                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                      No. 10-2997
                                     _____________

                               UNITED STATES OF AMERICA

                                            v.

                                    FRANK B. AZAN,

                                        Appellant
                                     _____________

                     On Appeal from the United States District Court
                               for the District of Delaware
                                    (No. 1:08-cr-114-3)
                      District Judge: Honorable Gregory M. Sleet

                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    March 22, 2012
                                    ____________

               Before: RENDELL, FISHER, CHAGARES, Circuit Judges.

                                   (Filed: May 16, 2012)
                                       ____________

                                       OPINION
                                      ___________

CHAGARES, Circuit Judge.

       Frank B. Azan appeals his sentence of 24 months of incarceration. For the reasons

that follow, we will affirm.
                                              I.

       Because we write solely for the parties, we recite only those facts necessary for

our disposition. Prior to the events that led to this appeal, Azan was employed at Bank of

America as a senior credit analyst and business card representative. In 2007, Azan began

associating with his codefendant Arthur Ishkanian (“Ishkanian”). Ishkanian asked Azan

to help his “customers,” who were supposedly small business owners, to obtain an

increase on their credit lines at FIA Card Services N.A., a subsidiary of Bank of America.

After Azan fraudulently increased the credit lines on their business and personal

accounts, the “customers” withdrew the full amount of cash that was authorized and did

not pay it back. Initially, Azan increased the credit lines himself, but he later recruited

his codefendant Frank McCann to assist in the scheme by increasing existing credit lines.

From July 2007 through January 2008, McCann increased the credit lines on several

hundred accounts. McCann and Azan were compensated by Ishkanian for performing

these tasks. The total loss incurred by Bank of America was $7,776,694.

       In February 2008, Azan was discharged from his position with Bank of America

after the bank discovered his fraudulent activities. When he was contacted by federal

authorities, he immediately confessed and, for two years, cooperated with the

Government in its attempt to apprehend Ishkanian, who was a fugitive. In particular,

Azan helped the Government by meeting with federal prosecutors and agents from the

Federal Bureau of Investigation when needed, participating in numerous recorded

telephone conversations, persuading Ishkanian to attend a wedding in Florida so that

federal authorities could arrest him, being present in the vehicle with Ishkanian when he

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was apprehended in Florida, and appearing at Ishkanian’s sentencing in case his

testimony was needed.

      In February 2009, Azan pled guilty to one count of conspiracy to commit bank

fraud in violation of 18 U.S.C. § 1344. The United States Sentencing Guidelines range

for Azan’s offense was 78 to 97 months. Prior to sentencing, the Government moved

under U.S.S.G. § 5K1.1 for a downward departure to 24 to 30 months due to Azan’s

extraordinary cooperation. In addition, Azan filed a sentencing memorandum seeking a

downward variance based on the factors set forth in 18 U.S.C. § 3553(a). In particular,

Azan emphasized that he had worked for Bank of America for thirteen years before he

was discharged, earning regular promotions and excellent performance ratings. He

submitted thirteen character reference letters describing him as a hard-working man, a

trusted friend, and a loving son and brother. Azan had not previously engaged in

criminal conduct and his attorney argued that Azan had fallen prey to Ishkanian.

Additionally, Azan maintained that his assistance to the Government exceeded the

normal assistance given in federal white collar cases and even placed him in danger.

      The District Court sentenced Azan to 24 months of incarceration, three years of

supervised release, and $7,776,694 in restitution for which he and his codefendants were

jointly and severally liable. The District Court granted the Government’s motion for a

downward departure but did not specify how the motion would affect Azan’s sentence.

The Court went on to consider the nature of the scheme that Azan and his co-defendants

had engaged in and Azan’s personal characteristics, in particular, his “impressive work

history” and letters of support. Appendix (“App.”) 13. The Court emphasized the

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seriousness of the offense and Azan’s participation in its commission. Although the

Court found that Azan had otherwise lived an “exemplary life” and that the offense was

“out of character,” it rejected Azan’s claim that he was a “naïve member of the

conspiracy” and had “merely exercised poor judgment in committing this offense.” Id.

19-20, 16-17. After explicitly considering the § 3553(a) factors, the Court concluded: “I

believe that your specific circumstances warrant the following sentence, which in my

view strikes the appropriate balance among all of the 3553 factors[.]” Id. 21.

                                            II.

       We review the procedural and substantive reasonableness of a District Court’s

sentence for an abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007).1 After

United States v. Booker, 543 U.S. 220 (2005), the District Courts must follow a three-

step sentencing process:

       (1) Courts must continue to calculate a defendant’s Guidelines sentence
       precisely as they would have before Booker.

       (2) In doing so, they must formally rule on the motions of both parties and
       state on the record whether they are granting a departure and how that
       departure affects the Guidelines calculation, and take into account [our]
       Circuit’s pre-Booker case law, which continues to have advisory force.

       (3) Finally, they are required to exercise their discretion by considering the
       relevant § 3553(a) factors, in setting the sentence they impose regardless
       whether it varies from the sentence calculated under the Guidelines.

United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006) (quotation marks and citations

omitted). With respect to the substantive reasonableness of the sentence, “we will affirm


1
  The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231 and we
have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                             4
[the sentence] 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. Wright, 642 F.3d 148, 152 (3d Cir. 2011) (quoting United States v. Tomko, 562

F.3d 558, 568 (3d Cir. 2009) (en banc)). The defendant bears the burden of showing

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

Court’s decision to give mitigating factors less weight than the defendant believes they

deserve does not render the sentence unreasonable. Id. at 546.

                                              III.

       It is well-settled that we lack jurisdiction to review the extent of a District Court’s

discretionary downward departure for substantial assistance pursuant to U.S.S.G. § 5K1.1

so long as the District Court properly understood its authority to consider the departure

motion. United States v. King, 604 F.3d 125, 141 n.9 (3d Cir. 2010). Accordingly, Azan

appeals only the extent of the District Court’s discretionary downward variance based on

the § 3553(a) factors. That analysis is somewhat elusive in this case because the Court

granted the Government’s § 5K1.1 motion but did not specify how much or whether it

intended to further vary the sentence based on the § 3553(a) factors. Azan argues that the

sentencing court should have stated specifically which portion of the downward

sentencing adjustment was attributed to the requested departure and which was

attributable, if any, to the requested variance.

       Azan’s argument implicates United States v. Lofink, 564 F.3d 232, 238-39 (3d

Cir. 2009), in which this Court articulated that, pursuant to the analysis set forth in United

States v. Gunter, 462 F.3d at 247, the sentencing court must decide the merits of

                                               5
departure motions separately from its resolution of variance requests based on the

§ 3553(a) factors. If a court grants a departure motion, it must state on the record that it

is granting the motion and specify the new Guidelines range before assessing the

§ 3553(a) factors. Id. at 239; Gunter, 462 F.3d at 247.

       This case is distinguishable from Lofink, however, because in that case the District

Court had declined altogether to rule on the departure motion and had conflated steps two

and three in the Gunter analysis. See Lofink, 564 F.3d at 239-40. Here, the District

Court explicitly stated that it was granting the Government’s departure motion, which

sought a departure down to 24 to 30 months, and then separately went through the

§ 3553(a) factors to explain why the sentence it chose was appropriate. It is clear from

the record that, once the Court granted the Government’s motion, the Court understood

the new advisory Sentencing Guidelines range to be 24 to 30 months. In turn, the Court’s

choice of a sentence at the lowest end of that range was clearly determined by its

consideration of the applicable § 3553(a) factors. We conclude, therefore, that the

District Court made no procedural error.

       We also conclude that Azan’s sentence was substantively reasonable. Although

Azan was a first-time offender and had many letters of support, the Court appropriately

emphasized the gravity of his offense and his substantial involvement therein. In

particular, the Court’s sentence is reasonable in light of the astounding amount of money

that Bank of America lost as a result of Azan’s scheme, Azan’s abuse of his employer’s

trust, and Azan’s recruitment of McCann. Additionally, because granting the

Government’s motion resulted in a considerable departure from the advisory Sentencing

                                              6
Guidelines range due to Azan’s substantial cooperation, it was not unreasonable for the

District Court to decline to depart further based on that cooperation.

                                             IV.

         For those reasons, we hold that the District Court’s sentence was both

procedurally and substantively reasonable and we will affirm the sentence of the District

Court.




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