                                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                     No. 13-1486
                                  ________________


                          UNITED STATES OF AMERICA

                                           v.

                            KEVIN MICHAEL MCGINTY,

                                                      Appellant
                                  ________________

                     Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                    (D.C. Criminal Action No. 2-12-cr-00340-001)
                      District Judge: Honorable Berle M. Schiller
                                  ________________

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

             Before: AMBRO, SMITH, and CHAGARES, Circuit Judges

                          (Opinion filed: September 5, 2014)

                                  ________________

                                      OPINION
                                  ________________

PER CURIAM

      Kevin McGinty pled guilty to one count of making a false statement to a federal

firearms licensee in violation of 18 U.S.C. § 924(a)(1)(A). Though his Sentencing
Guidelines range was 70 to 80 months’ imprisonment, the statutory maximum for

violating § 924(a)(1)(A) is 60 months’ imprisonment. In relevant part, McGinty

requested a downward variance based on his cooperation with law enforcement. Despite

this request, the District Court sentenced McGinty to the statutory maximum of 60

months. He appeals, arguing that the District Court failed to give meaningful

consideration to his request for a variance. For the reasons that follow, we affirm the

sentence.

       Our Court “employs the familiar abuse of discretion standard” in reviewing

criminal sentences for substantive and procedural reasonableness. United States v.

Merced, 603 F.3d 203, 214 (3d Cir. 2010) (internal quotation marks and citation omitted).

In our review here, we determine whether the District Court gave meaningful

consideration to the relevant factors. See United States v. Sevilla, 541 F.3d 226, 232 (3d

Cir. 2008).1

       The sole indication that the District Court gave such consideration to McGinty’s

cooperation argument is a colloquy between Judge Schiller and the prosecutor, Assistant

United States Attorney Jennifer Chun Barry. Immediately after Jonathan Sussman,




1
 Sevilla held that the meaningful consideration test applies even where, as in McGinty’s
case, a criminal defendant does not object to the lack of explanation at the end of
sentencing. See 541 F.3d at 230-31. Our recent en banc decision in United States v.
Flores-Mejia, No. 12-3149, 2014 WL 3450938 (3d Cir. July 16, 2014), abrogated Sevilla
by instead holding that, under such circumstances, we will reverse only for plain error.
Id. at *2. However, we explicitly did not make Flores-Mejia retroactive against criminal
defendants who, like McGinty, were sentenced before that decision. Id. at *5. Thus this
case is still subject to the Sevilla rule.
                                             2
McGinty’s counsel, requested the variance for cooperation, the following exchange

occurred:

        The Court: I suppose the government could have charged [McGinty] for
        each gun as a separate count. Is that right, Ms. Barry? Or would it have to
        have been done in one count?
        Ms. Barry: Your Honor, I believe it was all—the reason we charged it
        with one count was that—
        The Court: I’m not asking you the reason.
        Ms. Barry: I believe it could—
        The Court: You could have—
        Ms. Barry: It could have. It could have. Yes, Your Honor.
        The Court: And the sentences could have been consecutive. [Do] you
        understand that?
        Mr. Sussman:        Yes, Your Honor.
        The Court: And he’d be looking at much more than a possible sixty
        months.

App. at 108. Defense counsel then moved on to other arguments and Judge Schiller did

not return to the request for a variance.

        The Government argues that the quoted section represents an implicit conclusion

that McGinty had already received “credit” for his cooperation because he was charged

with only one count for purchasing five firearms. At no point does the transcript

explicitly make this connection; rather, the Government bases its argument solely on the

temporal proximity between the variance request based on cooperation and the seemingly

unrelated colloquy. Indeed, as even the Government concedes on appeal, “the [c]ourt did

not mention the words ‘cooperation’ or ‘assistance’” anywhere in this exchange.

Government’s Br. at 15. We are left instead to reconstruct the Court’s thinking after the

fact.




                                            3
       “[I]n order to provide for effective appellate review, the sentencing court must

provide a record sufficient to allow a reviewing court to conclude that the sentencing

court exercised its discretion.” United States v. Ausburn, 502 F.3d 313, 328 (3d Cir.

2007). To ensure such a record, the judge “must acknowledge and respond to any

properly presented sentencing argument which has colorable legal merit and a factual

basis.” Id. at 329. Failure to do so falls short of the sentencing court’s obligation to

litigants and impedes our ability to review sentencing decisions by leaving us guessing at

the reasoning behind a sentence. See id. at 331 (“Where the record is inadequate, we do

not fill in the gaps by searching the record for factors justifying the sentence.”). Had the

District Court done explicitly what the Government claims it did implicitly—reject the

variance request on the basis that McGinty had already received adequate

accommodation for any purported cooperation—our task would have been much simpler.

Sentencing courts should be more explicit in explaining their exercise of discretion than

what was done here.

       Nonetheless, as a practical matter, even a superficial review of the sentencing

transcript shows that Judge Schiller believed that a 60-month sentence was called for

under any circumstance and would continue to be the sentence even were there a remand,

as McGinty could have been charged with separate counts and thus be subject to a much

stiffer sentence (even though this was a first-time offense) and the attempted cooperation

was apparently of little use to the Government. Although not a basis for extending the

sentence, the 60-month term also allowed for a comprehensive drug rehab program.



                                              4
         In this context, we spare the parties a fruitless remand for practical reasons, but

advise that in the future we want to see more reasoning. We thus affirm McGinty’s

sentence.2




2
    We grant McGinty’s motion to seal his brief and the joint appendix.
                                                5
