United States of America v. Luis Felipe Callego

The Honorable Paul R. Michel, Chief Circuit Judge, United States Court of Appeals*
for the Federal Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-2855
UNITED STATES OF AMERICA
v.
LUIS FELIPE CALLEGO,
Appellant
Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal Action No. 08-cr-00097-DMC-1)
District Judge: Honorable Dennis M. Cavanaugh
Submitted Under Third Circuit LAR 34.1(a)
March 9, 2010
Before: AMBRO, SMITH and MICHEL, Circuit Judges*
(Opinion filed: March 11, 2010)
OPINION
MICHEL, Circuit Judge

-- 1 of 12 --

Although the caption in this appeal refers to the Defendant as “Luis Felipe Callego,”1
all other documents in this matter refer to him as “Luis Felipe Gallego.” Accordingly,
other than in the caption, this opinion uses the surname “Gallego” to refer to the
Defendant.
The District Court had jurisdiction under 18 U.S.C. § 3231 and 18 U.S.C. § 3583(e).2
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). “The abuse-of-
discretion standard applies to both our procedural and substantive reasonableness
inquiries”, discussed below. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009)
(en banc).
Gallego was not legally married to the woman in question, but he has referred to her3
as his wife.
2
Luis Gallego pled guilty to violating the conditions of his supervised release by1
conspiring to import heroin into the United States. His supervised release was revoked,
and on July 10, 2009 he was sentenced to 15 months’ imprisonment. Gallego now
appeals that sentence. We will affirm.2
I.
In September 2002, Gallego, who was living at his parents’ home in Bergenfield,
New Jersey, received a telephone call from someone in Colombia. The unidentified caller
threatened to kill Gallego’s wife, who was living in Colombia, if Gallego did not comply3
with the caller’s demands. At the caller’s direction, Gallego met a person known as “El
Gordo” at the Cositas Ricas Bakery and Restaurant in Queens, New York. El Gordo gave
Gallego $10,000 in cash and instructed Gallego to transport the cash to Cali, Colombia.
Gallego traveled to Colombia, where he delivered the cash and was given 1,291
grams of heroin to smuggle into the United States. On October 19, 2002, Gallego

-- 2 of 12 --

3
boarded a flight from Cali to John F. Kennedy Airport in New York. He had been
instructed to travel from the airport to his parents’ home and to await a telephone call
from the person who would accept delivery of the heroin. Gallego never made it out of
the airport. Instead, during a routine Customs inspection, the inspectors discovered the
heroin Gallego was transporting, and he was placed under arrest.
On July 8, 2003, Gallego pled guilty to importation of heroin into the United States
in violation of 21 U.S.C. § 952(a) and 21 U.S.C. § 960(b)(3). On September 16, 2003, he
received a sentence of 63 months’ imprisonment, plus three years’ supervised release.
Shortly before being released from prison in November 2007 to begin serving his
supervised release, Gallego contacted federal agents to discuss the possibility of
providing third-party cooperation. In connection with these discussions, Gallego
informed the authorities that a man named Michael Henao would be smuggling drugs into
the United States from Colombia.
Gallego began serving his supervised release on November 26, 2007. Three days
later, he tested positive for cocaine use in a random drug test, violating a condition of his
supervised release. Because of this positive drug test, the federal agents negotiating
Gallego’s cooperation informed Gallego that they could no longer cooperate with him,
that he should not participate in any criminal activity, and that he would not be protected
from prosecution if he did engage in criminal activity.
On February 9, 2008, Michael Henao traveled from Bogota, Colombia, to Newark

-- 3 of 12 --

4
Liberty Airport in New Jersey, where he was apprehended by law enforcement authorities
who discovered that he was carrying 2.4 kilograms of heroin. The agents also observed
Gallego waiting in the arrivals terminal of the airport. When questioned, Gallego
admitted that he was waiting for Henao to arrive and that he was being paid $1,000 to
help Henao smuggle heroin from Colombia into the United States.
On June 17, 2009, Gallego pled guilty to violating a condition of his supervised
release. In particular, the terms of his release prohibited him from “commit[ting] any
further Federal, state, or local crimes,” but Gallego admitted that he had “participate[d] in
a conspiracy to import heroin into the United States” in violation of federal law. Gallego
separately pled guilty to the conspiracy charge itself; his sentence for that charge is not at
issue in this appeal.
Following Gallego’s guilty plea, the district court sentenced Gallego for his
violation of his supervised release. With a Grade A violation and a criminal history
category of II, Gallego’s Guidelines range was 15 to 21 months’ imprisonment, with a
statutory maximum term of imprisonment of 24 months. Following a hearing at which
Gallego presented his arguments for leniency, the district court sentenced Gallego to 15
months’ imprisonment, plus 21 months’ supervised release. This represented a sentence
at the bottom of the Guidelines range. Gallego timely appealed.
II.
“Our responsibility on appellate review of a criminal sentence is limited yet

-- 4 of 12 --

5
important: we are to ensure that a substantively reasonable sentence has been imposed in
a procedurally fair way.” United States v. Levinson, 543 F.3d 190, 195 (3d Cir. 2008).
Our review proceeds in two stages. First, we “ensure that the district court committed no
significant procedural error, such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence—including an explanation for any deviation from the
Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007). Second, we consider
the totality of the circumstances to determine whether the sentence is substantively
reasonable. Tomko, 562 F.3d at 567. “[I]f the district court’s sentence is procedurally
sound, we will affirm it unless no reasonable sentencing court would have imposed the
same sentence on that particular defendant for the reasons the district court provided.” Id.
at 568.
We do not presume that a sentence is reasonable or that the district court properly
applied all factors simply because the sentence falls with the Guidelines range. United
States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006). Nevertheless, a sentence within the
Guidelines range is less likely than an out-of-Guidelines sentence to be unreasonable. Id.
at 331.
III.
Gallego first argues that his sentence for violating his supervised release was

-- 5 of 12 --

6
procedurally unreasonable. Although he concedes that the district court properly
calculated the Guidelines range and that he did not move for any departure from the
Guidelines range, Gallego argues that the district court failed to meaningfully consider his
argument for a modified sentence under the relevant § 3553(a) factors. In addition,
Gallego argues that the district court’s failure to apply the § 3553(a) factors resulted in a
sentence that was substantively unreasonable, because the sentence was overly punitive.
We address each of these arguments in turn.
Gallego’s argument for procedural unreasonableness turns on his theory that the
district court failed to give meaningful consideration to his explanation for why he
participated in the February 2008 conspiracy to import heroin. At the sentencing hearing,
Gallego offered two reasons why he went to the Newark airport to pick up Henao. First,
Gallego’s attorney stated that Gallego believed Henao would never make it through the
Customs inspection, so Gallego would not actually be required to transport Henao from
the airport to the place where he was to deliver the heroin. Second, Gallego’s attorney
argued that Gallego believed that his efforts at cooperation with federal agents before his
positive drug test had gotten him too far into the scheme to back out without alerting the
other members of the conspiracy to his cooperation with the authorities. Gallego himself
also testified at this hearing and stated that he had provided information to the authorities
that allowed them to apprehend Henao, and Gallego believed that he should be sentenced
leniently because of this.

-- 6 of 12 --

7
On appeal, Gallego argues that, because these arguments were presented below,
and because the district court had discretion to sentence Gallego to less prison time than
called for under the Guidelines, the district court’s within-Guidelines sentence
demonstrates that the court failed to meaningfully consider Gallego’s mitigation
argument. We disagree. Gallego is of course correct that, a district court may “vary
downward from the advisory guideline range.” Spears v. United States, ___ U.S. ___,
129 S. Ct. 840, 842 (2009). But Spears was limited to cases in which the district court
disagreed with the advisory Guidelines range. Id. In the absence of any disagreement
with the Guidelines range, and in the absence of any mitigating circumstances found
sufficient by the district court, a within-Guidelines sentence is likely to be reasonable.
Cooper, 437 F.3d at 329.
Here, the district court did not disagree with the Guidelines range; instead, it
imposed a within-Guidelines sentence. Under Spears, then, the district court was not
compelled to depart from the Guidelines range unless it found that Gallego’s story both
was believable and warranted a downward departure. The district court’s failure to grant
the downward departure is of course consistent with Gallego’s theory that the district
court did not even give Gallego’s story meaningful consideration. But it is equally
consistent with the theory that the district court considered the story and found it either
not believable or not worthy of a downward departure from the bottom of the Guidelines
range. Additional evidence supports this latter theory. During its questioning of Gallego,

-- 7 of 12 --

8
the district court stated “I’m not buying this story too much” and “You seem to be making
up excuses ex post facto.” These statements are much more consistent with the idea that
the district court found Gallego’s story not to be believable than with the theory that the
district court failed even to consider Gallego’s story.
Essentially, Gallego’s argument is as follows: given that Gallego presented a story
that, if believed, might have resulted in a finding of mitigating circumstances warranting
a downward departure from the Guidelines range, and given that the sentencing court
failed to grant such a downward departure, the sentencing court must not have even
considered Gallego’s story. This conclusion is not logically compelled by the given
premises. Gallego simply ignores the possibility that his story might have been
considered but not believed, and the district court’s statements during the sentencing
hearing demonstrate that this was in fact the case.
Related closely to Gallego’s argument that the district court failed to consider his
proffered mitigation argument is Gallego’s assertion that the district court failed to apply
the relevant § 3553(a) factors before deciding whether to depart from the Guidelines
range. Under 18 U.S.C. § 3583(e), a court is justified in revoking supervised release only
“after considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C),
(a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).” The failure to consider relevant factors from
this list before revoking supervised release would render procedurally unreasonable the
sentence imposed. But the district court is not required to “‘discuss and make findings as

-- 8 of 12 --

9
to each of the § 3553(a) factors if the record makes clear the court took the factors into
account.’” United States v. Bungar, 478 F.3d 540, 543 (3d Cir. 2007) (quoting Cooper,
437 F.3d at 329). Gallego insists that the district court failed to consider any of the
§ 3553(a) factors, but we disagree. The record makes clear that the district court, while
not making express findings as to each factor, did consider each of them.
Section 3553(a)(1) requires the sentencing court to consider “the nature and
circumstances of the offense and the history and characteristics of the defendant.” Here,
the district court described the offense: “[Gallego] violated his term of supervised release.
. . . a new arrest involved meeting a courier who had just imported heroin.” The court
also described the history and characteristics of the defendant: “Mr. Gallego is a 24-year-
old male who . . . tested positive for cocaine just three days after being released from
custody. . . . His original offense involved the offense of importing heroin.” The district
court thus clearly considered the § 3553(a)(1) factor.
Under section 3553(a)(2)(B), the sentencing court must consider “the need for the
sentence imposed . . . to afford adequate deterrence to criminal conduct.” The district
court considered this factor when it stated that “[Gallego’s] actions seem to show that he
was not altering his criminal activity.” Obviously, a defendant who has committed crimes
in the past and continues to commit similar crimes must be sentenced more harshly than a
first offender or someone who has largely reformed. The district court’s statement was
also reasonable, given that both Gallego’s earlier crime and the crime for which Gallego

-- 9 of 12 --

10
was being sentenced involved the importation of heroin from Colombia.
Section 3553(a)(2)(C) requires the sentencing court to consider “the need for the
sentence imposed . . . to protect the public from further crimes of the defendant.” As with
§ 3553(a)(2)(B), the district court’s statement that “[Gallego’s] actions seem to show that
he was not altering his criminal activity” demonstrates consideration of this factor.
Someone who continues his criminal past by committing similar crimes is clearly a
greater danger to the public than someone who only briefly stepped off the path of
lawfulness. This factor requires the sentencing court to take into account the danger to
the public, and it appears from the district court’s statements that it did so.
Under section 3553(a)(2)(D), the sentencing court must consider “the need for the
sentence imposed . . . to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most effective manner.” The
district court did not find any special need for education, vocational training, or medical
care. But the court did find a need for ongoing drug testing and addiction treatment, and
submission to testing and treatment was made a special condition of Gallego’s sentence.
Section 3553(a)(4) requires the sentencing court to consider the relevant range of
sentences proposed in the Guidelines. As discussed above, Gallego admits that the
district court properly calculated the Guidelines range and considered it in imposing
sentence.
Under section 3553(a)(5), the sentencing court must consider “any pertinent policy

-- 10 of 12 --

11
statement . . . issued by the Sentencing Commission.” Gallego has not pointed us to any
policy statements issued by the Sentencing Commission that are relevant to this case but
that were not considered by the district court, and we can find none.
Section 3553(a)(6) requires the sentencing court to consider “the need to avoid
unwarranted sentence disparities among defendants with similar records who have been
found guilty of similar conduct.” Gallego has failed to explain how his sentence at the
bottom of the Guidelines range risks a violation of this factor by creating sentencing
disparities.
Under section 3553(a)(7), the sentencing court must consider “the need to provide
restitution to any victims of the offense.” The district court did not order restitution, but it
is not clear to us that there were any victims of Gallego’s crime to whom restitution could
be made, nor has Gallego identified any. Thus, Gallego has not presented any cogent
argument for how this factor should have been taken into account by the district court.
Thus, we disagree that the district court failed to apply the § 3553(a) factors. Our
review of the record confirms that the District Court gave “rational and meaningful”
consideration to the relevant § 3553(a) factors in imposing its sentence. United States v.
Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc).
To the extent Garcia challenges the substantive reasonableness of his sentence, we
reject that challenge, as we cannot say that “no reasonable sentencing court would have
imposed the same sentence on th[is] particular defendant for the reasons the district court

-- 11 of 12 --

12
provided.” United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc). Under
the circumstances, we conclude the sentence was entirely reasonable. Accordingly, we
will affirm that sentence.

-- 12 of 12 --