Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-27-2007

USA v. Ali
Precedential or Non-Precedential: Precedential

Docket No. 05-2098




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                             PRECEDENTIAL

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT


          No. 05-2098


  UNITED STATES OF AMERICA,

                           Appellant

              v.

         FARIDAH ALI
       a/k/a RITA SPICER




          No. 05-2099


  UNITED STATES OF AMERICA,

                           Appellant

              v.

        LAKIHA SPICER
           a/k/a KIKI
        Appeal from the United States District Court
          for the Eastern District of Pennsylvania
        (D.C. Criminal Action No. 04-cr-00320-2/3)
         District Judge: Honorable John P. Fullam


                  Argued January 16, 2007

Before: McKEE, AMBRO and STAPLETON, Circuit Judges

                 (Filed: November 27, 2007)

Patrick L. Meehan
  United States Attorney
Robert A. Zauzmer
  Assistant United States Attorney
  Chief of Appeals
Anthony J. Wzorek (Argued)
  Assistant United States Attorney
Frank A. Labor, III
  Assistant United States Attorney
Office of the United States Attorney
615 Chestnut Street
Philadelphia, PA 19106

      Counsel for Appellant




                              2
Joel I. Fishbein, Esquire (Argued)
Gail Z. Weilheimer, Esquire
Frank, Rosen, Snyder & Moss
8380 Old York Road, Suite 410
Elkins Park, PA 19027

Alan L. Frank, Esq.
Alan L. Frank Law Associates
8380 Old York Road
Suite 410
Elkins Park, PA. 19027

       Counsel for Appellee




                 OPINION OF THE COURT


AMBRO, Circuit Judge

       The Government appeals the sentencing calculations and
downward departures from the Sentencing Guidelines ranges for
defendants found guilty of fraud. A criminal jury convicted
Faridah Ali (also known as Rita Spicer) and her daughter Lakiha
Spicer (together, “defendants”) for using a school to obtain
federal funds for classes that were never conducted. At
sentencing, the District Court applied a reasonable-doubt
standard to determine loss amounts far below the ones the
Government had urged under a preponderance-of-the-evidence

                               3
standard. The Court then looked to good works and community
support along with other factors to depart downward from the
suggested Guidelines ranges. Defendants received no prison
time. Instead, the Court sentenced each defendant to some term
of probation with periods of in-home confinement and
restitution payments in line with its determination of the loss
amounts.

        The issues presented to us are whether the Court erred in
its initial Guidelines calculations, whether it relied on
inappropriate factors for its downward departures, and whether
the resulting sentences were unreasonable. We conclude yes for
all three issues and remand for further proceedings.

II.    Factual and Procedural Background

       The Community College of Philadelphia (the “College”
or “CCP”) is a state-accredited public college that obtained a
federal grant from the U.S. Department of Education to provide
adult basic education (“ABE”) classes. In addition to on-site
classes, the terms of the grant required the College to conduct
classes at approved neighborhood sites in Philadelphia. Under
the arrangement, CCP paid $450 per month in rent for these
sites plus salaries for qualified teachers (i.e., those who had
completed at least a bachelor’s degree). One of the approved
ABE sites was the Sister Clara Muhammad School (“the
School”) in West Philadelphia, a private K–12 school.



                               4
       Between 1999 and 2001, this program was a façade. The
School and CCP personnel maintained all the trappings of a
functioning program—hiring and paying teachers, establishing
a course schedule, filing registration forms, and causing CCP to
pay rent to the School for the classrooms. But no courses were
taught. Rather, Faridah Ali, assistant director of education at the
School, and Delores Weaver, director of the ABE program at
CCP, led a fraudulent scheme to steal the money allocated to the
program. Specifically, they submitted false student registration
forms to CCP, thereby ensuring that it would make salary and
rent payments to the School for a certain number of classes. Ali
and Weaver divided the rent payments between themselves and
arranged for salaries to go to “ghost teachers,” many of them
unqualified, for courses that never took place. Ali’s children,
Lakiha and Azheem Spicer, and Weaver’s son, Eugene Weaver
III, were some of the ghost teachers who received money
through this scheme.

        In 2004, Ali and the Spicers (Lakiha and Azheem) were
tried and convicted on several counts of fraud by a federal jury
in the United States District Court for the Eastern District of
Pennsylvania.1 The grand jury indictment specified that Ali and


   1
     Ali was convicted on 23 counts of conspiracy to commit
mail and wire fraud in violation of 18 U.S.C. § 371, mail fraud
in violation of 18 U.S.C. § 1341, wire fraud in violation of 18
U.S.C. § 1343, conspiracy to commit theft concerning programs
receiving federal funds in violation of 18 U.S.C. § 371, and

                                5
aiding and abetting theft concerning programs receiving federal
funds in violation of 18 U.S.C. § 666(a)(1)(A) and (b). Lakiha
Spicer was convicted on seven counts of the same offenses, plus
one count of making a false statement (i.e., perjury) to a federal
grand jury in violation of 18 U.S.C. § 1623.
       As for the other co-defendants in this case, Azheem
Spicer was convicted on five counts of similar offenses and
received a sentence of four years’ probation with in-home
confinement for the first six months, $15,000 in restitution
payments, and a special assessment of $500. The Government
does not appeal his sentence. Eugene Weaver, who similarly
was convicted on several counts of fraud, appealed his
conviction although he admitted to receiving $47,000 from CCP
without teaching any courses. We affirmed his conviction.
United States v. Eugene Weaver, 220 F. App’x. 88 (3d Cir.
2007) (not precedential). Delores Weaver’s trial was severed
due to a pretrial evidentiary dispute and was recently remanded
to the District Court. United States v. Delores Weaver, No. 04-
3888 (3d Cir. Nov. 7, 2007).
       In related proceedings, Faridah Ali and her husband
Shamsud-din Ali, along with four other defendants, were also
charged with and convicted under the Racketeer Influenced and
Corrupt Organizations (RICO) Act of a conspiracy involving
other fraudulent schemes. As the ringleaders of the RICO
conspiracy, Faridah Ali was sentenced to 24 months’
imprisonment, three years’ supervised release, restitution
payments of $21,600, and a special assessment of $2,400, see
United States v. Faridah Ali, No. 2:04-cr-00611 (E.D. Pa. Feb.
23, 2006), and Shamsud-din Ali was sentenced to 87 months’

                                6
Weaver had fraudulently obtained over $200,000, and Lakiha
Spicer $71,000, but the verdict slip did not designate loss
amounts. Those amounts were to be determined at sentencing.2

       Between the jury verdict and the time of sentencing in
2005, the Supreme Court issued United States v. Booker, 

(2005), making “sweeping changes” to federal
sentencing. United States v. Davis, 

, 163 (3d Cir.
2005). Booker “sever[ed] and excis[ed]” the portions of the
United States Code that made the United States Sentencing
Guidelines mandatory on sentencing and appellate courts. 543



imprisonment, five years’ supervised release, restitution
payments of $365,440.34, and a $2,600 special assessment, see
United States v. Shamsud-din Ali, No. 2:04-cr-00611 (E.D. Pa.
Sept. 21, 2005).
  2
    At the end of trial, the Judge asked the parties if they could
agree on a loss amount. They could not. Absent a stipulation,
the Judge believed that Blakely v. Washington, 

(2004), required that the loss amount be determined by a
reasonable-doubt standard. He proposed two alternate ways of
proceeding: 1) the Court could schedule additional arguments
and submit the question of the loss amount to the jury to
determine, or 2) the parties “could agree that the sentencing
judge [would] decide [the loss amount] on the basis of beyond
a reasonable doubt and without bothering the jury.” App. at
1589–90 (Trial Tr.). The Government requested the former
proposal, but the Judge opted for the 

, 258–65; see also 18 U.S.C. §§ 3553(b)(1), 3742(e).
It then set a “reasonableness” standard of appellate review to
this now-advisory Guidelines 

. Booker
did not, however, decide the required standard of proof for
finding facts relevant to sentencing. See United States v. Grier,

, 561 (3d Cir. 2007) (en banc).

       At sentencing, the Judge stated his view that the loss
amounts should be calculated by evidence proved beyond a
reasonable doubt. The Government argued that Booker required
only proof by a preponderance of the evidence. However, the
Judge maintained his view, stating:

              The question then becomes, under
              the—in calculating the guideline
              range, what was the amount of
              money that is properly chargeable
              as having been obtained by fraud.
              I persist in the view that this is a
              finding—since it affects the
              guideline[s] calculation in an
              upward way, that this is a—an issue
              w h ich s h o u ld b e r e solve d
              b y — i n s o f a r             a s
              applying— calculating the
              [G]uideline[s] range is concerned,
              it has to be found beyond a
              reasonable doubt. . . . I confess to

                               8
               considerable doubt as to exactly
               what the amount of loss was in
               each case.

App. at 160.

        As noted below in more detail, the Judge determined that
the Presentence Report (“PSR”) likely had overstated the
amount of funds fraudulently obtained. For Ali he calculated
the Guidelines sentencing range according to his determination
of the loss amount proved beyond a reasonable doubt, and for
Spicer based on the perjury conviction.3 He further departed
downward from those advisory ranges based on four factors: (1)
records of public service and community support for both
defendants, (2) the lack of an initial intent to defraud for both,
(3) the minor role played by Lakiha Spicer, and (4) the
“exculpatory no” doctrine in Lakiha Spicer’s case.4 He
sentenced Ali to five years’ probation with in-home confinement

        3
       The Judge stated that he had applied this standard in
entering the final sentence, though he stated no specific
determination of loss amount. See infra notes 10–11 and
accompanying text.
    4
      This judicially created doctrine provides an affirmative
defense to perjury “if the statements at issue amount to no more
than a denial of criminal conduct in response to investigatory
questioning by the government.” United States v. Barr, 

, 645 (3d Cir. 1992); see infra Part IV.B.2.d.

                                9
for the first year, restitution payments of $30,000, and a special
assessment of $2,500. He sentenced Spicer to four years’
probation with in-home confinement for the first six months,
restitution payments of $25,000, and a special assessment of
$800.

        In appealing these sentences, the Government contends
that the District Court erred by applying a reasonable-doubt
standard to determine the loss amounts for both defendants,
resulting in erroneous Guidelines calculations. It also argues
that the Court relied on impermissible factors to depart
downward for both defendants. In this context, the Government
maintains the final sentences were unreasonable.5

III.   Standard of Review

       We review sentences for reasonableness. 

; see also 

. Booker
“attempt[ed] [no] elaborate discussion of [the reasonableness]
standard,” Cunningham v. California, 549 U.S. __, 

, 867 (2007), but the Supreme Court recently clarified its
meaning. Reasonableness review “merely asks whether the trial
court abused its discretion” in calculating and applying the


   5
    The District Court had subject matter jurisdiction over this
case pursuant to 18 U.S.C. § 3231. We have jurisdiction over
the Government’s appeal under 18 U.S.C. § 3742(a)(1) and 28
U.S.C. § 1291.

                               10
Guidelines. Rita v. United States, 551 U.S. __, 

,
2465 (2007); see also id. at __, 127 S. Ct. at 2470 (Stevens, J.,
concurring) (“Simply stated, Booker replaced the de novo
standard of review required by 18 U.S.C. § 3742(e) with an
abuse-of-discretion standard that we called ‘reasonableness’
review.”).

        Rita, which allowed appellate courts to apply a non-
binding presumption of reasonableness to within-Guidelines
sentences, did not set standards governing below-Guidelines
range sentences like those before us. See id. at __, 127 S. Ct. at
2462.6     However, it did note that the reasonableness
presumption applies only to within-Guidelines sentences without
suggesting an unreasonableness presumption to outside-of-
Guidelines sentences. Id. at __, 127 S. Ct. at 2467. It also
emphasized that the reasonableness presumption applies to
appellate review only; it does not affect the ordinary sentencing
process that a district court judge must undertake. Id. at __, 127
S. Ct. at 2465.

        We have interpreted Booker to require the following
three steps in the ordinary sentencing process:

              (1)    Courts must continue to
              calculate a defendant’s Guidelines


   6
    The Supreme Court is considering that question this Term
in Gall v. United States, No. 06-7949, 

(2007).

                               11
              sentence precisely as they would
              have before Booker.

              (2) In doing so, they must formally
              rule on the motions of both parties
              and state on the record whether
              they are granting a departure and
              how that departure affects the
              Guidelines calculation, and take
              into account our Circuit’s pre-
              Booker case law, which continues
              to have advisory force.

              (3) Finally, they are required to
              exercise their discretion by
              considering the relevant [18
              U.S.C.] § 3553(a) factors in setting
              the sentence they impose regardless
              whether it varies from the sentence
              calculated under the Guidelines.

United States v. Gunter, 

, 247 (3d Cir. 2006)
(internal citations, brackets, and quotation marks omitted); see
also United States v. King, 

, 196 (3d Cir. 2006);
United States v. Cooper, 

, 330 (3d Cir. 2006).

IV.    Discussion



                              12
       A.     Step One: Guidelines Calculation

              1.     Initial Calculation

        As we have noted repeatedly, sentencing “[c]ourts must
continue to calculate a defendant’s Guidelines sentence
precisely as they would have before Booker.” 

(citing 

; 

);
see also 

(“District courts must still
conduct the full Guidelines analysis in every case.”). Nothing
in Rita changed this requirement. To the contrary, Rita affirmed
our approach, emphasizing that the sentencing “process[] will
normally begin by considering the presentence report and its
interpretation of the Guidelines.” 551 U.S. at __, 127 S. Ct. at
2465.

       In calculating the Guidelines sentence, we have explained
that, “[a]s before Booker, the standard of proof under the
guidelines for sentencing facts continues to be preponderance of
the evidence.” 

.7 We have further


   7
    The proper standard for finding facts relevant to sentences
has been much contested since the Sentencing Reform Act of
1984, culminating in the Apprendi line of cases leading up to
Booker. See 

; Ring v. Arizona, 

(2002); Apprendi v. New Jersey, 

(2000);
see also infra note 14. This issue was central in Grier, which
assessed the effect of Booker on sentencing requirements and

                              13
determined that our “Court will continue to review factual
findings relevant to the Guidelines for clear error and to exercise
plenary review over a district court’s interpretation of the
Guidelines.” 

; United States v. Fred
Cooper, 

, 176 (3d Cir. 2005).8 “A finding is


held that preponderance is the appropriate standard for
sentencing calculations. Grier recognized that § 3553(a) makes
no mention of a burden of proof, and U.S.S.G. § 6A1.3(a)
provides only that a court “may consider information without
regard to its admissibility under the rules of evidence applicable
at trial, provided that the information has sufficient indicia of
reliability to support its probable accuracy.” 

n.7. However, as the Grier majority also stated, “[t]he
commentary that accompanies § 6A1.3 reads: ‘The Commission
believes that use of a preponderance of evidence standard is
appropriate . . . .’” 

§ 6A1.3 cmt.). 

on that basis that a reasonable doubt requirement
would be contrary to congressional intent. 

(Sloviter, J., dissenting) (noting that, like the Sentencing
Commission, the Supreme Court has discussed the
appropriateness of a preponderance standard at sentencing
without holding that it was a requirement).
  8
    Subsection (e) of 18 U.S.C. § 3742, which Booker excised,
imposed a “clearly erroneous” standard of review for factual
findings under a mandatory Guidelines scheme. 

. In Grier we concluded that Booker’s excision of the
review-standard was a collateral result of the actions taken to
remedy § 3742(e)’s “impermissible references to a mandatory

                                14
clearly erroneous when although there is evidence to support it,
the reviewing body on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers
Pension Trust for S. Cal., 

, 622 (1993) (internal
quotation marks and brackets omitted). When a sentencing
court clearly errs in making factual findings, the resulting
sentence “will generally be deemed ‘unreasonable’ and, subject
to the doctrines of plain and harmless error, will result in
remand to the district court for resentencing.” 

; see also 

; United States v. Miller,

, 362 (3d Cir. 2005) (“This court has taken the
position that Booker sentencing issues raised on direct appeal
are best determined by the district courts in the first instance.”).9


Guidelines scheme,” but that the clearly erroneous standard is
still proper because it “fills in the gap for review of particular
factual determinations.” 

(citing
unanimous agreement among the other ten Courts of Appeals to
have addressed this issue).
      9
         As a preliminary matter, defendants argue that the
Government has waived its ability to appeal the sentencing
determination because it failed to object to the sentencing
Judge’s application of the reasonable-doubt standard to
determine the loss amount. We disagree. At the outset, our task
is to resolve questions of law raised by a petitioner alleging that
a district judge applied the wrong legal standard. While a party
can waive his or her ability to appeal a ruling for failure to

                                 15
       In calculating the recommended Guidelines range for Ali,
the District Judge rejected a preponderance standard for the loss
calculation, and instead announced his intention to calculate the
sentencing range according to his assessment of the loss amount
proved beyond reasonable doubt.10 The PSR for Ali specified
a base offense level of six under U.S.S.G. § 2B1.1 for violation
of 18 U.S.C. § 1341. It alleged that she and her co-conspirators
misappropriated a total of $245,975.08 and that she and Delores
Weaver were jointly and severally responsible for $206,326.32
of that amount. It thus added 12 points pursuant to §
2B1.1(b)(1)(G) (for a loss amount of over $200,000 but under



object, there can be no waiver here of the Judge’s duty to apply
the correct legal standard. Moreover, even if we were to
conclude that defendants’ argument should be evaluated under
Fed. R. Crim. P. 51 (requiring contemporaneous objections to
preserve the right to appeal a district court ruling), we would
conclude that the Government has preserved this issue because
it timely objected before the District Court. App. at 1587–90
(trial), 112 (sentencing), 179–80 (same); cf. United States v.
McCulligan, 

, 100–01 (3d Cir. 2001).
   10
        Though the Judge never made an explicit finding as to
loss amounts for any of the defendants, we presume that the
restitution payments he ordered reflect his assessment of loss
beyond a reasonable doubt. We call these figures the “low” loss
amounts, and the figures calculated by the Government in the
PSR (which correspond to the amounts alleged by a
preponderance of the evidence) the “high” loss amounts.

                               16
$400,000) and another four points for Ali’s major role in the
offense pursuant to § 3B1.1(a). This yielded a total offense
level of 22 coupled with a criminal offense category of I, for
which the Guidelines advise a range of 41–51 months’
imprisonment. The Court rejected the PSR’s calculation. As
noted, the Court did not state a finding of an exact loss amount,
but ordered Ali to pay $30,000 in restitution. This amount
requires a four-point addition to the base offense level pursuant
to § 2B1.1(b)(1)(C) (for a loss amount of over $10,000 but
under $30,000). The Judge adopted the PSR’s determination
that the base offense level was six, and having made his own
determination of loss amount (yielding the four-point add-on),
he presumably agreed that Ali’s major role warranted another
four-point enhancement. Added together, this yielded a total
offense level of 14, which, in conjunction with a criminal
history category of I, corresponds to a 15–21 month
recommended imprisonment range.

      With respect to Spicer, the District Court calculated the
Guidelines range sentence based on the perjury offense.11


   11
     In so doing, the Judge rejected the PSR’s use of the mail
fraud conviction (carrying a base offense level of six), which
would have required him also to calculate Spicer’s sentence
based on loss amount. The PSR alleged that Spicer stole
$71,000, and added eight points pursuant to U.S.S.G.
§ 2B1.1(b)(1)(E) (for a loss amount of over $70,000 but under
$120,000), plus another two points pursuant to § 3C1.1 for

                               17
Section 2J1.3 of the Guidelines specifies a base offense level of
14 for violation of 18 U.S.C. § 1621. As there were no specific
offense characteristics or adjustments applicable to this
offense,12 14 was also the total offense level. Coupled with a


obstruction of justice (i.e., the conviction for perjury to the
grand jury during the investigation). Had the Judge applied the
mail fraud conviction and calculated the loss, this would have
resulted in a total offense level of 16, which—added to a
criminal history category of I—would give an advisory
Guidelines range of 21–27 months’ imprisonment. In rejecting
the PSR’s eight-point enhancement for amount of loss, the Court
determined that the total offense level for the mail fraud offense
was lower than the total offense level for the perjury offense.
(The Court did not make an explicit loss-determination for
Spicer under § 2B1.1, but ordered her to pay $25,000 in
restitution, which would have resulted in only a four-point
enhancement, yielding a total offense level of only 12—a base
offense level of six for the mail fraud conviction plus a four-
level enhancement for loss amount and a two-level enhancement
for obstruction of justice.)
   12
       Amount of loss is not a specific offense characteristic for
perjury. Moreover, except in circumstances not applicable here,
the obstruction of justice adjustment under § 3C1.1 does not
apply to perjury offenses. See § 3C1.1, app. note 7 (“If the
defendant is convicted of an offense covered by . . . § 2J1.3 . .
., this adjustment is not to be applied to the offense level for that
offense except if a significant further obstruction occurred
during the investigation, prosecution, or sentencing of the

                                 18
criminal history category of I, this total offense level
corresponds to a 15–21 month recommended imprisonment
range.

       To reiterate, the appropriate burden for finding
sentencing facts here is by a preponderance of the evidence. See

. Loss amount is a sentencing fact (a
specific offense characteristic), so it must be found by a
preponderance of the evidence. “The court need only make a
reasonable estimate of the loss.” U.S.S.G. § 2B1.1, app. n.3(C);
see also United States v. Evans, 

, 252 (3d Cir.
1998).

       By employing a reasonable-doubt standard rather than a
preponderance standard in calculating the Guidelines at step
one, the Judge here erred. He also failed to specify even a
reasonable estimate of the loss amount for each defendant. Each
of these three mistakes is legal error, rendering the resulting
sentence unreasonable. As a result, we vacate the sentence and




obstruction offense itself . . . .”); accord § 2J1.3, app. note 2.
Finally, we note that the cross reference in § 2J1.3(c), which
requires application of § 2X3.1 in certain cases involving
obstruction of an investigation or prosecution of a criminal
offense (which occurred here), does not apply because the
resulting offense level under that section is not greater than 14.

                               19
remand.13

              2.      Constitutional Claims

       Defendants argue that the reasonable-doubt standard as
applied here was correct, because to allow proof by a
preponderance standard would raise constitutional concerns.

                      a.     Sixth Amendment

       We have noted (supra note 2) that the sentencing Judge
believed that, because of Blakely, any sentencing enhancements
sought by the Government based on loss amount implicated
defendants’ Sixth Amendment guarantee to trial by an impartial
jury in criminal cases. This, he concluded, required the facts
that support those enhancements to be proved to a jury with
evidence beyond a reasonable doubt.

       However, other than the fact of a prior conviction,
Almendarez-Torres v. United States, 

, 239–47
(1998), “any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury,


   13
      Although we remand for resentencing to allow the Court
to correct the sentencing calculation at step one, we continue our
analysis of its sentencing determinations at steps two and three
in order to provide guidance on related issues that arose here
and, in some instances, also were incorrectly applied.

                               20
and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at
490;14 see also 

–63. In other words, “the
right to proof beyond a reasonable doubt attaches only when the
[sentencing] facts at issue have the effect of increasing the
maximum [statutory] punishment to which the defendant is
exposed.” 

–66 (citing 

–94).15


  14
      The Supreme Court repeatedly has affirmed the Apprendi
rule, applying it in multiple contexts. See Cunningham, 549
U.S. at __, 127 S. Ct. at 871 (applied to facts permitting judges
to elevate a sentence beyond a “middle term” in a state
determinate-sentencing law); 

–44
(applied to facts triggering a sentencing range elevation under
the then-mandatory federal Guidelines); 

–05 (applied to facts permitting a sentence in excess of the
“standard range” in a state sentencing scheme); 

(applied to facts subjecting a defendant to the death
penalty); see also Rita, 551 U.S. at __, 127 S. Ct. at 2465–66
(recognizing the Apprendi rule but noting that it does not
invalidate the reasonableness presumption for within-
Guidelines sentences).
  15
     As the District Judge here observed, Blakely indicated that
the statutory maximum punishment to which Apprendi referred
was the top of the Guidelines range accompanying a guilty
verdict based on facts proved to a jury beyond a reasonable
doubt. 

–05. By making the Guidelines
advisory, Booker transformed the maximums to those specified
by Congress in the U.S. Code, which identifies the elements of

                               21
        Differing loss amounts raise no such problem. After
Booker, the statutory maximum to which Apprendi and Blakely
refer is the maximum punishment in the U.S. Code for a certain
crime. Section 1341 of Title 18, under which Ali was
sentenced, sets a maximum fine and imprisonment term of
$1,000,000 or 20 years, respectively, or both, for convictions of
fraud that do not involve a financial institution (as here).
Section 1621, under which Spicer was sentenced, permits
violators to be fined and sets a maximum imprisonment term of
five years, or both, for perjury convictions. The recommended
Guidelines range sentences for Ali fall far below 20 years,
whether the loss amount is calculated according to evidence
proved by a preponderance (41–51 months) or beyond a
reasonable doubt (15–21 months). Likewise, the recommended
sentence for Spicer falls far below the five-year statutory
maximum.



each offense and requires that only these facts be established
beyond a reasonable doubt. 

; see also

. The advisory Guidelines regime still
requires judicial factfinding to inform individual sentencing
decisions and to help meet the Sentencing Commission’s twin-
goals of sentencing—“uniformity and proportionality,” Rita, 551
U.S. at __, 127 S. Ct. at 2464 (emphases in original omitted).
But this requirement does not curtail a judge’s ability to exercise
broad discretion in determining a final sentence at step three
when taking into account the § 3553(a) factors. 

; 

.

                                22
       The Judge here was mistaken as to what Blakely requires
to show sentencing facts. This mistake led to his erroneous
calculation of the Guidelines range. Because the differing loss
amounts do not increase defendants’ sentences beyond the
statutory maximums, there is no Sixth Amendment concern here
with applying a preponderance standard for the sentencing
calculation.

                     b.     Fifth Amendment

       Defendants argue that the Due Process Clause of the
Fifth Amendment requires sentencing enhancements to be
proved beyond a reasonable doubt. Following the briefing and
argument of this case, however, an en banc majority of our
Court considered this precise contention and rejected it. See

–66 (“By excising the provisions of the
United States Code requiring mandatory application of the
United States Sentencing Guidelines, the Supreme Court in
Booker altered the constitutional impact of the Guidelines.
None of the facts relevant to enhancements or departures under
the Guidelines can increase the maximum punishment to which
the defendant is exposed. The Due Process Clause thus affords
no right to have these facts proved beyond a reasonable doubt.”)
(internal citations omitted). We follow suit.

              c.     Constitutional Avoidance

       Defendants also point to these same constitutional

                              23
concerns to urge us to apply the doctrine of constitutional
avoidance and read the Guidelines to require proof beyond a
reasonable doubt. See Jones v. United States, 

, 239
(1999) (“‘[W]here a statute is susceptible of two constructions,
by one of which grave and doubtful constitutional questions
arise and by the other of which such questions are avoided, our
duty is to adopt the latter.’”) (quoting United States ex rel. Att’y
Gen. v. Del. & Hudson Co., 

, 408 (1909)). This
canon is out-of-place here because it applies to statutory
interpretation only where there is doubt whether “an otherwise
acceptable construction of a statute would raise serious
constitutional problems.” Edward J. DeBartolo Corp. v. Florida
Gulf Coast Bldg. & Const. Trades Council, 

, 575
(1988). Because there is no constitutional doubt, defendants’
arguments do not alter our conclusion that the Judge committed
legal error because he failed to apply the preponderance
standard to determine the loss amount.

       B.      Step Two: Departure Determinations

               1.     Legal Framework

       Similar to our approach at step one, “we require that the
entirety of the Guidelines calculation be done correctly,
including rulings on Guidelines departures” at step two. United
States v. Jackson, 

, 838 (3d Cir. 2006); see also

; 

; 

. As with our conclusion concerning the proper

                                24
standard of proof for finding sentencing facts, generally “there
is every reason to believe that the Supreme Court intended that
the practices that have guided us and other courts in the twenty
years since the Guidelines were first promulgated would
continue to govern sentencing in the federal courts.” 

. Booker itself suggested as 

–61 (discussing “the past two decades of appellate practice
in cases involving departures”), as did Rita, 551 U.S. at __, 127
S. Ct. at 2465 (noting that, after calculating the Guidelines, the
sentencing judge “may hear arguments by prosecution or
defense that the Guidelines sentence should not apply, perhaps
because . . . [, inter alia,] . . . (as the Guidelines themselves
foresee) the case at hand falls outside the ‘heartland’ to which
the Commission intends individual Guidelines to apply . . . .”).

        Thus sentencing courts should continue to “treat each
[sentencing factor] as carving out a ‘heartland,’ a set of typical
cases embodying the conduct that each guideline describes.”
U.S.S.G. § 1A1.1 cmt. 4(b); see also United States v. Sweeting,

, 99 (3d Cir. 2000). Where the defendant’s conduct
falls outside the “heartland” of cases, a district court may
determine whether a departure is appropriate. United States v.
Iannone, 184 F.3d, 214, 226 (3d Cir. 1999); see also 

. “The Guidelines permit departures from the
prescribed sentencing range in cases in which the judge ‘finds
that there exists an aggravating or mitigating circumstance of a
kind, or to a degree, not adequately taken into consideration by
the Sentencing Commission in formulating the guidelines that

                               25
should result in a sentence different from that described.’”

(quoting 18 U.S.C. § 3553(b)(1));

.

       In Koon v. United States, the Supreme Court outlined
what is required of sentencing courts when considering a
departure from the applicable Guidelines range. 

,
92–96 (1996). In applying the Koon analysis, we have described
the process as follows:

             First, identify the factor or factors
             that potentially take the case
             outside the Guidelines’ “heartland”
             and make it special or unusual.
             Second, determine whether the
             Guidelines forbid departures based
             on the factor, encourage departures
             based on the factor, or do not
             mention the factor at all. Third,
             apply the appropriate rule: (1) if
             the factor is forbidden, the court
             cannot use it as a basis for
             departure; (2) if the factor is
             encouraged, the court is authorized
             to depart if the applicable guideline
             does not already take it into
             account; (3) if the factor is
             discouraged, or encouraged but

                              26
              already taken into account by the
              applicable guideline, the court
              should depart only if the factor is
              present to an exceptional degree, or
              in some other way makes the case
              different from the ordinary case in
              which the factor is present; or (4) if
              the factor is unmentioned, “the
              court must, after considering the
              structure and theory of both
              relevant individual guidelines and
              the Guidelines taken as a whole,
              decide whether [the factor] is
              sufficient to take the case out of the
              Guideline’s heartland.”

United States v. Serafini, 

, 772 (3d Cir. 2000)
(quoting 

).

        In our review of these sentences for reasonableness, we
assess the extent to which the sentencing court followed the
proper procedures to depart at step two from the recommended
sentencing range. 

. That query
includes consideration of “whether the factors relied on [by the
district court] are appropriate bases for departure,” 

(brackets original, citations and quotation
marks omitted); 

.



                               27
               2.      Analysis

        Here the sentencing Judge identified four bases for his
departure downward from the initial Guidelines calculations: (1)
defendants’ good works and community support, (2) their lack
of an initial intent to defraud, (3) Spicer’s minor role, and (4) the
“exculpatory no” doctrine in Spicer’s case. We evaluate each
according to the criteria of Koon, with particular emphasis on
the first basis—good works and community support—on which
the Judge and the parties rely most.

                       a.     Good works and community
                              support

       The Judge stated that a downward departure was
appropriate largely because of defendants’ “exemplary record of
public service” and charitable works, as demonstrated by the
“tremendous outpouring of public support.” App. at 231.16




   16
      In a dramatic moment at the sentencing hearings, defense
counsel announced that he “would like the Court and the record
to reflect the amount of people that have come into this
courtroom for both Lakiha and Azheem Spicer, and [] would ask
them to rise, . . . [to] get an accurate—some type of accurate
indication for the record.” App. at 145. The Judge duly noted
that the full courtroom of over 150 supporters stood up. App. at
145, 197.

                                  28
        Public service and good works are discouraged bases for
departures. See U.S.S.G. § 5H1.11 (“Military, civic, charitable,
or public service; employment-related contributions; and similar
prior good works are not ordinarily relevant in determining
whether a departure is warranted.”); Fred 

. Under the Koon analysis, the Court should have departed
only if the works were “exceptional.” 

;
see also Fred 

.

        “Exceptional” works involve acts that are both
“substantial” and “personal” in nature. 

They are
“evaluated with reference to the offender’s wealth and status in
life. More is expected of [those] who enjoy sufficient income
and community status[, as] . . . they have the opportunities to
engage in charitable and benevolent activities.” 

(citations and quotation marks omitted). Notably, in passing the
PROTECT Act (which stands for “Prosecutorial Remedies and
Other Tools to end the Exploitation of Children Today”), Pub.
L. No. 108-021, in 2003, Congress has expressed a
“‘disinclination towards leniency for white collar criminals . . .
and its frustration with the fact that these defendants receive
probation more often than other offenders who commit crimes
of comparable severity.” 

(Sloviter, J., dissenting)
(citations omitted). For this reason, “exceptional,” as applied to
charitable works, is a “hard standard to meet,” United States v.
Wright, 

, 248 (3d Cir. 2004), and thus it is applied




                               29
in very few cases.17

        In Fred Cooper, the District Court received 24 letters
pleading for leniency because of Cooper’s charitable donations
and 

. The Judge granted a four-level
downward departure on that basis, and sentenced Cooper to six
months’ house arrest and another 30 months’ probation,
expressing his belief that Cooper’s “community and charitable
activities have been truly exceptional, and that’s just not the
amount of money he spent on the things, but also the amount of
personal effort, and work, and help that he has given to so many
people.” 

  17
     Most appeals courts follow a similarly high standard when
determining whether good works warrant a departure in
analogous situations. E.g., United States v. Crouse, 

, 792 (6th Cir. 1998) (no downward departure for extensive
community involvement that spanned 25 years because that was
typical of business executives); United States v. Morken, 

(8th Cir. 1998) (no downward departure for a high-
profile businessman who advised local business, hired youth,
served on his church’s council, and raised money for charity);
United States v. Rybicki, 

, 758–59 (4th Cir. 1996)
(no downward departure for a highly decorated Vietnam war
veteran for saving an innocent civilian during the war and
serving with the Secret Service); United States v. McHan, 

, 247 (4th Cir. 1990) (no downward departure despite
work history, family ties and responsibilities, plus sizable
contributions to economic well-being of defendant’s town).

                              30
        We affirmed, noting that Cooper’s acts were

              not the detached acts of charity one
              might ordinarily expect from a
              wealthy business executive. They
              [were,] in a very real way, hands-on
              personal sacrifices, which have had
              a dramatic and personal impact on
              the lives of others. [In addition,]
              when compared with a similarly-
              situated defendant who received a
              downward departure based on good
              works, Cooper fares well.

(citations omitted). For support, we cited Serafini,
which affirmed a downward departure for a politician convicted
for violating election finance laws and perjury because of the
personal nature of several exceptional community works, as
described in several letters written to the sentencing judge
asking for 

, 776; see also United
States v. Woods, 

, 1136 (8th Cir. 1998) (upholding
a downward departure for defendant’s charitable activities,
including bringing two troubled young women into her home).18


   18
     The First Circuit Court of Appeals has taken a different
approach. In United States v. Thurston, the District Court
departed downward from a then-mandatory prison sentence of
60 months for a Medicare fraud conviction on the basis of good

                              31
works (including taking family members and others into
defendant’s home for several weeks, tithing 10% of his income,
and devoting several hours per week to community service).

, 79 (1st Cir. 2004) (Thurston I), vacated by 

(2005) (for consideration in light of Booker). The
District Court sentenced defendant William Thurston to three
months’ imprisonment with the recommendation that the time be
served in a halfway house, 24 months’ supervised release, and
no fine. 

The First Circuit Court reversed, concluding
that the good-works departure was improper because Thurston’s
acts were not “exceptional” in light of the nature of the offense
and his occupation as a wealthy corporate executive with the
means to undertake significant charitable causes, and instructed
the District Court to apply the mandatory 60-month sentence.

(Signaling our disagreement with the First Circuit, we
commented that, like Serafini, “the good works in Thurston
could also be construed as personal in nature[,] . . . and thus that
case would be more difficult to distinguish [from Fred Cooper]
. . . .” Fred 

(citing Thurston 

).) On resentencing, the District Court again imposed
essentially the same sentence, with the addition of a $25,000
fine. The First Circuit Court again reversed the departure and
remanded, this time with instructions to the District Court to
impose a sentence not less than 36 months’ imprisonment under
the now-advisory Guidelines scheme. United States v. Thurston,

, 219–20 (1st Cir. 2006) (Thurston II). Thurston
has filed a petition for writ of certiorari with the Supreme Court,
No. 06-378, 

(Sept. 14, 2006), which
implicates concerns expected to be resolved by the Supreme

                                32
        The record here contains a number of attestations to the
charitable acts of Ali (mainly) and Spicer. It also notes that Ali
received numerous citations and awards from the likes of then-
Philadelphia Mayor Edward G. Rendell (currently the Governor
of Pennsylvania), the Pennsylvania House of Representatives,
and the City of Philadelphia, between 1985 and 1996. In
addition, several witnesses testified regarding Ali’s good works
at the sentencing hearing, and 123 individuals wrote letters to
the sentencing judge on behalf of Ali and her children.

       A review of the testimony and the letters shows that Ali’s
charitable works consisted largely of her financial generosity, a
few personal charitable actions, and duties carried out in the
course of her employment at the School. The letters praise
Spicer for being a law-abiding citizen generally and sometimes
helping at the School. Regardless whether we agree with the
sentencing Judge’s assessment, we find it within the bounds of
reason that he observed that Ali partook in the type of
“sustained” and “personal” acts that would warrant a departure
under Serafini-Cooper.19



Court this Term in Gall, No. 06-7949, 

. See
supra note 6.
  19
     For example, Ali helped organize fundraising banquets for
the School, App. at 1364–1411, contributed her “personal
assistance from leading to scrubbing floors,” App. at 1413, spent
several hours “counseling and comforting” a student’s parent

                               33
        But there are few—if any—attestations of charity of a
“sustained” and “personal” nature with regard to Spicer. Most
acts described seem “ordinary,” in that they occurred in the
course of work with the School or family members and involved
no special sacrifice. Thus we cannot conclude that Spicer’s
actions here met the Serafini-Cooper definition of “exceptional”
or that a departure for good works for either defendant would
align easily with the Guidelines’ advice to the contrary or with
congressional policy of not privileging prominent citizens by
allowing them to avoid prison time.

        For charitable works to justify a departure, they must
work in tandem with other valid departure factors, the possibility
of which is called into question in the discussion below. See
United States v. Tomko, 

, 171–73 (3d Cir. 2007)
(concluding that the charitable works alone did not justify a
downward variance). Accordingly, we urge the Judge on
remand to provide detailed explanation as to why the record
justifies a departure for either or both of the defendants.

                      b.     No initial intent to defraud

      The Judge next expressed his view that defendants were
well-meaning individuals who had no intention initially to


who was struggling to overcome drug-addiction, App. at 1430,
and became the “legal guardian” to two nieces to ensure that
they attended better schools, App. at 1415, 1482.

                               34
defraud the Government.20 Section § 2B1.1 of the Guidelines


  20
       In this regard, he stated:

                [B]ased on the evidence presented
                at trial, as well as the arguments
                here today, it has always been clear
                to me that none of these defendants
                started out with the intention of
                defrauding anybody. What they
                started out with was an opportunity
                to get some money by teaching at
                the Community College in this
                special program of outreach to the
                community. . . . [T]he outreach
                program, the adult education
                program, was very sloppily put
                together. . . . I have no doubt that,
                when the defendants were first
                hired by the Community College,
                they, in good faith, expected to
                teach classes. And, they did start
                out teaching classes. And then,
                everybody who was supposed to be
                coming to the class lost enthusiasm,
                and the whole thing kind of fell
                apart. And, these defendants stayed
                in it too long and collected money
                they weren’t entitled to. But it’s
                not the kind of case where people

                                    35
makes no mention of fraud that was not intentional at the outset,
no doubt because intent to defraud is an element of the crime
itself. In that circumstance, under Koon a court should consider
the “structure and theory” of the Guidelines pertaining to fraud
and the Guidelines as a whole to determine whether the facts are
“sufficient to take the case out of the Guidelines’ ‘heartland.’”

. The Court here engaged in no such
structural or analogic analysis. If it had, it likely would have
determined that the structure of § 2B1.1 indicates that this case
of fraud was average because this section focuses on the loss
amounts accompanying actual convictions for fraud, rather than
whether intent to defraud existed at the outset.

        The Judge’s quarrel seems to be not with the culpability
for fraud—for which there is a jury conviction—but the duration
of the fraudulent scheme and thus the appropriate loss amount



              set out originally      to   defraud
              anybody.

App. at 158–59 (Spicer’s Sentencing Hr’g); accord App. at 233
(Ali’s Sentencing Hr’g) (“[E]verybody was well intentioned at
the start[;] they wanted to do some good in the community and
saw this as an opportunity to finance the Sister Clara School to
some extent and also to help the people in the community.
Undoubtedly, as I said before, there came a point when it should
have been and obviously was apparent . . . that this was a scam
and wasn’t working out in the way it should have.”).

                               36
associated with that scheme. In our view, it is inappropriate to
consider intent as a departure factor because of doubts about
loss amount, particularly when, as here, the crime of conviction
already specified an intent element.21 Moreover, there is nothing
to suggest that any lack of intent here—even if it were an
appropriate ground for departure—is sufficient to take this
outside of the heartland under the Koon analysis for
unmentioned factors. As such, we cannot affirm the downward
departure on the ground of a lack of an initial intent to defraud.

                      c.     Minor role

        The Judge determined that Spicer played a minor role in
this scheme, further justifying a downward departure. “It’s
true,” he stated, “that [Lakiha and Azheem Spicer] did receive
the money. But at least with respect to the people who were



   21
     Any such doubts are addressed more appropriately at step
one, when estimating the loss amount, or at step three, when
considering relevant § 3553(a) factors. For example, if the
Judge determined by a preponderance of evidence that the
fraudulent intent occurred one year after the establishment of the
program (rather than for the entire two-year period as alleged by
the Government), he would come up with a reasonable estimate
of the loss amount from his estimate of the date on which
defendants began the crime, and thus the date from which they
were liable for losses to the Government. We discuss the step
three considerations below.

                               37
behind arranging matters so that the matter would continue to
flow, even though no classes were being held, I don’t think
these defendants are chargeable with that aspect of it.” App. at
163. Minor role is not a departure factor. Instead, it is an
adjustment under the Guidelines calculation at step one, which
provides for a two-point reduction from the offense level for
defendants less culpable than most other participants, but whose
role cannot be described as minimal. See U.S.S.G. § 3B1.2 app.
note 5.

        Applying the Koon analysis, the District Court should
have concluded that this factor is “encouraged but already taken
into account by the applicable guideline [i.e., § 3B1.2],” and
calls for a “depart[ure] only if the factor is present to an
exceptional degree, or in some other way makes the case
different from the ordinary case in which the factor is present.”

(citations omitted). The Court failed
to outline whether or how the “minor role” was exceptional. It
thus should not have granted a downward departure on this
basis.

                     d.     “Exculpatory no” doctrine

       Finally, the Judge determined that the “exculpatory no”
doctrine warranted a lower sentence for Spicer with respect to
her perjury charge. He reasoned that “the perjury [that] she
committed was not much different from a simple denial of guilt,
and therefore “is not [‘traditionally’] regarded as a punishable

                               38
perjury.” App. at 160–61, 164 (Spicer’s Sentencing Hr’g).

        A downward departure from the Guidelines range for
perjury could have been appropriate only if the sentencing court
found that the circumstances were such as to remove Spicer’s
perjury from the “heartland” of perjury cases. Spicer was
convicted under 18 U.S.C. § 1621 of knowingly making a false
statement under oath to the grand jury investigating the CCP
fraud scheme. When asked whether she “actually [taught] on
site at [the School] for every hour for which [she was] paid by
the [CCP],” Spicer responded, “Yes.” The jury found that this
statement was made under oath, that it was false, and that it was
material to whether a fraud against the Government had been
committed. This would appear to put it squarely within the §
1621 perjury cases. We fail to see how the fact that Spicer’s lie
tended to be exculpatory from her perspective moves it beyond
the heartland. There are undoubtedly many perjury convictions
that arise from false testimony tending to exculpate the
defendant.22 A downward departure from the Guidelines range


  22
     As noted, supra note 4, the “exculpatory no” doctrine was
a judicially crafted one applicable only to prosecutions under 18
U.S.C. § 1001, which makes it a crime knowingly to make a
false statement to a federal agency (under oath or not). So far as
we can determine, it has never been applied in the context of 18
U.S.C. § 1621, which requires a knowingly false statement made
under oath or “under penalty of perjury.” Even in the context of
§ 1001, however, the doctrine and the rationale behind it were

                               39
was, accordingly, error.

                       *    *   *    *    *

        In sum, none of the factors on which the District Judge
relied presented a “mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines that
should result in a sentence different from that described.” 18
U.S.C. § 3553(b)(1). Good works and community service are
discouraged factors under the Guidelines, and in any event the
Judge has not explained how Ali and/or Spicer’s charitable
activities were so exceptional, as we have interpreted that term
in Serafini and Fred Cooper, as to warrant a downward
departure, particularly if they constitute the sole valid departure
factor. Lack of fraudulent intent is unmentioned, but it seems
implausible that it should be considered at this stage because
intent was an element of the conviction for which defendants are
to be sentenced under the Guidelines. Even if lack of intent
were to be considered, there is nothing on this record indicating
that the sentence for fraud here was outside the heartland of
fraud cases. Minor participation has already been taken into
account by the Guidelines’ two-level reduction, and there is
nothing to suggest that Spicer’s level of culpability is so


rejected by the Supreme Court in Brogan v. United States, 

, 404–05 (1998). Clearly the “exculpatory no” doctrine
has no applicability here.

                                40
exceptionally low as to warrant a downward departure. The
“exculpatory no” doctrine has no place here, as Spicer perjured
herself before the grand jury. For these reasons, we conclude
that—absent further explanation regarding charitable
works—the Judge erred in granting downward departures on
these grounds.23

         C.   Step 3: Relevant § 3553(a) Factors

       At step three, a sentencing court must “state in open court
the reasons for its imposition of the particular sentence,” 18
U.S.C. § 3553(c), particularly where, as here, it chooses to
“var[y] significantly from the advisory Guidelines range . . . .”
United States v. Kononchuk, 

, 204 (3d Cir. 2007).
There are “no magic words” that it must invoke when doing so.

; see also Rita, 551 U.S. at __, 127 S.
Ct. at 2468 (“The appropriateness of brevity or length,
conciseness or detail, when to write, what to say, depends upon
circumstances.”). Rather, we require courts generally to give


    23
       We are well aware that when he imposed sentence the
District Judge did not have the benefit of our opinion in United
States v. Vampire Nation, 

, 195 n.2 (3d Cir. 2006),
and it may be that he intended to make a variance from the
Guidelines rather than a departure. If that is the case, the
foregoing heartland analysis would not be necessary and we
would review for reasonableness. 

–27.
This can be clarified on remand.

                               41
“meaningful consideration to the relevant § 3553(a) factors,” 24


   24
        The factors set out in 18 U.S.C. § 3553(a) are:

         (1) the nature and circumstances of the offense
         and the history and characteristics of the
         defendant;
         (2) the need for the sentence imposed—
                 (A) to reflect the seriousness of the
                 offense, to promote respect for the
                 law, and to provide just punishment
                 for the offense;
                 (B) to afford adequate deterrence to
                 criminal conduct;
                 (C) to protect the public from
                 further crimes of the defendant; and
                 (D) to provide the defendant with
                 needed educational or vocational
                 training, medical care, or other
                 correctional treatment in the most
                 effective manner;
         (3) the kinds of sentences available;
         (4) the kinds of sentence and sentencing range
         established for—
                 (A) the applicable category of
                 o f f en s e c o m m itte d b y th e
                 applicable category of defendant as
                 set forth in the guidelines . . .;
         (5) any pertinent policy statement . . . issued by
         the Sentencing Commission . . . that . . . is in

                                 42


(quoting 

)
(quotation marks and brackets omitted), and “state adequate
reasons for a sentence on the record so that this court can engage
in meaningful appellate review.” 

. Where
a court varies, and a party has raised cogent “objections with
legal merit that the variance is unjustified by the record,” we
require the court to “explain why the variance is justified, . . .
[with] explanations of the relevant sentencing factors [that] go
beyond mere formalism.” 

; see also

. Though the Supreme Court has not
yet ruled on how sentencing judges must approach outside-of-
Guidelines range sentences after Booker, it signaled agreement
with our approach:

              [While within-Guidelines range
              sentences] will not necessarily
              require a lengthy explanation, . . .
              [w]here the defendant or prosecutor
              presents nonfrivolous reasons for
              imposing a different sentence . . .



       effect on the date the defendant is sentenced[;]
       (6) the need to avoid unwarranted sentence
       disparities among defendants with similar records
       who have been found guilty of similar conduct;
       and
       (7) the need to provide restitution to any victims
       of the offense.

                               43
              the judge will normally go further
              and explain why he has rejected
              those arguments. . . . Where the
              judge imposes a sentence outside
              the Guidelines, the judge will
              explain why he has done so.

Rita, 551 U.S. at __, 127 S. Ct. at 2468.

       Here, the Judge’s step-three analysis was flawed. The
principal error occurred with respect to factor § 3553(a)(4),
which requires meaningful consideration of the advisory
Guidelines range for a conviction. We have outlined above why
the application of a reasonable-doubt standard to determining
the loss amount was legal error, and how that error resulted in
an erroneous Guidelines calculation at step one. We have also
explained how the Judge erred at step two when he relied on
inappropriate or non-extraordinary factors to support his
decision to depart downward. With an incorrectly calculated
Guidelines range and an improper departure determination, the
Judge necessarily was unable meaningfully to consider the
recommended Guidelines range as required by § 3553(a)(4). Put
simply, the preliminary errors at steps one and two tainted the
step three analysis and resulting sentence.25


  25
     In addition, when considering the § 3553(a) factors during
Spicer’s sentencing, the District Court remarked that “when we
get to the point of punishment, there can be no doubt that

                               44
[Spicer and co-defendant Azheem Spicer] have, to some extent,
been punished already because of the public shame and
humiliation and the exposure to ridicule and exposure to
unwanted publicity and so-forth[,] . . . [so] they have already
suffered to some extent.” App. at 162. The Supreme Court
recognized in Koon that adverse publicity may serve as a proper
basis for downward departure in certain narrow circumstances.
See 

(concluding that the “widespread
publicity and emotional outrage” that surrounded the beating of
Rodney King made defendant police officers “particularly likely
to be targets of abuse during their incarceration” and justified a
downward departure).
        If analyzed as a departure factor, adverse publicity cannot
justify a downward departure here, as Spicer has not
demonstrated anything extraordinary about her case that would
bring it outside the heartland of cases involving relatively
prominent local figures convicted of stealing public funds. If
analyzed as a § 3553(a) factor, adverse publicity alone cannot
support the substantial variance awarded here (in percentage, if
not absolute, terms), even if the Judge found within his
discretion that it supported certain penological goals, thus
offsetting the sentence somewhat. Although courts have
“‘greater latitude’” after Booker to consider sentencing factors
framed as § 3553(a) variances, United States v. Jackson, 

, 842 n.8 (3d Cir. 2006) (quoting United States v.
McBride, 

, 476 (6th Cir. 2006)), they must justify
substantial variances with compelling reasons. See United
States v. Manzella, 

, 161 (3d Cir. 2007) (“[T]he
more that a sentence varies from the advisory Guidelines range,

                                45
        The Judge’s concerns throughout this sentencing process
revolved around his view that loss amounts drive sentences in
contexts like these, and he apparently did not believe that the
amounts alleged by the Government reflect accurately the
offense for which defendants are culpable. The principal issue
here, then, concerns a situation where a sentencing fact drives
the Guidelines sentences, but the Judge has reservations about
the strength of the evidence. Here, he doubted that the evidence
of loss applied to the two-year duration of the crime alleged by
the Government and thus doubted whether the evidence was
strong enough to support the final Guidelines-recommended
range. Booker afforded judges broad discretion to enter
appropriate sentences in consideration of § 3553(a) factors.26



the more compelling the supporting reasons must be.”). We see
no compelling reasons offered here.
    26
       We note that, in the exercise of their discretion, some
sentencing judges have addressed doubts about the strength of
the evidence in support of facts driving a sentence by declining
to add a heavy thumb to the § 3553(a)(4) scale—the Guidelines
range. For example, district courts have compared the
Guidelines advice to the sentence that would be reached through
applying a reasonable-doubt standard for determining
Guidelines-driven sentencing facts, and—in considering the §
3553(a) factors—rejected the Guidelines advice when it
diverged too far from the reasonable-doubt result. United States
v. Gray, 

, 720, 723 (S.D.W.Va. 2005); see
also United States v. Kandirakis, 

, 322 (D.

                              46
But under Grier it is not within a sentencing judge’s discretion
to diverge from applying the preponderance-of-the evidence
standard in the initial sentencing calculation at step one or
employing appropriate departure factors at step two. In light of
the step-one calculation error and the flawed departure analysis
at step two, we vacate both sentences and remand for
resentencing.




Mass. 2006) (submitting enhancement facts to an advisory jury
at sentencing); 

(citing other cases where district
courts have considered sentencing facts proved by evidence
stronger than a preponderance). We also note that the Seventh
Circuit Court has affirmed such practices, in efforts to avoid
placing restrictions on the sentencing judge’s discretion, and
thereby avoid rendering the advisory Guidelines effectively
mandatory in contravention of Booker. E.g., United States v.
Reuter, 

, 793 (7th Cir. 2006) (“A judge might
reasonably conclude that a sentence based almost entirely on
evidence that satisfied only the normal civil standard of proof
would be unlikely to promote respect for the law or provide just
punishment for the offense of conviction. That would be a
judgment for the sentencing judge to make and we would
uphold it so long as it was reasonable in the circumstances.”).
The continuing validity of these approaches awaits the Supreme
Court’s decisions in Gall and Kimbrough this Term.

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