                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 17-1426
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                                  SANTOS CENTENO,
                                    a/k/a Hector Cruz

                                      Santos Centeno,
                                          Appellant
                                      ____________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                            (E.D. Pa. No. 2-12-cr-00634-001)
                       District Judge: Honorable Juan R. Sanchez
                                      ____________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 December 12, 2017

           Before: RESTREPO, GREENBERG and FISHER, Circuit Judges.

                                  (Filed: April 2, 2018 )
                                      ____________

                                        OPINION*
                                      ____________




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

       Santos Centeno appeals his sentence, arguing that the District Court abused its

discretion in its consideration of 18 U.S.C. § 3553(a) factors—specifically, by ignoring

factors contained in the statute and considering factors outside it. We conclude that the

District Court’s sentence was procedurally sound and substantively reasonable, and we

therefore affirm.

                                             I.

       Centeno participated in two violent assaults within one week against pedestrians

walking in Philadelphia near the Independence National Historic Park. As a result of the

first assault, the victim—a man who had approached Centeno and the group of men he

was with to ask for help finding his car—suffered traumatic brain injury and required

surgery to repair severe facial fractures and implant a metal plate in his face. He spent ten

days in the hospital, weeks in rehabilitation, and months unable to work. As a result of

the second assault—this time on a husband and wife leaving a restaurant after dinner—

the husband suffered blows to the face, head and back. Centeno punched the wife in the

face and then, attempting to steal her pocketbook, dragged her across the sidewalk. After

being treated in the hospital, she needed orthodontic work and two root canals because of

damage from Centeno’s punch to her face.

       In 2013, a jury convicted Centeno of aiding and abetting: assault resulting in

serious bodily injury (18 U.S.C. § 113(a)(6)), assault by striking, beating, or wounding,


                                              2
(18 U.S.C. § 113(a)(4)), and robbery (18 U.S.C. § 2111). At sentencing, the District

Court applied the career offender enhancement and found that Centeno had a total

offense level of 29 and a criminal history category of VI, resulting in a Guidelines range

of 151–188 months. He was sentenced to 188 months of imprisonment, followed by three

years of supervised release, restitution, a fine, and a special assessment cost. The District

Court denied the Government’s motion for an upward variance because, though it found

the Government’s argument compelling, it concluded that 188 months was sufficient. On

appeal, this Court held that Centeno’s convictions under 18 U.S.C. § 113(a)(4) and (a)(6)

violated the Double Jeopardy Clause because (a)(4) (assault by striking) was a lesser

included offense of (a)(6) (assault resulting in serious bodily injury).1 This Court vacated

Centeno’s sentence on the lesser included offense and remanded for resentencing.2

       Before the District Court resentenced Centeno, the Supreme Court decided

Johnson v. United States.3 Under Johnson, the parties agree that Centeno no longer

qualifies as a career offender. Therefore, at his resentencing in 2017, the District Court

determined that Centeno’s total offense level was 25 and that he had a criminal history

category of VI, resulting in a Guidelines range of 110–137 months. The District Court

granted the Government’s motion for an upward variance and again sentenced Centeno to

a total term of imprisonment of 188 months, basing its variance on Centeno’s criminal


       1
         United States v. Centeno, 793 F.3d 378, 391–92 (3d Cir. 2015).
       2
         Id. at 392.
       3
         135 S. Ct. 2552 (2015).

                                              3
history, his apparent proclivity for violence, and the random and vicious nature of the

attacks. Neither party made a contemporaneous objection to the sentence.

                                               II.

       This Court has jurisdiction under 28 U.S.C. § 1291. Unpreserved claims of

sentencing errors like Centeno’s are reviewed for plain error.4 Plain error “occurs when

there is ‘(1) an error, (2) that is plain or obvious, and (3) that affects a defendant’s

substantial rights.’”5 We review “all sentences—whether inside, just outside, or

significantly outside the Guidelines range—under a deferential abuse-of-discretion

standard.”6 We defer to the sentencing court “unless no reasonable sentencing court

would have imposed the same sentence on that particular defendant for the reasons the

district court provided.”7

                                                      III.

       The only issue on appeal is whether the District Court’s above-Guidelines

sentence was procedurally sound and substantively reasonable. This issue incorporates

the question of whether the District Court adequately considered the § 3553(a) factors in

its decision.



       4
         Puckett v. United States, 556 U.S. 129, 133, 134–35 (2009).
       5
         United States v. Wilson, 880 F.3d 80, 88 (3d Cir. 2018) (alteration omitted)
(quoting United States v. Goodson, 544 F.3d 529, 539 (3d Cir. 2008)).
       6
         Gall v. United States, 552 U.S. 38, 41 (2007); see United States v. Tomko, 562
F.3d 558, 567 (3d Cir. 2009).
       7
         Tomko, 562 F.3d at 568.

                                               4
       To determine if there was plain error, we proceed in two steps.8 First, we examine

whether the sentencing was free from procedural error, i.e., whether the district court

calculated the correct Guidelines range, ruled on motions for departure from the that

range, and considered the sentencing factors outlined in 18 U.S.C. § 3553(a).9 If there is

no procedural error, we then review the sentence for substantive reasonableness.10

       The District Court here committed no procedural error. It correctly calculated the

Guidelines range, gave both parties the opportunity to argue, and granted the

Government’s motion for an upward variance. The court did not base the sentence on

clearly erroneous facts; it considered the § 3553(a) factors and adequately explained its

chosen sentence and its decision to exceed the Guidelines range.11

       Centeno’s argument that the District Court relied on inappropriate factors and did

not adequately consider § 3553(a) factors fails. The District Court did not err in

considering the random and violent nature of the attacks, the severity of the victims’

injuries, or the fact that Centeno’s criminal history surpassed the maximum criminal

history accounted for by the Guidelines. Each of these considerations is grounded in the

§ 3553(a) factors, namely “the nature and circumstances of the offense and the history

and characteristics of the defendant,” and “the need . . . to reflect the seriousness of the



       8
         Tomko, 562 F.3d at 567–68.
       9
         See United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006).
       10
          United States v. Azcona-Polanco, 865 F.3d 148, 152 (3d Cir. 2017).
       11
          See Gall, 552 U.S. at 51.

                                              5
offense . . . [and] to protect the public from further crimes of the defendant.”12 The court

made “an individualized assessment based on the facts presented.”13 Deciding to impose

a sentence outside of the Guidelines, the court “consider[ed] the extent of the deviation

and ensure[d] that the justification [was] sufficiently compelling to support the degree of

the variance.”14 Because the District Court appropriately considered these items under the

§ 3553(a) factors, it committed no procedural error.

       Having determined that there was no procedural error, we turn to the substantive

reasonableness of the sentence, considering the totality of the circumstances.15 In doing

so, we “must give due deference to the district court’s decision that the § 3553(a) factors,

on a whole, justify the extent of the variance.”16 Centeno argues that the court’s sentence

was not substantively reasonable because it did not consider the need to avoid

unwarranted sentencing disparities among defendants with similar records who have been

found guilty of similar conduct, as required by § 3553(a)(6). We first note that “[s]ince

the District Judge correctly calculated and carefully reviewed the Guidelines range, he

necessarily gave significant weight and consideration to the need to avoid unwarranted

disparities.”17 The court also made clear that it was imposing a sentence outside of the



       12
          18 U.S.C. § 3553(a)(1)–(2).
       13
          Gall, 552 U.S. at 50.
       14
          Id.
       15
          Id. at 51; Tomko, 562 F.3d at 567.
       16
          Gall, 552 U.S. at 51.
       17
          Id. at 54.

                                               6
Guidelines because of the “unique things about this case,”18 particularly the extreme

randomness, the cruelty of the conduct, the significant harm caused (beyond the threshold

of serious bodily injury), and Centeno’s extensive criminal history. These unique

elements distinguish him from “defendants with similar records who have been found

guilty of similar conduct”19 and further indicate that the judge appropriately considered

the need to avoid unwarranted sentencing disparities. Centeno’s conduct and history

provided sufficient reason to conclude that a disparate sentence was warranted.

         The sentence was substantively reasonable because the District Court did more

than recite the factors; “it detailed, step-by-step, its individualized assessment of the

sentence that it believed appropriate in this particular case,” and provided reasons that

were logical and consistent with the factors.20 The District Court did not commit plain

error.

                                             IV.

         For the reasons set forth above, we will affirm Centeno’s sentence.




         18
            App. 238.
         19
            18 U.S.C. § 3553(a)(6).
         20
            Tomko, 562 F.3d at 571.

                                              7
