NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

______________

No. 19-2174 ______________

UNITED STATES OF AMERICA

v.

LAVON CALDWELL, Appellant ______________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal No. 4-18-cr-00041-001) District Judge: Honorable Matthew W. Brann ______________

Submitted Under Third Circuit L.A.R. 34.1(a) January 14, 2020 ______________

Before: JORDAN, GREENAWAY, JR., and KRAUSE, Circuit Judges.

(Opinion Filed: February 10, 2020)

______________ OPINION * ______________

GREENAWAY, JR., Circuit Judge.

On May 8, 2019, following Appellant Lavon Caldwell’s guilty plea for possession

of a weapon while incarcerated, the District Court sentenced him to 12 months’

imprisonment. Caldwell appeals that sentence on the grounds that the District Court

failed to consider and apply the sentencing factors enumerated in

(a).

The record, however, shows the contrary, and we will affirm.

I. BACKGROUND

On March 7, 2017, correctional officers conducted a pat-down search of Caldwell.

During that search, the officers found two wooden shanks of approximately six and seven

inches long on Caldwell’s person. A grand jury subsequently indicted Caldwell for

possession of contraband in prison in violation of

(a)(2). Caldwell pled

guilty to that offense, and the Pre-Sentence Investigation Report (“PSR”) calculated his

guideline range as 18 to 24 months. PSR ¶ 56.

The District Court sentenced Caldwell to 12 months’ imprisonment. At the

sentencing hearing, the District Court considered granting a downward departure

pursuant to § 5K2.0, and it discussed the § 3553(a) factors. In favor of entering a below-

guidelines sentence, the District Court noted Caldwell’s difficult childhood, his physical

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

2 and mental illnesses, his participation in various self-improvement programs, and his

relatively few instances of prison misconduct. Although the District Court did not

discuss each of the § 3553(a) factors in detail, it expressly noted that it had considered all

of them. The District Court then imposed a sentence of 12 months’ imprisonment to run

consecutively to his previous sentence.

Caldwell then requested that the Court increase his sentence by one day, which

would make him eligible for nearly two months of time credits, effectively lowering his

sentence by two months. 1 Acknowledging that it had “anticipated . . . that request” and

had given it “considerable thought,” the District Court decided that “the full 12 months[]

is the appropriate sentence.” App. 21. Accordingly, the District Court denied Caldwell’s

request.

II. STATEMENT OF JURISDICTION AND STANDARD OR REVIEW

The District Court had jurisdiction over this case pursuant to

.

We have jurisdiction pursuant to

and

(a).

We review a criminal sentence in “two stages.” United States v. Tomko,

(3d Cir. 2009) (en banc). First, we review for procedural error “such as failing

to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly

1 Under

(b), a prisoner serving a term of imprisonment of more than one year and less than life may be eligible for credit that would reduce the remaining time on the prisoner’s sentence.

3 erroneous facts, or failing to adequately explain the chosen sentence—including an

explanation for any deviation from the Guidelines range.” Gall v. United States,

(2007). “If we find procedural error ‘our preferred course is to remand the

case for re-sentencing, without going any further.’” United States v. Negroni,

(3d Cir. 2011) (quoting United States v. Merced,

(3d Cir.

2010)). Second, if we find no procedural error, we review for substantive reasonableness

and will “affirm [the sentence] unless no reasonable sentencing court would have

imposed the same sentence on that particular defendant for the reasons the district court

provided.” Tomko,

. At both stages we review for abuse of discretion.

Negroni,

.

III. DISCUSSION

Caldwell makes both a procedural and a substantive challenge to his sentence.

First, he argues that his sentence is procedurally unsound because the District Court did

not properly weigh all seven § 3553(a) factors. Second, he contends that his sentence is

substantively unreasonable because the sentence precludes him from earning credit

towards service of his sentence. Neither argument is availing.

As to Caldwell’s procedural challenge, we read the record differently than he does.

Contrary to Caldwell’s argument, the District Court stated explicitly that it considered

“all seven factors as set forth at Title 18 of the United States Code at Section 3553(a).”

App. 20. In fact, the District Court explained how the factors supported its ultimate

4 decision to grant Caldwell’s motion for a downward departure, noting his “rehabilitative

efforts, his generally mild prison conduct, and the other Section 3553 factors that I have

mentioned.” App. 20. Although the District Court did not make findings as to each

factor, the case law in this Circuit is clear that the District Court did not need to do so.

See United States v. Handerhan,

, 122–24 (3d Cir. 2014) (finding that the

District Court did not commit procedural error in sentencing despite not discussing in

detail all seven § 3553 factors). Accordingly, we find Caldwell’s procedural challenge

unconvincing.

As to Caldwell’s substantive challenge, we disagree that a sentence of 12 months

is unreasonable in comparison to a sentence of 10 months, which he effectively would

have served, assuming good behavior, had he been sentenced to 12 months and a day.

The only circumstance under which we would vacate a sentence for substantive reasons

is if “no reasonable sentencing court would have imposed the same sentence on that

particular defendant for the reasons the district court provided.” United States v. Wright,

(3d Cir. 2011). Here, the sentence imposed by the District Court is

entirely reasonable, and we find no basis to disturb it. This sentence does not amount to

an abuse of discretion. The substantive challenge is therefore without merit.

IV. CONCLUSION

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

the District Court.

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