United States v. Lawrence Ward , 732 F.3d 175 ( 2013 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 12-1511
____________
UNITED STATES OF AMERICA
v.
LAWRENCE SCOTT WARD,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D. C. No. 2-08-cr-00148-001)
District Judge: Honorable Petrese B. Tucker
Argued on March 5, 2013
Before: SCIRICA, JORDAN and ROTH, Circuit Judges
(Opinion filed: October 15, 2013)
Peter Goldberger, Esq. (Argued)
50 Rittenhouse Place
Ardmore, PA 19003
Counsel for Appellant
Sonja M. Ralston, Esq.
United States Department of Justice
Criminal Division
950 Pennsylvania Avenue, N. W.
Suite 1264
Washington, DC 20530
Bea L. Witzleben, Esq. (Argued)
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
OPINION
ROTH, Circuit Judge:
Lawrence Scott Ward appeals the District Court’s
judgment of sentence. Ward alleges several sources of error
in the proceedings below, including a violation of Federal
2
Rule of Criminal Procedure 32 on the theory that the District
Court improperly required that he deliver his allocution under
oath. For the reasons that follow, we will affirm the District
Court’s judgment of sentence.
I. Background
On August 27, 2006, Ward arrived at Dulles
International Airport after a trip to Brazil. A search of
Ward’s possessions revealed that he was in possession of
child pornography. Ward was arrested and indicted in the
Eastern District of Virginia for that offense.
After Ward’s arrest in Virginia, federal agents
searched his office at the Wharton Graduate School of
Business, in Philadelphia, Pennsylvania, where he served as
an Emeritus Professor. The search revealed numerous
photographs and videos of Ward engaged in sex acts with
minors later identified as J.D. and R.D. The pictures and
videos were taken in Brazil, where J.D. and R.D. lived. A
search of Ward’s email showed communications between
Ward and J.D. and R.D. in which Ward requested that the
boys engage in various sex acts, including having sex with
other men chosen by Ward. The investigation also exposed
evidence that Ward had paid for J.D.’s housing and provided
J.D.’s family with money.
Between March and August 2006, Ward attempted to
acquire a visa for J.D. to visit the United States. During the
visa application process, Ward made several false statements
to State Department personnel, including misrepresentations
that J.D.’s family was affluent when in fact it was destitute.
3
Ward allegedly did this to show that there was little risk that
J.D. would overstay his visa.
On May 17, 2007, after unsuccessfully attempting to
consolidate the cases pending in the Eastern District of
Pennsylvania and the Eastern District of Virginia, Ward
pleaded guilty in the Eastern District of Virginia case and
received a sentence of 15 years of imprisonment. On March
13, 2008, Ward was indicted in the Eastern District of
Pennsylvania on two counts of shipping child pornography in
interstate commerce, in violation of 18 U.S.C. § 2252(a)(1),
and one count of false statements to a federal official, in
violation of 18 U.S.C. § 1001. On August 21, 2008, the
grand jury returned a superseding indictment charging Ward
with an additional two counts of inducing a minor to engage
in sexually explicit conduct, in violation of 18 U.S.C. §
2251(a).
On November 17, 2008, Ward pleaded guilty in the
Eastern District of Pennsylvania case to all five counts of the
superseding indictment. At the sentencing hearing, the
government requested and received a two-level sentencing
enhancement because Ward’s conduct involved two victims.
The District Court sentenced Ward to 300 months of
incarceration, lifetime supervised release, a $100,000 fine,
and a $500 special assessment.1 However, the District Court
1
The District Court originally intended not to impose a fine
but to award restitution of $100,000. When the prosecutor
expressed concern about restitution because the victim, J.D.,
could not be found, the court responded, “so the $100,000
will be a fine, not restitution.”
4
did not specify a particular sentence for each charge to which
Ward pleaded guilty.
Ward appealed the sentence to this Court on three
grounds: (1) challenging the two-level enhancement, (2)
asserting that the District Court’s rationale for imposing a fine
was flawed, and (3) arguing that his sentence was an
impermissible general sentence. We found no error in the
District Court’s conclusion that Ward’s crime involved two
victims. United States v. Ward, 626 F.3d 179, 183-84 (3d
Cir. 2010). We also held that the District Court, in switching
the $100,000 from restitution to a fine, stated insufficient
reasons for imposing that fine, but, because Ward did not
object to the fine at sentencing, we concluded that this error
was not plain. Id. at 185-86. Finally, we held that the District
Court erred by failing to impose a separate sentence for each
count of the superseding indictment. Id. at 184. This error
was reversible; thus, we remanded the case to the District
Court for resentencing. Id. at 186.
While his appeal was pending, Ward maintained
contact with J.D. and R.D., who at this point had fathered
children. Ward attempted to establish a relationship with
those children. Additionally, Ward violated prison rules by
spending money on other inmates and attempting to use his
attorneys to make contact with his victims for non-legal
reasons.
At the resentencing hearing on February 9, 2012, the
District Court personally addressed Ward, asking if he wished
to speak on his own behalf. When Ward indicated that he
wished to make a statement, the District Court, over defense
counsel’s objection, insisted that his allocution be delivered
5
under oath, pursuant to that judge’s individual practice. Ward
was placed under oath and proceeded to speak about his
contrition for violating societal norms, his interest in
rehabilitation, his personal struggle in coming to terms with
the fact that he is a homosexual, his recent diagnosis of
leukemia, and his hope that he would have a sentence short
enough that he would not die in prison because he wanted to
maintain his ties with family and friends.
After Ward allocuted, the District Court sentenced him
to the same prison term of 300 months of incarceration, but
increased the fine from $100,000 to $250,000. The District
Court explained that the increased fine was not meant as
punishment for Ward’s successful appeal of his sentence;
rather, the court stated that the $250,000 fine was within the
advisory range and that the amount was a reasonable figure
which Ward had the means to pay. The District Court also
ordered that Ward have no contact with any person under 18
years of age, especially his victims’ children in Brazil.
II. Discussion2
Ward challenges his sentence on seven independent
grounds, arguing that his sentence should be vacated because
(1) he had the right to deliver an unsworn allocution, (2) the
District Court impermissibly increased his fine, (3) the
government presented insufficient evidence to warrant a
sentencing enhancement for Ward’s involvement in a pattern
of prohibited sexual conduct, (4) the District Court did not
2
The District Court had jurisdiction under 18 U.S.C. § 3231.
This Court has appellate jurisdiction under 18 U.S.C. § 3742
and 28 U.S.C. § 1291.
6
adequately explain the reasons for choosing a 300 month
sentence, (5) the District Court’s refusal to grant Ward’s
request for a downward variance was procedurally
unreasonable; (6) a 300 month sentence was substantively
unreasonable, and (7) the District Court impermissibly failed
to order restitution. All of Ward’s arguments are unavailing.
A. May the Court Require that Allocution be
Sworn.3
Ward argues that Federal Rule of Criminal Procedure
32 affords all criminal defendants the right to deliver an
unsworn allocution.4 The issue of whether a criminal
defendant has the right to an unsworn allocution is a matter of
first impression in this Court and appears to be a novel
question of federal law. As with any analysis of the Federal
Rules of Criminal Procedure, our inquiry is guided by the text
of the rule as well as its history and purpose. See United
States v. Higgs, 504 F.3d 456, 459 (3d Cir. 2007). For the
reasons that follow, we conclude that there is no right to
3
Following oral argument, the Court directed the United
States to file a supplemental brief, stating the formal position
of the Department of Justice as to whether a criminal
defendant may be required to be sworn at a sentencing
hearing – either at the beginning or immediately before
allocution. The Department of Justice filed such a brief.
Ward was permitted to file a response and he did so. This
post-argument briefing has been considered in our resolution
of this appeal.
4
Our review of a district court’s compliance with Rule 32 is
plenary. United States v. Cherry, 10 F.3d 1003, 1013 (3d Cir.
1993).
7
deliver an unsworn allocution. We leave it to the unfettered
discretion of the district courts to decide whether the
defendant will be placed under oath during allocution.
1. Legal Framework
“[T]he right of allocution is deeply rooted in our legal
tradition” and dates back to at least the fifteenth century. U.S.
v. Adams, 252 F.3d 276, 282 (3d Cir. 2001). The rules of
evidence in early English and American common law deemed
criminal defendants “incompetent as witnesses.” Ferguson v.
Georgia, 365 U.S. 570, 574 & n.3 (1961) (citing 3
Blackstone, Commentaries on the Laws of England, 369
(1769)). As a result, they could not testify on their own
behalf at trial or plead legal defenses like insanity or
justification. Kimberly A. Thomas, Beyond Mitigation:
Towards a Theory of Allocution, 75 Fordham L. Rev. 2641,
2646-47 (2007). Thus, allocution, before sentencing, was the
defendant’s one chance to argue for mitigation. Adams, 252
F.3d at 282; Paul W. Barrett, Allocution, 9 Mo. L. Rev. 115,
120-21 (1944). Although the right of allocution predates the
founding of the Republic, it is not a right guaranteed by the
Constitution.5 Adams, 252 F.3d at 282.
5
There is some authority in other circuits suggesting that the
right of allocution may be protected by the Fifth and
Fourteenth Amendments. See, e.g., Boardman v. Estelle, 957
F.2d 1523, 1525 (9th Cir. 1992) (habeas case, discussing right
of allocution in state court); United States v. Moree, 928 F.2d
654, 656 (5th Cir. 1991) (discussing right of defendant to be
present at sentencing); Ashe v. North Carolina, 586 F.2d 334,
336 (4th Cir. 1978) (habeas case, discussing right of
allocution in state court). We do not adopt their reasoning.
8
However, acknowledging the historical and common
law roots of the right of allocution, Congress codified the
right in 1944 by promulgating Federal Rule of Criminal
Procedure 32. Id. at 280 (citing Green v. United States, 365
U.S. 301, 304 (1961) (plurality opinion)). The text of Rule 32
sets forth only two requirements: the sentencing court must
address the defendant personally and must permit the
defendant to speak or present any information to mitigate the
sentence. Fed. R. Crim. P. 32(i)(4)(a)(ii). The rule is silent
as to whether the allocution should be sworn or unsworn.
There is no legislative history discussing whether a defendant
should be allowed to deliver an unsworn allocution, nor do
the committee notes address the question.
The Supreme Court’s 1961 decision in Green
recognized the historical roots of the common law right of
allocution, highlighting the equitable concern that a criminal
defendant must always be asked if he has anything to say
before sentence is imposed so that he has “the opportunity to
present to the court his plea in mitigation.” 365 U.S. at 304.
The rationale supporting this procedural requirement is that
even “[t]he most persuasive counsel may not be able to speak
for a defendant as the defendant might, with halting
eloquence, speak for himself.” Id. Rule 32 was codified with
this policy in mind. Id.
The cases decided since Green confirm that the critical
purpose of Rule 32 is threefold: (1) to allow the defendant to
present mitigating circumstances, (2) to permit the defendant
to present personal characteristics to enable the sentencing
court to craft an individualized sentence, and (3) to preserve
the appearance of fairness in the criminal justice system. See
9
Thomas, Beyond Mitigation, 75 Fordham L. Rev. at 2643.
Thus, allocution “is designed to temper punishment with
mercy in appropriate cases, and to ensure that sentencing
reflects individualized circumstances.” United States v. De
Alba Pagan, 33 F.3d 125, 129 (1st Cir. 1994). “Aside from
[allocution’s] practical role in sentencing, the right ‘has value
in terms of maximizing the perceived equity of the process,’”
United States v. Barnes, 948 F.2d 325, 328 (7th Cir. 1991)
(quoting 3 ABA Standards for Criminal Justice, 18-459 (2d
ed. 1980)), because the defendant is given the “right to speak
on any subject of his choosing prior to the imposition of
sentence.” Barnes, 948 F.2d at 328.
The contemporary practice of swearing or not
swearing defendants before a Rule 32 allocution varies by
district and by judge. Although no federal court has
addressed the question of whether a Rule 32 allocution must
be unsworn, our sister circuits have made passing references
to both sworn and unsworn allocutions. Compare, e.g.,
United States v. Kaniss, 150 F.3d 967, 969 (8th Cir. 1998)
(noting that the defendant’s Rule 32 allocution was sworn),
with United States v. Whitten, 610 F.3d 168, 199 (2d Cir.
2010) (noting that a defendant may deliver “an unsworn,
uncrossed allocution”); see United States v. Gilbert, 244 F.3d
888, 924 n.79 (11th Cir. 2001) (noting that Black’s Law
Dictionary defines allocution as an “unsworn statement” that
“is not subject to cross examination”). However, under Rule
32, no court has ever held that a criminal defendant has an
affirmative right to deliver an unsworn allocution.
Moreover, the Sentencing Guidelines do not
distinguish between sworn and unsworn statements,
permitting a sentence enhancement for any false statement,
10
whether sworn or not, made during an allocution. See
U.S.S.G. § 3C1.1; United States v. Parker, 594 F.3d 1243,
1249-50 (10th Cir. 2010) (applying § 3C1.1 enhancement for
a false statement made during the defendant’s allocution
without distinguishing between sworn or unsworn
statements).6
2. Analysis
We conclude from the above review that, although
allocution may frequently be unsworn, neither the
Constitution nor Rule 32 require that this be so. Whether an
allocution is sworn or unsworn does not affect a defendant’s
right to make a statement to the sentencing court nor does it
subvert the policy goals of Rule 32. The reason for allocution
is not to permit the defendant to re-contest the factual issues
of innocence and guilt. Rather, the purpose of allocution is to
afford the defendant an opportunity to raise mitigating
circumstances and to present his individualized situation to
the sentencing court. See Adams, 252 F.3d at 280; see also
Shelton v. Carroll, 464 F.3d 423, 442 (3d Cir. 2006) (finding
that the defendant had no constitutional right to make factual
statements about his involvement in the crime during
allocution in a capital case).
Under existing jurisprudence, the defendant’s right of
allocution is not unlimited. The sentencing judge has always
6
The Application Note to § 3C1.1 states, without
distinguishing between sworn and unsworn statements, that
“providing materially false information to a judge or
magistrate judge” is sufficient to warrant an enhancement.
U.S.S.G. § 3C1.1 app. note 4(F).
11
retained the discretion to place certain restrictions on what
may be presented during an allocution. See, e.g., United
States v. Mack, 200 F.3d 653, 657-58 (9th Cir. 2000)
(affirming district court’s refusal to allow the defendants to
discuss their beliefs about environmental issues and civil
disobedience); United States v. Li, 115 F.3d 125, 133 (2d Cir.
1997) (“[A] defendant’s right to allocution is not unlimited in
terms of either time or content.”). These decisions confirm
that a sentencing judge may impose procedural limitations
during an allocution, so long as the judge personally
addresses the defendant and offers him the opportunity to
address the court before the sentence is pronounced. See
United States v. Hall, 152 F.3d 381, 392 (5th Cir. 1998)
(interpreting Rule 32 narrowly as imposing only its two stated
requirements), abrogated on other grounds by United States
v. Martinez-Salazar, 528 U.S. 304 (2000); see also United
States v. Pelaez, 930 F.2d 520, 523 (6th Cir. 1991)
(confirming that Rule 32 has only two procedural
requirements, but also holding that the sentencing judge must
meaningfully consider the defendant’s statement during
allocution).
Moreover, when a defendant presents such a statement,
the fact that the court puts the defendant under oath could
have the effect of enhancing the credibility of the defendant’s
presentation and leaving a more meaningful impression on
the sentencing court. See Estes v. Texas, 381 U.S. 532, 558
(1965); Celine Chan, Note, The Right to Allocution: A
Defendant’s Word on its Face or Under Oath?, 75 Brook. L.
Rev. 579, 582 (2009). That being said, the Supreme Court
has also noted that, regardless of whether the statement is
sworn, all “[s]olemn declarations in open court carry a strong
12
presumption of verity.” Blackledge v. Allison, 431 U.S. 63,
74 (1977).
We conclude, therefore, that the choice by a particular
judge to require that the defendant be sworn for the allocution
is not inconsistent with the procedural requirements of Rule
32.
Ward, however, argues that the District Court’s
requirement of a sworn allocution overstepped the bounds of
Rule 32 – that
by placing Mr. Ward under oath as if he
were appearing as a witness, the district court
violated one of the essential attributes of the
defendant’s historic and fundamental right to
present a personal allocution prior to being
sentenced. This right includes an opportunity
for the defendant personally to express remorse
to the court, to explicate factors in mitigation,
and to plead for mercy prior to the imposition of
sentence, an opportunity that is by its nature and
by hundreds of years of historical tradition both
unsworn and without cross-examination.
This concern is without merit. As discussed above, the
purpose of Rule 32 is to give the defendant an opportunity to
speak about mitigating circumstances and offer his reasoning
for a more lenient sentence. Ward was free to address the
sentencing court on any and all of these topics. These are not
topics that address the factual elements of guilt, which have
already been decided by the jury.
13
We would also point out that, rather than exercising
his right to allocution, Ward could have remained silent. A
risk in speaking at allocution, whether sworn or unsworn, is
that the allocution statement can be used in subsequent
criminal prosecutions. See Harvey v. Shillinger, 76 F.3d
1528, 1535 (10th Cir. 1996) (“A defendant’s choice to
exercise his right to allocution, like the choice to exercise the
right to testify, is entirely his own; he may speak to the court,
but he is not required to do so.”). If the defendant is
concerned about future use of his statement against him, it
makes no difference whether the statement was sworn or not.
See Whitten, 610 F.3d at 199 (holding that that prosecutors
may use “an unsworn, uncrossed allocution” by a criminal
defendant in a subsequent proceeding against the same
defendant).7 Ward’s argument that an unsworn allocution
7
Ward also cites to a case from an intermediate Tennessee
appellate court, State v. Keathly, 145 S.W.3d 123 (Tenn.
Crim. App. 2003), which appears to be the only court to have
addressed the right to an unsworn allocution. The court in
Keathly found a violation of the right of allocution because
the defendant should have been “permitted to make an
unsworn statement to the court without having been subjected
to rigorous cross-examination.” Id. at 130.
Keathly is distinguishable for two reasons. First, the
court interpreted Tennessee law (the text of which mirrors
Rule 32) as granting the right to an unsworn allocution based
on the definition of the term in Blalck’s Law Distionary. Id.
at 124. The court did not engage in an analysis of the history
or purpose of the right of allocution. Instead, it just looked to
the definition provided in Black’s Law Dictionary and cited
an Eleventh Circuit case that cited the dictionary for the same
proposition. Id. at 125 (citing Gilbert, 244 F.3d at 924).
14
would have allowed him to deliver a more candid statement
to the sentencing court is not persuasive.
In sum, we conclude that the District Court retained
the discretion to require Ward to deliver a sworn allocution.
We find no basis to hold that the District Court violated Rule
32 when it required Ward’s allocution to be sworn. The
District Court’s decision to place Ward under oath did not
impinge upon Ward’s right to speak on his own behalf, nor
did the administration of an oath affect Ward’s ability to
present a plea of mitigation. Consequently, we find that there
was no violation of Ward’s right of allocution.
Second, and more importantly, the court held that the
cross-examination during the defendant’s allocution was
improper under Tennessee law because it transformed the
function of the allocution far beyond an opportunity for the
defendant to express contrition and request leniency. Id. at
129-30. Indeed, the fact that the allocution was subject to
cross-examination appears to be the dispositive issue in
Keathly. Here, however, Ward was not subject to cross-
examination. For these reasons, we do not find Keathly to be
persuasive.
15
B. The Remaining Grounds for Appeal8
1. The Increase of Ward’s Fine From
$100,000 to $250,000
Ward claims that the District Court vindictively
increased his fine at resentencing from $100,000 to $250,000,
in violation of the Fifth Amendment. The Due Process clause
forbids judges from retaliating against a defendant for
succeeding on an appeal by imposing a more severe sentence
on remand. See North Carolina v. Pearce, 395 U.S. 711, 726
(1969). In such cases, the defendant is typically entitled to a
presumption of vindictiveness, although the government may
rebut the presumption by “proffering legitimate, objective
reasons for its conduct.” Esposito, 968 F.2d at 303 (citations
omitted). Additionally, the Supreme Court has limited
application of the presumption to circumstances in which
there is a “reasonable likelihood” that the increased sentence
is the product of actual vindictiveness. Alabama v. Smith,
490 U.S. 794, 799 (1989). Where there is no reasonable
likelihood of vindictiveness, the burden remains upon the
defendant to prove actual vindictiveness. Id. at 799-800.
Here, the District Court acknowledged that the new
fine was being imposed to correct an error identified by us in
his earlier appeal, i.e., the failure to state sufficient reasons
for imposing the fine. The District Court then examined the
8
In challenges to the sentence, we review a district court’s
factual findings for clear error and exercise plenary review
over its applications of legal precepts. United States v.
Esposito, 968 F.2d 300, 302-03 (3d Cir. 1992).
16
relevant factors: the Guidelines range, Ward’s ability to pay,
and Ward’s crimes. At the second sentencing, with this
information at hand, the District Court arrived at the figure of
$250,000 as an appropriate fine. Additionally, the District
Court explicitly stated that the increased sentence was not
vindictive. (While certainly not determinative, a district
court’s statement of its aim and intention in pronouncing
sentence is a factor to be considered in making a
determination about vindictiveness.) Ward offers no
evidence of vindictiveness other than stating that he is entitled
to a presumption of vindictiveness based on the increased
fine.
Assuming, however, that the presumption of
vindictiveness applies, the particular facts of this case
overcome the presumption. First, as the government points
out, the District Court never actually considered the
appropriate factors when assessing a fine during the first
sentencing, but it did so at the second sentencing. Second, and
contrary to Ward’s assertion, there is evidence in the record
that his sentence was partially based on the government’s new
information presented at his second sentencing. Specifically,
after Ward objected to the imposition of the $250,000 fine,
the government responded by saying: “Let me say that from
what I understand, the Court is intending to increase the
amount of the fine based on the new information and not
based on the fact that the defendant took an appeal.” The
District Court responded
Absolutely. It is not based upon that.
My understanding of the opinion from the 3rd
Circuit was that there was no basis in the
previous sentencing for the imposition of the
17
$100,000. And based upon the presentence
report and the defendant’s financial
background, the $250,000, which is under the
guidelines, is a reasonable figure and he is in a
position to afford that. And so that’s the basis
of that.
The court’s statement confirms that the court analyzed
the factors for imposing a fine. That objective evidence,
combined with the court’s statement is adequate on this
record to overcome any presumption of vindictiveness.
Given the lack of evidence or argument that there was actual
vindictiveness, the District Court did not err in determining to
increase Ward’s fine.
Therefore, we reject Ward’s argument that the
increased fine was vindictive.
2. The Five Level Enhancement for
Ward’s Engagement in a Pattern of
Prohibited Sexual-Conduct
Ward claims that there was insufficient evidence to
support the District Court’s application of a five level
enhancement under U.S.S.G. § 4B1.5(b)(1) for engaging in a
pattern of prohibited sexual conduct.
Section 4B1.5(b)(1) provides that, “[i]n any case in
which the conviction is a covered sex crime and the defendant
engaged in a pattern of activity involving prohibited sexual
conduct[,] [t]he offense level shall be [increased by] 5[.]”
U.S.S.G. § 4B1.5(b)(1). The commentary to subsection (b)
provides that a “defendant [has] engaged in a pattern of
18
activity involving prohibited sexual conduct if on at least two
separate occasions, the defendant engaged in prohibited
sexual conduct with a minor.” U.S.S.G. § 4B1.5(b)(1) app.
note. 4(a). Prohibited sexual conduct with a minor includes
the production of child pornography . Id.
At Ward’s resentencing, the District Court made note
of the entire record that had been submitted at his first
sentencing and incorporated all findings made therein. The
District Court also received new evidence showing that Ward
produced photos and videos of J.D. engaged in sex acts.
When the District Court announced Ward’s new sentence, it
stated that it was considering “not only the information that
was given here today, but the information that was given
previously about Mr. Ward’s contact with young people,
young men, previously.” Given the extensive evidence of a
pattern of prohibited sexual conduct, the District Court did
not err in imposing the five level enhancement under §
4B1.5(b)(1).
3. The Imposition of a Within-Guidelines
Range Sentence
Ward contends that his sentence should be vacated
because the District Court failed to comply with 18 U.S.C. §
3553(c)(1).
Section 3553(c)(1) provides that, when the Guidelines
range of the sentence spans more than 24 months, the
sentencing court must explain “the reason for imposing a
sentence at a particular point within the range”. 18 U.S.C. §
3553(c)(1). A sentencing court will satisfy the requirements
of § 3553(c)(1) when it gives “concrete reasons for its choice
19
of sentences.” United States v. Gricco, 277 F.3d 339, 363 (3d
Cir. 2002).
Here, the Guidelines range for Ward’s sentence ran
from 292 to 365 months—a span of 73 months. The District
Court imposed a 300-month sentence. Before imposing the
sentence, the District Court listed a variety of reasons why the
sentence was necessary, including the seriousness of the
crimes, Ward’s lack of respect for the law, his high risk of
reoffending, and the need for general and specific deterrence.
This was clearly a sufficiently detailed explanation of the
reasons for Ward’s sentence. See Lloyd, 469 F.3d at 326
(holding that the sentencing court provided an adequate
explanation for the defendant’s sentence when it discussed
the defendant’s criminal history, the sentences received by his
co-defendants, and the danger of his crime to society).
Ward takes issue with the District Court’s failure to
state why a 300 month sentence was more appropriate than
any other sentence within the 292 to 365 month range. This
argument misconstrues the law. The District Court did not
have an obligation to state why a 300 month sentence was
more appropriate than all other possible sentences. Rather,
the District Court needed only to state why the 300 month
sentence was sufficient. See Gricco, 277 F.3d at 363.
Therefore, we reject Ward’s argument that the District Court
failed to comply with 18 U.S.C. § 3553(c)(1).
4. Ward’s Request for a Downward
Variance
Ward claims that he was entitled to a downward
variance based on his age, physical and psychological
20
condition, and the atypically harsh conditions of confinement
to which he was subject. Ward argues that the District
Court’s alleged failure to consider and appreciate the
relevance of these factors rendered his sentence procedurally
unreasonable.
We may not overturn a sentence on procedural
unreasonableness grounds when the sentencing judge has “set
forth enough to satisfy the appellate court that he has
considered the parties’ arguments and has a reasoned basis for
exercising his own legal decisionmaking authority.” Rita v.
United States, 551 U.S. 338, 356 (2007). Here, the District
Court did not disregard Ward’s arguments at sentencing. The
District Court specifically addressed and rejected each claim.
The District Court’s consideration of Ward’s arguments for a
variance adhered to the Supreme Court’s guidance in Rita.
Therefore, we will not disturb the sentence on procedural
reasonableness grounds.
5. Ward’s Sentence Is Not Substantively
Unreasonable
Ward argues that 300 months of incarceration is
substantively unreasonable because the sentence exceeds his
projected life expectancy. We will affirm unless “no
reasonable sentencing court would have imposed the same
sentence on that particular defendant for the reasons the
district court provided.” Id. at 568.
The fact that Ward may die in prison does not mean
that his sentence is unreasonable. See U.S. v. Watson, 482
F.3d 269, 273 (3d Cir. 2007). Looking at the totality of the
circumstances, we are not convinced that Ward’s sentence—
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which is within the advisory Guidelines range—is
substantively unreasonable. The District Court found that
Ward posed a grave danger to society and had committed
serious crimes, thus necessitating a long sentence. The
District Court was well within its discretion to impose a 300
month sentence. We therefore reject Ward’s argument that
his sentence is substantively unreasonable.
6. Restitution
Ward contends that the District Court failed to comply
with 18 U.S.C. § 2259, which requires the sentencing court to
order the defendant to pay restitution to his victims if their
losses can be determined. 18 U.S.C. § 2259(a), (b)(3), &
(b)(4)(A). Ward now requests that we vacate his sentence
and remand for resentencing so that the District Court can
order restitution. Ward did not object to the District Court’s
decision not to order restitution at his resentencing. As a
result, we review the District Court’s decision for plain error.
United States v. Couch, 291 F.3d 251, 252-53 (3d Cir. 2002).
Ward lacks standing to raise this challenge because
only the crime victim, the crime victim’s legal representative,
or the government may assert rights related to a restitution
award. 18 U.S.C. § 3771(d)(1). Therefore, his argument is
meritless.
Ward, however, asserts that he has standing because
the imposition of a fine was directly related to the District
Court’s inability to impose restitution. This argument
misconstrues the record on appeal. On Ward’s first appeal,
we noted that the District Court’s decision to impose a fine
instead of restitution was improper because “the Court simply
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translated the intended restitution into a fine owed to the
government, without engaging in any analysis as to why a
fine was appropriate and despite it having appeared . . . that
no fine would be imposed.” Ward, 626 F.3d at 185-86
(citation omitted). At Ward’s resentencing, as noted above,
the District Court did not translate the intended restitution
into a fine. Instead, the District Court considered the factors
relevant to the imposition of a fine, consistent with 18 U.S.C.
§ 3572. Based on the record before us, the District Court’s
decision to impose a fine at resentencing was unrelated to its
decision not to order restitution. We therefore will not
consider Ward’s argument that the relatedness of the fine and
restitution gives him standing to challenge the failure to order
restitution.
III. Conclusion
For the foregoing reasons, we will affirm the District
Court’s judgment of sentence.
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