NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 17-2730 _____________

UNITED STATES OF AMERICA

v.

RICKIE HORVATH,

Appellant

_____________

On Appeal from the United States District Court for the District of New Jersey (D. N.J. Crim. No. 2-15-cr-400-3) District Judge: Hon. Esther Salas _____________

Submitted Pursuant to Third Circuit LAR 34.1(a) April 24, 2018

Before: AMBRO, SCIRICA, and SILER, Jr., Circuit Judges

(Filed: April 30, 2018) _____________

OPINION* _____________

 Honorable Senior Judge Eugene E. Siler, Jr., Circuit Court Judge for the Sixth Circuit Court of Appeals, sitting by designation. * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SILER, Circuit Judge

In this criminal matter, defendant Rickie Horvath appeals his sentence of 41

months’ imprisonment for conspiracy to possess and distribute oxycodone. He argues

that this term of imprisonment is both procedurally and substantively unreasonable

because he “is essentially dying.” For the reasons stated herein, we will affirm.

I.

Horvath is fifty-six years old and has suffered from heart disease for several years.

He first underwent open-heart surgery in 1993. Horvath then had coronary artery bypass

grafting in 1997, vein grafting in 2004, and a pacemaker implant in 2006.

Between February and August 2014, Horvath participated in a drug-trafficking

organization. He obtained and filled oxycodone prescriptions and then distributed the

drugs, both directly and via co-conspirators. The scheme involved more than fifteen

participants, who illegally distributed a significant amount of prescription drugs

throughout New Jersey. Horvath was arrested in 2014 and charged with conspiracy to

possess and distribute a mixture and substance containing oxycodone, in violation of

(a)(1), (b)(1)(C) and 846.

During his pretrial release, Horvath was hostile, disrespectful, and combative with

supervising officials. He also tampered with location-monitoring equipment and often

failed to follow instructions. As stated by the district court, “[H]is behavior on pretrial

release was deplorable. . . . He was defiant. He was belligerent.” In September 2015,

Horvath was arrested and charged in state court with unrelated offenses. He pleaded

2 guilty to the federal drug charge in 2016, whereby he admitted responsibility for 35.47

grams of oxycodone. He was transferred to federal custody in July 2016.

Horvath petitioned for bail in March 2017, based on his congestive heart failure,

diabetes, and hypertension. The medical director at the jail where Horvath was housed

submitted files indicating that Horvath was transported from the jail to the hospital on

several occasions for cardiac events. The physician described Horvath’s prognosis as

“extremely poor” and his life expectancy as “obviously compromised.” The medical

director further noted that Horvath’s heart functioned “with an ejection fraction of 30%

which is an objective indicator of advanced heart failure.”

The district court granted Horvath bail pending sentencing, with the condition that

he be confined to his home during the interim. While on release between March and his

sentencing hearing in July 2017, Horvath only saw his attending physician on three

occasions. He claims that he did not visit his doctor more frequently because he lost

Medicaid benefits while incarcerated.

At Horvath’s sentencing, the district court determined that his guidelines range

was 46 to 57 months’ imprisonment, based on a total offense level of 21 and a criminal

history category of III. Horvath’s presentence investigation report indicated that he

“occupied a neutral role in the conspiracy.” Information suggested neither that he

maintained a leadership role in the organization, nor that he was less culpable than the

average co-conspirator.

Horvath moved for a variance based on his medical condition, and he submitted a

letter from his physician in support. He requested a sentence of time served—

3 approximately eight months. The government argued in favor of a mid-guidelines

sentence. The district court considered Horvath’s arguments in favor of his requested

sentence but concluded that defense counsel presented a much “grimmer picture” of

Horvath’s medical condition than the submitted documents revealed. The court

acknowledged that Horvath was sick and had “a serious condition,” but the letter from his

doctor stated that Horvath’s health “is being maintained and managed” and that Horvath

was in a “stable condition.” Although defense counsel argued that Horvath was “dying,”

he did not present supporting testimony from a doctor. Moreover, the district court found

that the Bureau of Prisons (“BOP”) was “more than capable of handling” his health

concerns. The court asserted that “Mr. Horvath has Mr. Horvath to blame, and only Mr.

Horvath to blame” for the situation in which he found himself.

The court extended some amount of leniency, however, and granted Horvath’s

motion for a downward variance. It chose to essentially treat him as a category II

offender—resulting in a guidelines range of 41 to 51 months. Citing the serious

oxycodone epidemic, the need for general and specific deterrence, and the BOP’s ability

to provide Horvath with adequate medical care, the court sentenced Horvath to 41

months’ imprisonment. It also elected to allow Horvath to voluntarily surrender.

Following his sentencing, Horvath requested that the district court stay his

surrender date for thirty days in order to allow him to recuperate from his stent implant,

which he underwent in August 2017. He also moved for bail pending appeal, repeating

arguments related to his medical condition. The district court ordered a stay of his

surrender date for thirty days, moving it to October 5. It denied his motion for bail

4 pending appeal, however, finding that Horvath had not explained how it improperly

calculated the guidelines range, relied on clearly erroneous facts, or failed to adequately

explain the imposed sentence. Horvath filed a bail application with this court, and he

requested another stay of his surrender date. We extended Horvath’s surrender date to

October 19 and denied his bail application.

On appeal, Horvath argues that, given his physical condition, his sentence is

procedurally and substantively unreasonable. He asserts that the district court abused its

discretion by failing to “adequately weigh the credible and compelling medical

evidence.” Horvath also contends that his sentence is “excessive and fundamentally

unfair.” The government maintains that Horvath played an “extensive role” in the drug-

trafficking conspiracy and that the court imposed a merciful sentence of imprisonment

after considering Horvath’s arguments.

II.

We review imposed sentences for abuse of discretion. United States v. Tomko,

(3d Cir. 2009) (en banc). We must “ensure that a substantively

reasonable sentence has been imposed in a procedurally fair way.” United States v.

Levinson,

(3d Cir. 2008). The challenging party bears the burden of

demonstrating unreasonableness at both the procedural and substantive stages of the

court’s review. See Tomko,

.

A. Procedural Reasonableness

Where a defendant, such as Horvath, claims that his sentence is procedurally

unreasonable, the court must make sure “that the district court committed no significant

5 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.” United States v. Grober,

(3d Cir. 2010) (internal

quotation marks and citation omitted). “A [factual] finding is clearly erroneous when[,]

although there is evidence to support it, the reviewing body on the entire evidence is left

with the definite and firm conviction that a mistake has been committed.” United States

v. Wise,

(3d Cir. 2008) (internal quotation marks and citation omitted).

We must also ensure that the district court “respond[ed] to defense counsel’s colorable

arguments for mitigation,” United States v. Thornhill,

(3d Cir. 2014),

by pointing to “a factual basis in the record,” United States v. Merced,

(3d Cir. 2010).

Here, the parties do not dispute that the district court correctly calculated

Horvath’s guidelines range. In fact, the court varied downward one criminal history

category and treated Horvath as a category II offender. There is also no indication in the

record that the district court “treated the Guidelines as mandatory.” Grober,

. After varying from Horvath’s original range of 46 to 57 months’ imprisonment to a

range of 41 to 51 months, it chose to impose a sentence at the bottom of the new range—

41 months’ imprisonment—in light of the relevant § 3553(a) factors. It noted factors

such as the need for general and specific deterrence, the serious nature of Horvath’s

offense conduct, and the BOP’s ability to care for Horvath’s medical needs.

6 Moreover, the district court thoroughly considered defense counsel’s arguments in

favor of a sentence of time served. The court acknowledged that Horvath was sick, but

after considering the submitted evidence, it reached a different conclusion as to the extent

of his illness. The district court did not err by concluding that Horvath’s health was poor,

but stable, and that the BOP could adequately care for Horvath. The record supports such

a conclusion, and we are not “left with the definite and firm conviction that a mistake has

been committed.” Wise,

(quoting Concrete Pipe & Prods. of Cal., Inc. v.

Constr. Laborers Pension Tr. for S. Cal.,

(1993)). Thus, the district

court did not impose a procedurally unreasonable sentence.

B. Substantive Reasonableness

Having found the district court’s procedure satisfactory, we must next evaluate the

substantive reasonableness of the imposed sentence, taking into account the totality of the

circumstances. See United States v. Sotomayor,

, 126–27 (3d Cir.

2014). “The substantive reasonableness of each sentence must be evaluated on its own

terms, based on the reasons that the district court provided, in light of the particular facts

and circumstances of that case.”

at 127 (citing Tomko,

). We will

“affirm a procedurally sound sentence as substantively reasonable ‘unless no reasonable

sentencing court would have imposed the same sentence on that particular defendant for

the reasons the district court provided.’” Grober,

(quoting Tomko,

).

Here, as set forth above, the district court weighed the relevant § 3553(a) factors

and granted Horvath’s requested variance, albeit not to the extent he desired. Horvath

7 argues that his term of imprisonment “is significantly more severe than any punishment

ever experienced by him and serves no appreciable purpose.” In terms of specific

deterrence, however, this fact more logically lends itself to a longer sentence, rather than

a shorter sentence. Horvath also contends that the sentence imposed is “excessive and

fundamentally unfair for a man who is essentially dying.” But sickness alone does not

warrant a sentence void of prison time and does not translate Horvath’s relatively short

term of imprisonment into a “life sentence.” See United States v. Watson,

(3d Cir. 2007) (noting that “the mere fact that a defendant may not survive beyond

his sentence does not provide a basis for a shorter sentence”).

Moreover, the district court granted mercy by imposing a below-guidelines

sentence, after reasonably concluding—based on medical records before the court—that

Horvath’s condition was not nearly as severe as he claimed. Indeed, Horvath managed to

play an active role in the drug-trafficking organization at issue while he was already

suffering from heart disease. Horvath has failed to demonstrate that “no reasonable

sentencing court would have imposed the same sentence on [him] for the reasons the

district court provided.” Grober,

.

III.

In sum, we are convinced that “a substantively reasonable sentence has been

imposed in a procedurally fair way,”

and will affirm the district court’s Judgment.

8