                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 16-1482
                                      _____________

                            UNITED STATES OF AMERICA

                                              v.

                                  TREIU THUY DUONG,
                                                  Appellant
                                    _______________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. No. 3-14-cr-00073-001)
                       District Judge: Hon. Malachy E. Mannion
                                   _______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   March 21, 2017

                Before: AMBRO, JORDAN, and ROTH, Circuit Judges.

                              (Opinion Filed: April 12, 2017)
                                    _______________

                                        OPINION
                                     _______________

JORDAN, 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.
          Treiu Thuy Duong pled guilty to conspiracy to distribute and possess with intent

to distribute a controlled substance analogue, alpha-PVP (“a-PVP”). She now seeks

vacatur of her sentence of 70 months’ imprisonment and a remand for re-sentencing,

arguing that the District Court plainly erred by applying an overly restrictive standard

when it considered her personal circumstances. For the reasons that follow, we will

affirm.

I.        Background

          Duong is a 38-year-old Vietnamese immigrant and naturalized American citizen.

She was married, but divorced soon after her daughter was born. While her ex-husband

has been supportive financially, he has not been actively involved in his daughter’s life.

Duong is the primary caretaker for the girl, who is now 13 years old. Before the crime at

issue in this case, Duong had no criminal history.

           In 2013 and 2014, law enforcement officials conducted an investigation in

Pennsylvania into the trafficking of a-PVP, which is a controlled substance analogue

under 21 U.S.C. § 802(32). They intercepted a mail parcel containing a-PVP and traced

it back to Duong and businesses she was using to distribute the drug. After executing a

search warrant at Duong’s residence, authorities seized 843 grams of a-PVP, $7,053 in

cash, 48 uncashed money orders totaling $17,361, some 200 United States silver coins,

500 Canadian bison silver coins, two handguns, magazines, computer items, cell phones,

digital scales, and two vehicles.

          Duong was indicted on one count of conspiracy to distribute a-PVP in violation of

21 U.S.C. § 846. She pled guilty in exchange for a government recommendation that she

                                               2
receive a three-level reduction in her offense level for acceptance of responsibility. She

also agreed to forfeit the assets noticed in her indictment. (App. at 36-38.)

       The presentence report calculated a base offense level of 32, given the amount (10

kilograms) of a-PVP involved in Duong’s offense. A two-level enhancement was made

for possession of the weapon found during the search of Duong’s residence. And a three-

level downward adjustment for acceptance of responsibility was recommended, which

lowered the offense level to 31. For someone, like Duong, with no criminal history, the

guidelines range for that offense level is 108 to 135 months’ imprisonment. Neither party

objected to the presentence report.

       After motions practice, the District Court gave a downward departure and set the

offense level at 28, which corresponds to a guidelines range of 78 to 97 months. At the

sentencing hearing, Duong sought a downward variance based on her personal history

and character, her model conduct during supervised release, and her status as a single

mother. The government argued for a sentence within the guidelines range, citing the

severity and effect of Duong’s offense. The Court called this “a very difficult case”

because of the nature of the offense in comparison with Duong’s otherwise law-abiding

past and her behavior during supervised release. (App. at 112-13.) It then assessed the

factors set forth in 18 U.S.C. § 3553(a) and said:

       Well, I’ve tried to take into account all of the factors in this case, and while
       your own personal circumstances are not generally relevant, I understand
       you’re a single mother with a 12-year old child, who at least has a family,
       your parents to take care of her. Because no matter what happens in this
       case, you’re going to end up being in jail for a period of time that’s more
       than one would expect with somebody that has no criminal history.


                                              3
(App. at 116 (emphasis added).) On those grounds, the Court sentenced Duong to 70

months’ imprisonment, varying downward eight months from the recommended

guidelines range. Duong did not object to the sentence at the time. This appeal ensued.

II.    Discussion1

       We review Duong’s sentence for plain error. See United States v. Flores-Mejia,

759 F.3d 253, 255 (3d Cir. 2014) (en banc) (“We now hold that ... when a party wishes to

take an appeal based on a procedural error at sentencing ... that party must object to the

procedural error complained of after sentence is imposed in order to avoid plain error

review on appeal.”).2 For there to be plain error, “[t]here must be an ‘error’ that is ‘plain’

and that ‘affect[s] substantial rights.’” United States v. Olano, 507 U.S. 725, 732 (1993)

(second alteration in Olano) (quoting Fed. R. Crim. P. 52). Moreover, we do not correct

such an error unless it “seriously affect[s] the fairness, integrity or public reputation of

judicial proceedings.” Id. (alteration in original) (quoting United States v. Young, 470

U.S. 1, 15 (1985)).

       Duong contends that the District Court plainly erred by considering her personal

circumstances under a restrictive standard applicable to departures rather than variances.



       1
        The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
       2
         Whether the Court applied the correct standard of review for a request for a
variance is a matter of procedure. See Flores-Mejia, 759 F.3d at 255-56 (acknowledging
that “whether, in order to preserve the objection for appeal and to avert plain error
review, a defendant must object after the sentence is pronounced to the district court’s
failure to meaningfully consider his argument” for a variance is “a procedural objection
to the sentencing process.”).
                                               4
She then argues that the sentence was substantively unreasonable because of that alleged

procedural flaw. We disagree.

          “We expressly distinguish between departures from the guidelines and variances

from the guidelines.” United States v. Brown, 578 F.3d 221, 225 (3d Cir. 2009) (citing

United States v. Vampire Nation, 451 F.3d 189, 195 n.2 (3d Cir. 2006)). Departures are

changes to the guidelines calculation that require a motion by the requesting party and are

“based on a specific Guidelines departure provision.” Id. (quoting Vampire Nation, 451

F.3d at 195 n.2). Variances are discretionary changes to the sentencing guidelines range

based on a review of the § 3553(a) factors. Id. at 226. In that regard, “[d]istrict courts

have greater leeway in deciding what to consider in determining whether to vary from the

Guidelines.” United States v. Lofink, 564 F.3d 232, 240 (3d Cir. 2009). “[We] review[] a

variance for reasonableness ... by evaluating the district court’s analysis of the § 3553(a)

factors, whereas [we] review[] a departure [by] consult[ing] the relevant guidelines

provision in order to determine whether the departure was appropriate.” Brown, 578 F.3d

at 226.

          Duong construes the Court’s use of the phrase “not generally relevant” as the

standard for departures, but we do not think the District Court was confused. The request

was plainly for a variance – Duong made no motion for a departure and did not cite to

any departure provision. The record shows that the Court understood her request as one




                                               5
for a variance and that it applied the correct standard.3 First, the Court noted that it had

reviewed “on more than one occasion” all relevant documentation in preparation for

sentencing, including the presentence report, supplements to the report, sentencing

memoranda, and character letters. (App. at 107.) It then reviewed on the record the

nature and seriousness of the offense, Duong’s otherwise-clean criminal history, and her

conduct during supervised released. Next, it specifically addressed each of the § 3553(a)

factors, including Duong’s personal circumstances. After that thorough analysis, it

granted Duong’s request for a variance and imposed a 70-month sentence, eight months

below the guidelines range. We therefore see no error in the sentencing, let alone plain

error.

         Duong’s final argument is that her sentence was substantively unreasonable as

“directly connected to the procedural flaw.” (Opening Br. at 21.) Because there was no

procedural error, that substantive unreasonableness argument fails too.

III.     Conclusion

         For the foregoing reasons, we will affirm.




         3
         The Court had already granted a departure motion prior to her sentencing. The
Court’s review of that motion, in comparison with its review of Duong’s variance
request, indicates that it understood the differences between the two.

                                              6
