                                                              NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               ______________

                                     No. 13-3378
                                   ______________

                          UNITED STATES OF AMERICA,


                                           v.

                              MICHAEL RODRIGUEZ,
                                            Appellant
                                 ______________

                      Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             (D.C. No. 1-12-cr-00108-001)
                         District Judge: Hon. John E. Jones III
                                    ______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 28, 2014
                                  ______________

Before: FUENTES and SHWARTZ, Circuit Judges, and ROSENTHAL, District Judge. *

                                (Filed: March 31, 2014)
                                    ______________

                                      OPINION
                                   ______________

ROSENTHAL, District Judge.



      *
         The Honorable Lee H. Rosenthal, United States District Judge for the Southern
District of Texas, sitting by designation.
          Defendant-Appellant Michael Rodriguez pleaded guilty to a one-count

information charging him with distributing and possessing with intent to distribute

heroin, crack cocaine, and oxycodone, in violation of 21 U.S.C. § 841(a)(1). The United

States District Court for the Middle District of Pennsylvania imposed a 27-month

sentence. In this appeal, Rodriguez argues only that the District Court improperly treated

his juvenile adjudications as adult convictions in determining his sentence. We will

affirm.

                                               I

          We assume the parties’ familiarity with the facts and procedural history, which we

recite only as needed to address the issue on appeal.

          On April 20, 2011, the Pennsylvania State Police arrested Rodriguez after he sold

two bricks of heroin to a confidential informant.        While on bail, in January 2012,

Rodriguez sold crack to a confidential informant on three occasions. In addition, the

police had information that Rodriguez had sold a large quantity of oxycodone from 2009

through 2011.

          On April 25, 2012, the grand jury indicted Rodriguez on two counts of violating

21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.            On December 13, 2012, a one-count

superseding information was filed charging Rodriguez with distributing and possessing,

with intent to distribute, heroin, crack cocaine, and oxycodone, between January 1, 2011

through January 9, 2012, in violation of 21 U.S.C. § 841(a)(1).


                                              2
       Rodriguez pleaded guilty to the superseding information on January 2, 2013. The

written plea agreement included a nonbinding agreement that the advisory guideline

imprisonment range was 21 to 27 months before adjusting for acceptance of

responsibility.   The presentence report calculated a base level offense of 24 and a

criminal history category of III, which generated a 63 to 78 month sentence. Rodriguez

objected because it was above the range set out in his plea agreement. The District Court

sustained that objection, which the government did not resist, and set the advisory

guideline range at 21 to 27 months, the “precise range that was contemplated in the plea

agreement that defendant signed.” App. at 17.

       After hearing from Rodriguez, his counsel, and the government, the District Court

proceeded to consider the § 3553(a) factors. The District Court noted that Rodriguez had

a “remarkable criminal record” that “began at age 13” and “continued over the decade

and a half since then. There are juvenile convictions, including one for receipt of stolen

property, two convictions for possession with intent to deliver a controlled substance,

simple assault, and two convictions for simple possession.” Id. at 22–23 (emphasis

added). The District Court noted that Rodriguez had “an adult criminal record that

includes a conviction for a fight to avoid apprehension, three convictions for possession

of marijuana and possession of paraphernalia, [and] five convictions for driving while

operating privileges [were] suspended for DUI related offenses.” Id. at 23. The court

imposed a 27-month sentence, the high end of the guideline range.


                                            3
       Rodriguez appeals, arguing that the District Court erred in treating his juvenile

adjudications as adult convictions at sentencing. 1

                                             II

       The parties assert that the abuse of discretion standard apples. United States v.

Jones, 566 F.3d 353, 366 (3d Cir. 2009) (quotation omitted). 2 We first must “‘ensure that

the District Court committed no significant procedural error in arriving at its decision.’”

Id. (quoting United States v. Wise, 515 F.3d 207, 217 (3d Cir. 2008)). “If we conclude

that a court committed no procedural error, we then review the substantive

reasonableness of the sentence.” Id.

                                             III

       The District Court inaccurately referred to Rodriguez’s juvenile adjudications as

juvenile convictions, but this was not a reversible procedural error.         “Examples of

procedural errors include ‘failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a)

factors, selecting a sentence based on clearly erroneous facts, or failing to adequately

       1
          The District Court had jurisdiction over this case under 18 U.S.C. § 3231, and
we have appellate jurisdiction under 18 U.S.C. § 3742(a).
        2
          Although the parties identify abuse of discretion as the standard, Rodriguez did
not object during the sentencing hearing to his sentence or to the District Court’s use of
the word “conviction” to describe the adjudication of his juvenile cases; plain error
review applies. However, when a District Court does not abuse its discretion, plain error
likely does not occur. See United States v. Dalfonso, 707 F.2d 757, 760 (3d Cir. 1983)
(stating that plain error review is, “if anything, even more rigorous than the abuse of
discretion standard”). As explained, the District Court did not commit either plain error
or abuse its discretion at sentencing, despite its inaccurate use of the word “conviction” to
describe the resolution of Rodriguez’s juvenile cases.
                                               4
explain the chosen sentence.’” Id. (quoting Gall v. United States, 552 U.S. 38, 51

(2007)).

       Rodriguez objected to the sentencing range in the PSR, stating that he “strongly

believe[d] that the guideline range should be 21 to 27 months” based on the plea

agreement. PSR Objs. at 1 (March 25, 2013). The District Court sustained the objection

and set the range as Rodriguez requested. After noting Rodriguez’s juvenile record, the

District Court discussed his “adult criminal record” and thoughtfully discussed the

§ 3553(a) factors.   App. at 23.      The District Court imposed a sentence within the

guideline range the parties agreed to.

       The record belies the assertion that the District Court improperly calculated the

guidelines range or imposed a sentence based on an erroneous view of Rodriguez’s

juvenile record. The District Court’s misstatement was not a “significant procedural

error.” See Jones, 566 F.3d at 366.

                                            IV

       The sentence was also substantively reasonable. “As long as a sentence falls

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

the § 3553(a) factors, we must affirm.” Wise, 515 F.3d at 218. The sentence was within

the guideline range, and the District Court carefully explained how the § 3553(a) factors

led him to the sentence imposed.

       Finding no reversible error, we will affirm.


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