2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-25-2013

USA v. Daniel Sporrer

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2486

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 11-2486

____________

UNITED STATES OF AMERICA

v.

DANIEL SPORRER,

Appellant

____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2-09-cr-00311-001)

District Judge: Honorable Nora Barry Fischer

____________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 28, 2013

Before: FISHER, JORDAN and ALDISERT, Circuit Judges.

(Filed: November 25, 2013)

____________

OPINION OF THE COURT

____________

FISHER, Circuit Judge.
2

Daniel Sporrer appeals a judgment of the United States District Court for the 

Western District of Pennsylvania sentencing him to 27 months in prison and ordering him 

to pay restitution of $545,128.71. Sporrer's counsel also moves to withdraw his 

representation pursuant to Anders v. California, 386 U.S. 738 (1967). For the reasons 

stated below, we will affirm the judgment of the District Court and grant counsel's 

motion to withdraw.

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 November 17, 2009, a grand jury returned a one-count indictment charging 

Sporrer with conspiracy to commit wire fraud, in violation of 18 U.S.C. §§ 1343 and 

1349, related to his involvement with a mortgage fraud scheme. Sporrer initially pleaded 

not guilty to the charges, but later entered an open plea of guilty. Prior to sentencing, the 

United States Probation Office prepared a presentence report ("PSR"),1 which assigned 

Sporrer a base offense level of seven. The PSR then added 16 levels based upon a loss 

amount of between $1,000,000 and $2,500,000, pursuant to U.S.S.G. § 2B1.1(b)(1)(I), 

and added an additional two levels because he abused a position of trust in the course of 

the scheme, pursuant to U.S.S.G. § 3B1.3. Sporrer then received a three-level reduction 

 

1

The 2009 edition of the Guidelines Manual, including amendments effective 

November 1, 2009, was used in this case.
3

due to his timely acceptance of responsibility. Because Sporrer did not have a criminal 

history, he received zero criminal history points. Based upon those calculations, the PSR 

arrived at a total offense level of 22 and a criminal history category of I, which resulted in 

a Guidelines range of 41-51 months. 

Sporrer objected to the PSR, arguing that the loss amount should have been 

calculated based upon the amount he gained from the scheme, which was only $25,000. 

The District Court rejected Sporrer's argument, concluding that the PSR categorized the

loss amount correctly, and adopted the PSR advisory Guidelines range. Sporrer then 

requested a variance, which the Court granted based upon his personal history, support 

from the community, and involvement with his family. SA281-82; SA302-03. Although 

the District Court granted Sporrer's request, it made a point of noting that it did not 

believe that the evidence, specifically the nature of the scheme and the loss to the victims, 

warranted a variance that would take him down to a probationary level. The District 

Court then sentenced him to 27 months' incarceration and ordered him to pay restitution 

to the victims in the amount of $545,128.71, the amount it concluded was the "actual 

loss" suffered by Sporrer's victims.2 

 

2

To arrive at this amount, the District Court calculated the actual loss to three 

victims stemming from the mortgage fraud scheme - the difference between the 

outstanding balance of the fraudulent loan and the sales price. A48-51. Although the 

Court only utilized the "actual loss" calculations for purposes of restitution, it concluded, 

in a well-reasoned analysis, that the Government had met its burden in proving that the 

estimated total loss exceeded the $1,000,000 threshold for purposes of the 16-level 

enhancement. See A50-58.
4

Sporrer filed a timely notice of appeal. His counsel then filed an Anders brief, 

indicating that he had reviewed the record and found no meritorious basis for Sporrer's 

appeal. 3 

II

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

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). 

Counsel may file a motion to withdraw representation under Anders if, after 

reviewing the record, he is "persuaded that the appeal presents no issue of even arguable 

merit." Third Circuit L.A.R. 109.2(a). When counsel submits an Anders brief, our 

inquiry is twofold: "(1) whether counsel adequately fulfilled the rule's requirements; and 

(2) whether an independent review of the record presents any nonfrivolous issues." 

United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). "Where the Anders brief 

appears adequate on its face," we will rely on it to guide our review of the record. Id. at 

301. 

III.

Counsel's Anders brief identifies three potentially appealable issues: (1) whether 

the District Court properly determined loss under U.S.S.G. § 2B1.1; (2) whether the 

District Court properly ordered Sporrer to pay restitution in the amount of $545,128.71; 

and (3) whether the District Court's sentence was reasonable. In identifying these issues, 

 

3 Although given the opportunity to do so, Sporrer did not file a supplemental 

brief.
5

counsel adequately reviews the record and relevant law and explains the frivolous nature 

of the appeal. For that reason, we are satisfied that counsel's Anders brief has fulfilled 

the rule's requirements and is adequate on its face. We therefore move forward in 

examining the arguments it presents.

A.

Sporrer argued in the District Court that his loss amount should be limited to the 

amount of his gain, which he avers was $25,000, rather than the amount of the victims' 

losses. Counsel concludes that this argument has no legal basis. We agree.

We have observed that "loss," as defined in the Sentencing Guidelines, "represents 

the loss to the victims before restitution takes place, and is used to set a fine 

corresponding to the monetary harm caused by the defendants' conduct." United States v. 

Nathan, 188 F.3d 190, 209 (3d Cir. 1999) (emphasis added). It is therefore clear that the 

District Court was correct in ordering Sporrer to pay a restitution amount based upon the 

amount of loss suffered by his victims. Accordingly, an appeal regarding the District 

Court's determination of loss would be frivolous. 

B.

Sporrer's counsel next addresses the possibility of a challenge to the District 

Court's restitution order. "We 'review a restitution order under a bifurcated standard: 

plenary review as to whether restitution is permitted by law, and abuse of discretion as to 

the appropriateness of the particular award.'" United States v. Fallon, 470 F.3d 542, 548 
6

(3d Cir. 2006) (quoting United States v. Quillen, 335 F.3d 219, 221 (3d Cir. 2003)). 

We conclude that the District Court's order of restitution was permitted by law. 

The Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663 et seq., "mandates 

that defendants who are convicted of or plead guilty to certain crimes pay restitution to 

their victims." Quillen, 335 F.3d at 222. The purpose of the statute is, "to the extent 

possible, to make victims whole, to fully compensate victims for their losses, and to 

restore victims to their original state of well-being." Id. In instances where the damage 

or loss affects a victim's property, "the restitution order shall require that the defendant 

return the property or, if return is impossible, pay an amount equal to the greater of the 

value of the property on the date of the damage, loss, or destruction." Id. (citations 

omitted) (internal quotation marks omitted). 

Here, the District Court found that a number of properties were affected by 

Sporrer's involvement with the mortgage fraud scheme. Because the properties were not 

"taken" in the sense that they could be returned as restitution, the Court's only practical 

option was to order him to pay the amount of loss attributable to each victim. 

We also conclude that the particular award issued by the District Court was 

appropriate. Here, the record indicates that the District Court was careful in its 

calculation of loss. The Court conducted an evidentiary hearing and agreed with both the 

PSR and the government's conclusion that the total loss exceeded $1 million. However, 

it only sentenced Sporrer to a restitution amount of half of that figure, based upon the 
7

actual loss attributable to three different victims. Because the District Court carefully 

analyzed the calculation of loss attributable to Sporrer, and based those calculations on 

reasonable measures, we cannot conclude that it abused its discretion when it ordered 

Sporrer to pay his victims $545,128.71 in restitution.

Accordingly, a challenge to the District Court's restitution order would be 

frivolous.

C.

The last potentially appealable issue discussed by Sporrer's counsel relates to the 

reasonableness of the sentence imposed by the District Court. We review a district 

court's sentencing decision for an abuse of discretion, and our analysis proceeds in two 

stages. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009). We first review for 

procedural error, ensuring that the district court: (1) correctly calculated the defendant's 

advisory Guidelines range; (2) appropriately considered any motions for a departure 

under the Guidelines; and (3) gave meaningful consideration to the sentencing factors set 

forth in 18 U.S.C. § 3553(a). United States v. Wright, 642 F.3d 148, 152 (3d Cir. 2011). 

If the sentencing decision passes the first stage of review, we then consider the 

substantive reasonableness of the decision. United States v. Levinson, 543 F.3d 190, 195 

(3d Cir. 2008). Our substantive review focuses on the totality of the circumstances. 

Tomko, 562 F.3d at 567.
8

After reviewing the record, we conclude that the District Court's sentence was 

both procedurally and substantively reasonable. When a district court sentences a 

defendant, it must "produce a record sufficient to demonstrate its rational and meaningful 

consideration of the § 3553(a) factors." United States v. Begin, 696 F.3d 405, 411 (3d 

Cir. 2012) (citing United States v. Merced, 603 F.3d 203, 215-16 (3d Cir. 2010)). The 

record, taken in its entirety, must make clear that the district court "has considered the 

parties' arguments and has a reasoned basis for exercising [its] own legal decisionmaking 

authority." Merced, 603 F.3d at 215-16 (quoting Rita v. United States, 551 U.S. 338, 356 

(2007)). It is not necessary that the district court "raise every conceivable issue on [its]

own initiative" or even "discuss every argument made by a litigant if an argument is 

clearly without merit." Id. at 215. "However, if a party raises a colorable argument about 

the applicability of one of the § 3553(a) factors, the district court may not ignore it." Id. 

Thus, "the court must acknowledge and respond to 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). 

Here, the District Court conducted a detailed sentencing hearing, during which it 

thoroughly considered and addressed each argument Sporrer presented in support of a 

downward variance and a sentence of probation. The Court heard testimony from 

witnesses, from Sporrer, and considered the arguments presented by counsel, before 

concluding that it would grant Sporrer's motion for a downward variance. Finally, the 
9

Court addressed each of the § 3553(a) factors and, after varying downward from his 

initial Guidelines range, sentenced Sporrer to 27 months of incarceration. Against that 

backdrop, we are satisfied that the District Court's sentencing decision was procedurally 

reasonable. 

We now turn our inquiry to the substantive reasonableness of the decision. Here, 

the District Court sentenced Sporrer well below the advisory Guidelines range after 

partially accepting his arguments and granting his motion for a downward variance. 

Additionally, the Court made a point to note that, while it granted the variance, it did not 

believe that the evidence warranted a variance that would take him down to a 

probationary level. Because we cannot say that "no reasonable sentencing court would 

have imposed the same sentence on [Sporrer] for the reasons the [D]istrict [C]ourt 

provided," Tomko, 562 F.3d at 568, we conclude that the sentence was substantively 

reasonable. 

Accordingly, any argument with respect to the reasonableness of Sporrer's 

sentence would be frivolous.

V.

For the reasons stated above, we will affirm the District Court's judgment of 

sentence and grant counsel's Anders motion.