NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________

No. 20-1541 __________

UNITED STATES OF AMERICA

v.

HARVEY M. SHANER, JR., Appellant __________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 5-18-cr-00056-001) Honorable Edward G. Smith, U.S. District Judge __________

Submitted Under Third Circuit L.A.R. 34.1(a) on January 12, 2021

Before: AMBRO, KRAUSE, and PHIPPS, Circuit Judges

(Opinion filed: May 24, 2021) __________

OPINION* __________

KRAUSE, 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. Appellant Harvey Shaner pleaded guilty to escape, failure to surrender, and

possession of a firearm as a convicted felon, in violation, respectively, of

(a), 3146(a)(2), and 922(g)(1). He now challenges the thirty-three-month prison

sentence the District Court imposed on those counts. In addition, in supplemental briefing

following United States v. Nasir,

(3d Cir. 2020), Shaner argues that his

conviction under § 922(g) should be vacated if he did not allocute to knowledge of his

status as a felon in his plea colloquy. Because we perceive no error in Shaner’s sentence

nor plain error in his conviction, we will affirm.

I. Discussion1

Shaner contends that his sentence was procedurally and substantively unreasonable,

see United States v. Fountain,

(3d Cir. 2015), and that his § 922(g)

conviction cannot stand in the wake of Nasir. Neither argument is persuasive.

Procedurally, Shaner argues that the District Court did not meaningfully evaluate

the sentencing factors in

(a) because the Court’s discussion was cursory

and vague. He also objects that it glossed over certain aspects of his case, including his

mental and physical health problems, his post-conviction conduct, and the fact that, as a

skilled craftsman, he can pay restitution in a related case where he was convicted for fraud.

1 The District Court had jurisdiction under

and we have jurisdiction under

and

. We review the substantive reasonableness of a sentence for abuse of discretion, United States v. Tomko,

(3d Cir. 2009) (en banc), and we likewise review a District Court’s decision to impose a concurrent or consecutive sentence for abuse of discretion, United States v. Swan,

(3d Cir. 2002). Where, as here, a defendant did not raise a procedural objection in the District Court, we review procedural reasonableness for plain error. United States v. Flores-Mejia,

(3d Cir. 2014). 2 But a district court “need not . . . ‘discuss and make findings as to each of the § 3553(a)

factors if the record makes clear the court took the factors into account,’” United States v.

Bungar,

(3d Cir. 2007), and the District Court here expressly addressed

not only such § 3553(a) factors as deterrence, the need for treatment, and the seriousness

of the offense,

(a)(1)–(2), but also Shaner’s post-conviction conduct and

his mental health and medical concerns. In light of the District Court’s lengthy and detailed

analysis of the sentencing factors and its assurance that it considered all of the information

that was provided to it, we are satisfied that Shaner’s sentence was procedurally reasonable.

As for substantive unreasonableness, Shaner claims that because his sentence will

run consecutively to his pre-existing fifty-one-month sentence for fraud, it fails to account

for his health, his age, and his ability to pay restitution in his fraud case. But substantive

reasonableness review is “highly deferential,” Bungar,

, and “[s]entences

that fall within the applicable Guidelines range,” as Shaner’s does here, “are more likely

to be reasonable than those that do not,” Fountain,

. Especially considering

the District Court’s finding that Shaner created a very dangerous situation when he fled

from law enforcement, which put police officers and bystanders at risk of serious bodily

injury or death, and given that his sentence for failure to surrender must “be consecutive to

the sentence of imprisonment for any other offense,”

(b)(2), we cannot

say that “no reasonable sentencing court would have imposed the same [consecutive]

sentence” at the high end of the Guidelines range, United States v. Tomko,

(3d Cir. 2009) (en banc).

3 Finally, in urging that his § 922(g) conviction is invalid under Rehaif v. United

States,

(2019), and Nasir, Shaner points out that he was not explicitly asked

and did not explicitly allocute to the element of knowledge of his felon status in the course

of his guilty plea. Although we have not squarely addressed Rehaif errors in the plea

context, we explained in Nasir that the government is not “free to ignore the elements of

the charged offense at a plea colloquy” and “must always make a record demonstrating a

factual basis for the crime to which the plea is entered,”

n.21, so we assume

for purposes of this appeal that “[p]roof of knowledge of status is now essential” in a guilty

plea under § 922(g), id. at 160.

Because Shaner failed to raise this argument in the District Court, we review for

plain error, id., and we find none here. While Shaner’s guilty plea did not reference the

scienter element of § 922(g), in violation of Rehaif,

, he did admit that

he possessed a revolver while fleeing from law enforcement officers who were trying to

take him into custody to serve his fifty-one-month sentence for fraud. That is sufficient in

the record of a plea proceeding “to show that [Shaner] was aware of his status as a felon at

the [relevant] time.” Nasir,

n.29. As a result, any error did not “affect[]

his substantial rights,”

, and therefore does not rise to the level of plain error.

II. Conclusion

For the foregoing reasons, we will affirm the judgment of the District Court.

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