ALD-004 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 19-2032 ___________

UNITED STATES OF AMERICA,

v.

GERMAN SUAREZ-ARZON a/k/a RICHARD HERRERA a/k/a HIRAM MIGUEL SANTANA-CINTRON a/k/a JOSE MANUEL DIAZ RAFAEL, Appellant ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal Action No. 2-14-cr-00604-001) District Judge: Gerald J. Pappert ____________________________________

Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 October 3, 2019

Before: MCKEE, SHWARTZ and PHIPPS, Circuit Judges (Opinion filed December 20, 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. PER CURIAM

Pro se appellant German Suarez-Arzon appeals the District Court’s order denying

his motion for a new trial under Rule 33 of the Federal Rules of Criminal Procedure. For

the reasons discussed below, we will summarily affirm the District Court’s judgment.

See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.

In separate criminal cases, Suarez-Arzon pleaded guilty to illegally reentering the

United States in violation of

, see E.D. Pa. Cr. A. No. 2:14-cr-00604, and

possessing with the intent to distribute 100 grams or more of heroin in violation of

, see E.D. Pa. Cr. A. No. 2:15-cr-00022. The District Court granted the

parties’ joint motion to consolidate the two cases for sentencing. Ultimately, the Court

calculated Suarez-Arzon’s Guidelines range as 120 to 135 months’ imprisonment, and

sentenced him to a term of 132 months. Suarez-Arzon appealed a suppression ruling

relevant to only the drug offense, and we affirmed. See United States v. Suarez-Arzon,

(3d Cir. 2016) (non-precedential).

Suarez-Arzon then filed a motion under

challenging his

sentence. He noted that his offense level in the illegal-reentry case, after accounting for

his acceptance of responsibility, was 21. Based on that offense level and his criminal

history category of III, his Guidelines range would be 46 to 57 months’ imprisonment—

yet he was sentenced to 132 months. He argued that the sentence was improper and his

counsel performed ineffectively by failing to challenge the sentence. The District Court

denied the motion, explaining that the sentence was based on both offenses, not just the 2 illegal-reentry offense. See E.D. Pa. Crim. No. 2:15-cr-00022, ECF No. 54. Suarez-

Arzon did not seek to appeal, and the time to do so has expired.

Suarez-Arzon next filed the Rule 33 motion in the illegal reentry case that is at

issue in this appeal. See E.D. Pa. Crim. No. 2:14-cr-00604, ECF No. 34. He reiterated

his argument that his Guidelines range for the illegal-reentry offense should have been 46

to 57 months’ imprisonment. Moreover, he argued, his sentence for possession with

intent to distribute should have been limited to the range for the illegal-reentry offense.

He argued that his attorney performed ineffectively by failing to raise this argument. The

District Court denied the motion, and Suarez-Arzon appealed.

We have jurisdiction under

. We review the District Court’s

denial of the Rule 33 motion for abuse of discretion, although we review its legal

determinations de novo. See United States v. Quiles,

(3d Cir. 2010).

The District Court did not err in denying Suarez-Arzon’s motion. Rule 33 is not

the appropriate vehicle for his claim. Typically, Rule 33 is not available to defendants

who have pleaded guilty (rather than gone to trial), see United States v. Graciani,

(1st Cir. 1995); United States v. Gordon,

, 1572 n.3 (10th Cir. 1993);

United States v. Collins,

(9th Cir. 1990) (per curiam), and it is not

designed to redress alleged sentencing errors, see United States v. Camacho,

(2d Cir. 2004). We have also expressed a reluctance to consider ineffective-

assistance-of-counsel claims in this context. See United States v. Chorin,

,

282 n.4 (3d Cir. 2003). Even setting these obstacles aside, Suarez-Arzon has simply not 3 presented any newly discovered evidence. Instead, he presents a legal argument that he

could have presented at the time of sentencing. See generally United States v. Cimera,

(3d Cir. 2006); United States v. DeRewal,

(3d Cir.

1993) (explaining that “newly discovered evidence must generally, if not always, be

evidence related to the issues at trial, not evidence concerning separate legal claims”).

Accordingly, we will affirm the District Court’s judgment.

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