                                                    NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                                  _____________

                                   No. 13-3408
                                  _____________

                       UNITED STATES OF AMERICA

                                         v.

                                  OMAR JORGE,

                                                      Appellant



                 On Appeal from the United States District Court
                           for the District of New Jersey
                     (District Court No.: 2-13-cr-00243-001)
                 District Court Judge: Honorable Kevin McNulty


                   Submitted under Third Circuit LAR 34.1(a)
                             on September 8, 2014

       Before: RENDELL, GREENAWAY, JR. and KRAUSE, Circuit Judges

                          (Opinion filed: October 8, 2014)




                                   OPINION


RENDELL, Circuit Judge:
         Defendant Omar Jorge appeals the District Court’s imposition of a 108-month

sentence of imprisonment for conspiracy to distribute 750 grams of heroin. Jorge claims

this sentence is both procedurally and substantively unreasonable. We reject Jorge’s

arguments and affirm the District Court’s judgment.1

I. Factual Background

         While on supervised release for a previous conviction for conspiracy to distribute

cocaine, Jorge delivered 750 grams of heroin to an individual who transported the heroin

to New Jersey. When Jorge was arrested, he consented to the search of two apartments to

which he had access. Drug Enforcement Administration agents found over one kilogram

of heroin and a loaded gun in one of the apartments.

         Jorge pled guilty to conspiracy to distribute and possess with intent to distribute

100 grams or more of heroin. The plea agreement thus stipulated to 100 grams of heroin,

even though the actual amount recovered in New Jersey was 750 grams, and it did not

include the heroin recovered from the apartment.

         The plea agreement specified that “[t]he sentence to be imposed upon Omar Jorge

is within the sole discretion of the sentencing judge . . . .” (App. 9.) It also stated that

“[t]his agreement to stipulate . . . cannot and does not bind the sentencing judge, who

may make independent factual findings and may reject any or all of the stipulations




1
    We have jurisdiction over this appeal pursuant to 18 U.S.C. § 3742(a).

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entered into by the parties.” (App. 10.) At Jorge’s sentencing, his attorney acknowledged

that “[t]he Court has no obligation to follow the plea agreement.” (App. 65.)

       The District Court “honor[ed] the plea deal to the extent of not considering the

drugs that were seized from the apartment.” (App. 70.) But it calculated the guidelines

range based on the actual amount of heroin recovered in New Jersey, i.e., 750 grams, not

the 100 grams to which the parties stipulated. The District Court calculated an offense

level of 27, with a criminal history category level 3, creating a guidelines range of 87 to

108 months.

       The District Court then considered counsel’s arguments and the 18 U.S.C. §

3553(a) factors. The District Court noted that Jorge’s guidelines range would have been

“much, much higher” and “richly deserved” if it had included the heroin found in the

apartment. (App. 82.) It also noted that Jorge had a prior conviction for conspiracy to

distribute over five kilograms of cocaine. Based on Jorge’s criminal history and the

amount of heroin recovered, it concluded that “there is a need for a very substantial

sentence . . . .” (App. 81.) The District Court concluded that “specific deterrence hasn’t

worked as to this defendant. . . . a serious sentence is required to deter the public.” (App.

82.) It also noted that “[i]f anything, the need to avoid disparities would argue for a

higher sentence not a lower one . . . .” (App. 83.) The District Court noted that the

education, vocational training, medical care, and other treatment factors were “neutral.”

(App. 83.) It also addressed Jorge’s argument that he dealt drugs to support his family by

acknowledging that “times have been hard . . . in the economy, and that he lost his job. . .

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. But nevertheless, that can not be a justification for this kind of conduct.” (App. 81.) It

recognized Jorge’s willingness to plead guilty early and his waiver of certain arguments.

It concluded that a sentence of 108 months imprisonment, plus five years supervised

release, was appropriate.

II. Discussion

       We review sentences “under a deferential abuse-of-discretion standard.” Gall v.

United States, 552 U.S. 38, 41 (2007). On appellate review, “we are to ensure that a

substantively reasonable sentence has been imposed in a procedurally fair way.” United

States v. Levinson, 543 F.3d 190, 195 (3d Cir. 2008).

       “[A] district court should begin all sentencing proceedings by correctly calculating

the applicable Guidelines range.” Gall, 552 U.S. at 49. “After that initial calculation, the

court must then rule on any motions for departure . . . . Finally, after allowing the parties

an opportunity for argument, the court must consider all of the § 3553(a) factors and

determine the appropriate sentence to impose . . . .” Levinson, 543 F.3d at 194-95. Our

review of the sentencing court’s application of the § 3553(a) factors is “highly

deferential.” United States v. Bungar, 478 F.3d 540, 543 (3d Cir. 2007). “[I]f the district

court’s sentence is procedurally sound, we 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.” United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009).

       Jorge argues that his sentence was procedurally unreasonable because the District

Court did not abide by the plea agreement and because it focused upon deterrence

                                              4
without considering other § 3553(a) factors. He also claims that the District Court failed

to consider his family circumstances, the impact of his incarceration upon his wife and

children, his employment history, and his motivation for drug dealing. Jorge emphasizes

that, in choosing to plead guilty, he waived challenges to venue, his arrest, the apartment

searches, and his statements to law enforcement.2

       These arguments are meritless. First, the District Court has no obligation to adjust

its sentencing decision based on potential arguments Jorge could have made if he had not

pled guilty. In choosing to plead guilty, Jorge waived his right to have a trial and to

challenge the Government’s evidence. In addition, the District Court was not bound by

the factual stipulation in the plea agreement, as the document itself emphasized and as

Jorge’s counsel acknowledged at sentencing.

       There was no procedural error. Jorge does not dispute that the District Court’s

guidelines calculation was correct and there were no departure motions. Furthermore, the

District Court considered all the § 3553(a) factors, noting the amount of heroin, Jorge’s

criminal history, sentencing disparities, Jorge’s early decision to plea, Jorge’s economic

circumstances, and the absence of vocational, educational, or medical circumstances. It

concluded that deterrence was the most important factor in order to send a message to the

public. The District Court did not abuse its discretion in imposing a sentence at the top of

2
 He also cites case law involving pleas pursuant to Fed. R. Crim. P. 11(c)(1)(C), which
mandates that the parties may “agree that a specific sentence or sentencing range is the
appropriate disposition of the case” and that “such a recommendation or request binds the
court once the court accepts the plea agreement.” These cases are inapposite because the
plea agreement at issue was not made pursuant to Rule 11(c)(1)(C).
                                              5
the guidelines range based on these factors. Jorge has not shown that no reasonable

sentencing court would have imposed the same sentence.

III. Conclusion

      For the foregoing reasons, we will affirm the District Court’s judgment.




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