                                                    NOT PRECEDENTIAL


             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT
                        __________

                           No. 11-2898
                           __________

                UNITED STATES OF AMERICA

                                v.

                      MARGARITA DIAZ,

                                     Appellant

                           __________

          On Appeal from the United States District Court
                    for the District of New Jersey
                      (Crim. No. 11-CR-00211)
          District Judge: Honorable Katherine S. Hayden
                            ___________

           Submitted Under Third Circuit L.A.R. 34.1(a)
                      September 24, 2012
                         ___________

Before: McKEE, Chief Judge, JORDAN and VANASKIE, Circuit Judges

                (Opinion Filed: January 11, 2013)
                          ___________

                           OPINION
                          ___________
McKEE, Chief Judge

       Margarita Diaz appeals a judgment, entered July 12, 2011, by the United States

District Court for the District of New Jersey, sentencing her to a twenty-four month

prison term, and denying her request for a downward variance under 18 U.S.C. § 3553.

For the reasons discussed below, we will affirm the District Court’s judgment.

                                             I.

       Because we write primarily for the benefit of the parties, we only briefly recite

essential facts.

       Diaz pled guilty pursuant to a plea agreement. Under the United States Sentencing

Guidelines, Diaz had a level I criminal history category, and offense level of 17. That

combination resulted in an advisory sentencing range of twenty-four to thirty months.

She requested a downward variance in hopes of obtaining a probationary sentence. She

argued that a variance was warranted because she had significant health problems, no

prior criminal history, and because her daughters, now adults, had been sexually abused

by her ex-husband. At Diaz’s sentencing hearing, the District Court discussed and

considered all of Diaz’s mitigating circumstances, as well as other downward variance

factors codified under § 3553(a). The Court rejected Diaz’s argument and found that a

twenty-four month prison term was warranted. This appeal followed imposition of

sentence.

                                            II.

       The District Court had subject matter jurisdiction under 18 U.S.C. § 3231, and we

have jurisdiction pursuant to 18 U.S.C. § 3742(a). We review the reasonableness of the

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District Court’s sentence under an abuse of discretion standard. See Gall v. United

States, 552 U.S. 38, 51 (2007). This requires that we ensure that the District Court

“committed no significant procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range,” and also “consider the substantive reasonableness of

the sentence imposed.” Id. If a “sentence is within the Guidelines range, [an] appellate

court may, but is not required to, apply a presumption of reasonableness.” Id. The fact

that we “might have reasonably concluded that a different sentence was appropriate is

insufficient to justify reversal.” Id. This approach is based on the principle that “the

sentencing judge is in a superior position to find facts and judge their import under §

3553(a) in the individual case.” Id.

                                            III.

       The sentencing transcript shows that the District Court correctly calculated the

Guidelines range, allowed both parties to present their arguments regarding the

appropriate sentencing range, considered all of the § 3553(a) factors, and thoroughly

documented its reasoning. See Appx. at A24-25; Gall, 552 U.S. at 53. The record also

refutes Diaz’s claim of substantive error. The District Court considered whether Diaz’s

“lack of a criminal history, acceptance of responsibility, familial circumstances, and poor

health warranted a measure of leniency.” Brief of Appellant at 12. The Court analyzed

those factors, and others listed under § 3553(a), and ultimately concluded that a sentence

at the bottom of Diaz’s range, rather than below, was warranted. See Appx. at A25.

       Contrary to Diaz’s allegations, the sentencing judge was quite sympathetic to her

individual circumstances. The judge explained that if “the circumstances of Ms. Diaz’s

                                              3
life [were] less dramatic, perhaps I [would] even be sentencing in the middle of the

Guideline range, but to the extent that they are genuine circumstances . . . I will sentence

her at the bottom of the Guideline range . . . I find that it adequately punishes the offense

. . . [and] to the extent that the deterrence brings that out loud and clear then the public is

protected from not only Ms. Diaz by her incapacitation for a period of time, but by the

fact that other people working at Ms. Diaz’s job know she confessed to her crime

promptly . . . [a]nd the Court imposed the Guideline sentence.” Appx. at A25.

                                              IV.

       For the reasons discussed above, we will affirm the District Court’s judgment.




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