NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 19-2439 _____________

UNITED STATES OF AMERICA

v.

PASCUAL COLON, also known as PACO, Appellant _____________

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 3-06-cr-573-004) District Judge: Honorable Michael A. Shipp _____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) January 27, 2020 _____________

Before: CHAGARES, RESTREPO, and BIBAS, Circuit Judges

(Filed: February 13, 2020)

_____________________

OPINION ∗ _____________________

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

While serving a term of supervised release, Pascual Colon pleaded guilty in state

court to a single count of robbery. After serving his state sentence, Colon appeared

before the District Court and pleaded guilty to violating the terms of his supervised

release by committing that state criminal offense. Colon now appeals the District Court’s

sentence imposed for that violation. We will affirm.

I.

We write for the parties and so recount only the facts necessary to our decision.

Colon was convicted in the District Court of conspiracy to possess with intent to

distribute crack cocaine and sentenced in 2008 to 96 months of imprisonment and four

years of supervised release. In 2016, after Colon violated the terms of his supervised

release for the first time, the District Court revoked his supervised release and sentenced

him to eight months of imprisonment and a year of supervised release.

Colon’s new term of supervised release began on September 14, 2016. On April

11, 2017, Colon was arrested in Pennsylvania and charged with robbery, among other

offenses. Colon subsequently pleaded guilty to a single count of robbery arising out of

that arrest, and on November 13, 2017, he was sentenced to 12 to 24 months of

imprisonment.

After Colon’s Pennsylvania arrest, the District Court ordered the issuance of a

warrant for violation of supervised release on April 27, 2017. But despite Colon’s efforts

to have this warrant acted upon during his time in state custody, Colon remained in state

2 custody until he completed serving his state sentence and was finally released to the

federal detainer on April 10, 2019, nearly two years after his arrest on the state charges.

Colon pleaded guilty to violating the terms of his supervision by committing a

new criminal offense on June 18, 2019. To determine an appropriate sentence for the

violation, the District Court considered competing arguments by the parties as to whether

Colon’s Pennsylvania robbery conviction constituted a Grade A violation, because it was

a crime of violence, or a Grade B violation, because it could be committed without

violence. The Government contended that the police report in the record supported a

finding that Colon’s conduct constituted a crime of violence in this case. Relying on the

police report’s indication that the robbery victim had to go to the hospital as a result of

the robbery, the District Court concluded that Colon committed a crime of violence and

thus a Grade A violation.

Given the finding of a Grade A violation and Colon’s criminal history category of

IV, Colon faced an advisory guidelines range of 24 to 30 months of imprisonment, and a

statutory range of 0 to 36 months.

The Government sought a sentence of 30 months of imprisonment with no

reduction for the time Colon spent in state custody on the underlying robbery offense,

given the crime’s violence and the fact that this was Colon’s second violation of

supervised release. Colon contended that he should receive a variance for the delay in

prosecution of the revocation proceeding, which caused him to serve his entire state

sentence without parole and denied him the ability to argue for a partially concurrent

federal sentence. The District Court did not expressly address Colon’s variance request

3 but relied upon the nature and circumstances of the violation and Colon’s repeated

violations of supervised release to impose a sentence of 30 months of imprisonment and

no further supervised release. This timely appeal followed.

II. 1

Colon raises two grounds for appeal. First, he contends that the District Court

clearly erred by relying on facts from the police report to establish that the robbery was a

crime of violence. Second, Colon argues that the District Court failed to balance properly

the

(a) sentencing factors by giving him (in effect) a consecutive, rather

than concurrent, sentence in relation to the underlying state conviction.

A.

“In scrutinizing a sentence imposed, we review a district court’s legal conclusions

regarding the Guidelines de novo, its application of the Guidelines to the facts for abuse

of discretion, and its factual findings for clear error.” United States v. Carter,

(3d Cir. 2013) (quotation marks omitted). Colon argues first that the District

Court clearly erred by relying on facts from an uncorroborated police report to find that

his Pennsylvania state robbery conviction constituted a crime of violence, and thus, a

Grade A violation of supervised release.

Colon’s statute of conviction provides that “[a] person is guilty of robbery if, in

the course of committing a theft, he . . . physically takes or removes property from the

person of another by force however slight[.]”

(a)(1)(v). For

1 The District Court had jurisdiction under

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

and

. 4 their part, the advisory federal Sentencing Guidelines provide that supervised release

violations are to be graded by their level of severity. Grade B violations involve

“conduct constituting any other federal, state, or local offense punishable by a term of

imprisonment exceeding one year[,]” while Grade A violations include the same type of

conduct, where — as relevant here — that conduct also constitutes a “crime of violence.”

U.S.S.G. § 7B1.1(a)(1)–(2).

To determine whether a defendant’s conduct constitutes a crime of violence in the

context of a revocation proceeding, district courts do not examine just the elements of the

charged offense or crime of conviction but instead look to “the defendant’s actual

conduct[.]” Carter,

(emphasis omitted) (quoting U.S.S.G. § 7B1.1 cmt.

n.1). The Government must prove violation-related conduct by a preponderance of the

evidence. United States v. Dees,

, 854–55 (3d Cir. 2006). Although

evidence considered by the court in the sentencing context need not be admissible, a

district court “must base its determination on information that ha[s] sufficient indicia of

reliability to support its probable accuracy.” United States v. Rowe,

, 762

n.8 (3d Cir. 2019) (alteration in original) (quotation marks omitted).

Colon contends that the District Court improperly relied on uncorroborated

hearsay in the police report to find that Colon’s conviction constituted a crime of

violence, and failed to assess independently the report’s reliability or require extrinsic

corroboration. But Colon neither attempted to rebut any specific aspect of the report nor

offered any basis for casting doubt about the accuracy of the contents of the report. For

example, Colon does not point to any potential internal inconsistencies or other facial

5 problems with the police report. See, e.g., United States v. Lloyd,

(3d

Cir. 2009) (identifying two specific “indicia of unreliability” casting doubt on the

reliability of the contents of a violation report: multiple layers of hearsay and reliance

upon statements by the defendant’s “ex-girlfriend” (emphasis omitted)). Here, the police

report indicates that the investigating officers observed “fresh blood” at the crime scene,

which the officers photographed. Appendix (“App.”) 41. The officers also interviewed

the victim at a hospital emergency room, where they observed him bleeding from the face

and wearing a neck brace.

Absent any affirmative reason to doubt the reliability of the officers’ observations

of the crime scene and the victim’s physical condition shortly after the crime was

committed, the District Court did not clearly err in relying on the police report to find that

Colon’s conduct constituted a crime of violence. Accordingly, this ground for appeal

lacks merit.

B.

Next, Colon argues that the 30-month term of imprisonment was an abuse of

discretion because the District Court failed to consider meaningfully the

(a) sentencing factors, including by failing to address his request for a variance.

We review the substantive reasonableness of Colon’s sentence under an abuse of

discretion standard. United States v. Woronowicz,

(3d Cir. 2014).

But “when a party wishes to take an appeal based on a procedural error at sentencing—

such as the court’s failure to meaningfully consider that party’s arguments or to explain

one or more aspects of the sentence imposed—that party must object to the procedural

6 error complained of after sentence is imposed in order to avoid plain error review on

appeal.” United States v. Flores-Mejia,

(3d Cir. 2014). Because

Colon contends that the District Court failed to consider his request for a variance but did

not object to that claimed procedural error after sentence was imposed, we review this

part of his claim for plain error. We address Colon’s variance-related claim first, before

turning to the question of the substantive reasonableness of his sentence.

We “can correct an error not raised at trial where (1) the district court erred; (2)

the error was clear or obvious; and (3) the error affected the appellant’s substantial rights,

which typically means that there is a reasonable probability that the error affected the

outcome of the proceedings.” United States v. Foster,

, 113 n.15 (3d Cir.

2018) (quotation marks omitted). “If those three conditions are met, we then have

discretion to remedy the error, and we exercise this discretion only if the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings.”

(quotation

marks omitted).

At the core of Colon’s request for a variance was his contention that the District

Court should “vary downward from his [advisory] Guidelines range to account for the

time he spent in state custody awaiting prosecution of the federal revocation

proceedings.” Colon Br. 21 (citing App. 24, 44–45, 66–69). Colon asserts that as a result

of the delay in federal prosecution while in state custody, he “lost the ability to argue that

his federal sentence should run at least partially concurrent with his state sentence.”

But the Sentencing Commission’s advisory instruction recommends that “[a]ny

term of imprisonment imposed upon the revocation of probation or supervised release

7 shall be ordered to be served consecutively to any sentence of imprisonment that the

defendant is serving, whether or not the sentence of imprisonment being served resulted

from the conduct that is the basis of the revocation of probation or supervised release.”

U.S.S.G. § 7B1.3(f) (emphasis added). Accordingly, while the District Court had

discretion to impose a concurrent sentence (or in this case, a sentence that would have in

effect operated as a concurrent sentence by giving credit for the time spent in state

custody), the court did not plainly err by implicitly following the Commission’s advisory

instruction that the sentence run consecutively. The District Court’s decision not to

address explicitly the request for a variance is not in and of itself indicative of an error,

much less plain error. See United States v. Bungar,

(3d Cir. 2007)

(holding that a sentencing “court need not . . . discuss a defendant’s clearly

nonmeritorious arguments”).

Nor was the sentence imposed substantively unreasonable. Colon’s sentence fell

within his advisory range. “Because there is no procedural error, and the District Court

imposed a within-Guidelines sentence, we may presume the substantive reasonableness

of its decision.” United States v. Freeman,

(3d Cir. 2014). And here,

the District Court explained clearly the reasons underlying the 30-month sentence,

focusing on the fact that Colon’s victim had to be hospitalized for his injuries and on

Colon’s recidivism, providing further support for the substantive reasonableness of the

sentence. Accordingly, the District Court did not abuse its discretion or otherwise err in

fashioning Colon’s sentence. We have considered Colon’s other arguments and find

them unavailing.

8 III.

For the foregoing reasons, we will affirm the District Court’s judgment of

sentence.

9