                                                               NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                               __________

                                   No. 09-2281
                                   __________


                          UNITED STATES OF AMERICA

                                        v.

                              JEMEL MARCANO,
                                                       Appellant

                                   __________

                  On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                       (D.C. Criminal No. 08-cr-00113-001)
                  District Judge: Honorable James Knoll Gardner
                                    __________

                    Submitted Under Third Circuit LAR 34.1(a)
                                on May 27, 2010

                      Before: McKEE, Chief Judge, and
                  RENDELL, and STAPLETON , Circuit Judges.

                               (Filed: June 1, 2010)

                                   __________

                            OPINION OF THE COURT
                                  __________


RENDELL, Circuit Judge.
       Jemel Marcano appeals from his sentence of 240 months’ imprisonment for

convictions on two counts of possession of heroin with intent to distribute and two counts

of distribution of heroin, in violation of 21 U.S.C. § 841(a)(1), and possession of a

firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Marcano’s guideline

sentencing range was 262 to 327 months and the District Court was required to impose a

15-year mandatory minimum sentence pursuant to the Armed Career Criminal Act

because of Marcano’s firearm conviction. Marcano contends that his sentence was

procedurally unreasonable because the District Court did not address his sentencing

argument that the mandatory minimum was a sufficiently severe sentence given

Marcano’s prior sentences. He also urges that imposing 240 months’ incarceration was

substantively unreasonable because it is greater than necessary in order to accomplish the

purposes of sentencing. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231.

We exercise jurisdiction pursuant to 28 U.S.C. § 1291. We will affirm.

       Because we write only for the parties who are familiar with the factual context and

procedural history of this case, we recite only the facts that are relevant to our analysis.

At the time of sentencing, Marcano was 32 years old and his criminal history indisputably

qualified him as an Armed Career Criminal, based on his convictions for armed robbery,

distribution of crack cocaine, and possession with intent to deliver heroin and cocaine.

Marcano previously served 48 months for distributing crack cocaine, and has also served

numerous other prison sentences, ranging from 34 days to three years, resulting from his



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convictions, a parole violation, and a violation of supervised release. At Marcano’s

sentencing hearing, neither the government nor the defense objected to the presentence

report, which calculated Marcano’s sentencing guideline range to be 262 to 327 months’

imprisonment, with a mandatory minimum of 15 years’ imprisonment. At the beginning

of the hearing, the District Court noted that it had read both the government’s and

Marcano’s sentencing memoranda. Marcano then testified on his own behalf and his

counsel presented argument, including arguments that Marcano contends the District

Court ignored.

       On appeal, Marcano urges that the District Court erred both procedurally and

substantively by failing to address his counsel’s argument that a 15 year sentence would

be sufficient but not greater than necessary to accomplish the sentencing goals, urging

that Marcano had faced only relatively short sentences before. We review the District

Court’s sentencing for reasonableness based on the totality of the circumstances, under an

abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). As we noted

in United States v. Ausburn:

              In considering a criminal defendant's claim that a sentence is
              unreasonable, a reviewing court asks whether the district
              court: (1) exercised its discretion by giving meaningful
              consideration to the § 3553(a) factors; and (2) applied those
              factors reasonably by selecting a sentence grounded on
              reasons that are logical and consistent with the § 3553(a)
              factors. When we reach this last step, we apply a deferential
              standard, the trial court being in the best position to determine
              the appropriate sentence in light of the particular
              circumstances of the case.

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502 F.3d 313, 329 (3d Cir. 2007) (quotations omitted).

       The first step of review described above has been characterized as “procedural”

review and the second step has been characterized as “substantive” review. Id. A district

court’s explanation of its rationale need not be perfect, as judges typically rule from the

bench. Id. Marcano claims that the District Court erred in failing to “acknowledge and

respond to any properly presented sentencing argument which has colorable legal merit

and a factual basis.” Id. at 329. However, we find that the District Court coherently and

completely explained its rationale for sentencing Marcano to a below-guidelines sentence

of 240 months and properly responded to Marcano’s sentencing arguments. App. 194-

206. In fact, the District Court’s explanation of its sentencing rationale, and its

consideration of the 18 U.S.C. § 3553(a) sentencing factors, is exceedingly thorough and

commendable.

       The District Court “considered the defendant’s sentencing grounds,” (App. 195),

noted that Marcano had “made crime a way of life since his youth,” (App. 196), engaged

in a lengthy discussion of Marcano’s criminal history including the prior sentences

served, (App. 197-97), found that Marcano was likely to commit crimes again if on the

street, (App. 198), and found it disturbing that his criminal history included a violent

felony. The District Court acknowledged that the guidelines were only advisory, and

despite “seriously consider[ing] the guidelines,” sentenced Marcano below the guidelines

because that range “was slightly but not considerably too high under all of the



                                              4
circumstances.” App. 199. In varying downward from the guidelines, the District Court

noted that the offense at issue involved a relatively small amount of drugs and that the

gun Marcano possessed was not on his person. Id.

       The District Court further explained that it took into account both the nature and

circumstances of the offense and Marcano’s personal and criminal history in order to

impose “a sentence sufficient but not greater than necessary to comply with the purposes

set forth in [18 U.S.C. § 3553].” App. 200. The District Court noted that the offense at

issue was “particularly serious,” (App. 200), that Marcano’s criminal history

demonstrated “prominent recidivism . . show[ing] a consistent and longstanding

disrespect for the law,” (App. 201), and that Marcano did “not have a strong parental

direction . . suffers from a substance abuse problem . . . to his credit, acquired a GED

while in prison . . . but . . . really ha[d]n’t utilized his education in the pursuit of any

legitimate employment.” App. 201-02. The District Court explicitly and thoroughly

considered the need to deter Marcano and the general public from criminal activity, the

need for Marcano to receive vocational training, the need to protect the public, and the

need to avoid unwarranted sentencing disparities. App 202-05.

       Based on the above, it is clear that Marcano’s sentence is both procedurally and

substantively reasonable and that the District Court did not abuse its discretion. Contrary

to Marcano’s claims on appeal, the Court addressed the severity of Marcano’s sentence,

recognized that his prior sentences had been significantly shorter, and properly supported



                                                5
its finding that the sentence imposed was sufficient, but not greater than necessary to

satisfy the purposes of sentencing. For the foregoing reasons we will AFFIRM the

Judgment and Commitment Order of the District Court.




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