United States of America v. ARCIDES SANCHEZ-LEOCADIO a/k/a PRIMO Arcides Sanchez-Leocadio

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 07-2421
UNITED STATES OF AMERICA
v.
ARCIDES SANCHEZ-LEOCADIO
a/k/a PRIMO
Arcides Sanchez-Leocadio
Appellant
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. Action No. 05-cr-00547)
District Judge: Hon. Anita B. Brody
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 31, 2008
BEFORE: SLOVITER, STAPLETON, and TASHIMA,*
Circuit Judges
(Opinion Filed November 4, 2008)
*Hon. A. Wallace Tashima, Senior United States Circuit Judge for the Ninth
Circuit, sitting by designation.

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OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant Arcides Sanchez-Leocadio argues that the District Court erred when it
denied his request for a downward departure based on the disparity between the crack and
powder cocaine sentencing Guidelines or, alternatively, that this Court should remand for
resentencing in light of the subsequent revisions to the relevant Guidelines. For the
reasons stated below, we will affirm the sentence imposed by the District Court.
I.
Because we write only for the parties who are familiar with the factual context and
procedural history of the case, we set forth only those facts necessary to our analysis.
At sentencing, Sanchez-Leocadio accepted the presentence report calculation of
the Guideline range: 87-108 months. He sought a downward departure, however, based
on the oft-cited 100:1 disparity between the crack and powder cocaine sentencing
regimes. The District Court explained that it was “certainly considering that disparity.”
Ultimately, however, the District Court refused to reject that disparity and depart from the
resulting advisory range because it found no “rationale [for doing so] in this particular
case.” (App. at 31-32.) Instead, it sentenced Sanchez-Leocadio to the minimum sentence
recommended by the Guidelines: 87 months of incarceration.

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We have jurisdiction over sentencing appeals pursuant to 18 U.S.C. § 3742(a), and
review the ultimate sentence imposed by the District Court for reasonableness. United
States v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006). We review the District Court’s legal
conclusions without deference and its factual findings for clear error. United States v.
Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc); United States v. Lloyd, 469 F.3d 319,
321 (3d Cir. 2006).
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II.1
Sanchez-Leocadio is right insofar as he argues that the District Court could have
considered the 100:1 ratio in formulating the sentence, and that it would be reversible
error had it imposed the sentence while laboring under a mistaken belief to the contrary.
E.g., United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). However, Sanchez-
Leocadio is wrong insofar as he argues that the instant record demonstrates that the
District Court was laboring under such a mistaken belief; the District Court clearly and
repeatedly acknowledged that it could deviate from the Guidelines range based on the
disparity – it just chose not to do so. This was entirely permissible.
Alternatively, Sanchez-Leocadio insists that he should be resentenced pursuant to
the revised U.S.S.G. § 2D1.1, which went into effect on November 1, 2007. See U.S.S.G.
§ 2D1.1 (Nov. 1, 2007). The rub here is that because Sanchez-Leocadio was sentenced
on May 4, 2007, nearly seven months before the revision became effective, his demand
must be directed to the District Court in the first instance via a motion pursuant to 18
U.S.C. § 3582(c)(2) – not to this Court on direct appeal. See United States v. Wise, 515
F.3d 207, 221 (3d Cir. 2008).
Finally, Sanchez-Leocadio argues that the disparity between the crack and powder

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cocaine sentencing ranges violates his constitutional rights. However, because there is a
rational basis for this disparity, and the disparity does not violate the Eighth Amendment
prohibition on cruel and unusual punishment, this claim fails. Chapman v. United States,
500 U.S. 453, 464-65 (1991); United States v. Frazier, 981 F.2d 92, 96 (3d Cir. 1992).
III.
The judgment of the District Court will be affirmed.

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