                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 09-3330
                                     ____________

                           UNITED STATES OF AMERICA

                                            v.

                         ISMAEL ZAYAS, a/k/a Phil, a/k/a Flac


                                     Ismael Zayas,
                                              Appellant
                                     ____________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                             (D.C. No. 1-07-cr-00352-001)
                       District Judge: Honorable Joseph E. Irenas
                                      ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 September 13, 2010

               Before: RENDELL, FISHER and GARTH, Circuit Judges.

                              (Filed: September 16, 2010 )
                                     ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

      Ismael Zayas pleaded guilty to one count of conspiracy to possess with intent to

distribute cocaine, in violation of 21 U.S.C. § 846, for which he was sentenced to a 164
month term of imprisonment. On appeal, Zayas challenges the reasonableness of his

sentence. For the reasons set forth below, we will affirm.

                                              I.

       We write exclusively for the parties. They are familiar with the factual and legal

history of the case, therefore, we will only set forth those facts necessary to our analysis.

       On April 20, 2009, Appellant Ismael Zayas pleaded guilty in the United States

District Court for the District of New Jersey to the charge of conspiracy to possess with

intent to distribute cocaine, in violation of 21 U.S.C. § 846. The District Court accepted

his guilty plea and requested that a Presentence Investigation Report (PSR) be prepared

for the sentencing hearing. The PSR calculated a base offense level of 34, with a three

level reduction for acceptance of responsibility, for a total offense level of 31. With a

criminal history category of VI, Zayas’s advisory guidelines range sentence was 188 to

235 months of imprisonment.

       At a July 28, 2009 sentencing hearing, the District Court heard arguments from

Zayas to lower his offense level and to have his sentence reduced below the advisory

guidelines range. Zayas questioned his designation by the District Court as a “mid-level”

drug dealer, as opposed to a “low-level” designation. He also asked the District Court to

exercise its discretion and sentence him to a below guideline sentence due to, among

other things, his guideline sentence being higher than that of his co-defendant.




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       Ultimately, after considering the 18 U.S.C. § 3553(a) factors, the Court sentenced

Zayas to 164 months’ incarceration, 24 months below the advisory guideline range.1

                                              II.

       We review sentences for both procedural and substantive reasonableness under an

abuse of discretion standard pursuant to Gall v. United States, 558 U.S. 38, 46-47 (2007);

see also United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc) (“The

abuse-of-discretion standard applies to both our procedural and substantive

reasonableness inquiries.”).

                                             III.

       “We must first ensure that the district court committed no significant procedural

error in arriving at its [sentencing] decision” and, if it has not, “we then review the

substantive reasonableness of the sentence.” United States v. Wise, 515 F.3d 207, 217-18

(3d Cir. 2008). “At both stages of our review, the party challenging the sentence has the

burden of demonstrating unreasonableness.” Tomko, 562 F.3d at 567.

       Zayas does not challenge the procedural reasonableness of the District Court’s

decision. Furthermore, we see nothing in the record indicating a procedural error.

       We have explained that “[f]or a sentence to be substantively reasonable, a district

court must apply the § 3553(a) factors reasonably to the circumstances of the case.” Id.




       1
       The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

                                              3
(internal quotes and citations omitted). “The pertinent inquiry is ‘whether the final

sentence, wherever it may lie within the permissible statutory range, was premised upon

appropriate and judicious consideration of the relevant factors.’” Id. (quoting United

States v. Schweitzer, 454 F.3d 197, 204 (3d Cir. 2006)). Since we “recognize that

reasonableness is a range, not a point,” we will affirm “[a]s long as a sentence falls within

the broad range of possible sentences that can be considered reasonable in light of the

§ 3553(a) factors.” Wise, 515 F.3d at 218 (internal quotes and citations omitted).

       At his sentencing hearing, Zayas made several arguments for a reduction in

sentence that the District Court heard and considered. The District Court, not without

sympathy for Zayas, addressed the § 3553(a) factors and explained its reasoning in detail,

ultimately deciding that reducing his sentence 24 months below the guideline range, to

164 months of imprisonment, would serve as sufficient deterrent and punishment for

Zayas. Zayas’s arguments on appeal imply the District Court did not give proper weight

to the mitigating factors he raised. However, as we have stated, “a district court’s failure

to give mitigating factors the weight a defendant contends they deserve” does not make a

sentence unreasonable. United States v. Bungar, 478 F.3d 540, 546 (3d Cir. 2007).

       Only one argument made by Zayas contends the District Court unreasonably

considered the § 3553(a) factors. Zayas claims his sentence was unreasonable because

one of his co-defendants received a lower sentence, something § 3553(a)(6) cautions

against. However, “Congress’s primary goal in enacting § 3553(a)(6) was to promote



                                              4
national uniformity in sentencing rather than uniformity among co-defendants in the same

case.” United States v. Parker, 462 F.3d 273, 277 (3d Cir. 2006). “Therefore, a

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

disparity between co-defendants’ sentences.” Id. Even so, the District Court considered

this argument and determined, though both were culpable for the same offense, that in

light of their differing criminal histories the co-defendants were not similarly situated.

This does not constitute an abuse of discretion.

                                             III.

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




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