NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 ____________

                      No. 13-1344
                     ____________

           UNITED STATES OF AMERICA

                            v.

        MICHAEL EUGENE BEGIN, a/k/a Mike


                 Michael Eugene Begin,

                       Appellant
                     ____________

     On Appeal from the United States District Court
         for the Western District of Pennsylvania
               (D.C. No. 1-10-cr-00022-001)
     District Judge: Honorable Maurice B. Cohill, Jr.
                      ____________

     Submitted Pursuant to Third Circuit LAR 34.1(a)
                  September 24, 2013

Before: AMBRO, FISHER and HARDIMAN, Circuit Judges.

            (Opinion Filed: October 1, 2013)
                    ____________

              OPINION OF THE COURT
                   ____________
FISHER, Circuit Judge.

       Defendant Michael Eugene Begin appeals from a sentence imposed by the United

States District Court for the Western District of Pennsylvania. For the reasons stated

below, we will affirm.

                                              I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts that are necessary

to our analysis.

       On October 12, 2010, Begin pled guilty to charges related to his use of the internet

and a cellular phone to send sexual messages and photographs to a minor in order to

persuade her to have sex with him. Prior to sentencing, the United States Probation

Office prepared a presentence report (“PSR”), which categorized his offense level at 32

and his criminal history category at IV, resulting in a guidelines range of 168 to 210

months in prison. The government filed a motion for an upward departure from the

advisory guidelines range, arguing that the recommended range underrepresented the

severity of Begin’s criminal history. Begin, on the other hand, sought a downward

variance based upon the disparity between his guidelines range and the sentence that he

would have faced in either state or federal court had he actually committed statutory rape.

       At Begin’s sentencing hearing, the District Court heard testimony and oral

argument regarding Begin’s criminal history. Based upon the testimony presented, the


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Court found, by a preponderance of the evidence, that Begin had engaged in several

sexual assaults for which the PSR had not accounted, two of which involved victims

under the age of sixteen. App. 154. It also described the details of Begin’s assault on a

seven-year-old when he was sixteen years of age as “particularly egregious.” App. 154.

The Court then granted the government’s motion for an upward departure, describing

Begin’s criminal history as “lengthy, continuous” and “primarily focused on sexually

assaulting minor females.” App. 154-55. It increased Begin’s criminal history category

to V, making the applicable Guidelines range 188 to 235 months imprisonment, and

made a further upward departure to reflect the seriousness of the sexual abuse in which

Begin had engaged. After finding that the appropriate range for Begin spanned from 188

to 240 months of imprisonment, the Court sentenced Begin to a 240-month term of

imprisonment. It found that the sentence was “sufficient but not greater than necessary,”

and “adequately addresse[d] the nature and circumstances of this offense, as well as the

history and background of the Defendant.” App. 168. It further noted that “[t]his

sentence also takes into account the need to avoid unwarranted disparities in sentencing

among defendants with similar records who have been found guilty of similar conduct.”

App. 169-70.

       Begin timely appealed his sentence and conviction to this Court, arguing that his

sentence was procedurally unsound because the District Court failed to discuss, or even

rule on, his request for a downward variance in light of “the need to avoid unwarranted


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sentence disparities among defendants with similar records who have been found guilty

of similar conduct.” United States v. Begin, 

, 411 (3d Cir. 2012). After

concluding that only Begin’s federal-federal disparity argument had “colorable legal

merit,” we held that the District Court had failed to make a sufficient record to

demonstrate its consideration of that argument. Id. at 414. We observed that a “rote

recitation of § 3553(a)(6) is insufficient to permit us to review the Court’s resolution of

Begin’s disparity arguments.” Id. We therefore vacated Begin’s sentence as

“procedurally unsound” and remanded for resentencing. Id.

       The resentencing hearing was held on January 22, 2013. After hearing oral

argument from both parties regarding Begin’s variance request, the District Court stated:

       I think counsel on both sides did a good job. And, Mr. Patton, I commend
       you for the points you raise here, but I must say that I, ultimately, cannot
       agree with changing the sentence. As I said before, I granted the
       government’s upward departure motion and, ultimately, determined that the
       appropriate offense level was 32 and the appropriate criminal history
       category was Roman numeral V. Thus, making the applicable Guideline
       range one hundred eighty-eight to two hundred thirty-five months of
       imprisonment. And then added another upward departure on that, making
       it ultimately, two hundred forty months . . . I’m going to deny here the
       request from Mr. Patton for a downward variance.

App. 197. The Court also noted:

       We further believe the extensiveness of his overall criminal history under-
       represent [sic] his actual history when compared to similar defendants.
       Finally, we believe that the defendant’s criminal history does seriously
       under-represent the likelihood that he will commit other crimes. His
       criminal history is lengthy, continuous, and primarily focused on assaulting
       minor females . . . I believe now that the sentence does take into account


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       the need to avoid unwarranted disparities in sentencing among defendants
       with similar records that have been found guilty of similar conduct.

App. 206-07. It then re-imposed the same sentence. Begin’s second timely notice of

appeal to this Court followed.

                                             II.

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate

jurisdiction under 28 U.S.C. § 1291.

       We review a district court’s sentencing decision for an abuse of discretion, which

proceeds in two stages of analysis. United States v. Tomko, 

, 567 (3d Cir.

2009) (en banc). We first review for procedural error, ensuring that the district court:

(1) correctly calculated the defendant’s advisory Guidelines range; (2) appropriately

considered any motions for a departure under the Guidelines; and (3) gave meaningful

consideration to the sentencing factors set forth in 18 U.S.C. § 3553(a). United States v.

Wright, 

, 152 (3d Cir. 2011). If the sentencing decision passes the first stage

of review, we then consider the substantive reasonableness of the decision. United States

v. Levinson, 

, 195 (3d Cir. 2008). Our substantive review focuses on the

totality of the circumstances. Tomko, 562 F.3d at 567.

                                            III.

                                             A.

       Begin argues that the District Court’s resentencing was procedurally unsound

because, although the Court ruled on Begin’s downward variance request, it failed to give

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“thorough and meaningful consideration” to his argument. Specifically, Begin argues

that, on remand, this Court was looking for an answer to why the sentence for a crime that

was not consummated should be greater than the sentence for a crime that was

consummated. We disagree.

       When a district court sentences a defendant, it “must produce a record sufficient to

demonstrate its rational and meaningful consideration of the § 3553(a) factors.” Begin,

696 F.3d at 411 (citing United States v. Merced, 

, 215-16 (3d Cir. 2010)).

The record, taken in its entirety, must make clear that the district court “has considered

the parties’ arguments and has a reasoned basis for exercising [its] own legal

decisionmaking authority.” Merced, 603 F.3d at 215-16 (quoting Rita v. United States,

, 356 (2007)). It is not necessary that the district court “raise every

conceivable issue on its own initiative” or even “discuss every argument raised by a

litigant if an argument is clearly without merit.” Id. at 215. “However, if a party raises a

colorable argument about the applicability of one of the § 3553(a) factors, the district

court may not ignore it.” Id. Thus, “the court must acknowledge and respond to any

properly presented sentencing argument which has colorable legal merit and a factual

basis.” United States v. Ausburn, 

, 329 (3d Cir. 2007). While the court’s

response to each argument need not be perfect, Merced, 603 F.3d at 215, “a rote

statement that the court has considered each of the § 3553(a) factors is not a sufficient




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response to a specific colorable argument.” Begin, 696 F.3d at 411 (citing United States

v. Jackson, 

, 841 (3d Cir. 2006)).

       After reviewing the record, we conclude that the District Court gave thorough and

meaningful consideration to Begin’s downward variance argument at the resentencing

hearing. When the District Court first sentenced Begin, it merely reiterated § 3553(a)(6),

stating: “This sentence also takes into account the need to avoid unwarranted disparities

in sentencing among defendants with similar records who have been found guilty of

similar conduct.” App. 169-70. This statement alone, without adequate justification, was

insufficient to allow proper appellate review of Begin’s disparity argument. We did not,

as Begin argues, remand the case for the District Court to address, specifically, why the

sentence for a crime that was not consummated should be greater than the sentence for a

crime that was consummated. Rather, we sought a clear justification on the record as to

how the Court considered § 3553(a)(6), which it articulated at the resentencing hearing.

       After hearing oral argument and recessing for ten minutes, the District Court

addressed each party’s arguments, granted the government’s request for an upward

departure, and denied Begin’s request for a downward variance. In considering

§ 3553(a)(6), the Court distinguished Begin’s extensive criminal history from that of

similar defendants, identifying specific instances of Begin’s “particularly egregious”

conduct. In this regard, it highlighted its belief that “the extensiveness of [Begin’s]

overall criminal history under-represent[ed] his actual history when compared to similar


                                              7
defendants.” App. 206-07. For that reason, the Court denied Begin’s request for a

downward variance, instead imposing multiple enhancements to the guidelines range.

Our review of the record reveals that it gave thorough and meaningful consideration to

Begin’s downward variance argument at the resentencing hearing. Because Begin

disputes only the District Court’s analysis of § 3553(a)(6), and the record does not

indicate any other procedural errors in its resentencing, we conclude that the resentencing

was not procedurally unreasonable.

       Since the District Court’s sentencing decision passed the first stage of review, we

now turn to the substantive reasonableness of the decision. Levinson, 543 F.3d at 195.

Here, the Court clearly identified numerous instances in Begin’s past that justified its

upward departure from the advisory guidelines, describing his past conduct as

“particularly egregious” and highlighting Begin’s criminal past compared to similar

defendants. Because we cannot say that “no reasonable sentencing court would have

imposed the same sentence on [Begin] for the reasons the [D]istrict [C]ourt provided,”

Tomko, 562 F.3d at 568, we conclude that the sentence was substantively reasonable.

                                            IV.

       For the reasons set forth above, we will affirm the District Court’s judgment of

conviction and resentencing.




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