                                                                   NOT PRECEDENTIAL

                           UNITED STATES COURT OF APPEALS
                                FOR THE THIRD CIRCUIT
                               __________________________

                                        No. 14-3363
                                __________________________

                               UNITED STATES OF AMERICA

                                                 v.

                                       STEVEN MAZER,

                                                          Appellant
                                        ______________

                 APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                                   (2-12-cr-00546-001)
                           District Judge: Hon. Jan E. DuBois
                                      _____________

                         Submitted Under Third Circuit L.A.R. 34.1(a)
                                       May 19, 2015
                                     ______________

           Before: FUENTES, GREENAWAY, JR., and SLOVITER, Circuit Judges.

                                 (Opinion Filed: May 19, 2015)
                                       ______________

                                           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.

        Appellant Steven Mazer appeals the District Court’s within-Guidelines sentence

of 720 months’ imprisonment, imposed after he pled guilty to two counts of production

of child pornography, in violation of 18 U.S.C. § 2251(a). 1 Mazer contends that: (1) his

due process rights were violated because the District Court was unfairly prejudiced by

testimony at sentencing from family members of victims identified in the relevant

conduct provisions of the Pre-Sentence Report (“PSR”), but who were not the subjects of

the relevant counts of the Indictment (“Family Members”); and (2) the sentence is

procedurally unreasonable because the District Court failed to consider defense counsel’s

suggestion of civil commitment when devising Mazer’s sentence. For the following

reasons, we will affirm. 2

       Mazer argues that the Family Members’ testimony unfairly prejudiced the

sentencing judge and therefore violated Mazer’s due process.3 “No limitation shall be



       1
             This case arose after law enforcement executed a search warrant at Mazer’s
home and discovered video recordings that depicted Mazer sexually assaulting two
minors.
       2
             The District Court had jurisdiction over this case pursuant to 18 U.S.C.
§ 3231; we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
       3
               The Government asserts that Mazer did not preserve this claim and
therefore it should be reviewed for plain error. “[A]n objection must be specific enough
not only to put the judge on notice that there is in fact an objection, but to serve notice as
to the underlying basis for the objection.” United States v. Russell, 134 F.3d 171, 179 (3d
Cir. 1998). Mazer’s objection to the specific testimony at the hearing was sufficient to
give the Government notice of the underlying basis of his objection. Accordingly, our
                                                   2
placed on the information concerning the background, character, and conduct of a person

convicted of an offense which a court of the United States may receive and consider for

the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661. Further, Mazer has

cited no case where a sentence was vacated due to prejudicial statements to a sentencing

judge. Notably, the statements at issue contained substantially the same information as

the letters the testifying witnesses submitted — without objection — to the District Court

as sealed exhibits to the PSR. Accordingly, Mazer’s argument is without merit.

       Mazer also argues that the District Court’s sentence was procedurally

unreasonable. 4 Under our three-step sentencing framework, a district court must: “(1)

correctly calculate[] the defendant’s advisory Guidelines range, (2) appropriately

consider[] any motions for a departure under the Guidelines, and (3) g[i]ve meaningful

consideration to the sentencing factors set forth in 18 U.S.C. § 3553(a).” United States v.

Begin, 696 F.3d 405, 411 (3d Cir. 2012) (citing United States v. Wright, 642 F.3d 148,

152 (3d Cir. 2011)). Under the third step, a district court must “‘acknowledge and

respond to any properly presented sentencing argument which has colorable legal merit

and a factual basis.’” Id. (quoting United States v. Ausburn, 502 F.3d 313, 329 (3d Cir.



review is for abuse of discretion. United States v. Tomko, 562 F.3d 558, 567 (3d Cir.
2009).
       4
        We review sentences “under a deferential abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 41 (2007). “[W]e are to ensure that a substantively
reasonable sentence has been imposed in a procedurally fair way.” United States v.
Levinson, 543 F.3d 190, 195 (3d Cir. 2008).

                                                3
2007)).

       Mazer does not challenge the District Court’s application of the first and second

steps; therefore, we need not address them here. As to step three, Mazer argues that “the

district court failed to acknowledge and respond to the defense submission that . . . civil

commitment [] for federal sex offenders means [that] Mazer will not be released from

custody unless the Department of Justice determines he does not pose a serious danger to

the public.” Appellant Br. at 32. As Appellant acknowledges, the District Court “would

have been well within its discretion to take account of the availability of a civil

commitment procedure” in crafting the sentence. Id. at 34. The corollary, of course, is

that it was also well within the District Court’s discretion not to. Accordingly, the

District Court did not abuse its discretion in imposing the within-Guidelines sentence.

       Appellant also urges that “there is no indication that the district court gave any

consideration to the availability of civil commitment” in its assessment of the

§ 3553(a)(2) factors. Id. at 35. During the sentencing argument, defense counsel

mentioned civil commitment three times, but never as an independent argument. Each

time civil commitment was raised, it was within the broader context of whether an

impending sentence in the Court of Common Pleas would run consecutively to the

sentence imposed by the District Court. The District Court adequately considered this

argument and explicitly stated: “I’m going to let the Court of Common Pleas decide . . .

whether that sentence should run concurrently, at the same time as my sentence.” App.

187.
                                                  4
       The record as a whole evidences that the District Court appropriately considered

each of the § 3355(a) factors, providing much more than a “rote statement.” Begin, 696

F.3d at 411. The District Court discussed at length the nature and circumstances of what

it characterized as a “horrific story.” App. 184. It noted that many people would want

“the Court to lock [Mazer] up and throw away the key,” but stated “I’m not going to do

that.” Id. at 186–87. The District Court further clarified, that “[b]y the same token, I’m

not going to accept the recommended sentence of the Defendant.” Id. at 187. There is no

procedural error.

       For the foregoing reasons, we will affirm.




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