USA v. Desmond Mercer

Filing

NOT PRECEDENTIAL OPINION Coram: JORDAN, GREENAWAY JR. and RENDELL, Circuit Judges. Total Pages: 5. Judge: GREENAWAY JR. Authoring.

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Document: 003112527487

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-1578
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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)
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OPINION*
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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.

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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

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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).
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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
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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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