                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-26-2009

USA v. Oscar Cruz-Barriento
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2117




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Recommended Citation
"USA v. Oscar Cruz-Barriento" (2009). 2009 Decisions. Paper 1681.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1681


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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 08-2117
                                    ____________

                          UNITED STATES OF AMERICA

                                           v.

                            OSCAR CRUZ-BARRIENTOS,
                                              Appellant

                                    ____________

            APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF NEW JERSEY
                     (D.C. Crim. No. 2-07-cr-00997-0001)
                  District Judge: Honorable Peter G. Sheridan

                                    ____________

                    Submitted Under Third Circuit L.A.R. 34.1(a)
                                  March 2, 2009
                 Before: BARRY, WEIS and ROTH, Circuit Judges.

                                 (Filed: March 26, 2009)
                                     ____________

                                       OPINION




WEIS, Circuit Judge.

             Defendant was convicted of illegally re-entering the United States after

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having been convicted of an aggravated felony and having been deported in violation of 8

U.S.C. § 1326(a), (b)(2). He was sentenced to a term of 41-months imprisonment, at the

bottom of the applicable Guidelines range.

              At the sentencing hearing, defendant requested a variance based in part on

the severity of conditions in the Passaic County jail where he was confined for some

months while awaiting sentencing. In addition, he relied on his family ties and his

exemplary conduct since re-entering the country.

              On appeal, defendant contends that the District Court committed procedural

errors in sentencing and imposed a substantively unreasonable sentence.

              We conclude that the District Court did not err procedurally. Although the

Court used the word “policy” when discussing the defendant’s incarceration at the Passaic

County jail, we are convinced that the Court adequately considered all of the factors listed

in 18 U.S.C. § 3553(a) before imposing the sentence, see United States v. Williams, 458

F.3d 312, 320-21 (3d Cir. 2006) (“[u]nless a judge employs a personal sentencing policy .

. . rather than individually considering the facts of each case, a judge may be less lenient

towards certain types of crimes”) (internal citations omitted), and exercised its discretion

in denying a variance. Our review of the record satisfies us that the Court also

sufficiently explained its sentencing decision, including its reasons for denying defendant

the requested variance. See United States v. Levinson, 543 F.3d 190, 196-97 (3d Cir.

2008) (district courts must consider all nonfrivolous arguments of the defendant and



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government and sufficiently explain the sentencing decision).

              Defendant presents a sympathetic case, but we are not free to re-sentence

him. The Guidelines range, although not conclusive, represents a considered view of the

appropriate punishment for the violation of the law. See Rita v. United States, 127 S.Ct.

2456, 2465 (2007) (the Guidelines reflect the United States Sentencing “Commission’s . .

. judgment as to what is an appropriate sentence for a given offender”). Under our

deferential standard of review, we do not conclude that a 41-month term of imprisonment

is substantively unreasonable. See United States v. Greenidge, 495 F.3d 85, 102 (3d Cir.

2007) (review for substantive reasonableness “is to a great degree deferential”) (internal

punctuation omitted).

              Accordingly, we will affirm the Judgment of the District Court.




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