                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 14-4165
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                             BENISAIDA MENO-BRUNO,
                                             Appellant
                                 _______________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. No. 1-11-cr-00230-002)
                         District Judge: Honorable Yvette Kane
                                    _______________


                       Submitted Under Third Circuit LAR 34.1(a)
                                    June 18, 2015


           Before: AMBRO, FUENTES, and GREENBERG, Circuit Judges.


                               (Filed: September 9, 2015)
                                    _______________

                                       OPINION*
                                    _______________



       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
FUENTES, Circuit Judge.

      Benisaida Meno-Bruno challenges the reasonableness of her within-guidelines

range sentence. For the following reasons, we affirm.1


                                           I.


      Meno-Bruno, along with her husband and two stepsons, was involved in a large-

scale cocaine and heroin distribution ring. For her part, Meno-Bruno was observed on

multiple occasions handing drugs to her codefendants during pre-arranged drug deals

with confidential informants. The police arrested her in a vacant building used to store

drugs, weapons, and large amounts of money. Meno-Bruno was indicted on a four-count

indictment charging various drug offenses, including conspiracy to distribute and possess

with the intent to distribute cocaine hydrochloride and heroin. In January 2014, she was

convicted on three counts by a jury.


      The sentencing hearing took place in October 2014. At the hearing, but prior to

imposition of the sentence, Meno-Bruno’s counsel raised an objection to the Pre-

Sentence Report arguing that the drug offense levels overstated the seriousness of the

offense in light of the pending applicability of Amendment 782. The United States

Sentencing Commission passed this Amendment in July 2014, which was to take effect in




1
  The District Court had subject matter jurisdiction under 18 U.S.C. § 3231, and we have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
                                           2
November 2014.2 The Amendment “reduces by two levels the offense levels assigned to

the quantities that trigger the statutory mandatory minimum penalties, resulting in

corresponding guideline ranges that include the mandatory minimum penalties.” 3 The

District Court rejected Meno-Bruno’s argument, explaining that “[it did not] know what

[the factors] w[ould] be. I have to say that at this juncture, I would have a hard time

saying the words that I find the offense level overstates the seriousness of the offense

here. I clearly don’t think it does. I think what we have here is a lack of proof. . . . I

think that Ms. Benisaida Meno-Bruno, her involvement was much greater than what she

is being held responsible for.”4 After consideration of the § 3553(a) factors, the District

Court found that Meno-Bruno and her husband were operating drug premises, but it did

not hold her responsible for the full amount of the drugs because Meno-Bruno’s level of

involvement was unclear. Ultimately, the District Court sentenced her to 21-months’

imprisonment. This appeal followed.




2
  The Amendment further provided that “[t]he court shall not order a reduced term of
imprisonment based on Amendment 782 unless the effective date of the court’s order is
November 1, 2015, or later.” U.S.S.G. 1B1.10(e). The Sentencing Commission’s
reasons for the one year delay included alleviating overcrowded prisons, accommodating
the sheer number of prisoners affected, allowing courts time to prepare for the influx of
cases, and accounting for the public safety interest involved with offenders’ reentry into
society. 79 Fed. Reg. 44973-01.
3
    79 Fed. Reg. 25996-02.
4
    App. 44.
                                            3
                                             II.


         On appeal, Meno-Bruno argues that the District Court’s sentence was

unreasonable because it failed to consider the applicability of Amendment 782. We

review sentences for both procedural and substantive reasonableness.5 First, we begin

with procedural error, determining whether the District Court erred, for example, by

“failing to calculate (or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence

based on clearly erroneous facts, or failing to adequately explain the chosen sentence—

including an explanation for any deviation from the Guidelines range.” 6            Absent

procedural error, we then review for substantive reasonableness. “We will affirm a

procedurally sound sentence as substantively reasonable ‘unless no reasonable sentencing

court would have imposed the same sentence on that particular defendant for the reasons

the district court provided.’”7


         The thrust of Meno-Bruno’s argument is that the District Court erred in failing to

consider and then to apply the two-level downward variance permitted by Amendment




5
    See United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc).
6
  United States v. Hoffecker, 530 F.3d 137, 196 (3d Cir. 2008) (quoting Gall v. United
States, 552 U.S. 38, 51 (2007)).
7
 United States v. Grober, 624 F.3d 592, 599 (3d Cir. 2010) (quoting United States v.
Tomko, 526 F.3d 558, 568 (3d Cir. 2009)).
                                              4
782.8 The Amendment, however, went into effect on November 1, 2014, one month after

Meno-Bruno was sentenced. While we appreciate Meno-Bruno’s argument regarding

proximity in time, the District Court properly applied the Guidelines in effect at the time

of sentencing, and we may not apply the amendment retroactively on appeal. 9 Moreover,

we also reject Meno-Bruno’s argument that the District Court failed to consider

application of the Amendment. The District Court considered the Amendment, but held

that application in this case was not warranted because the sentence did not overstate the

seriousness of the crime. Instead, the District Court found that, if anything, it likely

understated Meno-Bruno’s involvement in the scheme.


       Thus, we conclude that the District Court properly calculated the advisory

Guidelines range, gave thorough consideration to the appropriate § 3553(a) factors, and

adequately explained the reasoning for rejecting Meno-Bruno’s request for a downward

variance. Because Meno-Bruno fails to prove that “no reasonable sentencing court would




8
  While Meno-Bruno characterizes this as a substantive unreasonableness argument, in
truth it is an argument of procedural unreasonableness—i.e., “the form that the
sentencing procedure has taken, e.g., a court’s failure to give meaningful review to a
defendant’s substantive arguments.” United States v. Flores-Mejia, 759 F.3d 253, 256-57
(3d Cir. 2014). Because Meno-Bruno failed to object on the record to any misapplication
of the § 3553(a) factors after his sentencing, our review is for plain error. Id. at 258.
9
  United States v. Wise, 515 F.3d 207, 220 (“[W]e have previously ruled that a post-
sentencing amendment reducing the base offense level applicable to a particular offense
is a substantive change and is therefore not applied retroactively to cases on appeal.”).
                                            5
have imposed the same sentence,” we find neither procedural nor substantive

unreasonableness.10


                                               III.


         Accordingly, for all the reasons stated above, we affirm the District Court’s

sentence. We note, however, that Meno-Bruno may file a motion with the District Court

seeking a reduction in his term of imprisonment.11 The District Court may reduce his

sentence, if appropriate, provided that the effective date of the order is November 1,

2015, or later.12




10
     Tomko, 562 F.3d at 568.
11
     See 18 U.S.C. § 3582(c)(2); Wise, 515 F.3d at 220-21.
12
     See U.S.S.G. § 1B1.10(a), (d), (e)(1), cmt. 6.
                                                6
