                                                      NOT PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT

                           _____________

                            No. 13-2361
                           _____________


                  UNITED STATES OF AMERICA

                                  v.

                        JUSTIN THOMPSON,

                               Appellant
                            ____________

            On Appeal from the United States District Court
                for the Middle District of Pennsylvania
                        (No. 1-11-cr-00198-003)
             District Judge: Honorable Sylvia H. Rambo

          Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                        December 10, 2013

                            ____________


Before: McKEE, Chief Judge, FUENTES and CHAGARES, Circuit Judges.

                       (Filed: January 17, 2014)

                            ____________

                              OPINION
                            ____________
CHAGARES, Circuit Judge.

       Justin Thompson appeals the 110-month sentence he received after pleading guilty

to conspiracy to distribute and possess with intent to distribute cocaine hydrochloride.

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

                                             I.

       We write solely for the parties and will therefore recount only those facts that are

essential to our disposition. On April 16, 2012, Thompson pleaded guilty to a

superseding information that charged him with conspiracy to distribute and possess with

intent to distribute an unspecified amount of cocaine hydrochloride in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. The parties agreed that Thompson was

responsible for 300 to 400 grams of powder cocaine, and the Probation Office’s

Presentence Investigation Report (“PSR”) accordingly assigned him a base offense level

of 22. PSR ¶ 17; see United States Sentencing Guideline (“U.S.S.G.”) § 2D1.1(c)(9).

However, because Thompson had two prior controlled substance convictions, he was

classified as a career offender under U.S.S.G. § 4B1.1(a). PSR ¶ 23. This enhancement

increased his offense level from 22 to 32 and his criminal history category from III to VI,

yielding an advisory Sentencing Guidelines range of 210 to 262 months of imprisonment.

PSR ¶¶ 33, 54. The range was reduced to 210 to 240 months pursuant to the 20-year

statutory maximum. PSR ¶ 54; see U.S.S.G. § 5G1.1(c). The PSR did not award a

downward adjustment for acceptance of responsibility, on the basis that Thompson had

incurred new criminal charges while under pretrial supervision.

                                             2
      Thompson filed a sentencing memorandum in which he argued that he was

entitled to a downward adjustment for acceptance of responsibility; moved for a

downward departure based on his poor physical health (Thompson suffers from end-stage

renal disease); and requested a downward variance from the career offender Guideline,

on the grounds that any sentence within that range would “be significantly greater than

necessary to address [his] conduct.” Appendix (“App.”) 24. Thompson also cited his

physical condition and the need to avoid unwarranted sentencing disparities as factors to

be considered under 18 U.S.C. § 3553(a). He requested a below-Guidelines sentence of

30 months.

      At Thompson’s sentencing hearing, which was conducted on May 2, 2013, the

Government indicated that it would not object to an adjustment for acceptance of

responsibility (reducing Thompson’s final offense level from 32 to 29). Apparently

misconstruing Thompson’s request for a variance from the career offender Guideline as a

motion for downward departure,1 the Government further indicated that it would not

object to a one-level decrease in Thompson’s criminal history category pursuant to

U.S.S.G. § 4A1.3(b).2 Thus, under the Government’s calculation, the correct advisory

Guidelines range was 140 to 175 months (based on an offense level of 29 and a criminal


1
  Specifically, the Government stated: “[t]he Court, if it were to vary because it
overstates it, you could only drop one criminal history category. So he would go from a
six to a five. I don’t oppose that.” Appendix (“App.”) 58.
2
  Under § 4A1.3(b)(1), a downward departure “may be warranted” if “reliable
information indicates that the defendant’s criminal history category substantially over-
represents the seriousness of the defendant’s criminal history or the likelihood that the
defendant will commit other crimes.” However, pursuant to U.S.S.G. § 4A1.3(b)(3), a
downward departure for career offenders may not exceed one criminal history category.
                                            3
history category of V). The Government characterized Thompson’s remaining § 3553(a)

arguments as “very compelling,” App. 59, but stated that it would “defer to” the court’s

determination of an appropriate sentence.

       After hearing from both parties, the District Court stated that it would grant

Thompson’s unopposed request for a downward adjustment based on acceptance of

responsibility. It further announced, “[w]ith regard to the health issues,” that it

“intend[ed]” to “grant a departure both on health but also on sentencing disparity.” App.

60. The court then sentenced Thompson to 110 months of imprisonment, three years of

supervised release, and a $100 special assessment. App. 61-62. The court gave the

following statement of reasons:

       The Court adopts the pre-sentence investigation report with the following
       changes: The Court does grant him three points for acceptance of
       responsibility. No count of conviction carries a mandatory minimum
       sentence. The fine is waived because of the Defendant’s inability to pay.
              The sentence varies from the [G]uideline range for the following
       reasons: One, the Court has taken into account his renal failure, his overall
       health condition, the disparity in the sentencing between him and other
       Defendants as well as disparity from his previous sentence under his prior
       criminal history.

App. 62-63 (emphases added). The Government then reminded the court that it had not

addressed whether Thompson’s criminal history category should be reduced from VI to

V. The District Court responded:

       Yes. The Court also believes consideration should be given to a variance
       based on the career offender status as it overstates the criminal history and
       the likelihood that the Defendant will commit future crimes. Two prior
       convictions were minor drug offenses and also the fact that his previous
       history compared to his present offenses are just so disparate that the Court
       feels that to give even the sentence under the amended history still over-
       represents the penalty that he deserves in this case.

                                              4
App. 66 (emphasis added). In its written statement of reasons, the District Court

indicated that the applicable Guideline range was 151 to 188 months, based on an offense

level of 29 and a criminal history category of VI. The court explained that a variance was

warranted in light of Thompson’s low likelihood of recidivism. Thompson timely

appealed.

                                             II.3

       We review the procedural and substantive reasonableness of a district court's

sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). We “take

up the procedural review first, looking to see that the district court has committed no

significant error.” United States v. Levinson, 543 F.3d 190, 195 (3d Cir. 2008). “If the

sentencing decision passes that first stage of review, we then, at stage two, consider its

substantive reasonableness.” Id.

       At stage one, we “ensur[e] that the district court committed no significant

procedural error.” United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (emphasis

added) (quotation marks omitted). In United States v. Gunter, 462 F.3d 237 (3d Cir.

2006), this Court articulated that a sentencing court must: (1) calculate the defendant’s

Guidelines sentence “precisely” as it would have before Booker; (2) in doing so, formally

rule on the motions of both parties and state on the record whether it is granting a

departure and how that departure affects the Guidelines calculation (taking into account



3
  The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have appellate
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                              5
this Court’s pre-Booker caselaw); and (3) exercise discretion by separately considering

the relevant § 3553(a) factors. Id. at 247.

       If the sentence imposed is not procedurally unreasonable, we proceed to the

substantive-reasonableness inquiry, which asks “whether the final sentence, wherever it

may lie within the permissible statutory range, was premised upon appropriate and

judicious consideration of the relevant factors.” United States v. Doe, 617 F.3d 766, 770

(3d Cir. 2010) (quotation marks omitted). We apply a deferential standard, affirming

“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.

                                              III.

                                              A.

       Thompson’s first claim of procedural error is that the District Court failed to state

its calculation of the applicable Guidelines range on the record during his sentencing

hearing. Thompson Br. 18. Contrary to Thompson’s position, the District Court

expressly adopted the PSR’s Guidelines calculation — a total offense level of 32 and a

criminal history category of VI — “with the following changes: The Court does grant

[Thompson] three points for acceptance of responsibility.” See App. 62-63. Because the

court calculated and applied the correct career offender range, it complied with the first

step of the Gunter analysis.

                                              B.

       Thompson next argues that the District Court failed to “formally rule on” his

request that it “disregard” the career offender Guideline. See Thompson Br. 18-19, 25.

                                               6
Thompson emphasizes that, but for the court’s application of the career offender range,

his total offense level of 19 and criminal history category of III would have yielded a

Guidelines range of 37 to 46 months of imprisonment. Thompson asks that we vacate his

sentence and remand so that the sentencing court may “determine whether the compelling

policy reasons warrant disregarding the [c]areer [o]ffender [G]uideline range in this

case.” Thompson Br. 25.

       We note, as an initial matter, that there is some confusion as to whether

Thompson’s argument is within the framework of a motion for downward departure

pursuant to U.S.S.G. § 4A1.3(b)(1) or a request for a downward variance. We “expressly

distinguish between departures from the [G]uidelines and variances from the

[G]uidelines.” United States v. Brown, 578 F.3d 221, 225 (3d Cir. 2009). Departures are

enhancements of, or subtractions from, a Guidelines calculation “based on a specific

Guidelines departure provision,” and they require a motion by the requesting party and an

express ruling by the court. Id. (quotation marks omitted). Variances, by contrast, are

“discretionary changes to a [G]uidelines sentencing range based on a judge’s review of

all the § 3553(a) factors” and do not require advance notice. Id. at 226. Whether a

district court has imposed a departure or a variance “has real consequences for an

appellate court’s review”: the former determination implicates step two of the Gunter

analysis, whereas the latter affects step three. Id.; see United States v. Fumo, 655 F.3d

288, 308 (3d Cir. 2011).

       As previously discussed, while Thompson’s sentencing memorandum and

statements at his sentencing hearing framed his argument as one for a variance, the

                                             7
Government construed the argument as a motion for a departure under § 4A1.3.

Compare App. 22-29, and App. 50-54, with App. 58. Thompson compounded the

resulting uncertainty by arguing on appeal that the District Court did not “formally rule

on” his request that it decline to apply the career offender Guideline. Thompson Br. 19,

25. Despite this semantic anomaly, Thompson’s argument is clearly based on principles

of fairness and policy — not on a particular Guidelines provision. We will accordingly

consider his argument to be that the District Court erred at step three of the Gunter

analysis by not granting his request for a variance pursuant to § 3553(a).4

       To comply with its step three obligations, a sentencing court must “produce a

record sufficient to demonstrate its rational and meaningful consideration of the [18

U.S.C.] § 3553(a) factors.” United States v. Begin, 696 F.3d 405, 411 (3d Cir. 2012).

“The record as a whole must make clear that the district judge has considered the parties’

arguments and has a reasoned basis for exercising his own legal decisionmaking

authority.” Id. (quotation marks omitted). While the court need not “raise every

conceivable issue on its own initiative,” id., it must “acknowledge and respond to” any

“properly presented sentencing argument which has colorable legal merit and a factual


4
  Even assuming that Thompson moved for a downward departure under § 4A1.3(b)(1),
we would still find no procedural error under Gunter’s second step because the
Government conceded at sentencing that the District Court could take Thompson’s
argument into account in its sentencing decision. App. 58-60; see United States v.
Jackson, 467 F.3d 834, 839 (3d Cir. 2006) (observing that, while failure to rule on a
Guidelines departure motion “would seem contrary to step two in Gunter,” we “would
not remand for re-sentencing when the Government’s arguments to the district court
concede[d] the plausibility of the downward departure” and thereby allowed the inference
that the departure motion had been denied by the district court “in recognition of its
ability to depart had it chosen to do so” (quotation marks omitted)).
                                             8
basis,” United States v. Ausburn, 502 F.3d 313, 329 (3d Cir. 2007); cf. Jackson, 467 F.3d

at 842 (“Merely reciting the § 3553(a) factors, saying that counsel’s arguments have been

considered, and then declaring a sentence, are insufficient to withstand our

reasonableness review.”). “Where the record is inadequate, we do not fill in the gaps by

searching the record for factors justifying the sentence.” Ausburn, 502 F.3d at 331.

       In his sentencing memorandum, and at his sentencing hearing, Thompson argued

that the court was not “[b]ound” to accept the career offender range, and that it should not

do so given the nature of his criminal history. See App. 22-28, 51-53. The record

reflects that the District Court considered these arguments in its sentencing decision. For

instance, after hearing both parties’ arguments on Thompson’s variance request, the

District Court observed that “considering [Thompson’s] past criminal history, the

sentence that would ordinarily have been imposed would be, I calculate, 13 to 6 times a

sentence previously imposed. I think that is an inordinate disparity.” App. 60. In its oral

statement of reasons, the court further explained that Thompson’s 110-month sentence

varied from the Guideline range due to, inter alia, “disparity from [Thompson’s] previous

sentence under his prior criminal history.” App. 63. The court later reiterated that

“consideration should be given to a variance based on the career offender status as it

overstates the criminal history and the likelihood that [Thompson] will commit future

crimes.” App. 66. While Thompson may have preferred that the District Court ignore




                                             9
the career offender Guideline in its entirety, this record satisfies us that the court did not

abuse its discretion in declining do so.5

                                              C.

       Thompson argues that his sentence is substantively unreasonable, because it is

“significantly greater than any relevant benchmark.” Thompson Br. 13, 28. A sentence

is substantively reasonable if “the record as a whole reflects rational and meaningful

consideration of the factors enumerated in 18 U.S.C. § 3553(a).” Tomko, 562 F.3d at

568 (quotation marks omitted). In this case, the District Court considered and accepted

Thompson’s primary arguments that his criminal history overstated the seriousness of his

offense, and that he posed a reduced risk of recidivism due in part to his poor physical

health. Indeed, the District Court granted a significant downward variance based on

these arguments. We cannot say that “no reasonable sentencing court would have

imposed the same sentence on [Thompson] for the reasons the [D]istrict [C]ourt

provided.” Tomko, 562 F.3d at 568.

                                              IV.

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




5
  Thompson also argues that the District Court did not “adequately” consider his
sentencing disparity argument under § 3553(a)(6) (courts must consider “the need to
avoid unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct”). Thompson Br. 25-26. For substantially the same
reasons discussed above, this argument is not persuasive.
                                              10
