                                                                         NOT PRECEDENTIAL


                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                 ________________

                                         No. 19-1828
                                      ________________

                              UNITED STATES OF AMERICA

                                                 v.

                  SHAWN HILLIARD, ALSO KNOWN AS BUGGZ,
               ALSO KNOWN AS RICK, ALSO KNOWN AS BELOVED,
                         ALSO KNOWN AS BOOGZ,
                                            Appellant

                                      ________________

                       On Appeal from the United States District Court
                           for the Eastern District of Pennsylvania
                           (D.C. Criminal No. 2-14-cr-00134-001)
                        District Judge: Honorable C. Darnell Jones, II
                                     ________________

                     Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    on April 15, 2020

                Before: CHAGARES, SCIRICA, and ROTH, Circuit Judges

                                   (Filed: August 18, 2020)

                                      ________________

                                          OPINION*
                                      ________________



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute
binding precedent.
SCIRICA, Circuit Judge

       Shawn Hilliard was involved in a scheme that defrauded several FDIC-insured

banks. For his conduct in this scheme, Hilliard pleaded guilty to one count of bank fraud

under 18 U.S.C. § 1344, one count of conspiracy under 18 U.S.C. § 371, and six counts

of aggravated identity theft under 18 U.S.C. §§ 2, 1028A. Hilliard appeals his sentence

for the second time. Hilliard presents three issues for our review: (1) whether the trial

court erred in ordering restitution of $777,583.80; (2) whether his sentence was

procedurally unreasonable because the trial court failed to meaningfully consider certain

evidence and factors; and (3) whether his sentence was substantively unreasonable in

comparison to his co-conspirators and to his previous sentence. We conclude the trial

court did not err and we will affirm Hilliard’s sentence.

                                              I.

       Hilliard, along with multiple co-conspirators, conducted a nationwide bank fraud

scheme that involved corrupting bank employees to appropriate confidential account

information and directing impostors to use that information to withdraw funds from

compromised accounts. The scheme caused losses at four banks: TD Bank, Citibank,

Wells Fargo Bank, and Capital One Bank. Hilliard was charged in March 2015 (along

with multiple co-conspirators) with one count of bank fraud, one count of conspiracy, and

six counts of aggravated identity theft. While under pretrial supervision, Hilliard

repeatedly failed to report and absconded to Maine under a false identity, only being

apprehended months later.

       As noted, Hilliard pleaded guilty to all charges and was sentenced to 126 months’


                                              2
imprisonment, a five-year term of supervised release, restitution of $1,375,125.12 and a

special assessment of $800. Hilliard timely appealed his sentence.

       This Court vacated Hilliard’s sentence and remanded the case to the trial court for

resentencing. United States v. Hilliard, 726 F. App’x 918 (3d Cir. 2018). We concluded

the trial court erred in finding that Hilliard had “joined the conspiracy before his parole

expired in October 2012.” Id. at 920. Additionally, we stated we had “concerns” about

the trial court’s basis for its finding on the restitution amount and noted the trial court

“will necessarily recalculate the loss amount per our holding on the restitution amount.”

Id. at 921. Finally, we stated the sentence was not substantively unreasonable solely on

the basis that co-conspirators received more lenient sentences, noting the “downward

variances [were] based on [the co-conspirators’] post-offense rehabilitation efforts.” Id.

       On remand, the trial court requested new briefing to address the issues noted in

our opinion and conducted a loss amount hearing to determine loss for sentencing and

restitution purposes. One witness, Special Agent Michael Johnson of the Department of

Homeland Security, Homeland Security Investigations, testified as to the losses stemming

from the identity theft and bank fraud conspiracy attributable to Hilliard. The trial court

ordered the parties to submit supplemental briefing on multiple issues, including the

proper restitution amount. Both parties submitted detailed charts listing the losses they

contended were legally attributable to Hilliard.

       After receiving the supplemental briefing, the trial court held a sentencing hearing

and heard argument on the issues raised in the supplemental briefing, sentencing in

general, and the introduction of post-offense rehabilitation evidence. The trial court


                                               3
deferred imposing a sentence so it could consider the parties’ arguments and any

evidence of post-offense rehabilitation.

       On March 27, 2019, the trial court resentenced Hilliard to 126 months’

imprisonment—the same term of imprisonment imposed at his first sentencing—as well

as a five-year term of supervised release. It also ordered Hilliard to pay restitution of

$777,583.80 and a special assessment of $800. J.A. 3–4, 6–7. Hilliard objected to two

aspects of the sentence: (1) the weight assigned to mitigating factors Hilliard introduced

“in favor of a [sentencing] variance” and (2) the trial court labeling Hilliard “a leader or

organizer” for sentencing purposes. J.A. 782. Hilliard timely appealed.1

                                               II.

       As noted, Hilliard presents three overall issues for our review: (1) whether the trial

court erred in imposing a restitution amount of $777,583.80; (2) whether his sentence

was procedurally unreasonable because the trial court failed to meaningfully consider

certain evidence and factors; and (3) whether his sentence was substantively

unreasonable.

                                               A.

       Hilliard contends the trial court erred in imposing a restitution amount of

$777,583.80. It appears Hilliard asserts two arguments here: (1) failure to use the right

test in reaching the restitution amount and (2) employing the correct test, actual loss, but

imposing a restitution amount that was too high. Because we conclude the restitution


1
 The trial court possessed jurisdiction under 18 U.S.C. § 3231. We possess jurisdiction to review
Hilliard’s sentence under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

                                               4
amount imposed reflects only actual loss, we need not address Hilliard’s first argument

and we conclude the trial court did not err.2

         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 (3d Cir. 2006)

(quoting United States v. Quillen, 335 F.3d 219, 221 (3d Cir. 2003)). The trial court’s

fact-finding is reviewed for clear error; in other words, whether it is “completely devoid

of a credible evidentiary basis or bears no rational relationship to the supporting data.”

United States v. Vitillo, 490 F.3d 314, 330 (3d Cir. 2007) (quoting United States v. Haut,

107 F.3d 213, 218 (3d Cir. 1997)).3 The parties agree that the Mandatory Victims

Restitution Act requires the imposition of restitution in this case. 18 U.S.C.

§ 3663A(c)(1); 18 U.S.C. § 3664(f)(1)(A) (stating restitution must be ordered “in the full

amount of each victim’s losses”). What remains is a challenge to the amount of the

award.


2
  We note that it appears Hilliard complains about the $777,583.80 figure when it was used both
as the loss amount for sentencing purposes and to impose restitution. The amount of loss for
sentencing and restitution may differ, because sentencing loss may be “intended loss” while
restitution is limited to “actual loss.” See United States v. Feldman, 338 F.3d 212, 215–16 (3d
Cir. 2003) (discussing that actual or intended loss may serve as the basis for a sentencing
enhancement, but “a restitution award can only be based upon actual loss”). Because this case
hinges on actual, rather than intended, loss, we need only review the restitution amount. See id.
at 219 (“We will first discuss the restitution issue, which turns on the determination of actual
loss. This will obviate the need to discuss actual loss in conjunction with the sentencing issue.”).
3
 When reviewing loss amount, factual findings are also reviewed for clear error. United States v.
Napier, 273 F.3d 276, 278 (3d Cir. 2001) (citing United States v. Sharma, 190 F.3d 220, 226 (3d
Cir. 1999)). We exercise plenary review over a trial court’s interpretation of the United States
Sentencing Guidelines. Id. (citing Sharma, 190 F.3d at 229). Our conclusion would remain the
same, even if under these standards of review.

                                                 5
       Restitution is limited to the victims’ actual losses. Feldman, 338 F.3d at 216.

Although relying on different bases, the parties agree that actual loss standard includes

losses which were reasonably foreseeable to Hilliard, even if the losses were caused by

the conduct of his co-conspirators. This appears to be the proper test for actual loss in

cases of conspiracy and we will apply it here. Cf. United States v. Robinson, 167 F.3d

824, 830–32 (3d Cir. 1999) (using “reasonably foreseeable” test to hold conspirator liable

for drug death for sentencing purposes even though conspirator did not sell drugs to

decedent).4 Accordingly, we must determine whether the restitution amount reflects

losses that Hilliard directly caused, knew about, or were reasonably foreseeable to occur.

       As noted, the trial court imposed $777,583.80 in restitution. J.A. 6–7, 774–75. At

his second sentencing, Hilliard contended only $639,440 in loss was attributable to him.

J.A. 728, 736. According to Hilliard, his proposed restitution amount reflected all losses

that he was directly involved in or had direct knowledge of. The government asserted

$1,161,568.80 of the approximately $1.3 million total loss was attributable to Hilliard.

J.A. 700, 732. In reaching a restitution amount, the trial court explained that Hilliard was

directly responsible for or had direct knowledge of the following percentages of losses



4
  It is also the standard in our Sister Circuits. See United States v. Newell, 658 F.3d 1, 32 (1st Cir.
2011) (“[I]t is well established that defendants can be required to pay restitution for the
reasonably foreseeable offenses of their co-conspirators.”); United States v. Boyd, 222 F.3d 47,
51 (2d Cir. 2000) (same); United States v. Newsome, 322 F.3d 328, 338 (4th Cir. 2003) (same);
United States v. Bogart, 576 F.3d 565, 576 (6th Cir. 2009) (same); United States v. Ismoila, 100
F.3d 380, 398–99 (5th Cir. 1996) (similar); United States v. Rand, 403 F.3d 489, 495 (7th Cir.
2005) (same); United States v. Rodriguez, 915 F.3d 532, 535 (8th Cir. 2019) (same); United
States v. Riley, 335 F.3d 919, 931–32 (9th Cir. 2003) (same); United States v. Osborne, 332 F.3d
1307, 1314 (10th Cir. 2003) (same); United States v. Odom, 252 F.3d 1289, 1298–99 (11th Cir.
2001) (same).

                                                  6
caused by the conspiracy: 33% from TD Bank, 75% from Citibank, 90% from Wells

Fargo, and approximately 1% from Capital One. J.A. 775. Based on the charts received

from the parties and the testimony of Special Agent Johnson, the trial court imposed

restitution for Hilliard’s “self-admitted” losses at institutions—TD Bank and Capital

One—where Hilliard was responsible for less than 50% of the loss. J.A. 774–75. Where

Hilliard was responsible for more than 50% of the loss—namely, the losses incurred by

Citibank and Wells Fargo—the trial court imposed restitution in the amount the

government requested. Because Hilliard admitted the full restitution amount for TD Bank

and Capital One and most of the restitution amount for Citibank and Wells Fargo, we

need only examine the excess loss amounts, that is, the amounts exceeding those

admitted by Hilliard, at Citibank and Wells Fargo.

       Comparing the portions of the parties’ charts on Citibank, the excess loss amounts

attributed to Hilliard by the government stem from account information provided by

Yolanda Gorham, a Citibank employee. Special Agent Johnson’s testimony shows that

Hilliard knew Gorham was providing confidential account information to his co-

conspirators and had provided him with account information through an intermediary,

Wayne Collins. Losses involving account information received from Gorham, even if

Hilliard was not directly involved and did not have direct knowledge, were reasonably

foreseeable to him. The trial court did not abuse its discretion in attributing these losses to

Hilliard.

       Comparing the portions of the parties’ charts on Wells Fargo, the excess loss

amounts attributed to Hilliard by the government stem from one impostor, Christina


                                              7
Bevilacqua. Special Agent Johnson’s testimony reveals that Dramian Combs, whom

Hilliard recruited as a driver and an impostor, stated Hilliard managed Bevilacqua.

Because Hilliard had managed and worked with her in the past, it was reasonably

foreseeable to him that she would continue her role in the conspiracy in the future. The

trial court did not abuse its discretion in attributing these losses to Hilliard.

       The trial court’s restitution award only included those losses Hilliard was directly

responsible for, had direct knowledge of, or which were reasonably foreseeable to him. In

other words, it only reflected actual loss. Accordingly, we will affirm the trial court’s

restitution order, as there was no legal or factual error and it did not abuse its discretion in

imposing restitution in the amount of $777,583.80.

                                               B.

       Hilliard asserts his sentence was not procedurally reasonable. When reviewing for

procedural reasonableness, we:

       ensure that the district court committed no significant procedural error, such
       as 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—including an explanation
       for any deviation from the Guidelines range.

United States v. Douglas, 885 F.3d 145, 150 (3d Cir. 2018) (quoting United States v.

Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc)) (alteration omitted).

       Hilliard presents three procedural reasonableness issues for our review. First, he

contends the trial court refused to consider evidence of post-offense rehabilitation as

required under Pepper v. United States, 562 U.S. 476 (2011). Second, he contends the



                                                8
trial court erred in failing to meaningfully consider “the lower criminal history score, the

lower restitution amount, and his post-sentencing rehabilitative efforts.” Appellant’s Br.

45–46. Third, he contends the trial court erred in its weighing of his abscondment during

pretrial supervision.

       Because Hilliard did not lodge an objection in the trial court on the first two

issues, we review those for plain error. See United States v. Flores-Mejia, 759 F.3d 253,

258 (3d Cir. 2014) (“[I]n a criminal prosecution, unless a relevant objection has been

made earlier, a party must object to a procedural error after the sentence is pronounced in

order to preserve the error and avoid plain error review.”). Because he did object to the

weight given to his abscondment, we review for abuse of discretion. United States v.

Negroni, 638 F.3d 434, 443 (3d Cir. 2011) (citing United States v. Wise, 515 F.3d 207,

217–18 (3d Cir. 2008)).

       First, Hilliard suggests the trial court did not consider his post-offense

rehabilitative conduct because it rejected its obligation to do so under Pepper v. United

States, 562 U.S. 476 (2011), and only later “begrudgingly gave Hilliard the opportunity

to present the evidence.” Appellant’s Br. 47. Hilliard mischaracterizes the exchange

between the trial court and counsel, as it appears the trial court believed Hilliard’s

counsel was asserting that Pepper supported his contention that he should be able to

introduce new evidence on the issue of role enhancement, not post-offense rehabilitation.

Moreover, it appears the trial court agreed with Hilliard’s counsel multiple times that

evidence of post-offense rehabilitation may be introduced at resentencing and explicitly

stated it would give counsel “the opportunity to present the evidence.” J.A. 744. In fact,


                                              9
as detailed below, the trial court explained that it considered “Hilliard’s evidence of post-

sentencing conduct” in determining its sentence. J.A. 780. The trial court did not err, let

alone commit plain error, in accepting and considering Hilliard’s evidence of post-

offense rehabilitation.

       Second, Hilliard asserts the trial court did not give meaningful consideration to his

lower criminal history score, his lower restitution amount, and the evidence of post-

offense rehabilitation. In discussing the § 3553(a) factors, a trial court must give

“meaningful consideration” to the “particular circumstances of the case.” United States v.

Thornhill, 759 F.3d 299, 311 (3d Cir. 2014) (quoting Tomko, 562 F.3d at 567). We have

held “[a] sentencing court does not have to ‘discuss and make findings as to each of the §

3553(a) factors if the record makes clear the court took the factors into account in

sentencing.’” Tomko, 562 F.3d at 568 (quoting United States v. Cooper, 437 F.3d 324,

329 (3d Cir. 2006)); see also Thornhill, 759 F.3d at 311 (“This does not mean that the

sentencing court is required to ‘discuss and make findings as to each of the § 3553(a)

factors if the record makes clear the court took the factors into account in sentencing.’”

(quoting United States v. Bungar, 478 F.3d 540, 543 (3d Cir. 2007))).

       In imposing Hilliard’s second sentence, the trial court stated: “I have taken into

account the reduced restitution amount of $777,583.80, the reduced criminal history

category of 2” and “Hilliard’s evidence of post-sentencing conduct,” including:

       eight disciplinary charges in a 27-month period, completion of 46 credit
       hours of educational and vocational course work, completion of a drug
       education program, the Bureau of Prisons’ recommendation that he be
       assigned to a lower level security prison, and Mr. Hilliard’s preparation for



                                             10
       a productive life as a personal trainer after he satisfies his term of
       imprisonment.

J.A. 779–80. The record reflects meaningful consideration and we conclude that the trial

court did not err, let alone commit plain error, in its consideration of the evidence and

these factors.5

       Third, Hilliard contends the trial court gave his abscondment too much weight.

But a trial court’s decision to give a factor different weight than that urged by the

defendant does not make a sentence unreasonable. See United States v. Young, 634 F.3d

233, 243 (3d Cir. 2011) (“The District Court’s decision to accord less weight to

mitigation factors than that urged by [the defendant] does not render the sentence

unreasonable.” (citing Bungar, 478 F.3d at 546)). The trial court did not abuse its

discretion in affording greater weight in sentencing to Hilliard’s abscondment than

Hilliard wished and the weight given was reasonable. We conclude Hilliard’s sentence

was procedurally reasonable.

                                                C.

       We next consider the substantive reasonableness of Hilliard’s sentence. Hilliard

contends the sentence imposed is not substantively reasonable for two reasons: (1) the

sentence is identical to his previous sentence even though certain factors were more

favorable to him and (2) the sentence is disproportionate to those imposed on co-


5
  In support of his argument that the trial court did not meaningfully consider certain factors and
evidence, Hilliard asserts the trial court did not explain the amount of time he was sentenced to
serve for each count and could not have imposed his sentence in the same manner as at his first
sentencing. But this contention is incorrect. It appears to have no relation to procedural
reasonableness, as Hilliard does not contend this sentence could not lawfully have been imposed
nor that the trial court’s calculations were incorrect.

                                                11
conspirators. We conclude neither argument is meritorious.

       We review substantive unreasonableness for abuse of discretion. Tomko, 562 F.3d

at 567. Where, as here, the sentence imposed was within the Guidelines range, “the

appellate court may, but is not required to, apply a presumption of reasonableness.” Gall

v. United States, 552 U.S. 38, 51 (2007) (citing Rita v. United States, 551 U.S. 338, 347

(2007)). We will affirm “unless no reasonable sentencing court would have imposed the

same sentence on that particular defendant for the reasons the district court provided.”

Tomko, 562 F.3d at 568.

       We presume reasonableness here because Hilliard’s sentence is within the

applicable Guidelines range. Although certain factors improved for Hilliard between his

first and second sentencing, the relevant test is not—as Hilliard appears to contend—

whether the sentence is reasonable in light of a previous, vacated sentence, but whether

“no reasonable sentencing court would have imposed the same sentence.” Id. at 568. This

is not a case where no reasonable sentencing court would have imposed the same

sentence. There was no abuse of discretion.

       Nor is it substantively unreasonable just because Hilliard’s sentence is longer than

his co-conspirators.6 A sentencing court need only consider “the need to avoid


6
 The Government contends we need not address this issue on the merits because it was decided
by the previous panel. We disagree. Even though the previous panel considered whether
Hilliard’s sentence was substantively unreasonable compared to his co-conspirators, Hilliard,
726 F. App’x at 921, it did not consider that contention under the current sentence and evidence
of post-offense rehabilitation. The law-of-the-case doctrine only applies when “prior decisions in
an ongoing case either expressly resolved an issue or necessarily resolved it by implication.” UA
Theatre Cir. v. Twp. of Warrington, 316 F.3d 392, 397–98 (3d Cir. 2003) (quoting Aramony v.
U. Way of Am., 254 F.3d 403, 410 (2d Cir. 2001)). There was neither an express nor implied
holding on Hilliard’s contention under this set of facts.

                                               12
unwarranted sentence disparities among defendants with similar records who have been

found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). This portion of the statute only

applies when “co-defendants are similarly situated.” United States v. Parker, 462 F.3d

273, 278 (3d Cir. 2006). And “[d]isparity of sentence between co-defendants does not of

itself show an abuse of discretion.” United States v. Cifuentes, 863 F.2d 1149, 1156 n.5

(3d Cir. 1988) (citing United States v. Endicott, 803 F.2d 506, 510 (9th Cir. 1986);

United States v. Peters, 791 F.2d 1270, 1303 (7th Cir. 1986); United States v. Herrera,

757 F.2d 144, 150 (7th Cir. 1985); United States v. Garrett, 680 F.2d 650, 652 (9th Cir.

1982)).

       Hilliard admits he is not similarly situated to his co-conspirators. See Appellant’s

Br. 58 (“Hilliard did not have the same type of mitigating evidence that the Clemente

brothers did . . . .”). Because Hilliard and his co-conspirators are dissimilar in both the

type and amount of mitigation evidence presented, Hilliard can point to no more than a

disparity of sentence. This is not sufficient. We see no abuse of discretion. Hilliard’s

sentence is not substantively unreasonable.

                                              III.

       For the reasons stated, we will affirm the sentence imposed by the trial court.




                                              13
