                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 16-3088
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                      VICTOR MANUEL ROMERO MACHADO,
                      a/k/a Victor M. Romero, a/k/a Mario Jaramillo


                            Victor Manuel Romero Machado,
                                                     Appellant
                                    _____________

                     On Appeal from the United States District Court
                             for the District of New Jersey
                         (D.C. Crim. No. 2-15-cr-00534-001)
                        District Judge: Hon. William J. Martini
                                    ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                     June 6, 2017
                                  ______________

      Before: CHAGARES, GREENAWAY, JR., and VANASKIE, Circuit Judges

                                 (Filed: August 23, 2017)
                                     ______________

                                        OPINION *
                                     ______________


       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
VANASKIE, Circuit Judge.

       Appellant Victor Romero Machado pleaded guilty to illegally re-entering the

United States after removal subsequent to an aggravated felony conviction. Machado

now appeals his sentence as substantively unreasonable, even though it falls within the

range specified by the Sentencing Guidelines and runs concurrently with a separate New

Jersey sentence. Upon review, we find that the District Court appropriately considered

the circumstances of the case and the factors prescribed by 18 U.S.C § 3553(a) in

reaching its sentence. Because the District Court did not abuse its discretion, we will

affirm its sentence and Judgment.

                                             I.

       Victor Romero Machado is no stranger to law enforcement. After first entering

the United States illegally in 1994, he was removed upon being convicted of three

offenses, including firing a stolen gun in the parking lot of a night club. Machado was

again arrested and convicted in 2011 for “attempt to possess dangerous drugs for sale,”

an aggravated felony under federal law. (Pre-Sentence Report (“PSR”) ¶¶ 4, 29; A20,

40.) As a result, he was removed from the country for the second time. This trend

continued over the years, as Machado re-entered the United States and was removed four

more times.

       Most recently, Machado was arrested in New Jersey during September 2013. At

the time, he was in possession of 14.8 ounces of heroin within 1000 feet of a public

school. In 2015, his conviction for possession of drugs on school property yielded a

sentence of six years’ imprisonment in New Jersey with a three year term of parole

                                             2
ineligibility. Later in 2015, a federal grand jury indicted Machado for illegally re-

entering the United States after removal subsequent to a conviction for the commission of

an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). Machado pleaded

guilty to the indictment via a written plea agreement.

       In preparation for Machado’s federal sentencing, the Probation Office calculated

Machado’s total offense level at 17 and assigned him a criminal history category of IV.

Accordingly, Machado’s Sentencing Guidelines range was calculated at 37 to 46 months.

(PSR ¶ 55); see United States Sentencing Guidelines Manual ch. 5, pt. A, Sentencing

Table. The District Court held a sentencing hearing in June of 2016 at which Machado

sought a downward variance, or at least a sentence running concurrently to his New

Jersey sentence. He also requested leniency on the basis of several mitigating factors,

including: (1) he was facing a six year sentence in New Jersey and had already served

significant time on that sentence; and (2) he did not have legal status in the United States

and would face additional time in immigration custody pending his deportation. The

Government nevertheless requested a sentence within the Guidelines range.

       The District Court ultimately imposed a sentence of 46 months’ imprisonment—

the upper limit of the Guidelines range—to run concurrently with Machado’s New Jersey

sentence and beginning on the date of sentencing. (A53–55.) Machado had requested

that the sentence run concurrently from the date of his federal detainer, but the District




                                              3
Court declined to backdate the concurrent period. (A55.) Machado now appeals the

sentence as substantively unreasonable. 1

                                             II.

       We have previously explained the proper steps a district court must take at

sentencing:

       A district court must begin the process by first calculating the applicable
       Guidelines range. After that initial calculation, the court must then rule on
       any motions for departure and, if a motion is granted, state how the
       departure affects the Guidelines calculation. Finally, after allowing the
       parties an opportunity for argument, the court must consider all of the [18
       U.S.C.] § 3553(a) factors and determine the appropriate sentence to impose,
       which may vary from the sentencing range called for by the Guidelines.

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

States v. Levinson, 543 F.3d 190, 194–95 (3d Cir. 2008)).

       Where a criminal defendant challenges the substantive reasonableness of a

sentence, we review the district court’s determination for abuse of discretion. Id. at 564.

In doing so, we bear in mind that “[t]he sentencing judge is in a superior position to find

facts and judge their import under § 3553(a) in the individual case” because “[t]he judge

sees and hears the evidence, makes credibility determinations, has full knowledge of the

facts and gains insights not conveyed by the record.” Id. at 566 (quoting Gall v. United

States, 552 U.S. 38, 51 (2007)).

       In making an individualized assessment based on the facts presented, district

courts must provide an explanation “sufficient for us to see that the particular

       1
        The District Court had subject matter jurisdiction over this criminal case under
18 U.S.C. § 3231. We have appellate jurisdiction over the challenge to the sentence
under 18 U.S.C. § 3742(a).
                                             4
circumstances of the case have been given meaningful consideration within the

parameters of [18 U.S.C.] § 3553(a).” Id. at 567 (quoting Levinson, 543 F.3d at 196).

“Ultimately, ‘[t]he touchstone of “reasonableness” is whether the record as a whole

reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. §

3553(a).’” Id. at 568 (quoting United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007)

(en banc)). Our review is highly deferential and, “if the district court’s sentence is

procedurally sound, we will affirm it unless no reasonable sentencing court would have

imposed the same sentence on that particular defendant for the reasons the district court

provided.” Id. The party challenging the sentence has the burden of demonstrating that

the sentence is unreasonable. United States v. King, 454 F.3d 187, 194 (3d Cir. 2006).

       In determining Machado’s sentence, the District Court performed a reasoned and

thorough analysis of the circumstances at hand. The District Court pointed out that

Machado had been removed from the United States on at least six occasions in the

previous twenty years but continuously reentered the country. This constant reentry was

significant to the District Court, which implied that with no documented work history and

a series of drug charges in his past, there was a possibility that Machado’s many border

crossings were connected with the drug trade. (A48–49.)

       Despite observing that it was not bound by the Sentencing Guidelines, the District

Court settled on the maximum sentence under the Guidelines range—46 months followed

by three years of supervised release—with the calculated aim of deterring Machado from

illegally reentering the United States in the future. (A53.) The District Court observed

that there is nothing to indicate that Machado’s reentries were motivated by an

                                              5
understandable or sympathetic reason, such as reuniting with family. (A52.) Rather, the

District Court was of the opinion that Machado’s border crossings were driven by the

opportunity for illicit gains. (Id.) The District Court explained that “whatever people’s

views are on immigration, . . . I think almost everybody unanimously feel[s] that when

people come here and not just once but more than once and commit crimes, they need to

be punished.” (A53.)

       The District Court opted to run Machado’s sentence concurrently with the state

sentence he was already serving, beginning his federal sentence on the date of sentencing

despite Machado’s request that the sentences run concurrently starting at the time he was

arrested and taken into federal custody. This decision was not improper under the

circumstances, and Machado’s own counsel admitted at sentencing that “normally the

sentence would start today [on the date of sentencing] if it’s concurrent.” (A55.)

       Machado had sought leniency at sentencing, arguing that the New Jersey drug

sentence he was currently serving was the first significant sentence he had received. As

the District Court pointed out, however, Machado had been arrested and convicted of

crimes on several occasions, in addition to his previous removals. Machado also

explained that he is tired and misses his home, but the District Court quickly dismissed

this plea for leniency as inconsistent with Machado’s constant reentries.

       District courts have wide latitude in setting sentences, and there is no indication

that the sentence the District Court arrived at in Machado’s case is substantively

unreasonable. The considerations of the District Court adequately reflected the § 3553(a)

factors.

                                             6
                                          III.

      For the foregoing reasons, we will affirm the District Court’s sentence and

Judgment entered June 30, 2016.




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