                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 19-2855
                                       __________

                            UNITED STATES OF AMERICA

                                             v.

                               RAYMOND MAINOR,
                                                Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                         (D.C. Criminal No. 2-06-cr-00140-001)
                      District Judge: Honorable Wendy Beetlestone
                      ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 August 3, 2020
         Before: AMBRO, GREENAWAY, JR., and PORTER, Circuit Judges

                             (Opinion filed: August 7, 2020)
                                     ___________

                                        OPINION*
                                       ___________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Pro se appellant Raymond Mainor appeals the District Court’s order granting in

part and denying in part his motion for a reduction of sentence under 18 U.S.C.

§ 3582(c). We will affirm the District Court’s judgment.

       In 2008, pro se appellant Raymond Mainor was convicted of the following drug

and firearm offenses:

   • Count 1: possession with intent to distribute five kilograms or more of cocaine in
     violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)
   • Count 2: possession with intent to distribute five kilograms or more of cocaine in a
     school zone in violation of 21 U.S.C. § 860(a)
   • Count 3: possession with intent to distribute 500 grams or more of cocaine in
     violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)
   • Count 4: possession with intent to distribute 500 grams or more of cocaine in a
     school zone in violation of 21 U.S.C. § 860(a)
   • Count 5: possession with intent to distribute five grams or more of crack in
     violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)
   • Count 6: possession with intent to distribute five grams or more of crack in a
     school zone in violation of 21 U.S.C. § 860(a)
   • Count 7: possession of a firearm in furtherance of a drug-trafficking crime in
     violation of 18 U.S.C. § 924(c)
   • Count 8: possession of a firearm by a convicted felon in violation of 18 U.S.C.
     § 922(g)(1)
   • Count 9: distribution of cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C)
   • Count 10: distribution of cocaine in a school zone in violation of 21 U.S.C.
     § 860(a)

ECF No. 161 (judgment) at 1–2. The Court treated the drug offenses from counts 1, 3, 5,

and 9 as lesser-included offenses of counts 2, 4, 6, and 10, respectively. See id. at 1. The

Court then sentenced Mainor to concurrent terms of 20 years’ imprisonment on counts 2,

4, 6, and 10; a concurrent term of 10 years’ imprisonment on count 8; and a consecutive
                                              2
term of 5 years’ imprisonment on count 7, for a total term of 25 years in prison. See id.

at 3. The Court also imposed 20 years of supervised release as to counts 2, 4, 6, and 10,

and 3 years of supervised release as to counts 7 and 8, all to run concurrently. See id. at

4. Mainor appealed, and we affirmed. See United States v. Mainor, 393 F. App’x 10 (3d

Cir. 2010).

       Since the time of Mainor’s sentencing, there have been two relevant amendments

to the sentencing statute. First, in 2010, the Fair Sentencing Act reduced the penalties for

crack offenses like Mainor’s (involving less than 28 grams of crack and occurring after a

prior qualifying conviction) to eliminate the mandatory minimum and set a statutory

maximum of 30 years. See 21 U.S.C. § 841(b)(1)(C) (2010); see generally Dorsey v.

United States, 567 U.S. 260, 269 (2012).1 It did not, however, change the sentencing

range for his offenses involving cocaine. See 21 U.S.C. § 841(b)(1)(A)(ii), (b)(1)(B)(ii),

(b)(1)(C). And it applied only to defendants sentenced after August 3, 2010. See

Dorsey, 567 U.S. at 282. Second, in 2018, the First Step Act made certain provisions of

the Fair Sentencing Act retroactive, including its reduction of sentences for crack

offenses. See First Step Act of 2018, § 404, Pub. L. No. 115-391, 132 Stat. 5194, 5222;

see also United States v. Jackson, -- F.3d ---, No. 19-2499, 2020 WL 3563995, at *2 (3d

Cir. July 1, 2020).



1
 The distribution-in-a-school-zone statute does prescribe a one-year mandatory
minimum. See 21 U.S.C. § 860(a).

                                             3
       Based on these statutory changes, Mainor filed a motion for a reduction of

sentence under 18 U.S.C. § 3582(c). The District Court denied the motion in part and

granted it in part. The Court determined that, while Mainor was eligible for a reduced

term of imprisonment for his crack offense (count 6), it would decline to use its discretion

to adjust that sentence because it would not affect Mainor’s total time in prison. The

Court explained, “even if Mainor’s ten-year[2] sentence on the crack charge were lowered,

the twenty-year mandatory minimum for his powder cocaine offenses would remain

unchanged.” ECF No. 254 (Dist. Ct. Op.) at 6–7. The Court did, however, reduce

Mainor’s term of supervised release. The Court stated that Mainor had been sentenced to

consecutive ten-year terms of supervised release: “a ten-year term for his powder cocaine

offense, the statutory minimum, and a ten-year term for his crack cocaine offense.” Id. at

7. The Court reduced the term of supervised release for the crack offense to 6 years, for a

total term of 16 years. See ECF No. 258 (amended order). Mainor appealed.

       We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We review

the District Court’s order for abuse of discretion. See Jackson, 2020 WL 3563995, at *2;

see also United States v. Sutton, -- F.3d ---, No. 19-2009, 2020 WL 3428076, at *6 (7th

Cir. June 23, 2020) (“A district court has broad discretion in addressing a First Step Act

motion.”).




2
 As we discuss below, the District Court incorrectly recounted the length of some of
Mainor’s terms of imprisonment and supervised release.
                                            4
       On appeal, Mainor argues that we should vacate the District Court’s order because

the Court misstated the length of the terms of imprisonment and supervised release at

issue.3 We agree (as does the Government) that the District Court’s recitation was

inaccurate: Mainor’s term of imprisonment for the crack offense is 20 years, not 10, and

he is subject to concurrent 20-year terms of supervised release, not consecutive 10-year

terms. See ECF No. 161 (judgment).

       However, we conclude that the District Court’s error is harmless. “A non-

constitutional error is harmless when it is highly probable that the error did not prejudice

the defendant.” United States v. Zabielski, 711 F.3d 381, 387 (3d Cir. 2013) (alteration

omitted) (quoting United States v. Langford, 516 F.3d 205, 215 (3d Cir. 2008)); see also

Williams v. United States, 503 U.S. 193, 203 (1992) (explaining that error is harmless if

it “did not affect the district court’s selection of the sentence imposed”); United States v.

Flowers, -- F.3d ---, No. 19-3742, 2020 WL 3428073, at *4 (6th Cir. June 23, 2020)

(applying harmless error on appeal of district court’s denial of motion to reduce sentence

under First Step Act). The District Court made clear that the reason it declined to reduce

Mainor’s term of imprisonment on the crack count was because “nothing the Court does


3
 We will consider only the issue that Mainor raised in his opening brief. See Laborers’
Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.
1994) (“An issue is waived unless a party raises it in its opening brief, and for those
purposes a passing reference to an issue will not suffice to bring that issue before this
court.” (quotation marks, alteration omitted); Mala v. Crown Bay Marina, Inc., 704 F.3d
239, 245 (3d Cir. 2013) (noting that pro se litigants “must abide by the same rules that
apply to all other litigants”).

                                              5
as to Mainor’s crack sentence will affect the total time he spends incarcerated.” ECF No.

254 at 7. That rationale is not affected by the fact that the crack sentence is actually the

same length as, and not shorter than, the other sentences. Thus, we will not disturb the

District Court’s denial of this part of Mainor’s motion.

       Likewise, Mainor has made no effort to show that the District Court’s inaccuracy

regarding the length of his terms of supervised release prejudiced him. We agree with the

Government that Mainor was not harmed by the District Court’s order “reduc[ing] the

total term of supervised release from 20 years to 16 years.” Gov’t Br. at 21.4

       Accordingly, we will affirm the District Court’s judgment.




4
 If anything, the Court’s error may have prejudiced the Government, but since the
Government did not file a cross-appeal (or otherwise object), we need not explore that
matter further. See Greenlaw v. United States, 554 U.S. 237, 240 (2008); United States
v. Gutierrez-Ceja, 711 F.3d 780, 783 (7th Cir. 2013).
                                            6
