                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-25-2008

USA v. Batista-Augstin
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2703




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 07-2703


                           UNITED STATES OF AMERICA

                                            v.

                           ALCEDO BATISTA-AUGUSTIN,
                                           Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF NEW JERSEY
                            (D.C. Crim. No. 07-cr-00016)
                 District Judge: The Honorable Faith S. Hochberg


                       Submitted Under Third Circuit LAR 34.1(a)
                                    June 25, 2008


                Before: SLOVITER, BARRY and ROTH, Circuit Judges

                              (Opinion Filed: July 25, 2008)


                                        OPINION

BARRY, Circuit Judge

       Alcedo Batista-Augustin appeals the 46 month term of imprisonment imposed

upon him for illegal reentry after deportation subsequent to a conviction for an aggravated

felony. We will affirm.
                                              I.

       Appellant came to the United States from the Dominican Republic in 1987. In

1990, he was convicted of possession of a controlled dangerous substance with intent to

distribute and sentenced to five years of probation. In 1992, he was convicted of the

aggravated sexual assault of a child less than thirteen years of age in violation of N.J.

Stat. Ann. § 2C:14-2(a)(1) and sentenced to eight years imprisonment. In August of

1996, he was paroled and deported to the Dominican Republic, but returned to the United

States without permission in 2001. In 2003, he was convicted of possession of a

controlled dangerous substance and sentenced to four years of probation. On October 21,

2005, he was apprehended by immigration authorities.

       Pursuant to a plea agreement, appellant pled guilty to illegal reentry after

deportation subsequent to a conviction for the commission of an aggravated felony, in

violation of 8 U.S.C. § 1326(a) and (b)(2). The Magistrate Judge accepted the plea and

issued a report and recommendation, which the District Court adopted by order dated

February 9, 2007. In a Letter Memorandum submitted prior to sentencing, appellant

agreed that the sentencing range under the Sentencing Guidelines (“Guidelines”) was 46-

57 months imprisonment and did not seek a downward departure. However, he requested

a “modest” variance from the agreed-upon range based upon, among other factors, the

“deplorable” conditions at the Passaic County Jail (“PCJ”) where he had been detained

for 18 months. He argued that those conditions “rendered his sentence harsher than


                                              2
necessary to satisfy the relevant purposes of sentencing,” and the detention “far more

punitive and less conducive to the rehabilitative purposes of sentencing.” App. at 63-64.

He also argued that his motivation for returning to the United States justified a “measure

of leniency,” because he returned here to work and because much of his family was here,

including his mother who was gravely ill. Id. at 63.

       At the sentencing hearing, the District Court confirmed that there were no

departure requests and stated that it would therefore begin its analysis at step three of

United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), and would consider appellant’s

request for a variance under § 3553(a). In addition to those factors appellant had earlier

asked the Court to consider, he asked the Court to take into account the fact that, despite

the danger of deportation, he voluntarily registered as a sex offender under Megan’s Law;

his prior substance abuse; his attempts to maintain steady employment while in the United

States; and his mistaken belief that he could return to the United States after five years.

       After hearing the parties’ arguments, the District Court stated that

       [w]ith respect to the Passaic County Jail, the conditions described there do
       apply to all the prisoners, there’s nothing that indicates that they weren’t
       typical conditions applicable to all prisoners and, therefore, I don’t find that
       to be a basis for a variance . . . .

App. at 30. The Court also stated that it was sympathetic with regard to appellant’s

concern for his sick mother and his erroneous belief that he could return to the United

States (although it noted he had been warned of the consequences of any illegal reentry),

and that it was commendable that he had reported under Megan’s Law. The Court

                                              3
concluded that it would not grant a variance, but would consider these factors within the

agreed-upon Guidelines range. The Court sentenced appellant to 46 months

imprisonment, the bottom of that range.

       Appellant filed a timely notice of appeal.

                                             II.

       The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We

have jurisdiction pursuant to 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291.

       We review a sentence for reasonableness. United States v. Bungar, 478 F.3d 540,

542 (3d Cir. 2007). There is a presumption of reasonableness when, as here, the sentence

is within the Guidelines range. Rita v. United States, 127 S. Ct. 2456, 2465-66 (2007);

United States v. Olfano, 503 F.3d 240, 245 (3d Cir. 2007). “[T]hose sentences that are

within the Guidelines range are more likely to be reasonable than those that fall outside

[the] range.” Olfano, 503 F.3d at 245.

                                            III.

       Appellant argues that the District Court failed to adequately consider his argument

that the conditions at PCJ rendered his sentence more punitive than necessary to satisfy

the relevant § 3553(a) factors and the relevant purposes of sentencing. While the Court

did not explicitly rule on this specific argument, concluding instead that the conditions in

which appellant was housed were not “sufficiently unusual,” id. at 20, it is clear that the

Court considered the issue as framed by appellant given that it had read the lengthy


                                             4
memoranda which discussed it, heard argument on it at the sentencing hearing, and did

not find that a variance was warranted because of it. Moreover, the Court explained why

it rejected appellant’s other reasons in support of a variance, noting that it would take

them into account in imposing a sentence within the Guidelines range.

       We also reject appellant’s argument that the record reveals the “strong possibility”

that the District Court held his variance request to the standard applicable to departure

requests. Specifically, appellant argues that the Court’s finding that the conditions were

not “unusual” or “atypical” suggests that the Court was applying the departure standard,

because “extraordinariness,” which is not a prerequisite for granting a variance, see Gall

v. United States, 128 S. Ct. 586, 595 (2007), is at the heart of the departure framework.1

Although the Court may have used language similar to that used by courts ruling on

departure requests, it is clear that the Court understood that appellant sought a variance

under § 3553(a) when it confirmed that there were no departure requests, and knew that it

had the discretion to grant a variance. There is no evidence to suggest that the Court

relied on anything other than its discretion when it denied appellant’s request for a

variance and sentenced him to the bottom of the Guidelines range.

       For the above reasons, we will affirm the judgment of sentence.


   1
     Appellant also notes that in its Statement of Reasons, the District Court stated that
“the court finds no reason to depart from the sentence called for by application of the
guidelines.” This statement, however, taken in the context of the Court’s discussion at
the sentencing hearing, does not lead us to conclude that the Court applied an improper
standard.

                                              5
