                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                       No. 14-1648
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

            SUZANNE CZWALGA ANDRE, a/k/a SUZANNE CZWALGA

                                      Suzanne Andre,
                                                       Appellant
                                      _____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                       (D.C. Crim. No. 2-13-cr-00180-001)
                   District Judge: Honorable Gustave Diamond
                                  ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 16, 2015
                                    ____________

              Before: HARDIMAN, SCIRICA and BARRY, Circuit Judges

                            (Opinion Filed: January 30, 2015)
                                     ____________

                                        OPINION*
                                      ____________

BARRY, Circuit Judge

       Appellant Suzanne Andre appeals her above-Guidelines sentence of 36 months’

*
  This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
imprisonment, imposed by the District Court following her guilty plea to one count of

bank fraud.   Andre contends that the Court erred in imposing an above-Guidelines

sentence without giving advance notice of its intent to do so, in violation of Federal Rule

of Criminal Procedure 32(h). We will affirm. Because Andre’s sentence resulted from

an upward variance, not an upward departure, no notice was required under Rule 32(h).

                                            I.

       In November 2013, Andre pleaded guilty to one count of bank fraud, admitting

that between July and November 2011, she had engaged in a scheme to defraud Citizens

Bank in violation of 18 U.S.C. § 1344(1).        The Pre-Sentence Investigation Report

(“PSR”) recommended a Guidelines range of 21 to 27 months’ imprisonment, reflecting a

total offense level of 9 and a Criminal History Category of VI. Prior to sentencing, the

District Court issued a memorandum and order containing tentative findings and rulings

with respect to sentencing, indicating that it likewise calculated Andre’s Guidelines range

to be 21 to 27 months’ imprisonment, and stating the following:

       The court finds that there are no factors present which warrant the exercise
       of this court’s discretionary authority to depart from the guidelines. To the
       extent a variance from the advisory guideline range may be warranted, the
       court is required under Booker to consider the guidelines as a factor in
       determining a defendant’s sentence, along with the other factors set forth in
       18 U.S.C. § 3553(a), in fashioning a sentence that is sufficient, but not
       greater than necessary, to achieve the statutory purposes of sentencing. The
       court will do so in this case taking into account all of the relevant factors
       bearing on an appropriate sentence.

(Supp. App. at 25.)

       At sentencing, the Court indicated that “the only question I’ve had in reviewing

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this file is whether or not the Court should vary upwardly. I’ve not done that that I can

recall, but if there’s ever been a case that seems to call for it – I’ve never seen a criminal

history of this type of crime such as this defendant has presented.”             (Id. at 31.)

Ultimately, the Court stated that it would “vary upward,” but that it would not be a

“gigantic variance upward,” reasoning that an upward variance was necessary “to protect

the public,” as well as “to let the defendant know that the guidelines aren’t going to

necessarily be the limit on the punishment that she’ll receive if she continues to commit

these horrendous frauds.” (Id. at 32.) The Court imposed a sentence of 36 months’

imprisonment, followed by a five-year term of supervised release. Andre raised no

procedural or substantive objection to her sentence.

       Andre now appeals, arguing that the District Court erred in failing to give advance

notice of its intention to impose a sentence above the Guidelines range.

                                             II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

While ordinarily we review for abuse of discretion whether a district court committed

procedural error at sentencing, see United States v. Tomko, 562 F.3d 558, 567 (3d Cir.

2009) (en banc), here, the government contends that plain error review applies because

Andre failed to object to the lack of Rule 32(h) notice at sentencing, see, e.g., United

States v. Erpenbeck, 532 F.3d 423, 443 (6th Cir. 2008) (applying plain error review).

“We need not settle this dispute,” however, “because even if we accept [Andre’s]

standard, the district court did not abuse its discretion by failing to give notice.” See

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United States v. Rangel, 697 F.3d 795, 803 n.7 (9th Cir. 2012).

                                            III.

       Federal Rule of Criminal Procedure 32(h) states that “[b]efore the court may

depart from the applicable sentencing range on a ground not identified for departure

either in the presentence report or in a party's prehearing submission, the court must give

the parties reasonable notice that it is contemplating such a departure.” As the Supreme

Court has held, “‘[d]eparture’ is a term of art under the Guidelines and refers only to non-

Guidelines sentences imposed under the framework set out in the Guidelines.” Irizarry v.

United States, 553 U.S. 708, 714 (2008). Rule 32(h), by its terms, “does not apply to 18

U.S.C. § 3553 variances.” Id.; United States v. Vampire Nation, 451 F.3d 189, 197 (3d

Cir. 2006) (holding, pre-Irizarry, that a defendant is not entitled to advance notice under

Rule 32(h) where the variance was “based on the Court’s discretion under Booker and

§ 3553(a) and not on a departure from the advisory Guidelines range”). As we have

recognized, “[d]epartures are enhancements of, or subtractions from, a guidelines

calculation based on a specific Guidelines departure provision,” while “[v]ariances, in

contrast, are discretionary changes to a guidelines sentencing range based on a judge’s

review of all the § 3553(a) factors and do not require advance notice.” United States v.

Brown, 578 F.3d 221, 225-26 (3d Cir. 2009) (internal quotation marks omitted).

       Here, it is clear that the 36-month sentence imposed by the District Court resulted

from a variance, and not a departure, from the advisory Guidelines range. Not only did

the Court explicitly state that it was imposing an upward variance (see Supp. App. at 31,

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32), its rationale was clearly based on 18 U.S.C. §§ 3553(a)(2)(B) and (C), which refer to

the need for the sentence imposed “to protect the public from further crimes of the

defendant” and “to afford adequate deterrence to criminal conduct.” Because the District

Court imposed an upward variance, not an upward departure, Rule 32(h) did not require it

to provide advance notice to Andre.

       Finally, to the extent Andre raises an argument that her sentence was substantively

unreasonable, we reject it. In reviewing a sentence for substantive reasonableness, we

consider “the totality of the circumstances, including the extent of any variance from the

Guidelines range,” giving “due deference to the district court’s decision that the

§ 3553(a) factors . . . justify the extent of the variance.” Gall v. United States, 552 U.S.

38, 51 (2007). Here, the District Court imposed a 9-month upward variance “to protect

the public” in light of Andre’s history of similar crimes, and to deter her from future

criminal conduct. (See Supp. App. at 32.) By any objective measure, Andre’s criminal

history is remarkable, spanning 24 pages of the PSR and reflecting different instances of

the same types of criminal schemes, repeated over and over again. In light of the totality

of the circumstances and, in particular, Andre’s extensive history of recidivism, the Court

did not abuse its discretion by imposing a 9-month upward variance.

                                            IV.

       We will affirm the judgment of sentence.




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