                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-30-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-5185




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT




                                     No. 06-5185


                                  UNITED STATES,

                                          v.

                                 ROBERTO RECIO,
                                            Appellant.




                   On Appeal from the United States District Court
                        for the Middle District Of Pennsylvania
                                    No. 06-cr-150-1
                   District Judge: Honorable Christopher C. Conner




                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 14, 2008

                   Before: FUENTES and JORDAN, Circuit Judges,
                             and RUFE*, District Judge.


                               (Filed: January 30, 2008)

__________________
    * Honorable Cynthia M. Rufe, Judge of the United States District Court for the
      Eastern District of Pennsylvania, sitting by designation.



                                          -1-
                                OPINION OF THE COURT


RUFE, District Judge.

              Defendant-Appellant Roberto Recio appeals his within-guidelines sentence of

eighty-six months’ imprisonment, claiming it is unreasonable. He contends the District Court

improperly applied the sentencing factors set forth in 18 U.S.C. § 3553(a), and failed to take

into account his acceptance of responsibility and assistance to the government after arrest.

The record demonstrates that the District Court reasonably applied the § 3553(a) factors in

light of the circumstances of this case, and adequately addressed all non-frivolous arguments

presented by Recio at sentencing. Accordingly, we find Recio’s arguments to be without

merit, and we will affirm the sentence.

                                              I.

              As we write for the parties, our recitation of the facts will be brief.

Sometime prior to March 2006, Recio contacted a confidential informant of the United

States Drug Enforcement Agency in an attempt to arrange for the purchase of forty-five

kilograms of cocaine and five kilograms of heroin. In early March 2006, after multiple

telephone conversations and a face-to-face meeting, Recio and the informant agreed on

terms. In the deal, Recio would be fronted forty-five kilograms of cocaine hydrochloride

and five kilograms of heroin in exchange for payment of a $120,000 “transportation fee”

and an agreement to drive the drugs to New York, where he would pay for them. The

purchase was to be consummated on March 22, 2006, in West Hanover Township,

                                             -2-
Pennsylvania. On that date, Recio arrived at the agreed-upon meeting place with two

other men, Luis Ramos and Henry Castillo. After the three men spoke with the informant

and showed him the cash they had brought, law enforcement agents descended upon and

arrested Recio, Ramos and Castillo.

              In August 2006, Recio pleaded guilty to a one-count Indictment charging

him and co-defendants Ramos and Castillo with conspiracy to distribute and possess with

intent to distribute approximately five kilograms of heroin and forty-five kilograms of

cocaine hydrochloride, in violation of 21 U.S.C. § 846. Pursuant to 21 U.S.C. §§ 846 &

841(b)(1)(C), the offense carried with it a maximum term of imprisonment of twenty

years, or two hundred and forty months. Recio’s sentencing was deferred for preparation

of a Pre-Sentence Investigation Report (“PSR”). At the sentencing on December 14,

2006, the District Court confirmed that Recio, with his attorney, had reviewed and

completely understood the PSR. Neither party objected to the PSR, and the court adopted

its findings and advisory guidelines computations.

              Recio’s base offense level was agreed to be level thirty-six. Recio then

received a two-level reduction pursuant to the Guidelines’ ‘safety valve’ provisions,

U.S.S.G. § 5C1.2(a)(1)-(5) & § 2D1.1(b)(7), and a three-level reduction for acceptance of

responsibility, pursuant to U.S.S.G. § 3E1.1(a) & (b). Thus his total offense level was

adjusted to thirty-one. With no prior criminal conviction, Recio had a criminal history

category of one. Accordingly, Recio’s advisory guidelines sentencing range was 108 to



                                            -3-
135 months’ imprisonment. The District Court noted Recio’s offense level, criminal

history category, and guidelines range at the sentencing.

              The District Court next heard argument on the government’s motion for

downward departure pursuant to U.S.S.G. § 5K1.1. In the motion, the government

recommended a sentence of eighty-six months’ imprisonment, representing a twenty-two

month departure downward from the low end of Recio’s guidelines range, based on its

belief that Recio had provided substantial assistance in its criminal investigations. The

motion detailed Recio’s willingness to testify against his co-defendants, his candor and

forthrightness in cooperating with the government, and the reliability of the information

he provided. Recio’s attorney argued further that Recio’s cooperation, despite threats to

himself and his family, merited a downward departure of approximately forty-eight

months, to result in a sentence of imprisonment in the “sixty month range.” After

argument, the District Court granted the government’s motion, finding that it satisfied the

requirements of United States v. Torres, 251 F.3d 138 (3d Cir. 2001), and departed

downward three offense levels, resulting in an advisory sentencing range of seventy-eight

to ninety-seven months.

              Next, invoking the sentencing factors set forth in 18 U.S.C. § 3553(a),

defense counsel, and Recio himself, asked the District Court to grant a variance from the

guidelines range and impose a sentence of sixty months’ imprisonment, based on Recio’s

strong commitment to his children, his family’s need for him, and his earnest cooperation



                                            -4-
with the government, post-arrest. In opposition, the government argued that, in light of

the § 3553(a) factors, no variance from the advisory range was warranted.

              The District Court then pronounced a sentence of 86 months’ imprisonment

followed by three years of supervised release, and offered a brief explanation of its

reasoning. This appeal followed.

                                             II.

              We have jurisdiction to review Recio’s sentence under 18 U.S.C. § 3742(a).

              In United States v. Booker, the Supreme Court held that the statutory

provision making the Federal Sentencing Guidelines mandatory was unconstitutional.

543 U.S. 220 (2005). Consequently, the Guidelines are advisory, and district courts have

a renewed discretion in shaping criminal sentences. Gall v. United States, --- U.S. ----,

128 S. Ct. 586, 594, 597-98 (2007). Federal appellate courts now review sentencing

decisions under an abuse of discretion standard. Id. at ----, 128 S. Ct. at 597. Such

review is limited to determining whether a particular sentence is “reasonable.” Id. at ----,

128 S. Ct. at 594; United States v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006).

              Our reasonableness evaluation entails two steps. First, we must determine

whether the District Court exercised its discretion by considering the relevant sentencing

factors set forth in § 3553(a), including any non-frivolous arguments raised by the parties

related to these factors. Id. at 329, 332. The factors are:

       (1) the nature and circumstances of the offense and the history and characteristics
       of the defendant;

                                             -5-
       (2) the need for the sentence imposed –
               (A) to reflect the seriousness of the offense, to promote respect for the law,
               and to provide just punishment for the offense;
               (B) to afford adequate deterrence to criminal conduct;
               (C) to protect the public from further crimes of the defendant; and
               (D) to provide the defendant with needed educational or vocational training,
               medical care, or other correctional treatment in the most effective manner;
       (3) the kinds of sentences available;
       (4) the kinds of sentence and sentencing range established for –
               (A) the applicable category of offense committed by the applicable category
               of defendant as set forth in the guidelines . . . .

18 U.S.C. § 3553(a).

The District Court must give meaningful consideration to the § 3553(a) factors, but need

not “discuss and make findings as to each [one] . . . if the record makes clear the court

took the factors into account at sentencing.” Cooper, 437 F.3d at 329. The District

Court’s consideration should encompass “any sentencing grounds properly raised by the

parties which have recognized legal merit.” Id. at 332. Where the record fails to

demonstrate adequate consideration of the relevant sentencing factors, the sentence at

issue fails “reasonableness” review, and remand is required. Id. at 332.

              However, if we are satisfied that the District Court meaningfully considered

the § 3553(a) factors, we proceed to step two of the reasonableness analysis - a

substantive assessment of whether the court’s application of the § 3553(a) factors to the

circumstances of the case resulted in a sentence that can be characterized as “reasonable,”

in light of the broad discretion entrusted to the District Court. Id. at 330. Part and parcel

of this review is an evaluation of the District Court’s treatment of any non-frivolous



                                             -6-
arguments for variance from the advisory range in light of the § 3553(a) factors. See

United States v. Jackson, 467 F.3d 834, 841-42 (3d Cir. 2006). Our review is deferential

to the District Court’s primary role and broad discretion in the sentencing process; “what

we must decide is whether the district judge imposed the sentence he or she did for

reasons that are logical and consistent with the factors set forth in section 3553(a).”

Cooper, 437 F.3d at 330 (quoting United States v. Williams, 425 F.3d 478, 481 (7th Cir.

2005)). Throughout the analysis, the appellant has the burden of demonstrating the

unreasonableness of the sentence imposed. Cooper, 437 F.3d at 332.

                                             III.

              Recio argues his sentence is unreasonable because it does not reflect a

rational application of the § 3553(a) factors, and because it does “not take into account”

his “extraordinary” acceptance of responsibility and substantial assistance to the

government.1 The thrust of his appeal is that the District Court’s decision not to grant




       1
        As an initial matter, we note that Recio’s sentence does consider his positive
post-arrest conduct. Indeed, in total, Recio benefitted from a six-level reduction in
offense level in recognition of his acceptance of responsibility and cooperation with the
government. Recio received a three-level reduction from his basic offense level, pursuant
to U.S.S.G. § 3E1.1(a) & (b), for his acceptance of responsibility. While under the
Guidelines this reduction resulted largely from Recio’s timely guilty plea, it nonetheless
represents a substantial credit in his sentence for acceptance of responsibility. Moreover,
Recio received a downward departure of three additional offense levels when the District
Court granted the government’s motion under U.S.S.G. § 5K1.1. The basis of this motion
was Recio’s “substantial assistance” to the government, post-arrest.

                                             -7-
him a variance from the advisory Guidelines range was unreasonable.2 After a review of

the record, we cannot agree.

              As noted in Section I, supra, Recio’s counsel argued at sentencing that a

variance was warranted due to Recio’s good character, as reflected in his acceptance of

responsibility, assistance to the government in the face of threats, and relationship with

his family. Recio’s appeal reiterates these facts, which are pertinent to § 3553(a)(1)

(regarding “the nature and circumstances of the offense and the history and characteristics

of the defendant”), and possibly factor (a)(2) (regarding “the need for the sentence



       2
         Although Recio additionally argues the District Court “erred in not formally
ruling on [his] request for a further departure,” this claim is patently without merit. The
record provides no support for the proposition that the District Court’s treatment of
Recio’s request was somehow procedurally deficient. Rather, the record makes clear that
the District Court considered and implicitly rejected Recio’s request as to the extent of the
departure when granting the government’s U.S.S.G. § 5K1.1 motion for downward
departure to the extent that it did. Recio’s request came during argument on the
government motion. The District Court heard argument from both parties regarding the
proper extent of any departure before ruling on the motion. The sentencing transcript
shows the judge listened closely to Recio’s pleas for a departure down to sixty months,
understood each of Recio’s arguments, and considered them when deciding the motion.
See, e.g., Tr. Sent’ng at 13 (Statement of the Court: “I understand your argument. You’re
saying there was an element of risk here that’s not described in detail in the motion, and I
will certainly take that into consideration.”). Indeed, in explaining its decision to grant a
three-level departure on the motion (and thus not to grant a sixty month sentence), the
District Court explicitly noted that it had considered Recio’s arguments. The District
Court plainly considered and rejected Recio’s specific departure request in reaching its
ultimate decision. Under these circumstances, no more formal ruling was required.
Finally, we note that we do not have jurisdiction to review the extent of a downward
departure granted by a district court, in its discretion. See Cooper, 437 F.3d at 332-33.
Here, Recio was granted a downward departure on the government’s § 5K1.1 motion,
only not as much of one as he requested. The extent of this departure is unreviewable.
Id.

                                             -8-
imposed”). We will assess the record to determine the reasonableness of the court’s

application of these factors.

              The record reveals that, prior to hearing argument from counsel on the

application of the § 3553(a) factors, the District Court had received and reviewed

approximately ten personal letters from members of Recio’s family and others. Later,

after announcing Recio’s sentence, the District Judge explicitly noted his belief that the

sentence satisfied the purposes of the various § 3553(a) factors, specifying certain of

these, and stated that the sentence was the product of the court’s full consideration of the

relevant factors. The Judge then discussed particular circumstances from the case which

caused him to conclude that Recio “clearly was a prominent player in drug trafficking,”

including the fact that Recio had arranged to buy large amounts of cocaine and heroin,

and had “admitted to being a multi-hundred brick heroin distributor.” (App. 54). He also

noted certain countervailing facts: Recio’s guilty plea in this case, his lack of prior

convictions, and his cooperation with the government. The Judge then discussed his

efforts to “balanc[e]” the § 3553(a) factors, given “the unique facts of [Recio’s] case.”

He concluded by stating his finding that an eighty-six month sentence of imprisonment

was necessary to punish and deter Recio, to reflect the “seriousness” of the crime, and to

promote respect for the law. (App. 54).

              This record belies Recio’s claim that the District Court irrationally applied

the § 3553(a) factors to his case. Regarding § 3553(a)(1) (“the nature and circumstances



                                              -9-
of the offense and the history and characteristics of the defendant”), the Judge explicitly

noted that Recio had committed a “serious” offense. This finding was reasonable, given

Recio’s role in attempting to orchestrate a drug deal involving forty-five kilograms of

cocaine and five kilograms of heroin. This crime carried with it a maximum sentence of

twenty years’ imprisonment, reflecting a judgment by Congress of its seriousness. The

District Court also assessed pertinent aspects of Recio’s personal history and character:

his participation in the instant offense; admitted prior drug trafficking activities; clean

criminal record; and post-arrest acceptance of responsibility and cooperation with the

government. The District Court gleaned further insight into Recio’s character through

reading personal letters from Recio’s family members and others. The information before

the District Court regarding Recio’s history and characteristics was mixed. It was clearly

reasonable for the District Court, in its broad discretion, to decline to grant a variance on

this basis. We find that the District Court properly addressed the § 3553(a)(1)

considerations, including Recio’s non-frivolous arguments regarding his character and

family, and reasonably applied them to the circumstances of this case.

              Regarding the various considerations under § 3553(a)(2) (“the need for the

sentence imposed”), the District Court deemed the offense to be serious in nature. As

noted above, this was not unreasonable. Nor was anything unreasonable in the District

Court’s explicit determination that the sentence was necessary to punish Recio, to deter

him from future criminal activity, to reflect the seriousness of the crime, and to promote



                                             -10-
respect for the law. The Judge could reasonably conclude that these punitive policies

were of particular importance in sentencing Recio, who had no prior criminal record but

admittedly was a multi-hundred brick distributor of heroin who had arranged to obtain

large quantities of heroin and cocaine in the instant case. In its discretion, the District

Court could reasonably decide not to grant a variance for these reasons.3

              Ultimately, Recio’s sentence of eighty-six months’ imprisonment falls

squarely within the sentencing range recommended by the Guidelines, after factoring in

all downward departures which Recio received. Although a within-guidelines sentence is

not deemed presumptively reasonable in this Circuit, it is “more likely to be reasonable

than one that lies outside the advisory guidelines range.” Cooper, 437 F.3d at 331. And

so it is here. The District Court’s decision with respect to Recio’s sentence appears

logical and consistent with the § 3553(a) factors. Accordingly, Recio’s appeal will be

denied.




       3
         Regarding the remaining § 3553(a) factors, factor (3) (“the kinds of sentences
available”), and (4) (“the kinds of sentence and sentencing range established for [the
particular offense and defendant]”), Recio has presented nothing to sustain his burden of
showing that the District Court’s treatment of these factors was unreasonable.

                                             -11-
