United States v. Victor Agosto-Cruz

• Court: Court of Appeals for the Third Circuit
• Decided: March 19, 2025
• Docket: 24-1281
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 24-1281 ______________ UNITED STATES OF AMERICA

v.

VICTOR AGOSTO-CRUZ, Appellant ______________ On Appeal from the United States District Court for the District of Delaware (D.C. Criminal No. 1:22-cr-00120-001) District Judge: Honorable Colm F. Connolly ______________ Submitted Under Third Circuit L.A.R. 34.1(a) February 7, 2025

Before: RESTREPO, MONTGOMERY-REEVES, and SCIRICA, Circuit Judges.

(Opinion filed: March 19, 2025) ______________

OPINION ∗ ______________

MONTGOMERY-REEVES, Circuit Judge.

Victor Agosto-Cruz challenges the substantive reasonableness of his within-range

sentence under the United States Sentencing Guidelines (the “Guidelines”). Because we

∗ This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. cannot conclude that no reasonable court would have imposed his ultimate sentence

based on the reasons provided by the District Court, we will affirm.

I. BACKGROUND

After four controlled purchases of suspected heroin from Agosto-Cruz, the U.S.

Drug Enforcement Administration (the “DEA”) surveilled his home and obtained arrest

and search warrants. Officers eventually arrested Agosto-Cruz and searched his person,

residence, and stash house. Agosto-Cruz had numerous bags of heroin and crack cocaine

on his person, 1.4 grams of crack at his residence, and about 45 grams of crack cocaine,

24 grams of heroin, and 32 grams of fentanyl at his stash house.

Agosto-Cruz was charged with possession with intent to distribute heroin, cocaine

base, and cocaine. See 21 U.S.C. §§ 841(a)(1) & (b)(1)(C). He pleaded guilty to all three

counts. A U.S. Probation Officer completed a Presentence Investigation Report and

calculated Agosto-Cruz’s total offense level as 21 with a criminal history category of I,

resulting in an applicable Guidelines range of 37 to 46 months.

Agosto-Cruz requested a downward variance to 24 months in part because he was

ineligible for release to a halfway house due to his immigration status. Agosto-Cruz also

raised his mother’s death, his status as a father, and his limited criminal history as

mitigating factors. The Government countered that one’s immigration status can be

either a mitigating or an aggravating factor and that this case was the latter given Agosto-

Cruz’s illegal drug dealing. As such, the Government requested 37 months’

2 imprisonment. The District Court imposed the maximum within-range sentence of 46

months. Agosto-Cruz timely appealed.

II. DISCUSSION 1

To succeed in his challenge to the substantive reasonableness of his sentence,

Agosto-Cruz must show that “no reasonable sentencing court would have imposed the

same sentence on [him] for the reasons the district court provided.” United States v.

Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc) (first citing Gall v. United States, 552

U.S. 38, 51 (2007); and then citing United States v. Bungar, 478 F.3d 540, 543 (3d Cir.

2007)). 2 This inquiry rests not on examination of “one or two factors, but on the totality

of the circumstances.” Id. at 567 (first citing Gall, 552 U.S. at 51; and then citing United

States v. Howe, 543 F.3d 128, 137 (3d Cir. 2008)). And, in conducting this inquiry, we

“must ‘give due deference to the district court’s determination that the § 3553(a) factors,

1 The District Court had jurisdiction over this case under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). 2 We review the procedural and substantive reasonableness of Agosto-Cruz’s sentence under the deferential abuse-of-discretion standard. Tomko, 562 F.3d at 567 (first citing Gall, 552 U.S. at 51; and then citing United States v. Wise, 515 F.3d 207, 217–18 (3d Cir. 2008)). The party challenging the sentence carries the burden of demonstrating unreasonableness. Id. (citing United States v. Cooper, 437 F.3d 324, 332 (3d Cir. 2006) (en banc)). Agosto-Cruz only challenges the substantive reasonableness of his sentence. Because neither party argues that the District Court’s sentence is procedurally unsound, we will proceed to substantive reasonableness.

3 on a whole,’ justify” Agosto-Cruz’s sentence. Id. at 568 (quoting Gall, 552 U.S. at 51)

(citing Bungar, 478 F.3d at 543).

In conducting this substantive reasonableness inquiry, “we look to ‘whether the

final sentence, wherever it may lie within the permissible statutory range, was premised

upon appropriate and judicious consideration of the relevant factors.’” United States v.

Handerhan, 739 F.3d 114, 124 (3d Cir. 2014) (quoting United States v. Young, 634 F.3d

233, 237 (3d Cir. 2011)). But “[a]s we have previously explained, ‘a district court’s

failure to give mitigating factors the weight a defendant contends they deserve’ does not

make a sentence substantively unreasonable.” United States v. Seibert, 971 F.3d 396, 402

(3d Cir. 2020) (quoting Bungar, 478 F.3d at 546) (citing Young, 634 F.3d at 243), as

amended by 991 F.3d 1313 (3d Cir. 2021). “It is the trial court that ‘sees and hears the

evidence, makes credibility determinations, [and] has full knowledge of the facts and

gains insights not conveyed by the record.’” Id. (alteration in original) (quoting Tomko,

562 F.3d at 561). “We thus defer to the District Court’s application of the § 3553(a)

factors.” Id. (citing Bungar, 478 F.3d at 543).

Agosto-Cruz argues that the District Court’s sentence “plac[ed] too much

emphasis on [his] citizenship status and too little emphasis [on his] mitigating factors[.]”

Opening Br. 3. But the District Court considered all of Agosto-Cruz’s proposed

mitigating factors—his minimal criminal history, his mother’s death, and his desire to be

present in the lives of his children—before concluding that Agosto-Cruz’s decision to sell

cocaine and heroin warranted a within-Guidelines sentence. True, the District Court

discussed Agosto-Cruz’s citizenship status, finding that Agosto-Cruz came “to this

4 country to do harm to the people who live here” unlike other immigrants. App. 95. The

District Court then sentenced Agosto-Cruz to 46 months’ imprisonment in light of “the

serious nature of the offense, the need to send a strong message of deterrence to [Agosto-

Cruz] personally[,] and to the public at large.” App. 97. But because the District Court’s

meaningful consideration of the § 3553(a) factors prevent Agosto-Cruz from showing

that no other reasonable sentencing court would have imposed the same sentence, we

cannot conclude that the sentence is substantively unreasonable. United States v. Merced,

603 F.3d 203, 215–16 (3d Cir. 2010); see also Cooper, 437 F.3d at 329; United States v.

Levinson, 543 F.3d 190, 196 (3d Cir. 2008).

III. CONCLUSION

For the reasons discussed above, we will affirm the District Court’s judgment.