NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 16-3495 _____________

UNITED STATES OF AMERICA

v.

MIGUEL MASSA, a/k/a SNUFF

Miguel Massa, Appellant ______________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-12-cr-00398-008) District Judge: Honorable J. Curtis Joyner ______________

Submitted Under Third Circuit L.A.R. 34.1(a) March 8, 2018 ______________

Before: McKEE, AMBRO, and RESTREPO, Circuit Judges.

(Filed: May 2, 2018) ______________

OPINION * ______________

RESTREPO, Circuit Judge.

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. Miguel Massa appeals as procedurally and substantively unreasonable the

sentence of the United States District Court for the Eastern District of Pennsylvania

sentencing him to 30 months’ imprisonment for violating the terms of his probation. We

will affirm.

I

As we write solely for the benefit of the parties, we set out only the facts necessary

for the discussion that follows. In November 2013, Massa pled guilty to possession of a

firearm with an obliterated serial number. Despite a guidelines range of 6 to 12 months’

imprisonment, the District Court sentenced Massa to two years’ probation in March 2014,

with a stipulation that he be confined to his residence for the first six months. The District

Court also imposed the condition that Massa not commit any federal, state or local crime

while on probation.

On May 29, 2014, Philadelphia police arrested Massa on state charges of sexual

abuse of a minor, stemming from his inappropriate conduct with his then eleven-year-old

niece. The notes from the victim’s interview with the Philadelphia Children’s Alliance on

May 21, 2014, state that the conduct occurred on several occasions, most recently “about

a month” before the interview. App. 19. In October 2014, Massa pled guilty to attempted

deviate sexual intercourse by forcible compulsion.

In August 2016, the District Court held a revocation hearing, at which it revoked

Massa’s probation in light of both the sexual assault (a Grade A violation) and leaving his

2 house without prior approval on several occasions (a Grade C violation). 1 The Guideline

range for the violation was 12 to 18 months’ imprisonment. The District Court sentenced

Massa to 30 months’ imprisonment, to be served consecutive to his sentence for the state

charges. Id. This timely appeal followed.

II 2

We review a district court’s decision to revoke probation for abuse of discretion.

United States v. Schwegel,

(3d Cir. 1997). We review factual findings

supporting that decision for clear error. United States v. Maloney,

(3d

Cir. 2008).

To demonstrate that a sentence is procedurally reasonable, a district court must

show “meaningful consideration of the relevant statutory factors and the exercise of

independent judgment[.]” United States v. Grier,

, 571–72 (3d Cir. 2007)

(en banc).

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.” United States v. Tomko,

(3d Cir. 2009) (en banc). Review for substantive reasonableness requires a

“totality of the circumstances” approach, pursuant to which we accord significant

deference to a district court’s “determination that the § 3553(a) factors, on a whole,

1 Massa admitted his guilt for the Grade C violation at the hearing, and it is not at issue in this appeal. 2 The District Court had jurisdiction under

and 3583(e), and we have appellate jurisdiction under

and

. 3 justify the sentence.”

at 567–68 (internal quotation marks omitted). As the party

challenging the sentence, Massa bears the burden of demonstrating unreasonableness.

III

Massa first argues that the District Court erred by finding that the sexual assault

occurred during the period of his probation. Despite his assertion that none of the

investigative reports “establishes the date(s) of the alleged incident,” the victim told

investigators that the most recent incident occurred a month prior to May 21, 2014—after

Massa began probation. The victim’s statement was sufficient for the District Court to

determine that a violation of Massa’s probation had occurred. It did not clearly err in

making this determination.

Massa next argues that his sentence was procedurally unreasonable because the

District Court both improperly considered the § 3553(a) factors and failed to explain its

decision to vary upward. We disagree. After “consider[ing] the various [§ 3553(a)]

factors,” as well as “the nature and circumstances of the offense of the [present]

violation,” the court found that an upward variance was “appropriate” to reflect “the

seriousness of the violation.” App. 103. We are satisfied that it engaged in a meaningful

consideration of the Section 3553(a) factors and adequately explained its reasoning.

Having concluded that Massa’s sentence was not procedurally unreasonable, we

turn now to the question of whether it was substantively reasonable. Massa argues that

his sentence was unreasonable because the District Court imposed an upward variance.

When a district court imposes an above-Guidelines sentence in a revocation proceeding,

4 it must “consider” the advisory sentencing range under U.S.S.G. § 7B1.4(a), and “state

on the record its general reasons under section 3553(a) . . . for imposing a more stringent

sentence.” United States v. Blackston,

(3d Cir. 1991). Note 4 to

Guideline Section 7B1.4 states that “[w]here the original sentence was the result of a

downward departure . . . , an upward departure [in the sentence following the revocation

of probation] may be warranted.” U.S.S.G. § 7B1.4, app. n. 4.

The record shows that the District Court explicitly acknowledged the advisory

Guideline range, as well as the appropriate statutory factors. It found that Massa’s

“egregious” conduct necessitated an upward variance. App. 103. Because we cannot say

that “no reasonable sentencing court would have imposed the same sentence on [Massa]

for the reasons the [D]istrict [C]ourt provided,” Tomko,

, we conclude that

the sentence was substantively reasonable. It did not abuse its discretion in sentencing

Massa to 30 months’ imprisonment.

IV

For the foregoing reasons, we affirm the sentence imposed by the District Court.

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