                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ____________

                                   No. 11-2486
                                  ____________

                         UNITED STATES OF AMERICA

                                        v.

                               DANIEL SPORRER,

                                    Appellant
                                  ____________

                  On Appeal from the United States District Court
                      for the Western District of Pennsylvania
                            (D.C. No. 2-09-cr-00311-001)
                   District Judge: Honorable Nora Barry Fischer
                                   ____________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 October 28, 2013

            Before: FISHER, JORDAN and ALDISERT, Circuit Judges.

                           (Filed: November 25, 2013)
                                  ____________

                           OPINION OF THE COURT
                                ____________

FISHER, Circuit Judge.
       Daniel Sporrer appeals a judgment of the United States District Court for the

Western District of Pennsylvania sentencing him to 27 months in prison and ordering him

to pay restitution of $545,128.71. Sporrer's counsel also moves to withdraw his

representation pursuant to Anders v. California, 386 U.S. 738 (1967). For the reasons

stated below, we will affirm the judgment of the District Court and grant counsel's

motion to withdraw.

                                              I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       On November 17, 2009, a grand jury returned a one-count indictment charging

Sporrer with conspiracy to commit wire fraud, in violation of 18 U.S.C. §§ 1343 and

1349, related to his involvement with a mortgage fraud scheme. Sporrer initially pleaded

not guilty to the charges, but later entered an open plea of guilty. Prior to sentencing, the

United States Probation Office prepared a presentence report ("PSR"),1 which assigned

Sporrer a base offense level of seven. The PSR then added 16 levels based upon a loss

amount of between $1,000,000 and $2,500,000, pursuant to U.S.S.G. § 2B1.1(b)(1)(I),

and added an additional two levels because he abused a position of trust in the course of

the scheme, pursuant to U.S.S.G. § 3B1.3. Sporrer then received a three-level reduction

       1
      The 2009 edition of the Guidelines Manual, including amendments effective
November 1, 2009, was used in this case.

                                              2
due to his timely acceptance of responsibility. Because Sporrer did not have a criminal

history, he received zero criminal history points. Based upon those calculations, the PSR

arrived at a total offense level of 22 and a criminal history category of I, which resulted in

a Guidelines range of 41-51 months.

       Sporrer objected to the PSR, arguing that the loss amount should have been

calculated based upon the amount he gained from the scheme, which was only $25,000.

The District Court rejected Sporrer's argument, concluding that the PSR categorized the

loss amount correctly, and adopted the PSR advisory Guidelines range. Sporrer then

requested a variance, which the Court granted based upon his personal history, support

from the community, and involvement with his family. SA281-82; SA302-03. Although

the District Court granted Sporrer's request, it made a point of noting that it did not

believe that the evidence, specifically the nature of the scheme and the loss to the victims,

warranted a variance that would take him down to a probationary level. The District

Court then sentenced him to 27 months' incarceration and ordered him to pay restitution

to the victims in the amount of $545,128.71, the amount it concluded was the "actual

loss" suffered by Sporrer's victims.2


       2
         To arrive at this amount, the District Court calculated the actual loss to three
victims stemming from the mortgage fraud scheme - the difference between the
outstanding balance of the fraudulent loan and the sales price. A48-51. Although the
Court only utilized the "actual loss" calculations for purposes of restitution, it concluded,
in a well-reasoned analysis, that the Government had met its burden in proving that the
estimated total loss exceeded the $1,000,000 threshold for purposes of the 16-level
enhancement. See A50-58.

                                              3
         Sporrer filed a timely notice of appeal. His counsel then filed an Anders brief,

indicating that he had reviewed the record and found no meritorious basis for Sporrer's

appeal. 3

                                                II

         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

         Counsel may file a motion to withdraw representation under Anders if, after

reviewing the record, he is "persuaded that the appeal presents no issue of even arguable

merit." Third Circuit L.A.R. 109.2(a). When counsel submits an Anders brief, our

inquiry is twofold: "(1) whether counsel adequately fulfilled the rule's requirements; and

(2) whether an independent review of the record presents any nonfrivolous issues."

United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). "Where the Anders brief

appears adequate on its face," we will rely on it to guide our review of the record. Id. at

301.

                                                III.

         Counsel's Anders brief identifies three potentially appealable issues: (1) whether

the District Court properly determined loss under U.S.S.G. § 2B1.1; (2) whether the

District Court properly ordered Sporrer to pay restitution in the amount of $545,128.71;

and (3) whether the District Court's sentence was reasonable. In identifying these issues,

         3
             Although given the opportunity to do so, Sporrer did not file a supplemental
brief.

                                                 4
counsel adequately reviews the record and relevant law and explains the frivolous nature

of the appeal. For that reason, we are satisfied that counsel's Anders brief has fulfilled

the rule's requirements and is adequate on its face. We therefore move forward in

examining the arguments it presents.

                                              A.

       Sporrer argued in the District Court that his loss amount should be limited to the

amount of his gain, which he avers was $25,000, rather than the amount of the victims'

losses. Counsel concludes that this argument has no legal basis. We agree.

       We have observed that "loss," as defined in the Sentencing Guidelines, "represents

the loss to the victims before restitution takes place, and is used to set a fine

corresponding to the monetary harm caused by the defendants' conduct." United States v.

Nathan, 188 F.3d 190, 209 (3d Cir. 1999) (emphasis added). It is therefore clear that the

District Court was correct in ordering Sporrer to pay a restitution amount based upon the

amount of loss suffered by his victims. Accordingly, an appeal regarding the District

Court's determination of loss would be frivolous.

                                               B.

       Sporrer's counsel next addresses the possibility of a challenge to the District

Court's restitution order. "We 'review a restitution order under a bifurcated standard:

plenary review as to whether restitution is permitted by law, and abuse of discretion as to

the appropriateness of the particular award.'" United States v. Fallon, 470 F.3d 542, 548


                                               5
(3d Cir. 2006) (quoting United States v. Quillen, 335 F.3d 219, 221 (3d Cir. 2003)).

       We conclude that the District Court's order of restitution was permitted by law.

The Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663 et seq., "mandates

that defendants who are convicted of or plead guilty to certain crimes pay restitution to

their victims." Quillen, 335 F.3d at 222. The purpose of the statute is, "to the extent

possible, to make victims whole, to fully compensate victims for their losses, and to

restore victims to their original state of well-being." Id. In instances where the damage

or loss affects a victim's property, "the restitution order shall require that the defendant

return the property or, if return is impossible, pay an amount equal to the greater of the

value of the property on the date of the damage, loss, or destruction." Id. (citations

omitted) (internal quotation marks omitted).

       Here, the District Court found that a number of properties were affected by

Sporrer's involvement with the mortgage fraud scheme. Because the properties were not

"taken" in the sense that they could be returned as restitution, the Court's only practical

option was to order him to pay the amount of loss attributable to each victim.

       We also conclude that the particular award issued by the District Court was

appropriate. Here, the record indicates that the District Court was careful in its

calculation of loss. The Court conducted an evidentiary hearing and agreed with both the

PSR and the government's conclusion that the total loss exceeded $1 million. However,

it only sentenced Sporrer to a restitution amount of half of that figure, based upon the


                                               6
actual loss attributable to three different victims. Because the District Court carefully

analyzed the calculation of loss attributable to Sporrer, and based those calculations on

reasonable measures, we cannot conclude that it abused its discretion when it ordered

Sporrer to pay his victims $545,128.71 in restitution.

       Accordingly, a challenge to the District Court's restitution order would be

frivolous.

                                             C.

       The last potentially appealable issue discussed by Sporrer's counsel relates to the

reasonableness of the sentence imposed by the District Court. We review a district

court's sentencing decision for an abuse of discretion, and our analysis proceeds in two

stages. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009). We first review for

procedural error, ensuring that the district court: (1) correctly calculated the defendant's

advisory Guidelines range; (2) appropriately considered any motions for a departure

under the Guidelines; and (3) gave meaningful consideration to the sentencing factors set

forth in 18 U.S.C. § 3553(a). United States v. Wright, 642 F.3d 148, 152 (3d Cir. 2011).

If the sentencing decision passes the first stage of review, we then consider the

substantive reasonableness of the decision. United States v. Levinson, 543 F.3d 190, 195

(3d Cir. 2008). Our substantive review focuses on the totality of the circumstances.

Tomko, 562 F.3d at 567.




                                              7
       After reviewing the record, we conclude that the District Court's sentence was

both procedurally and substantively reasonable. When a district court sentences a

defendant, it must "produce a record sufficient to demonstrate its rational and meaningful

consideration of the § 3553(a) factors." United States v. Begin, 696 F.3d 405, 411 (3d

Cir. 2012) (citing United States v. Merced, 603 F.3d 203, 215-16 (3d Cir. 2010)). The

record, taken in its entirety, must make clear that the district court "has considered the

parties' arguments and has a reasoned basis for exercising [its] own legal decisionmaking

authority." Merced, 603 F.3d at 215-16 (quoting Rita v. United States, 551 U.S. 338, 356

(2007)). It is not necessary that the district court "raise every conceivable issue on [its]

own initiative" or even "discuss every argument made by a litigant if an argument is

clearly without merit." Id. at 215. "However, if a party raises a colorable argument about

the applicability of one of the § 3553(a) factors, the district court may not ignore it." Id.

Thus, "the court must acknowledge and respond to any properly presented sentencing

argument which has colorable legal merit and a factual basis." United States v. Ausburn,

502 F.3d 313, 329 (3d Cir. 2007).

       Here, the District Court conducted a detailed sentencing hearing, during which it

thoroughly considered and addressed each argument Sporrer presented in support of a

downward variance and a sentence of probation. The Court heard testimony from

witnesses, from Sporrer, and considered the arguments presented by counsel, before

concluding that it would grant Sporrer's motion for a downward variance. Finally, the


                                              8
Court addressed each of the § 3553(a) factors and, after varying downward from his

initial Guidelines range, sentenced Sporrer to 27 months of incarceration. Against that

backdrop, we are satisfied that the District Court's sentencing decision was procedurally

reasonable.

       We now turn our inquiry to the substantive reasonableness of the decision. Here,

the District Court sentenced Sporrer well below the advisory Guidelines range after

partially accepting his arguments and granting his motion for a downward variance.

Additionally, the Court made a point to note that, while it granted the variance, it did not

believe that the evidence warranted a variance that would take him down to a

probationary level. Because we cannot say that "no reasonable sentencing court would

have imposed the same sentence on [Sporrer] for the reasons the [D]istrict [C]ourt

provided," Tomko, 562 F.3d at 568, we conclude that the sentence was substantively

reasonable.

       Accordingly, any argument with respect to the reasonableness of Sporrer's

sentence would be frivolous.

                                             V.

       For the reasons stated above, we will affirm the District Court's judgment of

sentence and grant counsel's Anders motion.




                                              9
