                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-9-2007

USA v. Rodriguez
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2482




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                                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                                __________

                                    No. 06-2482
                                    __________


                         UNITED STATES OF AMERICA

                                         v.

                         PEDRO HERRERA RODRIGUEZ,
                                              Appellant
                                 __________

                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                          (D.C. Criminal No. 05-cr-00245)
                    District Judge: Honorable Sylvia H. Rambo
                                    __________

                     Submitted Under Third Circuit LAR 34.1(a)
                                 on July 9, 2007

                  Before: RENDELL and AMBRO, Circuit Judges
                          and SHAPIRO, District Judge.

                                (Filed: July 9, 2007)
                                    __________

                            OPINION OF THE COURT
                                  __________


__________________

   * Honorable Norma L. Shapiro, Senior Judge of the United States District Court for
     the Eastern District of Pennsylvania, sitting by designation.
RENDELL, Circuit Judge.

       Defendant-Appellant Pedro Herrera Rodriguez (“Rodriguez”) appeals his sentence

imposed by the District Court. Rodriguez claims that the District Court did not clearly

articulate its “meaningful consideration” of the sentencing factors in 18 U.S.C. § 3553(a),

and therefor the sentence is not “reasonable” as required by United States v. Booker,

543 U.S. 220 (2005). We will affirm the District Court’s sentence.

       DISCUSSION

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review

sentencing decisions for reasonableness. Booker, 543 U.S. at 264. As part of that review

we must determine whether the District Court exercised its discretion by giving

“meaningful consideration” to the factors in § 3553(a). United States v. Cooper, 437 F.3d

324, 329 (3d Cir. 2006).

       Rodriguez is an illegal immigrant who has repeatedly entered the United States

illegally and subsequently been deported to Mexico. He was first deported for illegal

entry into the United States in 1997. His second illegal re-entry was not discovered until

2003, at which time he was convicted of illegal re-entry and sentenced to nine months’

imprisonment followed by one year of supervised release. A condition of his supervised

release was that he would not re-enter the United States. In 2004, Rodriguez attempted to

re-enter the United States a third time, specifically California. He was apprehended and

later released from custody in November 2004. He then traveled to Pennsylvania to be

with his family.

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       Police responded to a domestic dispute involving Rodriguez in April 2005. After

his illegal status became known, he was sentenced to a year of imprisonment for violation

of his supervised release condition from his 2003 conviction. The District Court

explained that it chose to impose a high sentence in the hope that the Government would

not bring an additional charge against Rodriguez. However, on June 22, 2005, the

Government charged Rodriguez with illegal re-entry into the United States by a

previously deported alien. Rodriguez pled guilty to that charge on January 5, 2006.

       Rodriguez faced a statutory maximum of 120 months of imprisonment, and the

Probation Office’s Pre-Sentence Report (“PSR”) recommended 21-27 months. Rodriguez

requested a sentence of time served. The District Court sentenced Rodriguez to

18 months, and offered the following explanation from the bench regarding the § 3553(a)

factors:

               The Court adopts the pre-sentence investigation report without
       change. The sentence departs from the guideline range for the following
       reasons: The Court has considered all factors in 3553(A), in particular the
       history and characteristics of the Defendant, and deems that a jail sentence
       is required considering his recidivism and his criminal history record.
               However, the Court has departed because at the time of the sentence
       imposed on his revocation of supervised release, the Court gave the
       maximum sentence imposed in the hopes that consideration would be given
       that no further action would be taken. The Court would have imposed a
       lesser sentence if the Court had every expectation of thinking that a criminal
       offense would be filed. Therefore, this reflects the Court’s expectation of
       an appropriate sentence in this case.

Appx. 58.




                                             3
       This Court has explained that “[t]he record must demonstrate that the [District

Court] gave meaningful consideration to the § 3553(a) factors,” but does not need to

discuss each of the factors if the record makes it clear that the District Court took the

factors into account in sentencing. Cooper, 437 F.3d at 329. However, the Cooper Court

also noted that “a rote statement of the § 3553(a) factors should not suffice if at

sentencing either the defendant or the prosecution properly raises ‘a ground of legal merit

(provided it has a factual basis).’” Cooper, 437 F.3d at 329 (citation omitted).

       The District Court did give “meaningful consideration” to the § 3553(a) factors in

this case. The District Court adopted the PSR without change, stated that it had

considered all of the § 3553(a) factors, specified which factors were most relevant to this

case, and imposed a sentence below the recommended range in light of its previous

experience sentencing Rodriguez. Rodriguez did argue that he was seeking to receive

time served because of his previous sentence, and the District Court properly explained

that, due to his recidivism and significant criminal history, a jail sentence was required.

In short, there is no suggestion that the District Court’s sentence was unreasonable

because it failed to give “meaningful consideration” to the § 3553(a) factors.

       CONCLUSION

       For the reasons described above, we will AFFIRM the sentence imposed by the

District Court.




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