UNITED STATES of America v. Oscar CRUZ-BARRIENTOS, Appellant, 321 F. App'x 150

OPINION WEIS, Circuit Judge. Defendant was convicted of illegally reentering the United States after having been convicted of an aggravated felony and having been deported in violation of 8 U.S.C. § 1326(a), (b)(2). He was sentenced to a term of 41-months imprisonment, at the bottom of the applicable Guidelines range. At the sentencing hearing, defendant requested a variance based in part on the severity of conditions in the Passaic County jail where he was confined for some months while awaiting sentencing. In addition, he relied on his family ties and his exemplary conduct since re-entering the country.

On appeal, defendant contends that the District Court committed procedural errors in sentencing and imposed a substantively unreasonable sentence. We conclude that the District Court did not err procedurally. Although the Court used the word “policy” when discussing the defendant’s incarceration at the Passaic County jail, we are convinced that the Court adequately considered all of the factors listed in 18 U.S.C. § 3553(

a) before imposing the sentence, see United States v. Williams, 458 F.3d 312, 320-21 (3d Cir.2006) (“[ujnless a judge employs a personal sentencing policy ... rather than individually considering the facts of each case, a judge may be less lenient towards certain types of crimes”) (internal citations omitted), and exercised its discretion in denying a variance. Our review of the record satisfies us that the Court also sufficiently explained its sentencing decision, including its reasons for denying defendant the requested variance. See United States v.

Levinson, 543 F.3d 190, 196-97 (3d Cir.2008) (district courts must consider all nonfrivolous arguments of the defendant and government and sufficiently explain the sentencing decision). Defendant presents a sympathetic case, but we are not free to re-sentence him. The Guidelines range, although not conclusive, represents a considered view of the appropriate punishment for the violation of the law. See Rita v.

United States, 551 U.S. 338, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007) (the Guidelines reflect the United States Sentencing “Commission’s ... judgment as to what is an appropriate sentence for a given offender”). Under our deferential standard of review, we do not conclude that a 41-month term of imprisonment is substantively unreasonable. See United States v. Greenidge, 495 F.3d 85, 102 (3d Cir.2007) (review for substantive reasonableness “is to a great degree deferential”) (internal punctuation omitted). Accordingly, we will affirm the Judgment of the District Court.