                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 17-1430
                                   _____________

                          UNITED STATES OF AMERICA

                                          v.

                                PAUL RODRIGUEZ,
                                          Appellant
                                  _____________

                   On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                          District Court No. 3-14-cr-00305-007
                   Trial Judge: The Honorable Malachy E. Mannion

                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  March 22, 2018

        Before: SMITH, Chief Judge, HARDIMAN and BIBAS, Circuit Judges

                               (Filed: March 26, 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.
SMITH, Chief Judge

       After Paul Rodriguez pled guilty to one count of distribution and possession with

intent to distribute cocaine, the District Court sentenced him to a term of 108 months’

imprisonment. Rodriguez appeals, claiming the District Court imposed a procedurally

and substantively unreasonable sentence by speculating about uncharged criminal

conduct, improperly weighing the sentencing factors, and declining to recommend drug

treatment. Because the District Court did not commit plain error, we will affirm.

                                             I.

       Rodriguez was arrested in November 2014 for his involvement in a large-scale

cocaine and heroin trafficking organization operating out of Wilkes-Barre, Pennsylvania.

A grand jury charged him with one count of distributing and possessing with intent to

distribute more than 5 kilograms of cocaine in violation of 21 U.S.C. § 846, and one

count of possessing a firearm in furtherance of a drug trafficking crime in violation of 18

U.S.C. § 924(c).

       In October 2016, Rodriguez signed a written plea agreement with the Government,

in which he offered to plead guilty to the drug distribution and possession with intent

charge in exchange for the Government’s promise to both reduce the amount of cocaine

involved in the drug charge to more than 500 grams and to dismiss the firearm charge.

The District Court conducted a change of plea hearing and accepted Rodriguez’s guilty

plea. With an enhancement for possessing a firearm and downward adjustments for a

lack of criminal history and for accepting responsibility, the applicable guidelines



                                             2
sentencing range for the charge to which Rodriguez pled guilty was 108 to 135 months’

imprisonment.

       The District Court imposed a sentence of 108 months’ imprisonment. This timely

appeal followed.

                                            II.

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

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. On appeal, Rodriguez

claims his sentence is both procedurally and substantively unreasonable because the

District Court: (1) engaged in speculation about uncharged prior criminal history;

(2) gave undue weight to the seriousness of his offense while minimizing the mitigating

factors; and (3) declined to recommend Rodriguez for participation in a prison drug

treatment program.

       We review the procedural and substantive reasonableness of a sentence for abuse

of discretion. United States v. Merced, 603 F.3d 203, 214–15 (3d Cir. 2010); United

States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). The defendant bears the

burden of demonstrating unreasonableness. Merced, 603 F.3d at 214–15; Tomko, 562

F.3d at 567. In assessing procedural soundness, we consider whether the District Court

based its decision on any clearly erroneous factual finding, whether it correctly calculated

the Guidelines range, and whether it ruled on any motions for a departure. Merced, 603

F.3d at 214. We also determine whether the District Court exercised independent

judgment and meaningful consideration of the sentencing factors enumerated in 18

U.S.C. § 3553(a). Id. at 215. The sentencing factors include, inter alia, the nature and
                                             3
circumstances of the offense, the history and characteristics of the defendant, and the

need for the sentence imposed to reflect the crime’s seriousness, to afford deterrence, and

to protect the public from further crimes by the defendant. 18 U.S.C. § 3553(a).

       If a sentence is procedurally sound, we then assess its substantive reasonableness

by considering the totality of the circumstances. Tomko, 562 F.3d at 567. We afford

great deference to the District Court’s choice of sentence. United States v. Lessner, 498

F.3d 185, 204 (3d Cir. 2007). We will affirm a procedurally sound sentence unless the

defendant demonstrates that no reasonable sentencing court would have imposed the

same sentence. Tomko, 562 F.3d at 568.

       Rodriguez failed to present his objections after the District Court imposed the

sentence. Accordingly, we review for plain error. United States v. Flores–Mejia, 759

F.3d 253, 258 (3d Cir. 2014) (en banc). To prevail on plain error review, Rodriguez

bears the burden of establishing that there was an error (i.e., an abuse of discretion), that

it was plain (i.e., clear under current law), and that it affected his substantial rights (i.e.,

that it affected the outcome of the proceeding). United States v. Olano, 507 U.S. 725,

733–34 (1993). If these requirements are met, then we may exercise our discretion to

address the error, but only if we conclude that the error seriously affected the fairness,

integrity, or public reputation of the judicial proceeding. United States v. Andrews, 681




                                                4
F.3d 509, 517 (3d Cir. 2012) (quoting Johnson v. United States, 520 U.S. 461, 467

(1997)).

                                              A.

       Rodriguez first argues that the District Court committed procedural error and

deprived him of due process “by selecting a sentence based on clearly erroneous factual

information.” Rodriguez Br. 16. Specifically, Rodriguez contends that the District Court

engaged in “speculation regarding Rodriguez’s criminality,” id. at 15, when it made the

following observation: “it is highly, highly, highly unlikely—the odds are somewhat to

winning Power Ball that somebody starts at a level where they are involved with 15 to 50

kilograms of cocaine. So that is really concerning and to some extent . . . outlines I

should say the parameters of your activity in this case.” JA129–30.

       To determine whether any error occurred, we must consider the District Court’s

statement in its full context to determine whether the statement was improper. United

States v. Ferguson, 876 F.3d 512, 516 (3d Cir. 2017). To show plain error, Rodriguez

must establish that, when considered in context, the District Court not only improperly

referred to Rodriguez’s criminal history, but also that it relied upon that history in

fashioning the sentence. Id.

       Before making the statement in question, the District Court engaged in a

thoughtful discussion about the points Rodriguez raised in favor of mitigation. JA124–

28. The District Court observed that Rodriguez had submitted twenty-two glowing

letters from family, friends, customers, and colleagues, demonstrating his commitment to

his family, his barber shop business, and his community. JA128. The District Court took
                                              5
those letters into account, but observed that “there was another side to Paul Rodriguez in

this case”—the side that participated in “a large scale conspiracy” involving “somewhere

between 750,000 and two and a half million dollars[’] worth of cocaine.” JA128. So

while the District Court accepted Rodriguez’s commitment to his family, business, and

community, it also noted the striking scale of Rodriguez’s offense, stating “this is not

about a first time offense where, you know, I used cocaine or I sold it to somebody down

the street. . . . We’re talking about large scale activities.” JA129. Indeed, Rodriguez

stipulated that he was responsible for distributing between 15 and 50 kilograms of

cocaine, so it is beyond dispute that Rodriguez was involved in “large scale activities.”

       When the District Court’s “Power Ball” statement is considered in the context of

its broader discussion contrasting the severity of Rodriguez’s crime with the mitigating

circumstances, it is apparent that the statement does not reflect that the District Court was

attributing uncharged criminal activity to Rodriguez. The District Court expressly

acknowledged that this was Rodriguez’s first offense, and stated unequivocally that it

was not attributing any other bad acts to him. JA129, 132. In context, the “Power Ball”

statement reflects the District Court’s skepticism of Rodriguez’s position that, as a first-

time offense, his crime should be dismissed as a minor mistake. JA131 (“So this was not

merely a [sic] everybody makes a mistake. This was a huge colossal high level

mistake.”).

       Having carefully reviewed the transcript of the sentencing hearing and having

considered the District Court’s “Power Ball” statement in its full context, we are not



                                              6
persuaded that the District Court committed any procedural error, and certainly not a

plain error. Accordingly, this claim lacks merit.

                                              B.

       Rodriguez next argues that his 108-month sentence is unreasonable because, in

addition to relying on speculation about uncharged past criminal activity (a claim we

have already rejected), the District Court focused too heavily on the seriousness of the

offense, the need for deterrence, and the potential for recidivism, and too little on the

mitigating circumstances and the lesser sentences received by Rodriguez’s co-defendants.

       Notably, Rodriguez does not contend that the District Court committed procedural

error by overlooking any mitigating circumstances or by failing to address the § 3553(a)

factors. See Tomko, 562 F.3d at 567 (significant procedural error occurs when a court

“fail[s] to consider the § 3553(a) factors” (quoting Gall v. United States, 552 U.S. 38, 51

(2007))). Indeed, he cannot do so, as the record reflects that the District Court carefully

and expressly considered Rodriguez’s arguments for mitigation as well as all of the §

3553(a) factors.

       As we understand it, Rodriguez’s claim is that the sentence is substantively

unsound because, although the District Court considered the § 3553(a) factors, it should

have weighed them differently. But the District Court’s decision to give the mitigating

circumstances less weight than Rodriguez believes they deserve hardly renders the

sentence substantively unreasonable. Lessner, 498 F.3d at 204.

       As for the sentencing disparity between Rodriguez and his co-defendants, the

District Court correctly attributed the difference to the individual circumstances of the
                                              7
respective crimes. JA135 (“I don’t find there’s any unwarranted disparity in this case at

all. I think you were in a different level than some of those people and . . . other factors

that were incorporated into the guideline calculation for them . . . were not factored in for

you.”). Rodriguez concedes that his differing circumstances—particularly Rodriguez’s

admitted possession of a firearm—explain the increased guidelines range that applied to

him. Rodriguez Br. 25–26. This undermines his claim of substantive unreasonableness,

because the Sentencing Commission considered the avoidance of unwarranted sentencing

disparities when it established the guidelines ranges in the first place. United States v.

Kluger, 722 F.3d 549, 568–69 (3d Cir. 2013) (citing Gall, 552 U.S. at 54).

       In sum, we are not persuaded that “no reasonable sentencing court” would have

imposed the bottom-of-the-guidelines-range sentence that the District Court imposed

here. Tomko, 562 F.3d at 568. Because Rodriguez has failed to establish the substantive

unreasonableness of his sentence, this claim cannot survive plain error review.

                                             C.

       Finally, Rodriguez claims that the District Court abused its discretion in declining

to recommend him for a prison drug treatment program. Because he identifies no

procedural irregularity in this regard, we will affirm unless Rodriguez demonstrates that

the decision is not entitled to our deference because no reasonable sentencing court

would have done the same thing. See Merced, 603 F.3d at 214.

       The District Court considered Rodriguez’s request that he be recommended for

drug treatment, but declined to make such a recommendation. It provided cogent reasons

for that decision, observing that Rodriguez had been drug-free for the past two years,
                                              8
save for a single recent incident involving marijuana. JA134. The District Court did not

recommend against drug treatment, but simply stated that “the Bureau of Prisons can do

what they see fit” and observed that the drug treatment program is limited in capacity and

“there are other people in much . . . graver need of that program.” Id.

         Rodriguez has failed to identify a single case in which our Court has concluded

that a failure to recommend drug treatment or a similar rehabilitative program constitutes

an abuse of discretion. Given Rodriguez’s relatively minor drug history in the two years

prior to sentencing, we view the District Court’s decision here as a sound exercise of its

discretion. There is no basis to disturb the District Court’s conclusion.

                                             III.

         For the foregoing reasons, we will affirm the sentence imposed by the District

Court.




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