                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 17-1583
                                   ________________

                            UNITED STATES OF AMERICA

                                             v.

                                    ALEX MGBOLU,
                                             Appellant

                                   ________________

                    On Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                         (D.C. Criminal No. 1-12-cr-00232-001)
                    District Judge: Honorable Christopher C. Conner)
                                    ________________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  February 6, 2018

             Before: CHAGARES, SCIRICA, and COWEN, Circuit Judges

                             (Opinion Filed: April 12, 2018)

                                   ________________

                                       OPINION*
                                   ________________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SCIRICA, Circuit Judge

       Alex Mgbolu pled guilty to one count of Conspiracy to Commit Mail Fraud, Wire

Fraud, and Money Laundering in violation of 18 U.S.C. § 371 and was sentenced to 60

months’ imprisonment. Mgbolu appeals, arguing his sentence should be vacated because

the District Court did not give meaningful consideration to all of the § 3553(a) factors or

reasonably apply the factors to the particular circumstances of his case. Because this

contention is contradicted by the record, which demonstrates the court carefully

considered the applicable § 3553(a) factors and reasonably applied them at sentencing,

we will affirm.

                                             I.

       Between 2002 and 2010, Mgbolu operated a money transfer business in Toronto,

Canada, through which he processed and cashed numerous fraud-induced money

transfers.1 Mgbolu used fictitious identification data to protect the anonymity of the

individuals conducting the fraudulent schemes and received approximately seven to ten

percent of the proceeds for his services. The government’s investigation identified over

800 victims of the schemes he was involved in and total attributable losses of

approximately $2,127,410.00.

       On August 8, 2016, after entering into a plea agreement with the government,

Mgbolu pled guilty to Count One of a 30-count indictment: Conspiracy to Commit Mail



1
 Because we write for the parties, we set forth only those facts necessary to our
disposition.

                                             2
Fraud, Wire Fraud, and Money Laundering in violation of 18 U.S.C. § 371.2 After

applying a three-level downward adjustment for acceptance of responsibility, the

Presentence Investigation Report calculated Mgbolu’s Total Offense level as 29 and his

Criminal History Category as I. Mgbolu’s resulting Guideline range was 87–108 months,

but this was reduced to the statutory maximum of 60 months. See U.S.S.G. § 5G1.1(a).

       Prior to sentencing, Mgbolu’s counsel submitted an extensive memorandum

seeking a below-Guideline sentence based on the factors set forth in 18 U.S.C. § 3553(a).

With regard to the nature and circumstances of the offense and Mgbolu’s history and

characteristics, § 3553(a)(1), counsel presented a litany of arguments relating to: the

unique challenges Mgbolu had overcome in his personal life, particularly his

impoverished upbringing and political refugee status; his family circumstances,

particularly his wife’s medical issues and the strain incarceration would place on his

family; the non-violent nature of the offense; the loss of Mgbolu’s business reputation

and reputation in the community; and Mgbolu’s good deeds in the Toronto community.

Regarding the need for the sentence imposed, § 3553(a)(2), counsel argued Mgbolu had

already received punishment based on his arrest and pre-trial release in Canada for the

same conduct and that his Canadian citizenship would result in more severe




2
 Mgbolu was indicted on September 12, 2012. Because he was involved in Canadian
proceedings, which were stayed so that the United States could proceed with extradition,
he did not appear and enter an initial not guilty plea until April 26, 2016.

                                             3
incarceration.3 Lastly, counsel argued that under § 3553(a)(7), Mgbolu would be in a

better position to pay restitution if he were in Canada, but the rationale for this argument

was not further explained.

       At sentencing, the District Court commended counsel for the extremely

“thorough” memorandum, commenting that it allowed the court to know Mgbolu “much

better.” App. 130. The court also heard argument from Mgbolu’s counsel, in which some

but not all of the § 3553(a) arguments were reiterated, and testimony from three

witnesses, including Mgbolu’s wife and her uncle. While acknowledging that Mgbolu

had “presented a great deal of mitigating evidence,” App. 159, on February 23, 2017, the

District Court sentenced Mgbolu to the Guideline recommendation (and statutory

maximum) of 60 months’ imprisonment and ordered that he pay $1,372,602.26 in

restitution.4 In explaining its sentence, the court stated it had considered “the history and

characteristics of Mr. Mgbolu, the difficulty of his upbringing, and the manner in which

he fled his country and relocated to Canada,” in addition to “his family conditions, the

medical matters that he has raised . . . . his lack of significant criminal history and . . . the

issue of sentencing disparity,” but found the sentence necessary because the offense

“took place over an extended period of time,” involved substantial amounts of money and

many victims, and “involved a level of sophistication that wasn’t simply a momentary


3
 Specifically, counsel argued that because he was extradited he would not get the benefit
of voluntary surrender and its “positive impact on prison classification.” App. 78.
4
  The original amount of loss attributable to Mgbolu was offset by reimbursements made
to victims through a settlement with another entity involved in the fraud.

                                                4
lapse in judgement.” App. 160. The court also noted Mgbolu had benefitted from the plea

agreement with the government.

       As noted, Mgbolu now appeals his 60-month sentence of imprisonment, arguing it

was procedurally and substantively unreasonable.5 We have jurisdiction under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a)(1).

                                             II.

       In reviewing the sentence imposed by a district court, our inquiry is two-fold.

First, we examine the procedural reasonableness of the sentence to ensure the district

court committed no “significant procedural error.” United States v. Tomko, 562 F.3d 558,

568 (3d Cir. 2009) (en banc). Such an error might include “failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as mandatory,

failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen sentence.” Gall v. United States, 552

U.S. 38, 51 (2007). If the district court committed procedural error, we remand for

re-sentencing. See, e.g., United States v. Merced, 603 F.3d 203, 214 (3d Cir. 2010). If the

district court’s procedures were sound, “we proceed to examine the substantive

reasonableness of the sentence.” Id.

       Mgbolu challenges his sentence on both procedural and substantive grounds. But,

as described below, the record demonstrates that the court “considered the parties’


5
  Mgbolu also argued in initial briefing that the District Court abused its discretion by
failing to apportion restitution between himself and the two entities for which he
processed the money transfers, but he subsequently withdrew this argument.

                                              5
arguments” and the relevant sentencing factors and had “a reasoned basis” for the

sentence imposed. Rita v. United States, 551 U.S. 338, 356 (2007). We see no basis to

vacate the court’s sentence and will affirm.

                                               A.

       We first turn to Mgbolu’s contention that his sentence was procedurally

unreasonable because the District Court did not address all of his arguments at sentencing

or all of the § 3553(a) factors he raised. Generally, we review the procedural

reasonableness of a sentence under the abuse of discretion standard. See, e.g., Merced,

603 F.3d at 214. But a defendant must bring a procedural error to the district court’s

attention at the time the procedural error is made. See United States v. Flores-Mejia, 759

F.3d 253, 256 (3d Cir. 2014) (en banc). Where, as here, the defendant failed to do so, we

review for plain error.6 Id.

       In United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006), we set forth a

three-step framework for sentencing. After calculating the defendant’s Guidelines, as it

would have done pre-Booker, and ruling on any departure motions, a district court must

“exercise [its] discretion by considering the relevant § 3553(a) factors.” Id. (internal

quotation marks, citation, and alterations omitted). In this final step, the district court



6
  Under the familiar plain error standard, “[a]n error is plain if it is ‘clear’ or ‘obvious,’
‘affects substantial rights,’ and ‘affects the fairness, integrity or public reputation of
judicial proceedings.’” Flores-Mejia, 759 F.3d at 259 (quoting United States v. Dragon,
471 F.3d 501, 505 (3d Cir. 2006)). “[A]n error affects substantial rights when it is
prejudicial, i.e., it ‘affected the outcome of the district court proceedings.’” Dragon, 471
F.3d at 505 (quoting United States v. Olano, 507 U.S. 725, 734 (1993)).

                                               6
must give “meaningful consideration” to all of the statutory factors in 18 U.S.C.

§ 3553(a), United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006), and consider “any

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

basis,” United States v. Ausburn, 502 F.3d 313, 329 (3d Cir. 2007).

       There are, however, “no magic words that a district judge must invoke when

sentencing.” Cooper, 437 F.3d at 332. Sentencing courts need not discuss each of the

§ 3553(a) factors “if the record makes clear the court took the factors into account in

sentencing,” id. at 329, and “while the record must be adequate for review, it need not be

perfect,” Ausburn, 502 F.3d at 328; see also Rita, 551 U.S. at 339 (“The sentencing judge

should set forth enough to satisfy the appellate court that he has considered the parties’

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

authority.”). “[C]ontext and record are important in determining whether the sentencing

judge considered the evidence and arguments.” United States v. Thornhill, 759 F.3d 299,

314 (3d Cir. 2014) (internal quotation marks and citation omitted).

       Mgbolu challenges the court’s analysis under the third sentencing step. First,

Mgbolu contends he presented several arguments under § 3553(a)(l) and (a)(2) that the

court did not discuss when it explained the basis for his sentence. Specifically, Mgbolu

points to the court’s failure to discuss on the record: the loss of his business reputation;

the separation from his family that would be caused by his incarceration; the various

effects his Canadian citizenship would have on his incarceration; the nonviolent nature of




                                              7
his offense;                                                 While it is true a court may not

“ignore a colorable argument raised by a party if it concerns the applicability of one the §

3553(a) factors,” Thornhill, 759 F.3d at 311, the record confirms that the court

considered the applicable § 3553(a) factors and the arguments raised by counsel.

       In arguing procedural error, Mgbolu primarily relies on our decision in United

States v. Olhovsky, 562 F.3d 530 (3d Cir. 2009). There, the defendant appealed his

six-year sentence for possessing child pornography, arguing the district court had not

adequately considered all of the § 3553(a) factors and had instead unduly emphasized the

need to punish, deter, and protect society. Id. at 547. We agreed, and remanded for

re-sentencing, because it was not apparent from the record “that the court actually

considered the lengthy, very specific and highly positive reports of any of the three

defense experts. Rather, the court focused on incapacitation, deterrence and punishment

to the exclusion of other sentencing factors.” Id. We found the court’s characterization of

the evidence before it “inaccurate and unfair,” id. at 543, and the sentence “inconsistent

with all of the psychological testimony,” id. at 548. Ultimately, we found it “exceedingly

difficult to review th[e] sentencing transcript without becoming convinced that the

district court was so appalled by the offense that it lost sight of the offender.” Id. at 547.




                                               8
       Olhovsky offers a stark contrast from this case. Significantly there, the record did

not reflect a consideration of the defendant’s history and characteristics as required by

§ 3553(a)(1). Here, context and the record demonstrate that the court considered all of

Mgbolu’s arguments, particularly those pertaining to his history and characteristics. For

example, the court made clear its review of Mgbolu’s “thorough” sentencing

memorandum and commended counsel’s written advocacy. App. 130. The court even

expressed its view that it knew Mgbolu “much better” after reading the memorandum. Id.

In explaining its sentence, the court also made explicit its recognition that Mgbolu had

“presented a great deal of mitigating evidence,” App. 159, that it was “taking all of

[Mgbolu’s arguments] into consideration,” id., and its understanding that it needed to

“make an individualized assessment based on the facts presented in Mr. Mgbolu’s case,”

App. 129.

       Furthermore, while the court did not explicitly reference some of Mgbolu’s

specific arguments as to why § 3553(a)(l) and (a)(2) warranted a lesser sentence, our

precedent does not require so much of the trial judge. See, e.g., Thornhill, 759 F.3d at 314

(“After advising the parties that he was fully aware of Thornhill’s history and her

characteristics and that he had reviewed her extensive files, the District Judge

emphasized the need for structure in the sentence he must impose.”). “[I]f a party raises a

colorable argument about the applicability of one of the § 3553(a) factors, the district

court may not ignore it.” Merced, 603 F.3d at 215 (emphasis added). But, as Mgbolu




                                             9
concedes,8 the court clearly considered the applicability of § 3553(a)(l) and (a)(2) to the

circumstances of Mgbolu’s case, stating its consideration of “the history and

characteristics of Mr. Mgbolu, the difficulty of his upbringing, and the manner in which

he fled his country and relocated to Canada,” in addition to “his family conditions, the

medical matters that he has raised . . . . his lack of significant criminal history and . . . the

issue of sentencing disparity.” App. 160.9 At the same time, however, the court also noted

that the offense “took place over an extended period of time,” involved substantial

amounts of money and many victims, and “involved a level of sophistication that wasn’t

simply a momentary lapse in judgement.” Id.

       Mgbolu contends that “[m]erely reciting the § 3553(a) factors, saying that

counsel’s arguments have been considered, and then declaring a sentence” will not

suffice. United States v. Jackson, 467 F.3d 834, 842 (3d Cir. 2006). But that is not what

the District Court did here. And, the “court’s failure to give [certain] factors the weight

[Mgbolu] contends they deserve” does not mean that those factors were not considered.

United States v. Bungar, 478 F.3d 540, 546 (3d Cir. 2007).




8
  Specifically, Mgbolu admits “[t]he District Court did discuss section 3553(a)(l) and (2)
in broad terms and also mentioned some, but not all, of the mitigating arguments that Mr.
Mgbolu raised under those factors.” Appellant’s Br. at 23 n. 2.
9
  Thus, the court explicitly addressed Mgbolu’s separation from his family. The record
also demonstrates the court discussed with counsel at sentencing the effects Mgbolu’s
Canadian citizenship would have on his incarceration and Mgbolu’s cooperation with
federal authorities.

                                               10
       Mgbolu also contends the District Court erred because it did not make reference to

§ 3553(a)(7) (“the need to provide restitution to any victims of the offense”) when

imposing his sentence. The record does not reflect explicit recognition of this factor. But,

the record as a whole satisfies us that the court “considered the parties’ arguments.” Rita,

551 U.S. at 339. The sentencing court need not “make findings as to each of the §

3553(a) factors if the record makes clear the court took the factors into account in

sentencing.” Jackson, 467 F.3d at 841. Moreover, a court is obligated to respond only to

“properly presented” sentencing arguments. See Ausburn, 502 F.3d at 329. Mgbolu’s

§ 3553(a)(7) argument—that he would be in a better position to pay restitution if he were

in Canada—was a passing, conclusory statement in the sentencing memorandum and was

not presented by counsel at the sentencing hearing. We find no error, let alone plain error,

in the court’s failure to address this argument explicitly on the record.

       Lastly, Mgbolu argues more generally that the District Court’s sentence was

procedurally unreasonable because the court did not explain how his sentence met the

objectives outlined in § 3553(a)(2). Specifically, Mgbolu contends the court failed to

explain how the statutory maximum sentence was sufficient, but not greater than

necessary, to promote respect for the law or protect the public.

       Failing to “adequately explain the chosen sentence” can constitute significant

procedural error. Gall, 552 U.S. at 51; see also Merced, 603 F.3d at 214. The extent of

the explanation required, however, is influenced by whether the court has varied from the

Guidelines range. See Merced, 603 F.3d at 216. There is no “mathematical formula” for

assessing the adequacy of a district court’s explanation but we “may look for a more

                                             11
complete explanation to support a sentence that varies from the Guidelines than we will

look for when reviewing a sentence that falls within a properly calculated Guidelines

range.” United States v. Levinson, 543 F.3d 190, 196–97 (3d Cir. 2008); see also Gall,

552 U.S. at 50 (“[A] major departure should be supported by a more significant

justification than a minor one.”). “Courts need only state adequate reasons for a sentence

on the record so that [we] can engage in meaningful appellate review. In sum, we will not

elevate form over substance.” Dragon, 471 F.3d at 505–06 (internal quotation marks and

citations omitted) (alteration in original).

       Applying these principles to Mgbolu’s Guideline-recommended sentence, Mgbolu

has again failed to demonstrate any procedural error in the method by which his sentence

was imposed. The court adequately explained that the sentence was necessary because

Mgbolu’s crime was “a serious fraud that was committed over an eight-year period of

time, causing substantial losses to numerous victims.” App. 160–61. Further, the court’s

discussion of the sentencing factors and particular circumstances of the case satisfies us

that the court considered all of the parties’ arguments and imposed a procedurally

reasonable sentence. We see no error, let alone plain error.

                                               B.

       Finding no procedural error, we next turn to Mgbolu’s contention that it was

substantively unreasonable for the District Court to impose the statutory maximum

sentence. Mgbolu points to the mitigating evidence he presented and argues the court

“lost sight of the parsimony provision” by “focusing on the charge bargain and giving

undue weight to the Guidelines.” Appellant’s Br. at 30.

                                               12
       We review the substantive reasonableness of a district court’s sentence for abuse

of discretion. See, e.g., Tomko, 562 F.3d at 564. Substantive reasonableness requires the

district court to apply the § 3553(a) factors reasonably to the circumstances of the case,

see United States v. Lessner, 498 F.3d 185, 204 (3d Cir. 2007), and asks “whether the

final sentence, wherever it may lie within the permissible statutory range, was premised

upon appropriate and judicious consideration of the relevant factors,” United States v.

Schweitzer, 454 F.3d 197, 204 (3d Cir. 2006). In this inquiry, we are guided by the

recognition that “[t]he sentencing judge is in a superior position to find facts and judge

their import under § 3553(a) in the individual case.” Id. at 561 (quoting Gall, 552 U.S. at

51) (alteration in original). Thus, our review is “highly deferential,” Bungar, 478 F.3d at

543, and we will affirm a district court’s sentence “unless no reasonable sentencing court

would have imposed the same sentence on that particular defendant for the reasons the

district court provided,” Tomko, 562 F.3d at 568.

       Reviewing the record here, we cannot conclude that no reasonable court would

have imposed the statutory maximum taking into account the mitigating evidence

Mgbolu presented. As an initial matter, the statutory maximum was the Guideline

recommendation. (In fact, Mgbolu’s initial range was calculated to be 87–108 months—

significantly higher than the statutory maximum.) “[I]t is less likely that a within-

guidelines sentence, as opposed to an outside-guidelines sentence, will be unreasonable.”

Cooper, 437 F.3d at 331. The advisory range is itself one of the § 3553(a) factors and,

“by the time an appeals court is considering a within-Guidelines sentence on review, both

the sentencing judge and the Sentencing Commission will have reached the same

                                             13
conclusion as to the proper sentence in the particular case. That double determination

significantly increases the likelihood that the sentence is a reasonable one.” Rita, 551

U.S. at 347.

       Furthermore, contrary to Mgbolu’s contention, the record demonstrates his

sentence was based upon the court’s holistic assessment of the § 3553(a) factors and not

“primarily on the concept that [he] had already benefitted from the plea agreement.”

Appellant’s Br. at 27. Mgbolu again attempts to draw parallels to our decision in

Olhovsky, but here the court made only one reference to the charge bargain and the

sentencing transcript convinces us that the court did not “lo[se] sight of the offender,”

562 F.3d at 547, but actually took great care to consider the unique circumstances of

Mgbolu’s case. Indeed, and as the court recognized, Mgbolu overcame unique struggles

in his personal history. But the court was entitled to weigh this against the serious extent

of his fraud and the magnitude of the harm Mgbolu’s crime created. We see no abuse of

discretion in the court’s Guideline sentence.

                                             IV.

       Because Mgbolu has not demonstrated that the sentence was procedurally or

substantively unreasonable, we will affirm the judgement of conviction and sentence.




                                             14
