                                                      NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT
                       _____________

                            No. 10-3559
                            ___________

                  UNITED STATES OF AMERICA


                                  v.

                  JASON EMANUEL SMART-EL,
                       a/k/a Jason Smartel

                      Jason Emanuel Smart-El,
                                    Appellant


                          ______________

Appeal from United States District Court for the District of New Jersey
                    (Crim No. 09-cr-00605-001)
          District Court Judge: Honorable Noel L. Hillman

                             __________

            Submitted Under Third Circuit L.A.R. 34.1(a)
                        February 10, 2011
                          ___________

Before: JORDAN, GREENAWAY, JR. and GARTH, Circuit Judges.
              (Opinion Filed: February 11, 2011)


                            ___________

                             OPINION
                            ___________



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GARTH, Circuit Judge:

       Appellant Jason Emanuel Smart-El (“Smart-El”) appeals from the District Court’s

sentence of 198 months. Smart-El contends the District Court’s sentence was

unreasonable and “greater than necessary” to accomplish the goals of sentencing. He

argues that the Court did not give “meaningful consideration” to certain relevant

mitigating factors, and more generally to all of the § 3553(a) factors. We will affirm.

                                             I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we set forth only those facts necessary to our

analysis.

       Smart-El was arrested on July 8, 2008, and on September 23, 2009, Smart-El pled

guilty to a two-count Superseding Information charging him with Possession with Intent

to Distribute five grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(B) (Count One), and Possession of a Firearm by a Convicted Felon, in

violation of 18 U.S.C. § 922(g)(1) (Count Two).

       The District Court held a sentencing hearing on August 13, 2010. The Probation

Office calculated Smart-El’s total offense level to be 31, and his criminal history to be

Category VI. Thus Smart-El faced an advisory guideline sentencing range of 188 to 235

months. Count One carried a mandatory minimum term of five years and maximum of

40 years, while Count Two carried a maximum of 10 years. Probation applied the career

offender enhancement pursuant to U.S.S.G. § 4B1.1, in part because Smart-El had been

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previously convicted of drug distribution offenses and aggravated assault and robbery.

Both parties agreed at sentencing on the applicable advisory Guideline sentencing range

(See Sentencing Transcript, pp. 10-11), and Smart-El does not contest the applicable

range here.

          At sentencing, Smart-El did not make a departure motion, but asked the court for a

downward variance. Smart-El argued for a below Guideline sentence based on drug

abuse problems, mental and physical health conditions, including a fight with lymphoma

and a diagnosis as a schizophrenic catatonic, the nature and circumstances of the offense

in that Smart-El was a lower level drug dealer, his close relationship with his family, and

the disparate treatment faced by black male crack-dealer career offenders under the

Guidelines. Smart-El submitted supportive letters from friends and family. The

Government asked for a sentence within the Guideline range, citing Smart-El’s past

criminal history, the nature of his offense, and the need to deter Smart-El and protect the

public.

          The Court considered the 18 U.S.C. § 3553(a) factors, and the additional factors

mentioned by Smart-El, but ultimately denied a downward variance and sentenced Smart-

El to a total of 198 months incarceration, a sentence at the low end of the Guideline

range. The Court also imposed a five-year term of supervised release. The Court’s

sentence was based in part on the seriousness of Smart-El’s offense, the need for

deterrence, the need to protect the public from further crimes, and Smart-El’s past

criminal history.



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       The District Court entered its judgment on August 19, 2010, and Smart-El filed a

timely Notice of Appeal on August 24, 2010.



                                             II.

       Smart-El argues that his within-Guideline-range sentence is unreasonable because

the District Court improperly weighed certain § 3553(a) factors and failed to give

sufficient weight to others.

       The sentence imposed by a district court is reviewed for unreasonableness. United

States v. King, 454 F.3d 187, 194 (3d Cir. 2006). The party challenging the sentence has

the burden to demonstrate unreasonableness. Id. We evaluate the reasonableness of a

sentence by reviewing factual findings for clear error and exercising plenary review over

a district court’s interpretation of the Guidelines. United States v. Fisher, 502 F.3d 293,

308 (3d Cir. 2007). This is done via a three-step process. Id. First, we review whether

the sentencing court correctly calculated the Guideline range. Second, we determine

whether the district court considered the § 3553(a) factors and any other sentencing

grounds “properly raised by the parties which have recognized legal merit and factual

support on the record.” Id. This second step includes consideration of departure

motions. United States v. Jackson, 467 F.3d 834, 840 (3d Cir. 2006). Finally, we

determine whether the § 3553(a) factors were reasonably applied to the circumstances of

the case. Under this third step, we review the record for a demonstration that the trial

court gave “meaningful consideration” to the § 3553(a) factors. Id. at 841. However, the

court need not discuss an argument that is without merit, nor must a court discuss and

                                             4
make findings as to each § 3553(a) factor “if the record makes clear the court took the

factors into account at sentencing.” Id. In summary, we must ascertain both that the

district court followed the proper procedure, and that its sentence was substantively

reasonable. Fisher, 502 F.3d at 308. “[W]e address any challenges to the substantive

reasonableness of the sentence under an abuse of discretion standard . . . .” United States

v. Ward, 626 F.3d 179, 183 (3d Cir. 2010).

       Neither party argues that the Guideline range was calculated incorrectly.

Likewise, no departure motions were submitted in this case. Smart-El does not

distinguish what appears to be some claim of procedural error from a claim of substantive

error. He argues that the District Court did not meaningfully consider the § 3553(a)

factors, and that the within-Guideline sentence was unreasonable: in other words that the

§ 3553(a) factors were not reasonably applied to the circumstances of his case. Smart-El

has failed to meet his burden of demonstrating that the District Court committed a

procedural error or assigned to him a sentence that was substantively unreasonable.

       The District Court reviewed the parties’ written submissions, listened to

arguments from both parties, and heard directly from Smart-El. The record makes clear

that the District Court gave full consideration to the § 3553(a) factors and to the

mitigating factors propounded by Smart-El. (Sentencing Transcript, pp. 29-30.) The

District Court specifically listed all of the mitigating factors argued by Smart-El and

noted that it had taken all of these arguments into consideration. (Sentencing Transcript,

p. 30.) The Court additionally noted its discretion to grant a variance. (Id.) The Court

ultimately determined that a variance was unwarranted, and that a Guideline sentence

                                              5
“furthers the statutory factors.” (Id.) This determination was based in part on Smart-El’s

past criminal history and recidivism. The Court rejected certain of Smart-El’s mitigation

arguments (for example, by noting that , Smart-El’s hardships should have been a marker

for Smart-El to change his behavior, rather than continue it), but also accepted certain

arguments in deciding upon a sentence toward the bottom of the Guideline range (for

example, Smart-El’s close ties to his family and his work history). The District Court’s

determination was neither procedurally nor substantively unreasonable, and the Court did

not abuse its discretion in assigning a sentence within the Guideline range.

                                            III.

       For the foregoing reasons, we will affirm the sentence of the District Court.




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