                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 16-3257
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                         JOSE JUAN ALBERTORIO-GARCIA,
                                 a/k/a Jose Garcia,
                                    a/k/a P-Juan,
                                   a/k/a Matatan

                                 Jose Juan Albertorio-Garcia,
                                            Appellant
                                      ____________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                           (M.D. Pa. No. 1-14-cr-00176-001)
                      District Judge: Honorable Sylvia H. Rambo
                                     ____________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    April 7, 2017

             Before: CHAGARES, SCIRICA and FISHER, Circuit Judges.

                                  (Filed: April 12, 2017)
                                      ____________

                                        OPINION*
                                      ____________



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

       Following a jury trial, Jose Juan Albertorio-Garcia was convicted of four counts of

distribution or possession with the intent to distribute heroin and one count of possession

of a firearm in furtherance of a drug-trafficking crime. At sentencing, he was designated a

career offender, and the District Court sentenced him to 300 months’ imprisonment.

Arguing that there was insufficient evidence to convict him of the firearm offense,

Albertorio-Garcia appeals his firearm conviction. He also appeals his court-imposed

sentence, contending that it is unreasonable. For the reasons that follow, we will affirm.

                                           I.

       In March 2014, a confidential informant acting under the direction of the

Pennsylvania State Police arranged four drug transactions with Albertorio-Garcia. The

police set up surveillance and watched Albertorio-Garcia sell heroin to the informant and

an undercover state trooper on all four occasions. After the final buy, they arrested

Albertorio-Garcia and executed a warrant to search his residence. During their search,

officers found currency and 140 bags of heroin in a first-floor living-room/dining-room

area. They also found a loaded firearm, three boxes ammunition, and a digital scale with

white residue in a second-floor bedroom.

       On July 16, 2014, Albertorio-Garcia was charged with five counts of distribution

and possession with the intent to distribute a detectable amount of heroin (Counts 1-5);

and one count of possessing a firearm in furtherance of drug trafficking, in violation of 18

                                                2
U.S.C. § 924(c) (Count 6). He pleaded not guilty and, after a three-day trial, the jury

returned a guilty verdict on the drug offenses charged in counts two through five of the

indictment as well as the 924(c) offense charged in count six.

       That December, the Probation Office issued a Presentence Investigation Report. In

it, the Probation Office concluded that Albertorio-Garcia was a career offender and

assessed his sentencing range as 360 months’ to life imprisonment. Albertorio-Garcia, in

turn, admitted that the Probation Office properly calculated his guidelines range. But he

argued that the District Court should exercise its discretion to vary downward because a

much lower sentence than 360 months would satisfy the sentencing factors in 18 U.S.C. §

3553(a). Ultimately, the District Court imposed a sentence of 300 months’

imprisonment—240 months on each heroin conviction, to be served concurrently, plus 60

months on his firearm conviction. It entered judgment on July 18, 2016, and this timely

appeal followed.

                                             II.

       The District Court had subject matter jurisdiction over this case under 18 U.S.C. §

3231. We have appellate jurisdiction under 28 U.S.C. § 1291. We exercise plenary

review over a defendant’s sufficiency-of-the-evidence claim but are highly deferential to

the jury’s verdict. 1 In reviewing the evidence, we view the record in the light most

favorable to the winning party, and we must uphold the “conviction if any rational trier of


       1
           United States v. Bornman, 559 F.3d 150, 152 (3d Cir. 2009).
                                             3
fact could have found the essential elements of the offense beyond a reasonable doubt.” 2

We review a District Court’s sentencing decisions under an abuse-of-discretion standard

for both procedural and substantive reasonableness. 3

                                             III.

       On appeal, Albertorio-Garcia raises two issues. First, he argues that the evidence

adduced at trial was insufficient to convict him of possessing a firearm in furtherance of a

drug trafficking crime. Second, he asserts that his 300-month sentence was unreasonable.

We will consider each argument in turn, and affirm for the reasons below.

                                             A.

       To convict an individual under 18 U.S.C. § 924(c), “the evidence must

demonstrate that possession of the firearm advanced or helped forward a drug trafficking

crime.”4 In making this determination, we consider several factors, including

       the type of drug activity that is being conducted, accessibility of the firearm, the
       type of the weapon, whether the weapon is stolen, the status of the possession
       (legitimate or illegal), whether the gun is loaded, proximity to drugs or drug
       profits, and the time and circumstances under which the gun is found. 5

       Applying these factors and viewing the evidence in the government’s favor, as we

must, we hold that the evidence was sufficient to convict Albertorio-Garcia of possessing

a firearm in furtherance of a drug-trafficking crime. Indeed, a surveillance officer

       2
        United States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999).
       3
        United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc).
      4
        United States v. Sparrow, 371 F.3d 851, 853 (3d Cir. 2004).
      5
        Id. (quoting United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir.
2000)).
                                            4
testified that he saw Albertorio-Garcia carry a firearm to the controlled drug buy on

March 13. The lead investigator testified that he heard the surveillance officer call out the

firearm. Albertorio-Garcia stipulated he could not lawfully possess the firearm. The

firearm discovered in Albertorio-Garcia’s home was loaded, easily accessible, and in

close proximity to a digital scale with white residue. Finally, two officers testified that it

was common for drug traffickers to have firearms and to use scales to weigh drugs.

       Contrary to Albertorio-Garcia’s claims otherwise, the fact that the drugs were

found in a different room than the gun does not mean that a rational jury could not have

concluded that the gun was used in furtherance of a drug-trafficking activity. Nor does

his claim that the surveillance officer misidentified the gun. Although the gun was

located in a different room than the drugs, it was in the same room as the scale, and we

have previously held that a weapon’s physical proximity to drug-packaging paraphernalia

provides sufficient evidence to convict under § 924(c).6 Likewise, even were we to accept

Albertorio-Garcia’s argument that the surveillance officer misidentified the gun, that

point is inapposite. Since we are not permitted to “weigh evidence or determine the

credibility of witnesses” when evaluating a sufficiency-of-the evidence claim,7 “the



       6
        United States v. Iglesias, 535 F.3d 150, 157 (3d Cir. 2008). In addition, the
weapon was loaded, and it was illegally possessed in the same home as a substantial
amount of drugs and money. As the Fifth Circuit has held, those “factors reasonably
support a finding” that Albertorio-Garcia’s “gun protected his drugs and money against
robbery.” Ceballos-Torres, 218 F.3d at 415.
      7
        United States v. Beckett, 208 F.3d 140, 151 (3d Cir. 2000).
                                             5
evidence does not need to be inconsistent with every conclusion save that of guilt.” 8 It

suffices that, as is the case here, a reasonable jury “could accept” the officer’s testimony

“as sufficient to support the conclusion of the defendant’s guilt beyond a reasonable

doubt.” 9

                                              B.

       We also reject Albertorio-Garcia’s argument that the District Court abused its

discretion when it sentenced him to 300 months’ imprisonment. “Our responsibility on

appellate review of a criminal sentence is limited . . . to ensure that a substantively

reasonable sentence has been imposed in a procedurally fair way.” 10 And we cannot find

that the District Court imposed a procedurally unfair or substantively unreasonable

sentence in this case.

       Regarding procedural reasonableness, Albertorio-Garcia neither alleges nor can

we find any procedural error in this case. The District Court did not incorrectly calculate

his guidelines range, improperly treat the guidelines as mandatory, fail to follow the




       8
         United States v. Caraballo-Rodriguez, 726 F.3d 418, 432 (3d Cir. 2013)
(brackets and internal quotation marks omitted).
       9
         Id. at 430-31 (internal quotation marks omitted).
       10
          United States v. Levinson, 543 F.3d 190, 195 (3d Cir. 2008).
                                              6
three-step process for imposing a sentence, select a sentence based on erroneous facts,

fail to explain the sentence, or fail to consider the § 3553(a) factors. 11

       For substantive reasonableness, we “accord great deference to a district court’s

choice of final sentence,” and the “pertinent inquiry is ‘whether the final sentence . . . was

premised upon appropriate and judicious consideration of the relevant factors’” set forth

in 18 U.S.C. § 3553(a). 12 In addition, since 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.” 13

       Here, we cannot find that Albertorio-Garcia’s 300-month sentence, which was 60

months less than the bottom end of the advisory guidelines range, was substantively

unreasonable. First, the District Court appropriately considered the sentencing factors in

§ 3553(a), including “the seriousness of the offense,” “the history and characteristics of

the defendant,” the need to “protect the public from further crimes of the defendant,” and

       11
           Albertorio-Garcia objects to the Probation Office’s calculation of his offense
level, criminal history level, and career offender status. But he has repeatedly clarified
that his objection is to “the methodology allowed by the advisory sentencing guidelines”
and not that the Probation office miscalculated his guidelines range. App. 339; see also
App. 347-48 (“I am not stating to you that the probation department miscalculated.”). We
agree with the government that the Probation Office properly assessed his sentencing
range as 360 months to life. Because Albertorio-Garcia is over eighteen, was convicted of
a drug crime, and has seven prior drug felonies, he qualifies as a career offender.
U.S.S.G. § 4B1.1(a). And because he is a career offender with a § 924(c) conviction and
no acceptance-of-responsibility reduction, the career offender table provides that his
sentencing range is 360 months to life. Id. § 4B1.1(c).
        12
           United States v. Lessner, 498 F.3d 185, 204 (3d Cir. 2007) (quoting United
States v. Schweitzer, 454 F.3d 197, 204 (3d Cir. 2006)).
        13
           Tomko, 562 F.3d at 568.
                                               7
the need to “afford adequate deterrence.” 14 Second, because the “record makes clear that

the sentencing judge listened” to Albertorio-Garcia’s arguments for a downward variance

and had a “reasoned basis” for providing the sentence imposed, 15 we cannot find that the

District Court abused its discretion in declining to give Albertorio-Garcia’s “mitigating

factors the weight” that Albertorio-Garcia “contends they deserve.” 16 For example, while

Albertorio-Garcia contends that he only sold 22.8 grams of heroin, it was not an abuse of

discretion for the District Court to conclude that he was engaged in a particularly serious

offense, given that he sold thousands of doses of heroin. Likewise, while there is a

disparity between the sentence Albertorio-Garcia received in this case and the typical

sentence a non-career offender would have received for selling 22.8 grams of heroin, it

was not an abuse of discretion for the District Court to conclude that the disparity that

ultimately resulted was warranted based on Albertorio-Garcia’s career offender status and

his ten prior convictions—nine of which related to the possession, distribution, and

manufacture of controlled substances.

                                            IV.

       For the reasons set forth above, we will affirm.




       14
          18 U.S.C. § 3553(a). For example, the District Court noted on the record that
Albertorio-Garcia was a “long-time drug dealer” and “recidivist” felon who posed “a
danger to the community.” App. 353-54.
       15
          Rita v. United States, 551 U.S. 338, 356-58 (2007).
       16
          Lessner, 498 F.3d at 204.
                                             8
