                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 10-4703
                                     ____________

                           UNITED STATES OF AMERICA

                                            v.

                                      JOHN HILL,

                                       Appellant
                                     ____________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              (D.C. No. 2-08-cr-00347-001)
                    District Judge: Honorable Michael M. Baylson
                                     ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   March 20, 2012

            Before: RENDELL, FISHER and CHAGARES, Circuit Judges.

                                 (Filed: April 27, 2012)
                                     ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

      John Hill appeals from a judgment of conviction and sentence in the U.S. District

Court for the Eastern District of Pennsylvania. He claims that the District Court erred by

imposing a sentence above the Guidelines range without following proper sentencing
procedures. We agree, and for the reasons stated below we will vacate his sentence and

remand for resentencing.

                                             I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       On June 4, 2008, John Hill (“Hill”) and his brother, James Hill, were arrested for

the June 26, 2007 armed robbery of Ten Styles for Men Shop in Philadelphia,

Pennsylvania. On June 12, 2008, a grand jury returned a multi-count indictment,

charging the Hill brothers with conspiracy to interfere with interstate commerce by

robbery, in violation of 18 U.S.C. § 1951(a) (Count One); interference with interstate

commerce by robbery, and aiding and abetting, in violation of 18 U.S.C. § 1951(a) and 2

(Count 2); and using and carrying a firearm during a crime of violence, and aiding and

abetting, in violation of 18 U.S.C § 924(c)(1) and 2 (Count Three).

       On November 23, 2010, John Hill entered a plea of guilty to all charges pursuant

to a plea agreement. Hill generally waived his rights to appeal, but retained the right to

appeal where he claimed, inter alia, that the District Court erroneously departed upwards

or imposed an unreasonable sentence above the Sentencing Guidelines range.

       At sentencing on December 16, 2010, the District Court found that Hill’s offense

level was 19, based on the computations in the Presentence Investigation Report (“PSR”).


                                              2
The PSR stated that Hill’s base offense level for a violation of 18 U.S.C. § 1951(a) under

U.S.S.G. § 2B3.1 was 20. The PSR then computed a three-level decrease for early

acceptance of responsibility, under U.S.S.G. § 3E1.1(a) and (b), and two-level increase

for physically restraining the victims, under U.S.S.G. § 2B3.1(b)(4)(B), yielding an

adjusted offense level of 19. The government acknowledged at sentencing that the PSR

incorrectly stated that Hill was a career offender. Accordingly, the District Court found

that the PSR should be revised, and calculated Hill’s criminal history category as V, but it

did not calculate the applicable Guidelines range.

       Next, the government moved for a one-level downward departure for substantial

assistance under U.S.S.G. § 5K1.1. The District Court approved the government’s

motion, but did not calculate the resulting Guidelines range. Finally, the District Court

heard arguments from each of the parties, and then sentenced Hill to 96 months’

imprisonment on Counts One and Two, to be served concurrently, and to 84 months on

Count Three to be served consecutively, for a total term of 180 months. The District

Court also sentenced Hill to a five-year term of supervised release, and imposed a fine of

$5,000, restitution of $2,225, and a special assessment of $300. Hill timely appealed on

December 20, 2010.

                                            II.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District


                                             3
Court’s interpretation of the Sentencing Guidelines, and review factual findings for clear

error. United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc). We review

sentences for both procedural and substantive reasonableness, applying an abuse of

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

We need not consider the government’s argument that Hill failed to preserve the issue of

procedural reasonableness, because even under a plain error standard of review we would

reverse.

                                             III.

       District courts must follow a three-step process at sentencing. First, “the court

calculates the applicable Guidelines range.” United States v. Wright, 642 F.3d 148, 152

(3d Cir. 2011) (citing Tomko, 562 F.3d at 567). Second, “the court considers any motions

for departure and, if granted, states how the departure affects the Guidelines calculation.”

Id. (citing Tomko, 562 F.3d at 567). Third, “the court considers the recommended

Guidelines range together with the statutory factors listed in 18 U.S.C. § 3553(a) and

determines the appropriate sentence, which may vary upward or downward from the

range suggested by the Guidelines.” Id. (citing Tomko, 562 F.3d at 567).

       A district court commits “significant procedural error” if it “fail[s] to adequately

explain the chosen sentence [such as failing to] includ[e] an explanation for a[] deviation

from the Guidelines range.” Tomko, 562 F.3d at 567 (quoting Gall v. United States, 552

U.S. 38, 51 (2007)). “[D]istrict courts should be careful to articulate whether a sentence


                                              4
is a departure or a variance from an advisory Guidelines range.” United States v. Brown,

578 F.3d 221, 226 (3d Cir. 2009) (quoting United States v. Vampire Nation, 451 F.3d

189, 198 (3d Cir. 2006)).

       Here, the District Court committed significant procedural error when it sentenced

Hill to 96 months on Counts One and Two without explaining how it arrived at the

sentence or why it deviated from the Guidelines range. 1 Pursuant to the first step in the

sentencing procedure, the District Court should have calculated Hill’s Guidelines range to

be 57 to 71 months, based on an adjusted offense level of 19 and a criminal history

category of V. However, the District Court failed to calculate any initial Guidelines

range at all.

       Furthermore, the District Court failed to calculate how departures affected the

Guidelines calculation, so that we must speculate as to its reasoning. The one-level

downward departure the District Court granted under § 5K1.1 should have yielded a

Guidelines range of 51 to 63 months. However, the District Court also imposed the

equivalent of a five-level upward departure without explaining if it was applying an

upward departure pursuant to U.S.S.G. § 4A1.3 or an upward variance pursuant to

§ 3553(a). It merely stated that “[Hill’s] criminal history is not fully recognized by the

applicable Sentencing Guideline,” a statement which does not clarify which procedure it

used. Furthermore, the application of either procedure in this case required a more

       1
       The consecutive sentence of 84 months on Count Three is not at issue, because
84 months was the mandatory minimum.

                                             5
thorough justification than the conclusory one the District Court supplied. If the District

Court departed upward under § 4A1.3, it should have “ratcheted” up, by “determin[ing]

which category . . . best represents the defendant’s prior criminal history” and then

“proceed[ing] sequentially through these categories.” United States v. Hickman, 991

F.2d 1110, 1114 (3d Cir. 1993). 2 If the District Court instead applied a variance, as it

stated in the statement of reasons appended to the judgment, it should have explained

why it “deviated significantly from the Guidelines” and given “a thorough justification of

the sentence,” including its consideration of “the need to avoid unwarranted sentencing

disparities among similarly situated individuals” under § 3553(a). United States v.

Negroni, 638 F.3d 434, 446 (3d Cir. 2011). The District Court did neither.

       In sum, we are left “unable to review the procedural and substantive bases of the

sentence—[which] is an error that is plain, that affects the substantial rights of the parties,

and that could seriously affect the fairness, integrity or public reputation of judicial

proceedings.” United States v. Fumo, 655 F.3d 288, 309 (3d Cir. 2011) (internal

quotation marks and citation omitted). We will vacate the sentence on the basis of these

significant procedural errors, and need not reach the issue of substantive reasonableness.

See Tomko, 562 F.3d at 567.




       2
        It also should have given “reasonable notice that it [wa]s contemplating such a
departure” pursuant to Federal Rule of Criminal Procedure 32(h).

                                               6
                                         IV.

      For the foregoing reasons, we will vacate the sentence and remand for

resentencing.




                                          7
