NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 15

- 2347

_____________ UNITED STATES OF AMERICA

v. RAH IE M J. BROOKS,

Appellant

______________ Appeal from the United States District Court for the Eastern District of Pennsylvania ( D.C

. 14

- cr - 00334

- 1 ) District Judge: Honorable Gerald A. McHugh

____________________________ ______________ Submitted under Third Circuit L.A.R.

March 24, 2016

___________________________ Before: G REENAWAY , JR., VANASKIE, SHWARTZ , Circuit Judges

(Opinion Filed: April 19, 2016 )

_____________ OPINION *

_____________ GREENAWAY, JR., Circuit Judge : This appeal presents the question of whether the District Court committed

* This disposition is not an opinion of the full Court and p ursuant to I.O.P. 5.7 does not constitute binding precedent

.2

procedural error during sentencing by failing to acknowledge and respond to one of Defendant

- Appellant Raheim J. Brooks’s arguments in support of a lower sentence.
Because the District Court’s sentencing statement was sufficient to meet plain

- error review, we will affirm. I. Background Brooks was indicted on, and eventually pled guilty to , seven counts of access device fraud and aiding and abetting in violation of 18 U.S.C. §§ 1029(a)(2) , (b)(1) and 2

. In 2013, the Amtrak Police Department received information that numerous train tickets were bei ng purchased with stolen credit card information. Investigators eventually traced these purchase s to Brooks. In addition to the train ticket purchases, Brooks used the credit cards to obtain other goods and services

. Brooks plead ed guilty to all counts charged in the indictment in open court. Following Brooks’s guilty plea, t he Presentence Investigation Report (“PSR” ), which used the 2014 version of the United States Sentencing Guidelines (“Guidelines”) , set Brooks’s total offense level at 13 and classi fied his criminal history at VI. Accordingly, the Guidelines sentence for Brooks’s conviction included 33 to 41 months’ imprisonment.
In a sentencing memorandum, Brooks presented mitigating arguments in support
of a downward variance

. The memorandum emphasized Brooks’s abusive upbr inging and his efforts to rehabilitate

. Brooks argued that a below

- G uideline s range sentence was appropriate under 18 U.S.C . § 3553(a), and that a within

- G uideline s range sentence3

would be “excessive and unwarranted to achi eve the statutory objective.” J.A. 34. During sentencing, Brooks reiterated his a r guments for a downward variance based on his upbringing

. The District Court sentenced Brooks to a within

- Guidelines sentence range of 38 months ’ imprisonment followed by a three

- year term of supervised release for all counts , and $43,036.67 in restitution. Before announcing the sentence, the Court noted the nature of the crime, Brooks’s criminal history , and the need to promote deterrence

. The Court’s statements did not include any reference to Brooks’s upbringing. After announcing the sentence, the District Court asked: “Counsel, is there anything else that requires attention?” J.A. 82. Brooks’s counsel replied, “No, Your Honor.” J.A. 82.
B rooks timely appealed . He argues that the District Court committed procedural error by failing to meaningfully consider his personal characteristics, specifically his upbringing , which he believes supported a downward variance

. II. Standard of Review 1 Brooks did not prese rve the instant issue for appeal, and thus we review for plain

error. United States v. Flores

- Mejia , 759 F.3d 253, 255 (3d Cir. 2014) ( en banc )

. An error is plain if it , inter alia , “affected the outcome of the District Court proceedings.” Id

. at 259 (i nternal citations and quotations omitted).
I I I. Analysis

1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).4

We will affirm as Brooks does not show that the error of which he complains affected th e outcome of the proceeding s . During the sentencing colloquy, the District
Court e xplained that the nature and circumstances o f the offense supported a within

Guideline s range sentence , stating that the crime displayed a “level of self

- indulgence , ” noting that the instant offense reflected Brooks’s “ repeated violations of the law, ” and stressing the “troubling” nature of Brooks’s criminal history. J.A. 79

– 80

. It went on to observe that “the Probation Department pointed out that indeed one might even raise [ the sentence] higher than it is

. ” J.A. 80. The Court also expressed it s “ concer n[] about the fact that the crimes repeat.” J.A. 80. Taking th ese factors into consideration, the Court told Brooks: “a guideline sentence is warranted and, candidly, sir, toward the higher range of the guidelines

. ” J.A. 80. Thus, the Court’s sen tencing statements evinced its belief that the nature and circumstances of the offense and the extent of Brooks’s criminal history strongly militated against a lower sentence

. Given these statements , we cannot conclude that the District Court would have imposed a different sentence if it had specifically addressed Brooks’s arguments about his upbringing. 2
IV . Conclusion

2 Brooks argues that there is a reasonable probability th at the court would have imposed a lower sentence , because the instant conviction was not “egregious,” and his abusive childhood was “unquestionably mitigating .” Reply Br. 7

– 8. The record suggests, however, that the District Court had great concerns regar ding the seriousness of the conviction, especially in the context of Brooks’s criminal history. Thus, g iven the District Court’s statements in support of the sentence it imposed, we cannot conclude that5

For the foregoing reasons, we will affirm the judgment of conviction

.

there is a reasonable probability that the Court wou ld have imposed a lower sentence.