                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     _____________

                                      No. 16-2731
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                                  BENJAMIN EASLEY,
                                             Appellant

                                     _____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                 (D.C. Nos. 2:13-cr-000061-003, 2:14-cr-00140-001)
                        District Judge: Hon. Cynthia M. Rufe
                                    ____________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   March 16, 2017
                                   ____________

      Before: GREENAWAY, Jr., SHWARTZ, and GREENBERG, Circuit Judges

                              (Opinion Filed: July 26, 2017)

                                     ______________

                                        OPINION*
                                     ______________




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

       In 2016, the United States District Court for the Eastern District of Pennsylvania

sentenced Benjamin Easley (“Easley”) to 144 months of prison and 5 years of supervised

release for crimes related to a bank-fraud and identity-theft conspiracy. During

sentencing, Easley argued that he should receive a shorter sentence for several reasons:

(a) police illegally arrested him as a younger man; (b) someone murdered his brother in

the late 1990s; (c) he played an active role in his community; (d) he suffers from a mental

illness; (e) he has a physical illness; and (f) social scientists have concluded that longer

sentences do not deter crime.

       The District Court Judge responded to these arguments in a long and personal

colloquy that implored Easley to take responsibility for his actions and to consider the

moral weight of his crime. After delivering this speech and hearing from the prosecution,

the Judge sentenced Easley. Approximately a month later, Easley filed a Motion for

Relief Pending Appeal and the District Court denied this Motion because it lacked

jurisdiction to modify Easley’s sentence. Easley filed a timely appeal.

       Easley raises several issues on appeal. First, he argues that his sentence was

procedurally unreasonable because the Judge did not meaningfully consider his

arguments for leniency (a) that he possessed a mental illness; (b) that he suffered from a

physical illness; and (c) that lengthy sentences do not deter crime. Second, he asserts that

his sentence was procedurally unreasonable because the Judge based Easley’s sentence

on the unfounded assumptions (a) that Easley had received a lighter sentence in an earlier
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case because of his illegal arrest in the 1990s and (b) that Easley had recruited children

whom he had mentored to further his criminal enterprises. Third, he contends that the

District Court incorrectly concluded that it lacked jurisdiction over his Motion for Relief

Pending Appeal.

     I.    DISCUSSION

       Easley challenges his sentence as procedurally unreasonable. If a defendant

objects to a District Court’s sentence as procedurally unreasonable for the first time in his

or her appeal, we review the sentence for plain error. United States v. Flores-Mejia, 759

F.3d 253, 258 (3d Cir. 2014) (en banc). “For reversible plain error to exist, there must be

(1) an error; (2) that is plain; (3) that affects substantial rights; and (4) which seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” United States

v. Tai, 750 F.3d 309, 313–14 (3d Cir. 2014). In other words, even if there is plain error,

we may still affirm the sentence if the error is harmless. See United States v. Knight, 266

F.3d 203, 206 n.6 (3d Cir. 2001) (citing Michael O’Shaughnessy, Appellate Review of

Sentences, 88 Geo. L.J. 1637, 1643 (2000)). The error is harmless if it is “clear that the

error did not affect the district court’s selection of the sentence imposed.” United States

v. Langford, 516 F.3d 205, 215 (3d Cir. 2008).

       Easley challenges his sentence as procedurally unreasonable because the District

Court Judge, he claims, did not meaningfully consider his arguments for leniency and

because the Judge based her decision on unfounded assumptions about Easley. Easley


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raised these objections for the first time on appeal. As a result, we review them under our

plain error standard.

       Under this standard, Easley’s two procedural claims fail. With regards to

Easley’s first procedural claim, we apply a generous standard because “[a] sentencing

court need not analyze explicitly every argument that a defendant puts forward.” United

States v. Quiles, 618 F.3d 383, 397 (3d Cir. 2010). Under this standard, we reject

Easley’s first procedural claim because the record shows that the Judge considered

Easley’s arguments for leniency. The Judge ordered Easley to participate in a mental

health program because of his mental illness; allowed him to receive medical treatment

because of his physical illness; and acknowledged his deterrence argument when the

Judge said “I’m still a judge that believes in the general deterrence philosophy.” App.

229.

       Easley’s second procedural claim that the sentencing Judge based the sentence on

unsubstantiated assumptions is also unpersuasive. The Judge did assume that Easley had

invoked his unwarranted arrest to reduce an earlier sentence, App. at 219 (“I’m sure you

told my colleague, who sentenced you the last time about [the wrongful arrest]”), but the

Judge did not base her sentence on that fact. Instead, the Judge referenced Easley’s

previous sentence to suggest that if his false arrest had driven him to criminality, Easley

should have learned, after this previous sentence, to take responsibility for his actions and

not to blame his error on a previous wrong, App. at 219 (“And I’m sure that’s a


                                              4
motivating factor to depreciate someone’s sentence hoping that they’ve learned from this

mistake but you didn’t. You didn’t in a big way.”).

       Similarly, Easley has failed to prove that the trial Judge based the sentence on the

assumption that Easley preyed on the people that he mentored to further criminal

enterprises. This argument lacks merit because the Judge did not assume this, let alone

base her decision on it. Instead, the Judge referenced Easley’s criminal enterprise to find

that he lacked the general capacity to serve as a role model to the people he mentored.

       Finally, the District Court correctly concluded that it lacked jurisdiction over his

Motion for Relief Pending Appeal. Other than through habeas corpus, a district court

may only modify a sentence if the judge (a) receives a motion from the Director of the

Bureau of Prisons, 18 U.S.C. § 3582(c)(1)(A), (b) discovers that the Sentencing

Commission had lowered the sentencing range, 18 U.S.C. § 3582(c)(2), or (c) finds that it

may modify a sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure,

18 U.S.C. § 3582(c)(1)(B). The Director of the Bureau of Prisons has not submitted a

motion to the District Court. The Sentencing Commission has not lowered the sentencing

range. Thus, the District Court may only modify Easley’s sentence pursuant to Rule 35.

       Pursuant to Rule 35, the District Court denied the Motion for Relief Pending

Appeal. Rule 35 allows District Courts to reduce a sentence within 14 days after a

sentence is rendered, Fed. R. Crim. P. 35(a), or upon motion from the government, Fed.

R. Crim. P. 35(b). Easley submitted his motion more than 14 days after sentencing and


                                              5
the government has not submitted a motion. As a result, the District Court correctly

found that it lacked jurisdiction.

       Easley attempts to skirt this law by framing his request as seeking a

recommendation, as opposed to a request for a reduction in sentence. At least one other

circuit court, however, has denied a litigant’s attempt to draw upon a district court’s

inherent power to circumvent 35(a). United States v. Ortiz, 741 F.3d 288, 292 n. 2 (1st

Cir. 2014) (rejecting a motion to reconsider because “for motions—like this one—that

fall squarely within the purview of Rule 35(a), a district court’s authority to grant relief

stems solely from that rule’s positive law, not from any inherent power”). We agree.

    II.    CONCLUSION

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




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