                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-4-2008

USA v. Sanchez-Leocadio
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2421




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"USA v. Sanchez-Leocadio" (2008). 2008 Decisions. Paper 272.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/272


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                                                               NOT PRECEDENTIAL


                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     NO. 07-2421


                           UNITED STATES OF AMERICA

                                          v.

                          ARCIDES SANCHEZ-LEOCADIO
                                  a/k/a PRIMO

                                               Arcides Sanchez-Leocadio
                                               Appellant



                   On Appeal From the United States District Court
                      For the Eastern District of Pennsylvania
                       (D.C. Crim. Action No. 05-cr-00547)
                        District Judge: Hon. Anita B. Brody


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  October 31, 2008

               BEFORE: SLOVITER, STAPLETON, and TASHIMA,*
                              Circuit Judges

                          (Opinion Filed November 4, 2008)




       *Hon. A. Wallace Tashima, Senior United States Circuit Judge for the Ninth
Circuit, sitting by designation.
                               OPINION OF THE COURT



STAPLETON, Circuit Judge:

       Appellant Arcides Sanchez-Leocadio argues that the District Court erred when it

denied his request for a downward departure based on the disparity between the crack and

powder cocaine sentencing Guidelines or, alternatively, that this Court should remand for

resentencing in light of the subsequent revisions to the relevant Guidelines. For the

reasons stated below, we will affirm the sentence imposed by the District Court.

                                             I.

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

procedural history of the case, we set forth only those facts necessary to our analysis.

       At sentencing, Sanchez-Leocadio accepted the presentence report calculation of

the Guideline range: 87-108 months. He sought a downward departure, however, based

on the oft-cited 100:1 disparity between the crack and powder cocaine sentencing

regimes. The District Court explained that it was “certainly considering that disparity.”

Ultimately, however, the District Court refused to reject that disparity and depart from the

resulting advisory range because it found no “rationale [for doing so] in this particular

case.” (App. at 31-32.) Instead, it sentenced Sanchez-Leocadio to the minimum sentence

recommended by the Guidelines: 87 months of incarceration.



                                              2
                                             II.1

       Sanchez-Leocadio is right insofar as he argues that the District Court could have

considered the 100:1 ratio in formulating the sentence, and that it would be reversible

error had it imposed the sentence while laboring under a mistaken belief to the contrary.

E.g., United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). However, Sanchez-

Leocadio is wrong insofar as he argues that the instant record demonstrates that the

District Court was laboring under such a mistaken belief; the District Court clearly and

repeatedly acknowledged that it could deviate from the Guidelines range based on the

disparity – it just chose not to do so. This was entirely permissible.

       Alternatively, Sanchez-Leocadio insists that he should be resentenced pursuant to

the revised U.S.S.G. § 2D1.1, which went into effect on November 1, 2007. See U.S.S.G.

§ 2D1.1 (Nov. 1, 2007). The rub here is that because Sanchez-Leocadio was sentenced

on May 4, 2007, nearly seven months before the revision became effective, his demand

must be directed to the District Court in the first instance via a motion pursuant to 18

U.S.C. § 3582(c)(2) – not to this Court on direct appeal. See United States v. Wise, 515

F.3d 207, 221 (3d Cir. 2008).

       Finally, Sanchez-Leocadio argues that the disparity between the crack and powder


   1
    We have jurisdiction over sentencing appeals pursuant to 18 U.S.C. § 3742(a), and
review the ultimate sentence imposed by the District Court for reasonableness. United
States v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006). We review the District Court’s legal
conclusions without deference and its factual findings for clear error. United States v.
Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc); United States v. Lloyd, 469 F.3d 319,
321 (3d Cir. 2006).

                                              3
cocaine sentencing ranges violates his constitutional rights. However, because there is a

rational basis for this disparity, and the disparity does not violate the Eighth Amendment

prohibition on cruel and unusual punishment, this claim fails. Chapman v. United States,

500 U.S. 453, 464-65 (1991); United States v. Frazier, 981 F.2d 92, 96 (3d Cir. 1992).

                                           III.

       The judgment of the District Court will be affirmed.




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