                                                    NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT
                          ______

                           No. 12-1519
                             ______

                 UNITED STATES OF AMERICA

                                 v.

                         JAIME DURAN,
                                 Appellant

                              ______

                             12-1534
                             ______


                 UNITED STATES OF AMERICA

                                 v.

                 CESAR CAMACHO-ROSALES,
                                Appellant
                          ______

           On Appeal from the United States District Court
               for the Eastern District of Pennsylvania
     (D.C. Criminal Nos. 2-10-cr-00104-001; 2-10-cr-00104-003)
            District Judge: Honorable Lawrence F. Stengel
                               ______

         Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                          June 11, 2013

Before: SCIRICA, HARDIMAN and VAN ANTWERPEN, Circuit Judges

                       (Filed: June 12, 2013)
                                          ______

                               OPINION OF THE COURT
                                       ______

VAN ANTWERPEN, Circuit Judge

       Jaime Duran (“Duran”) pleaded guilty to one count each of drug offenses under 21

U.S.C. §§ 846 and 841(a)(1), and a related offense under 21 U.S.C. § 843(b). Cesar

Camacho-Rosales (“Camacho-Rosales”) pleaded guilty to one count each of drug

offenses under 21 U.S.C. §§ 846 and 841(a)(1).1 Duran and Camacho-Rosales both

challenge the District Court‟s calculation of their sentences under the Sentencing

Guidelines.

                                   I. Duran’s Appeal

                                   A. Duran’s Conduct

       The facts regarding Duran‟s conduct are not in dispute. In March 2007, Duran

met with an individual known as K.W., a Philadelphia-area drug dealer. After the

meeting, Duran and Alberto Torres (“Torres”) agreed to supply K.W. with kilogram-

weight quantities of cocaine from California. Duran told K.W. that he could supply K.W.

with cocaine, beginning with loads of twenty-five kilograms. Duran informed K.W. that

Torres would be K.W.‟s contact in the Philadelphia area, and instructed K.W. to arrange

housing for Torres. K.W. did so.



1
 For both defendants, the violations of 21 U.S.C. §§ 846 and 841(a)(1) involved,
respectively, conspiracy to distribute and distribution of five or more kilograms of
cocaine. Section 843(b) of Title 21 of the United States Code punishes use of a
communication facility in connection with the commission of a felony.
                                             2
       In spring 2007, K.W. received the first shipment of cocaine from Duran. For this

first transaction, and all subsequent transactions, K.W. drove to Delaware, where he

would meet Torres. To conduct the transactions, K.W. and Torres would not remove the

cocaine from Torres‟s car; rather, they would simply switch cars, with K.W. driving

away in the car containing the cocaine. A few months later, the arrest of another dealer

caused shipments from Duran to K.W. to slow down. K.W. then traveled to California to

meet with Duran at Duran‟s residence to discuss future shipments. Duran told K.W. that

shipments would resume shortly if K.W. agreed to assume a portion of the debt Duran

incurred when the other drug dealer was arrested. K.W. grudgingly agreed to this

arrangement. Shipments began anew, at first in quantities of twelve to fifteen kilograms

and then increasing to forty to fifty kilograms, and continued until K.W.‟s arrest in 2009.

After K.W.‟s arrest, Duran contacted K.W.‟s wife to attempt to collect money that K.W.

owed to Duran for approximately sixty-six kilograms of cocaine.

       Unbeknownst to Duran, an individual with whom he began meeting after K.W.‟s

arrest was a cooperating witness for the FBI (“CW”). Beginning in November 2009,

Duran conducted telephonic negotiations with the CW regarding collection of K.W.‟s

debt, all of which were recorded by the FBI. In January 2010, Duran, Torres, and

Camacho-Rosales traveled to Philadelphia to meet with the CW to reestablish distribution

of cocaine from California to Philadelphia. Camacho-Rosales traveled to Philadelphia

from California at the request of Duran and Torres.

       During one meeting, Torres drove Duran to meet with the CW. While Duran met

with the CW and discussed the distribution scheme, Torres waited in the car. At a later

                                             3
meeting, Duran met the CW alone, to discuss the quantities of cocaine Duran would

supply to the CW, and the CW‟s efforts to recoup the money for Duran from K.W.‟s

customers. The next time they met, Duran and Camacho-Rosales drove in one car, and

Torres drove separately in a rental car. Duran informed the CW he needed the rental car

because he needed someone to follow him to protect him as he drives. Eventually, Duran

instructed the CW to meet at a parking lot in Delaware; the CW called Duran when he

arrived. Duran told the CW to park next to Torres, and Torres placed a box full of

cocaine in the CW‟s car.

       At the last meeting, Duran once again drove with Camacho-Rosales, while Torres

followed in the rental car. The purpose of this meeting was for Duran to collect payment

from the CW for the cocaine Duran and Torres had earlier provided. While Duran and

Camacho-Rosales met with the CW inside a restaurant, Torres waited outside in his

vehicle. Inside, Duran discussed the CW‟s payment of the money he owed him, and his

plans for paying back his (Duran‟s) suppliers, as well as the next shipment of cocaine.

The three were arrested in the parking lot of the restaurant.

       In Duran‟s Pre-Sentence Report (“PSR”), the Probation Office recommended a

three-level upward adjustment pursuant to U.S.S.G. § 3B1.1(b).2 The District Court

expressed doubts as to the number of participants in the criminal activity, but found that

Duran had “leadership, and management, and supervisory roles in this conspiracy,” and


2
 “If the defendant was a manager or supervisor (but not an organizer or leader) and the
criminal activity involved five or more participants or was otherwise extensive, increase
by 3 levels.”

                                              4
therefore applied a two level adjustment under U.S.S.G. § 3B1.1(c).3 Duran challenges

this determination on appeal.

                                 B. Duran’s Challenge4

       We review a District Court‟s determination of “whether the facts „fit‟ within what

the Guidelines prescribe” for clear error. United States v. Richards, 674 F.3d 215, 219-

20 (3d Cir. 2012).5

       Duran argues the District Court erred in applying the leadership enhancement. He

cites to Application Note 2, which states that “[t]o qualify for an adjustment under this

section, the defendant must have been the organizer, leader, manager, or supervisor of

one or more participants.” U.S.S.G. § 3B1.1 cmt. n. 2 (emphasis added). This is

consistent with our precedent stating that “for § 3B1.1 to apply, „the defendant must have

exercised some degree of control over others involved in the commission of the


3
 “If the defendant was an organizer, leader, manager, or supervisor in any criminal
activity other than described in (a) or (b), increase by 2 levels.”
4
 The District Court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction
pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
5
  Duran argues that because the facts are not in dispute, the issue is purely a legal one,
and thus a de novo standard should apply. The Supreme Court explicitly rejected this
argument in Buford v. United States, 532 U.S. 59, 63-64 (2001), and this Court did the
same in Richards, 647 F.3d at 218. In Buford, the Court noted that considerations
beyond the existence of factual disputes justified a deferential standard of review. For
example, a district court‟s sentencing determination is entitled to deference because the
district court deals with Guidelines calculations on a more regular basis and thus has an
institutional advantage when making sentencing determinations. Buford, 532 U.S. at 64-
65. Furthermore, if an issue is a fact-specific one, there is “limited value of uniform
court of appeals precedent,” which is one of the justifications for de novo review. Id. at
65-66. Bearing in mind these considerations, a deferential standard of review is
appropriate.
                                             5
offense.‟” United States v. Phillips, 959 F.2d 1187, 1191 (3d Cir. 1992) (quoting United

States v. Fuller, 897 F.2d 1217, 1220 (1st Cir. 1990)); see also United States v. King, 21

F.3d 1302, 1305 (3d Cir. 1994) (“The direction and control of others is a recurrent theme

in legal definitions of the terms „manager‟ and „supervisor.‟”)

       Duran claims (1) there is insufficient evidence that he had a leadership role in the

conspiracy and (2) even if he had a leadership role, there is insufficient evidence that he

exercised any leadership, managerial, or supervisory authority over another participant.

             1. Duran Was an “Organizer, Leader, Manager, or Supervisor”

       Duran argues that the evidence only shows he was an “essential member” of the

conspiracy, not an organizer, leader, manager, or supervisor. This claim fails.

       Section 3B1.1 does not define “organizer,” “leader,” “manager,” or “supervisor.”

This Court has determined that “a manager or supervisor is one who „exercise[s] some

degree of control over others involved in the offense.‟” United States v. Chau, 293 F.3d

96, 103 (3d Cir. 2002) (quoting Fuller, 897 F.2d at 1220). The commentary to § 3B1.1

provides a list of factors for courts to consider when attempting to distinguish “a

leadership and organizational role from one of mere management or supervision.”

U.S.S.G. § 3B1.1 cmt. n.4. Many of our sister Courts of Appeals consider these factors

when determining whether § 3B1.1(c) applies. See, e.g., United States v. Skinner, 986

F.2d 1091, 1096-97, n.1 (7th Cir. 1993) (considering Note 4 factors when analyzing

application of § 3B1.1(c) and citing other Courts of Appeals that do the same). These

factors include: “the exercise of decision making authority, the nature of participation in

the commission of the offense . . . the degree of participation in planning or organizing

                                             6
the offense, the nature and scope of the illegal activity, and the degree of control and

authority exercised over others.” U.S.S.G. § 3B1.1 cmt. n.4. Application of these factors

demonstrates that Duran was a supervisor or manager.

       Duran “exercised decision making authority” by dictating the amount of cocaine

he would supply in each shipment, organizing and arranging meetings with the CW,

negotiating with K.W. and later the CW, and establishing and directing the manner in

which physical transfers of the cocaine would occur. “The nature of [his] participation in

the offense” further supports this conclusion. As the individual who orchestrated the

physical transactions between K.W. and Torres, and then the CW and Torres, and who

conducted all of the meetings with the CW, Duran‟s participation in the conspiracy was

significant. Similarly, his role in the negotiations and in structuring the transactions

indicates he had a high “degree of participation in planning [and] organizing” the

conspiracy. Finally, the fact that he ordered K.W. to provide housing to Torres, that he

had Torres live in Philadelphia to serve as his liaison with K.W. while he (Duran)

remained at the “headquarters” of the operation in California, and that he had Torres

handle all of the physical transfers of cocaine on his behalf, indicates that Duran

exercised “control and authority” over others.

      2. K.W. and Torres Were “Participants” Over Whom Duran Was a Manager

       Duran argues that even if he was a manager or supervisor, the evidence does not

establish that he exercised such authority over a participant, which is required by

application note two of § 3B1.1. Duran argues that K.W. was not a participant because



                                              7
he was simply a consumer and not a member of the conspiracy, and that Duran did not

exercise authority over Torres because Torres was his equal within the conspiracy.

       A participant is “a person who is criminally responsible for the commission of the

offense, but need not have been convicted. A person who is not criminally responsible

for the commission of the offense (e.g., an undercover law enforcement office) is not a

participant.” U.S.S.G. § 3B1.1 cmt. n.1. This Court has determined that a seller

providing drugs to a consumer for resale on credit “is sufficient evidence of a conspiracy”

under 21 U.S.C. § 846. United States v. Iglesias, 535 F.3d 150, 156 (3d Cir. 2008). We

also determined that “the fact that [defendant] invited [coconspirator] to Apartment A

with drugs in plain view reflects a level of mutual trust consistent with conspiracy.” Id.

       In this instance, Duran provided bulk quantities of cocaine to K.W. on credit, in a

relationship identical to that in Iglesias. Furthermore, the fact that, while conducting the

physical transfers, K.W. and Torres did not merely transfer the cocaine and the money,

but rather swapped cars, “reflects a level of mutual trust consistent with conspiracy.”

Iglesias, 535 F.3d at 156. Similarly, K.W. was instructed by Duran to provide housing

for Torres, who was indisputably a member of the conspiracy; again this indicates a level

of mutual trust beyond an arms-length buyer-seller relationship.

       Duran mistakenly relies on cases from the Courts of Appeals for the Eighth Circuit

and the Ninth Circuit to argue K.W. was not a participant. In United States v. Jones, the

court assessed whether the defendant was an “organizer” or “leader” under U.S.S.G. §

3B1.1(a), not whether the defendant was an “organizer,” “leader,” “manager,” or



                                              8
“supervisor” under § 3B1.1(c).6 160 F.3d 473, 482-83 (8th Cir. 1998). The court found

that the defendant‟s role as a wholesale seller to a consumer who in turn sold to various

other drug dealers did not establish that he was the “leader” or “organizer” of that

consumer. Id. at 483. Not only was Jones concerned with the more stringent “leader” or

“organizer” standard, it did not determine whether the consumer was a “participant.”

Therefore, it lends no support to Duran‟s argument that K.W. was not a participant.

       Precedent from the Court of Appeals for the Ninth Circuit is similarly unhelpful.

In United States v. Egge, the court did hold that “merely purchasing drugs from the seller,

without more, does not qualify that customer as a participant for the purposes of the

section 3B1.1 enhancement.” 223 F.3d 1128, 1133 (9th Cir. 2000). However, the court

made clear that this rule only applied “[w]here the customers are solely end users of

controlled substances.” Id. Therefore, “to qualify as a participant, a customer must do

more than simply purchase small quantities of a drug for his personal use. The facts must

support an inference that the seller knew or should have known that the customer would

subsequently distribute the drugs to others outside his household.” Id. Duran knew that

when he was supplying K.W. with multiple shipments of twenty-five to fifty kilograms of

cocaine, K.W. would “distribute the drugs to others outside his household.”

       Duran argues that even if K.W. was a participant, Duran did not act as K.W.‟s

“supervisor” or “manager.” This argument fails. As described above, the essence of a


6
 Under the Guidelines, a “supervisor” or “manager” has less authority than an
“organizer” or “leader.” See U.S.S.G. § 3B1.1 cmt. n.4 (“In distinguishing a leadership
and organization role from one of mere management or supervision . . . .” (emphasis
added)).
                                             9
supervisory or managerial relationship is whether the defendant “„exercise[s] some

degree of control over others involved in the offense.‟” Chau, 293 F.3d at 103 (quoting

Fuller, 897 F.2d at 1220). Duran informed K.W. that he would be dealing with Torres

and instructed K.W. to obtain housing for Torres in the Philadelphia area. K.W. followed

both of these directives; he arranged for Torres‟s housing, and he transacted business

directly with Torres. Furthermore, when the arrest of another drug dealer created an

obstacle in the conspiracy, Duran decided to resume shipments to K.W. only if K.W.

agreed to assume some of Duran‟s debt. This transaction demonstrates that Duran

dictated the terms of the conspiracy, and K.W. obeyed those terms. By forcing K.W. to

assume part of his debt, Duran “exercise[d] some degree of control” over K.W. This

belies the notion that K.W. was a separate “entity,” not beholden to Duran. Rather, this

indicates an organization in which Duran was above K.W. in a vertical hierarchy, not

adjacent to him in a horizontal relationship.

       Finally, Torres was a participant over whom Duran exercised supervisory or

managerial authority. Duran argues Torres was an equal, not an inferior, in the

conspiracy. However, the fact that Torres served as Duran‟s driver to several meetings,

that Torres waited outside while Duran conducted negotiations and meetings, that Torres

drove a rental car behind Duran to protect Duran, that Torres went to the Philadelphia

area to deal with K.W. while Duran remained near “headquarters” in California, and that

Torres handled all of the physical transfers of cocaine on behalf of Duran, indicates that

Duran exercised “some degree of control” over Torres.



                                                10
      Since K.W. and Torres were both participants in the criminal activity, and since

Duran exercised supervisory or managerial authority over both of them, application of the

§ 3B1.1(c) two-level enhancement was not clear error.

                            II. Camacho-Rosales’s Appeal

                           A. Camacho-Rosales’s Conduct

      At the request of Torres, Camacho-Rosales traveled to Philadelphia on January 25,

2010. In Philadelphia, Camacho-Rosales attended approximately three meetings with

Torres, Duran, and the CW to discuss the distribution of cocaine from Torres, Duran, and

Camacho-Rosales to the CW. On January 27, 2010, two days after arriving in the area,

Camacho-Rosales, Torres, and Duran met with the CW to discuss the distribution of

approximately 24 kilograms of cocaine to the CW. Camacho-Rosales drove Duran to this

meeting, while Torres followed in a rental car. Later that day, Torres met with the CW

and transferred 23.94 kilograms of cocaine into the CW‟s vehicle.     On January 28, 2010,

Camacho-Rosales again drove Duran to a meeting with the CW. Torres again followed

in a rental car. Camacho-Rosales and Duran entered a restaurant to meet with the CW to

obtain the CW‟s payment for the cocaine Duran, Torres, and Camacho-Rosales had

provided the CW. The three were arrested outside of the restaurant.

      Camacho-Rosales pleaded guilty to one count each of violating 21 U.S.C. §§ 846

and 841(a)(1). At his sentencing hearing, he raised several arguments for departure. On

appeal, Camacho-Rosales raises two challenges to his sentence: (1) substantive due

process was violated by the increase of his criminal history score, which rendered him



                                           11
ineligible for the safety valve provision of U.S.S.G. § 5C1.27 and (2) he was entitled to an

offense level reduction based on his limited participation in the conspiracy, pursuant to

U.S.S.G. § 3B1.2.8 The District Court rejected these arguments, but did grant a

downward variance of one month, and sentenced Camacho-Rosales to the mandatory

minimum of 120 months.9 Camacho-Rosales appeals.

                            B. Camacho-Rosales’s Challenge

         Camacho-Rosales argues that the District Court violated substantive due process

by assessing him one criminal history point for a misdemeanor conviction, and then

assessing two additional points because Camacho-Rosales committed the instant offense

while serving probation for the misdemeanor conviction. Due to the resulting criminal

history score of three points, Camacho-Rosales was ineligible for the safety valve

provision in U.S.S.G. § 5C1.2. If not for the additional two points, Camacho-Rosales

argues, his Guidelines range would have been 108-135 months, twelve months below the

mandatory minimum required by 21 U.S.C. § 841(b)(1)(A).10 According to Camacho-


7
  This provision permits the District Court to sentence in accordance with the Guidelines,
regardless of any statutory mandatory minimum, if certain conditions are satisfied,
including: “the defendant does not have more than 1 criminal history point.” U.S.S.G. §
5C1.2(a)(1).
8
 Under this provision, a defendant‟s offense level is decreased by four levels if he “was a
minimal participant in any criminal activity” and by two levels “if the defendant was a
minor participant in any criminal activity.” U.S.S.G. § 3B1.2.
9
    The Guidelines range was 121 months to 151 months.
10
  Pursuant to this subsection, any person convicted of distributing five or more kilograms
of cocaine is subject to a mandatory sentence of incarceration of ten years. Camacho-
Rosales pleaded guilty to distribution of 23.94 kilograms of cocaine.
                                             12
Rosales, his due process rights were violated because, under the Sentencing Guidelines,

the penalty he suffers for committing the instant offense while on probation for

commission of a misdemeanor is the same penalty applied to someone on probation for

commission of a felony—an assessment of two additional history points. This argument

fails.

         A sentencing scheme will survive a due process challenge if it “bears a rational

relationship to a legitimate governmental purpose.”11 United States v. John, 936 F.2d

764, 766 n.2 (3d Cir. 1991), abrogated on other grounds by Guidelines Amendments,



11
   As this Court has noted in the past, the standards of review applicable to due process
challenges to legislation and to executive acts are different. Cnty. Concrete Corp. v. Twp.
of Roxbury, 442 F.3d 159, 169 (3d Cir. 2006). When a legislative act is challenged, we
determine whether a legitimate government interest is rationally served by the statute. Id.
(citing Nicholas v. Pa. State Univ., 227 F.3d 133, 139 (3d Cir. 2000)). When non-
legislative action is challenged, it violates substantive due process if “„arbitrary,
irrational, or tainted by improper motive,‟ or if „so egregious that it shocks the
conscience.‟” Id. (quoting Nicholas, 227 F.3d at 139).
        The Sentencing Guidelines are quasi-legislative, and so for purposes of the due
process analysis, we treat them like a statute. See Mistretta v. United States, 488 U.S.
361, 393 (1989) (noting “quasi-legislative power of the [Sentencing] Commission”);
United States v. Angel-Guzman, 506 F.3d 1007, 1013 (10th Cir. 2007) (referring to
Sentencing Commission as “quasi-legislative body”); see also United States v. Jenkins,
275 F.3d 283, 288 (3d Cir. 2001) (noting in other context that “[w]e interpret United
States Sentencing Guidelines the same way we interpret statutes”). This decision is
further supported by the decisions of other Courts of Appeals applying the same standard.
See United States v. Bacon, 646 F.3d 218, 221-22 (5th Cir. 2011) (per curiam) (“A
guideline violates due process only if it has no rational basis or is subject to arbitrary
application.”); United States v. Meskini, 319 F.3d 88, 91 (2d Cir. 2003) (“To sustain a
federal sentencing statute against a due process . . . challenge, courts need only find that
Congress had a rational basis for its choice of penalties.” (internal citations and quotation
marks omitted)); United States v. Bredy, 209 F.3d 1193, 1197 (10th Cir. 2000) (“Due
process requires only that a sentencing scheme be rational.”); United States v. Marshall,
908 F.2d 1312, 1320 (7th Cir. 1990) (“Defendants‟ sentences bear rational relations to
their offenses. That is all the Constitution requires . . . .”).
                                              13
U.S.S.G. App. C at 303-04, amend. 433 (effective Nov. 1, 1991) and at 337-38, amend.

461 (effective Nov. 1, 1992), as recognized in United States v. Taylor, 98 F.3d 768, 770-

71 (3d Cir. 1996). “Those attacking the rationality of the legislative classification [under

a substantive due process challenge] have the burden „to negative every conceivable basis

which might support it.‟” N.J. Retail Merchs. Ass’n v. Sidamon-Eristoff, 669 F.3d 374,

398 (3d Cir. 2012) (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993))

(alterations omitted). Camacho-Rosales has not met his heavy burden.

       Contrary to Camacho-Rosales‟s argument, the Sentencing Guidelines do impose

different penalties based on the severity of the prior offense. See U.S.S.G. § 4A1.1 (a)-

(c) (providing a three point increase for each sentence of imprisonment over thirteen

months, a two point increase for each prior sentence of at least sixty days, and a one point

increase for each other prior sentence). Even though § 4A1.1(d) increases the criminal

history score by two points if “the defendant committed the instant offense while under

any criminal justice sentence,” the gravity-oriented approach embodied in subsections

(a), (b), and (c) ensures that all defendants are not subject to the same penalty regardless

of the seriousness of their prior offenses. To the extent Camacho-Rosales‟s constitutional

claim hinges on an allegation that individuals with prior convictions for misdemeanors

are treated the same as those with prior convictions for felonies, this argument is

incorrect. Under the Guidelines, the more serious the prior conviction, the more criminal

history points the defendant receives.12


12
  The Guidelines also took into consideration the gravity of Camacho-Rosales‟s prior
offense in assessing his criminal history points. A misdemeanor conviction for careless
                                             14
       In addition, subsection (d) is not concerned with the gravity of the underlying

crime; the offensive conduct is the fact that the defendant, while under “any criminal

justice sentence” committed “any part of the instant offense (i.e., any relevant conduct).”

U.S.S.G. § 4A1.1 cmt. n.4 (emphasis added). This subsection is concerned with the

defendant‟s noncompliance with supervisory authority, not the gravity of the crime which

caused him to be supervised. See id. (“[A] „criminal justice sentence‟ means a sentence

countable under § 4A1.2 . . . having a custodial or supervisory component, although

active supervision is not required for this subsection to apply.”). The broad language of

the application note, and the nexus to supervision, indicate that disobedience while under

supervision is the focus of the subsection. Therefore, Camacho-Rosales‟s argument is

inapposite; since the focus is the defendant‟s conduct while under supervision, it is

irrelevant why the defendant was being supervised in the first place. Whether the

supervision was imposed for a misdemeanor reckless driving or a felony robbery, the

noncompliance with supervisory authority is the same. There is a “conceivable basis” to

support this determination: an individual who has in the past demonstrated a lack of

respect for criminal justice supervision should be treated more severely than one who has

not. See U.S.S.G. §4A1.1 introductory cmt. (noting “[a] defendant‟s record of past

criminal conduct is directly relevant” for sentencing purposes).




or reckless driving is only “counted” if it is of sufficient gravity—the sentence imposed
for the conviction must have been over one year of probation, or at least thirty days‟
incarceration. U.S.S.G. § 4A1.2(c). Since Camacho-Rosales‟s conviction for reckless
driving resulted in two years‟ probation, his conduct was sufficiently serious to warrant
assessment of a criminal history point.
                                            15
       The Courts of Appeals have routinely determined that sentencing schemes which

increase punishment based on past conduct have a rational basis, even if that conduct

occurred decades prior. See, e.g., United States v. Bacon, 646 F.3d 218, 221-22 (5th Cir.

2011) (per curiam) (goal of deterring recividism provided rational basis for Guidelines‟

consideration of conduct occurring thirty years prior); United States v. Garner, 490 F.3d

739, 743 (9th Cir. 2007) (stating, while upholding consideration of thirty-five year old

conduct, that “[t]he courts have, for some time, recognized that such prior conduct

demonstrates an increased danger of recidivism”); United States v. Wicks, 132 F.3d 383,

389 (7th Cir. 1997) (upholding application of federal “Three Strikes” statute because

“Congress rationally could decide to impose an exceptionally severe sentence on

individuals with two prior convictions for serious violent felonies”). Courts of Appeals

have also upheld federal sentencing schemes which increase sentences based on past

felony convictions, even though some states may classify certain conduct as a felony,

while others as a misdemeanor. See, e.g., United States v. Brandon, 521 F.3d 1019, 1027

(8th Cir. 2008) (noting application of heavier penalty for those with prior convictions for

“felonies,” even where same conduct constituted misdemeanor in other jurisdictions, did

not violate due process because heavier penalty “served Congress‟ legitimate purpose of

deterring repeat offenders”); United States v. Tremble, 933 F.2d 925, 930-31 (11th Cir.

1991) (same).

       Given this authority, the Sentencing Commission‟s determination that a

defendant‟s sentence should be increased if he expressed disobedience to criminal justice

supervision, regardless of the reason for that supervision, has a rational basis. Camacho-

                                            16
Rosales has not met his burden of establishing that the assessment of one criminal history

point for his prior misdemeanor conviction and of two criminal history points for the

commission of the instant offense while on probation for that misdemeanor conviction

violates substantive due process.13

       Since Camacho-Rosales‟s due process rights were not violated, he is not eligible

for the safety-valve created by U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f). As a result,

there is no possibility Camacho-Rosales could receive a sentence below the statutory

minimum of 120 months, which the District Court imposed. Therefore we do not discuss

Camacho-Rosales‟s second claim, pertaining to the minimal/minor participant adjustment

in U.S.S.G. § 3B1.2, because it is moot. See Burkey v. Marberry, 556 F.3d 142, 149 (3d

Cir. 2009) (noting issue is moot if its resolution would require court to “„declare

principles or rules of law which cannot affect the matter in issue in the case before it.‟”

(quoting Mills v. Green, 159 U.S. 651, 653 (1895))).

13
  Camacho-Rosales also raises, as an afterthought, a due process challenge to the
Guideline‟s determination that certain misdemeanors are “counted” when calculating a
criminal history score, while others are excluded. See U.S.S.G. § 4A1.2(c)(1) (listing
certain offense which are only to be counted when the sentence imposed was over one
year of probation or at least thirty days of imprisonment). He seems to be arguing that it
violates due process that only certain reckless driving misdemeanors, those resulting in a
sufficiently severe penalty, are “counted.” However, Camacho-Rosales does not claim
that the severity of the prior sentence is an improper consideration when sentencing; in
fact, he spends much of his brief arguing that the Sentencing Guidelines improperly
preclude consideration of prior offense gravity. Section 4A1.2(c) of the Guidelines only
excludes certain misdemeanor reckless driving convictions because they are
insufficiently severe, as reflected by the sentence imposed. Camacho-Rosales cites no
authority to support his claim that such a consideration violates due process, and thus
cannot sustain his burden to demonstrate that the scheme lacks a rational basis.
        To the extent Camacho-Rosales argues that the scheme in general, rather than
applied to his specific case, is improper, this claim fails. Defendants are not “entitled to
assert third parties‟ rights to better sentencing practices.” Marshall, 908 F.2d at 1320.
                                             17
                                      III. Conclusion

      For the foregoing reasons, the convictions and sentences imposed on Duran and

Camacho-Rosales by the District Court are affirmed.




                                          18
