                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     _____________

                                      No. 16-1578
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                                 DESMOND MERCER,
                                            Appellant
                                   _____________

                      Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                           (M.D. Pa. No. 3-14-cr-00270-002)
                      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.
          Desmond Mercer argues on appeal that this Court should remand his case to the

District Court in order to expressly calculate his 168-month prison sentence under the

U.S. Sentencing Guidelines. Mercer provides no basis for the relief he seeks. We will

affirm.

I.        Facts

          On October 21, 2014, Mercer and his associates were indicted on conspiracy to

distribute heroin and related charges. Pursuant to a written plea agreement, Mercer pled

guilty to Count 1 of the indictment. The Government agreed with counsel to recommend

a sentence of 168 months in prison. At the plea hearing, counsel for the Government

reviewed the terms of the plea agreement with Mercer and confirmed that Mercer and his

counsel understood that the plea agreement recommended a 168-month sentence. Both

Mercer and his counsel stated that they understood and agreed with the terms of the plea

agreement.

          At the sentencing hearing, the District Court imposed the jointly recommended

168-month sentence. The Court stated on the record that in rendering sentence it

considered Mercer’s statements, the statements of his counsel and the Government as

well as the presentence investigation report and the Guidelines range. The Court also

stated that the sentence would satisfy the requirements of 18 U.S.C. § 3553(a). The

presentence investigation report determined and the Court found that Mercer was a career

offender pursuant to U.S. Sentencing Guidelines § 4B1.1. The guidelines range was 151


                                              2
to 188 months. Mercer posed no objection to the Court’s considerations in rendering

sentence. This appeal followed.

II.    Standard of Review1

       We review the procedural reasonableness of a sentence for abuse of discretion.

United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). However, because

Mercer did not object to the sentence nor the manner in which it was imposed, we review

his claim for plain error. See Fed. R. Crim. P. 52(b) (“A plain error that affects

substantial rights may be considered even though it was not brought to the court’s

attention.”); see also United States v. Flores-Mejia, 759 F.3d 253, 255 (3d Cir. 2014) (en

banc) (stating that a “party must object to the procedural error complained of after

sentence is imposed in order to avoid plain error review on appeal”).

       Under plain error review, we must find (1) error was committed; (2) the error was

plain; and (3) it affected the defendant’s substantial rights. See United States v. Stevens,

223 F.3d 239, 242 (3d Cir. 2000). “The error must be ‘an egregious error or a manifest

miscarriage of justice.’” United States v. Petersen, 622 F.3d 196, 203 (3d Cir. 2010)

(quoting United States v. Price, 76 F.3d 526, 530 (3d Cir. 1996)). However, even if all

the prerequisites are met, we “will not exercise our discretion to reverse a case for plain

error unless the error ‘seriously affect[s] the fairness, integrity, or public reputation of

judicial proceedings.’” Id. (quoting Jones v. United States, 527 U.S. 373, 389 (1999)).


       1
         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(a).
                                               3
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).

III.   Analysis

       On appeal, Mercer argues that his sentence is procedurally unreasonable because

the failure to expressly calculate his Sentencing Guidelines range on the record violates

the three-step sentencing protocol in United States v. Gunter, 462 F.3d 237, 247 (3d Cir.

2006). When imposing a sentence, a district court must (1) calculate a defendant’s

Sentencing Guidelines range; (2) formally rule on motions for departure and explain how

any departure affects the Guidelines calculation; and (3) exercise discretion when

considering relevant factors in 18 U.S.C. § 3553(a). United States v. Gunter, 462 F.3d

237, 247 (3d Cir. 2006). “[F]ailing to calculate (or improperly calculating) the

Guidelines range . . . or failing to adequately explain the chosen sentence” is significant

procedural error. Tomko, 562 F.3d at 567 (quoting Gall v. United States, 552 U.S. 38, 51

(2007)).

       Because the District Court did not expressly calculate Mercer’s sentence on the

record, there was error. See id. However, the error was not “egregious” or a “manifest

miscarriage of justice.” Petersen, 622 F.3d at 203. The Court stated that it took into
                                               4
account the Guidelines range and the presentence investigation report, which calculated

Mercer’s offense level and criminal history category, and that the sentence imposed

would satisfy the purposes in § 3553(a). Prior to sentencing, the parties jointly

recommended that Mercer be sentenced to 168 months in prison. Furthermore, in its

Statement of Reasons, the District Court provided its findings on the presentence

investigation report and its determination of the Guidelines range by noting Mercer’s

offense level and criminal history category.2

       On appeal, Mercer makes no claims that the District Court miscalculated the

Guidelines range or that the findings in the presentence investigation report are

erroneous. As such, the Court’s sentence did not result from, and was not affected by, its

failure to expressly calculate the Sentencing Guidelines range. Thus, we conclude that

the error was harmless.

IV.    Conclusion

       For the above reasons, we will affirm the District Court.




       2
        The District Court entered its Statement of Reasons on March 7, 2016 and
entered an amended Statement of Reasons on July 26, 2016, which clarified that the
presentence investigation report’s two-level enhancement pursuant to U.S. Sentencing
Guidelines § 2D1.1(b)(1) should not be applied.
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