                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               _______________

                                     No. 10-3947
                                   _______________

                          UNITED STATES OF AMERICA

                                           v.

                                FRANKLIN C. BROWN,

                                             Appellant
                                   _______________

                    On Appeal from the United States District Court
                       For the Middle District of Pennsylvania
                    (D.C. Criminal Action No. 1-02-cr-00146-002)
                     District Judge: Honorable Sylvia H. Rambo
                                  _______________

                                  Argued May 23, 2010
                                   _______________

         Before: MCKEE, Chief Judge, SCIRICA and AMBRO, Circuit Judges

                              (Opinion filed: May 25, 2011)



Ray M. Shepard, Esquire (Argued)
Duane Morris LLP
111 South Calvert Street, Suite 2000
Baltimore, MD 21202

      Counsel for Appellant

Peter J. Smith
  United States Attorney
Kim Douglas Daniel (Argued)
  Assistant United States Attorney
Unites States Attorney’s Office
Middle District of Pennsylvania
228 Walnut Street, Suite 220
Harrisburg, PA 17108

Theodore B. Smith, III, Esquire
Executive Office of the United States Attorney
Evaluation & Review Staff
600 E Street, N.W., Suite 8500
Bicentennial Building
Washington, DC 20530

                                     _______________

                                        OPINION
                                     _______________

AMBRO, Circuit Judge

      Franklin Brown, now 83 years old, was charged in connection with accounting

irregularities at Rite Aid Corporation, where he was general counsel. In 2003, a jury

convicted him of conspiracy to commit accounting fraud, filing false statements with the

SEC, conspiracy to obstruct justice, obstruction of government agency proceedings, and

witness tampering. He was sentenced to ten years’ imprisonment, two years’ supervised

release, $20,000 in fines, and a $1,000 special assessment. In 2010, we affirmed Brown’s

conviction but remanded his sentence in light of United States v. Booker, 543 U.S. 220

(2005), which was decided after Brown’s sentencing hearing. See United States v.

Brown, 595 F.3d 498 (3d Cir. 2010). Brown now appeals his new sentence of 90 months’

imprisonment. Because we believe that sentence to be procedurally unreasonable, we

vacate it and remand for a third sentencing hearing.


                                            2
                                       I. Background

         The parties are familiar with the facts of Brown’s crimes and convictions, and we

do not repeat them here. See Brown, 595 F.3d at 502-23. At this juncture, our focus is

the procedure of his resentencing hearing.

         Our prior decision vacated Brown’s sentence and remanded the case for

resentencing in light of the Supreme Court’s opinion in Booker and the three-step

sentencing procedure that we have subsequently required, see United States v. Gunter,

462 F.3d 237, 247 (3d Cir. 2006)—that a district court must (1) calculate the applicable

federal Sentencing Guidelines range, (2) rule formally on motions for departure, and (3)

set the sentence after considering all relevant factors set out in 18 U.S.C. § 3553(a).

Brown, 595 F.3d at 526. We were concerned by the District Court’s “fail[ure] to explain,

in the manner now required, how it considered the factors listed in section 3553(a) in

imposing Brown’s sentence.” Id. at 527. Thus, at resentencing the District Court was to

consider the § 3553(a) factors as applied to Brown’s case, as well as two other issues

Brown had preserved on appeal but not addressed by our Court—a challenge to the loss

calculation1 and a motion for a downward departure based on his age and medical

conditions.

         The resentencing hearing began with arguments for and against Brown’s motion

for a downward departure from the Sentencing Guidelines calculation. The bulk of those




1
    That issue appears to have now been resolved by a stipulation prior to the resentencing.
                                               3
arguments and hearing evidence concerned Brown’s age and medical conditions, as well

as the adequacy of the treatment available to him since his incarceration in 2005.

       Brown elicited extensive testimony from Dr. Robert Aronoff, his treating

cardiologist. Dr. Aronoff discussed the numerous cardiac problems from which Brown

suffers, the various types of treatments needed to treat those problems, and the relevant

standards of care for each treatment program. Dr. Aronoff gave several examples where,

in his view, the prison care fell short of those standards (or of what he would have

provided), including: lack of close care by a cardiologist; too infrequent “interrogations”

of Brown’s pacemaker; too infrequent echocardiograms; too infrequent testing in

connection with Brown’s Coumadin treatment; and periods of untreated atrial fibrillation.

Though Brown apparently was not having heart failure at the time of the resentencing

hearing, Dr. Aronoff testified regarding the level of care Brown received since his

incarceration, stating that, in his opinion, “[t]here are several areas of concern or

observation [in a prison setting] that deviate from a treatment that an individual would get

in the community. And I think they may fall under the pattern of perhaps restriction of

access to [specialized] care . . . .” J.A. 188.

       Next, Dr. Richard Ramirez, the regional medical director for the mid-Atlantic

region of the Bureau of Prisons, testified for the Government about the medical facilities

at FMC Butner, North Carolina, where Brown was confined. Among other things, he

explained Brown’s access to a consulting cardiologist, proximity to a clinic for Coumadin

treatment, and ability to communicate with Dr. Aronoff. With respect to the treatments

Dr. Aronoff recommended, Dr. Ramirez testified that Brown would have no problem

                                                  4
getting the medical treatment and evaluations that he needs in the next year or two (the

remainder of his sentence2).

         Brown’s counsel highlighted the various conditions that had developed after

Brown’s incarceration, and how those conditions had not been cared for properly.

Counsel explained that, under U.S.S.G §§ 5H1.1 and 5H1.4, when the costs of medical

care are extraordinary, it might be appropriate for a court to depart from the step one

sentence calculation. J.A. 301. To that Brown added his concerns regarding his ability to

access care quickly. J.A. 304. The Government urged that Brown’s case and conditions

were not exceptional and could be adequately treated in prison. For that reason, it asked

the Court to deny the departure motion. J.A. 314-15.

         Immediately after a brief recess, with nothing more from the parties, the Court

imposed its sentence. It stated that it had considered the § 3553(a) factors and imposed a

90-month term of imprisonment, which reflected an 18-month variance from the low end

of the 108-135 month Sentencing Guidelines range. As its reasons, the Court stated that

it “adopt[ed] the pre-sentence investigation report without change,” and that it decided to

vary from the Guidelines range because of Brown’s age and medical conditions.

However, it believed that 90 months’ imprisonment was appropriate because the prison

could adequately meet Brown’s medical needs and because the sentence, six months

longer than Rite Aid CEO Martin Grass’s, served the Government’s interest in avoiding

sentencing disparity. J.A. 317-18.



2
    Brown’s projected release date is January 2012.
                                              5
         On appeal,3 Brown argues that the District Court committed procedural error by

failing (1) to rule formally on his departure motion, (2) to allow counsel an opportunity to

argue the § 3553(a) factors to the Court, (3) to give those factors meaningful

consideration, and (4) to consider all of his non-frivolous arguments. He contends further

that his sentence is substantively unreasonable as a result of these multiple procedural

errors.4

                                        II. Discussion

A. The District Court Failed To Rule Formally on the Departure Motion

         Though the parties presented extensive testimony, documentary evidence, and oral

arguments regarding the merits of granting Brown’s downward departure, the Court did

not, so far as we can tell, rule on it and give reasons for doing so. This is counter to the

second step in Gunter. The Government argues that the Court effectively denied the

departure motion when it said it was adopting the presentence report “without change.”

Even if that were the Court’s intention (and we knew that), there is no reasoning.

           Likewise, the Court’s analysis in connection with its downward variance at step

three is not an adequate substitute for an analysis and statement of reasons regarding a

departure motion. “[W]e require that the entirety of the Guidelines calculation be done

3
    We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
4
  The parties also ask us to decide whether our resentencing mandate in Brown was
“limited” to consideration of the § 3553(a) factors or whether we intended (or, at least
believed permissible) for the sentencing to proceed de novo. We recognize that there is a
split of authority on this question, see United States v. Miller, 594 F.3d 172, 179-181 (3d
Cir. 2010) (discussing cases), but we need not decide that question now because we
vacate and remand explicitly for de novo resentencing.

                                               6
correctly, including rulings on Guidelines departures.” United States v. Lofink, 564 F.3d

232, 239 (3d Cir. 2009). If we “assume” that departure rulings are “implicit” in other

parts of the District Court’s explanation of its sentencing, “we are left to guess how the

Court arrived at its [final] sentence.” Id. at 241.

B. The District Court Did Not Consider All Relevant § 3553(a) Factors

       A sentencing court must “giv[e] both parties an opportunity to argue for whatever

sentence they deem appropriate,” and then “consider all of the [relevant] § 3553(a)

factors to determine whether they support the sentence requested by a party.” United

States v. Wise, 515 F.3d 207, 216 (3d Cir. 2008) (quoting Gall v. United States, 552 U.S.

38 (2007)). Meaningful consideration of those statutory factors is thus required to render

a procedurally sound sentence. See United States v. Olhovsky, 562 F.3d 530, 547 (3d Cir.

2009) (concluding that there is procedural error at Gunter’s step three if “the record

strongly suggests that some of the statutorily prescribed sentencing factors were ignored,

[and] we can not conclude that the resulting sentence was reasonable”); see also United

States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc) (noting that a sentencing

court need not discuss and make findings on each § 3553(a) factor, but if it does not the

record must make clear it took the relevant factors into account). Here, there were factors

we believe relevant but not addressed.

       At Brown’s resentencing hearing, the Court considered the need to avoid

sentencing disparity with Brown’s co-defendant, Grass, under § 3553(a)(6). It believed it

was appropriate to give Brown a sentence six months longer than Grass because he,

unlike Brown, pled guilty and accepted responsibility. It commented on Brown’s age and

                                               7
medical conditions, noting that a variance was warranted for those reasons, but, because

the Federal Bureau of Prisons could meet Brown’s medical needs for the “reasonably

foreseeable future,” the 90-month term was appropriate. J.A. 317-18.

       Not considered were: (1) whether the sentence imposed was greater than

necessary (the so-called parsimony provision), § 3553(a); (2) the “kinds of sentences

available” (and why prison was chosen over, for example, home confinement),

§ 3553(a)(3); and (3) “the need for the sentence imposed . . . to protect the public from

further crimes of the defendant” (taking into account Brown’s advanced age),

§ 3553(a)(2)(C). Also, though Brown’s age and medical condition were not ignored by

the Court, given the abundance of testimony on these issues the District Court did not

sufficiently explain why it believed that FMC Butner could provide the care that Brown’s

treating cardiologist testified he needed but that the prison appears not to be able to

deliver. We thus remain unclear as to how the sentence imposed will provide “medical

care . . . in the most effective manner” under § 3553(a)(2)(D). As these matters at step

three were relevant, and not addressed, this too is a procedural infirmity that calls for

resentencing.

       Moreover, even in discussing the need to avoid a sentencing disparity between

Grass and Brown, the Court did not appear to take into account that Grass, now in his

mid-50’s and purportedly in good health, still has a sentence six months short of Brown’s

revised 90-month sentence even though Brown is in his 80’s and not in good health.

Finally, there was no opportunity given at the resentencing hearing for the parties to

discuss the § 3553(a) factors. While we need not address whether this failure alone

                                              8
would be a ground for remand, it does support Brown’s contention that the Court did not

get all the information it needed to consider adequately all of the relevant statutory

factors.

                                       *   *   *   *     *

       Because of these procedural problems, we vacate the District Court’s sentence and

remand for de novo resentencing.5 We also are entering, commensurate with this opinion

and its judgment, an order granting Brown’s motion for bail pending resentencing. Any

further appeals of this case shall come to this panel.




5
  As we remand for reasons of procedural unreasonableness, we shall not address
Brown’s challenge to the substantive reasonableness of the sentence or his remaining
claims. See United States v. Negroni, Nos. 10-1050, 10-1487, 2011 WL 1125854, at *5
(3d Cir. 2011) (citing United States v. Merced, 603 F.3d 203, 214 (3d Cir. 2010)).

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