NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT

                       ___________

                       No. 13-4524
                      ____________


            UNITED STATES OF AMERICA

                             v.

              MARCOS SERAFIN-ARROYO,
      a/k/a MARCO ANTONIO SERAFIN ARROYO,
          a/k/a ACEVEDO MURILLO-CLEOFAS,
         a/k/a JUAN M. HERNANDEZ ARROYO,
                    a/k/a JOHN DOE

                                      Marcos Serafin-Arroyo,
                                                         Appellant



      On Appeal from the United States District Court
          for the Western District of Pennsylvania
           (District Court No. 1-13-cr-00033-001)
      District Judge: Honorable Maurice B. Cohill, Jr.



        Submitted under Third Circuit LAR 34.1 (a)
                    on July 11, 2014


              (Opinion filed: August 5, 2014)


Before: RENDELL, CHAGARES and JORDAN, Circuit Judges
                                        OPINION


RENDELL, Circuit Judge:

       Marcos Serafin-Arroyo pled guilty to one count of Reentry of a Removed Alien, in

violation of 8 U.S.C. § 1326. The District Court sentenced him to 41 months

imprisonment, within the Guideline range. Serafin-Arroyo now appeals his sentence,

arguing that the District Court committed a procedural error by failing to give a sufficient

explanation for denying his request for a variance from the Guideline range. We will

affirm the District Court’s sentence.

                                        I. Background

       Serafin-Arroyo was driving on I-90 when he was pulled over for having a

defective temporary tag on his car. Serafin-Arroyo admitted to the apprehending officer

that he was in the country illegally, and as a result, was arrested. Serafin-Arroyo had

previously been deported due to a drug trafficking conviction in Nevada. He also has an

extensive criminal history, including multiple drug and drunk driving related offenses.

       Serafin-Arroyo’s base level offense was 8, but based on his more than 13 month

sentence for the Nevada drug conviction, he received a 16 level enhancement pursuant to

U.S.S.G. § 2L1.2(b)(1)(A). His offense level was reduced by 3 for acceptance of

responsibility, bringing his total offense level to 21. His 3 criminal history points resulted

in a criminal history category of II. Accordingly, his Sentencing Guideline range was 41-

51 months imprisonment.


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       At the sentencing hearing, Serafin-Arroyo did not contest the calculation of his

Guidelines range, but instead offered a policy argument to justify a downward variance.

He suggested that the District Court question the Sentencing Commission’s decision to

recommend the 16-level enhancement, and come to its own conclusion as to whether or

not there were good reasons for such an enhancement. Referencing Kimbrough v. United

States, Serafin-Arroyo asserted that a district court has the authority to vary from a

Guidelines range for policy reasons. 

, 101 (2007). According to Serafin-

Arroyo, the fact that the Commission never offered any reasoning to support this 16-level

enhancement justified the Court’s rejecting it. He urged that someone who reenters the

country illegally is not as dangerous as a “convicted felon who has a gun,” who would

only get a 6-level enhancement, thus further demonstrating the unjust nature of this

enhancement. (Serafin-Arroyo App. 43.)

       In response, the Government pointed to this Court’s holding in United States v.

Lopez-Reyes that interprets Kimbrough to allow for such a rejection of the Guidelines, but

does not require it. United States v. Lopez-Reyes, 

, 671 (3d Cir. 2009). The

Government further argued that Lopez-Reyes makes clear that the district court should not

have to delve into the history of the Guidelines to satisfy itself that they make sense, but

instead, can defer to the institutional authority of the Commission. Consequently, the

government urged, the District Court should accept the enhancement, because it is

appropriate in light of the criminal history of this Defendant.

       Following these arguments, the Court said it “ha[d] to agree with the government.”

(Serafin-Arroyo App. 50.) The Court sentenced Serafin-Arroyo to 41 months

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imprisonment, a sentence within the Guidelines range. The District Court gave particular

weight to Serafin-Arroyo’s repeated illegal reentries and his extensive criminal history,

explaining that this sentence was calculated to “discourage him from any attempted

reentries.” (Serafin-Arroyo App. 52.)

                                        II. Discussion

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

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). We review a

district court’s sentence for abuse-of-discretion. Gall v. United States, 

, 51

(2007). In United States v. Tomko, we recognized that it is not an abuse of discretion for a

district court at sentencing to hear extensive argument on an issue and then to rely on and

reference such arguments when immediately thereafter announcing the sentence. 

, 568-69 (3d Cir. 2009)(en banc).

       On appeal, Serafin-Arroyo argues that the District Court committed the procedural

error of “failing to adequately explain the chosen sentence” by not specifically stating its

reason for refusing the variance request in addition to the explanation offered for the

sentence itself. (Appellant’s Br. at 17.) Serafin-Arroyo urges that the District Court’s

“very brief ruling makes it unclear that the [D]istrict [C]ourt properly understood the

request for a variance” from the Guidelines range. (Appellant’s Br. at 3.)

       There is nothing in the record to suggest that the District Court failed to consider

or understand the request for a variance. Indeed, the Court listened to arguments on the

variance issue from both parties before stating it agreed with the Government. Moreover,

the Court specifically stated that it came to the sentence after “considering the parties’

                                              4
arguments and statements here today.” (Serafin-Arroyo App. 51.) This acknowledgement

does not suggest that the District Court did not “consider[] the parties’ arguments [or]

ha[ve] a reasoned basis for exercising his own legal decisionmaking authority.”

(Appellant’s Br. at 17. (quoting Rita v. United States, 

, 356 (2007))) To the

contrary, it is clear that the District Court fully understood the variance request and then

addressed it by agreeing with the Government’s position and citing Serafin-Arroyo’s

criminal history as the reason for choosing a within-range sentence. Accordingly, we find

that the District Court did not abuse its discretion.

                                       III. Conclusion

       For the foregoing reasons, the District Court’s sentence is affirmed.




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