NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 08-1698

_____________ UNITED STATES OF AMERICA

v. ALHAYY HASAN, AKA Haywood Hinton, Appellant

_______________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 06-cr-174) District Judge: Hon. Legrome D. Davis

_______________ Argued December 15, 2010 Before: RENDELL, JORDAN and HARDIMAN, Circuit Judges

. (Filed: January 12, 2011)

_______________ Thomas A. Dreyer [ARGUED] 6 Dickinson Drive Bldg. 100 – Ste. 106 Chadds Ford, PA 19317 Counsel for AppellantMichael L. Levy Robert A. Zauzmer Denise S. Wolf [ARGUED] United States Attorney’s Office 615 Chestnut Street – Ste. 1250 Philadelphia, PA 19106 Counsel for Appellee

_______________ OPINION OF THE COURT

_______________ JORDAN, Circuit Judge

. Alhayy Hasan (“Hasan”), also known as Haywood Hinton, appeals an order of the United States District Court for the Eastern District of Pennsylvania denying his motion to withdraw his guilty plea to a charge of ba nk fraud in violation of 18 U.S.C. § 1344; he also appeals the sentence impos ed for the bank fraud. Hasan asserts that the District Court abused its discretion in denying his mo tion to withdraw his guilty plea, erred in deciding that he had waived any objection to venue, erred in calcu lating the loss pursuant to United States Sentencing Guidelines (“ U.S.S.G.”) § 2B1.1(b )(1)(D), and erred in imposing a four-level leadersh ip enhancement under U.S.S.G. § 3B1.1(a) for criminal conduct that involved five or more partic ipants or was “otherwise extensive.” Hasan’s arguments regarding the withdrawal and validity of his guilty plea and his objection to venue are plainly without merit. Likewise meritless is Hasan’s argument with respect to the District Court’s loss calc ulation. We will affirm the ruling of the District Court on those points and adopt its an alysis without further discussion. There is,

2however, merit to the challenge concerning th e four-level leadership enhancement and we will therefore vacate and remand for the District Court to more fully consider that issue. 1

I. Factual Background Because we write only for the parties, we assume familiarity with the facts and procedural history. Neve rtheless, we note the follo wing background information. 2 On August 12, 2005, Hasan and Deborah Phillips (“Phillips” ) went to a branch of Commerce Bank in Philadelphia, where they were arrested fo r attempting to open a bank account with false identification and a counte rfeit credit card. The following day, Hasan told Secret Service agen ts that he had provided Phillips w ith a false driver’s license, false corporate documents, a false credit card, and counterfeit checks. Ha san also admitted to possession of a counterfeit check in the amount of $8,111 “t hat he intended to deposit into a Commerce Bank account open ed by Phillips” on the day of the arrest. (App. at 43, 66.) Hasan consented to a search of his vehi cle, which resulted in the seizure of further

1 Hasan also argues that the District Court should have given grea ter consideration to the fact that he had served a sentence for violating supervised release. At oral argument, the government conceded that, as of the date of sentencing in this case, April 2, 2008, Hasan had already completed a 27-month viol ation-of-supervised-release sentence that the PSR had incorrectly noted was still pending in th e District of New Jersey. Given that error in the PSR, the governme nt agreed that the issue of what impact, if any, the completed 27-month sentence should have on the sentence imposed here could be appropriately raised on remand. The gove rnment did not concede, however, that the length of incarceration imposed was unreasonable in light ofthe 27-month violation-ofsupervised-release sentence. It agreed only that the se ntencing court should have complete and accurate informati on when imposing its sentence . We agree and leave it to the District Court to consider that issue on remand. 2 The following are the facts as given by the government in its factual recitation at the entry of plea hearing. After the recitation, Ha san agreed “the facts are true,” (App. at 45) and the Court accepted his plea. 3counterfeit account-opening documents, credit cards and checks, as well as several pieces of paper listing multiple names, dates of birth, and Social Security numbers. Hasan indicated that the driver’s license s and credit cards were manufactured by a person he identified simply as “Shafiq” an d that the false account-opening documents were provided by another unidentified party. Hasan stated that he recruited females to assist him in opening bank accounts using false documents. Hasan also admitted that, from approxim ately June 2005 to October 2005, he negotiated counterfeit checks th rough several bank accounts in the Southern District of New York. Those counterfeit checks were made payable either to Amir Import and Export, Inc., or to A&K, Inc., entities Hasa n used in furtherance of his fraudulent activities. On February 28, 2007, Hasa n pled guilty to Count One of the indictment charging him with bank fraud under 18 U.S.C. § 1344. 3 Subsequently, on April 4, 2007, Hasan filed a motion to withdraw his guilty plea. On November 12, 2007, after appointment of new counsel, he renewed his motion. A he aring on the motion was held on November 27, 2007. The District Court denied the motion, and impos ed a sentence of 60 months incarceration, five years supervised release, and restitution of $28,1 15.85. That sentence reflected a four-level upward adjustment under U.S.S.G. § 3B1.1(a) for Hasan’s role as

3 A person commits bank fraud if he “knowing ly executes, or atte mpts to execute, a scheme or artifice (1) to defraud a financia l institution; or (2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promis es.” 18 U.S.C. § 1344. 4the leader of a scheme that was “otherwise ex tensive.” (App. at 215-16.) In explaining its application of the leadership enhancement, the District Court stated: “[A]lthough the facts reflect Mr. Hasan recruited one indivi dual ... the adjustment is appropriate based upon the otherwise extensive nature of the offense, which is a fair statement.” (App. at 216.)

II. Discussion 4 We exercise plenary review over challenge s to a district court’s interpretation and application of the Federal Sentencing Guidelines. United States v. Katora, 981 F.2d 1398, 1402 (3d Cir. 1992). We review any a ssociated factual determinations for clear

error. United States v. Bierley, 922 F.2d 1061, 1064 (3d Cir. 2009). It is not settled in our precedents whethe r a defendant’s status under § 3B1.1(a) as “an organizer or leader of a criminal activity that ... [is] otherwise extensive” constitutes a question of fact or law or some mixture of the two. Compare United States v. Antico, 275 F.3d 245, 268 (3d Cir. 20 01) (applying clear error revi ew to the district court’s “factual determinations that [the appellant] was an organizer or leader and that his criminal activity involved five or more participants”) with United States v. Helbling , 209 F.3d 226, 243 (3d Cir. 2000) (holding “the Dist rict Court’s factual findings to be proper and its legal conclusion that Helbling was an organizer and leader unassailable”). We need not address that problem, however, beca use Hasan seems to acknowledge that the dispute here is factual, as he argues that th e District Court committed clear error in giving

4 The District Court had jurisdiction purs uant to 18 U.S.C. § 3231. We have jurisdiction under to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. 5the four-level enhancement. In any event, the fundamental problem in this case is that the District Court’s sentence is unreviewabl e under any standard be cause the record is inadequate to allow for meaningful appellate review. “After settling on the appropriate sentence, [a district court] must adequately explain the chosen sentence to allow for meaningful appellate review.” Gall v. United States, 552 U.S. 38, 50 (2007) (citation omitted); United States v. Merced, 603 F.3d 203, 215 (3d Cir. 2010) (same). It is not enough for a court to analyze the sentencing factors in silence; it must indicate on th e record that it has done so. Id . There is no “uniform threshold” for determining whether a court has supplied a sufficient explanation of its
sentence, United States v. Tomko , 562 F.3d 558, 567 (3d Cir. 2009), but it must demonstrate that it has considered the partie s’ arguments and has a reasoned basis for the sentence it chooses to impose. Merced , 603 F.3d at 216. In some instances, a short statement will be legally sufficient, and in others, a longer explanation may be appropriate. Id. at 215

. Pursuant to U.S.S.G. § 3B1.1(a), “[i]f the defendant was an organizer or leader of a criminal activity that involv ed five or more participants or was otherwise extensive,” the offense level is increased by four leve ls. Section 3B1.1(a) applies only if the defendant was an “organizer or leader” of the criminal activ ity in question. In making that determination, the court should consider the exercise of decision making authority , the nature of participation in the commission of the offense, the recr uitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control a nd authority exercised over others. 6U.S.S.G. § 3B1.1, App lication Note 4. The “otherwise extensive” language calls for a determination of the number of participants, both knowing and unknowing, and “whether the ro les and involvement of all those persons constitute the functional eq uivalent of five ‘participants.’” Helbling , 209 F.3d at 244. Helbling prescribes a three part test to aid in determining if activity is “otherwise extensive,” 209 F.3d at 248, which is expanded upon in Antico

. 5 275 F.3d at
270. Here, the plea colloquy does not show how the District Court determined whether § 3B1.1(a) should apply to Hasan. At the sentencing hearing, the Court briefly acknowledged the enhancement, stating, “alt hough the facts reflect Mr. Hasan recruited one individual ... the adjustment is appropri ate based upon the otherwise extensive nature of the offense, which is a fair statement.” (App. at 216.) At a previous motions hearing, the Court recognized that, for the purposes of finding the four level enhancement, a court need not make its “calculation based upon a pure number but ra ther ... [may look] at the

5 Under Helbling , the sentencing court must first separate participants from nonparticipants. 209 F.3d at 248. Second, the sentencing cour t must determine whether the defendant used the services of the non-partic ipants with a specific criminal intent. Id. Third, “the court must determine the extent to which the services of each individual nonparticipant were peculiar and nece ssary to the criminal scheme.” Id. The activities of non-participants are to be considered with respect to the particular offense charged and must “relate to the common crim inal activity or scheme.” Antico , 275 F.3d at 270. Once the court has determined which individuals s hould be counted, the court must decide if the sum of the participants a nd countable non-participants is the functional equivalent of five participants. Helbling, 209 F.3d at 248. That dete rmination is “guided by the sentencing court’s discretion,” and other factor s may be used to evaluate the value of countable non-participants. Id. 78 sort of textual nature of the conduct.” (Supp. App. at 307). At that hearing, the Court also stated it was obvious that “we’re sp eaking about persons th at the defendant has solicited to assist him in the criminal enterprise.” (Supp. App. at 306). The District Court’s statements are helpfu l in revealing its approach to Hasan’s sentencing, but, even when taken togethe r, they do not meet the minimum threshold required to enable us to conduct meaningf ul appellate review of its sentencing conclusion. See Merced, 603 F.3d at 215 (finding that, th ough there is no “mandatory script for sentencing,” the Dist rict Court must demonstrate th at it has carefully considered and analyzed the sentencing factors). Acco rdingly, we cannot determine if the court committed error here, clear or otherwise. Though there may well be sufficient evidence in th e record to support the application of a § 3B1.1(a) leadership enha ncement in this case, the District Court’s analysis and its reasoning for the application of the enhancement are unclear and, as the government has conceded, we must therefor e vacate the judgment order and remand for resentencing. 6
III. Conclusion For the foregoing reasons, we will affirm the District Cour t as to all issues except those pertaining to sentencing and thus w ill vacate and remand for resentencing.

6 In a letter dated December 13, 2010, the government ackn owledged that the District Court’s statement is inadequate and suggested that it is “most appropriate” for this issue to be remanded to the District Court for fu rther assessment. Letter from Zane Memeger, United States Attorney, to the Third Circuit Panel, United States v. Alhayy Hasan , No. 08-1698 (3d Cir. Dec. 15, 2010).