NOT PRECEDENTIAL


UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

                          ________

                         No. 11-2335
                         _________


              UNITED STATES OF AMERICA

                              v.

                      STEPHEN RIOS,
                               Appellant

                          ________

        On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                  (D.C. No. 2-10-cr-00095-001)
        District Judge: Honorable Michael M. Baylson

                           _______

          Submitted Under Third Circuit LAR 34.1(a)
                      October 31, 2012

    Before: SLOVITER, AMBRO, and BARRY, Circuit Judges

                  (Filed: November 2, 2012)
                            _____

                          OPINION
                           ______
SLOVITER, Circuit Judge.

       Stephen Rios appeals his judgment of sentence after pleading guilty pursuant to a

plea agreement to twenty-three counts of mail fraud in violation of 18 U.S.C. § 1341

(2006). Rios challenges both the District Court’s determination of his offense level and

its upward variance in sentencing. Because Rios’ challenge to his offense level is barred

by his appellate waiver, and because the District Court did not abuse its discretion in

weighing sentencing factors under 18 U.S.C. § 3553, we affirm the judgment of the

District Court.1

                                              I.

       For nearly four years, Rios participated in an insurance fraud scheme that involved

the staging of fraudulent car accidents. Rios used his position as a licensed chiropractor

to write reports falsely describing injuries and symptoms purportedly suffered by victims

of the accidents. He submitted false bills to insurance companies and helped other

participants obtain thousands of dollars in settlements in civil suits.

       On November 23, 2010, Rios pled guilty, pursuant to a written plea agreement, to

twenty-three counts of mail fraud in violation of 18 U.S.C. § 1341. The agreement

stipulated to a total offense level of sixteen, which included an eight-level increase under

U.S.S.G. § 2B1.1(b)(1) due to a stipulated loss amount between $70,000 and $120,000.

The agreement left sentencing to the discretion of the District Court, and permitted it to




       1
        The District Court had jurisdiction under 18 U.S.C. § 3231, and we have
appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
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disregard any stipulation contained in the agreement. The agreement also contained a

waiver of appeal except in certain circumstances.

       During sentencing the District Court found that, based on the Presentence

Investigation Report, the loss amount attributable to Rios was $178,687.12, raising Rios’

total offense level to eighteen. Inasmuch as Rios did not have a prior criminal

conviction, the guideline imprisonment range was twenty-seven to thirty-three months for

each count. After hearing allocution from Rios and argument from counsel, the District

Court found that the guideline sentence would not reflect the significance of Rios’

conduct. It sentenced Rios to forty-eight months imprisonment on each count. Rios’

appeal raises two challenges to his sentence.

                                             II.

       First, Rios claims that the District Court erred when it calculated his offense level

based on the Presentence Investigation Report. This claim, however, is barred by the

waiver of appeal in his plea agreement. That waiver only has three exceptions: (1) if the

“sentence on any count of conviction exceeds the statutory maximum for that count;” (2)

if “the sentencing judge erroneously departed upward pursuant to the Sentencing

Guidelines;” and (3) if “the sentencing judge, exercising the Court’s discretion pursuant

to United States v. Booker, 

(2005), imposed an unreasonable sentence

above the final Sentencing Guideline range determined by the Court.” App. at 14a.

None of these exceptions permits Rios to appeal the District Court’s determination of his

offense level.



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       We enforce knowing and voluntary appellate waivers unless their enforcement

would cause a miscarriage of justice. See United States v. Mabry, 

, 237-39

(3d Cir. 2008). Rios does not contest that he entered the waiver knowingly and

voluntarily, nor does he argue that its enforcement will result in a miscarriage of justice.2

His claim that the District Court miscalculated his total offense level is therefore barred.

                                             III.

       Rios’ second claim is that the District Court’s sentence was unreasonable because

it did not properly consider the sentencing factors outlined in 18 U.S.C. § 3553(a). We

review a District Court’s sentencing for abuse of discretion, Gall v. United States, 

, 41 (2007), and we will affirm “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, 

, 568 (3d Cir. 2009) (en banc).

       Rios claims that the District Court “placed undue importance on the role of

deterrence in sentencing,” and that it failed to adequately consider the arguments

advanced by his counsel. Appellant’s Br. at 22-23. The District Court’s lengthy

sentencing discussion belies both of Rios’ claims. In its discussion, the District Court

addressed the § 3553(a) factors extensively. It considered the nature and circumstances

of the offense, noting the significant scope and lucrative nature of the insurance fraud

scheme. It also addressed Rios’ history and characteristics, remarking on his supportive

family and lack of criminal record, but also observing that he abused his license and

       2
        Rios’ constitutional claim under Apprendi v. New Jersey, 

(2000), is
meritless because he was not sentenced above the twenty-year statutory maximum on any
count of mail fraud. See Blakely v. Washington, 

, 303-04 (2004).
                                              4
authority as a healthcare professional to help encourage the filing of false insurance

claims. The District Court ultimately rested its sentence on the need for deterrence, but

also on the need to punish Rios for his greed, abuse of authority and substantial

involvement in a large-scale fraudulent scheme.

         In addition to appropriately weighing the § 3553(a) factors, the District Court gave

adequate consideration to arguments advanced by Rios’ counsel. A court need not

expressly adopt or reject all arguments made on behalf of a defendant. See Rita v. United

States, 

, 358-59 (2007). In this case, the record shows that the District Court

considered Rios’ role in the scheme, the negative consequences he had already suffered,

and the positive testimony of his family members. In sum, the District Court’s reasoning

is persuasive, and sufficient. It therefore did not abuse its discretion when it sentenced

Rios at an above-Guidelines level.

                                              IV.

         For the reasons set forth, we will affirm the sentence imposed by the District

Court.




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