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


11-26-2007

USA v. Marcel
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2941




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"USA v. Marcel" (2007). 2007 Decisions. Paper 198.
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                                             NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                    No. 06-2941



         UNITED STATES OF AMERICA

                          v.

FRANCISCO MARCEL, a/k/a, TIO; a/k/a FREDDIE,

                                     Appellant.



   On Appeal from the United States District Court
       for the Middle District of Pennsylvania
              (D. C. No.04-cr-00103-1)
          District Judge: Hon. Yvette Kane


     Submitted under Third Circuit LAR 34.1(a)
              on September 24, 2007


Before: AMBRO, JORDAN and ROTH, Circuit Judges

        (Opinion filed: November 26, 2007)



                   OPINION
ROTH, Circuit Judge:

       Francisco Marcel appeals his sentence of forty-eight months imprisonment, ordered

by the District Court for the Middle District of Pennsylvania. The only issue on appeal is the

reasonableness of this sentence. We will affirm.

I. Background and Procedural History

       On March 17, 2004, Marcel and twelve other individuals were charged with drug

trafficking in a nineteen-count indictment. Following psychiatric evaluations, a competency

hearing was set for Marcel. After Marcel was given the opportunity to plead to a superseding

information and following a colloquy with the District Court, the competency hearing was

waived, and the District Court found Marcel competent to proceed. That same day, the

government filed a one-count superseding information charging Marcel with unlawful use

of a communication facility to facilitate the distribution of 100 grams or more of heroin in

violation of 21 U.S.C. § 843(b). Marcel pleaded no contest to that count in full satisfaction

of the charges.

       The presentence report indicated that, had Marcel been convicted of the crimes alleged

in the original indictment, he would have faced a mandatory minimum sentence of ten years

and a Guidelines range of 121 to 151 months. He instead faced a maximum sentence of four

years. Marcel submitted a sentencing memorandum and volumes of medical and psychiatric

records to the District Court and requested a sentence of less than four years.

       On May 22, 2006, the District Court imposed the maximum forty-eight month



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sentence authorized by statute and recommended Marcel be designated to a medical facility.1

       Marcel wrote a letter to the District Court requesting reconsideration of his sentence

on June 1, 2006. It appears that the clerk of court filed a notice of appeal on Marcel’s behalf

that same day.

II. Jurisdiction and Standard of Review

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

jurisdiction over Marcel’s appeal pursuant to 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291.

       After United States v. Booker, 543 U.S. 220, 261 (2005), we review a sentence for

“reasonableness” in reference to the applicable § 3553(a) factors.2 United States v. Grier,

475 F.3d 556, 571 (3d Cir. 2007) (en banc); United States v. Cooper, 437 F.3d 324, 329 (3d

Cir. 2006). Reasonableness review essentially calls upon us to “ask[] whether the trial court

abused its discretion.” Rita v. United States, 551 U.S. __, 127 S.Ct. 2456, 2465 (2007).

       The defendant bears the burden of demonstrating unreasonableness. Cooper, 437 F.3d

at 332. The standard of review is “deferential.” Id. at 330. A sentence within the correctly



   1
    On August 8, 2006, the Bureau of Prisons filed a letter with the District Court, stating
that the Bureau had determined that Marcel did not require placement in a specialized
medical facility.
  2
     Those factors include: (1) the nature and circumstances of the offense, and the history
and characteristics of the defendant; (2) the need for the sentence imposed to: (A) reflect the
seriousness of the offense, promote respect for the law, and provide just punishment; (B)
deter criminal conduct; (C) protect the public; and (D) provide training and treatment for the
defendant; (3) the kinds of sentences available; (4) the sentencing range under the
Guidelines; (5) pertinent policy statements; (6) the need to avoid unwarranted sentence
disparities among similar defendants; and (7) the need to provide restitution.

                                              3
calculated Guidelines range is not automatically reasonable but is more likely to be

reasonable than one outside the range. Id. at 331; see also Rita (appellate courts may apply

a presumption of reasonableness to a sentence within the Guidelines range). In giving

“meaningful consideration” to the Section 3553(a) factors, a district court need not discuss

every argument made by the litigants, or specifically make findings as to each of the factors,

so long as the record reflects that the court considered those factors as well as the meritorious

arguments raised by the parties. Cooper, 437 F.3d at 329.

          We must also determine whether the District Court reasonably applied the Section

3553(a) factors to the facts of the case. We apply a deferential standard in this review. Id.

at 330.

III. Analysis

          Marcel argues that, given his age, medical issues, and military service, the District

Court should have imposed a sentence of less than forty-eight months. He does not contend

that the District Court failed to consider those factors, but he claims that a lesser sentence

would have been sufficient to meet the goals of sentencing.

          The record makes clear that the District Court considered a number of Section 3553(a)

factors and the arguments of the parties in arriving at Marcel’s sentence and reasonably

applied them to the facts of this case. The District Court stated that it had considered all of

the materials that Marcel had provided and acknowledged that he appeared to suffer from

real medical problems. The District Court concluded, however, that the Bureau of Prisons

could address such health issues. The District Court also considered the seriousness of the

                                                4
offense, the fact that pursuant to his plea Marcel avoided a sentence of 121 to 151 months,

and the degree of Marcel’s involvement. Furthermore, the sentence imposed by the District

Court was within the Guidelines range. As such, we conclude that Marcel has failed to show

that the sentence ordered by the District Court was unreasonable.

IV. Conclusion

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




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