                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                       No. 14-3426
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                                   CARLOS VARGAS,
                                               Appellant
                                    ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF NEW JERSEY
                   (D.C. Crim. Action No. 1-13-cr-00396-001)
                    District Judge: Honorable Robert B. Kugler
                                 ______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 23, 2015
                                   ______________

           Before: FISHER, JORDAN, and GREENAWAY, JR., Circuit Judges.

                                  (Filed: March 3, 2015)

                                     ______________

                                        OPINION
                                     ______________


GREENAWAY, JR., Circuit Judge.



       
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
       Carlos Vargas (“Appellant”) pled guilty to one count of failing to appear to serve a

sentence, for which the District Court imposed a sentence of fourteen months’

imprisonment. Appellant now attacks both the substantive and procedural reasonableness

of that sentence. For the following reasons, we will affirm the District Court’s judgment

of conviction.

I. FACTUAL BACKGROUND

       Appellant was arrested when he received delivery of two bags of coffee, which

concealed 1,070 grams of cocaine. Following his arrest, Appellant admitted that he had

been paid to retrieve the packages and that he had done so on approximately four prior

occasions. Appellant pled guilty to conspiring to possess with intent to distribute 500

grams or more of cocaine, in violation of 21 U.S.C. § 846. He received a sentence of two

years’ imprisonment and five years’ supervised release. Following his custodial term,

while on supervised release, Appellant failed four drug tests and pled guilty to violating

the terms of his supervised release. Several months later, two additional drug tests came

back positive for cocaine. Appellant again pled guilty to violating the terms of his

supervised release and received a sentence of ten months’ imprisonment. Appellant

failed to self-surrender, as the court had ordered. As a consequence, he was charged

with, and pled guilty to, knowingly failing to surrender for service of sentence, in

violation of 18 U.S.C. § 3146(a)(2).

       Appellant was subject to a Sentencing Guidelines range of between eight and

fourteen months based upon a total offense level of nine and a criminal history category
                                             2
of III. Appellant did not object to the Guidelines range, but requested leniency based on

his medical condition and age. At the time of sentencing, Appellant was sixty-seven

years old and had been undergoing treatment for a degenerative eye condition. As such,

he sought a sentence at the bottom of the Guidelines range. The Government argued for

a sentence at or above the middle of the Guidelines range because of the seriousness of

the offense, Appellant’s criminal history, including eleven prior convictions, some of

which were for violent crimes, and deterrence. The District Court sentenced Appellant to

fourteen months’ imprisonment, to be served consecutive to his original ten month

sentence.

II. ANALYSIS1

       We review sentences “under a deferential abuse-of-discretion standard.” Gall v.

United States, 552 U.S. 38, 41 (2007). “[W]e are to ensure that a substantively

reasonable sentence has been imposed in a procedurally fair way.” United States v.

Levinson, 543 F.3d 190, 195 (3d Cir. 2008).2


       1
         The District Court had jurisdiction under 18 U.S.C. § 3231. This Court has
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
       2
          When no objection is made in the District Court, sentencing procedure is
reviewed for plain error. United States v. Flores-Mejia, 759 F.3d 253, 256 (3d Cir. 2014)
(en banc). However, “[b]ecause defendants sentenced before the issuance of [Flores-
Mejia] had not been warned that they had a duty to object to the sentencing court’s
procedural error after sentencing, we will not apply this new rule retroactively and will,
instead, review for abuse of discretion. Applying that standard, we have held that a
district court abuses its discretion when it fails to give ‘meaningful consideration’ to an
argument advanced by the defendant.” Id. at 259. Flores-Mejia was issued on the same
                                             3
       Under our three-step sentencing framework, district courts must: (1) “calculate a

defendant’s Guidelines sentence precisely as they would have before [United States v.

Booker, 543 U.S. 220 (2005)],” (2) “‘formally rul[e] on the motions of both parties and

stat[e] on the record whether they are granting a departure,’” and (3) “‘exercise[] [their]

discretion by considering the relevant [18 U.S.C. § 3553(a)] factors’. . . in setting the

sentence they impose regardless [of] whether it varies from the sentence calculated under

the Guidelines.” United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006) (quoting

United States v. King, 454 F.3d 187, 196, 194 (3d Cir. 2006)). Under the third step, the

District Court “must ‘acknowledge and respond to any properly presented sentencing

argument which has colorable legal merit and a factual basis.’” Flores-Mejia, 759 F.3d

at 256 (quoting United States v. Begin, 696 F.3d 405, 411 (3d Cir. 2012)).

       Although Appellant asserts that the District Court failed to adequately consider his

age, medical condition and history of substance abuse at sentencing, the sentencing

judge’s reasoning demonstrates proper consideration of these § 3553(a) factors. After

noting that the parties did not dispute the offense level and criminal history category, the

sentencing judge discussed the statutory factors, including Appellant’s age, criminal

history, “drug problems,” and “health problems.” (App. 59.) He also considered the

offense “a serious crime,” requiring “general deterrence” in order to “send a message to



day as Appellant’s sentencing. Because Appellant did not have notice of the new
standard prior to his sentencing, review for abuse of discretion is proper.


                                              4
people [that] they can’t just decide on their own that they’d rather not show up in jail

when they’re supposed to be there.” (Id. at 60.) The sentencing judge invoked the “need

to protect the public,” because “[t]here[] [was] no doubt . . . that there’s a serious risk that

[Appellant is] going to commit other crimes.” (Id.) The District Court determined that

Appellant’s criminal history was the “most significant [thing] about his background,” and

concluded that “a sentence at the high end of the Guideline[s] range is necessary because

of the statutory factors.” (Id. at 59-60.). Here, the sentencing judge articulated his

reasons for weighing the factors as he did and imposed a sentence based on the proper

criminal history category.3 As such, there was no procedural error.

       We next consider the substantive reasonableness of the sentence. Our review of

the application of the § 3553(a) factors considers the totality of the circumstances and is

highly deferential. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc).

Moreover, “[w]e may not substitute our judgment for the sentencing court’s.” United

States v. Bungar, 478 F.3d 540, 543 (3d Cir. 2007). Indeed, even if this Court would

have imposed a different sentence, we must not do so as long as any reasonable court

could have imposed the given sentence. Tomko, 562 F.3d at 568. Although Appellant

sought a split sentence at the bottom of the Guidelines range, the District Court properly


       3
         Appellant’s argument that the District Court gave improper consideration to old
or remote criminal convictions lacks merit. While the District Court stated that “Criminal
History Category III doesn’t quite capture [Appellant’s] history of crimes,” there is no
evidence in the record that the District Court improperly based its sentence on that
history. (App. 59-60.)
                                               5
considered the statutory factors in imposing a sentence at the top of the Guidelines range.

See Rita v. United States, 551 U.S. 338, 356-59 (2007); Levinson, 543 F.3d at 196 (the

district court’s explanation must be “sufficient for us to see that the particular

circumstances of the case have been given meaningful consideration within the

parameters of § 3553(a)”). Thus, this sentence is not substantively unreasonable.

III. CONCLUSION

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

conviction.




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