NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 16-1578

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UNITED STATES OF AMERICA

v.

DESMOND MERCER,

 Appellant 

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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

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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).
4

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.