                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                       No. 18-1694
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                            STEPHAN EDWARD CORRICK,
                                                 Appellant
                                  ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                          (D.C. No. 2-16-cr-00164-001)
                    District Judge: Hon. Donetta W. Ambrose
                                 ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  January 14, 2019
                                  ______________

        Before: GREENAWAY, JR., SHWARTZ, and PORTER, Circuit Judges.

                              (Opinion Filed: May 29, 2019)
                                    ______________

                                       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.

       After pleading guilty to several federal crimes arising out of two armed robberies,

Appellant Stephan Corrick (“Corrick”) received a sentence of 171 months of

imprisonment, a sentence at the bottom of his advisory range calculated under the

applicable United States Sentencing Commission Guidelines (“Guidelines”). On appeal,

Corrick avers that the District Court’s sentence was both procedurally and substantively

unreasonable. We disagree for the reasons set forth below. Accordingly, we will affirm

the District Court’s sentence.

                                    I. BACKGROUND

       During the spring of 2016, Corrick and Dana Shipley (“Shipley”) committed two

armed robberies of pharmacies in the Pittsburgh area. Between both robberies, Corrick

and Shipley stole approximately $2,200 in cash and $45,000 worth of various

prescription drugs that qualify as controlled substances. Although Corrick and Shipley

escaped from the scenes of the crimes, investigators eventually identified and located

both of them. While speaking with investigators, Corrick confessed to both robberies.

       Based on the confession and other evidence, Corrick was charged in the summer

of 2016 with six counts, including conspiracy, robberies of both pharmacies, possessing

and brandishing a firearm in furtherance of a crime of violence, and possession with

intent to distribute controlled substances. Eventually, Corrick pled guilty to all of the

counts in his indictment.

        Using the 2016 Guidelines, the presentence investigation report (“PSR”)



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calculated a total offense level of 281 and a criminal history category of II. Accordingly,

the PSR computed a Guidelines range of 171 to 192 months of imprisonment—87 to 108

months for five counts and 84 months, to run consecutively, for a sixth count.

       As relevant here, Corrick objected to the PSR’s marijuana equivalency, arguing

that the District Court should replace the 1 to 6,700 conversion ratio for Oxycodone and

Hydrocodone with the 1 to 1,000 conversion ratio for heroin. Applying the heroin ratio,

Corrick argued, would reduce the total quantity of drugs to the equivalent marijuana

weight of 444 kilograms and thus lessen his base offense level to 26. Corrick, however,

provided no authority for his request to change the conversion calculus. Accordingly, an

addendum to the PSR maintained the prior base offense level calculation of 30, noting

that the drug conversions were computed several times and followed the Guidelines’

recommendation.

       In his sentencing memorandum, Corrick again raised his objection to the drug

conversion ratio. His argument refined, Corrick there focused on the drafting history of

the relevant equivalencies. In particular, Corrick noted that the Oxycodone to marijuana

conversion ratio—which used to be 1 to 500—had been increased by a 2003 amendment



1
  Where, as with several of Corrick’s counts here, certain drug crimes involve multiple
controlled substances, the Guidelines provide that each drug’s weight should be
converted to an equivalent marijuana weight to determine the base offense level. See
U.S. Sentencing Guidelines Manual § 2D1.1 cmt. n.8 (U.S. Sentencing Comm’n 2016).
Using the Guidelines’ conversion ratios for each controlled substance at issue—including
1 to 6,700 for Oxycodone and Hydrocodone, id.—the PSR tallied a marijuana
equivalency of nearly 2,550 kilograms. Thus, in determining Corrick’s total offense
level, the PSR began with a base offense level of 30. Then, after considering Corrick’s
acceptance of responsibility, the PSR arrived at a total offense level of 28.
                                             3
to 1 to 6,700 despite no corresponding increase to, for example, the heroin to marijuana

conversion ratio. Lamenting that the increase was not based on empirical data or

scientific studies, Corrick thus proposed that the District Court vary downward by instead

applying the 1 to 1,000 heroin ratio.

       Corrick also urged that the District Court vary downward based on various

mitigating factors: namely, his abusive childhood, poor health, old age, family ties and

responsibilities, and acceptance of responsibility.

       At Corrick’s sentencing hearing, the District Court heard argument on both

issues—the conversion ratio issue and the mitigating factors issue—before imposing a

sentence. As to the first issue, Corrick’s counsel reasserted his argument that the District

Court should vary downward from the Guidelines’ recommendation by instead applying

a 1 to 1,000 conversion ratio for Oxycodone and Hydrocodone. Rejecting that contention

as merely a “policy argument,” App. 92, the District Court adopted the Guidelines range

calculation from the PSR. Corrick’s counsel agreed to the Guidelines range stated by the

District Court, but only “subject to the objections stated.” Id. at 97.

       The District Court then shifted to determining the appropriate sentence to be

imposed. At that point, Corrick’s counsel addressed the second issue, chronicling the

various mitigating factors that, he asserted, warranted a downward variance to a total

sentence of 96 months and one day of imprisonment. Unmoved, the District Court

instead determined that the facts presented were not extraordinary enough to justify a

variance.

       Then, after carefully and expressly considering the relevant sentencing factors—as

                                              4
outlined in 18 U.S.C. § 3553(a)—and mitigating factors, the District Court imposed a

sentence it believed was sufficient but not greater than necessary: 171 months of

imprisonment, a term at the very bottom of the Guidelines range. Upon doing so, the

District Court asked Corrick’s counsel whether he wanted to discuss anything further.

Corrick’s counsel only requested a recommendation for a specific prison housing.

Importantly, he did not raise any objections to the sentence after its imposition.

       Corrick now appeals his sentence. Before us, Corrick avers that the District Court

(1) procedurally erred and (2) substantively erred by denying a downward variance due to

(a) the high drug conversion ratio used to calculate his Guidelines range and (b) the

mitigating factors relating to, among other things, his childhood, health, age, and family

ties.2 For the reasons set forth below, however, we will affirm the District Court’s

sentence.

                 II. JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction over this case under 18 U.S.C. § 3231. We

have jurisdiction over this appeal under 28 U.S.C. § 1291. Typically, we review claims

for procedural and substantive error for abuse of discretion. Gall v. United States, 552

U.S. 38, 51 (2007). If, however, the asserted procedural error is purely legal, we exercise

plenary review over the claim. See United States v. Wise, 515 F.3d 207, 217 (3d Cir.


2
 Though at times ambiguous and inconsistent, Corrick’s appellate briefs seem to press
both issues—the conversion ratio issue and the mitigating factors issue—as constituting
both procedural and substantive error. In light of the “difficulty of parsing out the
differences between substantive and procedural claims” and in an abundance of caution,
we review both issues for both types of error. United States v. Flores-Mejia, 759 F.3d
253, 264 (3d Cir. 2014) (en banc) (Greenaway, Jr., J., dissenting).
                                             5
2008).

                                     III. DISCUSSION

         “Our responsibility on appellate review of a criminal sentence is limited yet

important: we 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).

To this end, district courts must follow the three-step sentencing procedure set forth in

United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). First, a district court must

calculate the applicable Guidelines range. Wise, 515 F.3d at 216. Second, it must rule on

any motions for departure and, if a motion is granted, state how the departure affects the

Guidelines calculation. Id. Third, after allowing the parties an opportunity for argument,

it must consider all of the sentencing factors and determine the appropriate sentence to

impose, which may vary from the calculated Guidelines range. Id. at 216–17.

         Although Corrick now seems to press errors regarding both steps two and three,

e.g., Appellant’s Br. 34 (Corrick’s protesting that “[t]he [D]istrict [C]ourt declined to

depart or vary below the [G]uidelines over objection”), we are constrained to reviewing

his claims concerning only step three. See United States v. King, 604 F.3d 125, 141 n.9

(3d Cir. 2010) (“[W]e lack jurisdiction to review [the] denial [of a downward departure

motion] unless the District Court was unaware of its discretion to grant the motion[.]”

(citation omitted)); see also App. 96 (the District Court’s noting that it is “not bound to

follow” the Guidelines). Accordingly, we review only whether the District Court erred in

denying Corrick’s requests for a downward variance. In regard to that, Corrick asserts

that the District Court committed both procedural and substantive errors. We address

                                               6
each in turn.

                                   A. Procedural Error

       When reviewing a district court’s sentence for procedural fairness, we evaluate

whether the district court committed a “significant procedural error” by, as relevant here,

“failing to consider the [sentencing] factors.” Gall, 552 U.S. at 51. There is no

procedural error where a district court gives “rational and meaningful consideration” to

the sentencing factors. United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc)

(citations omitted). For such meaningful consideration, a district court need only “set

forth enough to satisfy the appellate court that [it] has considered the parties’ arguments

and has a reasoned basis for exercising [its] own legal decisionmaking authority.” Rita v.

United States, 551 U.S. 338, 356 (2007) (citation omitted).

       As a threshold matter, we must determine whether Corrick’s specific claims of

procedural error are subject to abuse of discretion or plain error review. Under Flores-

Mejia, “when a party wishes to take an appeal based on a procedural error at

sentencing[,] . . . that party must object to the procedural error complained of after

sentence is imposed in order to avoid plain error review on appeal.” 759 F.3d at 255.

But where a party “make[s] an objection to a procedural error at an earlier point[,] . . .

when the procedural error became evident, the defendant need not repeat the objection

after sentence is imposed.” Id. at n.1.

       Before the District Court, Corrick’s counsel did exactly that as to one of the two

procedural errors he now presses. Indeed, he lodged objection after objection regarding

the conversion ratio issue—in his response to the PSR and sentencing memorandum and

                                              7
then at length during the sentencing hearing. After the District Court nonetheless adopted

the Guidelines range calculation from the PSR, Corrick’s counsel agreed to the

calculation only “subject to the objections stated” regarding the conversion ratio issue.

App. 97. Because Corrick’s procedural objection was evident, he was not required to

repeat his procedural objection to the conversion ratio after the District Court imposed its

sentence. See Flores-Mejia, 759 F.3d at 255 n.1.

       But Corrick’s counsel never raised a formal objection as to the mitigating factors

issue. Although, at the sentencing hearing, he argued for a below-Guidelines sentence

due to the various mitigating factors, he did not object after the District Court rejected

that argument in imposing its sentence. That issue thus falls within Flores-Mejia’s ambit.

In light of this analysis, we review Corrick’s two procedural error claims separately—the

first, concerning the conversion ratio, for abuse of discretion and the second, concerning

the mitigating factors, for plain error.

                                  1. Conversion Ratio Issue

       Corrick argues that the District Court committed procedural error when it denied

his request for a downward variance due to the high drug conversion ratio used in

calculating his Guidelines range. More specifically, Corrick claims as procedural error

(1) that the District Court did not meaningfully consider his objection to the conversion

ratio and (2) that the Guidelines’ conversion ratio for Oxycodone and Hydrocodone lacks

empirical data or scientific studies. Both claims, however, are unavailing.

       First, the District Court did meaningfully consider Corrick’s request for a

downward variance due to the drug conversion ratio. Indeed, at the sentencing hearing,

                                              8
the District Court heard argument regarding the conversion ratio issue. At steps one and

two of Gunter, the District Court carefully explained that, given the “crisis caused by the

distribution of drugs such as Oxycodone and Hydrocodone,” it deemed the Guidelines

range appropriate. App. 96. Then, at step three of Gunter, the District Court imposed its

sentence only after clarifying that it “considered very carefully [Corrick’s counsel’s]

impassioned and very effective request for . . . [a] variance.” Id. at 120. Because the

District Court articulated enough in denying Corrick’s variance request on account of the

drug conversion ratio at issue, we cannot say it abused its discretion.

       Second, the District Court had no obligation to analyze whether the Guidelines’

conversion ratio for Oxycodone and Hydrocodone were based in empirical data or

scientific studies. Time and time again, we have made clear that district courts are not

required to entertain such empirical challenges. See, e.g., United States v. Lopez-Reyes,

589 F.3d 667, 671 (3d Cir. 2009) (“[A] district court is not required to engage in

‘independent analysis’ of the empirical justifications and deliberative undertakings that

led to a particular Guideline.” (citations omitted)). Although district courts have the

discretion to make variances based on such policy arguments, they are not under the

obligation to do so. See United States v. Duarte, 569 F.3d 528, 530 (5th Cir. 2009)

(“Kimbrough [v. United States, 552 U.S. 85 (2007)] does not force district or appellate

courts into a piece-by-piece analysis of the empirical grounding behind each part of

the . . . [G]uidelines.”). Here, as explained previously, the District Court meaningfully

considered Corrick’s empirical challenge to the drug conversion ratio in dispute. But,

even if it did not, we would still affirm its sentence as procedurally sound on this matter.
                                              9
                                  2. Mitigating Factors Issue

       Corrick also argues that the District Court committed procedural error when it

denied his request for a downward variance despite the various mitigating factors he

presented. In particular, Corrick asserts that the District Court procedurally erred by

viewing mitigation “without relating it to [Corrick’s] abusive and loveless childhood.”

Appellant’s Br. 36 (citation omitted). As discussed previously, we review this claim for

plain error.

       The plain error test requires: (1) an error; (2) that is “clear or obvious”; and

(3) that “affected the defendant’s substantial rights,” which ordinarily means that the

defendant must show “a reasonable probability that, but for the error, the outcome of the

proceeding would have been different.” United States v. Shaw, 891 F.3d 441, 454 n.16

(3d Cir. 2018) (citation and internal quotation marks omitted). Once these three

requirements are met, “the court of appeals should exercise its discretion to correct the

forfeited error if the error seriously affects the fairness, integrity or public reputation of

judicial proceedings.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1905 (2018)

(citation omitted).

       Corrick’s procedural error claim falters at the very first requirement, as the record

demonstrates that the District Court committed no procedural error. Indeed, the District

Court imposed its sentence only after meaningfully considering all of the mitigating

factors, especially Corrick’s childhood. At the sentencing hearing, after Corrick’s

counsel presented lengthy arguments regarding the personal challenges Corrick faced as a

child, the District Court expressly recognized the difficulty of Corrick’s childhood. See

                                               10
App. 117 (the District Court’s stating that it “recognized[d] that [Corrick] did have a

difficult childhood, that [his] parents, even [his] mother, were not fully present in [his]

life, and certainly not [his] father”). Then, before imposing its sentence, the District

Court explicitly balanced that mitigating factor along with the other sentencing factors.

See id. at 120 (the District Court’s explaining that it “considered very carefully [Corrick’s

counsel’s] impassioned and very effective request for . . . [a] variance” and noting that

Corrick’s “childhood was sad” but nonetheless finding it insufficient to justify a variance

in light of the other sentencing factors).

       Given the District Court’s clear and thorough consideration of the mitigating

factors, especially Corrick’s difficult childhood, we perceive no procedural error—much

less plain error—in its denying Corrick’s request for a downward variance. Because both

of Corrick’s claims for procedural error are thus futile, we deem the District Court’s

sentence procedurally sound.

                                    B. Substantive Error

       Satisfied with the procedural fairness of the District Court’s sentence, we now turn

to assessing its substantive reasonableness. We analyze substantive reasonableness based

on “the totality of circumstances,” United States v. Whiteford, 676 F.3d 348, 364 (3d Cir.

2012) (citation omitted), and “will affirm [a district court’s sentence] unless no

reasonable sentencing court would have imposed the same sentence on that particular

defendant for the reasons the district court provided,” United States v. Tomko, 562 F.3d

558, 568 (3d Cir. 2009) (en banc). In reviewing the substantive reasonableness of a

sentence, we look to “whether the final sentence, wherever it may lie within the

                                              11
permissible statutory range, was premised upon appropriate and judicious consideration

of the relevant factors.” United States v. Young, 634 F.3d 233, 237 (3d Cir. 2011)

(citation omitted). But we have expressly held that “a district court’s failure to give

mitigating factors the weight a defendant contends they deserve” does not render the

sentence substantively unreasonable. United States v. Bungar, 478 F.3d 540, 546 (3d Cir.

2007) (citations omitted). Instead, our substantive reasonableness review is “highly

deferential.” Id. at 543 (citation omitted). Where, as here, there is no procedural error,

we are “entitled to presume that a sentence within the advisory Guidelines is reasonable.”

United States v. Handerhan, 739 F.3d 114, 124 (3d Cir. 2014) (citation omitted).

       Here, Corrick claims that the District Court substantively erred by denying his

request for a downward variance due to (1) the high drug conversion ratio used in

calculating his Guidelines range and (2) the various mitigating factors that were

presented, including his abusive childhood, poor health, old age, family ties and

responsibilities, and acceptance of responsibility. Neither claim, however, is fruitful.

                                 1. Conversion Ratio Issue

       As to the drug conversion ratio issue, the District Court did not commit any

substantive error. We have previously held that an “applicable Guidelines range . . . is

not rendered unreasonable simply because [a provision of the Guidelines] establishes a

base offense level” with which a defendant takes issue. Lopez-Reyes, 589 F.3d at 672;

see United States v. Lopez, 650 F.3d 952, 967 (3d Cir. 2011) (holding that a district court

need not disregard a Guidelines provision with which it disagrees and an appellate court

only examines whether the sentence is reasonable in light of the sentencing factors).

                                             12
       Here, the District Court was not required to grant Corrick a downward variance

based on his arguments against the Guidelines’ drug conversion ratio for Oxycodone and

Hydrocodone. See Duarte, 569 F.3d at 530. It also carefully reviewed each of the

applicable sentencing factors. Accordingly, it did not commit any substantive error in

imposing a sentence within the Guidelines range.

                                  2. Mitigating Factors Issue

       The District Court also did not commit any substantive error in regard to the

mitigating factors issue. On this matter, Corrick essentially takes issue with the weight

the District Court afforded the various sentencing and mitigating factors at play. See

Appellant’s Br. 38–39 (Corrick’s arguing that the District Court took an “overly-cynical

view” of him and “minimized” his difficult childhood). But we have previously held that

failing to give factors the weight a defendant contends they deserve does not render a

district court’s sentence unreasonable. Bungar, 478 F.3d at 546. Corrick’s argument as

to this issue is thus a non-starter.

       The touchstone of the substantive reasonability inquiry is rather whether the final

sentence was premised upon the “appropriate and judicious consideration of the relevant

factors.” Young, 634 F.3d at 237 (citation omitted). The District Court here did just that,

which even Corrick effectively concedes. Appellant’s Br. 38 (Corrick’s noting that “the

District Court was careful to mention the applicable factors”). It then imposed a sentence

at the bottom of the Guidelines range, which we may afford a “presumption of

reasonableness.” Rita, 551 U.S. at 347. Hence, we conclude that the sentence the

District Court imposed on Corrick is substantively reasonable.

                                              13
                           IV. CONCLUSION

For the foregoing reasons, we will affirm the District Court’s sentence.




                                     14
PORTER, Circuit Judge, concurring in the judgment:

       I share the judgment affirming the District Court’s sentence. I write separately

because I find that, although Stephan Corrick vigorously pressed his substantive objection

about the policy merits of the conversion ratio before the District Court, he failed to

preserve the procedural objection he raises on appeal. That is, he never objected to the

sentencing court’s alleged “failure to give meaningful review to [his] substantive

arguments.” United States v. Flores-Mejia, 759 F.3d 253, 256–57 (3d Cir. 2014). So I

would review that issue only for plain error. But as the majority opinion explains, Corrick’s

claim also fails under the abuse-of-discretion standard of review, so I concur in the

judgment on the conversion ratio issue.




                                             1
