                                                            NOT PRECEDENTIAL



                           UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                   _______________

                                        No. 15-2057
                                     ________________

                              UNITED STATES OF AMERICA

                                              v.

                                     LEE CARABALLO,
                                             Appellant

                       On Appeal from the United States District Court
                                for the District of New Jersey
                              (D.N.J. No. 2-14-cr-00255-001)
                           District Judge: Honorable Esther Salas
                                       _____________

                      Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                      March 1, 2016

               Before: SMITH, HARDIMAN and SLOVITER, Circuit Judges.

                                   (Filed: March 3, 2016)
                                 ______________________

                                        OPINION
                                 ______________________


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

       Appellant Lee Caraballo challenges his convictions for carjacking in violation of

18 U.S.C. § 2119(1) and brandishing a firearm in furtherance of carjacking in violation of

18 U.S.C. § 924(C)(1)(A)(ii), as well as his sentence of 135 months imprisonment. We

find no merit to his claims and will affirm.

I.     Background

       A.      Carjacking

       At about 1:30 a.m. on November 30, 2012, Victor Monterossa was backing up his

Toyota Corolla in his driveway when a man wearing a black skull cap and black puffy

jacket approached the driver’s side window, pressed a gun against Monterossa’s head,

and ordered him out of the car. After he complied, the assailant pointed the gun at

Monterossa and said, in Spanish, “Give me the money.” The assailant then asked for

Monterossa’s phone, a black Apple iPhone model 4S, which Monterossa indicated was

still in the car. At that point the assailant got into the car and fled.

       Monterossa immediately called 911. When two police officers from the Newark

Police Department arrived, Monterossa explained what happened and described the

assailant as a Hispanic male, approximately 5’9” to 6” tall, 30 to 35 years old, 150-180

pounds, “light facial hair, black skully cap, wearing a large black bubble jacket, armed

with a small silver handgun.” App. at 441.

       B.      Traffic Stop


                                                    2
      That same afternoon, Officer Mitchell White of the Roselle Park New Jersey

Police Department stopped a black Mercedes, driven by defendant Lee Caraballo for

having tinted front car windows in violation of N.J. Stat. Ann. § 39:3-75. Officer White

approached the window and knocked on it, at which point Caraballo rolled the window

down. Officer White immediately smelled the odor of “freshly burned marijuana.” App.

at 444. When asked for his driving credentials, Caraballo complied, indicating that he

did not have an insurance card. White then asked Caraballo if he had been smoking

marijuana in the vehicle; Caraballo replied that he had about an hour before.

      White asked Caraballo if there was any marijuana in the vehicle. Caraballo replied

that there was not and opened the trunk. The parties dispute whether Caraballo gave

White permission to search the vehicle at this time. White then asked Caraballo to step

out of the vehicle and Caraballo complied.

      As Caraballo stepped out of the car, Officer White observed a box cutter clipped

to Caraballo’s right pocket. The officer removed the box cutter and asked Caraballo why

he had it. Caraballo replied that he had it for work. Officer White asked him where he

worked, to which Caraballo responded that he was not working at that time. During the

course of this interaction, Officer White performed a protective pat-down search of Mr.

Caraballo.

      White explained that he was going to search the car, and Caraballo again

consented. The officers found a partially smoked marijuana cigarette and a small plastic

bag containing marijuana inside the Mercedes, as well as a blue flip phone, a black

                                                3
jacket, two Toyota car keys, and a black Apple iPhone Model 4S.

       While gathering Caraballo’s personal items from the car, Officer White questioned

him.   The parties dispute whether Caraballo was read his Miranda rights before

questioning and the exact content of the officer’s inquiries. Nevertheless, the parties

agree that Caraballo stated he did not know to whom the iPhone belonged and that he was

the only person who drove the Mercedes.        The entire conversation was in English.

Caraballo was then brought to the Roselle Park police station.

       At some point that day, Monterossa used a GPS application to track his phone.

This tracking feature indicated that his phone was at the Roselle Park Police Department.

       C.     Roselle Park Police Station

       Officers at the station noticed that the iPhone recovered from Caraballo’s car was

receiving an alert that the iPhone’s owner was attempting to track the phone’s location.

The Police Department then received a phone call from Monterossa, who explained that

he had been carjacked by “a white Hispanic male, scruffy beard, wearing a black puffy

jacket and a black winter hat.” App. at 454.

       Officer White recalled the black jacket he saw during his search of the Mercedes,

so he asked Caraballo for consent to search again. Caraballo signed two written consent-

to-search forms—one in English and one in Spanish.          The officers returned to the

Mercedes and recovered the black puffy jacket and placed it into evidence. Monterossa

later came to the station, identified the iPhone and car keys as his and gave a statement

describing the incident and the attacker.

                                                4
       D.     Investigation

       On December 1, 2012, Monterossa’s Toyota was recovered, and Lieutenant

Ronald J. Micucci of the New Jersey State Police was assigned to investigate the

carjacking. Lieutenant Micucci prepared a photo array of six individuals, including

Caraballo, to show to Monterossa. Detective Carlos Olmo performed a double-blind

photo array with Monterossa on December 7, 2015, which resulted in a positive

identification of Caraballo. The entire procedure was video recorded.

       Monterossa also indicated that the black puffy jacket and skull cap found in

Caraballo’s car were similar to those worn by the carjacker.

       E.     Indictment, Pre-Trial Motions, & Trial

       A grand jury indicted Caraballo for carjacking in violation of 18 U.S.C. § 2119(1),

and for brandishing a firearm in furtherance of carjacking, in violation of 18 U.S.C. §

924(C)(1)(A)(ii). Caraballo moved to suppress out-of-court and in-court identifications,

his own statements, and items seized from his car. After an evidentiary hearing in which

Caraballo testified, the District Court denied his motions. Caraballo then proceeded to

trial by jury where he testified that he had no involvement in the crime. He was

ultimately found guilty as charged and sentenced to 135 months imprisonment.

II.    Discussion

       A.     Traffic Stop & NJ Stat. Ann. § 39:3-75

       Caraballo argues that the District Court erred in denying his motion to suppress

the evidentiary fruits of Officer White’s initial traffic stop. Caraballo maintains that the

                                                5
stop was without reasonable suspicion because the statute barring “unduly tinted”

windows under which he was pulled over, NJ Stat. Ann. § 39:3-75, is void for vagueness.

However, he waived this argument by not raising it in his written motion to suppress. See

United States v. Dupree, 617 F.3d 724, 728 (3d Cir. 2010) (“[W]hen a party seeks

reversal of a suppression ruling on appeal, any arguments not raised in the district court

are waived absent a showing of good cause, and plain error review does not apply.”

(citing United States v. Rose, 538 F.3d 175, 184 (3d Cir. 2008) ).1 Because Caraballo’s

void-for-vagueness argument was not properly presented to the District Court, we cannot

reach the issue.

       Caraballo argues alternatively that the traffic stop was made without reasonable

suspicion because Officer White “failed to articulate how the particular windows of

Defendant’s car were unduly discolored under the statute,” thereby “fail[ing] to provide[]

specific, articulable facts that support an objective determination of reasonable

suspicion.” Caraballo Br. at 43 (citing United States v. Delfin-Colina, 464 F.3d 392, 399


1
  Caraballo points to defense counsel’s passing argument during the District Court motion
hearing that the statute lacked any objective basis for determining whether a car’s
windows were “unduly” tinted and that, as a result, stops for tinted windows in New
Jersey were “all illegal stops.” App. at 167. However, such a “fleeting reference or
vague allusion to an issue will not suffice to preserve it for appeal[.]” In re Ins.
Brokerage Antitrust Litig., 579 F.3d 241, 262 (3d Cir. 2009). Rather, a party “must
unequivocally put its position before the trial court at a point and in a manner that permits
the court to consider its merits.” Shell Petroleum, Inc. v. United States, 182 F.3d 212,
218 (3d Cir. 1999). Further, Caraballo’s current argument does not “depend on both the
same legal rule and the same facts as the argument presented in the District Court.”
United States v. Joseph, 730 F.3d 336, 342 (3d Cir. 2013).

                                                 6
(3d Cir. 2006)). However, Officer White stated in his report that he “observed dark

tinting on the front windows” of Caraballo’s vehicle, in violation of NJ Stat. Ann. § 39:3-

75, and later testified at the evidentiary hearing that he could not see the occupant,

thereby “deem[ing] it to be too darkly tinted.” Supp. App. at 65-66, 79-80; App. at 200.

The District Court examined photographs of the Mercedes and concluded that it had “no

doubt that these windows were tinted.” App. at 248. These facts meet the “undemanding

standard” of reasonable suspicion. Delfin-Colina, 464 F.3d at 397. As a result, the Court

did not abuse its discretion by denying Caraballo’s motion to suppress.

       B.     Pre-Arrest Statements

       The pre-arrest interactions between Caraballo and the arresting officers can be

divided into two separate exchanges that occurred (1) while Caraballo was still in the

driver’s seat and (2) after Caraballo exited the vehicle and Officer White observed a box

cutter on his person.2 The questioning at issue in these respective interactions consisted

of Officer White asking Caraballo (1) if he had smoked marijuana recently and whether

there was marijuana in the car and (2) why he had a box cutter and the follow-up question



2
  Caraballo argues that additional statements should be suppressed, claiming that he was
asked questions regarding the iPhone and Toyota key while he was sitting on the
sidewalk, prior to receiving Miranda warnings. However, the District Court did not credit
his testimony as to this fact, and instead credited that of Officer White, who testified that
he asked about these items after Caraballo had been placed under arrest and given
Miranda warnings. As an appeals court, “[i]t is not for us to weigh the evidence or to
determine the credibility of witnesses.” United States v. Petersen, 622 F.3d 196, 201 (3d
Cir. 2010) (quoting United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998)). The District
Court’s factual finding in this regard was not clearly erroneous.

                                                 7
of where he worked. Neither of these interactions constituted custodial interrogation for

purposes of Caraballo’s rights under Miranda v. Arizona, 384 U.S. 436 (1966).

       The first exchange occurred very soon after Officer White pulled over Caraballo’s

Mercedes. Officer White’s immediate questioning pursuant to the non-custodial traffic

stop was reasonable in light of the circumstances, as it was designed to “confirm or dispel

[his] suspicions quickly.” United States v. Anderson, 859 F.2d 1171, 1177 (3d Cir. 1988).

Officer White took no additional actions that would cause this interaction to rise from a

non-coercive traffic stop to a curtailment of Caraballo’s freedom of movement to “the

degree associated with a formal arrest.” United States v. Willaman, 437 F.3d 354, 359

(3d Cir. 2006) (quoting United States v. Leese, 176 F.3d 740, 743 (3d Cir. 1999)). As a

result, Caraballo was not subject to custodial interrogation and the District Court did not

err in denying Caraballo’s motion to suppress as to this statement.

       Nor was Caraballo subject to custodial interrogation when asked questions about

his possession of a box cutter. Rather, the interaction proceeded as a lawful temporary

investigatory detention within the limits authorized by the Supreme Court in Berkemer v.

McCarty, 468 U.S. 420 (1984), as well as by this court in Anderson and did not exert

“pressures that sufficiently impair[ed] [Caraballo’s] free exercise of his privilege against

self-incrimination to require that he be warned of his constitutional rights.” Berkemer,

468 U.S. at 437. The afternoon traffic stop was relatively brief and occurred in public—

the same features found in Berkemer to “mitigate the danger that a person questioned will

be induced ‘to speak where he would not otherwise do so freely.’” Id. (quoting Miranda,

                                                8
384 U.S. at 467). Further, Caraballo did not assert that the officers used any coercive

tactics such as hostile tone or a display of weapons. As a result, we find that Caraballo

was not in custody when asked about the box cutter.3

       For these reasons, we will affirm the District Court’s denial of Caraballo’s motion

to suppress his pre-arrest statements.

       C.     Post-Arrest Statements

       Caraballo argues that his post-arrest statements should be suppressed. We find

that Caraballo validly waived his Miranda rights, and as a result, we will affirm the

District Court’s denial of his motion to suppress on these grounds.4

       The only characteristic Caraballo points to in arguing that his Miranda waiver was

invalid is that “he did not understand the Miranda warnings in the patrol car because his

first language is Spanish.” Caraballo Br. at 49. A language barrier may be a valid factor

to consider in examining the validity of a waiver. See United States v. Sriyuth, 98 F.3d

739, 749 (3d Cir. 1996).

       However, the District Court did not credit Caraballo’s testimony that he

3
  Even if Caraballo had been in custody at the time he was asked about the box cutter,
Officer White’s questioning would not constitute “interrogation” requiring Miranda
warnings. That is, he has not established that Officer White should have known that his
questioning regarding why Caraballo had a box cutter and where Caraballo worked were
“reasonably likely to elicit an incriminating response from the suspect.” United States v.
Brownlee, 454 F.3d 131, 146 (3d Cir. 2006) (quoting Rhode Island v. Innis, 446 U.S. 291,
300-01 (1980)).
4
  Caraballo also argues the post-arrest statements should be suppressed as fruit of illegal
pre-Miranda warning custodial interrogation. Because we find no Miranda violation in
Caraballo’s pre-arrest statements, see supra, the claim fails.

                                                9
misunderstood the warnings given in English. In denying the motion to suppress the

post-arrest statements, the Court noted that Caraballo spoke with Officer White in

English throughout the traffic stop, never indicated to Officer White that he did not

understand English or that he did not understand the Miranda warnings, and admitted to

the District Court that he told Officer White that he did understand the warnings. As a

result, the District Court found that, under the totality of the circumstances, Caraballo’s

waiver was uncoerced and made with requisite awareness of the right being abandoned.

See Moran v. Burbine, 475 U.S. 412, 421 (1986). We do not find the District Court’s

factual finding that Caraballo understood the Miranda warnings to be clearly erroneous.

       As a result, we will affirm the District Court’s denial of Caraballo’s motion to

suppress his post-arrest statements.

       D.     Search of Car

       Caraballo claims that he did not consent to the search of his car at the traffic stop

and that the additional consent forms signed at the police station were involuntary. The

District Court, however, discredited Caraballo’s testimony that he refused Officer

White’s request to search his Mercedes, as well as his claim that a language barrier made

his consent involuntary. “It is ... well settled that one of the specifically established

exceptions to the requirements of both a warrant and probable cause is a search that is

conducted pursuant to consent.” United States v. Price, 558 F.3d 270, 277 (3d Cir. 2009)

(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). Once again, we find that

the District Court did not clearly err in its factual determination that Caraballo did

                                                10
understand English and did voluntarily consent at the traffic stop.

       E.     Pre-Trial Identification

       The District Court denied Caraballo’s motion to suppress Monterrosa’s pre-trial

identification as impermissibly suggestive. We review such a denial “for clear error as to

the underlying facts, but exercise plenary review as to its legality in light of the court’s

properly found facts.” United States v. Brownlee, 454 F.3d 131, 137 (3d Cir. 2006). We

hold that the pre-trial identification in this case was neither unduly suggestive nor likely

to create a substantial risk of misidentification.

       First, the photo array itself was not impermissibly suggestive. The photo array in

no way directed the witness’ attention to Caraballo’s photograph—all six photographs

depict Hispanic men of similar age, weight, skin color, and hair color. See App. at 829.

Five of the six men depicted, including Caraballo, have facial hair of similar length.

There are no “characteristics of [the] defendant or photograph [that] set him apart from

the other persons pictured in the array” and certainly none that “‘sufficiently distinguish’

[the] defendant to suggest culpability.” United States v. Burnett, 773 F.3d 122, 133 (3d

Cir. 2014) (quoting Reese v. Fulcomer, 946 F.2d 247, 260 (3d Cir. 1991)). As in Burnett,

“any slight differences in the appearances of those depicted did not rise to the level of

being unduly suggestive, and did not create a risk of misidentification.” Id. at 133-34.

       Furthermore, the procedures used were not unduly suggestive. Detective Olmo

testified that he followed state guidelines for photo array procedures, including “not

having the knowledge of the suspect, not having any knowledge of the intimate details of

                                                     11
the investigation,” and “not having any contact with the victim.” App. at 44. This

“double-blind” procedure is highly recommended for reducing the risk of improper law

enforcement suggestion. See, e.g., Hart v. Mannina, 798 F.3d 578, 588 n.1 (7th Cir.

2015) (calling the procedure “preferred”); State v. Henderson, 27 A.3d 872, 896 (N.J.

2011) (recounting expert testimony that it is “the single most important characteristic that

should apply to eyewitness identification” procedures).

       Because of the proper use of this double-blind procedure, we agree with the

Government that Caraballo’s “[c]laims that Detective Olmo provided confirmatory

feedback are illogical.” Gov’t. Br. at 42. Additionally, in performing the identification

procedure, Detective Olmo presented Monterrosa with a form to sign, which included,

inter alia, the instructions that he “should not conclude that the person who committed

the crime is in the group merely because a group of photographs [were] being shown to

[him]” and that he “[did] not have to select any photograph.” App. at 828 (emphasis in

original). The detective repeated these instructions out loud to Monterrosa.

       The only additional fact Caraballo points to in arguing that the identification was

impermissibly suggestive is the repetition by Lieutenant Ronald Micucci of one of the

photo display instructions after the witness indicated that the photograph “look[ed] very

much like” the person that carjacked him, but expressed some difficulty remembering

particular features, including his “five o’clock shadow.” App. at 854. Micucci pointed

Monterrosa to the pertinent paragraph in the instructions: “Please keep in mind that

hairstyles, beards and mustaches are easily changed.” App. at 828, 854. Although not

                                                12
preferable, given the context, this comment was not truly “confirmatory feedback”—a

statement or action by police signaling that the witness has correctly identified the

suspect. See, e.g., Henderson, 27 A.3d at 899.

       Ultimately, under a totality of the circumstances, the photo array procedures were

not unduly suggestive and did not give rise to a substantial likelihood of irreparable

misidentification.5 As a result, we will affirm the District Court’s denial of Caraballo’s

motion to suppress.

       F.     Lieutenant Micucci’s Testimony

       Caraballo claims the District Court erred by admitting four particular portions of

Lieutenant Ronald Micucci’s testimony. For the following reasons, we find that this

testimony was properly admitted by the District Court.

              1.      Description of Suspect

       Lieutenant Micucci testified at trial that when he became involved with the

investigation, an arrest had already been made of a male that “matched the description . . .

the victim had provided in the carjacking.” App. at 496. Caraballo claims that this

testimony was hearsay and violated Caraballo’s rights under the Confrontation Clause of




5
  Caraballo also challenges the admission of Monterrosa’s in-court identification as
tainted by the pre-trial identification. However, because we find the pre-trial
identification to be properly admitted, this claim fails. See Reese v. Fulcomer, 946 F.2d
247, 262 (3d Cir. 1991) (“[T]he victim's pretrial identification procedures created no
substantial likelihood of irreparable misidentification at the trial.”)

                                                 13
the Sixth Amendment.6

       The District Court allowed the testimony for the limited purpose of establishing

the status of the investigation when Micucci became involved and “what caused him to

do or not do” things later in the investigation, in anticipation of cross-examination

regarding the thoroughness of the investigation. App. at 501-504. This testimony offered

background regarding Micucci’s investigation, and was not hearsay. See United States v.

Price, 458 F.3d 202, 211 (3d Cir. 2006) (allowing police testimony of background

information when “necessary for an adequate explanation” of the officer’s actions); see

also Fed. R. Evid. 801(c). Nor did the testimony violate Caraballo’s rights under the

Confrontation Clause, which “does not bar the use of testimonial statements for purposes

other than establishing the truth of the matter asserted.” Crawford v. Washington, 541

U.S. 36, 59 n.9 (2004).

              2.     Photo from Prior Arrest

       Caraballo claims that the District Court erred by admitting evidence of his prior

arrest, the probative value of which he argues was “greatly outweighed by the unduly

prejudicial nature of the evidence,” in violation of Federal Rule of Evidence 403.

Caraballo Br. at 58. “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

6
 Caraballo also intimates that the testimony was improper opinion testimony. However,
Micucci did not offer an opinion as to whether Caraballo matched the initial description
of the suspect. Rather, he described his belief that a suspect matching the victim’s
description was already in custody as context for his subsequent decision-making.

                                               14
of Rule 403.” United States v. Kemp, 500 F.3d 257, 295 (3d Cir. 2007) (quoting United

States v. Mathis, 264 F.3d 321, 326-27 (3d Cir. 2001)).

       The record, however, indicates that no testimony regarding any prior arrest was

elicited. Rather, Lieutenant Micucci testified on direct examination that the photograph

in the photo array was taken two to three months prior to the date of the carjacking

incident. App. at 513. This testimony was permitted for the explicit purpose of rebutting

Caraballo’s contention in his opening statement that the photo array was unreliable. We

find that the District Court did not abuse its discretion in allowing this testimony.



              3.     Frequency of Fingerprint Recovery

       Lieutenant Micucci later testified that in his experience as an investigator

specializing in carjackings, he found fingerprints in approximately 20 percent of cars

recovered and that fingerprints “[v]ery infrequently” resulted in investigative leads. App.

at 524, 528. This estimate was rationally based on Lieutenant Micucci’s observations in

his 19-year experience as a police officer, during which he investigated 350 to 400

carjackings (130 as lead investigator), was helpful for the jury to assess his investigation,

and was not based on any specialized knowledge. As a result, it was a proper lay

opinion, and was properly admitted. See Fed. R. Evid. 701.

              4.     Recitation of Evidence Collected

       Micucci also testified that he returned the Toyota to Monterossa without dusting

for fingerprints because, based on the evidence that had been gathered at that point, he

                                                 15
did not feel it was necessary. He was then asked to list “what it was that [he] knew that

made [him] feel that [he] did not need to dust the car for prints.” App. at 534. He

responded by stating that their first concern was to return the car to the victim. He then

listed the evidence that caused him to feel “at that point [that] it was prudent to give Mr.

Monterossa his car back.” App. at 535. This included the positive identification of

Caraballo by the victim, Caraballo’s clothing that matched the description given by the

victim, and the victim’s personal property being found in Caraballo’s vehicle.

       This testimony was not offered to prove the truth of the evidence that was

collected, but rather was offered as necessary context for Lieutenant Micucci’s decision

to give back Monterossa’s car without having fingerprints taken. As a result, it was not

hearsay and did not violate Caraballo’s Confrontation Clause rights. Price, 458 F.3d at

211; Crawford, 541 U.S. at 59 n.9.

       G.     Sufficiency of Evidence

       Caraballo challenges the sufficiency of the evidence against him. In deciding such

a challenge, we exercise plenary review. United States v. Boria, 592 F.3d 476, 480 (3d

Cir. 2010). “[T]he relevant question is whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

319 (1979).

       Viewing the evidence in a light most favorable to the Government, a rational juror

would have more than sufficient evidence to find beyond a reasonable doubt that

                                                16
Caraballo had committed this crime. This evidence included the in-court and out-of-

court identification of Caraballo as the carjacker, Monterossa’s identification of a black

jacket and skull cap found in Caraballo’s possession as those worn by the assailant, and

the retrieval of Monterossa’s car keys and iPhone in Caraballo’s possession hours after

the crime. This claim fails.

       H.     Obstruction of Justice Enhancement

       Caraballo testified on his own behalf that he believed—and told investigating

offers at the time of his arrest—that the black iPhone was left in his car by an

acquaintance of his named “Primo.” App. at 119. He did not expand on this belief on

direct examination, but when pressed on cross examination, stated that he paid Primo $50

for the phone at around 6 or 7 a.m that morning when he ran into him at a stop sign in

Newark. App. at 140. When asked where he got the Toyota keys, Caraballo testified that

he “found them on the passenger’s side on the floor” of his car. App. at 143. The

District Court summarized this testimony at sentencing as the defendant “claim[ing] that

he had nothing to do with the carjacking.” App. at 790.

       The District Court concluded that an obstruction of justice sentencing

enhancement pursuant to U.S.S.G. § 3C1.1 was warranted, finding the defendant’s

testimony to be false, material, and willful—the three required elements of perjury.

Caraballo claims that the District Court erred. We disagree.

       “[A] guilty verdict, not set aside, binds the sentencing court to accept the facts

necessarily implicit in the verdict.” United States v. Boggi, 74 F.3d 470, 478-79 (3d Cir.

                                               17
1996). Because there is no way to reconcile Caraballo’s testimony with the jury’s

verdict, the testimony is material to his guilt, and there is no basis for attributing it to

“confusion, mistake, or faulty memory,” the District Court did not err in applying the

sentencing enhancement. United States v. Dunnigan, 507 U.S. 87, 94 (1993); see also

U.S.S.G. § 3C1.1.

       I.     Reasonableness of Sentence

       Finally, Caraballo argues that the District Court abused its discretion by denying

his request for a downward variance based on upbringing, mental health, and drug abuse

and challenges as substantively unreasonable his bottom-of-the-guidelines sentence of

135 months incarceration. Instead, he argues that he should have received the 7-year

mandatory minimum term for the § 924(c) conviction, claiming that such a sentence

would be “sufficient but not greater than necessary” to meet the sentencing goals under

18 U.S.C. § 3553(a). Caraballo Br. at 60. This claim fails.

       The District Court engaged in “a true, considered exercise of discretion . . .

including a recognition of, and response to, [Caraballo’s] non-frivolous arguments,”

thoroughly considering his request for a variance and extensively discussing each of the §

3553(a) factors. United States v. Jackson, 467 F.3d 834, 841 (3d Cir. 2006). The Court

acknowledged that Caraballo was “struggling with some mental health issues,” App. at

809, and concluded that Caraballo was “deserving of at least some credit for having a

minimal record, and for attempting to be a good father,” App. at 810, but determined that

the appropriate sentence, in light of all of the sentencing factors, was at the bottom of the

                                                18
Guidelines range. App. at 796, 811. Applying an abuse of discretion standard, we find

that the sentence was “procedurally sound” and substantively reasonable. United States

v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc).

III.   Conclusion

       For the foregoing reasons, we will affirm the judgment of the District Court.




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