NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________

No. 18-2087 ________________

UNITED STATES OF AMERICA

v.

HECTOR CISNEROS-IBARRA, a/k/a Hector Ibarra Cisneros

Hector Cisneros-Ibarra, Appellant

________________

Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal Action No. 2-16-cr-00362-001) District Judge: Honorable Joel H. Slomsky ________________

Submitted Under Third Circuit L.A.R. 34.1(a) April 16, 2019

Before: AMBRO, GREENAWAY, JR., and SCIRICA, Circuit Judges

(Opinion filed May 8, 2019)

________________

OPINION* ________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. AMBRO, Circuit Judge

This sentencing appeal arises out of Hector Cisneros-Ibarra’s fourth conviction for

unlawful reentry. In addition to his many offenses for illegal border-crossings, Cisneros-

Ibarra has accrued four state convictions for DUI and three convictions for cocaine

trafficking. In this case, once he pled guilty to his fourth unlawful reentry, his Guidelines

range was 24 to 30 months in prison.

In the request at the center of this appeal, Cisneros-Ibarra asked the District Court

for a lighter sentence on the ground that he was ineligible for certain prison rehabilitation

programs as a removable alien. From the bench, the Court noted that it had “to consider

the need to provide him with educational and vocational training and other correctional

treatment in the most effective manner.” App. 81. As a result, it stated it would

“recommend to the U.S. Bureau of Prisons that he be afforded drug counseling and any

educational and vocational training programs they could make available to him.” Id. It

ultimately sentenced him to 30 months’ imprisonment, the top end of the Guidelines

range. Cisneros-Ibarra has appealed on the ground that the Court failed to consider his

argument about his inability to participate in rehabilitation programs.1

Because Cisneros-Ibarra failed to object to the sentence at the time, we review his

challenge now for plain error. United States v. Flores-Mejia,

(3d Cir.

2014) (en banc). Thus he must show that (1) the Court erred, (2) the error was obvious,

(3) it affected substantial rights, and (4) it affected the fairness, integrity, or public

1 The District Court had jurisdiction under

. We have jurisdiction per

and

. 2 reputation of the judiciary. Johnson v. United States,

(1997); United

States v. Olano,

(1993). Taking each item in turn, we will affirm the

District Court.

First, the Court did not err in its treatment of rehabilitation at Cisneros-Ibarra’s

sentencing. A sentencing court must give “an explanation . . . sufficient for us to see that

the particular circumstances of the case have been given meaningful consideration.”

United States v. Levinson,

(3d Cir. 2008). Faced with Cisneros-

Ibarra’s argument that he could not participate in certain rehabilitation programs, the

Court stated that it would “recommend to the U.S. Bureau of Prisons that he be afforded

drug counseling and any educational and vocational training programs they could make

available to him.” App. 81. This was consistent with the rule that “[a] sentencing court

can recommend that the BOP place an offender in a particular . . . [rehabilitative]

program.” Tapia v. United States,

(2011) (emphasis deleted); see also

(“A court commits no error by discussing the opportunities for rehabilitation

within prison or the benefits of specific treatment or training programs.”). And even

though Cisneros-Ibarra is ineligible for some rehabilitative programs, he still may

participate in, for example, the Parenting Program, the Drug Abuse Education Program,

and the English-as-a-Second Language Program.

Second, as the District Court is not required to consider Cisneros-Ibarra’s inability

to avail himself of certain rehabilitation programs, there can be no obvious error.

“[W]hen sentencing an offender to prison, the court shall consider all the purposes of

punishment except rehabilitation — because imprisonment is not an appropriate means of

3 pursuing that goal.”

. Cisneros-Ibarra argues that this rule prohibits a district

court only from increasing a sentence primarily in order to rehabilitate the defendant, not

from decreasing the sentence due to unavailability of rehabilitation. But the

permissibility of decreasing a sentence due to rehabilitation is still an open question, see

at 329 n.5, so the District Court did not obviously err in failing to lighten Cisneros-

Ibarra’s sentence on this basis.

Third, any error by the District Court did not affect Cisneros-Ibarra’s substantial

rights. Put differently, there is not a reasonable probability that the Court would have

changed its sentence had it better considered Cisneros-Ibarra’s argument about

rehabilitation. It discussed at length his demonstrated lack of respect for the rule of law

and the need to deter future lawbreaking. Given his extensive record — four convictions

for unlawful reentry, four state convictions for DUI, and three convictions for drug

trafficking — a sentence at the top of the Guidelines range was warranted.

Fourth, for the same reason, affirming this 30-month sentence would not threaten

the fairness or integrity of the judiciary.

Thus we affirm.

4