NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 22-1552 _______________

UNITED STATES OF AMERICA

v.

RAFAEL CABRERA, Appellant _______________

On appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2:13-cr-00048-001) Chief U.S. District Judge: Honorable Mark R. Hornak _______________

Submitted Under Third Circuit L.A.R. 34.1(a) on June 20, 2023

Before: KRAUSE, BIBAS, and MATEY, Circuit Judges

(Filed: June 21, 2023) _______________

OPINION* _______________ BIBAS, Circuit Judge.

Rafael Cabrera was caught with roughly 700 bricks of heroin. He was later convicted

of conspiring to distribute at least 100 grams of a mixture containing heroin under

(b)(1)(B)(i), 846. Though the conviction was straightforward, his sentencing

* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. has been circuitous. This appeal is his third. Now he says the District Court erred by

(1) counting two prior local-ordinance violations toward his criminal-history score and

(2) failing to consider and apply all the sentencing factors. Both arguments fail.

We review the District Court’s findings of fact for clear error and a sentence’s reasona-

bleness for abuse of discretion. United States v. Tomko,

, 564–65, 567–68 (3d

Cir. 2009) (en banc).

First, the two prior convictions were properly counted. Under § 4A1.2(c)(2) of the Sen-

tencing Guidelines, local-ordinance violations do not count toward a defendant’s criminal-

history score. Cabrera simply asserts that his prior convictions were for local violations.

But he has no evidence to back up that assertion. The government, on the other hand, has

produced Cabrera’s court records. Those documents reveal that he was convicted of state

crimes. For the first conviction, he pleaded guilty to “wandering/prowling to obtain/sell [a

controlled dangerous substance]” under N.J. Stat. § 2C:33-2.1(b). Supp. App. 43. And for

the second, he pleaded guilty to “obstructing the administration of law” under N.J. Stat.

§ 2C:29-1(a). Supp. App. 44. Because neither conviction was under a local ordinance,

Cabrera’s only challenge to them fails. Plus, the Guidelines count at most four prior con-

victions with short sentences toward a criminal-history score. U.S.S.G. § 4A1.1(c). But he

had six. Either way, he would get four criminal-history points.

Second, Cabrera’s sentence was reasonable. Cabrera frames his argument as one about

substantive reasonableness. But he argues that the District Court ignored his arguments and

the sentencing factors. Those claims go to the sentence’s procedural reasonableness. See

United States v. Flores-Mejia,

, 256–57 (3d Cir. 2014) (en banc). Yet Cabrera

2 forfeited any procedural-reasonableness objection below. In any event, the District Court

properly considered the sentencing factors and Cabrera’s arguments, even if it did not list

them one by one. See JA 223–31; United States v. Lessner,

(3d Cir.

2007). So it did not err, let alone plainly.

Nor was the sentence substantively unreasonable. The District Court imposed a sen-

tence twenty-eight months below the bottom of Cabrera’s Guidelines range. We may pre-

sume that a below-Guidelines sentence is reasonable. United States v. Handerhan,

(3d Cir. 2014). Cabrera has neither rebutted that presumption nor explained why

“no reasonable sentencing court would have imposed” his sentence. Tomko,

. Because the District Court neither erred nor abused its discretion, we will affirm.

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