                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 12-3356
                                    _____________

                          UNITED STATES OF AMERICA


                                           v.

                                RICHARD CACERES,
                                     Appellant

                                    _____________

                   On Appeal from the United States District Court,
                                District of New Jersey
                           (Crim. No. 1-11-cr-00798-001)
                     District Judge: Honorable Jerome Simandle
                                   _____________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                    May 6, 2103
                                  _____________

              Before: SLOVITER, FUENTES, and ROTH, Circuit Judges.

                            (Opinion Filed: August 2, 2013)
                                   _____________

                              OPINION OF THE COURT
                                  _____________

FUENTES, Circuit Judge:

      Appellant, Richard Caceres, alleges that the District Court for the District of New

Jersey substantively and procedurally erred when it sentenced him to a 151-month prison



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term for distribution of and possession with the intent to distribute cocaine. For the

reasons that follow, we will affirm the sentence imposed by the District Court.

                                              I.

       Because we write primarily for the parties, we set forth only the facts and

procedural history relevant to our disposition of this case.1 At the time of his arrest for the

present charge, Caceres was on parole and supervised release from two previous

convictions for drug related offenses. Specifically, Caceres had been convicted of a 2001

cocaine distribution charge within 1,000 feet of a school and of 2005 charges of

conspiracy to possess with intent to distribute more than 100 grams of heroin and

possession of a firearm in furtherance of the offense. After serving time for both offenses,

Caceres was deported to the Dominican Republic. However, in 2010, he unlawfully

reentered the country and was arrested later that year for the crimes at issue in this

appeal.

       Caceres was charged in a one-count indictment with distributing and possessing

with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).

He pled guilty to the charge on March 30, 2012. Due to his prior criminal history,

Caceres was classified as a career offender. With a resulting offense level of 29 and

criminal history category of VI, Caceres’s Guideline range was 151 to 188 months’

imprisonment. Without the repeat offender categorization, the applicable guideline range


1
 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction
over the District Court’s Order of Judgment and conviction pursuant to 28 U.S.C. § 1291.
We have jurisdiction to review Caceres’s sentence for reasonableness. United States v.
Cooper, 437 F.3d 324, 327 (3d Cir. 2006).

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would have been 57 to 71 months. At sentencing, Caceres moved to depart downward

from the career offender range, pursuant to U.S.S.G. § 4A1.3(b), arguing that his criminal

history was overstated. He also sought a downward departure based on his extraordinary

responsibilities for his children in the United States and for his sick father in the

Dominican Republic. The District Court denied his motion and, after considering the

relevant factors under § 3553(a), sentenced him to the bottom of the advisory range—151

months in prison.

                                              II.

       On appeal, Caceres contends that the District Court erred in denying his motion

for a downward departure, failing to adequately address the 18 U.S.C. § 3553(a) factors,

and improperly referencing his unlawful reentry into the country.

       First, Caceres argues that the District Court should have granted his motion for a

downward departure because his criminal history category overstated the seriousness of

his crimes and his likelihood of recidivism, and because he had extraordinary family

responsibilities. However, we are without jurisdiction to review a district court’s

discretionary decision to deny a motion to depart, so long as the district court’s refusal to

depart is not based on a “mistaken belief that it lacks discretion to do otherwise.” United

States v. Vargas, 477 F.3d 94, 103 (3d Cir. 2007). Caceres concedes that the District

Court “recognized . . . [it] could depart downward,” Appellant’s Br. at 5, and, based on

our review of the record, we agree. In addressing Caceres’s arguments, the Court found

that Caceres’s criminal history was not overstated because he was a “recidivist” whose

previous convictions were for “significant” crimes. App. BA64-65. It also found that his


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family responsibilities were not extraordinary enough to warrant a departure because “if

Mr. Caceres is in prison the children will still survive” and “whatever his father’s needs

may be, it’s not Mr. Caceres who is depended upon to fulfill them.” App. BA68. Because

the District Court acknowledged that “a downward departure may be warranted” in some

cases, App. BA63, but chose not to depart here based on the foregoing circumstances, we

may not disturb its decision.

       Next, Caceres contends that the District Court failed to adequately weigh the

factors enumerated in 18 U.S.C. § 3553(a). Specifically, he argues that the District Court

should have considered the disparity between his sentence and those of his co-defendants,

which ranged from 37 to 80 months in prison. District courts must give “meaningful

consideration to the § 3553(a) factors.” United States v. Cooper, 437 F.3d 324, 329 (3d

Cir. 2006). However, the court need not state or even address all of the § 3553(a) factors.

United States v. Charles, 467 F.3d 828, 831 (3d Cir. 2006). We review a sentence to

determine whether the District Court reasonably applied the § 3553(a) factors to the case.

Cooper, 437 F.3d at 330.

       Here, the Court extensively discussed numerous sentencing factors, including

deterrence and the need for the sentence imposed to reflect the seriousness of the crime

and promote respect for the law. Furthermore, contrary to Caceres’s contentions, the

District Court did in fact consider the “need to avoid unwarranted sentence disparities

among defendants with similar records who have been found guilty of similar conduct.”

18 U.S.C § 3553(a)(6). After discussing the sentence imposed on one of Caceres’s co-

defendants, the Court explained, “even though the quantities for which the two were held


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are not that different, the resulting sentences are because of [Caceres’s] career offender

status and the . . . incorrigibility of Mr. Caceres.” App. BA42. It is clear from the record

that the District Court gave meaningful consideration to the § 3553(a) factors and

reasonably applied them to the facts of this case.

       Finally, Caceres contends that the District Court improperly and repeatedly

referenced his unlawful reentry in determining his sentence. We disagree. Reentry after

deportation is a violation of the law, one which, along with Caceres’s other crimes, could

support an increased sentence, and is relevant to the history and character of the

defendant. See 18 U.S.C. § 3553(a)(1). Caceres’s argument that his sentence signals to

other courts that greater sentences can be imposed on illegal immigrants is unavailing.

The District Court was clear that it was focusing on his illegal activity rather than his

immigration status in imposing a sentence. In fact, Caceres received a sentence at the

bottom of the Guideline range. Caceres’s arguments are thus exaggerated. It is evident

that Caceres’s sentence was “premised upon appropriate and judicious consideration of

the relevant factors.” United States v. Lessner, 498 F.3d 185, 204 (3d Cir. 2007).

                                             III.

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




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