United States v. Mary Frankovic ( 2011 )


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  •                                                                  NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    No. 10-4368
    _____________
    UNITED STATES OF AMERICA
    v.
    MARY LU FRANKOVIC,
    Appellant
    __________
    On Appeal from the United States District Court
    for the District of Western Pennsylvania
    (D.C. No. 2-08-cr-00280-001)
    District Judge: Hon. Nora B. Fischer
    __________
    Submitted under Third Circuit LAR 34.1(a)
    February 15, 2011
    Before: SLOVITER, HARDIMAN and ALDISERT, Circuit Judges.
    (Filed: February 16, 2011)
    __________
    OPINION OF THE COURT
    __________
    ALDISERT, Circuit Judge.
    At issue in this appeal is whether the District Court committed a procedural error
    during sentencing in this case. Appellant Mary Lu Frankovic contends that the District
    Court failed to apply the proper legal framework when ruling upon her motion for a
    “departure” within, or a “variance” from, the United States Sentencing Guidelines
    (“Guidelines”), and urges us to remand for resentencing. We disagree, and will affirm.
    I.
    The District Court had jurisdiction pursuant to 
    18 U.S.C. § 1331
    . We have
    jurisdiction pursuant to 
    28 U.S.C. § 1291
    , and 
    18 U.S.C. § 3742
    (a).
    We give great deference to a district court’s factual findings during a sentencing
    hearing, United States v. Wise, 
    515 F.3d 207
    , 217 (3d Cir. 2008), but whether a district
    court committed a procedural error in sentencing is a question of law we review de novo,
    cf. United States v. Lofink, 
    564 F.3d 232
    , 237 (3d Cir. 2009).
    II.
    Appellant Mary Lu Frankovic pleaded guilty to various fraud-related offenses, and
    was sentenced to a split term of prison and supervised release. During the sentencing
    hearing, her attorney asked the court for a variance, as well as a departure, from the
    Guidelines’ recommended sentence: “We believe a downward variance or a departure
    under the amended guidelines is clearly appropriate based on Ms. Frankovic’s mental
    illness . . .” (App. 193.)
    At the conclusion of the hearing, the District Court first addressed the request for a
    variance. It stated that, “after considering all the facts of record and the factors under
    Section 3553(a), including the policy statements, as well as the recent amendments that
    now pertain[] to this case, the Court will not vary from the advisory guideline range.”
    (App. 207, 208) (“I will not vary based on the mental and emotional health conditions.”).
    The Court next addressed the request for a downward departure. The Court ruled
    out any departure based upon mental incapacity (App. 211), and any departure based upon
    mental and emotional conditions (App. 212), stating that “all together, I don’t believe a
    departure under the newly revised guideline is warranted” (App. 213). The Court then
    2
    imposed the Guidelines’ recommended sentence.
    III.
    The Appellant contends that the District Court failed to apply the proper legal
    framework, thereby tainting her sentence with procedural error, when ruling upon her
    motion for a departure or a variance. We disagree. In United States v. Brown we set forth
    the procedural framework that guides courts’ rulings upon variances and departures:
    We expressly distinguish between departures from the guidelines and variances
    from the guidelines. Departures are enhancements of, or subtractions from, a
    guidelines calculation based on a specific Guidelines departure provision. These
    require a motion by the requesting party and an express ruling by the court.
    Variances, in contrast, are discretionary changes to a guidelines sentencing range
    based on a judge’s review of all the [18 U.S.C.] § 3553(a) factors and do not require
    advance notice. District courts should be careful to articulate whether a sentence is a
    departure or a variance from an advisory Guidelines range.
    
    578 F.3d 221
    , 225-226 (3d Cir. 2009) (internal quotations and citations omitted). We are
    satisfied that the District Court in this case followed the procedures Brown described. The
    Court ruled first upon the variance, making findings of fact framed by the judge’s review of
    the § 3553(a) factors. Then, separately, the Court made an “express ruling” upon the
    departure, as Brown requires. See id. at 225. The Court concluded by heeding Brown’s
    warning to “be careful to articulate” its rulings on both the departure (App. 213) and the
    variance (App. 212) before announcing the sentence in this case. See 
    578 F.3d at 226
    . For
    those reasons, we are convinced that the Appellant’s sentence is procedurally sound.
    *****
    We conclude that there was no procedural error in the sentencing proceeding in this
    case. The judgment of the District Court will be AFFIRMED.
    3
    

Document Info

Docket Number: 10-4368

Judges: Sloviter, Hardiman, Aldisert

Filed Date: 2/16/2011

Precedential Status: Non-Precedential

Modified Date: 10/19/2024