                                                                  NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    _____________

                                        No. 10-4537
                                       _____________

                              UNITED STATES OF AMERICA

                                               v.

                                  ROBERTO CASTANON,
                                            a/k/a
                                   Robert Felipe Castanon,
                                            a/k/a
                                      Felipe Castanon

                                  ROBERTO CASTANON,
                                                    Appellant
                                    _______________

                APPEAL FROM THE UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF NEW JERSEY
                       (D.C. Crim. Action No. 10-cr-00237-001)
                      District Judge: Honorable William H. Walls
                                   _______________

                         Submitted Under Third Circuit LAR 34.1(a)
                                     January 24, 2012
                                    _______________

     Before: FISHER, GREENAWAY, JR., Circuit Judges and JONES *, District Judge.

                              (Opinion Filed: January 25, 2012)
                                     _______________

                                         OPINION
                                     ________________


*
    District Court Judge John E. Jones sitting by designation.
GREENAWAY, JR., Circuit Judge.

       Appellant Roberto Castanon (“Castanon”) appeals the District Court’s November

22, 2010 judgment sentencing him to a term of thirty-seven months of imprisonment and

three years of supervised release. For the following reasons, we will affirm the District

Court’s judgment and sentence.

                                  I.   BACKGROUND

       We write primarily for the benefit of the parties and shall recount only the

essential facts. From January 2003 to February 2007, Castanon and numerous defendants

conspired to defraud insurers by staging automobile accidents. Castanon and his co-

defendants would stage the collisions and then report the accidents to the police. The

purportedly injured person would seek medical attention at various chiropractic facilities,

including Spinal Care and Rehabilitation and Perth Amboy Diagnostics. Castanon was

the president and owner of Spinal Care and Rehabilitation. The co-defendants would

then submit false invoices and other documents related to medical and chiropractic claims

to various automobile insurance companies.

       On April 6, 2010, Castanon pled guilty to count one of the information, charging

him with conspiracy to commit mail fraud, pursuant to 18 U.S.C. § 1349. Castanon

acknowledged that the loss attributable to the insurance companies was in excess of

$400,000. The District Court held a sentencing hearing on November 22, 2010 and

determined that Castanon’s total offense level was twenty-one, with a criminal history

category I. Castanon’s counsel then requested a downward variance under 18 U.S.C. §
3553(a), arguing that it should be granted because of Castanon’s extraordinary family

circumstances. 2

       In addition, Castanon’s counsel requested a variance to facilitate the payment of

restitution to the victims, based on the contention that the custodial term suggested by the

advisory Guidelines was more than necessary to meet the need of deterring Castanon and

others. 3

       The government argued for a sentence within the advisory Guidelines range, citing

to Castanon’s role, the offense conduct, the seriousness of the offense, and the sentences

of the other defendants.

       The District Court evaluated the 18 U.S.C. § 3553(a) factors, and concluded that

Castanon’s family circumstances did not remove his case from the heartland of similarly

situated criminal cases, hence a variance was not warranted. The District Court imposed

a sentence of thirty-seven months, with three years of supervised release.

              II.     JURISDICTION AND STANDARD OF REVIEW

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

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).




2
  Castanon was 63 years old, and served as the caretaker for his wife who was suffering
from a recurrence of breast cancer. Castanon reportedly provided physical, emotional
and financial support for his wife.
3
  Apparently, Castanon reimbursed one victim by selling his [Castanon’s] family
residence.

                                             3
         A district court’s sentencing procedure is reviewed for abuse of discretion. Gall v.

United States, 552 U.S. 38, 51-52 (2007). On abuse of discretion review, the court of

appeals gives due deference to a district court’s sentencing decision. Id. at 51.

         Our appellate review proceeds in two stages. It begins by ensuring that the
         district court committed no significant procedural error, such as (1) failing
         to calculate (or improperly calculating) the U.S. Sentencing Guidelines
         range; (2) treating the Guidelines as mandatory; (3) failing to consider the
         18 U.S.C. § 3553(a) factors; or (4) selecting a sentence based on clearly
         erroneous facts, or failing to adequately explain the chosen sentence and to
         include an explanation for any deviation from the Guidelines range. If 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.

United States v. Tomko, 562 F.3d 558, 567-68 (3d Cir. 2009) (en banc).

         At stage two, we consider a sentence’s substantive reasonableness. Our

substantive review requires us not to focus on one or two factors, but on the totality of the

circumstances. At both stages of our review, the party challenging the sentence has the

burden of demonstrating unreasonableness. Id. at 567 (internal quotations marks,

brackets, and citations omitted).

                                     III.   ANALYSIS

         Castanon argues that his sentence of thirty-seven months was substantively

unreasonable, and was based upon the U.S. Sentencing Guidelines calculation contained

in the PSR. Castanon also contends that the District Court failed to consider the

mitigating 18 U.S.C. § 3553(a) factors before imposing its sentence. 4 Castanon argues


4
    Castanon is contending that the District Court committed procedural error in sentencing,

                                               4
that the failure of the District Court to give meaningful weight and consideration to the

mitigating factors was unreasonable and erroneous as a matter of law, and contrary to the

holding in United States v. Booker, 543 U.S. 220 (2005).

       After the Supreme Court’s decision in Booker, sentencing Guidelines were no

longer deemed mandatory. Instead, they were deemed advisory. Since Booker, district

courts are required to follow a three-step process in determining the appropriate sentence

in this advisory scheme:

       (1) Courts must continue to calculate a defendant’s Guidelines sentence
       precisely as they would have before Booker.
       (2) In doing so, they must formally rul[e] on the motions of both parties and
       stat[e] on the record whether they are granting a departure and how that
       departure affects the Guidelines calculation, and tak[e] into account [our]
       Circuit’s pre-Booker case law, which continues to have advisory force.
       (3) Finally, they are required to exercise [] [their] discretion by considering
       the relevant [§ 3553(a)] factors, in setting the sentence they impose
       regardless whether it varies from the sentence calculated under the
       Guidelines.

United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006) (internal quotation marks and

citations omitted).

       Sentencing judges are statutorily required to state their reasons for imposing a

sentence, although a comprehensive, detailed opinion is not required. Rita v. United

States, 551 U.S. 338, 356 (2007). The judge must provide an explanation that is




although he does not actually articulate the argument in the brief. He also contends that
the sentence was substantively unreasonable. For those reasons, we examine the District
Court’s sentence for procedural error and substantive unreasonableness.

                                             5
sufficient to satisfy the appellate court that the district court considered the parties’

arguments and had a reasoned basis for exercising its own decision-making authority. Id.

Procedural Error

       The Probation Office prepared a PSR, in which it claimed that Castanon was

responsible for $698,321.92 in loss, based on the invoice amounts billed to various

insurance carriers. As reported in the PSR, the applicable guideline, § 2B1.1(a)(1),

carries a base offense level of seven. Because the loss was more than $400,000 but less

than $1,000,000, a fourteen level enhancement, pursuant to § 2B1.1(b)(1)(H), was

applicable. In addition, Castanon was found to be a manager or supervisor of the

criminal conduct, pursuant to § 3B1.1(b), resulting in a three-level enhancement. The

adjusted offense level was twenty-four, with a two-level reduction for acceptance of

responsibility, pursuant to § 3E1.1(a), and an additional one-level reduction for

acceptance of responsibility, pursuant to §3E1.1(b) (provided that a motion by the

Government would be granted at sentencing). The adjusted offense level was calculated

at twenty-one. The offense level of twenty-one, along with a criminal history category of

I, provides an advisory Guidelines range of thirty-seven to forty-six months of

imprisonment. Pursuant to § 3583(b)(2), the Court may impose a term of supervised

release of not more than three years. Castanon was sentenced to the bottom of the

advisory Guidelines range at thirty-seven months, with three years of supervised release.

       At the sentencing hearing, Castanon requested a downward variance, based on his

family obligations and his wife’s illness. The government requested a sentence within

                                               6
the applicable advisory Guidelines range, emphasizing that Castanon was the leader of

the criminal enterprise, and supervised his co-defendants. The government also pointed

out that in order to prevent any unwarranted sentencing disparities with the co-defendants

sentenced previously, a sentence within the advisory Guidelines was appropriate.

       At the sentencing hearing, the District Court heard the parties’ arguments and

Castanon’s testimony. It then reiterated the facts of the case, and addressed Castanon’s

argument regarding his unique circumstances. Although Castanon’s counsel pointed out

that Castanon was sixty-three years old, the District Court stated “[t]hat he is in his sixties

is really of no moment because he committed the crime while he was in his late fifties

and he knew what he was doing. His acts were [sic] not that of a young person who was

acting out of immaturity or impulse. He knew exactly what he was doing.” Appendix,

Vol. II, A41. Next, the District Court discussed and sympathized with the fact that

Castanon’s wife was seriously ill, but pointed out that the wife receives the care and

support of her adult daughters. Given that his wife is cared for, Castanon’s situation did

not “fall outside of what can be expected of within the mainstream of human events,

particularly since she has the available services of her mature children.” Id. at Vol. II,

A42.

       The District Court then explained the purpose of sentencing, which is to “provide

suitable punishment for the nature of the crime, to provide possible avenues for

rehabilitation, and to do all of this consistent with the needs of society and the interest of

overall justice, taking into account the previous history of the person.” Id. at A43. The

                                               7
District Court stated that Castanon needed to be punished for the crime, because he was

aware of his criminal actions, had engaged in them for three to four years, and had

actively recruited others to participate in the criminal activities.

       The District Court did not abuse its discretion in denying Castanon’s request

seeking a downward departure.

       Castanon also argues that the District Court did not properly consider the 18

U.S.C. § 3553(a) factors, including the nature and circumstances of the offense.

Sentencing courts must give meaningful consideration to all of the factors in 18 U.S.C. §

3553(a). See United States v. Olhovsky, 562 F.3d 530, 546 (3d Cir. 2009) (citing United

States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006)). A district court’s “failure to

consider the § 3553(a) factors” can create a procedurally unreasonable sentence. United

States v. Levinson, 543 F.3d 190, 195 (3d Cir. 2008) (quoting Gall, 552 U.S. at 51.)

       We find that the District Court adequately addressed the § 3553(a) factors. The

District Court stated at sentencing, “I have no desire to punish him [Castanon] more than

what is necessary. I believe what I am about to do is reasonable, consistent with his own

previous criminal history, together with his, with the nature of the crime. . .” Appendix,

Vol. II, A44. The District Court commented on the nature and circumstances of the

offense by stating “[t]he nature of the crime, as I said, was widespread and he netted

$300,000 by his own admission. That he invested it in his small business is really of no

moment as far as to what he did, other than to say that he had no right to do anything with

the money because he had no right to the money initially.” Appendix, Vol. II, A43-44.

                                               8
The District Court discussed Castanon’s supervisory role in the crime, and stated that it

would ensure that the punishment was “consistent with the nature of the crime which

affected all of society in the context of burdening society with added cost of living,

particularly of driving by fake claim.” Id.

Substantive Unreasonableness

       Castanon argues that the sentence is substantively unreasonable and is an abuse of

discretion. The substantive component of a reasonableness review requires the appellate

court to take into account the totality of the circumstances. United States v. Lychock,

578 F.3d 214, 217 (3d Cir. 2009). Although the appellate court considers the extent of

any variance from the advisory Guidelines range, it must also give due deference to the

district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the

variance. Id. The substantive reasonableness of each sentence must be evaluated on its

own terms, based on the reasons that the district court provided, in light of the particular

facts and circumstances of that case. Tomko, 562 F.3d at 574. In examining the totality

of the circumstances, we determine whether any reasonable court could have imposed the

same sentence as the District Court. See Lychock, 578 F.3d at 219 n.2.

       During the sentencing hearing, the District Court recounted Castanon’s crimes and

his particular role as a supervisor in the crime. The District Court discussed Castanon’s

circumstances at great length, considered the effect of the crime on the victims, and the

losses incurred, particularly when making its ruling regarding restitution. The District

Court also reviewed and commented on various letters of support on Castanon’s behalf.

                                               9
       The District Court considered and discussed the § 3553(a) factors. The record

contains numerous indications that the District Court evaluated all of the circumstances

of this crime and used its discretion in deciding that a downward departure was not

warranted in this case. In addition, the District Court considered the possibility of a

disparity in sentencing, pursuant to 3553(a)(6). The District Court noted “I certainly see

no reason that’s been advanced that I would consider meaningful in the context of

sentencing to give the present ringleader less than what I have given his accomplice

supporters.” Appendix, Vol. II, A43.

       The sentence imposed was well within the District Court’s broad discretion and

we find that a reasonable court could have rendered the same sentence. We have

emphasized that sentences falling within the advisory Guidelines range are more likely to

be reasonable than those falling outside of that range. See United States v. Olfano, 503

F.3d 244-45 (3d Cir. 2007). The sentence imposed here was not substantively

unreasonable and there is no abuse of discretion.

                                  IV.    CONCLUSION

       The District Court rendered a sentence that is both procedurally correct and

substantively reasonable. We will affirm the judgment of conviction.




                                             10
