                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-8-2008

USA v. Rebovich
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2794




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                                                   NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                       No. 07-2651


            UNITED STATES OF AMERICA

                            v.

                EDWARD CHRISTILAW

                                       Appellant


                       No. 07-2794


            UNITED STATES OF AMERICA

                            v.

              BEVERLY ANN REBOVICH,

                                 Beverly Rebovich
                                       Appellant


        Appeal from the United States District Court
          for the Middle District of Pennsylvania
(D.C. Criminal Action No. 06-cr-00247-5 and 06-cr-00247-1)
        District Judge: Honorable William J. Nealon


        Submitted Under Third Circuit LAR 34.1(a)
                   December 3, 2008
                  Before: AMBRO and GREENBERG, Circuit Judges,
                           and RODRIGUEZ,* District Judge

                           (Opinion filed December 08, 2008 )



                                         OPINION

AMBRO, Circuit Judge

       Edward Christilaw and Beverly Rebovich appeal their sentences stemming from a

scheme to open fraudulent bank accounts. Both co-defendants were charged with one

count of conspiracy to commit bank fraud, in violation of 18 U.S.C. § 371, and entered

guilty pleas. The cases are consolidated for purposes of appeal, but each defendant had

an independent sentencing hearing before the District Court for the Middle District of

Pennsylvania. Both Christilaw and Rebovich appeal the District Court’s rejection of a

downward departure pursuant to the federal Sentencing Guidelines under § 3B1.2(b) for a

“mitigating role” in the conspiracy. Rebovich also appeals her sentence for procedural

unreasonableness. For the reasons below, we affirm the sentences.1

       Because we write primarily for the parties, we need not recite the facts of this case

in detail.




       *
        Honorable Joseph H. Rodriguez, Senior United States District Judge for the
District of New Jersey, sitting by designation
       1
       The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We
have appellate jurisdiction to review the sentences imposed pursuant to 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a).

                                             2
                       I.    Rejection of a Downward Departure

       In calculating Christilaw and Rebovich’s sentences under the Sentencing

Guidelines, the Court considered their prior criminal history, granted a downward

departure for substantial assistance, and denied a two-level downward departure for minor

participant status under § 3B1.2(b) of the Guidelines. 2 The Court discussed at length its

reasons for finding that neither Christilaw nor Rebovich was a minor participant in the

conspiracy. For Christilaw, the District Court imposed a 24-month sentence of

imprisonment, among other conditions, which was the bottom of the Sentencing

Guidelines range. For Rebovich, the Court imposed a 15-month sentence of

imprisonment, among other conditions, which was also at the bottom of the Guidelines

range. It reduced Rebovich’s criminal history category from III to II, accepting her

argument that the pre-sentencing report’s recommendation over-represented her criminal

record.

       The Sentencing Guidelines are advisory, and no longer mandatory following the

Supreme Court’s decision in United States v. Booker. See Gall v. United States, 128 S.Ct.

586, 594 (2007) (citing Booker, 543 U.S. 220 (2005)). However, we continue to treat

“discretionary denials of departure motions in calculating sentencing guidelines” the same

as we did pre-Booker. United States v. Jackson, 467 F.3d 834 (3d Cir. 2006). “We do

not have jurisdiction to review discretionary decisions by district courts to not depart

       2
        This section provides that if the defendant was a “minimal participant” in the
offense, his offense level should be dropped 4 levels, but if he was a “minor participant”
it should be dropped 2 levels and “in cases falling between” 3 levels.

                                              3
downward.” United States v. Vargas, 477 F.3d 94, 103 (3d Cir. 2007); see also United

States v. Cooper, 437 F.3d 324, 332–33 (3d Cir. 2006) (reaffirming post-Booker the

validity of our pre-Booker decisions that no jurisdiction exists for appellate review of a

district court’s discretionary decision not to depart); United States v. Casiano, 113 F.3d

420, 429 (3d Cir. 1997) (explaining that, absent legal error, a district court’s discretionary

decision not to depart is “immune from appellate review”). Thus, to the extent Christilaw

and Rebovich challenge the Court’s discretionary decision not to depart under § 3B1.2(b),

we will dismiss his appeal for lack of appellate jurisdiction.3

           II.    Consideration of § 3553(a) Sentencing Factors re Rebovich

       Rebovich also argues that her sentence was unreasonable because the District

Court failed to “adequately consider and apply the relevant provisions of 18 U.S.C.

§ 3553(a) and failed to adequately state its reasons for imposition of the sentence” under

§ 3553(c). (Rebovich acknowledges that she did not raise these arguments at sentencing

and therefore we review only for plain error. See United States v. Wood, 486 F.3d 781,

789–90 & n.6 (3d Cir. 2007).) Specifically, she argues that the District Court failed to

consider mitigating factors warranting a downward variance: she was a minor participant;

she supervises her dependent 17-year old daughter; and her post-arrest rehabilitation as



       3
        We note that the record reflects that the District Court understood it could have
granted a departure, but elected not to do so because it explicitly discussed Christilaw and
Rebovich’s actions and did not believe either defendant warranted a “mitigating role”
adjustment pursuant to § 3B1.2 (b). Cf. Vargas, 477 F.3d at 103 (“Jurisdiction [to review
the denial of a departure] arises . . . if the district court’s refusal to depart downward is
based on the mistaken belief that it lacks discretion to do otherwise.”).

                                              4
shown by her compliance with probation. The sentencing record supports, however, that

the District Court reasonably considered the § 3353(a) factors and explained the basis for

its sentence.

       In reviewing the District Court’s judgment of sentence under the deferential abuse-

of-discretion standard, “our role is two-fold. We must first ensure that the district court

committed no significant procedural error in arriving at its decision.” United States v.

Wise, 515 F.3d 207, 217 (3d Cir. 2008). Examples of procedural errors include “‘failing

to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence

based on clearly erroneous facts, or failing to adequately explain the chosen sentence.’”

Id. (quoting Gall, 128 S.Ct. at 597). “To be procedurally reasonable, a sentence must

reflect a district court’s meaningful consideration of the factors set forth at 18 U.S.C.

§ 3553(a).” United States v. Lessner, 498 F.3d 185, 203 (3d Cir. 2007). The court need

not “discuss and make findings as to each of the § 3553(a) factors if the record makes

clear [it] took the factors into account in sentencing.” Cooper, 437 F.3d at 329 (internal

citations omitted). Instead, a sentencing judge “‘should 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.’” Lessner, 498 F.3d at 203 (quoting

Rita v. United States, 127 S.Ct. 2456, 2468 (2007).

       If we conclude that a court committed no procedural error, we then review the

substantive reasonableness of the sentence. “As long as a sentence falls within the broad

                                              5
range of possible sentences that can be considered reasonable in light of the § 3553(a)

factors, we must affirm.” Wise, 515 F.3d at 218 (citation omitted).

       At sentencing, the District Court listened to both parties’ arguments, recognized

the Guidelines were advisory, and then stated its reasons for imposing a sentence at the

bottom of the Guidelines range. The Court described in detail several § 3553(a) factors

particularly relevant to Rebovich and noted that there was nothing in “§ 3553(a) that

would require any further adjustment” from the Guidelines range. See Rita, 127 S.Ct. at

2468 (stating that when a judge “applies the Guidelines to a particular case, doing so will

not necessarily require lengthy explanation”).

       As to Rebovich’s specific mitigating arguments, the Court considered and found

those circumstances insufficient to warrant a sentence lower than the Guidelines range.

See id. at 2469. It discussed at length why it did not consider Rebovich a minor

participant in the conspiracy. It also did not give any mitigating weight to her “post-arrest

rehabilitation” in complying with probation, in part because of her past drug offenses that

the Court noted “seems [] that she has never learned her lesson.” And the Court was not

persuaded by Rebovich’s argument regarding supervision of her daughter because of the

daughter’s several truancy charges while under Rebovich’s care.

                                     CONCLUSION

       For the foregoing reasons, we affirm the District Court’s sentences of Christilaw

and Rebovich.




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