                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                 Nos. 16-1168 & 16-2200
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                                   ELAMIN BASHIR,
                                             Appellant
                                    ______________

                        Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                    (D.C. Nos. 2-14-cr-00284-002 & 2-14-cr-00421-001)
           District Judges: Hon. Petrese B. Tucker (No. 2-14-cr-00284-002) and
                       Hon. Stewart Dalzell (No. 2-14-cr-00421-001)
                                     ______________

                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                     May 25, 2018
                                   ______________

             Before: McKEE, SHWARTZ, and NYGAARD, Circuit Judges.

                                  (Filed: June 15, 2018)

                                     ______________

                                        OPINION *
                                     ______________




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

          El Amin Bashir appeals his conviction and sentence for drug conspiracy, as well

as his sentence for violating separately imposed conditions of supervised release. None

of the four issues he raises from his drug conspiracy conviction and sentence, nor the two

issues arising from his supervised release violation, has merit, and we will therefore

affirm.

                                               I

                                               A

                                               1

          In April 2014, Moises Parra, a confidential informant for the Chandler, Arizona

Police Department (“CPD”), contacted Michael Lewis, a drug trafficker with whom he

had previously distributed marijuana, about a potential new drug partnership. Lewis

asked Parra if he could sell cocaine in addition to marijuana, and Parra said he could.

          Thereafter, Parra met with Lewis, Bashir, Omar Teagle, and an unindicted co-

conspirator, Tony Davis, at the Renaissance Philadelphia Airport Hotel. During the

meeting, Parra and Teagle discussed selling approximately fifty kilograms of cocaine and

1000-2000 pounds of marijuana on a weekly basis, and the co-conspirators agreed to

travel to Phoenix, Arizona, to continue their discussions regarding the drug transactions.

          Four days later, Parra met with Bashir, Lewis, Teagle, and Reginald Irby at the

Hyatt Regency hotel in Phoenix. Parra then took them to a warehouse in Tempe,

Arizona, where they discussed the price and quantity of the cocaine they wanted shipped

to Philadelphia. During the meeting, Parra and Bashir discussed construction supplies


                                               2
and agreed they could use their construction businesses to launder the drug proceeds. In

addition, and as directed by law enforcement, Parra showed three sample kilograms of

cocaine to the co-conspirators. Parra and Irby opened the packages of cocaine, and after

Teagle, Bashir, and Irby discussed which of the three samples of cocaine they preferred,

Parra and Bashir rewrapped the cocaine. Parra and the co-conspirators confirmed the

transaction would involve twenty-five kilograms of cocaine. They then left the

warehouse, and Bashir and Irby purchased prepaid cell phones, including one for Parra,

to use to discuss the cocaine deal.

       A few weeks later, Teagle and Irby flew to Phoenix and delivered Parra a $25,000

deposit for the cocaine. Parra thereafter returned to Philadelphia, where he met with Irby.

When Irby showed Parra additional money for the cocaine, Irby was arrested, and over

$200,000 was seized.

       A grand jury sitting in the Eastern District of Pennsylvania returned an indictment

  charging Bashir with conspiracy to possess with intent to distribute five kilograms or

 more of cocaine, in violation of 21 U.S.C. § 846. Six days before the April 8, 2015 trial

 was set to begin, the Government filed an Information under 21 U.S.C. § 851 charging

 that Bashir had a prior felony drug conviction, which triggered a mandatory minimum

                sentence of twenty years’ imprisonment upon conviction.

       In a pretrial order, the District Court directed the Government to disclose

exculpatory and impeachment information pursuant to Brady v. Maryland, 373 U.S. 83

(1963), and Giglio v. United States, 405 U.S. 150 (1972), three days before trial. On

March 31, 2015, the Government disclosed, among other things: (1) three statements

                                             3
attributed to Teagle; (2) a report of an August 8, 2014 proffer of Lewis; and (3) Parra’s

redacted criminal history and payment history, which the Government supplemented in

emails to defense counsel the following week.

       Following the presentation of evidence, the District Court instructed the jury on

the conspiracy charge. In instructing the jury on the elements of conspiracy, the District

Court explained the object of the conspiracy—possession with the intent to distribute

controlled substances—and stated that in assessing Bashir’s state of mind, “Your decision

whether the defendant knew the material he possessed with the intent to distribute was a

controlled substance again involves a decision about the defendant’s state of mind.” No.

16-1168 App. 831. Defense counsel objected to the instruction, which the Court

overruled.

       The jury convicted Bashir, finding specifically that the quantity of cocaine

involved in the conspiracy and attributed to and/or reasonably foreseeable to Bashir was

five kilograms or more. He filed a motion for a new trial, alleging the Government

violated its Brady obligations by failing to disclose the grand jury testimony of Special

Agent Gordon Patten until after trial, which the District Court denied. Bashir was

sentenced to 240 months’ imprisonment and ten years’ supervised release.

                                             B

       After his sentencing, Bashir addressed a petition for violating conditions of

supervised release that were imposed following a 2003 drug conviction in the Middle

District of Florida. Bashir’s supervision on the Florida case was transferred to the

Eastern District of Pennsylvania.

                                             4
       The petition alleged, among other things, that Bashir violated the condition that he

commit no other crimes. 1 Bashir admitted that the new drug conviction violated that

condition of supervised release. The District Court then moved to sentencing and invited

Bashir to address the Court. Bashir stated, “Two things I’d like to say and I’d like to

present to the Court. You have in my presentence report it said that Florida notified the

district that I was unemployed.” No. 16-2200 App. 53. At that moment, however, the

District Court asked, “So what is the Government’s recommendation regarding the

[sentence] – it seems to me it’s pretty clear.” No. 16-2200 App. 53. The Government

asked for the statutory maximum sentence of twenty-four months’ imprisonment, which

was also the advisory Guideline minimum sentence, to be served consecutive to Bashir’s

240-month sentence. After hearing from defense counsel, the District Court stated:

       [T]he thing that troubles me is that this is such a cognate offense to what
       Chief Judge Tucker dealt with. . . . I think under the circumstances and,
       obviously, subject to your powerful arguments, the Government’s
       recommendation has a lot going for it. And now the two years is not an
       insubstantial time. I understand that. And, of course, the sanction that I
       impose, Mr. Bashir, is something you could appeal. . . . So in light of that,
       I’m going to impose a revocation sentence of 24 months consecutive to Chief
       Judge Tucker’s sentence . . . . Look, this is serious business that brings us
       together and we do not in any way, shape, or form take this lightly. We take
       your liberty very seriously . . . but I think our hands are pretty much tied here
       and I think the Government’s position has a lot of force behind it and so that’s
       what I’m going to do.

No. 16-2200 App. 54-55.




       1
         The petition included three additional violations: (1) making a false statement on
a monthly supervision report; (2) traveling outside the district without permission; and
(3) associating with a convicted felon. These violations were withdrawn.
                                              5
       Counsel for the Government then reminded the Court that Bashir had begun his

allocution by stating he had “two things” to say to the Court and that he had addressed

only one. In response, the Court asked Bashir if there was anything else he would like to

say, and the following transpired:

       THE DEFENDANT: I would like to appeal.

       THE COURT: Okay, [defense counsel] will be happy to do that for you.

       THE DEFENDANT: Okay. On record, I was called to a construction
       auction so it was surprise of this surprise flash. This is what the Government
       – this is the Government’s statement. Surprise means unknowing, not
       willing, unwilling, and I never seen these people again.

       THE COURT: Well, you certainly have a right to take an appeal.

       THE DEFENDANT: I’m just saying I want to make sure it’s on the record,
       so when I appeal, it wasn’t my intentions to be involved in something. It was
       a forced situation. I dealt with it up here, but I want to substantiate my appeal
       rights. I was employed the whole time. Two jobs. There’s a misread in my
       PSI that said I was unemployed, I was having trouble getting employment. I
       presented to the Court tax records, anything they wanted, all my tax W-2
       forms and anything else that they need to present to the courts. I had two
       jobs the whole time I was on supervised release. There’s no way one district
       could say I didn’t comply and another district said I complied so I got
       incarcerated. You got two different – I’ve got two different reports in one
       report. So I’d just like to make sure that record is established when I establish
       my appeal.

       THE COURT: Well, like I say, we take your liberty very seriously, but, at
       the same time, we take the Court’s authority very seriously and that’s why
       we’ve imposed the sanction that we have. But, of course, if you’d like to
       take an appeal, [defense counsel] knows how to do that.

No. 16-2200 App. 57-58. The hearing then concluded.

       Bashir appeals both his drug conspiracy conviction and sentence, as well as his

supervised release sentence.


                                              6
                                             II 2

       Bashir makes four arguments concerning his conviction and sentence on the drug

conspiracy charge. We will address each in turn.

                                             A

       Bashir argues the District Court abused its discretion in ordering the disclosure of

Brady and Giglio material three days before trial because it prevented him from

conducting an adequate investigation into (1) statements made by Teagle, Lewis, and

Irby, and (2) impeachment material concerning Parra. Bashir also argues that the timing

of the disclosures violated his due process rights.

       A “district court has general discretionary authority to order the pretrial disclosure

of Brady material ‘to ensure the effective administration of the criminal justice system.’”

United States v. Starusko, 729 F.2d 256, 261 (3d Cir. 1984) (quoting United States v.

Higgs, 713 F.2d 39, 44 n.6 (3d Cir. 1983)). We review the District Court’s discovery

order for abuse of discretion. Higgs, 713 F.2d at 45.

       As to the Brady-related due process claim, we “conduct[] a de novo review of the

District Court’s conclusions of law, and a clearly erroneous review of findings of fact.”

United States v. Risha, 445 F.3d 298, 303 (3d Cir. 2006). Under Brady, a prosecutor is

required to disclose evidence favorable to a defendant that is material to guilt or

punishment. Risha, 445 F.3d at 303. The obligation to disclose such “Brady material” is



       2
         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

                                              7
“not based on any general constitutional right to discovery in criminal cases, but rather on

a defendant’s due process right to a fair trial.” Higgs, 713 F.2d at 42. “Because Brady

rests on the requirements of due process, our focus [is] on when disclosure is necessary to

insure [the defendant] a fair trial.” Id. at 43. “To constitute a Brady violation, the

nondisclosure must do more than impede the defendant’s ability to prepare for trial; it

must adversely affect the court’s ability to reach a just conclusion, to the prejudice of the

defendant.” Starusko, 729 F.2d at 262. “No denial of due process occurs if Brady

material is disclosed to [the defendant] in time for its effective use at trial.” Higgs, 713

F.2d at 44.

       Under Giglio, the prosecution must disclose “information that [the defendant]

could use on cross-examination to challenge the credibility of government witnesses,”

and a defendant’s “right to a fair trial will be fully protected if disclosure [of such

material] is made the day that the witness testifies,” because “[d]isclosure at that time

will fully allow [the defendant] to effectively use that information to challenge the

veracity of the government’s witnesses.” Higgs, 713 F.2d at 44. Thus, a defendant’s

“due process rights to a fair trial would be satisfied . . . as long as disclosure is made the

day that the government witnesses are scheduled to testify in court.” Id.

       In short, whether a defendant’s due process rights are violated, or the District

Court’s disclosure deadline constitutes an abuse of discretion, depends on whether the

information is material and has been disclosed in time for the defendant to effectively use

it. As a result, we will simultaneously examine Bashir’s abuse of discretion and due

process arguments.

                                               8
                                              1

       Bashir first argues that he did not have sufficient time to investigate statements

attributed to Teagle and Lewis contained in investigative reports. The Government

informed Bashir that on separate occasions in July 2014 and January 2015, Teagle stated

that “Bashir told Teagle that he didn’t feel the situation, and he wanted out,” after the

Renaissance Hotel meeting, and that “Bashir didn’t know why Teagle was meeting Davis

at the hotel.” No. 16-1168 Appellant’s Sealed App. 37. 3 The Government also disclosed

a report of a proffer with Lewis in which Lewis stated that during the Arizona warehouse

meeting, “Bashir told Teagle that he wasn’t down with the situation anymore.” No. 16-

1168 Appellant’s Sealed App. 72. The Government also disclosed a report reflecting that

Lewis said “he heard Bashir tell Teagle that he was only there to watch his (Teagle’s)

back.” No. 16-1168 Government’s Sealed Supp. App. 7; Government’s Br. at 23.

       Bashir argues he was “unable to fully investigate” Teagle’s statements because

“[w]ithout the full reports containing the exculpatory statements, . . . Bashir had no

ability to interview the author of the reports, investigate the circumstances under which

the exculpatory statements were made, or understand the context of those statements to

establish their veracity in light of the government’s allegations of fabrication,” and that

he “did not have any time to investigate Michael Lewis’s proffer statement.” Appellant’s




       3
        The parties have discussed in their publicly filed briefs a number of items that are
supported by materials in the sealed materials and we do the same. To the extent we
quote from sealed materials, the order sealing the materials is lifted only as to the quoted
material we set forth herein.

                                              9
No. 16-1168 Br. 34-35. None of these complaints has merit. First, the Government was

not required to disclose the full reports. Second, portions of the reports contained

statements attributed to Teagle and Lewis, who are individuals known to Bashir, and

Bashir thus could have taken steps to inquire of them and explore their perceptions of

whether Bashir intended to participate in the conspiracy. The authors of the reports

would not have personal knowledge of this subject and thus, the ability to interview such

persons is irrelevant. Third, Bashir did not request any additional time to investigate the

statements, despite filing numerous other motions in the week leading up to trial. Finally,

Bashir used the material in his opening statement, telling the jury that “the evidence will

show that [Bashir] also told one of those people that were there in the warehouse with

him, . . . I don’t want anything to do with this. This is bad. I want nothing to do with it.”

No. 16-1168 App. 119-20. Because the material was disclosed to Bashir “in time for its

effective use at trial,” Higgs, 713 F.2d at 44, the District Court’s three-day deadline was

both an appropriate exercise of discretion and did not violate due process. 4

                                               2




       4
           Bashir also asserts that the District Court abused its discretion by refusing to hold
a hearing on whether Irby made statements that allegedly exculpated Bashir, without
reviewing the statements in camera before rendering a decision denying a hearing.
Bashir appears to refer to a statement contained in an investigative report of Lewis’s
proffer session in which, “[a]ccording to Lewis, Irby and Teagle said they were going to
get Bashir out of it. They would testify that he had nothing to do with it.” No. 16-1168
Government’s Sealed Supp. App. 6; Appellant’s No. 16-1168 Br. at 5; Government’s Br.
at 32. Bashir had sufficient time to investigate this statement and to make effective use
of it at trial, so we reject Bashir’s argument that in camera review of the statement was
needed.
                                              10
       Bashir next argues he did not have sufficient time to investigate impeachment

material relating to Parra. Bashir argues that the timing of the disclosure of Parra’s

criminal history and payment history “prevented [him] from investigating Parra’s

background in a way that ensured that [he] had all the information necessary to cross-

examine Parra fully and effectively,” such as “the unique financial arrangement Parra had

with the CPD.” Appellant’s No. 16-1168 Br. at 33-34.

       The Government disclosed Parra’s criminal and payment history before the Court-

imposed three-day deadline, and Bashir was able to effectively use the information. First,

in his opening statement, Bashir previewed for the jury that Parra was a “paid informant”

and detailed the amount of money he received, his criminal history, and his relationship

with the CPD. No. 16-1168 App. 119-22. Second, Bashir used the material to vigorously

cross-examine Parra and a CPD detective about, among other topics, Parra’s financial

relationship with the CPD, the criminal charges against Parra that were dropped on

account of his assistance to the CPD, and Parra’s drunk driving arrest while cooperating

with the CPD. Thus, Bashir’s effective use of this impeachment material demonstrates

that the District Court’s discovery order did not constitute an abuse of discretion and did

not violate due process.

       Bashir’s argument concerning the delayed disclosure of Parra’s bench warrant

history does not provide him a basis for relief. Although this information was not elicited

until trial, Bashir impeached Parra with information about his criminal history and

financial relationship with the CPD, and used Parra’s bench warrant history in his closing

argument, reminding the jury that Parra “had all of his charges dismissed, even though he

                                             11
was a fugitive for three years.” No. 16-1168 App. 770. Because Bashir was able to

effectively use this information at trial, he suffered no due process violation from its

delayed disclosure.

       Bashir also argues that a statement he asserts Lewis made in the August 8, 2014

proffer session, that “Parra had [been] beaten out of $80,000 while he and Lewis worked

together transporting marijuana in the St. Louis area,” was “disclosed too late for Bashir

to investigate to see if the allegation provided Parra with a motive to falsely implicate

Lewis and the other defendants, including Bashir.” Appellant’s No. 16-1168 at Br. 35.

Bashir does not, however, identify what more he would have investigated had he known

this information sooner, and Bashir was fully able to probe Parra’s motivations in cross-

examination, so Bashir’s argument fails.

       Bashir further contends that he was “unable to investigate a viable racial profiling

issue” because of the “delayed disclosure” of Lewis’s statement that Parra had initiated

contact with him—not the other way around—regarding potential new drug transactions.

Appellant’s No. 16-1168 Br. at 35-36. This assertion, however, is baseless because Parra

and Lewis had a prior history of drug trafficking. Therefore, the timing of the disclosure

does not provide basis for relief.

       We also conclude Bashir suffered no prejudice from the Government’s failure to

provide Bashir with the grand jury testimony of Special Agent Patten until after trial.

Before trial, the Government provided Bashir with reports written by Patten and Special

Agent Dennis Dawson containing the same information in Patten’s grand jury testimony

about who initiated the contact between Parra and Lewis. Thus, the grand jury testimony

                                             12
was cumulative. Moreover, Bashir probed this subject during Special Agent Dawson’s

testimony, eliciting the inconsistencies between his trial testimony and his report.

Therefore, the Government’s admitted failure to disclose the grand jury testimony of

Special Agent Patten did not constitute a Brady violation. See United States v. Hill, 976

F.2d 132, 138 (3d Cir. 1992).

       For these reasons, the District Court did not abuse its discretion in ordering the

disclosure of Brady and Giglio material three days before trial, and the timing of the

disclosure did not deny Bashir due process.

                                              B

       Next, Bashir argues the District Court improperly instructed the jury that Bashir

actually possessed material that turned out to be a controlled substance when it stated,

“Your decision whether the defendant knew the material he possessed with the intent to

distribute was a controlled substance again involves a decision of the defendant’s state of

mind.” No. 16-1168 App. 831. Bashir takes issue with the District Court’s use of “the

defendant,” rather than “a defendant,” and argues the Court thereby relieved the

Government of its burden to prove the element of possession with intent to distribute

beyond a reasonable doubt. We disagree.

       “We exercise plenary review over challenges to the legal standards expressed in

jury instructions.” United States v. Korey, 472 F.3d 89, 93 (3d Cir. 2007). “[W]e

consider the totality of the instructions and not a particular sentence or paragraph in

isolation,” United States v. Sussman, 709 F.3d 155, 175 (3d Cir. 2013) (citations and

internal quotation marks omitted), to determine “whether, viewed in light of the evidence,

                                              13
the charge as a whole fairly and adequately submits the issues in the case to the jury,”

United States v. Antico, 275 F.3d 245, 265 (3d Cir. 2001) (citations and internal

quotation marks omitted), abrogated on other grounds by Skilling v. United States, 561

U.S. 358 (2010).

       Jury instructions that relieve the Government of its burden to prove every element

of the charged offense beyond a reasonable doubt violate a defendant’s due process

rights. Korey, 472 F.3d at 93. We therefore examine the court’s instructions to

determine if they created a mandatory presumption by foreclosing the jury’s

consideration of whether the facts presented established the elements of the charged

offense. Id. (citations, internal quotations, and alterations omitted).

       In this case, Bashir was charged with conspiracy to possess with intent to

distribute five kilograms or more of cocaine. As a result, the Government was required

to prove beyond a reasonable doubt that Bashir “shared a goal with his co-conspirators to

further the purpose of distributing cocaine.” Korey, 472 F.3d at 93.

       The District Court’s instructions were proper. First, the Court correctly recited the

elements of a conspiracy and the elements of possession with the intent to distribute a

controlled substance, making clear that the “focus of Count 1 is whether the Defendant

and others agreed to possess with the intent to distribute a controlled substance, not

whether any such possession with the intent to distribute actually occurred.” No. 16-

1168 App. 827. Second, the Court also instructed the jury “not to single out any one

instruction alone as stating the law, but [to] consider the instructions as a whole in

reaching [its] decision. No. 16-1168 App. 801; see Sussman, 709 F.3d at 175.

                                              14
       Third, in light of the evidence presented, which depicted a reverse sting operation

in which the Government supplied the cocaine and displayed three kilograms as a sample,

it is clear the jury was asked to decide whether Bashir agreed with others to possess with

intent to distribute five kilograms or more of cocaine, and not whether Bashir’s handling

of the three kilogram cocaine sample rendered him guilty. Read in context, the District

Court’s reference to “the defendant” instead of “a defendant” when instructing the jury

on Bashir’s state of mind did not make the instructions erroneous or constitute a fact-

finding by the Court that absolved the jury of its obligation to consider whether the

Government met its burden to prove each element of the offense beyond a reasonable

doubt. 5

                                             C


       5
          Indeed, the totality of the Court’s instructions demonstrate that conspiracy was
the critical focus of the jury’s inquiry, not possession. For example, when instructing the
jury on the elements of conspiracy, the Court stated:
        Evidence which shows that the defendant Bashir only knew about the
        conspiracy or kept bad company by associating with the members of the
        conspiracy or was only present when it was discussed and when a crime was
        committed, is not sufficient to prove that he was a member of the conspiracy,
        even if the Defendant Bashir approved of what was happening or did not
        object to it. Likewise, evidence showing that the Defendant Bashir may have
        done something that happened to help a conspiracy does not necessarily
        prove that he joined the conspiracy.
No. 16-1168 App. 822. Further, the Court instructed the jury that
        [m]erely being present at the scene of a crime or where a crime is being
        planned or merely knowing that a crime is being committed or is about to be
        committed is not sufficient to find that the Defendant Bashir committed those
        crimes,” and that in order to convict, the jury must find that “the Defendant
        Bashir knowingly and deliberately associated himself with the crimes
        charged in some way as a participant, someone who wanted the crime to be
        committed, not as a mere spectator.
No. 16-1168 App. 822-23.
                                            15
          Bashir also challenges the application of the enhanced mandatory minimum

sentence of twenty years’ imprisonment pursuant to 21 U.S.C. §§ 841(b)(1)(A) and 851,

arguing that it violated his Fifth and Sixth Amendment rights because the predicate prior

conviction used to support the enhancement was not charged in the indictment or proved

to a jury beyond a reasonable doubt. As Bashir acknowledges, however, Almendarez-

Torres v. United States, 523 U.S. 224 (1998), and United States v. Blair, 734 F.3d 218,

227 (3d Cir. 2013), foreclose his argument.

          Because Bashir has identified no error in his conviction and sentence, we will

affirm.

                                              III 6

          Bashir makes two arguments challenging his sentence for violating his conditions

of supervised release. For the reasons set forth below, we reject both arguments.

                                               A

          Bashir asserts that he was denied an opportunity to address the District Court and

that the error affected his substantial rights. Whether we exercise plenary review, United

States v. Ward, 732 F.3d 175, 180 n.4 (3d Cir. 2013), or review for plain error, United

States v. Adams, 252 F.3d 276, 284 (3d Cir. 2001), we conclude that Bashir was not

denied his right to allocute.




          6
        The District Court had jurisdiction over whether to revoke a sentence of
supervised release pursuant to 18 U.S.C. § 3583(e). We have jurisdiction over this appeal
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
                                               16
       At revocation of supervised release proceedings, a defendant is entitled to “an

opportunity to make a statement and present any information in mitigation.” Fed. R.

Crim. P. 32.1(b)(2)(E). Thus, Rule 32.1 gives a defendant the right to allocution at a

supervised release sentencing. “The reason for allocution is not to permit the defendant

to re-contest the factual issues of innocence and guilt. Rather, the purpose of allocution

is to afford the defendant an opportunity to raise mitigating circumstances and to present

his individualized situation to the sentencing court.” Ward, 732 F.3d at 182.

       At the District Court’s invitation, Bashir presented “two things” to the Court. No.

16-2200 App. 53. First, he objected to a statement in the probation office’s memorandum

concerning his employment status. Although the District Court appeared to have

interrupted Bashir at this point, the Court—after announcing the sentence it intended to

impose—gave Bashir the opportunity to complete his allocution. At that time, Bashir

again discussed his employment status, stated that he wanted to appeal the Court’s

sentence, and denied his involvement in the drug conspiracy that triggered the supervised

release violation. After Bashir concluded his allocution, the District Court responded,

“Well, like I say, we take your liberty very seriously, but, at the same time, we take the

Court’s authority very seriously and that’s why we’ve imposed the sanction that we

have.” No. 16-2200 App. 58. Although it is preferable to allow a defendant to complete

his allocution before announcing its intended sentence, the District Court gave Bashir the

opportunity to allocute, considered what Bashir said, and made clear that it did not

warrant modifying the sentence the Court imposed. Moreover, to the extent Bashir

merely “re-contest[ed] the factual issues” resolved at his trial, the Court was under no

                                             17
obligation to consider those statements in imposing the sentence. See Ward, 732 F.3d at

181-82. Therefore, Bashir was not denied the right to allocute.

                                              B

       Bashir also argues his revocation sentence was procedurally unreasonable because

the District Court did not give meaningful consideration to his argument for a shorter or

concurrent sentence and failed to consider both the factors in 18 U.S.C. § 3553(a) and his

statement to the Court. Because Bashir failed to preserve his objection in the District

Court, we review for plain error. United States v. Flores-Mejia, 759 F.3d 253, 259 (3d

Cir. 2014) (en banc). 7

       “[F]or a sentence to be [procedurally] reasonable, the record must demonstrate that

the sentencing court gave meaningful consideration to [the relevant § 3553(a) factors, as

required by § 3583(e)] [but] need not . . . 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.” United

States v. Bungar, 478 F.3d 540, 543 (3d Cir. 2007) (citations and internal quotations

omitted). A “[s]entence is imposed for violations of supervised release primarily to

sanction the defendant’s breach of trust[,] while taking into account, to a limited degree,

the seriousness of the underlying violation and the criminal history of the violator.” Id. at


       7
         To establish plain error, Bashir must demonstrate: (1) an error; (2) that is clear or
obvious; and (3) that affects his substantial rights. Virgin Islands v. Mills, 821 F.3d 448,
456 (3d Cir. 2016). If all three prongs are satisfied, then our Court has discretion to
remedy the error “only if the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. at 457 (alteration and internal quotation marks
omitted).
                                             18
544. Our review is “highly deferential,” id. at 543, and the defendant bears the burden of

demonstrating the sentence was procedurally unreasonable, United States v. Tomko, 562

F.3d 558, 567 (3d Cir. 2009) (en banc).

       Here, the District Court’s revocation sentence was not procedurally unreasonable.

Bashir contested the facts underlying his conviction, but given the guilty verdict, the

Court was not required to discuss this nonmeritorious argument. See Bungar, 478 F.3d at

544. Moreover, Bashir argued for a reduced sentence because of his age. The District

Court chose to give greater weight to his criminal history, stating that it was “trouble[d]”

over the fact that Bashir’s two convictions were “cognate offenses,” i.e., that Bashir

committed the drug offense underlying his violation of supervised release after having

been convicted of another drug offense and serving a prison term. No. 16-2200 App. 54.

Thus, the record shows the District Court considered the nature of Bashir’s violation, his

background and criminal history, and his breach of the Court’s trust in imposing its

sentence. See 18 U.S.C. § 3553(a)(1)-(4). Accordingly, we find no error in Bashir’s

revocation sentence.

                                             IV

       For the foregoing reasons, we will affirm.




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