NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________ No. 14

- 3670

_______________ UNITED STATES OF AMERICA

v. MARK LABENZ, Appellant

_______________ On Appea l from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 2

- 14

- cr - 00054

- 001) District Judge: Hon. Juan R. Sanchez

_______________ Submitted Pursuant to Third Circuit LAR 34.1(a)

June 8, 2015
BEFORE: AMBRO and CO WEN, Circuit Judges

RESTANI , * Judge (Filed : June 19, 2015 )

* Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation.2 _______________ OPINION**

_______________ COWEN, Circuit J udge

. Mark Labenz app eals from the criminal sentence imposed by the United States District Court for the Eastern District of Pennsylvania. We will affirm.
I. Labenz pled guilty to four counts of bank robbery in violation of 18 U.S.C. § 2113(a). Althou gh represented by counsel, he submitted a pro se motion for downward departure, which was entered on the District Court docket. Labenz asked for a departure on a number of grounds, including overrepresentation of the seriousness of his past
criminal condu ct as well as the substandard conditions of his confineme nt in a non

federal facility. The Presentence Investigation Report (“PSR”) noted that Labenz had filed a pro se downward departure motion

. Labenz’s attorney subsequently requested a downward varian ce based on her client’s exceptional acceptance of responsibility as well
as h is history of drug addiction. Objecting to the PSR’s classification of her client as a career offender, she sought “a variance based on the defendant’s overstated criminal
histo ry” if the District Court nevertheless applied “the Career Offender” enhancement. (A26 (footnote omitted) .)

___________

* * This disposition is not an opinion of the full C ourt and pursuant to I.O.P. 5.7 does not constitute binding precedent.3

Finding that Labenz was not a career offender, the District Court determined that the applicable Sentencing Guidelines range was 1 00 to 125 months of imprisonment

. The defense attorney and the prosecutor presented their respective arguments . In addition,
Labenz made a statement on his own behalf. The District Court d enied defense counsel’s downward variance requests , and it ultimately sentenced Labenz to 1 20 months’ imprisonment

. II. Labenz argues that the District Court committed procedural error by failin g to addr ess his pro se departure motion, at least insofar as he requested a downward departure
on the basis of substandard conditions of confinement

. 1 In United States v. Flores

- Mejia , 759 F.3d 253 (3d Cir. 2014) (en banc), we held that “when a party wis hes to take an appeal based on a procedural error at sentencing

— such as the court’s failure to meaningfully consider that party’s arguments or to explain one or more aspects of the sentence imposed

— that party must object to the procedural error complained of after sentence is imposed in order to avoid plain error review on appeal,” id. at 255 (footnote omitted). According to Labenz, this plain error approach does not apply to the sentencing
court ’s disposition of departure motions at “Step 2” of the three

- step sentencing process. See, e.g. , id. at 255

- 56 (explaining that district court must calculate defendant’s Guidelines sentence, formally rule on p arties’ departure motions, and consider relevant

1 The District Court possessed subject matter jurisdiction pursuant to 28 U.S.C. § 3231. We generally possess appellate jurisdiction under 18 U.S.C. § 3742 and 284

sentencing factors and give meaningful consideration to th e parties’ colorable sentencing arguments). He further contends that, because this Court’s jurisdiction to review a departu re issue is dependent upon the District C ourt’s reasons for not granting the departure (i.e., this Court has appellate jurisdiction if the ruling was based on the D istrict
Co urt’s belief that a departure was legally impermissible, but it lacks such jurisdiction if
the ruling was based on an exercise of discretion, see, e.g. , United States v. Mummert , 34 F.3d 201, 205 (3d Cir. 1994)) , “ remand is necessary here so the district court can ‘clarify the basis for its ruling’ and this Court can ascertain whether it even has jurisdiction.” (Appellant’s Reply Brief at 1 (quoting Mummert , 34 F.3d at 205).)
W e conclude that it is a ppropriate to apply the plain error standard of revie w . After all, the District Court expressly ruled on the various sentencing arguments raised by Labenz’s own attorney , and Labenz himself did not mention the conditions of
confinement (or request a downward departure ) in the statement he made to the District
Court. A fter he made this statement (and thanked the District Court for allowing him to speak), his attorney indicated that there was “[n]othing further.” ( A80. ) T he Court then

c onscientiously followed the reco mmendation we made in Flores

- Mejia “to inquire of counsel whether there are any objections to procedural matters.” Flores

- Mejia , 759 F.3d
at 25 8 n.8. Asked by the District Court whether there were “ any procedural errors ” (A93)
and whether there was anyth ing that it should clarify or discuss on the record, the defense

U.S.C. § 1291.5

counsel answered “No” to both questions. 2 See, e.g. , id. at 257 (stating that objection requirement promotes quick resolution of procedur al errors, encourages defendant to make objections be fore court best equipped to resolve errors in efficient and effective manner, and prevents “sandbagging” by defendant who remains silent only to raise error on appeal if case does not conclude in his or her favor). Under the plain error standard of revie w , the defendant must show that, inter alia, the error affected the outcome of the proceeding. See, e.g. , id. at 259. In this proceeding , t he District Court observed that “it is a bundantly clear that there was an escalation in the level of violence that [Labenz] was engaged in from the first case to the case that eventually, prompted the FBI to take aggressive steps to make sure that we’d get him of f
the streets

. . . because he posed a serious threat to the community.” (A84.) It went on to explain that a sentence at the high end of the Guidelines range was necessary to “assure that the community be protected from you in the future and send a loud message of general deterrence as well.” (A85.) Given the se circumstances, Labenz fails to establish
that t he District Court would have imposed a different sentence had it specifically addressed his pro se motion (and, in fact, he does not even attempt to explain in his appellate briefing how he satisfies the requirements of the plain error standard of review).

2 We further note that, unlike our recent en banc opinion in Flores

- Mejia, the panel rulings cited by Labenz did not expressly address the applicability of the plain error standard of review. See United States v. Ransom , 502 F. App’x 196, 201 (3d Cir. 201 2); United States v. Powell , 269 F.3d 175, 179

- 80 (3d Cir. 2001) ; Mummert , 34 F.3d at 205

- 06.6 III. For the foregoing reasons, we will affirm the criminal sentence

.