USA v. Jose Rodriguez

Filing

AMENDED PRECEDENTIAL OPINION Coram: CHAGARES, RESTREPO and ROTH, Circuit Judges. Total Pages: 14. Judge: RESTREPO Authoring.

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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-3232
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UNITED STATES OF AMERICA
v.
JOSE ANGEL RODRIGUEZ, Appellant
______________
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE MIDDLE DISTRICT
OF PENNSYLVANIA
(D.C. No. 1-10-cr-00005-001)
District Judge: Honorable Christopher C. Conner
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Argued: January 25, 2017
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Before: CHAGARES, RESTREPO, and ROTH,
Circuit Judges.
(Opinion Filed: April 28, 2017)
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James V. Wade
Ronald A. Krauss
[ARGUED]
Office of Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
Counsel for Appellant
Bruce D. Brandler
Scott R. Ford
Carlo D. Marchioli
[ARGUED]
United States Attorney’s Office
Middle District of Pennsylvania
228 Walnut Street, Suite 220
Harrisburg, PA 17108
Counsel for Appellee
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OPINION OF THE COURT
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RESTREPO, Circuit Judge.
Appellant Jose Rodriguez appeals as substantively
unreasonable the District Court’s discretionary denial of his
motion for a sentencing reduction under 18 U.S.C.
§ 3582(c)(2). While this would ordinarily be a routine
appeal, it is not here because the Government raises a novel
challenge to our appellate jurisdiction. The Government
contends that we lack jurisdiction to consider whether a ruling

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on a Section 3582(c)(2) motion was substantively
unreasonable. We conclude that we have jurisdiction under
28 U.S.C. § 1291. We will affirm.
I
In 2012, Rodriguez pled guilty to conspiracy to
distribute cocaine, 21 U.S.C. § 846, and conspiracy to possess
firearms in furtherance of drug trafficking, 18 U.S.C.
§ 924(o). The drug quantity was more than 15 and less than
50 kilograms of cocaine. Rodriguez was also responsible for
multiple drug-related robberies. His sentencing range was
120-150 months. The District Court ultimately sentenced
Rodriguez to 123 months’ imprisonment and 3 years’
supervised release.
In 2016, Rodriguez filed a motion for a sentencing
reduction under 18 U.S.C. § 3582(c)(2). The basis for the
motion was Amendment 782 of the Sentencing Guidelines.
Amendment 782 reduced by two the offense levels in Section
2D1.1 for drug quantities that trigger a mandatory minimum
sentence. U.S.S.G. Supp. App. C, Amend. 782. Amendment
782 is retroactive, provided that any reduction take effect on
or after November 1, 2015. U.S.S.G. Supp. App. C, Amend.
788; U.S.S.G. § 1B1.10(d); U.S.S.G. § 1B1.10, cmt. n.6. 1
1

All references to Section 1B1.10 refer to the 2015
edition of the Guidelines Manual, which was effective
November 1, 2015. See U.S.S.G. § 1B1.10, cmt. n.8
(providing that “the court shall use the version of this policy
statement that is in effect on the date on which the court
reduces the defendant’s term of imprisonment as provided by
18 U.S.C. § 3582(c)(2)”).

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The District Court found Rodriguez eligible for an
Amendment 782 sentencing reduction, but denied relief in the
exercise of its discretion. The District Court found that
Rodriguez had engaged in “an unyielding and escalating
pattern of drug-related and violent behavior which has been
undeterred by prior and substantial terms of imprisonment.”
App. 12. Rodriguez now appeals. He asserts that his
unmodified sentence is substantively unreasonable, based
upon the factors listed in 18 U.S.C. § 3553(a) and his postsentencing conduct.
II
The District Court had jurisdiction under 18 U.S.C.
§ 3231. United States v. Styer, 573 F.3d 151, 153 n.2 (3d Cir.
2009). We have jurisdiction to address our own jurisdiction.
United States v. United Mine Workers of Am., 330 U.S. 258,
291 (1947). We hold that we have jurisdiction over the
merits of this appeal under 28 U.S.C. § 1291, as explained
below. Styer, 573 F.3d at 153 n.2. 2 We review the District
Court’s decision to deny Rodriguez’s sentencing reduction
motion for abuse of discretion. United States v. Thompson,
825 F.3d 198, 203 (3d Cir. 2016) (citation omitted).

III

2

Because we conclude that we have jurisdiction under
28 U.S.C. § 1291, we need not determine whether we also
have jurisdiction under 18 U.S.C. § 3742.

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This case involves a motion for a sentencing reduction
under 18 U.S.C. § 3582(c)(2). Section 3582(c)(2) is an
“exception to the general rule of finality” over sentencing
judgments, set forth at 18 U.S.C. § 3582(b). Dillon v. United
States, 560 U.S. 817, 824 (2010). Section 3582(c)(2) applies
to amendments to the Sentencing Guidelines. It provides that
a district court may reduce a sentence if two conditions are
met: (1) the defendant was sentenced “based on a sentencing
range that has subsequently been lowered by the Sentencing
Commission” and (2) “a reduction is consistent with
applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2); see also United States
v. Flemming, 617 F.3d 252, 257 (3d Cir. 2010).
The “policy statement[]” referenced in Section
3582(c)(2) is Section 1B1.10 of the Sentencing Guidelines.
See Dillon, 560 U.S. at 827. Section 1B1.10, in turn, contains
its own, more specific requirements for a sentencing
reduction. Under Section 1B1.10, the amendment to the
Sentencing Guidelines must be retroactive.
U.S.S.G.
§ 1B.1.10(a)(2)(A), (d). It must also “have the effect of
lowering the defendant’s applicable guideline range,” based
upon a prescribed method of calculation.
U.S.S.G.
§ 1B.1.10(a)(2)(B).
If these eligibility requirements are met, a district
court has the discretion to grant a sentencing reduction “after
considering the factors set forth in section 3553(a) to the
extent that they are applicable.” 18 U.S.C. § 3582(c)(2); see
also Flemming, 617 F.3d at 257. In addition, a district court
“shall consider the nature and seriousness of the danger to
any person or the community” and “may consider post-

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sentencing conduct of the defendant.” U.S.S.G. § 1B1.10,
cmt. n.1(B)(ii-iii); see also Flemming, 617 F.3d at 257.
IV
Rodriguez is indisputably eligible for a Section
3582(c)(2) sentencing reduction under Amendment 782. The
District Court, however, denied relief in the exercise of its
discretion. The Government contends that we lack appellate
jurisdiction over Rodriguez’s claim that his unmodified
sentence is substantively unreasonable. We disagree. For the
reasons below, we have jurisdiction over the District Court’s
final order under 28 U.S.C. § 1291.
A
This Court routinely exercises jurisdiction over
appeals just like this one. Although the vast majority of these
decisions are unpublished, we have held in an analogous,
published case, Styer, that “[w]e have jurisdiction under
28 U.S.C. § 1291.” 573 F.3d at 153 n.2. In Styer, we not
only asserted jurisdiction, but also reached the merits of the
defendant’s claim that his unmodified sentence was
substantively unreasonable in light of the Section 3553(a)
factors. Id. at 154-55. This ruling on the merits implies that
we were satisfied as to our jurisdiction. See Trent Realty
Assocs. v. First Fed. Sav. & Loan Ass’n of Phila., 657 F.2d
29, 36 (3d Cir. 1981).
Styer notwithstanding, the Government argues that
there is no binding precedent establishing our appellate
jurisdiction because our prior treatment was cursory.

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Assuming arguendo that Styer is not binding, we will explain
why we have jurisdiction under Section 1291. 3
At the outset, we note that three other Circuits have
also concluded after a full analysis that jurisdiction lies under
Section 1291. Jones, 846 F.3d at 370; United States v.
Washington, 759 F.3d 1175, 1180-81 (10th Cir. 2014); United
States v. Dunn, 728 F.3d 1151, 1156-58 (9th Cir. 2013). At
least two more Circuits have, in recent decisions, asserted
jurisdiction under Section 1291, without explanation. United
States v. Hernandez-Marfil, 825 F.3d 410, 411 (8th Cir. 2016)
(per curiam); United States v. Purnell, 701 F.3d 1186, 1188
(7th Cir. 2012) (jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742). The only Circuit to reach a contrary
holding is the Sixth Circuit, which held sua sponte that it
lacks jurisdiction to review for substantive reasonableness a
ruling on a Section 3582(c) motion. United States v. Bowers,

3

At oral argument, the Government described the
origins of its novel challenge to our jurisdiction. The
Government’s argument was prompted by proceedings in an
analogous case, United States v. Jones, 846 F.3d 366 (D.C.
Cir. 2017). In Jones, the District of Columbia Circuit sua
sponte ordered supplemental briefing on jurisdiction. The
Government filed a supplemental brief in Jones. It then filed
an almost verbatim copy of the Jones brief as its principal
brief in Rodriguez’s case. See Consolidated Suppl. Br. for
Appellee, United States v. Jones, 846 F.3d 366 (D.C. Cir.
2017) (Nos. 15-3063, 15-3064), 2016 WL 6092381. Jones
has since been decided, against the Government. Jones, 846
F.3d at 370 (exercising jurisdiction under Section 1291).

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615 F.3d 715, 717 (6th Cir. 2010). No Circuit has followed
this 2010 decision. 4
B
We turn now to the substance of our jurisdictional
ruling, beginning with the text of 28 U.S.C. § 1291. Section
1291 provides that the courts of appeals have “jurisdiction of
appeals from all final decisions of the district courts.”
28 U.S.C. § 1291. “Final judgment in a criminal case means
sentence. The sentence is the judgment.” Berman v. United
States, 302 U.S. 211, 212 (1937). As we have stated, “[a]
judgment of sentence is a final order . . . . This court not only
has the [p]ower to review an appeal after sentence of
conviction, we have the [d]uty to review it as a final order,
28 U.S.C. § 1291.” United States v. Moskow, 588 F.2d 882
(3d Cir. 1978). Accordingly this Court regularly exercises
jurisdiction over sentencing appeals under Section 1291 (in
addition to 18 U.S.C. § 3742). See, e.g., United States v.
Tomko, 562 F.3d 558, 564 n.5 (3d Cir. 2009) (en banc);
United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007);
United States v. Charles, 467 F.3d 828, 830 n.4 (3d Cir.
2006); United States v. Cooper, 437 F.3d 324, 327 n.4 (3d
Cir. 2006), abrogated on other grounds by Rita v. United
States, 551 U.S. 338, 346-47 (2007).
4

Bowers conflicts with the settled law of our Court.
Specifically, Bowers begins with the premise that 28 U.S.C.
§ 1291 is not a source of jurisdiction for sentencing appeals.
Bowers, 615 F.3d at 719 (citation omitted). In contrast, our
Court regularly hears sentencing appeals under both
28 U.S.C. § 1291 and 18 U.S.C. § 3742. See infra Section
IV.B.

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Our many decisions exercising Section 1291
jurisdiction over sentencing appeals are analogous to the
instant case, which is an appeal of a ruling on a Section
3582(c)(2) motion. Like sentencing judgments, rulings on
Section 3582(c)(2) motions are “unquestionably ‘final
decisions of [a] district[] court’ because they close the
criminal cases once again.” Jones, 846 F.3d at 369 (alteration
in original) (quoting 28 U.S.C. § 1291). Thus, the judgment
of the District Court denying Rodriguez’s sentencing
reduction motion was a final order under Section 1291.
C
This, however, does not fully resolve our inquiry as to
whether we have Section 1291 jurisdiction over Rodriguez’s
appeal. This is because another, narrower jurisdictional
statute—18 U.S.C. § 3742—could potentially interfere with
our Section 1291 jurisdiction. For the reasons below, we hold
that it does not.
1
Section 3742(a) provides that a defendant may appeal
“an otherwise final sentence” under enumerated
circumstances; i.e. if the sentence:
(1) was imposed in violation of
law;
(2) was imposed as a result of an
incorrect application of the
sentencing guidelines; or

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(3) is greater than the sentence
specified in the applicable
guideline range to the extent that
the sentence includes a greater
fine or term of imprisonment,
probation, or supervised release
than the maximum established in
the guideline range, or includes a
more limiting condition of
probation or supervised release
under section 3563(b)(6) or
(b)(11) than the maximum
established in the guideline range;
or
(4) was imposed for an offense for
which there is no sentencing
guideline
and
is
plainly
unreasonable.
18 U.S.C. § 3742(a).
Our Section 1291 jurisdiction may be limited in some
cases by Section 3742. As a general principle, an appellant
cannot resort to Section 1291’s “broad grant of jurisdiction to
circumvent statutory restrictions on sentencing appeals in
§ 3742.” Jones, 846 F.3d at 369. More specifically, “the
presence of Section 3742 might pose an obstacle” to review
under Section 1291 if Section 3742’s “provisions barred

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review for reasonableness” and the statute were otherwise
applicable. Id. (citation omitted). 5
Section 3742 is not an “obstacle” to our Section 1291
jurisdiction because it does not bar review for reasonableness.
To the contrary, Section 3742(a)(1) allows review for
reasonableness because “an unreasonable sentence is
‘imposed in violation of law’ under 18 U.S.C. § 3742(a)(1).”
Cooper, 437 F.3d at 327 (applying United States v. Booker,
543 U.S. 220 (2005)); see also United States v. Jackson, 467
F.3d 834, 838 (3d Cir. 2006) (holding that post-Booker “we
have jurisdiction to review all criminal sentences for
reasonableness”).
The fact that Section 3742 permits
reasonableness review “completely moots the theory that use
of § 1291 would undercut § 3742’s limitations.” Jones, 846
F.3d at 369. 6

5

As set forth below, Section 3742 does not bar review
for reasonableness. This is sufficient to establish that Section
3742 is not a barrier to our jurisdiction under Section 1291.
As such, we need not reach the question whether Section
3742 is otherwise applicable to a Section 3582(c)(2)
sentencing reduction motion.
6

The Tenth Circuit also considered the potential
interaction between Section 1291 and Section 3742, but
framed the question slightly differently. United States v.
Hahn, 359 F.3d 1315, 1321 (10th Cir. 2004) (en banc). Hahn
asked whether Section 3742 “impliedly repeal[ed],” in
relevant part, Section 1291. Id. (quoting Branch v. Smith, 538
U.S. 254, 273 (2003) (plurality)). It concluded that it did not.
Id. at 1322. Although, like Jones, we do not employ the

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2
The Government attempts to refute our jurisdictional
holding by drawing upon this Court’s precedent regarding
downward departures. A departure is a sentence outside the
Guideline range “given for reasons contemplated by the
Guidelines themselves (under U.S.S.G. § 4A1.3 and Ch. 5,
Pt. K).” Jackson, 467 F.3d at 837 n.2. 7 As the Government
emphasizes, we lack jurisdiction to review a district court’s
discretionary denial of a downward departure. See, e.g.,
United States v. Ruiz, 536 U.S. 622, 627 (2002); Jackson, 467
F.3d at 839; Cooper, 437 F.3d at 333; United States v.
Denardi, 892 F.2d 269, 272 (3d Cir. 1989).
Our downward departure cases are distinguishable. As
we held in Cooper, this distinction turns upon Congress’s
intent in enacting Section 3742. As to a downward departure,
Sections “3742(a) and (b) reflect Congress’s intent to
foreclose review of a sentencing court’s decision not to
depart” under the relevant Guidelines. Cooper, 437 F.3d at
333 (citations omitted).
But as to a substantively
unreasonable sentence, Section 3742 does not evince
Congress’s intent to foreclose review. This is because “in
enacting §§ 3742(a)(1) and (b)(1), Congress could not have
contemplated that the sentencing scheme it adopted would
later be declared advisory” in Booker. Id. at 328.
implied repeal doctrine here, our holding is consistent with
Hahn.
7

A “departure” is different from a “variance,” which
is a sentence outside the Guidelines range under Booker.
Jackson, 467 F.3d at 837 n.2.

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To synthesize these two points, Ҥ 3742 works in
tandem with § 1291 [potentially] limiting judicial review of
only those sentencing decisions that are part of Congress’s
sentencing Guidelines scheme but leaving intact the general
grant of jurisdiction over sentencing appeals under § 1291.”
Briana Lynn Rosenbaum, Righting the Historical Record: A
Case for Appellate Jurisdiction over Sentences for
Reasonableness under 28 U.S.C. § 1291, 62 Hastings L.J.
865, 918 (2011).
Thus, we have jurisdiction over
Rodriguez’s appeal under Section 1291, notwithstanding
Section 3742.
V
We now reach the merits of Rodriguez’s appeal. We
conclude that the District Court did not impose a
substantively unreasonable sentence based upon the
18 U.S.C. § 3553(a) factors, the threat to public safety and
Rodriguez’s post-sentencing conduct. See U.S.S.G. § 1B1.10,
cmt. n.1(B)(ii-iii). Rodriguez participated in a vast drug
trafficking conspiracy and a series of violent, armed
robberies, including a robbery of a drug dealer’s family. He
has an extensive criminal history. Rodriguez committed the
underlying crimes soon after his release from a lengthy prison
sentence for drug and firearm offenses. Although Rodriguez
has had no misconduct in prison, the District Court
considered this fact and concluded that it does not outweigh
the public safety risk. The District Court also considered the
fact that Rodriguez accepted responsibility, and concluded
that he has been appropriately rewarded. “This weighing and
consideration of multiple factors, expressly left to a court’s
discretion, is exactly the type of ‘reasoned appraisal’ to which

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we defer on review.” Styer, 573 F.3d at 155 (quoting
Kimbrough v. United States, 552 U.S. 85, 111 (2007)).
VI
The judgment of the District Court will be affirmed.

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