                                                         NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                               ______

                                  No. 13-1989
                                    ______

                      UNITED STATES OF AMERICA

                                       v.

                   LUIS ANTONO VENTURA-SAENZ,
                       KA Luis Antonio Ventura-Saenz,
                        AKA Luis Antonio Ventura,

                          Luis Antono Ventura-Saenz,
                                            Appellant

                                    ______

                On Appeal from the United States District Court
                          for the District of New Jersey
                      (D.C. Crim. No. 2:12-cr-00648-001)
                 District Judge: Honorable Susan D. Wigenton
                                      ______

               Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                             December 17, 2013

     Before: JORDAN, VANASKIE, and VAN ANTWERPEN, Circuit Judges

                            (Filed: January 8, 2014 )
                                     ______

                          OPINION OF THE COURT
                                  ______

VAN ANTWERPEN, Circuit Judge.
       Luis Antono Ventura-Saenz1 (“Appellant”) appeals to this Court seeking relief

from the 41 month sentence he received when he pled guilty to illegally reentering the

United States following deportation under 8 U.S.C. § 1326(a), (b)(2).2 Specifically,

Appellant claims his medical condition and familial connections make the sentence

substantively unreasonable and justify a reduction under the § 3553(a) sentencing factors,

and resentencing. For reasons that follow, we affirm the District Court.

                                              I.

       Appellant, a citizen of El Salvador, illegally entered the United States across the

Mexican border in 1992 at age 15. After briefly attending high school in New Jersey, he

worked a number of low wage jobs to support his family, including his mother and



1
 Also known as: Luis Ventura-Saenz; Luis Antonio Ventura.
2
  Appellant was charged with illegally reentering the United States after deportation
subsequent to a conviction for the commission of an aggravated felony. 8 U.S.C. §
1326(a).

     [A]ny alien who—
     (1) has been denied admission, excluded, deported, or removed or has
     departed the United States while an order of exclusion, deportation, or
     removal is outstanding, and thereafter
     (2) enters, attempts to enter, or is at any time found in, the United States,
     unless (A) prior to his reembarkation at a place outside the United States or his
     application for admission from foreign contiguous territory, the Attorney
     General has expressly consented to such alien's reapplying for admission; or
     (B) with respect to an alien previously denied admission and removed, unless
     such alien shall establish that he was not required to obtain such advance
     consent under this chapter or any prior Act, shall be fined under Title 18, or
     imprisoned not more than 2 years, or both.

Id. When the original removal was due to conviction for an aggravated felony, penalties
include “fine[s] under such title, imprison[ment] not more than 20 years, or both . . . .” Id.
§ 1326(b)(2).
                                              2
sister.3 On October 10, 2003 Appellant married and soon thereafter had a daughter, who,

at the time of his sentencing, was eight years old.4 Appellant was arrested on May 28,

2004 in possession of almost three kilograms of cocaine and charged with conspiracy to

import cocaine in violation of 21 U.S.C. §§ 952,5 960(b)(2)(B), and 963.6 Following his

arrest, Appellant admitted to picking up on four occasions from Newark Liberty

International Airport hammocks that had cocaine concealed in wooden supports. On

November 22, 2004, Appellant was convicted and sentenced to 37 months imprisonment.

During his original prison term, Appellant contracted Pemphigus Vulgarus, an

autoimmune disease that causes severe blistering of the skin, including the head, mouth,

and genitalia.7 On March 30, 2007, upon completion of the sentence, Appellant was

removed to El Salvador.




3
  Jobs undertaken during Appellant’s two periods in the United States included retail
stores (Blimpie’s, Tommy Hilfiger), factory/warehouse work (Norison Rug Co.,
American Pleat), trucking (Diana’s Trucking Corp., Luigy’s Trucking Corp.—founded
by Appellant), and installation (Empire Today).
4
  Appellant and his wife were later divorced upon her return to the United States from El
Salvador with their daughter.
5
  The relevant portion is as follows:

     It shall be unlawful to import into the customs territory of the United States
     from any place outside thereof (but within the United States), or to import into
     the United States from any place outside thereof, any controlled substance in
     schedule I or II of subchapter I of this chapter . . . or any narcotic drug in
     schedule III, IV, or V of subchapter I of this chapter . . . .

21 U.S.C. § 952(a).
6
  Appellant was also convicted in 1998 of receiving stolen property and received a fine.
7
  Appellant claims diagnosis of the disease was slow to develop, leading to a month-long
hospitalization in El Salvador following his removal in 2007.
                                            3
      At some point prior to December 14, 2011, Appellant illegally reentered the

United States from El Salvador. On December 15, 2011, he was stopped and arrested by

the East Rutherford, New Jersey police for driving with a suspended/revoked license,

failing to possess a driver’s license, and failure to provide an insurance card. An

Indictment was then filed pursuant to 8 U.S.C. § 1326(a), (b)(2), for illegally reentering

the United States after deportation subsequent to a conviction for the commission of an

aggravated felony.

      Appellant pled guilty per a written plea agreement.8 In his pre-sentencing filings,

Appellant requested a sentence at the bottom of the Presentence Report (“PSR”) range of

41-51 months. (Appendix vol. III, at SA3.) Later, before the Sentencing Court, Appellant

requested that his sentence be fulfilled by time served, citing, amongst other factors, his

medical condition.9 The Court, considering the issues raised, sentenced Appellant to 41

months imprisonment,10 at the bottom of the Guidelines range, and this appeal followed.

                                            II.




8
  Dated January 18, 2012, the agreement preserved the right of Appellant to appeal to this
Court.
9
  The Government points out that Appellant accepted the PSR in a letter brief and orally
in open court. Furthermore, it notes that no mention of this medical condition was made
in Appellant’s filings before sentencing.
10
   The Sentencing Guidelines calculation, adopted from the PSR, calculated a total
offense level of 21, providing a sentencing range, as a Category II offender, of 41-51
months. Appellant was given a base level of 8 for violating 8 U.S.C. § 1326(a) plus 16
for deportation after a conviction of a drug trafficking offense for which the sentence
was greater than 13 months, less 3 for acceptance of responsibility and timely notification
of intent to plead guilty. (PSR ¶¶ 14-24.)
                                            4
       The District Court had jurisdiction over the matter under 18 U.S.C. § 3231. This

Court has jurisdiction over the challenge of a sentence pursuant to 18 U.S.C. § 3742(a)

and 28 U.S.C. § 1291.

       Regardless of whether the sentence imposed is inside or outside the Guidelines

range, the Appellate Court must review the sentence under an abuse-of-discretion

standard. Gall v. United States, 552 U.S. 38, 52 (2007). A district court’s ruling can only

be reversed under an abuse-of-discretion standard if the decision was arbitrary, irrational,

fanciful, clearly unreasonable, or if the decision was based on a “clearly erroneous

finding of fact, an errant conclusion of law, or an improper application of law to fact.”

Carrera v. Bayer Corp., 727 F.3d 300, 305 (3d Cir. 2013). The review undertaken is for

both procedural and substantive reasonableness. United States v. Tomko, 562 F.3d 558,

567 (3d Cir. 2009) (en banc).

       To determine procedural reasonableness, we engage in a three-step review of the

sentencing process undertaken by the District Court to determine if it: (1) properly

calculated a defendant’s Guidelines sentence; (2) formally ruled on any departure

motions; and (3) exercised discretion by considering the relevant 18 U.S.C. § 3553(a)

factors. United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). Meaningful

consideration must be given to these factors by the Sentencing Court, and while every

issue need not be raised and reasoned, the Court must demonstrate it took the factors into

account in determining and applying a sentence. United States v. Merced, 603 F.3d 203,

215 (3d Cir. 2010). If the asserted procedural error is purely factual our review is highly

deferential and we will conclude there has been an abuse of discretion only “[i]f the

                                             5
district court’s findings are clearly erroneous.” United States v. Wise, 515 F.3d 207, 217

(3d Cir 2008) (citing Gall, 552 U.S. at 50).

       “In addition to being procedurally reasonable, a sentence must also be

substantively reasonable.” United States v. Lessner, 498 F.3d 185, 204 (3d Cir. 2007).

We will affirm a sentence as substantively reasonable “unless no reasonable sentencing

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

the district court provided.” Tomko, 562 F.3d at 568. Thus, we review “whether the

District Court reasonably applied the § 3553(a) factors to the particular circumstances of

the case.” See United States v. Cooper, 437 F.3d 324, 330 (3d Cir. 2006) (abrogated on

other grounds by Kimbrough v. United States, 552 U.S. 85 (2007)). We review the

District Court's application of the § 3553(a) factors under a deferential standard since the

trial court is “in the best position to determine the appropriate sentence in light of the

particular circumstances of the case.” Id. at 330. The party challenging the sentence has

the burden of persuading us that it is unreasonable. Id. at 332.

                                               III.

       On appeal, Appellant ostensibly raises one challenge, the substantive

unreasonableness of the 41 month sentence imposed by the District Court. Nonetheless,

his brief actually challenges the Court’s execution of the third prong of the procedural

reasonableness test and its application to the facts (substantive reasonableness). Appellant

contends that the District Court failed to consider the mitigating factors in conjunction

with § 3553(a) that supported a request for time served. The imposition of a sentence

within the Guidelines, he argues, is excessively punitive. We find the record here

                                                6
adequately demonstrates the District Court properly calculated the Guidelines, gave

meaningful consideration to the pertinent § 3553(a) factors and reasonably applied them

to the facts of the case.

        Appellant, a category II criminal for his prior offense,11 was given a Base Offense

Level of 8 under U.S.S.G. § 2L1.2(a) plus a 16-level enhancement pursuant to §

2L1.2(b)(1)(A).12 This subtotal was then reduced by three for Appellant’s acceptance of

responsibility.13 Appellant did not contest this calculation in his sentencing brief but later

raised it orally before the District Court, stating, “although it is an appropriate calculation

under the Guidelines, that he receive three [criminal history] points for that conviction . .

. [it] overstates [Appellant’s] criminal history and puts him in a category that is far

greater than the person that is actually before this Court.” (Appendix vol. II at A27-A28.)

We believe the calculations as adopted were supported by the Sentencing Guidelines and

his objection was satisfactorily dismissed by the Court.14 Thus, the first prong of

procedural reasonableness was met.


11
   Appellant’s criminal history under U.S.S.G. ch. 5 pt. A qualified him for a criminal
history category of II. (PSR ¶ 32.)
12
   The provision provides a base level of 8 for “unlawfully entering or remaining in the
United States” and adds 16 if the original removal occurred after “a conviction for a
felony that is (i) a drug trafficking offense for which the sentenced imposed exceeded 13
months . . . increase[d] by 16 levels if the conviction receives criminal history points
under Chapter Four . . . .” U.S.S.G. §§ 2L1.2(a), (b)(1)(A). Appellant was given three
“criminal history points” for his prior trafficking crime pursuant to U.S.S.G. § 4A1.1(a);
(PSR ¶ 32.)
13
   U.S.S.G. §§ 3E1.1(a), (b).
14
   “[Y]ou were very much aware of the fact that your criminal history at that time [of
your first arrest] was a level 1and probably you received some benefits . . . so I don’t
believe [your criminal history] is overstated in any way quite frankly.” (Appendix vol. II
at A40-A41.)
                                              7
       Skipping the second prong, as no departure motions were made, we turn to

whether the Court gave meaningful consideration to the § 3553(a) sentencing factors and

applied them appropriately to the facts of the case. Appellant cited a number of

mitigating factors in an attempt to justify the imposition of a sentence reduction,

including “his motive for returning to the United States,” assurances he would not again

repeat the offense, the extra hardships of his immigration status, and “his severe medical

problems.” (Appellant Br. at 15-16.)15 The District Court, during sentencing, discussed

these issues, related them to the § 3553(a) factors, and explained why they did not justify

a variance: “[s]o I’ve considered your history and characteristics in addressing the request

for a downward departure or a variance, I really didn’t find a true basis to grant [one].”

(Appendix vol. II at A41-A42.) The Court continued, discussing the seriousness of the

offense and deterrence factors and addressing the support of the Appellant’s family,

finding them unpersuasive as to a variance. In sum, the Court found, “the Sentencing

Guidelines accurately reflect a sentence that would be sufficient but not greater than

necessary to reflect the seriousness of what occurred here . . . [a]nd I am confident that




15
   These overlap with the seven factors outlined under § 3553(a): (1) the nature and
circumstances of the offense and the history and characteristics of the defendant; (2) the
need for the sentence imposed; (3) the kinds of sentences available; (4) the kinds of
sentence and the sentencing range established; (5) any pertinent policy statement; (6) the
need to avoid unwarranted sentence disparities among defendants with similar records
who have been found guilty of similar conduct; and (7) the need to provide restitution to
any victims of the offense. 18 U.S.C. § 3553(a).

                                             8
the sentence I impose will be one that does in fact avoid unwarranted sentencing

disparities.”16 (Id. at A41-A42.)

       Our review of the record fails to show an abuse of discretion on the part of the

District Court. “The sentencing court ‘meaningful[ly] consider[ed]’ the factors by

‘acknowledg[ing] and respond[ing] to any properly presented sentencing argument which

ha[d] colorable legal merit and a factual basis.’” United States v. Kluger, 722 F.3d 549,

567 (3d Cir. 2013) (quoting United States v. Begin, 696 F.3d 405, 411 (3d Cir. 2012)).

The Court did not and need not “discuss and make findings as to each of the § 3553(a)

factors if the record makes clear the court took the factors into account in sentencing.”

United States v. Jackson, 467 F.3d 834, 841 (3d Cir. 2006). The actions undertaken, in

light of the consideration given to the Guideline range and the § 3553(a) factors, were

procedurally reasonable.

       Turning to substantive reasonableness, “our review is, to a great degree,

deferential, because we recognize that the trial court is in the best position to determine

the appropriate sentence.” United States v. Greenidge, 495 F.3d 85, 102 (3d Cir. 2007).

The District Court has the decision-making authority to sentence a defendant, and we will

not, even if “[we] might reasonably have concluded that a different sentence was

appropriate,” disturb such a sentence that, given the facts of the case, is substantively

reasonable. Gall, 552 U.S. at 51. ; see also Rita v. United States, 551 U.S. 338, 356

(2007). Furthermore, as long as “the district court’s sentence is procedurally sound, we

16
  The Court addressed the medical issue of Appellant, stating, “I’m very sorry for what
you have endured, quite frankly, with your medical condition,” yet the Court did not
consider the condition to be one that warranted a sentence reduction. (Appendix at A41.)
                                            9
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.” Tomko,

562 F.3d at 568. Here, we do not find that no other reasonable sentencing court would

have imposed the sentence. At bottom, because this sentence “falls within the broad

range of possible sentences that can be considered reasonable in light of the [facts and] §

3553(a) factors,” we must affirm. SeeWise, 515 F.3d at 218.

                                           IV.

      For the foregoing reasons, we affirm the sentence entered against Appellant.




                                            10
