                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 16-2670
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                                   CARLOS R. CRUZ,
                                             Appellant
                                    _____________

  APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE
                     DISTRICT OF PENNSYLVANIA
                   (D.C. Action No. 3-14-cr-00218-001)
               District Judge: Honorable Richard P. Conaboy
                              ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   March 13, 2017
                                  ______________

            Before: GREENAWAY, JR. and SHWARTZ, Circuit Judges, and
                        SIMANDLE,* Senior District Judge

                              (Opinion Filed: July 17, 2017)

                                     ______________

                                       OPINION**
                                     ______________


       *
         The Honorable Jerome B. Simandle, Senior Judge of the United States District
Court for the District of New Jersey, sitting by designation. Judge Simandle assumed
senior status on June 1, 2017.
       **
          This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
GREENAWAY, JR., Circuit Judge.

       Carlos Cruz argues on appeal that this Court should reverse his sentence and

remand the case for resentencing. Cruz predicates his argument on the District Court’s

failure to adequately consider the relevant factors under 18 U.S.C. § 3553(a)(1) and (6) in

determining whether to grant him a variance from his United States Sentencing

Guidelines range. This was an issue that he did not raise below and is therefore not

properly before us. We will affirm.

I.     Facts

       On August 26, 2014, Cruz and three of his children were indicted on conspiracy to

distribute heroin and related charges. On November 24, 2015, Cruz pled guilty to Count

1 of the indictment. At sentencing, the District Court imposed a 96-month sentence.

Prior to doing so, the Court explained how the Sentencing Guidelines worked and how

Cruz’s sentence was calculated. The Court stated that based on Cruz’s criminal history

category and offense level, the Sentencing Guidelines recommended a sentence of

between 87 and 108 months. The Court also said it could rely on 18 U.S.C. § 3553 to

help it determine what it should consider when imposing a sentence. The Court

specifically mentioned that it should consider Cruz’s history, characteristics, and any

special characteristics that were provided by the presentence investigation report, by

counsel, or by Cruz himself. The Court acknowledged that Cruz’s counsel asked the

Court to consider Cruz’s characteristics in sentencing. Cruz’s counsel had also asked the

District Court to “consider imposing [a sentence at] the low end of the [Guidelines]

range, the 87 months.” App. 89. The District Court noted that it reviewed all of the

                                             2
relevant sentencing factors and Cruz’s entire file. However, the Court asserted that it did

not find any characteristics or other reason under § 3553 that entitled Cruz to a variance

from the recommended Sentencing Guidelines range. The Court explained that the 96-

month sentence reflected a break for Cruz since it thought that he deserved a sentence at

the higher-end of the Sentencing Guidelines range. Cruz did not request a variance and

made no objection to the District Court’s sentence after it was imposed. This timely

appeal followed.

II.    Analysis1

       On appeal, Cruz argues that the District Court committed procedural error by

failing to properly consider the § 3553(a) factors when it imposed his sentence. “The

district court need not . . . make explicit findings as to each sentencing factor if the record

makes clear that the court took all the factors into account.” United States v. Begin, 696

F.3d 405, 411 (3d Cir. 2012). However, “[a] rote statement that the court has considered

each of the § 3553(a) factors is not a sufficient response to a specific colorable

argument.” Id.

       First, Cruz argues that the District Court failed to specify on the record the

considerations which came into play in denying a variance pursuant to § 3553(a)(1). He

contends that, as evidence of his character, the Court should have considered his eight

years of sobriety and his employment at the Chandler Hotel where he risked his safety to

help an elderly woman who had suffered a fall. Next, Cruz contends that the Court failed


       1
         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                               3
to explain on the record why it denied a variance from the Guidelines range pursuant to §

3553(a)(6). Cruz argues that there is a great disparity between his sentence and those of

his co-defendants who engaged in similar conduct.

       Contrary to Cruz’s claims, the District Court did explain the considerations behind

its imposition of Cruz’s 96-month sentence. The District Court noted that it had seen the

letter from Cruz’s supervisor regarding the rescue. And after Cruz’s arguments for the

imposition of the lowest sentence within the Guidelines range, the Court acknowledged

that it had reviewed his file and wanted to address two issues. First, the Court discussed

Cruz’s addiction and his attempt at drug rehabilitation—noting that had he left the drug

rehabilitation facility before finishing the program. The Court explained that Cruz’s

addiction did not absolve him of responsibility and mentioned that his actions led many

individuals down the path of drug addiction and death.

       Next, the Court highlighted the distinct role that Cruz played in the illicit

enterprise. Cruz was the leader of the criminal activity, and his co-defendants were his

children. The Court stated that in “very, very few situations” had it seen a drug dealer

involve his family in his illegal enterprise “so very, very much.” App. 95. The Court

further explained that Cruz had taught his family to disrespect the law. After its response

to Cruz’s arguments for a sentence at the lowest end of the Guidelines range, the Court

stated that it did not find any characteristic or other factors under § 3553 that called for

reducing Cruz’s sentence. As such, the Court articulated the relevant considerations for

reducing Cruz’s sentence.



                                               4
       No matter how Cruz frames the issue, none of his appellate arguments are

preserved. Normally, we review the procedural reasonableness of a sentence for abuse of

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

Cruz did not object to the sentence nor the manner in which it was imposed, we would

review his claim for plain error. See Fed. R. Crim. P. 52(b) (“A plain error that affects

substantial rights may be considered even though it was not brought to the court’s

attention.”); see also United States v. Flores-Mejia, 759 F.3d 253, 255 (3d Cir. 2014) (en

banc). However, Cruz’s failure to request a variance on the record forecloses our review.

       Cruz’s claim that the District Court did not properly consider the § 3553(a) factors

in determining whether to grant a variance presents an issue that he did not place before

the Court during sentencing and, thus, has been raised for the first time on appeal.2

Cruz’s Guidelines range was between 87 and 108 months. The record shows that at

sentencing, Cruz did not seek a variance from the Guidelines range, but rather, only

requested that he be sentenced at the lowest end of the range. In his Sentencing

Memorandum, Cruz asked the Court “to impose a sentence in the lowest end of the

standard range.”3 App. 66. And at his sentencing hearing, Cruz pressed the Court to

impose a sentence at “the low end of the range, the 87 months.” App. 89. He reiterated

that “a sentence of 87 months meets the interest of justice from both sides of the aisle.”

       2
          “Variances . . . are discretionary changes to a guidelines sentencing range based
on a judge’s review of all the § 3553(a) factors and do not require advance notice.”
United States v. Brown, 578 F.3d 221, 226 (3d Cir. 2009).
        3
          In his Sentencing Memorandum, Cruz contended that his criminal history score
substantially overrepresented the seriousness of his criminal history or his likelihood of
re-offending and asked for a downward departure. Cruz does not raise the Court’s
rejection of this argument on appeal.
                                             5
App. 89. While imposing Cruz’s sentence, the District Court stated it had examined the §

3553(a) factors and “[found] no reason under [§] 3553, or anywhere else in the law . . . ,

that [it] should vary from the sentence that is recommended.” App. 97. Cruz did not

request a variance or even object to this ruling. Therefore, he did not preserve the

variance issue for appeal.

       On appeal, Cruz would have us reverse his sentence and remand his case so that

the District Court can consider giving him a lower sentence than what he requested.

Because Cruz presents this issue for the first time on appeal, it is not properly before us.4

See Harris v. City of Philadelphia, 35 F.3d 840, 845 (3d Cir. 1994).

III.   Conclusion

       For the foregoing reasons, we will affirm the District Court.




      Because we decide that Cruz’s argument is not properly before us, the
       4

Government’s motion for summary action is denied as moot.
                                              6
