NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 _______________

                                      No. 23-2356
                                    _______________

                            UNITED STATES OF AMERICA

                                             v.

                           TYRONE MITCHELL, a/k/a FOX,
                                                  Appellant
                                _______________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                              (D.C. No. 2:12-cr-00172-001)
                       District Judge: Honorable Paul S. Diamond
                                    _______________
                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                on September 24, 2024

                Before: KRAUSE, BIBAS, and AMBRO, Circuit Judges

                                (Filed: October 23, 2024)
                                    _______________

                                       OPINION*
                                    _______________

BIBAS, Circuit Judge.

   Though defendants are free to seek leniency, sentencing judges are free to deny it. In

2017, a federal jury convicted Tyrone Mitchell of 17 drug-dealing and related gun crimes.

The District Court sentenced him to 85 years’ imprisonment followed by 8 years’


* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.
supervised release. We affirmed his conviction but vacated and remanded for resentencing

because “the District Court plainly erred by relying on Mitchell’s bare arrest record to de-

termine his sentence.” United States v. Mitchell, 

 (3d Cir. 2019).

   At Mitchell’s second sentencing, the government dismissed three felon-in-possession

charges. The District Court resentenced him to just over 74½ years in prison plus 8 years’

supervised release. On appeal, we again vacated his sentence and remanded, holding that

the First Step Act applied retroactively to his resentencing. United States v. Mitchell, 

 (3d Cir. 2022).

   At Mitchell’s third sentencing, the District Court resentenced him to just over 19½ years

in prison on the drug charges followed by 5 consecutive years on each of the three remain-

ing gun charges. Putting those together, his sentence totaled just over 34½ years’ impris-

onment followed by 8 years’ supervised release.

   Mitchell now appeals a third time. He claims that the District Court (1) should have

granted the government’s request to vary downward based on the sentencing disparity

between crack and powder cocaine; (2) gave inadequate reasons for its sentence; and

(3) imposed a substantively unreasonable sentence. But the third time is no charm; all three

claims fail.

   First, the District Court properly denied the downward variance. It does not matter

whether we review for abuse of discretion or plain error, as the parties dispute. There was

no procedural error, and a reasonable sentencing court would have imposed the same sen-

tence on Mitchell for the reasons the district judge gave. United States v. Tomko, 

 (3d Cir. 2009) (en banc). Mitchell says the judge mistakenly believed that he

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lacked the power to vary downward because he misunderstood Third Circuit caselaw. But

the district judge did not hold this mistaken belief. Rather, he considered two nonpreceden-

tial decisions of this Court that had upheld a district court’s discretion to grant or deny

variances based on the sentencing differential between crack and powder cocaine. Then he

denied the variance by applying his own discretion to these facts: “given the facts of this

case, I am not inclined to grant the downward variance requested.” App. 142. That was proper.

   Second, the District Court gave enough reasons for sentencing Mitchell at the top of the

range. Because Mitchell never objected below, we review for plain error. United States v.

Flores-Mejia, 

 (3d Cir. 2014) (en banc). There was no error, let alone

plain error. “[T]o satisfy [18 U.S.C.] § 3553(c), a district court needs to provide only con-

crete reasons that justify a sentence.” Mitchell, 

 (internal quotation marks

omitted). It need not say much. See United States v. Lloyd, 

 (3d Cir. 2006).

   The district judge said enough. He considered retribution, deterrence, and incapacita-

tion. As he noted, “[t]he defendant’s crimes were poisonous and serious. His criminal rec-

ord is serious. And I believe the defendant is perfectly capable, and indeed inclined, to

commit crimes if he is at liberty once again.” App. 139. Plus, as the district judge explained,

Mitchell had shown little if any remorse. That was plenty.

   Finally, the sentence was substantively reasonable. We review deferentially, asking if

any reasonable court would have given the same defendant the same sentence for the same

reasons. Tomko, 

. Mitchell and the probation office sought 25 years, while

the government suggested 27½. Mitchell argues that by giving him 34½ years, the District



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Court failed to give the minimum needed to serve the purposes of punishment. See § 3553(a)

(requiring courts to “impose a sentence [that is] sufficient, but not greater than necessary”).

   But the district judge gave cogent reasons for the sentence he chose, and his choice was

reasonable. We will thus affirm.




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