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. e du/thir dc ir c uit_2014/6721 PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No s . 13

- 2876 , 13

- 2877, 13

- 2878

_____________

UNITED STATES OF AMERICA

v.

THERESA M. THORNHILL,

Appellant

___________ __
On Appeal from the United States District Court
for the We stern District of Pennsylvania
District Court No s

. 2

- 02

- cr

- 00084

- 001 ; 2

- 07

- cr

- 00388

- 001; 2

- 09

- cr

- 00154

- 001 District Judge: The Honor able Terrence F. McVerry

Argued March 6, 2014

Before: RENDE LL, SMITH, and HARDIMAN,

Circuit Judges

(Filed: July 8, 2014 )2 Rebecca R. Haywood Michael L. Ivory [ARGUED] Office of United States Attorney
700 Grant Street
Suite 4000 Pittsburgh, PA 15219 Counsel for Appellee

Elisa A. Long [ARGUED]
Office of Federal Public Defender 1001 Liberty Avenue 1500 Liberty Center Pittsburgh, PA 15222 Counsel for Appellant

_____________________

OPINION

_____________________

SMITH, Circuit Judge.

In 1984, Congr ess enacted the Sentencing Reform
Ac t, a measure which profoundly “revise[d] the old sentencing process.” Mistretta v. United States , 488 U.S. 361, 367 (1989). One of the reforms effected by th e Act was the elimination of special parole and the establishment of a “new system of supervised release.” Gozlon

- Peretz v. United States , 498 U.S. 395, 3973 (1991). Th e “ new sy stem ” wa s codified in 18 U.S.C. § 3583 , and included a provision at subsection (g) which mandates the revocation of supervised release and the imposition of a term of imprison ment under certain
enumerated circumstances. 18 U.S.C. § 3583(g). 1

The question we consider is : once § 3583(g)’s mandatory revocation provision is triggered, what guides a district court’s exercise of discretion in determining the length of the defendan t’s term of imprisonment ? We
conclude that this exercise of discretion is guided by the sentencing factors set forth in 18 U.S.C. § 3553(a)

.

I.

In 2002, Theresa Thornhill pled guilty to a single count of bank fraud in violation of 18 U.S.C. § 1344(a) in
the United States District Court for the Western District of Pennsylvania

. On May 23, 2003, the District Court
sentenced Thornhill to

, inter alia

, 21 months of imprisonment and a five

- year term of supervised release

.

1 Section 3583(g) provides, in relevant part, that if the defendant engages in certain conduct involving controlled substances or firearms, that “the court shall revoke the term of supervised release and require the defendant to serve a term of imprisonment not to exceed the maximum term of imprisonment authorized under subsection (e)(3).” 18 U.S.C. § 3583(g).4 She was also directed t o m ake restitu tion in the amount of $25,521.12 (2003 Conviction).

Thornhill’s five

- year term of supervised release for
the 2003 Convict i on commenced on December 30, 2004.
In a P etition on Supervised Release dated May 30, 2007 (First Petition) , Tho r n hill’s probation of ficer advised the
District Court that : Thornhill had submitted six urine samples t h at tested positive fo r marijuana ; she had failed to attend her outpatien t treatment for substance abuse;
she had n either reported to her probation officer n or filed the req uisite reports ; and she had not made any payments
toward restitution.

The District Court issued a bench warrant

, and
T hornhill was arrested in July 2007. Thereafter, the probation officer filed a M otion to S upplement the
Petition on Supervised Release (Second P etition)

, alleging additional violation s of the conditions of her supervised release. The Second Petition charged that Thornhill had engaged in fraudulent conduct by opening
four bank accounts at four different branches of National City Bank usin g four different Social S ecurity number s

. It alleged that s h e h ad deposited checks drawn on closed

accounts into these new accounts , and concluded that this
conduct amounted to bank fraud under 18 U.S.C. § 1344(1), fraudulent use of social security numbers
under 1 8 U.S.C. § 407(a)(7)(B), and aggravated identity
theft under 18 U.S.C. § 1028A(a)(1) . Exhibits attached5 to the Second Petition established that National City
Ban k sustained a loss of $7,648.65.

On November 1 6 , 2007, Thornhill waived her right

to an indictment and pled guilty to a one

- count information charging her with bank fraud in violation o f 18 U.S.C. § 1344(1) (2007 Conviction)

. The information
was based on the criminal conduct described in the
Se cond P etition

. At her guilty plea, Thornhi ll’s defense counsel

a dvised the District Court that , according to the pretrial
services office

, Thornhill wa s cooperating with the
conditions of her release . Specifically, counsel told the
court that she was reporting to her probation officer as required and that her weekly drug screens tested negative . In addition, defense counsel noted th at th e supervising probation officer hop ed that Thornhill could
move out of the residence of a thir d

- party custodian

, and was agreeable to eliminating the electronic m onitoring
that had been a condition of her pre

- trial release. T he

p robation officer confirmed counsel’s representations. The District Court agreed to the modifications.

On February 25, 2008, Thornhill’s probation
officer filed a S upplem en tal P etition o n Supervised
R elease (Third Petition) . Th is new petition alleged that
Thornhill had again tested positive for marijuana on three occasions in January and February of 200 8

, thereby
violatin g conditions of supervised release stemming from6 her 2003 Convictio n. T he Third P etition also reference d Thornhill’s guilty plea to the 2007 information, which
established the commission of a federal crime

.

On M arch 28, 2008, the District Court conducted
both a sentencing hearing for the 2007 Conviction and a hearing on the First, Second, and Third Petitions

, which alleg ed violations of the terms of her supervised release

on the 2003 Conviction. Defense counsel offered several
exhibits intended to provide insight into Thornhill’s personal circumstances , including a fourt een page, single

- spaced report from clinical psychologist Jolie S. Brams, Ph. D.

Dr. Brams’s report was thorough. She noted that

, contrary to an earlier presentence report, Thornhill had a significan t history of psychiatric issues as a child . This
histo ry included hospitalizations, and noted “a complete lack of parental concern or nurturing.” The report also described a history of sexual abuse at the hands of a family member which had result ed in her placement in to foster care. Thornhill’s m arriage was similarly marked by physical and mental abuse. Dr. Brams opined that Thornhill had many of the signs and symptoms of post

traumatic stress disorder and that her “mental health difficulties impacted her ability to deal with her life in a consistently effi cacious manner, cloud[ed] her judgment,
and made her more vulnerable to [the] manipulations of her husband.” Dr. Brams described at length t h e impact
of the domestic violence Thornhill experienced and7 characteriz ed her extended family situation as “ toxic. ”
The report highlighted the limited resources available to help Thornhill.

A ccording to Dr. Brams, Thornhill had so me insight into her predicament , and she o pined that ther e could be a “good prognostic ou t come if the c orrect resources are put in place

. ” The report concluded by stating:

Appropriate psychiatric treatment is also crucial, and she has demonstrated a willingness to comply and recognizes her need for these services. She clearly want s to have a “normal” life, but has had little opportunity t o learn how to create one. However, underneath a history of dysfunction appears to be a young woman who has the potential to change.

Defense counsel also provided th e District Court
with a six page, single

- spaced supplemental report from
Dr. Brams. The supplemental report discussed Thornhill’s progress over the p revious six months. Dr. Brams opined that

Thornhill’s life is as stable as it likely has ever been, and while she recognizes the support of her probation officer, attorney, and counselor, i n re ality it is Ms. Thornhill8 who has generally dealt in an appropriate manner with her life, as an adult, p arent, employee, and citizen. I t is important for
the C ourt to note that she has done so in the
face of continuing stressors, and immense family dysfun ction with purposeful threats to her emotional and physical safety by various family members.

The supplemental report advised that Thornhill was employed part time as a licensed nursing assistant. According to Dr. Brams, Thornhill was rec eiving counseling services and comply ing with her medication regime.

Thornhill’s family continued to present obstacles for her, especially those created by her abusive husband

. Dr. Brams noted that Thornhill was concerned about who
would care for her children if she wer e to be incarcerated

. And Thornhill expressed a belief that the progress she
ha d made w ould be negated if she were to be
incarcerated. Dr. Brams opined that Thornhill “has done well during the last few months,” making “solid and positive recovery from ma ny traumatic events. ”

Beyond her written reports, Dr. Brams testified at the hearing . She acknowledged that Thornhill h a d used marijuana, but noted th at it was on a therapeutic basis
when she had run out of her medicat i on and when she “was under a great deal of stress. ” According to Dr.9 Brams, Thornhill did not use marijuana “ for recreational purposes.” Thornhill’s probation officer also testified about her progress following the 2007 Conviction.

After hearing the testimony, the District Court impose d sentence. Looking at a g uideline range for bank
fraud of eight to fourteen m onths of imprisonment

, t he
Cour t granted a substantial downward variance based on Thornhill’s diminished mental capacity and her responsibility for raising her two sons. He sen tenced her to one day of imprisonment, imposed a five

- year te rm of supervised release , and directed that she pay restitution to National City Bank

. The hearing then turned to the violations alleged in the First, Second, and Third Petition s

. Thornhill
ad mitted the allegations in the petition s , and t he government encouraged the judge to impose a within

guideline sentence of twelve to eighteen months of imprisonment. Nevertheless, after revoking her supervised r elease on the 2003 Conviction, t he District
C ourt s entenced her to one day of imprisonment

, to be served concurrently with the sentence imposed for the
2007 Convict i on. I mportantly, the Court imposed
another three

- year term of supervised release for the
2003 Conviction.

The terms of the supervised release imposed for
the 2007 Convict i on included a nine

- month period of home detention during which Thornhill was required to10 wear an electronic monitoring device. In September 2008, a lmost six months after being sentenced, Thornhill was the subject of y et a nother Petition on S upervised
R elease (Fourth Petition) , this one alleging that she had tampered with he r electronic monitoring transmitter. 2 In addition, the Fourth Petition alleged that Thornhi l l had again tested positive several times for marijuana

.

A Su pplemental Petition on Supervised R elease (Fifth Petition) followed just a month later. This Petition alleged that Thornhill had failed : to attend scheduled mental health appointments ; to attend scheduled visits with her probation officer ; to file the reports that were required by the terms of her supervised release ; and to make any payments toward restitution.

On October 28, 2008, yet another revocation hearing was conducted before the same District Judge.
Thornhill admitted to us ing marijuana and that she had not been wearing the monitoring device as required. She
also admitted to the violations set forth in the Fifth
Petition. Once again, t he judge found that Thornhill had violated the conditions of supervised release and revoked her supervi sed release on both the 2003 and the 2007
Conviction s

. He imposed a within

- guideline term of imprisonment of nine months on each c onviction

, to be

2 According to the Fourth Petition, police officers were at her apartment and found her ten

- year

- old son we aring the electronic monitoring transmitter. A246.11 served concurrently , followed by a 24

- month term of supervised release.

The allegations in the Fourth and Fifth Petition s did not include averments that Thornhill had engaged in
additional criminal conduct. But a n indictment returned by a grand jury in May 2009, alleged that from “May 2008 to in or around July 2008

, ” Thorn h ill again “knowingly execute[d] and attempt[ed] to execute a scheme and artifice to defraud” another bank in violation
of 18 U.S.C. § 1344. On October 9, 2009 the same District Judge who had sentenced Thornhill on her 2003
and 2007 Convictions for bank fraud

, accepted Thornhill’s guilty ple a to the offense of bank fraud (2009 Conviction). In February of 2010, he sentenced
Thornhill to a term of imprisonment of 24 mo nths, followed by a four

- year term of supervised release and

pay ment of restitution.

Thornhill’s term of supervised release o n the 2003, 2007, and 2009 Conviction s commenced on July 27,
2011

. 3 In a Show Cause Petition (Sixth Petition) dated April 26, 2013, Thornhill’s pr obation officer alleged that Thornhill had again violated the terms of her supervised

3 It appears that Thornhill was sentenced to 24 months of imprisonment in February of 2010 and that only seventeen months passed when her supervised release commenced on July 11, 2011. The record, howeve r, does not explain why she did not serve the entire 24 months.12 release for each convic tion. The S ixth Petition alleged
that : she had committed several violations of Pennsylvania ’s Vehicle Code and Criminal Code ; tested positive for marijuana on seven occasions ; 4 failed to
attend mental health treatment appointments ; and neither report ed to the probation office for drug testing as required n or submit ted the required monthly report. In addition, the S ixth Petition averred that Thornhill had
made n o restitution payments on the 2007 and 2009
Conviction s and owed more than $25,000 on the 2003
C onviction.

On June 4, 2013, t he same District Judge who had sentenced Thornhill on her 2003, 2007, and 2009
C onvictions conducted a third revocation hearing

. The
Court recounted in detail Thornhill’s criminal history and
set for th the alleged violations o f the terms of her supervised release on the record. Defense counsel noted
that Thornhill ad mitted the allegations in the Sixth Petition except for the state law violations and the
averment that she had failed t o report to the probation
office

. The proba tion officer noted Thornhill’s psychiatric disorders and that she had been traumatized

4 Section 3583(g) mandates revocation “[i]f the defendant . . . as a part of drug testing, tests positive for illegal
controlled substances more than 3 times over the course of 1 year.” 18 U.S.C. § 3583(g)(4). Thornhill’s positive tests triggered § 3583(g)’s applicability.13 because she had witnessed her brother’s murder. In the wake of this murder, the probation officer noted,
Thornhill also had to cope with the murder of one of her

sons a nd the fact that another son sustained serious injuries in a motor vehicle accide nt. The probation
officer acknowledged that Thornhill ’s fail ur e to comply with the reporting requirement occurred dur ing this
turbulent time.

The Court then heard argument

, during which
d efense counsel noted that Thornhill’s violations were Grade C violations and urged the Court not to revoke her supervised release. He emphasized the tragic nature of Thornhill’s case , a cknowledging that the “Court is aware of her history.” Counsel went on to r ecount Thornhill’s psychiatric disorders, her abusive childhood and marriage, and the series of tragic events involving the murders of her brother and her son, a s well as the car accident involving her other son . Counsel conceded that
Thornhill had tested positive for marijuana , but explained
that s he was self

- medicating in light of her
circumstances

. C ounsel urged that, instead of revoking her supervised release, the Court should provide her with
“structure.”

The Court responded to counsel by stating :

“ T hat’s what we’ve been trying to give her

. . . . She’s been here, and been here, and been here. That’s what the whole plan has been. [The probation office r ] has worked hard to try to give her a structure.”14 The judge asked the pr obation officer whether supervised release should be revo ked. The probation officer replied that she had tried to work with Thornhill by referring her to different programs , but that Thornhill
had failed both to follow through and to comply with
directive s from the Court . The probation officer expressed her belief that Thornhill “needs the structure d environment, such as prison.” The government agreed, once again, urg ing the Court to impose a substantial

sentence . The Assistant U.S. Attorney recommend ed a three

- year period of imprisonment, consisting of a one

year term of imprisonment on each conviction.

The Court concluded that Thornhill had violated the conditions of her supervised release. Thornhill then
address ed t he Court . Sh e referred to the une xpected

trauma in her life and stated:

I’m not asking you for anything, but if you want to put me in jail, that’s fine. The only thing I’m asking is, that I’ve always reported, I’ve never not showed up for court. I’ve never showed you any disrespect to n ot report. I’m just asking

– I wasn’t able to be there when my brother’s murderers were convicted. I’m just asking, can I be there when the person who shot my child is tried. That’s all I’m asking. I f you want to sent me away, that’s fine, Your Honor. But I did

not co me o ut of prison to disrespect you.15 In response to Thornhill’s remarks, the District Judge stated the following:

Whatever you’ve done or not done, Miss Thornhill, I personally don’t feel as though you’ve disrespected me. The law is the law, and you’ve been here time and again and been asked to comply with the law, and do
what the Probation O ffice has been attempting to help you do . And although you have personal issues, and I recognize those, to be honest, you’ve been a very, very
diffi cult person to deal with whenever you’re not in a controlled environment. And I don’t know whether you ’ r e difficult to deal with when you ’ r e in a controlled environment, but I’ve had nine years of experience with you and it’s been time, after time, after time.

Th e District Court then found that Thornhill had committed Grade C violations, including the positive drug tests for marijuana and the failure to participate in the various programs designed to address he r mental
health disorders and her substance ab use. The Court explained that the positive drug tests triggered the mandatory revocation provision in § 3583(g), which required a term of imprisonment. The Court acknowledged an exception to § 3583(g)’ s mandatory16 revocat i on

. 5 He concluded , however, that this exception was not warranted in Thornhill’s case in light of the unsuccessful efforts that had already been made to address her substance abuse problems. The judge
revoke d her supervised release on each conviction

, noting that she was subject to impr isonment for not more than three years on each conviction

. 6 The Court imposed

a term of imprisonment of twelve months for each conviction to be served consecutively

, with “ no supervised release to follow , as you have proven yourself to be unmanageable in a free society environment.” T he
District Court directed that Thornhill begin her 36

- month sentence immediately

. 7

5 Section 3583(d) provides that the “Court shall consider whether the availability of appropriate substance abuse treatment programs, or an individual’s current or past

p articipation in such programs, warrants an exception . . . from the rule of section 3583(g) when considering any action against a defendant who fails a drug test.” 18 U.S.C. § 3583(d).

6 In reviewing the advisory guideline for each conviction,
the Dist rict Court pointed out that the advisory guideline range for the 2003 Conviction was three to nine months, five to eleven months for the 2007 Conviction, and six to
twelve months for the 2009 Conviction. A399.

7 Because he had been advised that the trial of her son’s murderer was scheduled to commence in a week, the17 Thornhill filed a timely notice of appeal, challenging the revocation of supervised release in each of the three criminal proceedings. 8

II.

Thornhill contends that the sentences the District Court imposed upon revocations were procedurally and substantively unreasonable. In particular, Thornhill

assert s that the District Judge erred by failing to articulate
h is reasons for rejecting the recommended guideline range, and by failing to indicate if, or how

, he considered
the sentencing factors enumerated in 18 U.S.C. § 3553(a)

. In addition, Thornhill submits that the District Court failed to respond to her mitigation arguments.
A ccording t o Thornhill, these errors rendered the District Court’s sentences substantively unreasonable.

The government contends that Thornhill’s arguments lack merit , arguing that a district c ourt “is not required to consider the § 3553(a) factors when
revocation of supervised release is governed by

judge requested the cooperation of the United States Marshal’s Service while Thornhill was in local custody in the event she was subpoenaed to appear.

8 T he District Court exercised jurisdictio n under 18 U.S.C. §§ 3231 and 3583(g). We have appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).18 § 3583(g).” For that reason alone, the government

asserts that Thornhill’s claim of procedural error must fail. Nonetheless, the government submits that the District Court did consider some of the § 3553(a) sentencing f

actors and that the Court’s revocation order
is neither procedurally nor substantively unreasonable.

III

. 9

A.

According to the government, this court has
determined that once § 3583(g) applies, the District Court is not required to consider the § 3553(a) factors in

9 The question of whether the District Court is required to consider the § 3553(a) factors in imposing a term of imprisonment under § 358 3(g) presents an issue of law subject to plenary review. See United States v. Smith

, 445 F.3d 713, 716 (3d Cir. 2006) (noting, in the context of an appeal challenging a condition of supervised release, that our review is plenary to the extent it

concerns a legal issue); see also United States v. Poellnitz , 372 F.3d 562, 570 (3d Cir. 2004) (applying plenary review to question of statutory interpretation involving § 3583(i)). We review the procedural and substantive reasonableness of a sentence imposed upon revocation of supervised release for an abuse of
discretion. United States v. Bungar , 478 F.3d 540, 542 (3d Cir. 2007).19 imposing a term of imprisonment. It relies on our decision in United States v. D oe , 617 F.3d 766, 772 (3d Cir. 2010) . There, we noted th e two types of revocation proceedings: discretionary revocation under § 3583(e)(3)
and mandatory revocatio n under § 3583(g)

. Id. With regard to the mandatory provision, w e stated that “[w]hile [mandatory revocation under] § 3583(g) does not expressly require consideration of the § 3553(a) factors, it does not prohibit the sentencing court from doing so.” Id

. Ostensibly

, th is language lends some support for the government’s contention that the District Court did not err because it was not required to consider the § 3553(a) factors. Yet t h e Doe language i s not controlling

. B ecause the Doe Court ultimately concluded that the District Court had exercised its authority under § 3583(e)’ s discretionary revocation provision , the statement relied upon by the government is dictum

. Furthermore, the Court’s “ observation ” that § 3583(g)
does not explicitly refer to t he § 3553(a) factors does not amount to a holding that these factors have no role to play in a mandatory revocation proceeding

. 10 Accordingly, we are left to decide whether the § 3553(a)
factors must be considered by a district judge in deciding

10 Indeed, the government tacitly acknowledges as much. In its Rule 28(j) letter, the government characterized this quotation from Doe merely as an “observation.”20 the length of a term of imprisonment following mandatory revocation under § 3583(g)

.

B.
In t he absence of binding authority

, we must determine whether the statute provides specific guidance to a district judge when exercis ing his/her discretion in choosing an approp riate t erm of imprisonment following mandatory revocation of supervised release

. “Statutory interpretation requires that we begin with a careful reading of the text.” Zimmerman v. Norfolk S. Corp. , 706 F.3d 170, 177 (3d Cir. 2013). See also B arnhart v. Sigmon Coal Co. , 534 U.S. 438, 450 (2002) ( “As in all statutory construction cases, we begin with the language of the statute.” )

.

Our inquiry is not confined solely to the text of § 3583(g). Rather, “[i] n matters of statutory interpretation, the ‘plain m eaning’ of statutory language is often illuminated by considering not only ‘the particular statutory language’ at issue, but also the structure of the section in which the key language is found, [and] ‘the design of the statute as a whole and its object .’ ” United States v. Tupone , 442 F.3d 145, 151 (3d Cir. 2006) (quoting United States v. Schneider , 14 F.3d 876, 879 (3d Cir. 1994) )

. Our analysis, therefore, is informed not only by the text and structure of § 3583 in its entirety, but also the text and str ucture of the Sentencing Reform Act, §§ 3551

- 3586, which established the sentencing regime.21 Section 3583 pertains to supervised release. 18 U.S.C. § 3583. This section establishes that supervised release may be imposed initia lly as a component of a

sent ence. Id. § 3583(a). In addition, once imposed, supervised release may be terminated, extended, or
revoked. Id. § 3 583(e)(1), (2), and (3). If supervised
release is revoked and a term of imprisonment is imposed, that i mprisonment ma y be followed by ano ther term of supervised release. Id. § 3583(h).

Re vocation of supervised release takes two fo rms: discretionary under § 3583 (e) and mandatory under § 3583(g). Doe , 617 F.3d at 772. Section 3583(e )
establishes a three

- step process for discretionary

r ev ocation : (1) a finding by the court that the defendant violated a condition of supervised release; (2) a decision by the court to revoke the defendant’s term of supervised release; and (3) following revocation, the imposition of a penalty. 11 Significantl y, subsection (e) directs that the

11 18 U.S.C. § 3583(e)(3) (“The court may, after considering [certain] factors set forth in § 3553(a) . . . revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release. . . if the

court

. . . finds by a preponderance of the evidence that the defendant violated a condition of supervised release”).22 court’s decision to revoke at step two must be made

“ after considering” certain factors set forth in § 3553(a)

. 18 U.S.C. § 3583(e).

Section 3583(g) pertains to mandatory revocation. The process set out in this sub section is similar to that of § 3583(e) but eliminates step (2) and makes no reference to § 3553(a). Thus, this subsection entails only two steps: (1) a finding by the court that one of the fou r circumstances in § 3583(g)(1)

– (4) occurred ; and (2) if so,
revocation is automatic and the court must impos e a “term of imprisonment” as a penalty.

Th is two

- step process makes clear why Congress referred in § 3583(e) to the § 3553(a) sentencing factors

, and why it did not need to mention § 3553(a) in the
mandato ry revocation provision in § 3583(g). Congress explicitly tied consideration of the § 3553(a) factors in § 3583(e) to the exercise of discretion by a d istrict c ourt in deciding whether to “(1) terminate a term of supervised release [,] . . .(2) extend a te rm of supervised release[,] . . . (3) revoke a term of supervised release[,] . . . or (4) order the defendant to remain at his place of residence.” 18 U.S.C. § 3583(e). The mandatory revocation provision , however, afford s the district court
no discretion in making a decision about r evocation. Once § 3583(g) is triggered, the revocation is automatic

. There was no need, therefore, for Congress to instruct that the § 3553(a) factors should be considered prior to23 making a decision about mandatory revocation under § 3583(g).

Moreover, there was no need to re fer to § 3553(a)
in enacting this provision on mandatory revocation. The text of § 3583(g) specifies that when any of the
enumerated circumstances exist, revocation is mandated and a district court “sha ll .

. . require the defendant to serve a term of imprisonment.” The penalty dictated by § 3583(g)

– “a term of imprisonment”

– is not unique to

revoc ation of supervised release under § 3583(g)

. It is

, rather, a common component of most sentence s that may
be imposed following a defendant’s conviction. Se e 18 U.S.C. § 3582 ( governing the imposition or modification
of a term of imprisonment); United States v. Goodson

, 544 F.3d 529, 537 (3d Cir. 2008) (listing the penalties that may be a component of a sentence )

. Section § 3582
itself provides that a “court, in determining whether to impose a term of imprisonment, and

. . . in determining the length of the term , shall consider the factors set forth in section 3553(a) to the extent they are applicable[.]”
Id. § 3582(a) (emphasis added)

. Thus, the usage of the statutory phrase “term of imprisonment” in § 3583(g) incorporates both § 3582 and its directive to consider the § 3553(a) sentencing factors

.

Section 3553 (a)’s applicability to mandatory revocation proce edings fits neatly within the sentencing regime established by the Sentencing Reform Act. Section 3553(a) provides that “in determining the24 particular sentence to be imposed, [a court] shall consider” seven enumerated factors. 18 U.S.C. § 3553(a)(1)

– (7). Each of t he statutory provision s pertaining to the various components of a sentence also
direct s that the § 3553(a) factors should be considered.
See 18 U.S.C. § 3562 (directing that the court, “in determining whether to impose a term of probation, and

. . . the l ength . . . and condition s of probation, shall consider the factors set forth in section 3553(a)); § 3572 (the court, “[i]n determining whether to impose a
fine

. . . shall consider

, ” inter alia

, the § 3553(a) factors ); § 3583(c) (inclusion of s upervised release as a part of a sentence require s consideratio n of certain § 3553(a) factors). Indeed, consideration of the § 3553(a) factors is not limited to determining the type of penalty and the attributes of that penalty . Section 3553(a) also appl ies
when a court decid es whether multiple sentences are to run concurrently or consecutively. 18 U.S.C. § 3584(b).

N othing in the language of § 3553(a) limits its applica tion to a revocation proceeding under § 3583(g).
Nor does § 3582(a) include langua ge concerning the factors to be considered in determining the length of a term of imprisonment that renders § 3553(a) inapplicable

to a mandatory revocation proceeding. And the mandatory revocation provision itself does not prohibit consideration of the § 3553(a) factors in setting the length of the term of imprisonment required by the

statute. 18 U.S.C. § 3583(g) ; Doe , 617 F.3d at 772.25 Accordingly, we hold that the text and structure of § 3583 and the Sentencing Reform Act require a district

court t o co nsider the sentencing factors in § 3553(a) in determining the duration of the term of imprisonment imposed under the mandatory revocation provision in § 3583(g). 12

Our holding s hould not be unexpected . I t is
consistent with this court’s jurisprudence concl uding that the § 3553(a) factors are relevant in revocation proceedings. In United States v. Clark , 726 F.3d 496 (3d Cir. 2013), we considered whether a district court that had revoked supervised release under § 3583(e)(3) had erred by imposing both a “te rm of imprisonment” and a term of supervised release without conducting separate § 3553(a) analyses for each penalty. We concluded that a single § 3553(a) analysis was sufficient. In reaching this conclusion, we recognized that

, in a revocation proceedin g , § 3583(h) permits a district court to impose a term of supervised release to follow any term of imprisonment. Although § 3583(h) d oes not reference
the § 3553(a) sentencing factors, we held that the sentencing factors are to be considered in imposing a n additional term of supervised release because they are “listed in 18 U.S.C. § 3583(c), the provision governing

12 We limit our holding to the f actors that must be considered when imposing a term of imprisonment following mandatory revocation under § 3583(g).26 the imposition of the initial term of supervised release.”
Id. at 501. See also United States v. Santiago

- Rivera , 594 F.3d 82, 84 (1st Cir. 20 10) (reasoning that even though § 3583(h) “does not list the [§ 3553(a)] factors to be considered in imposing a term of supervised release as a part of a revocation sentence, it is a reasonable inference
that the factors are the same as those to be conside red in imposing an initial term of supervised release”); United States v. Bungar , 478 F.3d 540, 542

- 43 (3d Cir. 2007) (concluding, without objection, that our review of an appeal of a mandatory revocation order is “ for
reasonableness ” and that “t o be reaso nable the record must demonstrate the sentencing court gave meaningful
consideration to the § 3553(a) factors”).

Finally, o ur holding is consistent with the overall sentencing scheme of the Sentencing Reform Act

, which repeatedly tethers the exercise of di scretion by a sentencing judge to the factors set out in § 3553(a). I t would be odd indeed for Congress, after s pecifying th at the § 3553(a) f

actors must inform a district court’s exercise of discretion in imposing each component of a
sentence, see §§ 35 5 3(a), 3562(a), 3572(a), 3582(a), 3583(c), to t h en give a district court carte blanche i n imposing a term of imprisonment following mandatory revocation of supervised release under § 3583(g). See Long v. Tommy Hilfiger U.S.A., Inc. , 671 F.3d 371, 375 (3d C ir. 2012) (observing that the principles of statutory27 interpretations instruct that courts should “avoid constructions that produce odd or absurd results”).

I V

.

A.

Having concluded that the District Court was obliged to consider the § 3553(a) factors in de ciding the length of the term of imprisonment to impose following revocation under § 3583(g), we turn to Thornhill’s
assertion that the District Court erred procedurally

. In
United States v. Gunter , 462 F.3d 237, 247 (3d Cir. 2006), we established a “thre e

- step sentencing process.” After calculating the guideline sentence and formally ruling on any motions of the parties, a sentencing court

must then exercise its discretion by considering the relevant § 3553(a) factors in determining an appropriate

senten ce. Thornhill contends that the District Court erred
at th e third step of this process by failing to: (1) give rational and meaningful consideration t o the relevant § 3553(a) factors; (2) adequately explain the sentence, including an explanation for any d eviation from the guidelines; and (3) respond to defense counsel’s colorable arguments for mitigation. T he burden is on
Thornhill to demonstrat e that the District Court’s
sentence is unreasonable

. United States v

. Cooper , 437 F.3d 324, 332 (3d Cir. 2006)

, abrogated on other grounds by Kimbrough v. United States

, 552 U.S. 85 (2007).28 We review for abuse of discretion. United States
v. Tomko , 562 F.3d 558, 567 (3d Cir. 2009) (en banc). In
Tomko , w e emphasized that “it is essential that district
courts make an ‘individualized assessment based on the facts presented.’” Id. (quoting Gall v. United States , 552 U.S. 38, 50 (2007)). We instructed that “it is equally important that district courts provide courts of appeals with an explanation ‘sufficient for us to see that the particular circumstances of the case have been given meaningful consideration within the parameters of § 3553(a).’” Id. (quoting United States v. Levinson , 543 F.3d 190, 196 (3d Cir. 2008)).

“Meaningful consideration” of the § 3553(a)
f actors is also required in revocation proceedings. In Bungar , we declared that in order for the penalty imposed upon revocation of supervised release “to be
reasonable the record must demonstrate that the sentencing court gave ‘meaningful consideration’” to the § 3553(a) factors. 478 F.3d at 543. This does not mean that the sentencing court is required to “‘discuss and make findings as to each of the § 3553(a) factors if the
record makes clear the court took the factors into account in sentencing.’” Id. (quoting C ooper , 437 F.3d at 329).

T he Supreme Court has instructed that 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 dec isionmaking authority.” Rita v. United29 States , 551 U.S. 338, 356 (2007) . And it is, of course, the sentencing judge who “ has access to, and greater familiarity with, the individual case and the individual defendant before him than the . . . appeals court .” Id. at 357

- 58. “Because of the ‘fact

- bound nature of each sentencing decision,’ there is no ‘uniform threshold’ for determining whether a court has supplied a sufficient explanation for its sentence.” United States v. Merced

, 603 F.3d 203, 215 (3d Ci r. 2010) (quoting Tomko , 562
F.3d at 567 ) . In some cases a brief statement will suffice,
while in other s a longer explanation may be necessary.
Id. See also Rita

, 551 U.S. at 358 (concluding that sentencing cou rt’s statement of reasons was “ brief”, but “legally sufficient”). What a court may not do, however,
is ignore a colorable argument raised by a party if it concerns the applicability of one the § 3553(a) factors.
Id.

When a district judge departs from the guideline

range, he must “explain his con clusion that an unusually lenient or an unusually harsh sentence is appropriate in a particular case with sufficient justifications.” Gall , 552
U.S. at 46. Yet we are mindful that “‘extraordinary’ circumstances” are not required “to justify a sentence

ou tside the Guidelines range.” Id. at 47. We will not regard a sentence a s unreasonable simply because we , as an appellate panel, might concl ude that a different
sentence would have been appropriate. Id. at 51. Rather,

we must take into account the “ exten t of the deviation,”30 and “give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id.

B.

T he parties’ arguments during the revocation proceeding are clear from the record

– just as they no doubt were to the District Judge. Th e defense urged him, despite § 3583(g)’s applicability, not to revoke Thornhill’s supervised release and not to impose a term of imprisonment . The government argued that the Court could not expect any change f rom Thornhill and it ask ed
the Court to impose a three year term of imprisonment consisting of a one year term on each conviction

, to run consecutively

. In other words, the parties were at polar

extremes : the defense urg ed the court to ignore the
mandate s of § 3583(g) while the government advocat ed a
sentence of three years

.

Th e record confirms th at th e able District Judge
l istened to and understood the se arguments . Thornhill’s argument was contrary to the dictates of § 3583(g) , and
the District Court re cogniz ed this . He explained that § 3583(g) required revocation because Thornhill had tested positive for marijuana on more than three occasions in one year. Al t hough the defense did not explicitly advance the applicability of the exception in § 3583(d) t hat permits relaxing the mandate of imprisonment under § 3583(g) , the Court on its own31 addressed the exception. T h at exception was not justified , the Court explained, based on T hornhill’s
failure to attend he r current substance abuse and mental
health pro grams , as well as her inability to remain drug
free

. In short, imprisonment was a certainty becau s e of § 3583(g)’s applicability.

Thornhill argu ed for mitigation . Her problems, she claimed, were attributable to her having witnessed her brother’s murder, and dealing with the emotional trauma resulting from both the murder of one of her sons
and the serious injur ies of another . These circumstances were fully considered by the District Court. The judge listened attentively to Thornhill’s allocution. Thorn hill explained that she “did not come out of prison to disrespect” the Court, but “[t]he unexpected trauma

. . . was something that happened in my life.” T he District Judge directly responded to Thornhill

, telling her that he “personally” did not “feel as though you’ve disrespected
me.” He then ac knowledged the “personal issues”
Thornhill had described and e xplained to her that the “law is the law.” In addition, at the conclusion of the proceeding the Cou rt request ed the United States Marshal’s Office to keep Thornhill in custody locally in
the event that she were subpoenaed to appear in the t rial of her son’s murderer. Contrary to Thornhill’s argument,
we conclude that the District Court fully considered and responded to defense counsel’s colorable argu ments for mitigation.32 The record demonstrates that the District Court
also meaningfully considered the relevant § 3553(a)
factors. Consistent with § 3553(a)(1), the Court fully
considered the nature and circumstances of the
violations , together with Thorn hill’s history and
characteristics

. At the beginning of the hearing, the
Court reviewed its almost

- ten

- year involvement with Thornhill’s criminal cases since 200 3

. He noted her three convictions for bank fraud and the previous revocation proceedings. He p ointed out th e substantial
variance he had granted on the 2007 Conviction and the first revocation proceeding, resulting in a sentence t o one day of imprisonment and an additional period of supervised release. As noted above, the Cour t knew of the perso nal difficulties Thornhill faced while on supervised release. After hearing arguments from the parties, t he Court stated that it was “aware of” Thornhill’s history and had “ considered the extensive files in these cases, the presentence reports and addenda regarding the initial sentencings, and the Court’s previous revocation . . . as well as [her] responses to the allegations of the petition and the government’s evidence.” The Court then rendered its findings concerning the violations set forth in the Six th Petition.
Our review of the record compels our conclusion that the
Court ’s consider ation of § 3553(a)(1) was more than adequate . T o conclude otherwise would be to ignore the District Judge’s statement t hat “I’ve had nine years of33 experience with you, and it ’ s been time, after time, after time.”

Section § 3553(a)(2) direct s a sentencing court to
consider the need for the sentence “ to reflect the seriousness of the offense, to promote respect for the law,” “ to provide just punishment,” to deter further criminal conduct, “to protect the p ublic ” and to provide
correctional treatment in the most effective manner. 18
U.S.C. § 3553(a)(2)(A), (B)

, (C) , and (D)

. Thornhill’s

r ecidivism, and the applicability of § 3583(g) requiring the imposition of a term of imprisonment, brought t hese § 3553 considerations to the forefront of this revocation hearing. We are well

- satisfied that th e Court took these
factors into account.

T h e Court’s dialogue with defense counsel is telling. Defense counsel argued that the Co urt did not
have to find a violation and that Thornhill just “need[ed] structure.” The Court replied: “That’s what we’ve been trying to give her

. . . She’s been here , and been here,
and been here.

. . . So how else are we going to accomplish that, witho ut forci ng her into a situation.” This exchange clearly reveal s the Court ’s conclusion that mere supervision had been ineffective in curbing Thornhill’s substance abuse , deterring her criminal conduct, or compelling her compliance with a regimen of
mental health treatment. In short, i ncapacitation and
deterrence had become necessary

.34 The District Court then asked the probation officer
for her view. She expressed her belief that Thornhill “would not be compliant ” with a ny program offered outside a “l o c k

- down facility .” She noted that, despite her attempts to work with Thornhill, “[e]very step of the way . . . she fail [ed] to comply with any directive.” The probation officer agreed that Thornhill “needs the
structured environment . . . [of] prison

. ” Th e reafter, the
Court again signaled the need for incapacitation

, stating that Thornhill was unmanageable when she was not in a controlled environment and that she was “unmanageable in a free society environment.”

As required by § 3553(a)(3) and (4), the D istrict Judge addressed the kinds of sentences available and the applicable range s of sentence for the violations with respect to each of the convictions. 13 He also addressed

13 Section 3553(a)(5) was not applicable to this revocation proceeding. Section § 3553(a)(6) was not
relevant because there was no need to avoid unwarranted sentence disparities in this revocation proceeding. Section 3553(a)(7) requires consideration of the “need to provide restitution to any victims of the offense.” Because Thornhill’s failure to pay restitution was a violation alleged in the Sixth Petition, this sentencing
factor was manifestly relevant. The Court appropriately addressed this factor, making a finding that Thornhill had not paid any restitution since June 13, 2011. Thornhill’s35 the grade of the various violations, pointed out that the maximum term of impriso nment on each conviction was 36 months, and noted the increasing guideline range for

e ach conviction in light of the expanded criminal history category on the latter two convictions. And he noted t he advisory nature of the sentencing ranges. This discuss ion
was sufficient to demonstrate consideration of § 3553(a)(3) and (4). 14 We therefore reject Thornhill’s contention that the District Court failed to adequately consider the § 3553(a) factors.

dire financial condition, however, obviated t he need to
further address this factor.

14 Section 3553(a)(4)(B) directs a sentencing court to consider the applicable policy statements. The commentary to United States Sentencing Guideline (U.S.S.G.) § 7B1.4 provides that “[w]here the original

sentence w as the result of a downward departure . . . that resulted in a sentence below the guideline range applicable to the defendant’s underlying conduct, an upward departure may be warranted.” U.S.S.G. § 7B1.4, applic. note 4 (2012). Although the District Cour t did not specifically refer to this policy statement, it is
nonetheless informative because of the substantial
downward variance Thornhill received on the 2007 Conviction. This variance was an aspect of Thornhill’s history, and the Court made specific re ference to it.36 Thornhill maintains that the Court failed to adequately expla in the s entence that it ultimately decided

upon

. We acknowledge that the sentencing judge “might have said more.” Rita , 551 U.S. at 359. Rita instructs, however, that “context and record” are important in determining whether the “sentencing judge consid ered the evidence and arguments.” Id. W e conclude that the
record and context make clear that the District Court fully considered all of the evidence and the arguments of the parties. For that reason, we are hard

- pressed to find
that the District Court’ s order was procedurally
unreasonable or that it constituted an abuse of discretion.
At the time of this revocation proceeding, the judge had nearly a decade of exp erience with Thornhill . He had demonstrated leniency in his efforts to help her . A fter
ad vis ing 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

. Thornhill’s violations were not a breach of trust on a single conviction. T he Court was fully aware that it was imposing three separate penalties on three separate
convictions. His words adequately conveyed that a lengthy term of imprisonment was called for under § 3583(g) because his mo re lenient exercises of discretion
had neither deterred Thornhill from criminal conduct nor adequately conveyed to her the serious nature of her
circumstances.37 In sum, we conclude that the District Court’s order revoking Thornhill’s terms of supervised r elease and imposing three separate penalties was not procedurally
unreasonable.

C

.
Thornhill also challenge s the substantive reasonableness of her sentence. In her view, the District Court’s procedural errors rendered her sentence substantively unreasonab le. Because we have concluded
that the District Court did not err procedurally, we conclude that there is no merit to her substantive challenge. See Tomko , 562 F.3d at 568 (instructing that “if the district court’s sentence is procedurally sound, we
will affirm it unless no reasonable sentencing court would have imposed the same sentence on the particular defendant for the reasons the district court provided”).

IV.

In sum, we are mindful of the Supreme Court’s
observation in Rita that “ [t]he sentencing judge has access to, and greater familiarity with, the individual case
and the individual defendant before him than the Commission or the appeals court.” 551 U.S. at 357

- 58.
That is especially so in this case

, where the District Court
had followed closel y over time Thornhill’s repeated
violation s of her supervi sed release. Given the District Judge’s experience with T hornhill and what we consider38 to have been his measured treatment of her violations, we
conclude that the sentences should not be disturbed.

We will affirm.UNITED STATES v. THORNHILL

Nos. 13

- 2876; 13

- 2877; 13

- 2878

RENDELL, Circuit Judge , Concurring in part and Dissenting in part:

I agree with my colleag ues that the District Court was required to consider the factors set forth in 18 U.S.C. § 3553(a) in sentencing Ms. Thornhill, and I readily join their eloquent and well

- reasoned o pinion on that issue.

I part ways with the majority’s disposition

, however,
because I would remand so that the District Court can meaningfully consider those sentencing factors in connection with the mandatory imprisonment of Ms. Thornhill upon
revocatio n of her supervised release

. The length of her term
of imprisonment is squarely at issue, and the § 3553(a) factors should be weighed. This is especially true because the
District Court varied upward in giving Ms. Thornhill a sentence of three years.

Until today, we ha ve never addressed whether the § 3553(a) sentencing factors must be considered in the context of mandatory revocation of supervised release , under § 3583(g), and

, indeed

, few other Courts of Appeals have discussed this issue at length. I f anything, as the Government points out, our case law previously hinted that consideration of the factors was appropriate, but not required

, in this

context. See United States v. Doe , 617 F.3d 766, 772 (3d Cir. 2010). However, today we clearly hold for the first time that2 such consideration is mandatory . T he majority find s that the District Court anticipated this holding and meaningfully considered the sentencing factors under § 3553(a)

.

In the usual case, we might debate whether the
scattered statem ents of a d istrict c ourt resemble a discussion
of the pertinent sentencing factors

. However, here

, the District Court had no inkling that an analysis of the § 3553(a) factors was required, a nd as a consequence, never mentioned
the factors onc e. 1 T his was through no fault of the District Court, conducted as it was by a “j udge [and] not a prophet ,” lacking any reason to anticipate the requirement we set out today. See United States v. Brown , 595 F.3d 498, 527 (3d Cir. 2010)

. But f

airness dictat es that whe n we announce a new rule that could impact the length of the sentence imposed a remand for resentencing is appropriate. See i d. (remanding for resentencing where a district court, “ [ l ] acking

. . . clairvoyance,” failed to anticipate requirement to conside r § 3553(a) factors post

- Booker ); United States v. Manzella

, 475 F.3d 152 , 162 (3d Cir. 2007) (remanding for resentencing upon holding that prison sentences could not be imposed for rehabilitative purposes).

We need only review the record briefly to det ermine
that t he District Court did not , in fact, f oresee our holding and meaningfully consider the § 3553(a) factors

. T he District Court provided no explanation for its three

- year, above

guidelines sentence

, beyond the bare statement that Ms.
Thornhill ha d “ proven [her] self to be unmanageable in a free

1 “ § 3553(a) ” appears only once in the transcript, in Ms.
Thornhi ll’s objection at the conclusion of sentencing. (App. 402.)3 society environment.” (App. 400.) 2 A defendant’s “manageability,” whatever that might mean, is not included among the sentencing considerations listed under § 3553(a)

. Thus, the sole explanation provided by the District Court does
not show rational and meaningful consideration of the § 3553(a) factors

. 3 This alone necessitates a remand for resentencing.

Likewise, t he District Court’s other asides and

statements in the sentencing hearing do not reveal wh y Ms. Thornhill was sentenced to three years’ imprisonment , let
alone indicate that the sentence was based on the § 3553(a)

2 Though this was the sole explanation provided upon the imposition of sentence, the majority makes only a passing reference to it, noting that the comment “signaled the need for incapacitation

. . . .” (Majority Op. at 34.) The remainder of the statements cited by the majority were made at different points in the hearing, some during testimony, others during argument, and all well before sentence was imposed, such
that there is no indication whi ch, if any of them, factored into the District Court’s decision to sentence Ms. Thornhill above the guidelines.

3 Rita v. United States , 551 U.S. 338, 35 9 (2007) , cited by the majority for the proposition that the “context and the record” can support the sentence here, is inapposite. That case
concerned a within

- guidelines sentence, and the Supreme Court found that a specific explanation was not required in such a “conceptually simple” case. Id. at 359. By contrast, the Court noted, “[w]h ere the judge i mposes a sentence outside the Guidelines, the judge will explain why he has
done so. ” Id. at 357. The sentence here was above the guidelines, and no explanation was given.4 factors

. For example, t he Court’s most detailed comment

w as , in full, as follows:

The Court: That’s what we’ve been trying to giv e her [defense counsel]. She’s been here, and been here, and been here. That’s what the whole plan has been. [ T he probation officer] has worked hard to try to give her a structure, and give her psychiatric treatment, the mental health treatment, the dru g counseling. I mean, that’s what we have been doing. So, how else are we going to accomplish that, without forcing her into a
situation where she has to do what she has to do?

(App. 384.) The majority cites part of this remark as
evidence of the Court ’s consideration of § 3553(a)(2), involving incapacitation and deterrence

. (Majority Op. at 33 .)
But f ar from addressing any of the sentencing factors

, the Court was asking how else it was going to give Ms. Thornhill

“ a structure, and give her psychiatri c treatment, the mental health treatment, the drug cou nseling,” except through prison
time. (App. 384.) Thus, we cannot know if the Court may have impermissibly lengthened Ms. Thornhill’s prison term to promote rehabilitation. 4 I find that this comment does not represent meaningful considera tion of a sentencing factor, but

4 That is , the District Court potentially violated the holding of

T apia v. United States

, 1 31 S. Ct. 2382, 2393 (2011): “a court may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation.” Several Courts of Appeals have found this holding to extend to sent ences imposed upon revocation of supervised release. See, e.g., United States v. Molignaro , 649 F.3d 1, 5 (1st Cir. 2011).5 rather evidences a troubling ambiguity that should be cleared up by a remand for resentencing

.

More generally, where a defendant is sentenc ed without the slightest indication that t he § 3553(a) factors were considered, our case law dictates a remand. In United States
v. Clark

, cited by the majority, we held that consideration of
the § 3553(a) factors had been inadequate for a within

guidelines sentence, even though the d istrict c our t

a cknowledged that it had to consider the m and even provided a “full discussion of the first relevant factor.” 726 F.3d 496, 503 (3d Cir. 2013). W e held the subsequent “rote recitation
of the relevant factors

. . . cannot support a conclusion that the

r ecord as a whole reflects rational and meaningful
consideration of the factors enumerated in 18 U.S.C. § 3553(a). Nor can we determine, from the record before us, that the court reasonably applied those factors to the circumstance of the case.” Id. (cita tions omitted)

. Accordingly, we remanded for resentencing

.

Unlike Clark , the term of imprisonment in this case is above the guidelines range

. And u nlike Clark , the District
Court here did not discuss any of the sentencing factors, or
even list the m in a rote manner

. S ee also United States v. Goff , 501 F.3d 250, 256 (3d Cir. 2007) (remanding for resentencing where

, inter alia

, “ the District Court did not mention § 3553(a) when it imposed its sentence, or the necessity of applying the § 355 3(a) factors u nder our case
law ”). Nor did the Court ever refer to the substance of the factors, such as : the need to provide just punishment, adequate deterrence and protect ion of the public, as well as the need to avoid unwarranted sentencing disparities. In sum,
th e record provides no basis to c onclude that the District6 Court anticipated our decision today and meaningfully
considered the § 3553(a) factors . Indeed, it would be surprising if the record revealed otherwise

.

We simpl y cannot know how meaningful
consi deration of the § 3553(a) factors , which we now require, would have affected Ms. Thornhill’s sentence. S peculation on our part as to what the Court might have been considering,
and whether those reasons coincide with § 3553(a), cannot be enough to uphold Ms. Thornhill’s above

- guidelines sentence.
I n short, Ms. Thornhill deserves to have the rule announced today applied to her case. I respectfully dissent from the majority’s disposition

.