                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                    No. 12-4572
                                 ________________


                          UNITED STATES OF AMERICA

                                          v.

                                  RONALD HILLS,

                                                     Appellant
                                 ________________

                     Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                    (D.C. Criminal Action No. 2-08-cr-00654-001)
                     District Judge: Honorable Gene E.K. Pratter
                                 ________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 21, 2013

             Before: AMBRO, SMITH, and CHAGARES, Circuit Judges

                          (Opinion filed: December 13, 2013)

                                 ________________

                                     OPINION
                                 ________________

AMBRO, Circuit Judge

      Ronald Hills was convicted of firearms, drug, and bank robbery offenses

following bifurcated trials in 2010. He was sentenced to 444 months’ imprisonment, but
on his first appeal the case was remanded for resentencing on the drug offense. United

States v. Hills, 488 F. App’x 569 (3d Cir. 2012). On remand the District Court again

sentenced Hills to the same term of imprisonment, and he now appeals that sentence.

I. Background

       The background for this case can be found in this Court’s opinion in Hills’ first

appeal. See Hills, 488 F. App’x at 571-72. In brief, Hills was convicted by juries in two

separate trials1 of armed bank robbery (18 U.S.C. § 2113(d)), possession of a firearm in

furtherance of that bank robbery (18 U.S.C. § 924(c)), possession of crack cocaine with

intent to distribute (21 U.S.C. § 841(a)(1)), possession of a firearm in furtherance of that

drug offense (18 U.S.C. § 924(c)), and possession of a firearm by a convicted felon (18

U.S.C. § 922(g)). Following the trials, District Judge Pratter sentenced Hills, as noted, to

444 months’ imprisonment. He appealed the sentence on several grounds, and our Court

affirmed on every issue except the District Court’s failure to apply the Fair Sentencing

Act of 2010, Pub. L. 111-220, § 2, 124 Stat. 2372 (2010) (“FSA”), to Hills’ drug offense.

Id. at 575-76.

       On that appeal we also considered and rejected Hills’ argument that the District

Court should have compelled the Government to file a motion, under U.S.S.G. § 5K1.1,

for a downward departure in light of Hills’ cooperation. We held that “Hills’ claim that

he cooperated with the [G]overnment [did] not entitle him to a remedy[,] or even to




1
  The District Court granted Hills’ motion for two separate trials, one for the bank
robbery charges and another for the drug charges.
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discovery,” because he failed to make a substantial showing that the Government’s

decision was based on an improper motive. Id. at 575 (citation omitted).

       On remand for resentencing, Hills argued that, under the factors set out in 18

U.S.C. § 3553(a), the District Court should not impose any additional term of

imprisonment for the drug count.2 Among the points presented in his memorandum and

at the resentencing hearing, Hills insisted that the District Court should exercise its

discretion to vary from the Guidelines range for the drug offense (57-71 months’

imprisonment) based on Hill’s cooperation, even though, as affirmed on appeal, the

Government was not compelled to file a § 5K1.1 motion. Hills asserted that he was

deserving of a downward variance because he had provided helpful information to the

Government, had always acted in good faith, and was the subject of abuse from other

inmates because of his cooperation. In light of the abuse from fellow inmates, Hills

specifically requested to be moved to a facility “as far away from Philadelphia as

possible[.]” App. at 56 (Def.’s Sentencing Memo.). Despite Hills’ arguments, the

District Court reimposed the same 60-month sentence for the drug count, even though

under the FSA the count was no longer subject to a five-year mandatory minimum

sentence. Hills now appeals his sentence on procedural grounds, arguing that the District

Court erred by failing to rule formally on his argument for a downward variance.




2
 Hills was already subject to mandatory consecutive sentences for the two firearm
offenses of seven and twenty-five years’ imprisonment.
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II. Discussion

       District Courts are directed to follow a three-step process when sentencing

defendants: (1) calculate the defendant's advisory Sentencing Guidelines range; (2)

formally rule on any departure motions; and (3) consider the 18 U.S.C. § 3553(a) factors

in imposing a sentence. United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006).

Hills’ sole argument before us is that the District Court erred at step three by failing

meaningfully to consider his cooperation as a § 3553(a) factor. Hills did not raise an

objection to the District Court’s purported failure to consider his argument for a variance

when his sentence was announced.3 However, under United States v. Sevilla, 541 F.3d

226 (3d Cir. 2008), even when a defendant does not object to the District Court’s failure

to consider his § 3553(a) arguments at the time his sentence is announced, so long as he

presented those arguments to the District Court during the sentencing hearing, we review

for “whether the [District] Court properly exercised its discretion by giving meaningful

consideration to the relevant factors.” Id. at 228.

       The Government vigorously argues that Sevilla should be overruled and that we

should review only for plain error. Appellee’s Br. at 17. We need not revisit the

continuing viability of Sevilla in this case.4 Even applying the more rigorous



3
 After announcing her intention to impose the same 444-month term of imprisonment,
Judge Pratter asked “if anybody knows of any reason or legal impediment that this
proposed sentence should not be imposed?” App. at 118. Counsel for Hills responded,
“No, Your Honor.” Id. at 119.
4
 Our Court recently granted the Government's petition for rehearing en banc in United
States v. Flores-Mejia, a case in which the panel applied Sevilla and remanded based on
                                              4
“meaningful consideration” standard, we affirm the District Court’s sentence because we

can infer from the record that the District Court meaningfully considered Hills’

arguments relating to his cooperation and the abuse he claims to have suffered.

       First, we know the Court reviewed Hills’ sentencing memorandum laying out his

arguments because Judge Pratter made multiple references to the filing during the

resentencing hearing. See App. at 64, 98, 105. Second, the Judge held a sidebar

conference in which the parties and she specifically discussed the significance of Hills’

cooperation and the abuse he was experiencing in custody as a result of his cooperation.

Id. at 63-65. Unfortunately the court reporter was unable to decipher some of the Judge’s

statements during that sidebar, but what is clear from the transcript is that she engaged

defense counsel in a discussion about Hills’ cooperation and his alleged abuse,

specifically noting that the arguments were similar to those raised in Hills’ earlier motion

to compel a § 5K1.1 motion. Id. at 64. Third, and most importantly, immediately

following the sidebar conference Judge Pratter stated “I believe that I’m completely

familiar with the upshot of what you just . . . spoke to me about. Mr. Hills, I’ve read the

material that’s in the submission from your counsel. I believe I understand the full range

of that and where you’re coming from on it . . .” Id. at 104-105.

       In announcing the sentence, Judge Pratter engaged in a long discussion of the

§ 3553(a) sentencing factors and how they applied to Hills, ultimately concluding that

“for all the reasons I’ve addressed both today and in February of 2011, I find in the


the district court's failure to demonstrate meaningful consideration of the defendant's
sentencing arguments. No. 12-3149, 2013 WL 3776221, at *3-4 (3d Cir. May 10, 2013).
                                             5
exercise of my discretion and my acknowledgement of the law that” 444 months’

imprisonment was the appropriate sentence. App. at 118. The District Court never

explicitly stated that it was rejecting Hills’ arguments for a downward variance based on

his cooperation and the concomitant abuse he alleged. We have little doubt that the

reason that Judge Pratter did not specifically mention the argument when announcing the

sentence was, in part, because Hills and his counsel sought to keep references to his

cooperation under seal. Nevertheless, from a review of the sentencing transcript as a

whole, it is clear that the District Court “acknowledge[d] and respond[ed] to” Hills’

arguments regarding his cooperation. United States v. Begin, 696 F.3d 405, 411 (3d Cir.

2012). Because Hills has not shown procedural error, there is no basis to remand this

case for resentencing.

       For the foregoing reasons, we affirm.




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