                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     _____________

                                      No. 14-3199
                                     _____________


                            UNITED STATES OF AMERICA

                                             v.

                              MIGUEL ANGEL ROSARIO,

                                                              Appellant


                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                        (District Court No.: 1-11-cr-00076-002)
                      District Judge: Honorable John E. Jones, III


                       Submitted under Third Circuit LAR 34.1(a)
                                   March 16, 2015

              Before: RENDELL, FUENTES and BARRY, Circuit Judges

                             (Opinion filed: March 16, 2015)



                                      O P I N I O N*




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

         Appellant Miguel Angel Rosario appeals his 154-month prison sentence, which

was imposed when he pled guilty to: one count of bank robbery in violation of 18 U.S.C.

§ 2113(a); one count of armed bank robbery in violation of § 2113(a) & (d); and one

count of use of a firearm during a crime of violence in violation of 18 U.S.C.

§ 924(c)(1)(A). Rosario argues that his sentence is substantively unreasonable because it

is disproportionate to his codefendants’ sentences. We will affirm.

                          I. Jurisdiction and Standard of Review

         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have

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

reviewing a sentence on appeal, we first determine whether the sentencing court

committed a serious procedural error.1 United States v. Wise, 515 F.3d 207, 218 (3d Cir.

2008). Next, we “review the substantive reasonableness of [a] sentence under an abuse-

of-discretion standard,” and “[a]s long as a sentence falls within the broad range of

possible sentences that can be considered reasonable . . . we must affirm.” Id.

                                       II. Discussion

         The burden is on the criminal defendant to prove that his sentence is substantively

unreasonable, United States v. Parker, 462 F.3d 273, 276 (3d Cir. 2006), and Rosario has

failed to meet his burden here. Section 3553(a) provides that “[t]he court, in determining

the particular sentence to be imposed, shall consider . . . (6) the need to avoid

unwarranted sentence disparities among defendants with similar records who have been

1
    Rosario makes no claim of a procedural error.
                                              2
found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). In Parker, we provided a

thorough analysis of § 3553(a)(6). Parker explains that “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.” 462 F.3d at 277. “Therefore, a

defendant cannot rely upon § 3553(a)(6) to seek a reduced sentence designed to lessen

disparity between co-defendants’ sentences.” Id.

       However, Parker acknowledges that, “[a]lthough § 3553(a) does not require

district courts to consider sentencing disparity among co-defendants, it also does not

prohibit them from doing so.” Id. “Where appropriate to the circumstances of a given

case, a sentencing court may reasonably consider sentencing disparity of co-defendants in

its application of those [§ 3553] factors.” Id. at 278 (emphasis added). For the

comparison to be relevant, the codefendants naturally must be “similarly situated.” Id. If

one codefendant has “a far less extensive criminal record” or “assisted in convicting his

co-defendants,” then the comparison is not relevant. Id.

       In sentencing Rosario, the District Court opted to account for the sentencing

disparity between Rosario and his “cohorts and codefendants”—i.e., ten other individuals

who were also involved in the same and/or related robberies:

       As to the sixth [§ 3553] factor, I want to speak to that because I think it
       needs to be addressed in the sense that we must avoid unwarranted
       sentencing disparities. . . . It’s my considered judgment that your
       culpability falls in the middle range of some of your cohorts and
       codefendants, and I’m going to sentence you in a way that is consistent
       with that, understanding that to the extent that I can’t completely avoid a
       disparity that some of that is triggered by the fact that you engaged in gun
       play and brandished a gun, which bought you a considerably higher
       sentence under the circumstances because of the provisions of the statute.

                                             3
       So as I look at this I’m willing to go to the bottom of the advisory guideline
       range in this case. . . . I do think that under the circumstances that the
       guidelines have it right in this case, and I can’t see any compelling reason
       to vary from the advisory guidelines.

(App. 232-33.) The District Court’s decision to sentence Rosario to the bottom of the

Guidelines range in order to mitigate some of the disparity in sentencing that would have

otherwise resulted was not an abuse of discretion. Rosario wishes for us to look purely at

the number of robberies each codefendant committed and compare the sentence received,

but the Guidelines care about more than just the number of robberies committed.

Rosario’s codefendants did not all face the same charges, and they had different criminal

histories. Rosario has not shown that he is similarly situated to any of his codefendants

with respect to the factors relevant to sentencing, and he has failed to establish that the

District Court abused its discretion.

                                        III. Conclusion

       Accordingly, we will affirm the District Court’s sentencing order.




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