                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-29-2009

USA v. Anthony Lofink
Precedential or Non-Precedential: Precedential

Docket No. 08-3204




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                               PRECEDENTIAL
       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 _____________

                     No. 08-3204
                    _____________

          UNITED STATES OF AMERICA,

                             v.

                 ANTHONY LOFINK,

                            Appellant.
                   _______________

     On Appeal from the United States District Court
               for the District of Delaware
                   (D.C. No. 08-cr-001)
      District Judge: Honorable Gregory M. Sleet
                    _______________

       Submitted Under Third Circuit LAR 34.1(a)
                   March 27, 2009

Before: RENDELL, AMBRO and JORDAN, Circuit Judges.

                 (Filed: April 29, 2009)
                   _______________
Edson A. Bostic
Tieffa N. Harper
Federal Public Defender’s Office
District of Delaware
704 King Street - #110
Wilmington, DE 19801
       Counsel for Appellant

Christopher J. Burke
David C. Weiss
U.S. Attorney’s Office
1007 N. Orange Street - #700
Wilmington, DE 19801
       Counsel for Appellee
                     _______________

                 OPINION OF THE COURT
                     _______________

JORDAN, Circuit Judge.

       The United States District Court for the District of
Delaware sentenced Defendant Anthony Lofink for his
convictions on charges of wire fraud, conspiracy to commit
wire fraud, and conspiracy to commit money laundering.
Lofink had moved for a departure from the Guidelines range
contained in the Presentence Investigation Report (“PSR”),
but the District Court denied the motion on the basis that it
had taken Lofink’s arguments into account when fashioning
his sentence. Because our precedents require district courts to
decide departure motions on their merits in order to satisfy the

                               2
requirement of procedural reasonableness, we will vacate the
sentence and remand for resentencing. In doing so, however,
we intimate no opinion as to the merits of Lofink’s departure
motion or the substantive reasonableness of the sentence the
District Court imposed.

                              I.

                              A.

       Lofink was employed as a claims processor for the
State of Delaware’s Bureau of Unclaimed Property (the
“Bureau”). The Bureau is responsible for overseeing the
transfer of unclaimed property to the State through the legal
process of escheat.1 Delaware law also allows former owners
of escheated property to file a claim for recovery with the
Bureau for the value of that property. Del. Code Ann. tit. 12,
§§ 1143, 1146.

        As a claims processor, Lofink had a number of formal
responsibilities. He sent claim forms to potential claimants
after they had contacted the Bureau, and he ensured that the
forms, when returned, were properly completed, notarized,
and accompanied by supporting documentation. Although he
had authority to approve claims for property valued at up to


  1
    Information on Delaware’s escheat law and procedures is
published electronically at
http://revenue.delaware.gov/information/Escheat.shtml (last
visited March 3, 2009).

                              3
$1,000, larger claims were supposed to require two additional
levels of review.2 Once claims were approved, Lofink would
prepare payment vouchers. Such vouchers were typically
approved by the Director or Assistant Director of the Division
of Revenue, and then the Office of the State Treasurer would
prepare checks in amounts corresponding to the approved
claims. The Bureau would receive the checks, and Lofink
was responsible for their distribution. In practice, Lofink’s
supervisors entrusted him with managerial discretion, and
their review of the claims and supporting documents was
limited.

       Between May 2005 and July 2007, Lofink fraudulently
processed and shared in the proceeds of nine false claims,
ranging in value from approximately $20,000 to $200,000 and
totaling $1,245,247.53.3 These claims, submitted by Lofink’s
co-conspirators,4 included false representations that the



  2
      See n.20, infra.
  3
   An additional false claim for approximately $350,000 was
prepared but never submitted to the Bureau and was
discovered at Lofink’s residence pursuant to a search warrant.
  4
    Lofink’s co-conspirators all pled guilty to various charges
related to the fraud. See United States v. Smith, No. 08-18-
GMS (D. Del. Sept. 11, 2008) (judgment); United States v.
Roussos, No. 08-16-GMS (D. Del. Sept. 8, 2008) (judgment),
appeal docketed, No. 08-3891 (3d Cir. Sept. 22, 2008);
United States v. Davis, No. 08-15-GMS (D. Del. July 21,

                               4
claimants were owners of stock in predecessors of Time
Warner, Inc. To ensure the claims’ success, Lofink would
forge letters from Time Warner, using as a model a genuine
letter submitted to the Bureau from Time Warner, indicating
that Time Warner had documentation to support the claim.
Lofink would also log on to the State’s computer database
using his supervisors’ passwords (at least one of which was,
conveniently, “password”) to record claim approvals without
their knowledge.

       Lofink and his co-conspirators made some effort to
structure their financial transactions to avoid detection of the
fraud, but his purchases were hardly discrete. With his ill-
gotten gain, Lofink bought drugs, expensive cars, jewelry,
clothing, and cosmetic procedures, and he entered into an
agreement with one of his co-conspirators to open a tanning
salon in New Castle, Delaware.

      Investigators eventually caught on to Lofink’s
scheme,5 and he was charged with wire fraud in violation of




2008) (judgment), aff’d, No. 08-3271, 2009 WL 679336 (3d
Cir. March 17, 2009); United States v. Sanassie, No. 08-17-
GMS (D. Del. Oct. 14, 2008) (judgment), appeal docketed,
No. 08-4282 (3d Cir. Oct. 27, 2008).
  5
   The government’s brief states that Lofink was
apprehended after the Bureau received an anonymous tip that
identified a false claimant by name. The record submitted to

                                5
18 U.S.C. § 1343, conspiracy to commit wire fraud in
violation of 18 U.S.C. § 1349, and conspiracy to commit
money laundering in violation of 18 U.S.C. § 1956. Pursuant
to a plea agreement, Lofink waived indictment and pled guilty
to all three counts.

                              B.

       The Pre-Sentence Report (“PSR”) calculated Lofink’s
base offense level as 23 for his conviction for wire fraud
involving a loss of more than $1,000,000 but not more than
$2,500,000.6 See U.S.S.G. §§ 2B1.1(a)(1), (b)(1)(I),
2S1.1(a)(1). The PSR then proposed three two-level
increases: one because Lofink was also convicted for money
laundering, see U.S.S.G. § 2S1.1(b)(2)(B); one for his role as
an organizer/leader in the criminal activity, see § 3B1.1(c);
and one for his abuse of a position of trust, see § 3B1.3.
Lofink received a three-level decrease for his acceptance of
responsibility. See § 3E1.1. The resulting total offense level
of 26, when combined with his criminal history category of I,
yielded a sentencing range of 63 to 78 months.

      Lofink objected to the position-of-trust enhancement
proposed by the PSR, arguing that he only possessed low-



us, however, does not disclose how the scheme was
discovered.
  6
  The PSR calculations are based on the 2007 version of the
Guidelines Manual.

                              6
level authority to process claims. The District Court
overruled that objection, finding that the enhancement was
appropriate under the circumstances.

       Lofink also moved for a downward departure under
§ 5K2.13 of the Guidelines. That section allows for a
downward departure if “(1) the defendant committed the
offense while suffering from a significantly reduced mental
capacity; and (2) the significantly reduced mental capacity
contributed substantially to the commission of the offense.”
The Application Note for that section defines “significantly
reduced mental capacity” as “a significantly impaired ability
to (A) understand the wrongfulness of the behavior
comprising the offense or to exercise the power of reason; or
(B) control behavior that the defendant knows is wrongful.”
§ 5K2.13, appl. note 1. In his motion, Lofink, who was 30-
years old at sentencing, provided a troubling account of his
childhood, detailing allegations of verbal and physical abuse
by his father against him and his mother. Dr. James Walsh, a
mental health counselor who met with Lofink prior to
sentencing, opined that the alleged abuse resulted in Lofink’s
depression, Attention Deficit/Hyperactivity Disorder, and
antisocial behavior.

        According to Lofink and Dr. Walsh, Lofink initially
found a relatively healthy outlet through sports, but he
eventually replaced that with alcohol and cocaine. Dr. Walsh
suggested that, although sober during most of the conduct at
issue in the case, Lofink at some point became a “dry drunk.”



                              7
(D.I. 21,7 Ex. A at 7.) Dr. Walsh likened Lofink’s condition
to a pathological gambling disorder: he craved the emotional
and physical “rush” he felt while furthering his illegal
conduct. That rush, Lofink contended, when combined with
his prior depression and psychiatric disorders, resulted in a
“significantly reduced mental capacity that substantially
contributed to the instant offense.” (D.I. 21 at 18.) 8

        At the sentencing hearing, the District Court
summarily denied Lofink’s departure motion. Addressing
what has become the central problem in this appeal, the Court
stated in effect that it was not required to rule on the merits of
departure motions. It noted that its general practice was to
consider arguments for a Guidelines departure as part of its
evaluation of the sentencing factors set forth in 18 U.S.C.
§ 3553(a).




  7
  Lofink’s departure motion is docket item 21 in the District
Court, which we refer to as “D.I. 21.”
  8
    In apparent conflict with the “dry drunk” theory that
Lofink was addicted to the thrill of crime, Lofink included in
his motion a separate report by a different doctor that
concluded that “during the time period that the offenses took
place, Mr. Lofink was suffering from alcohol and cocaine
abuse and related behavioral problems which served as the
underpinning to, and the driving force behind, his behaviors
in connection with the offense.” (D.I. 21, Ex. B at 6.)

                                8
       The Court then heard arguments pursuant to § 3553(a)
regarding a variance from the Guidelines range. Lofink’s
counsel contended that the arguments made in support of a
departure also supported a downward variance, as did
Lofink’s cooperation and acceptance of responsibility. The
government countered that a sentence at the low end of the
Guidelines range would be appropriate, noting that Lofink’s
childhood, while difficult in some respects, was not that
different from many other defendants’.

       Before determining Lofink’s sentence, the District
Court again explained its process for dealing with departure
motions.

         THE COURT: I am mindful of U.S. v.
         Gunter,[ 9 ] and, of course, the Third Circuit’s
         three-step approach that we must consider in
         sentencing and utilize. The Court is calculating
         the Guideline range, ruling on departure
         motions and stating how the ruling affects the
         Guideline calculation and exercising discretion
         by considering the relevant 3553(a) factors.

         The Court will deny, as I ... already have, again,
         the defendant’s motions, because the Court has
         taken the defendant’s conduct, upbringing,
         history, addiction, and other circumstances and
         characteristics into account in considering and


  9
      462 F.3d 237 (3d Cir. 2006).

                                 9
       applying the 3553(a) factors to the
       circumstances of this case.

       Although the Court understands that pre-Booker
       case law continues to have advisory force, the
       Court nevertheless rejects the Koon-type
       analysis[ 10 ] as briefed by the parties, because in
       this Court’s view that analysis is inconsistent
       with the Supreme Court’s ruling in U.S. v.
       Booker. As it has stated in the past, this Court
       finds that conducting this type of analysis
       effectively eviscerates judges’ discretion and
       shifts sentencing back towards the pre-Booker
       mandatory Guideline regime.

       That being said, it bears repeating that the Court
       has taken all factors raised by the parties into
       consideration in applying Section 3553(a) to the
       particular circumstances and characteristics of
       this particular case and this particular defendant.

(App. at 112-13.)



  10
     Compare Koon v. United States, 518 U.S. 81, 92 (1996)
(“A district judge ... must impose on a defendant a sentence
falling within the range of the applicable Guideline, if the
case is an ordinary one”), with United States v. Booker, 543
U.S. 220, 246 (2005) (making the Guidelines system
advisory).

                               10
        The Court ultimately sentenced Lofink to 60 months’
imprisonment, three months below the low end of the
Guidelines range. The sentence also included three years’
supervised release, restitution in the amount of $1,245,247.53,
to be paid jointly and severally with his co-conspirators, and
forfeiture of property acquired with the stolen funds.

       In reaching its sentence, the District Court formally
addressed a number of the factors laid out in 18 U.S.C. §
3553(a). The Court noted the complexity of the scheme,
Lofink’s central role in it, and the increasing dollar amounts
involved in each false claim. It also acknowledged Lofink’s
difficult childhood, but found that he enjoyed advantages and
privileges, such as an education at a prestigious private high
school and a college scholarship. The Court also recognized
that Lofink began cooperating with authorities once the
scheme was discovered.

       Turning to Dr. Walsh’s theory of addiction, the Court
found that Lofink retained the understanding of right and
wrong and that Lofink’s “careful, calculated ... fraud,
executed over more than two years and coordinated with
others, reflect[ed] focus, premeditation, and self-mastery,” all
of which undercut his arguments for leniency. (App. at 119-
20.) Instead, the Court observed, Lofink “had enough self-
control not to gamble too often” and was motivated “by
simple greed and a desire for the hundreds of thousands of
dollars that [he] acquired to pay for the ... jewelry, the cars,
the partying, the cosmetic procedures, [and] the drugs.” (App.
at 120.) The Court also highlighted Lofink’s addiction to
drugs and alcohol. It concluded that the factors Lofink relied

                              11
on to support a reduced sentence did not justify a “substantial
reduction.” (App. at 121.)

       Lofink timely appealed his sentence, arguing that the
District Court’s analysis was contrary to our precedent.11 The
government concedes that the District Court’s treatment of
Lofink’s departure motion did not comply with our decision
in Gunter. Nonetheless, it argues that the District Court did
not commit reversible error because it engaged in a full
discussion of the merits of the departure motion in its analysis
of the § 3553(a) factors and clearly substantiated its decision
to deny the departure.

                               II.

                               A.

        We employ an abuse-of-discretion standard when
reviewing the procedure a district court follows in sentencing
a defendant. Gall v. United States, -- U.S. --, 128 S.Ct. 586,
597 (2007). We have noted that the standard can have
differing consequences, depending on context: for example,
we give no deference to legal conclusions and great deference
to factual ones. United States v. Wise, 515 F.3d 207, 217 (3d
Cir. 2008). It is not that our standard of review changes with
the issue raised. It is rather the amount of discretion vested in
the District Court that varies, based on whether the asserted


  11
   We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a).

                               12
procedural error is grounded in law or in fact or in some
mixture of the two. Id. at 217 and n.5. As the government
acknowledges, the District Court’s decision to deny Lofink’s
motion to depart was based on a purely legal conclusion,
namely that departure motions need not be ruled on if the
departure arguments are considered in conjunction with a
review of the § 3553(a) sentencing factors. Thus, the District
Court’s discretion was limited by existing precedents on
sentencing procedures.

                              B.

        Prior to the Supreme Court’s decision in Booker,
district courts could depart from a given Guidelines range
only when “encouraged” bases for departure were present, as
provided by the Guidelines, or in other “‘exceptional’”
situations. Koon, 518 U.S. at 95 (quoting 1995 U.S.S.G. ch.
5, pt. H, intro. comment). Thus, defendants would typically
move for departures in the district court with the hope of
obtaining a below-Guidelines sentence. See, e.g., United
States v. McBroom, 124 F.3d 533, 539 (3d Cir. 1997)
(acknowledging defendant’s motion for downward departure
based on significantly reduced mental capacity).

        In Booker, however, the Supreme Court announced
that the Guidelines are advisory only. 543 U.S. at 246. Since
then, we have provided district courts with the following
three-step process for incorporating adequate consideration of
the Guidelines into their sentencing procedures:



                              13
       (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[12 ] in setting the sentence they


12
     The § 3553(a) factors are,

       (1) the nature and circumstances of the offense and the
       history and characteristics of the defendant;
       (2) the need for the sentence imposed–
               (A) to reflect the seriousness of the offense, to
               promote respect for the law, and to provide just
               punishment for the offense;
               (B) to afford adequate deterrence to criminal
               conduct;
               (C) to protect the public from further crimes of
               the defendant; and
               (D) to provide the defendant with needed
               educational or vocational training, medical care,

                               14
impose regardless whether it varies from the
sentence calculated under the Guidelines.


        or other correctional treatment in the most
        effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range
established for–
        (A) the applicable category of offense
        committed by the applicable category of
        defendant as set forth in the guidelines–
                (i) issued by the Sentencing Commission
                ..., subject to any amendments made to
                such guidelines by act of Congress ...;
                and
                (ii) that, except as provided in section
                3742(g), are in effect on the date the
                defendant is sentenced; ...
(5) any pertinent policy statement–
        (A) issued by the Sentencing Commission ...,
        subject to any amendments made to such policy
        statement by act of Congress ...; and
        (B) that, except as provided in section 3742(g),
        is in effect on the date the defendant is
        sentenced[;]
(6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been
found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the
offense.

                       15
Gunter, 462 F.3d at 247 (internal quotation marks and
citations omitted). The Supreme Court’s recent decision in
United States v. Gall, -- U.S. --, 128 S.Ct. 586 (2007),
cemented the first and third steps in that procedure, see id. at
596, and further clarified that a district court must consider all
of the § 3553(a) factors.13 As departure was not an issue in
that case, the opinion did not consider the second step. Our
precedent, however, clearly requires that district courts
engage in the second step—ruling on departure
motions—“[a]s a part of calculating the applicable range.”
Wise, 515 F.3d at 216.14     In United States v. Jackson we


  13
    Although district courts must consider all of the § 3553(a)
factors, they need not explicitly comment on every factor if
“‘the record makes clear the court took the factors into
account in sentencing.’” United States v. Howe, 543 F.3d
128, 137 (3d Cir. 2008) (quoting United States v. Parker, 462
F.3d 273, 278 (3d Cir. 2006)).
  14
    Under our post-Booker jurisprudence, we call the altering
of a Guidelines range at step two of the sentencing process a
“departure.” See United States v. Floyd, 499 F.3d 308, 311
(3d Cir. 2007). A departure is based on reasons provided by
the Guidelines themselves. United States v. Jackson, 467
F.3d 834, 837 n.2 (3d Cir. 2006). We call a sentence that
diverges from the final Guidelines range—which, because of
a departure at step two, may be different from the original
Guidelines range—a “variance.” Floyd, 499 F.3d at 311. A
variance is based on the court’s consideration of the § 3553(a)
factors. Gunter, 462 F.3d at 247 n.10. Although we have not

                               16
highlighted the importance of ruling on departure motions, as
called for by Gunter’s second step:

       Not for jurisdictional reasons, but rather
       because the Guidelines still play an integral role
       in criminal sentencing, ... we require that the
       entirety of the Guidelines calculation be done
       correctly, including rulings on Guidelines
       departures. Put another way, district courts
       must still calculate what the proper Guidelines
       sentencing range is, otherwise the Guidelines
       cannot be considered properly at Gunter’s third
       step. The scenario is simple: error entering this
       sentencing step may presage the sentence
       ultimately set.




required district courts to use these terms, we have noted that
their use assists our review. See Jackson, 467 F.3d at 837 n.2.

                              17
467F.3d at 838-39 (internal citations and footnote omitted).15
Indeed, the need to consider all of the § 3553(a) factors, one
of which is the applicable Guidelines range, see § 3553(a)(4),


  15
      In Jackson we also noted that six of our sister circuits
“essentially employ the same approach to departures as we
do,” in contrast to the two circuits that have held departure
motions to be obsolete in the wake of Booker. 467 F.3d at
838 n.5 (collecting cases); see also United States v. A.B., 529
F.3d 1275, 1286 (10th Cir. 2008) (acknowledging that Tenth
Circuit caselaw might require the three-step approach).
Although the parties do not question our approach, we further
observe here that four of those circuits, like us, have indicated
that ruling on departure motions is part of correctly
calculating the Guidelines range. See United States v.
Wallace, 461 F.3d 15, 32 (1st Cir. 2006) (“Once the
sentencing court has established the GSR (including a
consideration of any applicable departures), it must then
evaluate the sentencing factors set out in 18 U.S.C. § 3553(a)
... .”) (quotation omitted); United States v. McBride, 434 F.3d
470, 476 (6th Cir. 2006) (“Within this Guideline calculation is
the determination of whether a Chapter 5 departure is
appropriate.”); United States v. Fuller, 426 F.3d 556, 562 (2d
Cir. 2005) (“[W]e consider here whether the District Court, in
calculating the applicable Guidelines sentence, erred in
applying a four-level upward departure ... .”); United States v.
Davis, 478 F.3d 266, 273 (5th Cir. 2007) (“[A] sentence that
includes an upward or downward departure as allowed by the
Guidelines ... is also a Guidelines sentence ... .”) (quotation
omitted).

                               18
is frustrated when a sentencing court fails to expressly rule on
the merits of a departure motion. While it may occasionally
occur that an appellate panel can infer that a sentencing court
exercised its discretion not to depart—Jackson happened to be
such a case—we have noted that having to infer what a
district court decided is “not our preferred course.” 467 F.3d
at 840 (quotation omitted).

       In United States v. King, 454 F.3d 187 (3d Cir. 2006),
we faced a situation with some similarities to the present case.
The government moved for a five-level upward departure
based on severe non-economic harm to the victim under
U.S.S.G. § 2F1.1. Id. at 190. The district court, stating that it
was “‘not sure that motions for upward departure [were]
relevant in the post[-]Booker era,’” did not consider the
motion directly but instead considered the arguments in
making its final sentence determination.16 Id. at 190. We
affirmed the sentence, which was nearly double the top of the
Guidelines range, because the record demonstrated that the
District Court would have granted the motion to depart
upward had it known that it was still obligated to rule on
departure motions. Id. at 196. We cautioned, however, that
there remained a “requirement to ‘consider’ the Guidelines by
calculating a Guidelines sentence as [district courts] would
have before Booker, including formally ruling on the motions


  16
    The district court sentenced the defendant just six weeks
after the Supreme Court issued its opinion in Booker and so
was proceeding without the precedents that have issued in the
post-Booker period. Id. at 196.

                               19
of both parties and stating on the record whether they are
granting a departure and how that departure affects the
Guidelines calculation.” Id.

                              C.

        No one disputes that the District Court here chose to
forgo ruling directly on the merits of Lofink’s motion for a
departure. The Court clearly stated, twice, that it denied
Lofink’s motion because it had a general practice of not
separately considering departure motions. Instead, it had
formulated a practice of considering departure arguments
while applying the sentencing factors in § 3553(a). The
government argues that this case is like King because, while
the District Court’s reason for denial may have been
erroneous, its decision to deny was correct. That argument
fails for two reasons. Most basically, we were careful to note
in King that we were reviewing the sentence under a plain
error standard. Id. at 193. That is simply not the posture of
this case. More importantly, King was decided at a time when
sentencing practices were, in the wake of Booker,
unavoidably in flux. King does not permit district courts to
establish sentencing practices that conflict with our now well-
established sentencing precedents.

        The government also contends that the District Court
“simply deferred its discussion of the substantive aspects of
Defendant’s departure request until Step Three and then fully
explained the substantive reasons for denying the motion.”
(Answering Brief at 31.) There are several difficulties with
that argument.

                              20
        First, as a practical matter, a district court’s discussion
at the variance stage does not necessarily shed light on what it
would have done at the departure stage. District courts have
greater leeway in deciding what to consider in determining
whether to vary from the Guidelines. See Jackson, 467 F.3d
at 842 n.8 (“‘[M]any of the very factors that used to be
grounds for a departure under the Guidelines are now
considered by the district court-with greater latitude-under
section 3553(a).’” (quoting McBride, 434 F.3d at 476)).17 By
their nature, the Guidelines are highly structured, and the
more free-ranging approach permitted at Gunter’s Step Three
is unlikely to answer all of the questions that must be
answered at Step Two.

        Second, and a specific example of the general problem
just mentioned, even assuming that the District Court here
simply deferred its discussion of why it denied Lofink’s
departure motion, we are unable to determine whether the
Court denied the motion because it concluded there was no
basis to grant it under § 5K13.2 or because the Court was
exercising its discretion. That determination matters because
we are not at liberty to review a discretionary denial. See
Jackson, 467 F.3d at 839 (“[A]s it was pre-Booker, courts of


  17
    The Supreme Court has given wide latitude to district
courts to vary from the Guidelines range under § 3553(a),
most recently in Spears v. United States, -- U.S. --, 129 S.Ct.
840 (2009). But it has not extended that latitude to a district
court’s procedure for determining the advisory Guidelines
range.

                                21
appeals post-Booker[] have no authority to review
discretionary denials of departure motions in calculating
sentencing ranges.”). Unlike in Jackson, the government here
argued to the District Court that Lofink was not eligible for a
reduced mental capacity departure. In King, too, there was no
question that the ground for an upward departure—the
extensive non-economic harm to the victim of the defendant’s
“identity theft”—was cognizable under the Guidelines. See
454 F.3d at 191 (describing harm to include spending over
500 hours protesting charges, changing name on driver’s
license, contesting unpaid car loans and parking tickets,
suffering enduring anxiety, and having difficulty engaging in
ordinary commercial transactions). In this case, by contrast,
the District Court’s basis for denial is unclear. On one hand,
the Court noted Lofink’s drug and alcohol abuse (App. at
119), which ordinarily would make him ineligible for a
§ 5K2.13 departure. See U.S.S.G. § 5K2.13 (“[T]he court
may not depart below the applicable guideline range if ... the
significantly reduced mental capacity was caused by the
voluntary use of drugs or other intoxicants ... .”) On the other
hand, the Court decided that Lofink retained his capacity to
distinguish right from wrong and the ability to control his
actions (App. at 119-20), and further that the issues Lofink
advanced in support of a finding of reduced capacity,
including his “difficult childhood and struggles with drugs
and alcohol[,]” did not justify a substantial reduction (id. at
121), all of which may imply a discretionary ruling.18


  18
   We express no opinion as to whether Lofink’s condition
was of a type that is cognizable as a significantly reduced

                              22
        Third, the government’s deferral argument is also
suspect because the District Court distinguished the cases on
which Lofink relied in his departure motion by referencing
the need to avoid unwarranted sentencing disparities, pursuant
to § 3553(a)(6). According to the Court, “the sentences in
those cases were based on those defendants’ distinct
circumstances, in some instances many years of public
service, or substantively different offenses at issue, or more
complete restitution or much smaller amounts of stolen
property or funds than the case now before me and the
defendant now before me.” (App. at 121.) That discussion,
while entirely appropriate in the context of § 3553(a)(6), does
not tell us what the Court would have done if it had focused
on § 5K2.13 when reviewing and ruling on Lofink’s
arguments for departure.

        This, finally, is the most troubling point. If we are to
assume, as the government asks, that a departure ruling is
implicit in the Step Three discussion by the District Court, we
are left to guess how the Court arrived at its sentence. It
decided that some aspect of Lofink’s case warranted a
sentence below the original Guidelines range. Although it
indicated that Lofink’s departure arguments were undercut by
a number of facts and that the arguments did not justify a
“substantial reduction,” it did not conclude that no reduction
was warranted. (App. at 121.) Similarly, although the
government emphasizes to us the District Court’s statements
that Lofink appeared to have maintained self-control and the


mental capacity under § 5K2.13.

                              23
understanding of right and wrong, the Court also suggested
that “substance abuse and addictive personality
characteristics” might explain “some of the motivation behind
[Lofink’s] decision to commit these crimes.” (App. at 119.)

        Given those statements, as well as the below-
Guidelines sentence, it may be that, had the District Court
separately ruled on Lofink’s departure motion directly, it
would have granted the motion and effected it through a
minimal reduction to the Guidelines range.19 We do not
suggest that the Court was likely to have done that—it
probably was not—and we certainly do not suggest that it
should have done that. We note only that, on this record and
in the absence of an explicit ruling at Step Two, we do not
know whether the defendant had the benefit of the District


  19
    Section 5K2.13 does not dictate how district courts are to
effect a departure, except that “the extent of the departure
should reflect the extent to which the reduced mental capacity
contributed to the commission of the offense.” See, e.g.,
United States v. Checoura, 176 F. Supp. 2d 310, 315 (D.N.J.
2001) (departing downward only two offense levels on basis
of defendant’s pathological gambling addiction because
defendant was not “entirely blameless”); United States v.
Menyweather, 447 F.3d 625, 632 (9th Cir. 2006) (affirming
eight-level downward departure for, among other things,
defendant’s “compulsive acquisition behavior”); cf. Floyd,
499 F.3d at 312 n.6 (suggesting that “courts have latitude in
choosing their methodology” in determining how to effect a
departure for substantial assistance under § 5K1.1).

                             24
Court’s consideration of the applicable Guidelines range at
the time the Court was fashioning the sentence it imposed.
See § 3553(a)(4) (requiring sentencing court to consider the
Guidelines range).

       That deprivation was not harmless. For example, had
the court granted a one-level reduction to the offense level,
the Guidelines range would have been 57-71 months. Had the
government maintained its argument that the § 3553(a) factors
suggested a sentence at the low end of the Guidelines range,
Lofink might have received a three-month lower sentence
without any variance. Had the District Court felt a variance
was still warranted, as it seemed to suggest was appropriate
due to Lofink’s assistance to law enforcement authorities, his
sentence might have been lower still.

       Of course, Lofink might well have received the same
sentence even had the District Court decided the merits of his
departure motion at Step Two. But we cannot tell, and thus,
despite our respect for the thoughtful consideration the
District Court invested in this case, we cannot endorse the
procedure it adopted.20


  20
    Lofink also challenges the District Court’s decision to
apply the two-level sentencing enhancement for abuse of trust
pursuant to U.S.S.G. § 3B1.3. We will not disturb the Court’s
decision on that point. Even though Lofink’s position only
gave him official authority to approve small-dollar claims
without further review, Lofink clearly occupied a de facto
position of trust. See United States v. Thomas, 315 F.3d 190,

                              25
                             III.

      For the reasons stated, we will vacate the sentence and
remand for resentencing.




204 (3d Cir. 2002) (determining a position of trust requires
looking beyond job title to consider “real scope of
[defendant’s] job”). The Bureau trusted Lofink to handle
claims, including their processing and the evaluation of their
merit. Even as to claims that required additional levels of
review, Lofink’s supervisors in fact delegated much of the
approval responsibility to Lofink and were not likely to
closely scrutinize claims. Lofink’s knowledge of the
Bureau’s procedures allowed him to prepare claims that were
almost certain to succeed and, therefore, he had, in
practicality, direct access to the funds. Lofink’s ability to
maintain his fraudulent scheme for over 30 months and
withdraw sums adding up to $1.25 million provides adequate
support for the District Court’s conclusion that Lofink abused
his position of trust in order to commit his crimes.

                             26
