NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________ No. 1 2

- 4572

________________
UNITED STATES OF AMERICA

v. RONALD HILLS , Appellant

________________ Appeal from the United States District C ourt for the Eastern District of Pennsylvania (D.C. Crimina l Action No. 2

- 08

- c r - 0 0 654

- 00 1 ) District Judge: Honorable Gene E.K. Pratter

________________ Submitted Under Third Circuit LAR 34.1(a)

November 21 , 2013
Before: AMBRO, SMIT H, and CHAGARES, Circuit Judges

(Opinion filed: December 13, 2013 )

________________ OPINION

________________ AMBRO, Circuit Judge
Ronald Hills was convicted of firearms, drug , and bank robbery offenses following bifurcate d trials in 2010

. He was sentenced to 444 months’ imprisonment, but2

on his first appeal the case was remanded for resentencing on the drug offense. United
States v. Hills , 488 F. App’x 569 ( 3d Cir. 2012)

. On remand the District Court again
sentenced Hil ls to the same term of imprisonment, an d he now appeals that sentence. I. Background The background for this case can be found in this Court’s opinion in Hills’ first appeal. See Hills , 488 F. App’x at 571

- 72. In brie f, Hills was convicted by juries in t wo separate trials 1 of armed bank robbery (18 U.S.C. § 2113(d)), possession of a firearm in furtherance of that bank robbery (18 U.S.C. § 924(c)), possession of crack cocaine with intent to distribute (21 U.S.C. § 841(a)(1)), possession of a firearm in fur therance of that drug offense (18 U.S.C. § 924(c)), and possession of a firearm by a convicted felon (18
U.S.C. § 922(g)). Following the trials , District Judge Pratter sentenced Hills , as noted, to 444 months’ imprisonment. He appealed the sentence on se veral grounds , and our Court affirmed on every issue except the District Court’s failure to apply the Fair Sentencing Act of 2010, P ub. L. 111

- 2 20, § 2, 124 Stat. 2372 (2010) (“FSA”), to Hills’ drug offense.
Id. at 575

- 76. On that appeal we also consid ered and rejected Hills’ argument that the District Court should have compelled the Government to file a motion , under U.S.S.G. § 5K1.1 , for a downward departure in light of Hills’ cooperation. We held that “Hills’ claim that he cooperated with the [G]ov ernment [did] not entitle him to a remedy [,] or even to

1 The District Court granted Hills’ motion for two separate trials, one for the bank robbery charges and an other for the drug charges.3

discovery, ” b ecause he failed to make a substantial showing that the Government’s decision was based on an improper motive. Id. at 575 (citation omitted).
On remand for resentencing , Hills argued that , under the factors set out in 18
U.S.C. § 3553(a) , the District Court should not impose any additional term of imprisonment for the drug count. 2 Among the points presented in his memorandum and
at the resentencing hearing, Hills insisted that the Dis trict Court should exercise i t s discretion to vary from the Guidelines range for the drug offense (57

- 71 months’ imprisonment) based on Hill’s cooperation , even though , as affirmed on appeal, the Government was not compelled to file a § 5K1.1 motion. Hill s asserted that he was deserving of a downward variance because he had provided helpful information to the
Government , had always acted in good faith, and was the subject of abuse from other inmates because of his cooperation. In light of the abuse from f ellow inmates , Hills specifically requested to be moved to a facility “as far away from Philade lphia as possible[.]” App. at 56 (Def.’s Sentencing Memo.). Despite Hills’ argument s , the
District Court reimposed the same 60

- month sentence for the drug coun t, even though
under the FSA the count was no longer subject to a five

- year mandatory minimum

sentence . Hills now appeals his sentence on procedural grounds, a rguing that the District Court erred by failing to rule formally on his argument for a downward variance.

2 Hills was already subject to mandatory consecutive sentences for the two firearm offenses of seven and twenty

- five years’ imprisonment.4

II. Discussion
District Courts are directed to follow a three

- step process when sentencing
defendant s : ( 1) c alculate the defen dant's advisory Sentencing G uidelines range; (2) formally rule on any departure motions; and (3) consider the 18 U.S. C. § 3553(a) factors in imposing a sentence. United States v. Gunter , 462 F.3d 237 , 247 (3d Cir. 2006 ). Hills’ sole argument before us is that the District Court erred at step three by failing meaningfully to consider his cooperation as a § 3553(a) facto r. Hills did not raise an objection to the District Court’s purported failure to consider his argument for a variance
when his sentence was announced. 3 However, under United States v. Sevilla , 541 F.3d 226 (3d Cir. 2008), even when a defendant does not o bject to the District Court’s failure to consider his § 3553(a) arguments at the time his sentence is announced, so long as he presented those arguments to the District Court during the sentencing hearing, we review for “whether the [District] Court proper ly exercised its discretion by giving meaningful consideration to the relevant factors.” Id. at 228. The Government vigorously argues that Sevilla should be overruled and that we should review only for plain error . Appellee’s Br. at 17. We need not revi sit the continuing viability of Sevilla in this ca se
. 4 E ven applying the more rigorous

3 After announcing her intention to impose the same 444

- month term of imprisonment, Judg e Pratter asked “if anybody knows of any reason or legal impediment that this proposed sentence should not be imposed?” App. at 118. Counsel for Hills responded, “No, Your Honor.” Id. at 119.

4 Our Court recently granted the Government's petition for r ehearing en banc in United States v. Flores

- Mejia , a case in which the panel applied Sevilla and remanded based on5

“meaningful consideration” standard , we affirm the District Court’s sentence because we
can infer from the record that the District Court meaningfully considered Hills ’ argument s relating to his cooperati on and the abuse he claims to have suffered

. First, we know the Court reviewed Hills’ sentencing memorandum laying out his arguments because Judge Pratter made multiple reference s to the fili ng during the
resentencin g hearing

. See App. at 64, 98 , 105 . Second, the Judge held a sidebar
conference in which the parties and she specifically discussed the significance of Hills’ cooperation and the abuse he was experiencing in custody as a result of his cooperation.
Id. a t 63

- 65. Unfortunately the court reporter was unable to decipher some of the Judge’s statements during tha t sidebar, but what is clear from the transcript is that she engaged
defense counsel in a discussion about Hills’ cooperation and his alleged abuse , specifically noting that the arguments were similar to those raised in Hills’ earlier motion to compel a § 5K1.1 motion

. Id. at 64. Third, and most importantly, immediately following the sidebar conference Judge Pratter stated “I believe that I’m complet ely familiar with the upshot of what you just . . . spoke to me about. Mr. Hills, I’ve read the material that’s in the submission from your counsel. I believe I understand the full range
of that and w here you’re coming from on it . . . ” Id. at 104

- 105. In announcing the sentence, Judge Pratter engaged in a long discussion of the § 3553(a) sentencing factors and how they applied to Hills, ultimately concluding that “for all the reasons I’ve addressed both today and in February of 2011, I find in the

the district court's failure to demonstrate meaningful consideration of the defendant's sentencing arguments. No. 12

- 3149, 2013 WL 3776221, at *3

- 4 (3d Cir. May 10, 2013).6

exer cise of my discretion and my acknowledgement of the law that” 444 months’ imprisonment was the appropriate sentence. App. at 118. The District Court never explicitly state d that it was rejecting Hills’ arguments for a downward variance based on his coope ration and the concomitant abuse he alleged

. W e have little doubt that the
reason that Judge Pratter did not specifically mention the argument when announcing the

sentence was , in part, because Hills and his counsel sought to keep references to his
cooper ation under seal. Nevertheless, from a review of the sentencing transcript as a
whole , it is clear that the District Court “acknowledge[d] and respond[ed] to” Hills’ arguments regarding his cooperation. United States v. Begin , 696 F.3d 405, 411 (3d Cir. 2012). Because Hills has not shown procedural error, there is no basis to remand this

case for resentencing. For the foregoing reasons, we affirm.