                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-6-2007

USA v. Cruz-Reyes
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1693




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                                                       NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-1693


                           UNITED STATES OF AMERICA

                                             v.

                   DOMINGO CRUZ-REYES, a/k/a Mingo, a/k/a Jay

                                                  Domingo Cruz-Reyes,

                                                             Appellant


                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                            District Court No. 05-cr-00340-2
                       District Judge: Hon. Christopher C. Conner


                       Submitted under Third Circuit LAR 34.1(a)
                                  on February 1, 2007

                       Before: BARRY and ROTH, Circuit Judges
                                IRENAS*, District Judge

                           (Opinion filed: September 6, 2007)


                                      OPINION



        *Honorable Joseph E. Irenas, Senior District Judge for the District of New Jersey,
sitting by designation.
ROTH, Circuit Judge:

       Domingo Cruz-Reyes appeals from his judgment of sentence, arguing it was based on

an incorrectly calculated sentencing guidelines range. We disagree and will affirm the

District Court.

I. Background and Procedural History

       Because the parties are familiar with the facts and procedural posture, we will provide

only a brief synopsis of the events leading up to this appeal.

       In November 2005, Cruz-Reyes pleaded guilty to one count of distribution and

possession with intent to distribute heroin and cocaine base in violation of 21 U.S.C. §

841(a)(1). In February 2006, he was sentenced to a term of 120 months. After sentencing,

the Probation Officer provided counsel with a new presentence report, which indicated a

lower base offense level than the report used at sentencing.

       Cruz-Reyes timely appealed his sentence, arguing the sentence imposed was

unreasonable because it was based on an inaccurate presentence report.

II. Jurisdiction and Standard of Review

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

       In general, the Court of Appeals reviews a sentence for reasonableness. United States

v. Booker, 543 U.S. 220, 261 (2005). The party challenging the sentence has the burden of

proving unreasonableness; review is highly deferential, “the trial court being in the best

position to determine the appropriate sentence in light of the particular circumstances of the

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case.” United States v. Cooper, 437 F.3d 324, 330 (3d Cir. 2006). In this case, the defendant

did not raise his objection at sentencing; thus we review for plain error. United States v.

Davis, 407 F.3d 162, 164-65 (3d Cir. 2005).

III. Analysis

       Cruz-Reyes challenges the sentence imposed by the District Court because, he claims,

it was based on an inaccurate offense level calculation; had the District Court realized that

the base offense level was so much lower than the applicable career offender offense level,

it would have weighed the §3553(a) factors differently.

       The presentence report used at sentencing reflected a base offense level of 26 and a

criminal category of VI. On this basis only, the guidelines range applicable to Cruz-Reyes

would have been 120-150 months. Cruz-Reyes, however, qualified as a career offender

subject to a 20-year maximum sentence; as a result, his base offense level was actually 32.

At sentencing, the District Court granted Cruz-Reyes a 7-level reduction because of

acceptance of responsibility and cooperation with the authorities; this brought the offense

level to 25 and the guidelines range to 110-137 months. After consideration of the §3553(a)

factors, including particularly Cruz-Reyes’ criminal history, the court sentenced him to 120

months’ incarceration.

       During the sentencing hearing, the court also struck certain information about drug

sales obtained from confidential informants. Defense counsel conceded that this information

made no difference to the guidelines calculation.

       Several days after the sentencing, the Probation Officer supplied Cruz-Reyes’ attorney

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with a revised presentence report that reflected the District Court’s order to strike the

information attributed to the confidential informants. The new presentence report identified

Cruz-Reyes’ offense level as 12 (rather than 26); it still indicated that because of Cruz-

Reyes’ career offender status the applicable offense level was 32.

        The government argues that the base offense level named in the post-sentencing

revised presentence report was actually incorrect due to a typographical error (5.1 grams of

cocaine base were treated as cocaine and converted to 1.02 kilograms of marijuana instead

of the correct 102 kilograms). This appears to be true. But even if the difference between

the career offender level (which governed the calculation) and the base offense level had

been significant, there is no indication it would have changed the §3553 calculus in any way.

Cruz-Reyes had had nine separate sets of convictions in the previous fifteen years, with six

of those being drug trafficking offenses. A lower base offense level would have done

nothing to lessen the need to deter further criminal activity by this defendant and others.

There is no error here, plain or otherwise.

IV. Conclusion

       For the reasons set forth above, we will affirm the judgment of the District Court.




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