Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-28-2006

USA v. Reyes
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1931




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"USA v. Reyes" (2006). 2006 Decisions. Paper 1528.
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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 05-1931


                           UNITED STATES OF AMERICA

                                          v.

                                    LIDIA REYES,

                                               Appellant


                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             (D.C. Crim. No. 04-cr-103-5)
                        District Judge: Honorable Yvette Kane


                              Argued December 15, 2005

        Before: SLOVITER, SMITH, and VAN ANTWERPEN, Circuit Judges.

                              (Filed: February 28, 2006)

James J. West (Argued)
West Long LLC
105 North Front Street, Suite 205
Harrisburg, PA 17101
       Counsel for Appellant

Thomas A. Marino, United States Attorney
Theodore B. Smith, III, Assistant U.S. Attorney (Argued)
Eric Pfisterer, Assistant U.S. Attorney
Office of the United States Attorney
228 Walnut Street
Harrisburg, PA 17108
       Counsel for Appellees
                                           ____

                               OPINION OF THE COURT


VAN ANTWERPEN, Circuit Judge.

       Appellant Lidia Reyes challenges the legality of her sentence in the United States

District Court for the Middle District of Pennsylvania, claiming that (1) a disparity in

duration between her sentence and those of her co-defendants rendered her sentence

unreasonable, and (2) the District Court failed to affirmatively show that it understood the

United States Sentencing Guidelines to be advisory pursuant to the Supreme Court’s then-

two-month-old decision in United States v. Booker, 

(2005). We need not

consider this second contention as Reyes abandoned it, through counsel, at argument. We

conclude that we possess jurisdiction to consider Reyes’ first contention because Reyes

alleges her sentence was “imposed in violation of law” as required by 18 U.S.C. §

3742(a)(1). See United States v. Cooper, ___ F.3d ___, 

(3d Cir. (February

14, 2006)). Having jurisdiction pursuant to 18 U.S.C. § 3742(a)(1), we will affirm.

                                             I.

       Pursuant to a written plea agreement, Reyes pleaded guilty on October 28, 2004 to a

one-count information charging her with conspiracy to distribute 100 grams of heroin. A

presentence report was prepared, to which Reyes, through counsel, filed objections. At her

March 14, 2005 sentencing hearing, the District Court overruled those objections, except that

it granted Reyes a two-level reduction in her offense level for acceptance of responsibility.

The District Court then sentenced Reyes to a term of imprisonment of 135 months, which

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was at the bottom of what the District Court determined to be a guideline imprisonment range

of 135 to 168 months. At Reyes’ sentencing, the District Court stated in pertinent part:

              THE COURT: Counsel, the basis for the sentence is as follows:
              The Court is adopting the factual findings and the guideline
              applications in the presentence report except as I have
              previously noted. The defendant is being credited with
              acceptance of responsibility and with the adjustment of drug
              amounts attributable to her. The original offense level is
              adjusted downward.

                  This is a very difficult case, [counsel], probably one of the
              most difficult ones I’ve had in a while. I know that [the
              defendant] has a number of compelling personal circumstances,
              but at the same time I think the Government has demonstrated
              that she has had a very serious involvement in the events that
              were brought before this Court, it’s not just the [‘]girlfriend
              of[’]. I mean, it’s clear to me that she was intimately involved
              in drug dealing herself. And for that reason, I think that
              protection of the community, deterrence, all of those factors
              weigh against departing from the guideline range. I think it’s a
              reasonable range under all of the circumstances.

              COUNSEL: Understood, Your Honor.

Reyes now claims a disparity in her length of sentence relative to those of her co-defendants.1

                                              II.

       “The courts of appeals review sentencing decisions for unreasonableness.” 

. “To determine if the court acted reasonably in imposing the resulting

sentence, we must first be satisfied the court exercised its discretion by considering the


   1
     Argument confirmed that, among her co-defendants, Reyes received the third
highest sentence. One male and one female each received a longer sentence than Reyes.
Reyes does not claim bad faith on the part of the government; she contends only that her
sentence is the result of being sentenced first. Argument also confirmed that, on some
occasions, Reyes distributed heroin while her children were with her in her car.
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relevant factors.” Cooper, 

, at *3 (citing 18 U.S.C. § 3553(a) factors).

While “[t]he record must demonstrate the trial court gave meaningful consideration to the §

3553(a) factors . . . . The court need not discuss every argument made by a litigant if an

argument is clearly without merit.” 

a court discuss and make findings as to

each of the § 3553(a) factors if the record makes clear the court took the factors into account

in sentencing.” 

a deferential standard, the trial court being in the best

position to determine the appropriate sentence.” 

Indeed, as this Court recently

stated in Cooper:

              “To sum up, appellants have the burden of demonstrating
              unreasonableness. A sentence that falls within the guidelines
              range is more likely to be reasonable than one outside the
              guidelines range. There are no magic words that a district judge
              must invoke when sentencing, but the record should demonstrate
              that the court considered the § 3553(a) factors and any
              sentencing grounds properly raised by the parties which have
              recognized legal merit and factual support in the record.”

                                             III.

       Here, as discussed, the District Court granted a two-level reduction and sentenced

Reyes to a term of imprisonment of 135 months, which was at the bottom of what the

District Court correctly determined to be a range of 135 to 168 months based on the

advisory guidelines. Reyes has not met her burden on appeal of proving this sentence

was unreasonable. The court addressed relevant § 3553(a) factors and singled out the

need for “deterrence” and “protection of the community.” The court found that the

sentence was in “a reasonable range under all of the circumstances.” “Taken as a whole, .


                                              4
. . . We find the District Court’s judgment was reasonable under Booker.” 

stated, counsel abandoned at argument Reyes’ second contention, namely that,

at sentencing, the District Court failed to provide sufficient proof that it knew the

guidelines were now advisory. Even had counsel not abandoned this argument, it is

without merit. “[W]e [will not] require district judges to routinely state by rote that they

have read the Booker decision or that they know the sentencing guidelines are now

advisory.” 

“There are no magic words that a district judge must invoke when

sentencing.” 

In addition, here, we must reject Reyes’ premise that the District

Court failed to express its understanding that the guidelines were advisory. The District

Court made plain reference not only to its power to “depart[] from the guideline range[,]”

but also to the § 3553(a) factors.

       Accordingly, we will affirm the March 14, 2005 sentence of the District Court.




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