                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                ________________

                                       No. 17-2698
                                    ________________

                            UNITED STATES OF AMERICA

                                             v.

                                   DIMITRIJ HARDER,
                                                Appellant
                                    ________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                        (E.D. Pa. Crim. No. 2-15-cr-00001-001)
                          District Judge: Hon. Paul S. Diamond
                                    ________________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     July 10, 2018

               Before: McKEE, VANASKIE, and SILER *, Circuit Judges

                                (Filed: November 8, 2018)


                                    ________________

                                       OPINION **
                                    ________________




*
  Hon. Eugene E. Siler, United States Court of Appeals for the Sixth Circuit, sitting by
designation.
**
   This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SILER, Circuit Judge

       In this appeal arising from a conviction under the Foreign Corrupt Practices Act,

15 U.S.C. § 78dd-2 (“FCPA”), defendant-appellant Dimitrij Harder challenges his

sentence, alleging procedural errors committed by the district court at sentencing. For the

following reasons, we will affirm the district court’s ruling.

                                              I.

       Harder—a German citizen, Russian émigré, and U.S. permanent resident—worked

as an international financial consultant based in Southampton, Pennsylvania. Between

2008 and 2009, he paid $3.5 million in bribes to an official of the London-based

multinational European Bank for Reconstruction and Development (“EBRD”). The

bribes sought to expedite approval and financing for Harder’s clients in connection with

two energy projects in the former Soviet Union.

       In 2016, Harder pled guilty to two counts of violating the FCPA. The Probation

Office calculated an advisory Guidelines range of 87-108 months’ imprisonment. At

sentencing, the government moved for a downward departure pursuant to § 5K1.1 in

recognition of Harder’s cooperation and testimony during a related corruption trial in

England that secured convictions against his former clients. The district court granted the

downward departure, resulting in a Guidelines range of 57-71 months.

       Harder’s counsel requested a downward variance, citing the need to avoid

unwarranted sentencing disparities pursuant to 18 U.S.C. § 3553(a)(6). In support of this

request, the defense presented a chart containing all sentences imposed in FCPA cases

nationally over the last decade. This exhibit, prepared by a law professor who studies the

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FCPA, showed that 33% of defendants received probation. For those sentenced to

imprisonment, the average prison sentence was only 13 months.

       Harder also argued that the bribes he paid did not result in a loss to any victim and

that the two projects for which he corruptly sought financing proved successful and

highly beneficial to the Eastern Siberia region. He claimed that the oil pipeline created

6,500 jobs and led to “the uplifting of the entire economy of this region.” The district

court heard Harder’s argument but found it to be unpersuasive. It stated,

              The Congress has determined that doing business through
              bribery is an evil that must be punished and prohibited.
              Congress has determined that the whole system suffers. The
              whole system is a victim when the table [is] crooked in this
              way regardless of the cultural [indiscernible] you’ve spent
              time discussing a moment ago and you spend time discussing
              in your brief at some length. Saying that people made money
              as a result of a scheme that began with an illegal bribe doesn’t
              do a lot for me, sir.

       Despite the district court’s comments, defense counsel continued to argue that

Harder’s actions were less culpable due to the allegedly positive outcome.

              The Court: We’re talking about your client bribing a British
              banking official.
              Counsel: But to get a result which has related . . .
              The Court: Had to be the bribe. The bribe had to start it all,
              right?
              Counsel: No, it didn’t have to.
              The Court: Then why don’t you move on, as I . . .
              Counsel: I will.
              The Court: again, request.

       The district court proceeded to address each argument raised by Harder’s counsel.

On the culpability argument, the district court again rejected Harder’s claim that he was

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less culpable because the bribes resulted in an allegedly beneficial project. The court

explained that it had thoroughly considered defense counsel’s belief that there was no

intended victim and no actual victim. However, it held that the fact that “the transaction

was successful and generated jobs in my view does not mitigate the sentence.” The court

further held that this crime was “a successful effort to corrupt the system by which the

EBRD does business.”

       With respect to Harder’s argument about unwarranted sentencing disparities, the

district court stated that it had reviewed Harder’s exhibit showing the average sentences

under the FCPA. Nonetheless, the court declined to grant the downward variance, ruling

that “I do not believe it would be reasonable in the circumstances presented here.” The

court noted that one of Harder’s clients, who was prosecuted in England, received a six-

year sentence.

       At the conclusion of the sentencing hearing, the district court imposed a within-

Guidelines sentence of 60 months’ incarceration as well as approximately $2 million in

financial penalties.

                                      II. Discussion

       When considering a district court’s application of the Guidelines to a specific set

of facts, we apply a deferential standard and review for clear error. United States v.

Richards, 674 F.3d 215, 220 (3d Cir. 2012). A sentence is procedurally reasonable where

the district court properly calculates the Guidelines range, rules on departure motions,

and exercises its discretion by giving meaningful consideration to the relevant factors

under 18 U.S.C. § 3553(a). See United States v. Gunter, 462 F.3d 237, 247 (3d Cir.

                                             4
2006). Moreover, a district court “need not discuss every argument made by a litigant if

an argument is clearly without merit.” United States v. Cooper, 437 F.3d 324, 329 (3d

Cir. 2006). It must, however, “acknowledge and respond to any properly presented

sentencing argument which has colorable legal merit and a factual basis.” United States

v. Flores-Mejia, 759 F.3d 253, 255-56 (3d Cir. 2014).

       Harder alleges two procedural errors: (1) the district court denied him a

fundamentally fair sentencing hearing when it refused to hear or consider counsel’s

argument in mitigation of offense severity; and (2) the district court refused to comply

with the statutory obligation to avoid unwarranted sentencing disparities.

       A. Mitigation

       First, Harder argues that the district judge interrupted and prevented defense

counsel from fully arguing that Harder was less culpable because his bribery did not

cause a loss to any victim but rather resulted in “exceptionally positive economic results.”

Specifically, he claims his crime caused a net benefit in terms of jobs and prosperity in

Eastern Siberia. Harder contends that the “absence of harmful consequences” from his

actions should have mitigated the severity of his offense and that the district court erred

by refusing to permit or consider his mitigation argument.

       However, the record clearly reflects that the district court afforded meaningful

consideration to Harder’s mitigation argument. Noting that Harder discussed the

allegedly beneficial result of his crime “at great length” in his sentencing memorandum,

the court acknowledged that it had “considered everything presented” both in writing and

at oral argument. Nonetheless, the district court remained unpersuaded by Harder’s

                                              5
mitigation argument, as evident from its comment that, “[s]aying that people made

money as a result of a scheme that began with an illegal bribe doesn’t do a lot for me,

sir.”

        Essentially, Harder contends that the district court erred because it disagreed with

him. Yet, a district court need not agree with every sentencing argument made by

counsel; the court must simply give meaningful consideration to such arguments. See

United States v. Tomko, 562 F.3d 558, 569 (3d Cir. 2009) (holding that the district court

did not err when it “heard the Government’s impassioned plea, considered general

deterrence, and handed down [defendant’s] sentence,” even though it was substantially

lower than the sentence sought by prosecutors). Accordingly, the district court did not err

by declining to grant Harder’s downward variance on the grounds that his conduct was

allegedly less harmful than that of other FCPA defendants.

        B. Unwarranted Disparity

        Second, Harder sought a downward variance on the basis that his sentence would

result in an “unwarranted disparity.” Harder claims that the district court ignored his

evidence that the average sentence for a defendant in an FCPA case over the last decade

was only 13 months and that 33% of defendants received probation. Far from ignoring

the argument, as Harder claims, the district court stated that it “considered the need to

avoid unwarranted sentencing disparities.” As the government correctly argues, “the fact

that defendant Harder’s sentence was one year less than the sentence imposed on [his

client] by a separate sovereign does not reflect a procedural error.” A criminal defendant



                                              6
has no constitutional right to receive the same sentence as his co-defendants. United

States v. Hart, 273 F.3d 379 (3d Cir. 2001).

       Here, Harder’s FCPA survey chart did not indicate the nature and extent of each

defendant’s cooperation or role in the offenses. If anything, the chart reflected a lack of

general consensus on the appropriate sentences for FCPA violators. Although Harder’s

bribe was the third largest bribe on the chart, three defendants in cases involving much

smaller bribes received longer sentences than Harder. Moreover, Harder’s 60-month

sentence fell at the low-end of his 57-71 month Guidelines range. And, in creating the

Guidelines system, “Congress sought to provide certainty and fairness in meeting the

purposes of sentencing, while avoiding unwarranted sentencing disparities . . . and

maintaining sufficient flexibility to permit individualized sentences when warranted.”

United States v. Booker, 543 U.S. 220, 264 (2005); 28 U.S.C. § 991(b)(1)(B). Harder

does not challenge the calculation of his Guidelines range but simply objects to the

district court’s refusal to grant a downward variance.

                                            III.

       For the foregoing reasons, we affirm the judgment below.




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