                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 15-3925
                                     ______________

                            UNITED STATES OF AMERICA,

                                             v.

                                 DEBORAH CELLUCCI,
                                            Appellant
                                   ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                         (E.D. Pa. No. 2-14-cr-00538-001)
                    District Judge: Honorable Berle M. Schiller
                                 ______________

                      Submitted under Third Circuit L.A.R. 34.1(a)
                                     July 12, 2016
                                   ______________

             Before: FUENTES, SHWARTZ, and KRAUSE, Circuit Judges.

                                 (Filed: August 15, 2016)

                                     ______________

                                        OPINION*
                                     ______________

SHWARTZ, Circuit Judge.




       *
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
       Deborah Cellucci appeals her twelve month and one day sentence for wire fraud

and obstructing the administration of the revenue laws. For the reasons set forth herein,

we will affirm.

                                             I

       Cellucci owned Our Little Rascals (“OLR”), a day care business in Philadelphia.

OLR received payments from the Commonwealth of Pennsylvania to subsidize the

expenses for qualifying families whose children attended OLR. An entity called Child

Care Information Services (“CCIS”) managed the subsidy program. Caring People

Alliance (“CPA”) operated CCIS’ offices in OLR’s area.

       OLR was delinquent in its corporate tax payments, owing more than $50,000 to

the Internal Revenue Service. The IRS contacted Cellucci and placed her on a payment

plan. When OLR failed to make its agreed-upon payments, the IRS sent a Notice of Levy

to CPA, directing it to send any subsidy payments to the IRS instead of OLR.

       The subsidy due to OLR in June 2013 was $28,103.20 and CPA prepared a check

in that amount payable to the U.S. Treasury. Before CPA sent the payment, Cellucci

faxed CPA a false Release of Levy, in an effort to circumvent the IRS levy and redirect

the payment to OLR. Upon receiving the “release,” CPA issued a check to OLR, the

proceeds of which Cellucci deposited in OLR’s account.

       A grand jury returned an indictment against Cellucci, charging her with wire

fraud, in violation of 18 U.S.C. § 1343, and obstructing the administration of the revenue

laws, in violation of 26 U.S.C. § 7212(a). Cellucci pleaded guilty to both counts.



                                             2
       After her plea, the Probation Office prepared a Presentence Report (“PSR”), which

stated that the two counts were to be grouped under U.S.S.G. § 3D1.2(a)-(c) and that the

offense level applicable to the count with the higher offense level would apply. As

between the two, the § 7212 violation had the higher level. According to the Sentencing

Guidelines’ Statutory Index, the applicable guideline for a violation of § 7212 is either

U.S.S.G. § 2T1.1 or § 2J1.2. The Probation Office determined that § 2J1.2 applied,

resulting in a base offense level of 14, which the Probation Office recommended be

reduced by two levels for acceptance of responsibility under § 3E1.1. This resulted in a

total offense level of 12, and a Guidelines range of 10-16 months’ imprisonment.1

       Before sentencing, Cellucci and the Government submitted briefs that outlined

their positions concerning the Guidelines, whether Cellucci’s drug use while on

conditions of release disqualified her from receiving a downward adjustment for

acceptance of responsibility, and whether her personal circumstances, including her lack

of criminal record, strong work history, difficult childhood, financial hardship, the death

of her father, and the illness and death of her mother provided a basis for a variance.

Cellucci also submitted character letters, attesting to her positive personal attributes and

her work with children at OLR.

       At sentencing, the District Court acknowledged receipt of the PSR, letters, and

sentencing briefs. The District Court first considered the arguments concerning the


       1
        If § 2T1.1 applied, the resulting base offense level would be 12, see U.S.S.G. §§
2T1.1, 2T4.1, and the resulting total offense level, after the two-level reduction for
acceptance of responsibility, would be 10, for a Guidelines range of 6-12 months’
imprisonment.
                                              3
reduction for acceptance of responsibility, including Cellucci’s drug use while on release

and her failure to complete the process of filing amended tax returns, and ruled that she

was nevertheless entitled to the two-level reduction under § 3E.1.1. The District Court

confirmed that there were no motions, stated that it adopted the facts set forth in the PSR,

acknowledged that the Guidelines were not binding, but that they must be considered,

and determined that the applicable guideline was § 2J1.2. Cellucci did not object to this

conclusion.

       The District Court then invited counsel to address the Court. Defense counsel

began his comments by stating “I have obviously submitted a memorandum for the

Court’s review,” to which the District Court responded “I read it.” App. 78. Defense

counsel repeated what was in the memorandum and reiterated Cellucci’s personal

circumstances and her request for a variance from the applicable custodial Guideline

sentence to home confinement.

       The Government responded by discussing Cellucci’s noncompliance with

conditions of release, her conscious actions to divert payments from the IRS, her

continued failure to rectify her tax delinquency, and her statements to the IRS that she

closed her business, when in fact she was still operating it. For these reasons, the

Government opposed the variance and argued for a custodial sentence.

       The District Court then heard Cellucci’s allocution, during which she noted her

history of law abidingness, financial circumstances, drug use, father’s passing, mother’s

illness, and issues concerning the renewal of her business license. The District Court

specifically stated it would factor her lack of a criminal record into its sentencing

                                              4
calculus, but was unmoved by her business problems. The District Court also

acknowledged that Cellucci had a drug problem but pointed out that she failed to comply

with the conditions requiring that she remain drug free and participate in treatment.

       The District Court then informed counsel that it would state the sentence that it

intended to impose and would thereafter ask counsel if there were objections to the

“accuracy or the regularity of the sentence.” App. 85. Continuing, the District Court said

that it had considered all of the factors under 18 U.S.C. § 3553(a), the Guidelines, and the

resulting recommended range, stated that it had “examined the nature and circumstances

of [Cellucci’s] offense,” her “history and characteristics,” and the need to impose a

sentence that reflected the seriousness of the offense, the goal of deterrence, and the need

to protect the public, and concluded that “a sentence within the [Guidelines] range . . .

fulfills the purposes of sentencing that [the District Court] set forth.” App. 86-87. The

District Court then stated that it intended to impose concurrent sentences of twelve

months and one day on each count. The District Court asked defense counsel if she knew

of any reason the sentence should not be imposed, she responded “no,” App. 90, and the

District Court formally pronounced its sentence. Cellucci appeals.

                                             II2


       2
         The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Because Cellucci failed to raise her
challenges before the District Court, we review for plain error. Fed. R. Crim. P. 52(b);
United States v. Flores-Mejia, 759 F.3d 253, 259 (3d Cir. 2014) (en banc). Under the
plain error standard, we will affirm the sentence unless the appellant demonstrates: (1) an
error; (2) that is clear and obvious; and (3) affects substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009); United States v. Vazquez, 271 F.3d 93, 99 (3d Cir.
2001). If all three prongs are satisfied, then the Court has the discretion to remedy the
                                              5
        When imposing a sentence, a district court follows the three-step procedure set

forth in United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), which requires calculating

a defendant’s sentence under the Guidelines, ruling on departure motions, and

“exercis[ing] [its] discretion by considering the relevant [sentencing] factors.” Id. at 247

(internal citations, quotations, and alterations omitted). When we review the procedural

reasonableness of a sentence, we examine whether the District Court followed each of

these steps. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc).

        On appeal, Cellucci asserts that the District Court erred at the first step, by

selecting the incorrect Guideline, and the third step, by failing to meaningfully consider

the § 3553 factors and declining to grant her a variance. We will address each issue in

turn.

                                               A

        We first examine whether the District Court committed plain error at the first step

of the sentencing process—calculating the defendant’s sentence—by applying U.S.S.G. §

2J1.2 rather than § 2T1.1. “The Guidelines Manual lays out a specific, mechanical

process through which the sentencing court must move in order to arrive at the correct

calculation[.]” United States v. Boney, 769 F.3d 153, 159 (3d Cir. 2014). Cellucci’s

challenge implicates the stage of the calculation process at which the sentencing court


error only if the error “seriously affect[s] the fairness, integrity[,] or public reputation of
judicial proceedings.” Puckett, 556 U.S. at 135 (quotation marks omitted); United States
v. Stinson, 734 F.3d 180, 184 (3d Cir. 2013).




                                               6
must “determine the offense guideline section in Chapter Two (Offense Conduct) [of the

Guidelines] by reference to the Statutory Index.” United States v. Aquino, 555 F.3d 124,

127 (3d Cir. 2009); see U.S.S.G. §§ 1B1.1(a), 1B1.2(a), & App. A.

       The Statutory Index provides that for a conviction under the omnibus clause of §

7212(a), either U.S.S.G. § 2J1.2 (Obstruction of Justice) or § 2T1.1 (Tax Evasion) may

be appropriate.3 U.S.S.G. App. A. Where, as here, the Statutory Index “specifies more

than one offense guideline for a particular statute, the court must ‘determine which of the

referenced guideline sections is most appropriate for the offense conduct charged in the

count of which the defendant was convicted.’” Aquino, 555 F.3d at 127 (quoting

U.S.S.G. § 1B1.2 cmt. n. 1).

       In determining which of two or more guidelines is “most appropriate,” U.S.S.G. §

1B1.2 cmt. n. 1, we consider only the conduct charged in the relevant count of the

indictment. See U.S.S.G. § 1B1.2(a); Boney, 769 F.3d at 160; Aquino, 555 F.3d at 129.

The indictment here charges that, as part of its efforts to collect back taxes from OLR, the

IRS sent CPA a Notice of Levy that directed CPA to submit payments due to OLR to the

IRS instead. Cellucci then “endeavor[ed] to obstruct and impede the due administration

of the internal revenue laws” by creating a false Release of Levy and transmitting it to

CPA, so that CPA would believe it was no longer obligated to submit payment to the IRS

and would instead send the payment to OLR. App. 18.




       3
          Cellucci does not dispute that the District Court appropriately used § 7212(a) as
the starting point for calculating her Guidelines range. See U.S.S.G. § 3D1.3.
                                             7
       Section 2J1.2, the obstruction of justice guideline, addresses various offenses,

including “obstructing a civil or administrative proceeding.” U.S.S.G. § 2J1.2 cmt. n. 2.

In the context of a prosecution under § 7212(a), an IRS “action” or “proceeding” has

been defined as “some step [by the IRS] to investigate a particular taxpayer beyond

routine administrative procedures such as those required to accept and process tax filings

in the ordinary course.” United States v. Miner, 774 F.3d 336, 346 (6th Cir. 2014). The

IRS’s efforts to collect back taxes from OLR, which included sending the Notice of Levy

to CPA, involved more than routine administrative procedures, and thus are appropriately

viewed as a “proceeding.” Because Cellucci’s criminal scheme—an effort to re-direct

the payment from CPA to her business, rather than the IRS—directly interfered with that

proceeding, the District Court appropriately relied on § 2J1.2 in calculating her sentence.

       Citing her “transmission of a fraudulent tax document,” Cellucci argues that §

2T1.1, which applies to “Tax Evasion” as well as “Fraudulent or False Returns,

Statements, or Other Documents,” better captures her conduct. Cellucci Br. 18. We

disagree. In sending the forged Release of Levy to CPA, Cellucci not only transmitted a

fraudulent tax document to evade the IRS’s collection efforts, but sent it to a third party,

while pretending to act for the IRS. Thus, her conduct differs significantly from that

most often associated with tax fraud, like concealing income from or filing a false return

with the IRS. See United States v. McGill, 964 F.2d 222, 230 (3d Cir. 1992).

       For these reasons, we conclude that the District Court did not err, plainly or

otherwise, in using § 2J1.2 to calculate Cellucci’s sentence.

                                              B

                                              8
       We next examine whether the District Court committed plain error at the third step

of the sentencing process, specifically in its consideration of her request for a variance.4

To satisfy the third step of the sentencing process, “the record must demonstrate that the

sentencing court gave ‘meaningful consideration’ to [the § 3553(a)] factors.” United

States v. Bungar, 478 F.3d 540, 543 (3d Cir. 2007). As part of this step, a district court

must “acknowledge and respond to any properly presented sentencing argument which

has colorable legal merit and a factual basis.” Flores-Mejia, 759 F.3d at 256. The

sentencing judge, however, “need not . . . discuss a defendant’s clearly nonmeritorious

arguments, or otherwise 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.” Bungar,

478 F.3d at 543 (citation and quotation marks omitted).

       While a rote recital of the § 3553(a) factors is generally insufficient, United States

v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006), there is no bright-line rule for how thorough

an explanation must be. Instead, any explanation must simply be “sufficient for [this

Court] to see that the particular circumstances of the case have been given meaningful

       4
         The purpose of a variance is to ensure that a defendant’s sentence is “‘sufficient,
but not greater than necessary, to comply’ with the basic aims of sentencing as set out” in
the § 3553(a) factors. Rita v. United States, 551 U.S. 338, 348 (2007) (quoting 18 U.S.C.
§ 3553(a)); see Kimbrough v. United States, 552 U.S. 85, 101 (2007) (same). Due to the
“institutional advantage” district courts have over appellate courts, the decision to vary
from the Guidelines range is entrusted to the sound discretion of the district court. Gall v.
United States, 552 U.S. 38, 52 (2007); see also Rita, 551 U.S. at 357-58 (“The sentencing
judge has access to, and greater familiarity with, the individual case and the individual
defendant before him than the Commission or the appeals court.”). Here, however, rather
than reviewing whether the District Court abused its discretion, we review its ruling for
plain error because Cellucci did not object to the thoroughness of the District Court’s
consideration of the § 3553 factors or request further explanation for why it declined to
grant a variance, as required by Flores-Mejia, 759 F.3d at 259.
                                              9
consideration within the parameters of § 3553(a).” United States v. Levinson, 543 F.3d

190, 196 (3d Cir. 2008); see also Rita v. United States, 551 U.S. 338, 356 (2007) (stating

that “[t]he 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 decision making authority”). Thus, our inquiry is whether the District Court gave

meaningful consideration to the variance request and relevant § 3553(a) factors such that,

on review, we may understand the “rationale by which [the] district court reache[d] a

final sentence.” United States v. Grier, 475 F.3d 556, 572 (3d Cir. 2007).

       While the District Court here could have offered a more fulsome explanation of

how it considered all of Cellucci’s personal circumstances and why they did not support a

variance, we cannot say it committed plain error in the way it handled this portion of the

sentencing proceeding. The record shows that the District Court considered the

statements of counsel and Cellucci as well as a variety of documents, including the PSR,

letters written on Cellucci’s behalf, and defense counsel’s sentencing memorandum,

which outlined Cellucci’s difficult personal circumstances.

       Based upon what it reviewed and said during the sentencing, it is clear that the

District Court was familiar with Cellucci’s circumstances and meaningfully considered

the § 3553(a) factors and whether they supported a sentence that varied from the advisory

Guidelines range. The District Court explicitly acknowledged her lack of a criminal

record, heard details about her other personal circumstances, and clearly considered them,

as is reflected in its direct statement to Cellucci that it had “examined . . . [her] offense

and . . . [her] history and characteristics.” App. 86.

                                              10
       With respect to her drug use, the District Court specifically noted that Cellucci’s

noncompliance with her pretrial conditions of release through her continued drug use and

failure to participate in drug treatment caused the Court great concern, as it demonstrated

her inability to comply with court-ordered conditions of release at a critical phase of the

case: during the period before sentencing, when a defendant should have an incentive to

show good behavior. These comments and Cellucci’s own conduct while on release

justified the District Court’s decision to decline to vary to a noncustodial sentence.5

       The District Court also considered the nature of the offense. As the Government

explained at sentencing, Cellucci’s offense occurred in the context of the IRS’s

conciliatory attempt to assist Cellucci in rectifying her tax problem. Instead of accepting

its assistance, Cellucci took affirmative steps to impede the IRS’s efforts. Her creation of

a false government document to deceive an innocent third party into failing to tender a

payment due to the IRS showed disrespect for the IRS, that third party, and the law. On

this basis, the District Court imposed a custodial sentence that “reflect[ed] the seriousness

of [the] offense . . . provide[d] adequate deterrence to criminal conduct and protect[ed]

the public.” App. 86.

       In sum, the District Court’s express acknowledgement of the materials it reviewed,

the manner in which it engaged with Cellucci and her counsel during the proceedings,

and the balance it struck between Cellucci’s background, her conduct while on conditions

       5
          The District Court’s consideration of her personal circumstances, including her
difficult past and more recent family events and her ongoing drug use, is also reflected in
its statement that the sentence would “hope[fully] provide [Cellucci] with any
correctional treatment [she] might need.” App. 86.


                                             11
of release, and the seriousness of the offense all show that it meaningfully considered

“the nature and circumstances of the offense and the history and characteristics of the

defendant,” and explains why it choose not to vary and selected a custodial sentence. 18

U.S.C. § 3553(a)(1); see Rita, 551 U.S. at 356-59 (noting that “the context and the record

make clear [the] . . . reasoning [underlying] the judge’s conclusion . . . [and] that the

sentencing judge considered the evidence and arguments”). Therefore, on plain error

review, we cannot say that the District Court failed to meaningfully consider Cellucci’s

request for a variance.

                                             III

       For the foregoing reasons, we will affirm the judgment of sentence.




                                             12
