                                                NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            _____________

                                No. 10-4758
                               _____________

                        UNITED STATES OF AMERICA

                                      v.

                         MARVIN ANDRE HENDY,
                          a/k/a Donald M. Peterson

                            Marvin Andre Hendy,
                                            Appellant
                              _____________

               On Appeal from the United States District Court
                     for the District Court of New Jersey
                    District Court No. 03-09-cr-00485-001
              District Judge: The Honorable Anne E. Thompson
                               ______________

              Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                            September 14, 2011

         Before: SLOVITER, SMITH, and NYGAARD, Circuit Judges

                          (Filed: September 16, 2011)
                           _____________________

                                  OPINION
                           _____________________

SMITH, Circuit Judge.
         Marvin Andre Hendy, a citizen and native of Guyana, entered this

country in 1984 pursuant to a visa. After he was convicted of several armed

robberies, he was deported in 1993. Hendy then illegally returned to the United

States, only to be deported again in 2004. Undeterred, he reentered the United

States. Although he was apprehended by law enforcement authorities in 2007, he

avoided deportation proceedings by providing a false name. In 2009, however, an

indictment was returned by a grand jury charging Hendy with illegal reentry after

deportation in violation of Title 8, U.S.C. §§ 1326 (a) and (b)(2).

         Hendy exercised his right to a jury trial. During trial, he stipulated to

only one of the elements of the offense of illegally reentering the United States,

thereby requiring the government to prove its case beyond a reasonable doubt as to

the other elements.     Although Hendy testified, the jury found him guilty as

charged. At sentencing, the United States District Court for the District of New

Jersey imposed a 63-month sentence, which fell at the lower end of Hendy’s

guidelines range. This timely appeal followed.1

         Hendy contends that the District Court erred at sentencing by failing to

reduce his offense level by two points pursuant to U.S.S.G. § 3E1.1 based on his

acceptance of responsibility.      Hendy acknowledged at sentencing that the

acceptance of responsibility adjustment is generally not available if a defendant

1
   The District Court had jurisdiction under 18 U.S.C. § 3231. The Court of Appeals has
jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
                                          2
puts the government to its burden of proof.         U.S.S.G. § 3E1.1, cmt. n.2.

Nonetheless, he argued that the adjustment was warranted because he had

stipulated to one element of the case and did not vigorously oppose the

government’s proof of the other elements of the offense of illegal reentry. After

presenting further remarks about the guideline calculation and in an effort to set

forth a revised guideline range for the Court’s consideration, Hendy’s counsel

asked the Court if it accepted his argument. The Court indicated that it was not

persuaded.

         According to Hendy, the District Court erred by failing to find that he met

the requirements for a § 3E1.1 adjustment. Whether a defendant has accepted

responsibility is a factual finding reviewable for clear error. United States v.

Lessner, 498 F.3d 185, 199 (3d Cir. 2007).        In light of the District Court’s

familiarity with the trial proceeding, which included Hendy’s testimony, and the

argument offered at sentencing, we find no error, clear or otherwise, in the Court’s

factual determination that Hendy did not merit an acceptance of responsibility

adjustment.

         We turn to Hendy’s challenge to the reasonableness of his sentence. We

review for procedural error and substantive reasonableness, applying an abuse of

discretion standard to both inquiries. United States v. Tomko, 562 F.3d 558, 567

(3d Cir. 2009) (en banc).     Hendy contends that his sentence is procedurally

                                         3
unreasonable because the District Court: (1) did not rule on Hendy’s request for a

variance; (2) failed to address his argument that it should grant a variance because

U.S.S.G. § 2L1.2’s 16-level enhancement lacked an empirical justification, and its

harshness had been recognized by the courts as evidenced by the percentage of

downward departures granted at sentencings; and (3) did not adequately explain its

sentence.

            The sentencing transcript before us belies Hendy’s contentions. After

discussing several of the factors set forth in 18 U.S.C. § 3553(a), the Court

declared that the “characteristics of this defendant would not warrant the kind of

lenient sentence that counsel for the defendant has argued for.” By our lights, this

constituted a ruling on his request for a variance. Immediately following this

ruling, the Court acknowledged Hendy’s assertion that application of § 2L1.2 was

harsh and resulted in disparate sentences. She declined, however, to deviate, as

courts had in other illegal reentry cases, on the basis that a sentence within the

guideline range of 63 to 78 months seemed “perfectly appropriate in [Hendy’s]

case.” Finally, the Court explained that given all the sentencing factors and in light

of Hendy’s characteristics, a guideline sentence was “as lenient a sentence as the

court could, in good conscience, impose.” In sum, the District Court’s sentence

was procedurally sound.




                                          4
         Finally, Hendy contends that his within-guideline sentence is

substantively unreasonable. We disagree. Because it cannot be said that “no

reasonable sentencing court would have imposed the same sentence on [Hendy] for

the reasons the district court provided[,]” we will affirm. Tomko, 562 F.3d at 568.




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