                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 14-3833
                                     ______________

                            UNITED STATES OF AMERICA

                                             v.

                                    EVENS CLAUDE,
                                         a/k/a E,
                                a/k/a SHAWN MIRANDA

                                               Evens Claude,
                                                     Appellant
                                     ______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             (D.C. No. 2:12-cr-00033-001)
                          District Judge: Hon. Jan E. DuBois
                                    ______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    March 18, 2016
                                   ______________

     Before: CHAGARES, RESTREPO, and VAN ANTWERPEN, Circuit Judges.

                                  (Filed: March 31, 2016)
                                      ______________

                                        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.
                                             1
       A jury convicted Evens Claude of conspiracy, bank fraud, access device fraud,

aggravated identify theft, uttering counterfeit currency, and aiding and abetting. He was

sentenced to 232 months in prison. Claude timely appealed his sentence. We will affirm.

                                             I

       Claude’s conviction stems from his role in an identity theft ring, through which he

and his accomplices stole personal information from victims and used that information to

access the victims’ bank accounts and to open credit accounts and purchase goods in the

victims’ names. He was also convicted of crimes arising out of his involvement in a

scheme to purchase goods using counterfeit currency.

       At sentencing Claude represented himself pro se, with the assistance of standby

counsel. After a three-day hearing, at which the District Court heard testimony and

entertained argument from both Claude and his standby counsel, the District Court

sentenced Claude to 232 months in prison, 5 years supervised release, restitution of

$298,853, and a special assessment of $2,000. Claude’s effective Sentencing Guidelines

range was 192 to 402 months, based on his criminal history category of IV and total

offense level of 32.

       On appeal Claude argues that the District Court made two procedural errors in

sentencing him. First, Claude contends that the District Court failed to rule on his motion

for a downward variance based on his testimony for the Commonwealth of Pennsylvania

in an unrelated trial. Second, Claude argues that the District Court failed to consider

properly, and failed to rule on, his motion for a downward variance to avoid unwarranted

sentencing disparities between similarly situated defendants.

                                             2
                                              II1

       The record of a district court must make clear that the court gave meaningful

consideration to the parties’ arguments and had a reasoned basis for the sentence

imposed. United States v. Begin, 696 F.3d 405, 411 (3d Cir. 2012). “[I]f a party raises a

colorable argument about the applicability of one of the [18 U.S.C.] § 3553(a) factors, the

district court may not ignore it.” Id. (quotation marks omitted). However, “[t]he district

court need not raise every conceivable issue on its own initiative or even make explicit

findings as to each sentencing factor if the record makes clear that the court took all the

factors into account.” Id. Where a defendant’s argument for a below Guidelines

sentence is “conceptually simple,” and it is clear from the record that the district court

considered the relevant evidence and arguments, the sentencing judge is not required to

provide an extensive explanation when denying the motion and sentencing within the

Guidelines. Rita v. United States, 551 U.S. 338, 356-59 (2007).

       Under our decision in United States v. Flores-Mejia, 759 F.3d 253 (3d Cir. 2014)

(en banc), in order to preserve the issue for appeal, a party objecting to the procedural

unreasonableness of a sentence, as here, must object after the sentence is imposed at a

time when the district court still has an opportunity to correct the alleged error. Id. at

255-56. If such an objection is timely made, we review for abuse of discretion. Id. at

259.




       1
         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
                                              3
       Despite failing to preserve his claims in the District Court, Claude argues that his

objections are entitled to an abuse of discretion review because he was representing

himself pro se and Flores-Mejia was decided only six weeks before his sentencing

hearing. See Br. of Appellant at 7-9. We disagree. After imposing his sentence, the

District Court made a detailed inquiry into whether Claude harbored any procedural

objections. See Tr. of Sent’g Hr’g at 169-72 (Aug. 29, 2014).2 Under the circumstances

presented in this case, our application of the Flores-Mejia rule does not demand the sort

of flexibility that is sometimes given pro se litigants in other contexts. Cf. Houston v.

Lack, 487 U.S. 266, 275 (1988) (pro se prisoners are deemed to have filed a notice of

appeal when they deliver it to prison authorities because after that point they lose control

of the notice and cannot monitor its timely processing); Tabron v. Grace, 6 F.3d 147,

153-54 n.2 (3d Cir. 1993) (permitting appellate review of waived objection to denial of

request for counsel, because standard for appointment of counsel was unclear and

appellant argued his lack of counsel was intertwined with his challenge to grant of

summary judgment). Our review of the sentencing transcript in this case leads us to

conclude that Claude understood his obligations under Flores-Mejia, and he is bound by

its tenets. See Tr. of Sent’g Hr’g at 169-72; Flores-Mejia, 759 F.3d at 256-57.

       We may correct unpreserved objections to procedural errors at our discretion, but

only where the error is “plain” and it affects the defendant’s “substantial rights.” Puckett


       2
         The transcript of the sentencing hearing in this case is under seal. Because we
write primarily for the benefit of the parties, and they have access to the sealed transcript,
we will cite to the portions of the sealed transcript that support our decision in lieu of
quoting from or paraphrasing it.
                                              4
v. United States, 556 U.S. 129, 135 (2009); see Fed. R. Crim. P. 52(b). An error is

“plain” if it is “clear or obvious.” Id. An effect on “substantial rights” ordinarily means

prejudice, or that the error “affected the outcome of the district court proceedings.” Id.

The burden is on the defendant to prove prejudice. Id. at 141; see Fed. R. Crim. P. 52(b).

Because Claude failed to preserve his objections, we will review his sentence for plain

error.

                                              III

         Claude moved for a downward variance based on his testimony for the

Commonwealth of Pennsylvania in an unrelated case. He now argues that the District

Court “failed to rule” on his motion because the District Court “never indicated whether

it was granting or denying” the variance. Br. of Appellant at 14. Our review of the

record belies Claude’s position. After denying Claude’s motion for a downward

departure based on his testimony for the Commonwealth, the District Court understood it

could consider the same testimony in deciding whether to vary downward. See Tr. of

Sent’g Hr. at 78-79, 102-06. And in fact, the District Court did consider and rule on

Claude’s motion. See Tr. of Sent’g Hr’g at 102-06, 150, 154-55. The District Court had

a reasoned basis for the sentence imposed and we find no procedural error. See id.;

United States v. Jones, 740 F.3d 127, 145 (3d Cir.) (“District Court’s thorough

questioning and thoughtful discussion at sentencing refutes any contention that it

somehow ignored defense counsel’s argument”), cert. denied, 134 S. Ct. 2319 (2014).

         Next, Claude argues that the District Court failed to consider properly, and failed

to rule on, his motion for a downward variance based on the need to avoid unwarranted

                                               5
sentencing disparities. See Br. of Appellant at 17-21. We find these arguments to be

without merit. To the extent Claude even made a colorable argument, the record

evidences that the District Court gave sufficient and proper consideration to the issues.

See Tr. of Sent’g Hr’g at 105-07; 18 U.S.C. § 3553(a)(6) (permitting sentencing court to

consider sentencing disparities among defendants with “similar records” who were found

guilty of “similar conduct”); United States v. Vargas, 477 F.3d 94, 100 (3d Cir. 2007)

(holding defendant bears burden of proving that circumstances of the purportedly similar

defendants “exactly paralleled” defendant’s circumstances and “court should not consider

sentences imposed on defendants in other cases in the absence of such a showing”).

       In sum, the District Court did not commit plain error in its consideration of, or

response to, Claude’s arguments or requests for downward variances under § 3553(a).

See Puckett, 556 U.S. at 135.3, 4

                                             IV

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

sentence.




       3
         Claude did not argue in his Brief that he suffered any prejudice as a result of the
District Court’s conduct.
       4
         We further observe that even if the abuse of discretion standard were to apply to
this appeal, which it does not, Claude has failed to demonstrate that the District Court
abused its discretion. See Br. of Appellant at 12-21; Tr. of Sent’g Hr’g at 149-57; United
States v. Tomko, 562 F.3d 558, 568-69 (3d Cir. 2009) (en banc).
                                             6
