                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                      No. 13-3169
                                    _______________

                            UNITED STATES OF AMERICA

                                             v.

                                 RUSSELL FRANKLIN,

                                                        Appellant
                                    _______________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                                (No. 2-11-cr-00131-001)
                         District Judge: Hon. Arthur J. Schwab
                                    _______________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   March 17, 2015

              Before: RENDELL, FUENTES, and BARRY, Circuit Judges

                                  (Filed: June 25, 2015)
                                      ____________

                                       OPINION*
                                      ____________
______________

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

       Russell Franklin was part of a three-man drug operation. William Powell was the

leader, Franklin served as a “runner” who conducted hand-to-hand transactions, and

Darin Burke acted as the “enforcer.” Between February and April 2011, undercover

agents and informants made three controlled purchases of heroin from Franklin.

Following these buys, Franklin, Powell, and Burke were each charged with one count of

conspiracy to distribute heroin in violation of 21 U.S.C. § 846. All three eventually

pleaded guilty before the same judge. Franklin, who had two prior state-court drug

convictions, was designated a career offender. As a result, his Guidelines range was 151

to 188 months’ imprisonment. The District Court granted a downward variance and

imposed a sentence of 120 months in prison and three years of supervised release.

Franklin argues on appeal that his sentence was procedurally and substantively

unreasonable. For the following reasons, we affirm.1

       First, Franklin contends that the District Court’s determination of drug quantity

was clearly erroneous. At his pre-sentencing hearing, a government agent testified that the


1
  The District Court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction
under 28 U.S.C. § 1291. For several issues on appeal, Franklin objected prior to, but not
following, the District Court’s imposition of his sentence. The parties dispute whether our
review of those issues is for plain error or abuse of discretion in light of our decision in
United States v. Flores-Mejia, 759 F.3d 253 (3d Cir. 2014) (en banc). We need not
resolve this disagreement because, either way, Franklin’s arguments are without merit.
We will therefore review those procedural and substantive challenges for abuse of
discretion, because he was not aware of his need to re-assert his objections post-
sentencing in order to avoid plain error review. See United States v. Tomko, 562 F.3d 558,
567 (3d Cir. 2009) (en banc). Where Franklin failed to object entirely at the sentencing
hearing, we review for plain error. United States v. Nappi, 243 F.3d 758, 761 (3d Cir.
                                             2
conspiracy was responsible for 400 to 700 grams of heroin. On cross-examination,

however, the agent acknowledged that only 12 grams of heroin were purchased during the

three-month window outlined in Franklin’s indictment (February through April 2011)—

much of the remaining drug weight was based on conduct that occurred prior to that

timeframe. Notwithstanding this discrepancy, the District Court determined that Franklin

was responsible for 400 to 700 grams. Franklin argues the District Court erred by faulting

him for conduct that predated his entry into the conspiracy as detailed by the indictment.

       The problem for Franklin, however, is that the drug quantity determination had no

effect on his sentence because the District Court found, and Franklin concedes, he was

subject to the career offender enhancement. The Guidelines dictate that when the offense

level for a career offender is greater than the offense level otherwise applicable, the

career offender level shall apply.2 Without the enhancement, Franklin’s base offense level

for 400 to 700 grams of heroin is 28.3 As a career offender, that level jumps to 32, which

is the same regardless of drug quantity because it is determined by the statutory maximum

sentence for the offense.4 Accordingly, even if we agreed with Franklin that the District

Court’s calculation of drug quantity was wrong, any error was harmless because, once he

was found to be a career offender, the Guidelines required application of the higher

offense level.5 Franklin admitted this point at his pre-sentencing hearing.6


2001).
2
  U.S. Sentencing Guidelines Manual § 4B1.1(b).
3
  Id. § 2D1.1(c).
4
  Id. § 4B1.1(b).
5
  See, e.g., United States v. Wiggins, 747 F.3d 959, 963-64 (8th Cir. 2014).
                                              3
       Second, Franklin argues that, although he was “technically” a career offender, the

District Court should not have sentenced him as one.7 In his sentencing memorandum, he

argued that the Guidelines did not intend to ensnare “retail level drug dealer[s]” such as

himself within the reach of the career offender enhancement.8 Franklin explained that he

was just 26 years old; he spent a total of only six months in prison for his two predicate

drug convictions; he had no violent criminal history; and he had a troubled upbringing.

The District Court rejected this argument. On appeal, Franklin says the career offender

label created unwarranted sentencing disparities in violation of 18 U.S.C. § 3553(a)(6).

       We find that the District Court did not abuse its discretion. Franklin’s concession

that the District Court was authorized to sentence him as a career offender cuts strongly

against his position. Moreover, the record reflects that the District Court meaningfully

considered Franklin’s arguments in its sentencing decision. Indeed, although it chose to

designate him a career offender, the District Court appears to have found Franklin’s

arguments about the severity of the enhancement somewhat persuasive, for it imposed a

sentence below the bottom of his Guidelines range. Franklin also has not demonstrated

any unwarranted sentencing disparities “among defendants with similar records who have




6
  “[Government:] I don’t believe that any of the objections affect the calculation of the
offense level under the sentencing guidelines, as essentially the offense level for the
offense is less than the career offender status. . . . [Court]: Do you agree with that
correction? [Franklin’s counsel]: Only if they’re going to sentence him as a career
offender.” App. 84.
7
  App. 86.
8
  App. 61.
                                             4
been found guilty of similar conduct.”9 As to his co-conspirators in particular, the

disparities in sentence length were reasonable. Powell, the leader of the conspiracy, who

was also a career offender, was sentenced to 151 months’ imprisonment—31 more

months than Franklin received.10 Burke was sentenced to 70 months, but, as Franklin

acknowledges, he was not a career offender.

       Third, Franklin argues the District Court improperly considered a chart at

sentencing that it had not previously disclosed to the parties. In explaining the reasons for

its sentence, the District Court said, “I’ve also considered the chart that I maintain relating

to two drug gang conspiracies, [for] which I’ve done approximately 35-plus

sentencings.”11 It went on to state that Franklin’s 120-month sentence was consistent with

the sentences imposed in those other cases. By not disclosing this chart, Franklin argues,

the District Court violated Federal Rule of Criminal Procedure 32(i)(1)(B), which

requires courts to afford parties a “reasonable opportunity to comment” on information

relied upon in sentencing. In support, Franklin cites our decision in United States v.

Nappi, where we held that the trial court violated Rule 32 because it did not disclose a

state-court presentence report that it discussed at sentencing.12

       We will assume the District Court violated Rule 32 because, even so, Franklin



9
  United States v. Parker, 462 F.3d 273, 277 n.4 (3d Cir. 2006) (quoting 18 U.S.C.
§ 3553(a)(6)) (emphasis removed).
10
   Powell’s sentence was later reduced to 84 months under Federal Rule of Criminal
Procedure 35(b).
11
   App. 141.
12
   243 F.3d at 768.
                                              5
cannot prevail for the same reason the defendant in Nappi was ultimately unsuccessful.13

As in that case, Franklin never objected to the District Court’s use of the chart. His claim

is thus subject to plain-error review, which means he must demonstrate prejudice.14 The

defendant in Nappi did not show prejudice because he was unable to explain either what

he would have done differently had he known about the report or how the report actually

impacted his sentence.15 Similarly, Franklin has not offered any reason to suggest his

sentence would have been different if he had the opportunity to review the chart prior to

sentencing. In the alternative, Franklin urges us to presume prejudice when faced with

these types of failure-to-disclose violations. However, we rejected that exact argument in

Nappi.16

       Finally, Franklin briefly suggests that his sentence was substantively unreasonable,

relying on the same assertions we have already addressed in connection with his argument

that the sentence was procedurally defective. Having found his sentence procedurally

sound, however, we reject his substantive challenge because we cannot say that “no

reasonable sentencing court would have imposed the same sentence” on Franklin.17

       For all these reasons, we affirm the District Court’s judgment.


13
   We note, however, that at least one court has found no Rule 32 violation when
confronted with a sentencing court’s failure to disclose a spreadsheet of past sentences.
See United States v. Sanchez-Martinez, 537 F. App’x 693, 695 (9th Cir. 2013) (“The
court simply relied on a formalized version of what all district judges rely upon: their
experience of imposing sentences in past, relevant cases.”).
14
   See Nappi, 243 F.3d at 760.
15
   Id. at 770-771.
16
   Id. at 770.
17
   Tomko, 562 F.3d at 568.
                                              6
