijuana, 20 Xanax pills, two digital scales, baggies, and

$23,150 cash in Santiago’s possession. Santiago pleaded guilty to an indictment charging

him with various drug offenses, including distributing and possession with the intent to

distribute within 1,000 feet of a public school.

       The Probation Office determined that the quantity of drugs equated to a base level

of 30, which was then modified due to a two-level enhancement because the offense

occurred in a protected location, a two-level enhancement for gun possession, and a

three-level reduction for acceptance of responsibility, resulting in an adjusted offense

level of 31. In addition, the Probation Office noted that Santiago had two juvenile

adjudications—one for disorderly conduct, which did not result in any criminal history

points, and one for possession of drug paraphernalia and driving while privileges were

suspended, resulting in two criminal history points. Santiago also received one criminal

history point for an arrest, while on bail, for the possession of marijuana.




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       Based on this information, the District Court determined that Santiago’s guidelines

range was 97-121 months. At the sentencing hearing, Santiago challenged the gun

enhancement1 and sought a departure under USSG § 4A1.3 on the ground that his

placement in the Criminal History Category II overstated the seriousness of his criminal

record.2 Moreover, he asked the District Court to “consider [his] entire prior background

including his long[-]standing addiction to drugs, school history, work history, family

history, and his difficult childhood in Puerto Rico where his family lived in poverty.”3

Because his criminal activity stemmed from his drug addiction, and there was no

evidence of violence or that anyone was harmed by his activity, Santiago asked the

District Court to impose a sentence below the guidelines range.4 The Government argued

for a within-guidelines range sentence, acknowledging that while Santiago had a

substance abuse problem, his offense included significant quantities of drugs, $23,000 in

cash, and multiple undercover purchases over an extended period of time, demonstrating

that Santiago was involved in large-scale drug trafficking.5


1
  The District Court sustained this objection and thus reduced his offense level to 29,
resulting in the guidelines range of 97-121 months.
2
  Santiago acknowledged that his criminal history category was correctly calculated, but
argued that assigning two criminal history points for juvenile adjudication regarding
possession of drug paraphernalia overstated the severity of this offense.
3
  App. 42.
4
  At the sentencing hearing, the District Court responded that this was not an objection
but rather an argument in support of a variance from the applicable range, to which
counsel agreed. App. 90. The District Court, however, addressed the argument as both a
variance and a request for a downward departure.
5
  The Government also observed that Santiago had no verifiable income (but still owned
a car) and admitted that he gambled regularly with significant sums of money; that
Santiago was arrested in March 2011 by local authorities and was released on bail—and
                                             3
       Ultimately, the District Court sentenced Santiago to 108-months imprisonment. In

doing so, the District Court addressed Santiago’s argument regarding his criminal history

category. The District Court explained that downward departures are reserved for the

“rare” case “where reliable information indicates that the criminal history category does

not adequately reflect the seriousness of the defendant’s criminal history or likelihood of

recidivism.”6 In contrast, Santiago “earned the three criminal history points” and, thus,

the District Court found it “difficult to see . . . how his criminal history category could be

deemed to misrepresent or exaggerate his criminal history, much less to place him outside

the heartland.”7 This appeal followed.

                                             II.

       On appeal, Santiago argues that: (1) the District Court failed to meaningfully

consider the nature of his criminal history as a ground for a downward departure; and (2)

the District Court erred in imposing a substantively unreasonable sentence.8

       We review the reasonableness of Santiago’s sentence for abuse of discretion.9 Our

procedural review ensures that courts consider, among other things, all of the sentencing



went right back to his drug trafficking activity selling crack to an informant in April
2011.
6
  App. 126.
7
  App. 127. The District Court also observed that even if it were to agree with Santiago
that the two criminal history points overstate his criminal history category, it would have
only reduced it by one point, still placing Santiago in a criminal history category II.
8
  The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction
under 28 U.S.C. § 1291.
9
  United States v. Woronowicz, 744 F.3d 848, 851-52 (3d Cir. 2014) (citing United States
v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009)). In United States v. Flores-Mejia, 759 F.3d
253 (3d Cir. 2014) (en banc), we held that when a party wishes to appeal based on a
                                              4
factors set forth in 18 U.S.C. § 3553(a).10 We then review the substantive reasonableness

of the sentence imposed.11 Our substantive review examines “whether the record as a

whole reflects rational and meaningful consideration” of those same § 3553(a) factors.12

For a sentencing court to give meaningful consideration to the § 3553(a) sentencing

factors, “[it] must acknowledge and respond to any properly presented sentencing

argument which has colorable legal merit and a factual basis.”13          Moreover, “[t]he

sentencing judge should set forth enough to satisfy the appellate court that he has

considered the parties’ arguments and had a reasoned basis for exercising his own legal

decisionmaking authority . . . . Nonetheless, when a judge decides simply to apply the

Guidelines to a particular case, doing so will not necessarily require lengthy

explanation.”14 Assuming a defendant does, in fact, make a colorable argument under §

3553(a) in support of a downward variance, it is sufficient for a district court to consider

“the nature and circumstances of the offense and the history and characteristics of the

defendant” as a whole.15




procedural error at sentencing, that party must object to the procedural error in order to
avoid plain error review on appeal. We also held that our prior ruling in United States v.
Sevilla, 541 F.3d 226 (3d Cir. 2008), would remain applicable to cases imposed before
Flores was announced.
10
   United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006).
11
   Tomko, 562 F.3d at 567.
12
   United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc).
13
   United States v. Ausburn, 502 F.3d 313, 328-29 (3d Cir. 2007).
14
   Rita v. United States, 551 U.S. 338, 356 (2007) (citation omitted).
15
   18 U.S.C. § 3553(a)(1); see Rita, 551 U.S. at 356.
                                              5
      Here, the District Court’s consideration of Santiago’s history and characteristics

was sufficient to meet the standard articulated in Rita v. United States for both

meaningful consideration and substantive reasonableness. We therefore affirm.




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