                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 17-1628
                                     ______________

                            UNITED STATES OF AMERICA

                                             v.

                                 JOSEPH WITKOWSKI,

                                                                Appellant
                                     ______________

                     On Appeal from the United States District Court
                            for the District of New Jersey
                         (D.C. Crim. No. 1-12-cr-00522-001)
                     Honorable Joseph H. Rodriguez, District Judge
                                   ______________

                      Submitted under Third Circuit L.A.R. 34.1(a)
                                   October 26, 2017

                BEFORE: GREENAWAY, JR., COWEN, Circuit Judges,
                         and PADOVA, District Judge**

                                (Filed: December 7, 2017)
                                     ______________

                                       OPINION*
                                     ______________

____________________

**The Honorable John R. Padova, Senior United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.

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

       Joseph Witkowski appeals from the criminal sentence entered by the United States

District Court for the District of New Jersey. We will affirm.

                                             I.

       “Over the course of two years in the mid-2000s, [Witkowski] and his co-

conspirators engaged in a mortgage fraud scheme which resulted in over $40 million in

losses to various financial institutions.” (Appellant’s Brief at 3 (citing Presentence

Investigation Report (“PSR”) at 17).) Witkowski was indicted on one count of

conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349 and a single count of

conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h). He pled

guilty to both counts.

       The parties did not contest the applicable Guidelines sentencing range of 135 to

168 months. Varying downward, the District Court sentenced Witkowski to 48 months

of imprisonment (as well as three years of supervised release).

                                             II.

       According to Witkowski, the District Court committed plain error by failing to

resolve a factual dispute regarding his relative culpability as compared to his co-

conspirator Charles Harvath.1 Harvath (who also pled guilty) had a Guidelines


       1
       The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231.
We have appellate jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

       Witkowski agrees that he failed to object to the District Court’s alleged procedural
errors at sentencing and that he thereby must satisfy the plain error standard of review.
See, e.g., United States v. Flores-Mejia, 759 F.3d 253, 255-59 (3d Cir. 2014) (en banc)
                                              2
sentencing range of 168 to 235 months, received a downward departure for substantial

assistance under U.S.S.G. § 5K1.1, and was sentenced to 37 months’ imprisonment. By

purportedly relying on “relative culpability as a basis for setting Witkowski’s sentence

slightly higher than [Harvath’s] without first resolving factual disputes regarding the

relative culpability of the two men,” the District Court’s “procedural error violated both

the letter and spirit of Fed. R. Crim. P. 32(i) and U.S.S.G. § 6A1.3.”2 (Appellant’s Brief

at 19.)

          The District Court did not commit procedural error, plain or otherwise, with

respect to its assessment of relative culpability. Witkowski specifically contends that it

failed to discuss Harvath’s central role in preparing the mortgage applications and HUD-

1 forms, obtaining credit scores, securing the mortgages, and distributing the proceeds.

“Nor did the [District Court] acknowledge that Harvath personally derived more than $1

million in proceeds from the scheme, more than anyone else in the scheme and

significantly more than Witkowski.” (Id. at 17.) However, it was undisputed that

(applying plain error standard to alleged procedural error in sentencing and explaining
that “error is plain if it is ‘clear’ or ‘obvious,’ ‘affects substantial rights,’ and ‘affects the
fairness, integrity, or public reputation of judicial proceedings’” (quoting United States v.
Dragon, 471 F.3d 501, 505 (3d Cir. 2006))). We review the substantive reasonableness
of the sentence for abuse of discretion. See, e.g., United States v. Handerhan, 739 F.3d
114, 124 (3d Cir. 2014).
        2
          The parties disagree as to whether Federal Rule of Criminal Procedure
32(i)(3)(B) applies to sentencing disagreements beyond the PSR. The United States
Court of Appeals for the Ninth Circuit has held, based upon its analysis of the Advisory
Committee’s notes to the 2002 amendment of Rule 32, meeting minutes, and agenda
books, that the rule’s scope is limited to objections to the PSR. United States v. Petri,
731 F.3d 833, 837-41 (9th Cir. 2013). We, however, need not resolve whether we agree
with our sister court as to the scope of Rule 32 in the case before us, because, as
explained in greater detail, Witkowski cannot meet the plain error standard even if Rule
32 applies to other sentencing disputes.
                                                3
Harvath handled the paperwork (according to the Assistant United States Attorney, this

was because Harvath “had the technical expertise to do that” and Witkowski “wanted [his

name kept off the paperwork] because there were tax liens” (A199)). According to his

appellate brief, “Witkowski clearly played an essential role in the conspiracy by making

the sales pitches to the straw purchasers, recruiting co-conspirators to provide false

employment verification, and directing other co-conspirators to obtain false employment

verification documents.” (Appellant’s Brief at 15 (citing A142-A143, A144, A167-

A168).) Noting that these two individuals conceived and orchestrated the criminal

scheme, the District Court appropriately determined that, “[s]o when we consider the

relative culpability, the defendant here is at the very top of the most culpable group,

between him and Mr. Harvath.” (A208.) In turn, it properly justified the lengthier

sentence for Witkowski (a sentence that Witkowski admits was only “slightly higher”

than the sentence received by Harvath) on the grounds that Witkowski, unlike Harvath,

had a prior criminal record and engaged in additional misconduct by taking money from

an acquaintance under false pretenses after he began cooperating with the government

(which led the government to decline to enter a cooperating plea agreement with

Witkowski).

       Witkowski also argues that the District Court committed a procedural error in

failing to consider his arguments for mitigation. However, we agree with the government

that the District Court considered and relied on Witkowski’s arguments for mitigation.

According to Witkowski, the District Court failed to acknowledge and address the fact

that his cooperation efforts took place over a five-year period during which he was

                                              4
subject to pretrial supervision as well as his ailing health and advanced age (e.g.,

Witkowski turned 71 years old shortly after his sentencing, has an inherited progressive

connective tissue disorder called Dupuytren’s contracture, has experienced atrial

fibrillation, and has significant dental problems). See, e.g., United States v. Ausburn, 502

F.3d 313, 329 (3d Cir. 2007) (stating that sentencing court must acknowledge and

respond to any properly presented sentencing argument with colorable legal merit and

factual basis). However, the District Court explained that it had considered the parties’

submissions and that “I did take an oath in my function as a judge to make sure that we

can consider all of the facts that are placed before us, try to distill those facts and then

balance those facts with what I believe to be a just result.” (A202.) It considered the

circumstances of this case in the light of the sentencing factors set forth by 18 U.S.C. §

3553(a). See, e.g., United States v. Merced, 603 F.3d 203, 215 (3d Cir. 2010) (“[T]he

district court must furnish an explanation ‘sufficient for us to see that the particular

circumstances of the case have been given meaningful consideration within the

parameters of §3553(a).’” (quoting United States v. Levinson, 543 F.3d 190, 196 (3d Cir.

2008))). In the process, the District Court “acknowledged Witkowski’s cooperation

efforts in fashioning its sentence.” (Appellant’s Brief at 22.) In the end, Witkowski

actually received a substantial downward variance, with the District Court imposing a

term of imprisonment 87 months below the bottom of his Guidelines sentencing range.

       Finally, this below-Guidelines sentence of 48 months’ imprisonment was not

substantively unreasonable. While Witkowski claims that his sentence was unreasonable

because of procedural errors, we have determined that the District Court did not

                                               5
procedurally err. “[I]f the district court’s sentence is procedurally sound, we will affirm

it unless no reasonable sentencing court would have imposed the same sentence on that

particular defendant for the reasons the district court provided.” United States v. Tomko,

562 F.3d 558, 568 (3d Cir. 2009) (en banc). Witkowski does not meet this rigorous

standard.

                                              III.

         For the foregoing reasons, we will affirm the sentence entered by the District

Court.




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