                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 16-1108
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                                 SHALIEK STROMAN,
                                             Appellant

                                     ______________

                                 APPEAL FROM THE
                    UNITED STATES DISTRICT COURT FOR THE
                      MIDDLE DISTRICT OF PENNSYLVANIA
                           (M.D. Pa. No. 3-14-cr-00270-003)
                      District Judge: Honorable James M. Munley
                                    ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  November 4, 2016
                                  ______________

           Before: JORDAN, GREENAWAY, JR., and RENDELL, Circuit Judges.

                                 (Filed: February 1, 2017)

                                     ______________

                                        OPINION*
                                     ______________

GREENAWAY, JR., 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.
       Shaliek Stroman seeks review of his sentence. He claims that the sentence was

both procedurally and substantively unreasonable. Since we find the sentence to be both

procedurally and substantively reasonable, we will affirm the judgment of conviction.

I.     BACKGROUND

       In 2013, agents from the Bureau of Alcohol, Tobacco, and Firearms and local

police in Luzerne County, Pennsylvania commenced an investigation into the drug

trafficking activities of co-defendant, Desmond Mercer. On May 7, 2014, in connection

with the investigation, police officers in Kingston, Pennsylvania conducted a traffic stop

on a vehicle driven by a cooperating witness. Police seized 146 packets of heroin, three

cell phones, and $2,553 from Stroman, a passenger in the vehicle. On May 22, 2014 and

August 13, 2014, Stroman sold heroin in two controlled purchases to a confidential

informant. On October 22, 2014, agents arrested Stroman. At the time, he was in

possession of 60 packets of heroin, a small bag of marijuana, and $898.

       Stroman pled guilty to conspiring to distribute and possess with the intent to

distribute heroin, in violation of 21 U.S.C. § 846. Following Stroman’s guilty plea, the

Presentence Investigation Report (“PSR”) calculated Stroman’s total offense level at 29

and established his criminal history category at VI. Accordingly, the United States

Sentencing Guidelines (the “Guidelines”) imprisonment range was set at 151 to 188

months.

       Stroman filed a motion seeking a downward departure pursuant to Guidelines

§ 4A1.3(b), alleging that the criminal history category resulting from the application of
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the career offender Guideline substantially overrepresented the seriousness of his

criminal history and the likelihood of recidivism. Additionally, Stroman filed a

sentencing memorandum requesting that the Court grant a downward variance based on

the factors set forth in 18 U.S.C. § 3553(a). The Government opposed both motions.

       At sentencing, the District Court expressed that the sentence “reflect[ed] full

consideration of [the § 3553(a)] factors.” App. 44. The Court considered “the necessity

of deterrence, just punishment, promotion for respect of the law, protection of the public,

assurance of correctional treatment for [Stroman], restitution to any victims where

appropriate, . . . the nature and the seriousness of the offense, [Stroman’s] history and

characteristics, the kinds of sentence available[,] . . . the advisory sentencing ranges[,]

and policies prescribed by our sentencing commission . . . .” App. 44. However, the

salient factor for the Court was Stroman’s criminal record. See App. 45 (observing that

Stroman “repeatedly committed criminal offenses while on bail” and that “he’s a

recidivist and a career heroin dealer since 2005”).

       The Court ultimately sentenced Stroman to a within-Guidelines sentence of 151

months’ imprisonment to be followed by a three-year term of supervised release, and a

special assessment of $100. However, defense counsel did not object to the Court’s

failure to explicitly address proffered evidence of Stroman’s work history, good

character, and his efforts at post-indictment rehabilitation while released pending

sentencing pursuant to 18 U.S.C. § 3553(a)(1). This appeal followed.


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II.    JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction under 18 U.S.C. § 3231. This Court has

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       When a defendant fails to preserve a procedural objection, we review the

procedural reasonableness of a criminal sentence for plain error. United States v. Flores-

Mejia, 759 F.3d 253, 256 (3d Cir. 2014) (en banc). “An error is plain if it is ‘clear’ or

‘obvious,’ ‘affects substantial rights,’ and ‘affects the fairness, integrity or public

reputation of judicial proceedings.’” Id. at 259 (quoting United States v. Dragon, 471

F.3d 501, 505 (3d Cir. 2006)). If there is no procedural error, we review the substantive

reasonableness of the sentence and will affirm the sentence “unless no reasonable

sentencing court would have imposed the same sentence on that particular defendant for

the reasons the district court provided.” United States v. Tomko, 562 F.3d 558, 568 (3d

Cir. 2009) (en banc).

III.   ANALYSIS

        On appeal, Stroman claims his sentence was procedurally and substantively

unreasonable because the District Court treated the Guidelines as mandatory and failed to

give meaningful consideration to the sentencing factors set forth in 18 U.S.C. § 3553(a).

       A.     Stroman’s Sentence Was Procedurally Reasonable

       When imposing a sentence, courts must follow a three-step process. First,

“[c]ourts must . . . calculate a defendant’s Guidelines sentence precisely as they would

have before [United States v. Booker, 543 U.S. 220 (2005)].” United States v. Gunter,
                                               4
462 F.3d 237, 247 (3d Cir. 2006). Second, courts “must ‘formally rul[e] on the motions

of both parties and stat[e] on the record whether they are granting a departure and how

that departure affects the Guidelines calculation, and take into account our Circuit’s pre-

Booker case law, which continues to have advisory force.’” Id. (alterations in the

original) (quoting United States v. King, 454 F.3d 187, 196 (3d Cir. 2006)). Third, courts

must “‘exercise[ ] [their] discretion by considering the relevant [§ 3553(a)] factors’ . . . in

setting the sentence they impose regardless whether it varies from the sentence calculated

under the Guidelines.” Id. (alterations in the original) (quoting King, 454 F.3d at 194).

Under the third step, courts “must ‘acknowledge and respond to any properly presented

sentencing argument which has colorable legal merit and a factual basis.’” Flores-Mejia,

759 F.3d at 256 (quoting United States v. Begin, 696 F.3d 405, 411 (3d Cir. 2012)).

       We turn to Stroman’s argument that the Court erred by treating the career offender

Guidelines as mandatory. Not only is this contention not supported by the record, the

record demonstrates the opposite—the Court referred to the Guidelines as “advisory

sentencing ranges.” App. 44 (emphasis added). Moreover, the District Court also

considered the § 3553(a) factors and Stroman’s arguments for a downward departure,

before ultimately rejecting those arguments. Accordingly, the Court did not commit




                                               5
procedural error in this regard.1

       B.     Stroman’s Sentence Was Substantively Reasonable

       We next consider the substantive reasonableness of the sentence. Our review of

the application of the § 3553(a) factors is “highly deferential.” United States v. Bungar,

478 F.3d 540, 543 (3d Cir. 2007). At a minimum, “the district court must furnish an

explanation ‘sufficient for us to see that the particular circumstances of the case have

been given meaningful consideration within the parameters of § 3553(a).’” United States

v. Merced, 603 F.3d 203, 216 (3d Cir. 2010) (quoting United States v. Levinson, 543 F.3d

190, 196 (3d Cir. 2008)). However, “meaningful consideration” does not require the

court to “discuss a defendant’s clearly nonmeritorious arguments, or otherwise ‘discuss

and make findings as to each of the § 3553(a) factors if the record makes clear the court

took the factors into account in sentencing.’” Bungar, 478 F.3d at 543 (quoting United

States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006)).


       1
         Parenthetically, Stroman failed to raise at any juncture, including any time during
his appeal, whether the District Court properly calculated the applicable Guidelines
range. A careful review of the record demonstrates that the District Court never formally
calculated the applicable Guidelines range. This is contrary to the first step of the three-
step procedural requirement for imposing a sentence. See United States v. Gunter, 462
F.3d 237, 247 (3d Cir. 2006). Nonetheless, the Court did note during the sentencing
hearing that it had reviewed the PSR. During the hearing, the parties did not formally
object to the calculation of the applicable Guidelines range within the PSR. And on
appeal, Stroman makes no claim that the Court miscalculated the Guidelines range. In
view of the parties’ complete agreement in these matters, the District Court’s failure to
explicitly calculate the Guidelines range did not “affect[] the outcome of the District
Court proceedings,” thus, the error was not prejudicial. See United States v. Flores-
Mejia, 759 F.3d 253, 259 (3d Cir. 2014) (en banc) (quoting United States v. Olano, 507
U.S. 725, 734 (1993)).
                                             6
       Although Stroman sought a downward variance from the sentencing range based

on the § 3553(a) factors, the District Court properly considered these factors and

explained its reasoning. The Court’s decision to give Stroman a sentence at the lower

end of the applicable Guidelines range further demonstrates the Court’s meaningful

consideration of the § 3553(a) factors. Thus, this sentence is not substantively

unreasonable.

IV.    CONCLUSION

       For the reasons above, we will affirm the District Court’s judgment of conviction.




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