                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0297n.06

                                            No. 09-3929
                                                                                         FILED
                           UNITED STATES COURT OF APPEALS                            May 05, 2011
                                FOR THE SIXTH CIRCUIT                          LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                  ON APPEAL FROM THE
                                       )                  UNITED STATES DISTRICT
v.                                     )                  COURT FOR THE NORTHERN
                                       )                  DISTRICT OF OHIO
PHILIP D. ROSSI,                       )
                                       )
                                                                  OPINION
      Defendant-Appellant.             )
_______________________________________)


Before: MOORE, GIBBONS, and McKEAGUE, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Philip Rossi pleaded

guilty to one count of mail fraud relating to a fraudulent investment scheme in which he converted

for his own purposes and personal use $3.5 million invested with him by approximately forty clients.

He now appeals his above-Guidelines sentence of 144 months of imprisonment. Rossi challenges

both the procedural and substantive reasonableness of his sentence. Specifically, he argues that

(1) the district court failed to give defense counsel a meaningful opportunity to address its decision

to vary upward from the applicable Guidelines range, (2) his sentence is grossly disproportionate to

sentences imposed for similar conduct, and (3) the district court relied on impermissible grounds and

failed to provide an adequate explanation for its sentence. Because the district court committed

neither procedural nor substantive error, we AFFIRM the district court’s sentence of 144 months

of imprisonment.
No. 09-3929
United States v. Rossi


                             I. BACKGROUND & PROCEDURE

       Rossi, a registered investment advisor with the State of Ohio and the Financial Industry

Regulatory Authority until 2007, owned and operated an accounting practice called Rossi &

Associates and a money-management company called Patterson-Ross Financial Resources, Inc.

Beginning in 2000 and continuing through September 2008, Rossi induced approximately forty

individuals to invest over $3.5 million with him by falsely representing that he would establish

investment accounts, purchase securities, or purchase notes or bonds in the individual investor’s

name. Instead, Rossi “converted the client’s money for his own purposes and personal use.” R. 12

(Plea Agreement ¶ 12). Rossi sent falsified account statements and income statements, as well as

checks drawn on accounts with insufficient funds, to his clients through the mail. At times during

the scheme, Rossi falsely told clients who attempted to withdraw funds that (1) “the funds were tied

up and could not be withdrawn for a period of time,” (2) “he could not return the funds due to tax

penalties for early withdrawals,” or (3) “post-9/11 regulations required the Department of Homeland

Security to perform background checks on individuals requesting the withdrawal of more than

$10,000 before the money could be disbursed.” Id.

       Rossi was indicted on one count of mail fraud on November 19, 2008. He was originally

released on bond during pretrial proceedings. On February 19, 2009, Pretrial Services filed a petition

with the district court stating that it was informed that Rossi had continued to have contact with

potential victims and asking the district court to impose an additional condition on his release that

he not have any contact with potential victims. The district court issued an order on February 20,


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No. 09-3929
United States v. Rossi


2009, imposing such condition. On March 9, 2009, the government filed a motion to revoke Rossi’s

release, alleging that Rossi had violated the court’s February 20th order by speaking with a victim

on March 2nd or 3rd and promising the victim that he would send a check to the victim for the

money he owed. After hearing arguments on the motion, the district court entered an order revoking

Rossi’s bond.

       Rossi pleaded guilty to the one count of mail fraud on April 16, 2009, pursuant to a plea

agreement under Federal Rule of Criminal Procedure 11(c)(1). Using the 2008 United States

Sentencing Guidelines (“U.S.S.G.” or “Guidelines”), the Presentence Investigation Report (“PSR”)

calculated Rossi’s advisory Guidelines range as 63 to 78 months. It calculated a total offense level

of 26: a base offense level of 7; plus 18 levels for loss greater than $2.5 million, 2 levels for more

than ten victims, and 2 levels for abuse of a position of trust; less 3 levels for acceptance of

responsibility. Rossi had one state criminal conviction in 2008—related to the instant scheme—for

passing bad checks, and, therefore, his criminal history was category one. At sentencing on July 13,

2009, defense counsel requested a sentence of 63 months, the lowest possible within the advisory

Guidelines range. The government sought a sentence at the high end of the Guidelines range,

specifically 71 months. After counsel’s arguments, a number of victims spoke to the court. The

district court then reviewed the information in the PSR and addressed the Guidelines range, adopting

the PSR’s calculation of 63 to 78 months. It next discussed the sentencing factors under 18 U.S.C.

§ 3553(a). The district court ultimately concluded that it was “going to upward vary six levels” and

imposed a sentence of 144 months of imprisonment. R. 19 (Sent. Hr’g Tr. at 43). The district court


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United States v. Rossi


also imposed restitution in the amount of $3,531,622.51. Rossi timely appealed on July 22, 2009.

On July 27, 2009, the district court entered its written judgment and attached to its judgment the

transcript of the victims’ statements at the sentencing hearing, the transcript of the district court’s

discussion of the § 3553(a) factors at the sentencing hearing, a three-page sentencing memorandum

outlining its reasoning for imposing the 144-month sentence, and a list of the victims.

        Rossi now raises three assignments of error to challenge the procedural and substantive

reasonableness of his sentence.

                                            II. ANALYSIS

A. Standard of Review

        We review sentences for both procedural and substantive reasonableness under an abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). Procedural unreasonableness

includes instances when a sentencing court “fail[s] to calculate (or improperly calculat[es]) the

Guidelines range, treat[s] the Guidelines as mandatory, fail[s] to consider the [18 U.S.C.] § 3553(a)

factors, select[s] a sentence based on clearly erroneous facts, or fail[s] to adequately explain the

chosen sentence—including an explanation for any deviation from the Guidelines range.” Id. “The

essence of a substantive-reasonableness claim is whether the length of the sentence is ‘greater than

necessary’ to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).” United States v.

Tristan-Madrigal, 601 F.3d 629, 632–33 (6th Cir. 2010). “A sentence is substantively unreasonable

if the district court selects the sentence arbitrarily, bases the sentence on impermissible factors, fails

to consider pertinent § 3553(a) factors or gives an unreasonable amount of weight to any pertinent


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United States v. Rossi


factor.” Id. at 633 (internal quotation marks omitted). We must “take into account the totality of

the circumstances, including the extent of any variance from the Guidelines range.” Gall, 552 U.S.

at 51. If, as in this case, “the sentence is outside the Guidelines range, [we] may not apply a

presumption of unreasonableness. [We] may consider the extent of the deviation, but must give due

deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of

the variance.” Id.

        The government argues that the plain-error standard of review applies to Rossi’s procedural

challenges under our decision in United States v. Bostic, 371 F.3d 865 (6th Cir. 2004), because

defense counsel failed to make any objections at the close of sentencing after the district court’s

invitation. The record, however, shows that the district court asked defense counsel, “[counsel],

anything further at this point?” R. 19 (Sent. Hr’g Tr. at 46). We have held that similarly phrased

questions are insufficient under Bostic to merit the plain-error standard. See United States v.

Novales, 589 F.3d 310, 313 (6th Cir. 2009) (“So is there anything else on these?”) (citing United

States v. Thomas, 498 F.3d 336, 340 (6th Cir. 2007) (“Do you have anything further for the record,

[counsel]?”); United States v. Clark, 469 F.3d 568, 570–71 (6th Cir. 2006) (“Anything else,

[counsel]?”), cert. denied, 552 U.S. 965 (2007)). Therefore, we proceed under the abuse-of-

discretion standard for Rossi’s claims.

B. Meaningful Opportunity to Address the District Court’s Decision to Vary Upward

        Rossi first argues that his sentence was procedurally unreasonable because defense counsel

was not given a meaningful opportunity to argue against the district court’s decision to impose a


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No. 09-3929
United States v. Rossi


sentence significantly higher than the applicable Guidelines range. At oral argument, counsel for

Rossi conceded that the district court’s imposition of a non-Guidelines sentence was a variance, not

a departure, from the recommended Guidelines range and that the notice requirement of Rule 32(h)

of the Federal Rules of Criminal Procedure1 and Burns v. United States, 501 U.S. 129, 138–39

(1991), does not apply to variances. See United States v. Irizarry, 553 U.S. 708, 715–16 (2008);

United States v. Blackie, 548 F.3d 395, 403–04 (6th Cir. 2008). Counsel now argues that Rule 32(i)

requires that the district court give notice, during the sentencing hearing and before announcing its

sentence, of its intent to vary from the applicable Guidelines range to give the defendant a

meaningful opportunity to object.

       Rule 32(i), in relevant part, requires the district court to provide defense counsel, government

counsel, and the defendant an opportunity to speak and comment on an appropriate sentence.2 FED .


       1
        Rule 32(h) states:
       Before the court may depart from the applicable sentencing range on a ground not
       identified for departure either in the presentence report or in a party’s prehearing
       submission, the court must give the parties reasonable notice that it is contemplating
       such a departure. The notice must specify any ground on which the court is
       contemplating a departure.
       2
        Rule 32(i)(1)(C) requires that “[a]t sentencing, the court[] . . . must allow the parties’
attorneys to comment on the probation officer’s determinations and other matters relating to an
appropriate sentence.” Rule 32(i)(4)(A) similarly requires that
       [b]efore imposing sentence, the court must:
               (i) provide the defendant’s attorney an opportunity to speak on the
               defendant’s behalf;
               (ii) address the defendant personally in order to permit the defendant
               to speak or present any information to mitigate the sentence; and
               (iii) provide an attorney for the government an opportunity to speak
               equivalent to that of the defendant’s attorney.

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No. 09-3929
United States v. Rossi


R. CRIM . P. 32(i)(1)(C), (4)(A). There is no notice requirement in the plain language of the rule, and

Rossi does not dispute that the district court gave him and his counsel an opportunity to address the

court before it announced the sentence. Nevertheless he argues that to be a meaningful opportunity,

the district court must first notify the parties of its intent to vary from the Guidelines. Reading an

implicit notice requirement for variances into Rule 32(i), however, would be contrary to the Supreme

Court’s decision in Irizarry.

       To understand Irizarry, we start with the Supreme Court’s decision in Burns. Prior to the

promulgation of Rule 32(h)’s explicit notice requirement and before Booker v. United States, 543

U.S. 220 (2005), rendered the Guidelines advisory, the Supreme Court in Burns considered the

question of “whether a district court may depart upward from the sentencing range established by

the Sentencing Guidelines without first notifying the parties that it intends to depart.” 501 U.S. at

131. The Court held that “before a district court can depart upward on a ground not identified as a

ground for upward departure either in the presentence report or in a prehearing submission by the

Government, Rule 32 requires that the district court give the parties reasonable notice that it is

contemplating such a ruling.” Id. at 138. Its decision was based on (1) Rule 32’s requirement that

the parties have the opportunity to comment on matters relating to sentencing,3 id. at 135–37; (2) the

overall purpose of Rule 32 to ensure adversarial testing of sentencing issues, id. at 137; and (3) due-

process concerns, id. at 138. Specifically with respect to Rule 32’s opportunity-to-comment



       3
        The opportunity-to-comment requirement now found in subsection (i) of Rule 32 was
previously in subsection (a).

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No. 09-3929
United States v. Rossi


requirement, the Court noted that “whether a sua sponte departure from the Guidelines would be

legally and factually warranted is a ‘matte[r] relating to the appropriate sentence.’” Id. at 135

(alteration in original) (quoting FED . R. CRIM . P. 32(a)(1) (1990)). Therefore, “it makes no sense to

impute to Congress an intent that a defendant have the right to comment on the appropriateness of

a sua sponte departure but not the right to be notified that the court is contemplating such a ruling.”

Id. at 135–36. The Court reasoned that “[b]ecause the Guidelines place essentially no limit on the

number of potential factors that may warrant a departure, no one is in a position to guess when or

on what grounds a district court might depart, much less to ‘comment’ on such a possibility in a

coherent way.” Id. at 136–37 (citation omitted).

        In 2002, an explicit notice requirement was added to Rule 32 in subsection (h) to reflect the

Supreme Court’s decision in Burns. See FED . R. CRIM . P. 32, 2002 Advisory Committee Notes.

After Booker, however, the courts of appeals split on the question of whether Rule 32(h) and the

reasoning underlying Burns require a district court to notify the parties of its intent to vary from the

now-advisory Guidelines on the basis of the sentencing factors in 18 U.S.C. § 3553(a). See Irizarry,

553 U.S. at 713 n.1 (collecting cases); id. at 714–15 (explaining the difference between departures

and variances). The Supreme Court granted a petition for writ of certiorari in Irizarry to decide the

issue, 552 U.S. 1086 (2008), and the government joined the petitioner Irizarry in arguing that notice

should be required before a district court can impose a variance. Both the petitioner and the

government argued that the three reasons underlying the Court’s decision in Burns with respect to




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No. 09-3929
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departures apply with equal force in the context of variances. Brief for Petitioner at 13, Irizarry, 553

U.S. 708 (No. 06-7517); Brief for the United States at 12–13, id.

        The Supreme Court, however, concluded that the notice requirement of Rule 32(h) does not

apply to variances. In its analysis, the Court rejected each of the three reasons underlying Burns as

a reason to impose a categorical rule requiring a district court to notify the parties of its intent to vary

from the Guidelines. Id. at 713–15. With respect to due process, the Court stated:

                Any expectation subject to due process protection at the time we decided
        Burns that a criminal defendant would receive a sentence within the presumptively
        applicable guideline range did not survive our decision in United States v. Booker,
        543 U.S. 220 (2005), which invalidated the mandatory features of the Guidelines.
        Now faced with advisory Guidelines, neither the Government nor the defendant may
        place the same degree of reliance on the type of “expectancy” that gave rise to a
        special need for notice in Burns. Indeed, a sentence outside the Guidelines carries
        no presumption of unreasonableness. Gall v. United States, 552 U.S. 38, 51 (2007);
        see also Rita v. United States, 551 U.S. 338 (2007).
                It is, therefore, no longer the case that “were we to read Rule 32 to dispense
        with notice [of a contemplated non-Guidelines sentence], we would then have to
        confront the serious question whether [such] notice in this setting is mandated by the
        Due Process Clause.” Burns, 501 U.S., at 138. The due process concerns that
        motivated the Court to require notice in a world of mandatory Guidelines no longer
        provide a basis for this Court to extend the rule set forth in Burns either through an
        interpretation of Rule 32(h) itself or through Rule 32(i)(1)(C).


Id. at 713–14 (alterations in original). After concluding that lack of notice of the district court’s

intent to vary from the Guidelines does not raise due-process concerns, the Court further concluded

that Rule 32(i)’s requirement that parties be given the opportunity to comment on matters relating

to sentencing and Rule 32’s overall purpose that sentencing issues be adequately debated both can

be given effect without imposing a categorical notice requirement. Id. at 715–16. The Court


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expressed its belief that, “in most cases,” notice of the district court’s intent to vary would not

“change[] the parties’ presentations [of argument and evidence] in any material way.” Id. at 715.

Rather,

          “[i]n the normal case a competent lawyer . . . will anticipate most of what might
          occur at the sentencing hearing—based on the trial, the pre-sentence report, the
          exchanges of the parties concerning the report, and the preparation of mitigation
          evidence. Garden variety considerations of culpability, criminal history, likelihood
          of re-offense, seriousness of the crime, nature of the conduct and so forth should not
          generally come as a surprise to trial lawyers who have prepared for sentencing.”

Id. at 716 (second alteration in original) (quoting United States v. Vega-Santiago, 519 F.3d 1, 5 (1st

Cir.), cert. denied, 129 S. Ct. 92 (2008)). The Court “recognize[d] that there will be some cases in

which the factual basis for a particular sentence will come as a surprise to a defendant or the

Government” but concluded that “[t]he more appropriate response to such a problem is not to extend

the reach of Rule 32(h)’s notice requirement categorically, but rather for a district judge to consider

granting a continuance when a party has a legitimate basis for claiming that the surprise was

prejudicial.” Id. at 715–16. “Now faced with advisory Guidelines, the Court in Irizarry chose to

fashion a pragmatic, rather than categorical, solution to the problem of unfair surprise at sentencing.”

United States v. Redmond, 388 F. App’x 849, 855 (10th Cir. 2010) (unpublished order and judgment)

(internal quotation marks omitted). Therefore, a categorical notice requirement grounded in Rule

32(i) would be contrary to Irizarry.

          At oral argument, counsel for Rossi attempted to distinguish the notice that he seeks for

variances under Rule 32(i) from the notice that is required for departures under Burns and Rule 32(h)

by arguing that the district court’s notice that it intends to vary need not be provided in advance of

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No. 09-3929
United States v. Rossi


the sentencing hearing. But Burns and Rule 32(h) do not require pre-hearing notice. See Burns, 501

U.S. at 139 n.6. “Only ‘reasonable notice’ is required, and what constitutes reasonable notice will

vary depending on the circumstances of the particular case.” United States v. Erpenbeck, 532 F.3d

423, 443 (6th Cir.), cert. denied, 129 S. Ct. 518 (2008); see also United States v. Springer, 300 F.

App’x 339, 342 (6th Cir. 2008) (unpublished decision) (indicating that neither Rule 32(h) nor our

case law requires notice be given prior to the day of sentencing and in writing). Therefore, we do

not believe that narrowing the timing to require that the district court notify the parties of its intent

to vary only at some point during the sentencing hearing is sufficient to make such a categorical

requirement consistent with Irizarry.

        Nor do the cases that Rossi cites provide support for his argument that Rule 32(i) requires

the district court to provide notice of its intent to vary prior to imposing its sentence. In United

States v. Garcia-Robles, 562 F.3d 763 (6th Cir. 2009), the district court heard argument from the

parties before announcing its above-Guidelines sentence. Id. at 765. The district court explained

why it imposed the significant variance but also told the defendant that it was going to issue a written

sentencing opinion and that the defendant could make written objections to his sentence after the

opinion issued rather than during the sentencing hearing. Id. The district court issued its written

sentencing opinion but also entered judgment before the defendant’s time to object had elapsed. Id.

The district court thus had limited ability, under Federal Rule of Criminal Procedure 35(a), to modify

its judgment even though the defendant timely had filed objections. Id. at 765, 767. Additionally,

the defendant filed his notice of appeal—which divested the district court of jurisdiction—before


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United States v. Rossi


the district court addressed the defendant’s objections. Id. at 767–68. We concluded that

“[a]lthough the Supreme Court has held [in Irizarry] that a district court need not provide notice

before imposing a variance based on § 3553(a) factors,” the defendant “was never afforded an

opportunity meaningfully to respond to the district court’s decision to impose an upward variance.”

Id. at 768. Garcia-Robles, thus, addressed the defendant’s ability to respond or object meaningfully

after the district court announced its sentence. Cf. United States v. Barahona-Montenegro, 565 F.3d

980, 985 (6th Cir. 2009) (relying on Garcia-Robles and concluding that the defendant did not have

the opportunity to respond meaningfully to the district court’s sentencing rationale when the district

court failed to explain its rationale adequately at the sentencing hearing or in its written statement

of reasons issued two months later).

        Further, our discussion of Garcia-Robles in United States v. Gunter, 620 F.3d 642 (6th Cir.

2010), does not expand the impact of Garcia-Robles as Rossi suggests. Gunter addressed our

appellate review with respect to the requirement that a district court must consider all nonfrivolous

arguments brought to its attention. Id. at 645–46. We therefore observed that “Garcia-Robles was

about a defendant’s inability to argue in the first place, not about the sufficiency of the court’s

response.” Id. at 646. Our description of Garcia-Robles for purposes of making this distinction,

however, did not expand the case to require the district court to notify the parties that it is inclined

to vary from the Guidelines before announcing its sentence, as long as the parties have a meaningful

opportunity to respond to the district court’s sentence.




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No. 09-3929
United States v. Rossi


        Rossi also argues that the Seventh Circuit, in United States v. Luepke, 495 F.3d 443 (7th Cir.

2007), interprets Rule 32(i) in the way that he asks us to interpret it. In that case, the district court

definitively announced a sentence and then for the first time asked the defendant if he wanted to

bring anything to the court’s attention. Id. at 445. The defendant replied, “Nothing. I’m just sorry

for everything that’s been done and the outcome of this.” Id. The district court had a brief colloquy

with defense counsel and then concluded that it “impose[d] that sentence as previously announced.”

Id. The Seventh Circuit concluded that this “sequence of events at [the defendant’s] sentencing

hearing denied him the right to allocution” afforded under Federal Rule of Criminal Procedure

32(i)(4)(A)(ii). Id. at 446. It explained that “the defendant had little incentive to share his thoughts

on the matter of a sentence that he had every reason to believe had already been decided” and that

“the district court’s later invitation to speak cannot be characterized as an adequate repair of the

damage.” Id. at 450. Thus, Luepke instructs that the procedural protections of Rule 32(i) are not

given effect if the parties are not given an opportunity to speak until after the district court

definitively announces its sentencing decision.

        At Rossi’s sentencing hearing, however, defense counsel and Rossi were both given an

opportunity to address the district court before it orally announced the sentence. Nothing in Luepke

suggests that Rule 32(i) requires that the district court give notice that it intends to vary from the

Guidelines before the parties speak. Indeed, prior to the Supreme Court’s decision in Irizarry, the

Seventh Circuit had concluded that “the concerns that animated the Court’s decision in Burns,”

including the parties’ ability to comment meaningfully on matters relating to sentencing, “no longer


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United States v. Rossi


apply” after Booker. United States v. Walker, 447 F.3d 999, 1006–07 (7th Cir.), cert. denied, 549

U.S. 933 (2006). For all of the above reasons, we reject Rossi’s argument that Rule 32(i)

categorically requires the district court to provide notice of its intent to vary from the advisory

Guidelines before it imposes its sentence. Cf. United States v. Hall, 317 F. App’x 203, 206–07 (3d

Cir.) (unpublished decision) (rejecting claim that the district court did not provide defense counsel

the opportunity to comment on its upward variance, as required by Rule 32(i)(1)(C)), cert. denied,

130 S. Ct. 346 (2009).

       Nevertheless, the Supreme Court left open the possibility of relief when a party demonstrates

that the facts or issues on which the district court relied to impose a variance came as a surprise and

that his or her presentation to the court was prejudiced by the surprise. Irizarry, 553 U.S. at 715–16;

see also United States v. Orlando, 553 F.3d 1235, 1238 (9th Cir.) (“Irizarry established that a

sentencing court abuses its discretion when it imposes an upward variance 1) based on facts that

amount to prejudicial surprise; 2) without considering a continuance; 3) where advance notice might

have affected the parties’ presentations of evidence.”), cert. denied, 129 S. Ct. 2748 (2009). It is

well established that we “requir[e] disclosure of most information relied upon at sentencing.” United

States v. Hayes, 171 F.3d 389, 392 (6th Cir. 1999); see also United States v. Bey, 384 F. App’x 486,

491 (6th Cir.) (unpublished decision), cert. denied, 131 S. Ct. 586 (2010); United States v.

Christman, 509 F.3d 299, 304–10 (6th Cir. 2007) (collecting cases). “[W]hen a party has a

legitimate basis for claiming that the surprise was prejudicial,” the “appropriate response” is “for




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United States v. Rossi


[the] district judge to consider granting a continuance” so that the parties have “an adequate

opportunity to confront and debate the relevant issues.” Irizarry, 553 U.S. at 715–16.

        As stated above in Part II.A, because the district court failed to ask clearly for any objections

as required under Bostic, we review Rossi’s claim for procedural reasonableness and not plain error.4

On appeal, however, Rossi has failed to identify any information upon which the district court relied

to vary from the Guidelines that came as a surprise, either at the hearing or upon receipt of the

district court’s written sentencing explanation. See Irizarry, 553 U.S. at 715. Rossi points to no

relevant issues that he did not anticipate or have the opportunity to address at the sentencing hearing.

Id. at 715–16. Our independent review of the record reveals that defense counsel’s arguments and

Rossi’s allocution at sentencing addressed the victims, the impact on Rossi’s family, his 2008 state

conviction, and the offense conduct—all factual bases on which the district court relied in its

decision to vary upward. Defense counsel also recognized the role of the § 3553(a) factors,

specifically emphasizing the argument that Rossi would not commit further crimes in the future. See

18 U.S.C. § 3553(a)(2)(C). The only factual bases that may have come as a surprise are (1) the

district court’s belief that Rossi used money fraudulently obtained from the victims of his scheme


       4
         We observe that the fact that the district court asked defense counsel if there was anything
further—substantially the same question that it asked of the prosecution, R. 19 (Sent. Hr’g Tr. at
47)—refutes Rossi’s argument that “[o]nce the district court imposed a sentence double the length
of the prosecution’s recommendation, the only party afforded the opportunity to respond was the
prosecution.” Appellant Br. at 11; accord id. at 10 (same). Furthermore, the district court did not
affirmatively prevent Rossi from objecting at the hearing after the sentence was imposed, see
Garcia-Robles, 562 F.3d at 767, and, as explained below in Part II.D.2, the district court’s written
sentencing memorandum, filed fourteen days after the sentencing hearing, adequately set forth in
writing the district court’s sentencing rationale, see Barahona-Montenegro, 565 F.3d at 985.

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No. 09-3929
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to repay $113,000 in restitution for his 2008 state-court conviction for passing bad checks,5 and

(2) the district court’s belief that Rossi is hiding or lying about an additional $1,000,000.6 Rossi

argues only generally that “[n]othing about the sentencing proceedings . . . suggested the need to

marshal arguments against a 144-month sentence,” Appellant Br. at 11, but does not indicate what

he would have done differently at the sentencing hearing. See Irizarry, 553 U.S. at 715. “Issues

adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are

deemed waived. It is not sufficient for a party to mention a possible argument in the most skeletal

way, leaving the court to put flesh on its bones.” United States v. Stewart, 628 F.3d 246, 256 (6th

Cir. 2010) (internal quotation marks and alteration omitted). The district court was not required

categorically to notify the parties of its intent to vary from the Guidelines before it imposed the

sentence, and Rossi has failed to identify any viable arguments of “unfair surprise” and prejudice as

required under the pragmatic solution announced by the Irizarry Court. See United States v. Obi,

542 F.3d 148, 156 (6th Cir. 2008) (relying on Irizarry to reject claim that defendant lacked sufficient


       5
         In his third assignment of error discussed below, Rossi argues that the district court’s belief
regarding the repayment of the restitution is an “assumption” or a “hunch” and is “speculative.”
Appellant Br. at 15. But he raises the argument in the context of arguing that such speculation is not
sufficient for departing under U.S.S.G. § 4A1.3, and, as explained above, counsel for Rossi at oral
argument conceded that the district court applied a variance, not a departure. Moreover, Rossi
provides no information or evidence to rebut the district court’s belief regarding the source of the
money.
       6
         The district court included the “missing” $1,000,000 as a basis for the upward variance in
its sentencing memorandum but did not mention it at the sentencing hearing. However, Rossi does
not argue that he was denied an opportunity to respond meaningfully to the district court’s sentence
because the district court included a rationale in the sentencing memorandum that it did not state in
open court at the sentencing hearing.

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No. 09-3929
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notice of variance); see also United States v. Mojica, 357 F. App’x 273, 278 (11th Cir. 2009)

(unpublished decision) (rejecting notice argument because the district court was not required to

provide notice of its intent to vary and because the defendant did not allege that the factual basis for

his sentence was a surprise or “that the district court relied on anything other than [the] garden

variety considerations” listed in Irizarry (internal quotation marks and alteration omitted)), cert.

denied, 130 S. Ct. 2394 (2010).

C. § 3553(a)(6) Sentence Disparity

        Rossi next argues that his sentence is substantively unreasonable because it is grossly

disproportionate to sentences imposed for similar conduct. He points to cases in this circuit and

nationally to argue that his sentence is a “glaring outlier compared to sentences imposed for similar

crimes.” Appellant Br. at 12–14 (citing United States v. Meeker, 411 F.3d 736 (6th Cir. 2005);

United States v. Benskin, 926 F.2d 562 (6th Cir. 1991); United States v. Dobish, 102 F.3d 760 (6th

Cir. 1996); Unites States v. Jarvis, 258 F.3d 235 (3d Cir. 2001)); see also Fed. R. App. P. 28(j)

Letter (Jan. 17, 2011) (citing United States v. Smagola, 390 F. App’x 438 (6th Cir. 2010); United

States v. Harriett, No. 10-219 (N.D. Ohio Oct. 22, 2010) (Judgment)). The government notes that

many of the cases Rossi cites are pre-Booker cases when the Guidelines were mandatory, and the

government also cites its own set of cases in which we have upheld upward variances in

circumstances similar to this case to argue that the 144-month sentence is reasonable. Appellee Br.

at 20–22 (citing United States v. Smith, 516 F.3d 473 (6th Cir. 2008); Erpenbeck, 532 F.3d 423;

United States v. Tate, 516 F.3d 459 (6th Cir.), cert. denied, 129 S. Ct. 93 (2008)).


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        Pursuant to 18 U.S.C. § 3553(a)(6), sentencing courts must consider “the need to avoid

unwarranted sentence disparities among defendants with similar records who have been found guilty

of similar conduct.” “[T]his factor concerns national disparities between defendants with similar

criminal histories convicted of similar criminal conduct.” United States v. Conatser, 514 F.3d 508,

521 (6th Cir.), cert. denied, 129 S. Ct. 450 (2008). It is “permissible for the district court to consider

sentencing disparities other than at the national level,” but “it was not an abuse of discretion for it

not to do so in this case because § 3553(a)(6) does not require it to do so and [Rossi] did not raise

any disparity arguments before the district court.” United States v. Tanner, 382 F. App’x 421,

428–29 (6th Cir. 2010) (unpublished decision) (citing United States v. Martin, 371 F. App’x 638,

642 (6th Cir.) (unpublished decision), cert. denied, 131 S. Ct. 274 (2010)).

        With respect to our review of substantive reasonableness, we have criticized the comparison

of the defendant’s sentence to those imposed in other singular cases as weak evidence to show a

national sentencing disparity. See United States v. Thomas, 395 F. App’x 168, 175 (6th Cir. 2010)

(unpublished decision) (citing United States v. Simmons, 501 F.3d 620, 626 (6th Cir. 2007)); Tanner,

382 F. App’x at 428; see also United States v. Lapsins, 570 F.3d 758, 774 (6th Cir. 2009) (rejecting

singular case comparison). The government’s response—providing citations to singular sentences

that support its position—demonstrates the problem with singular case comparisons: it “‘opens the

door to endless rummaging by lawyers through sentences in other cases, each side finding random

examples to support a higher or lower sentence, as their clients’ interests dictate.’” Thomas, 395 F.

App’x at 175 (quoting United States v. Saez, 444 F.3d 15, 19 (1st Cir.), cert. denied, 549 U.S. 902


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(2006)). The fact that the district courts in the other unrelated cases cited by Rossi found those

specific defendants deserving of sentences within the Guidelines does not demonstrate that the

district court in Rossi’s case abused its discretion in imposing a sentence above the Guidelines. See

Tanner, 382 F. App’x at 428–29; Lapsins, 570 F.3d at 774.

       “[N]ational uniformity is generally taken into account by the Sentencing Guidelines, which

are almost certainly the best indication of ordinary practice since most sentences are within the

guidelines.” Simmons, 501 F.3d at 626 (internal quotation marks omitted). In Rossi’s case, his

sentence is disproportionate to sentences imposed for similar conduct because the district court

decided to apply an upward variance from the advisory Guidelines range. The record shows that the

district judge explicitly recognized the need to consider sentence disparities and then noted that

Rossi had no co-defendants and “face[d] the same options” as those defendants nationally with

similar conduct and background. R. 19 (Sent. Hr’g Tr. at 37–38). The district court then went on

to distinguish Rossi’s case: “This is a lengthy scheme in terms of time. That sets him apart, multiple

levels of deception. It’s a second conviction of similar conduct.” Id. at 38. Thus, a challenge to the

substantive reasonableness of his sentence would be more appropriately brought, not as a sentence

disparity challenge, but rather as a direct challenge to the reasonableness of the district court’s

application of the upward variance. Cf. United States v. Lopez, 401 F. App’x 49, 52–53 (6th Cir.

2010) (unpublished decision) (“[T]he specific factors considered by the district court justified the

upward variance, so any disparity between [the defendant] and other similarly-situated defendants




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United States v. Rossi


is not unwarranted.”). We reject the singular case comparisons that Rossi offers to support his

sentence-disparity argument and now consider Rossi’s direct challenges to the upward variance.

D. Grounds for Above-Guidelines Sentence

       In his third assignment of error, Rossi argues that the district court (1) relied on

impermissible grounds for imposing an above-Guidelines sentence because the total-loss figure and

his criminal history were already adequately considered in the Guidelines range, and (2) failed to

provide an adequate explanation of its reasons for the above-Guidelines sentence.

       1. Total-Loss Figure and Criminal History

       Rossi first argues that the district court erred in relying on the loss figure and Rossi’s prior

criminal history in its consideration of the § 3553(a) factors. He argues that such reliance is

“duplicative and excessive” when those are factors already taken into account in the Guidelines

range.7 Appellant Br. at 15. However, we have rejected the argument that a sentence is substantively

unreasonable because the § 3553(a) factors on which the district court relied to sentence the

defendant outside the advisory Guidelines range were already reflected in the Guidelines calculation.

See Tristan-Madrigal, 601 F.3d at 636 n.1. The loss amount and Rossi’s criminal history are

relevant to the § 3553(a) factors. Id. at 635. For example, the loss amount informs the district


        7
        Rossi also argues that the district court failed to make specific findings required to depart
upward for the inadequacy of a defendant’s criminal history category under U.S.S.G. § 4A1.3(a).
As noted above, the district court did not depart under the Guidelines’ departure provisions but rather
applied a variance based on the § 3553(a) factors. The fact that the district court did not depart under
§ 4A1.3(a) for an underrepresented criminal history does not preclude the district court from
considering Rossi’s criminal history in its § 3553(a) analysis. See United States v. Lanning, 633 F.3d
469, 474-75 (6th Cir. 2011); Tristan-Madrigal, 601 F.3d at 635.

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No. 09-3929
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court’s analysis of the “nature and circumstances of the offense,” § 3553(a)(1), and the “seriousness

of the offense,” § 3553(a)(2)(A). Rossi’s previous criminal conviction is relevant to his “history and

characteristics,” § 3553(a)(1), and the need to “afford adequate deterrence to criminal conduct,”

§ 3553(a)(2)(B). See Gunter, 620 F.3d at 647 (noting that criminal history is relevant to a number

of the § 3553(a) factors).

        That factors reflected in the Guidelines will also be relevant to the district court’s § 3553(a)

analysis is inherent in the sentencing scheme set forth by Congress. Congress directed the

Sentencing Commission to develop Guidelines that embody the § 3553(a) factors. Rita v. United

States, 551 U.S. 338, 348–50 (2007). Thus, “both the sentencing judge and the Commission

. . . carry[] out the same basic § 3553(a) objectives, the one, at retail, the other at wholesale.” Id. at

348. The district court “must treat the Guidelines as the starting point and the initial benchmark,”

and “the Commission’s recommendation of a sentencing range will reflect a rough approximation

of sentences that might achieve § 3553(a)’s objectives.” Kimbrough v. United States, 552 U.S. 85,

108–09 (2007) (internal quotation marks omitted). But the district court, in its own review of the

§ 3553(a) factors at the level of the particular defendant, may vary from the advisory Guidelines

range. Id. at 109. Accordingly, a factor that is already incorporated into the Guidelines is not

necessarily an impermissible factor for varying from the advisory Guidelines range. Concluding

otherwise “would have the practical effect of making the Guidelines again mandatory.” Tristan-

Madrigal, 601 F.3d at 636 n.1. Rather, we review the reasonableness of the district court’s




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United States v. Rossi


determination that the Guidelines range fails properly to reflect the § 3553(a) factors. See United

States v. Lanning, 633 F.3d 469, 477–78 (6th Cir. 2011).

       2. Failure to Provide an Adequate Explanation

       Rossi next argues that “it is unclear what factors the court relied upon to vary upward six

levels.” Appellant Br. at 16. Rossi provides “five possible factors” that he “gleaned” from the

court’s discussion at sentencing. Id. He argues that he “should not have to speculate as to the reason

for the drastic upward variance.” Id. at 17.

       Whether the district court adequately explained its rationale for imposing the particular

sentence is a question considered under the procedural prong of the reasonableness inquiry. Garcia-

Robles, 562 F.3d at 767. The district court “must adequately explain the chosen sentence to allow

for meaningful appellate review and to promote the perception of fair sentencing.” Gall, 522 U.S.

at 50. “[The] district court need not give a mechanical recitation of the § 3553(a) factors, but rather

must provide an explanation of why, based on the totality of the circumstances, it chose the sentence

that it did.” Stewart, 628 F.3d at 260–61 (internal quotation marks omitted). Applicable here,

Congress also specifically requires a court to state “the specific reason” for imposing a sentence

outside the Guidelines range both in open court and in a written statement of reasons. 18 U.S.C.

§ 3553(c)(2).

       Rossi’s argument is without merit. At the sentencing hearing, the district court properly

calculated and considered the advisory Guidelines range and discussed the § 3553(a) factors. When

the district court issued its written judgment, it also issued a three-page sentencing memorandum for


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the purpose of “more cogently outlin[ing] the reasons” that it chose to vary upward, “all of which

reasons were scattered on the record at Defendant’s sentencing on July 13, 2009.” R. 20-3 (Sent.

Mem.). We conclude that the district court’s discussion at sentencing and its written sentencing

memorandum constitute a procedurally adequate explanation of its reasoning for imposing a

significant upward variance. To the extent that Rossi is arguing that the district court’s explanation

of the upward variance is substantively unreasonable, we consider that question below.

        3. Substantive Reasonableness

        As we have noted above, the essence of Rossi’s second and third assignments of error is a

challenge to the substantive reasonableness of the district court’s significant upward variance. Rossi

argues that “a more compelling justification is required.” Appellant Br. at 16–17 (citing United

States v. Davis, 458 F.3d 491, 496 (6th Cir. 2006), vacated, 552 U.S. 1088 (2008)). The Supreme

Court has stated that it is “uncontroversial that a major departure should be supported by a more

significant justification than a minor one.” Gall, 552 U.S. at 50. However, the Court has also

rejected a heightened standard of review—e.g., rigid “proportional review” or an “exceptional

circumstances requirement”—for sentences outside the Guidelines range.8 Id. at 49. We “may

consider the extent of the deviation, but must give due deference to the district court’s decision that

the § 3553(a) factors, on a whole, justify the extent of the variance.” Id. at 51. “[T]he district court

is entitled to deference in its sentencing decisions because of its ringside perspective on the



       8
         Davis, 458 F.3d 491, the case on which Rossi relies, was vacated by the Supreme Court in
light of Gall. 552 U.S. 1088 (2008).

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No. 09-3929
United States v. Rossi


sentencing hearing and its experience over time in sentencing other individuals.” Stewart, 628 F.3d

at 261 (internal quotation marks omitted). For example, in its discussion of the § 3553(a) factors,

the district court noted that “in the 13 years that [he has] been a Judge, it’s the first time [he has] ever

received a letter from a wife saying put [my husband] in jail.” R. 19 (Sent. Hr’g Tr. at 39); accord

R. 20-3 (Sent. Mem. at 1).

        Our review of the record reveals that the district court conducted a careful review of the

§ 3553(a) factors. In concluding that an above-Guidelines sentence was appropriate, the district

court relied on the eight-year time period for the scheme; the scheme’s multiple levels of deceit and

betrayal; Rossi’s continued conduct after being caught and after the district court ordered Rossi not

to contact victims; the letter from Rossi’s wife; the victims’ statements; the fact that Rossi took

advantage of close personal friendships to carry out his scheme; and the district court’s belief that

Rossi lacked credibility in saying that he intended to pay back the victims, saying that he paid

restitution for his state crime with his own money rather than money from the scheme, and saying

that he has been forthcoming with all of his financial transactions. R. 19 (Sent. Hr’g Tr. at 35–43);

R. 20-3 (Sent. Mem.). The district court concluded that “[i]f any case warrants an upward variance,

. . . it’s this one.” R. 19 (Sent. Hr’g Tr. at 42). Based on our review of the record and the

justifications that the district court provided for the inadequacy of the advisory Guidelines here, we

cannot conclude that the district court abused its discretion in deciding to vary upward and to impose

a sentence of 144 months of imprisonment.




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                                    III. CONCLUSION

       For the reasons explained above, we conclude that the district court’s above-Guidelines

sentence of 144 months of imprisonment is not procedurally or substantively unreasonable. We

AFFIRM the judgment of the district court.




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