1 PRECEDENTIAL

_____________
No. 10

- 2235

_____________ UNITED STATES OF AMERICA,

v.

HERMAN FRIEDMAN,

Appellant

_____________
APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DI STRICT OF NEW JERSEY

___________ (D.C. Crim. Action No. 09

- cr

- 00132 ) District Judge: Honorable Anne E. Thompson

______________ Argued on April 25, 2011

______________
Before: SLOVITER and GREENAWAY, JR., Circuit Judges

,

and POLLAK, Senior District Jud ge *

* Honorable Louis H. Pollak , District Judge of the United States District Court for the Eastern District of Pennsylvania, sitting by designation.2 (Opinion Filed: S eptember 28

, 20 11 )

Lawrence S. Lustberg (argued) Kevin McNulty Joshua C. Gillette Gibbons P.C. One Gateway Center Newark, NJ 07102 Counsel for Appellant

Caroline A. Sadlowski (argued) Paul Fishman United States Attorney 970 Broad Street Newark, NJ 07102 Counsel for Appellee

______________
OPINION

______________ GREENAWAY, JR., Circuit Judge

Herman Friedman (―Friedman‖) was convicted of bribery, in violation of 18 U.S.C. § 666(a)(2) and sentenced to 34 month s of imprisonm ent

. F riedman argues on appeal that (1) the District Court abused its discretion in rejecting Fried man‘s proposed jury instruction ; (2) the District Court erred in excluding witness testimony; (3) the District Court improperly limited Friedman‘s cross

- exa mi nation of certain witnesses; (4) the District Court erred in denying Friedman‘s motion for mistrial based on violations of Giglio v. United States , 405 U.S. 150 (1972) ; and (5) Friedman‘s sentence is3 procedurally and substantively unreasonable. Friedman appeals the final judgment of conviction and sentence imposed b y the District Court on April 26 , 2010. For the reasons discussed below, we will affirm the judgment of conviction and remand to the District Court for resentencing

.
I. BACKGROUN D

Friedma n was part owner of an apartment building at 235 56th Street West New York (―WNY‖) , New Jersey . On March 2, 2007, Building Inspector Silvio Acosta (―Acosta‖) conducted a routine inspection of the apartment building that Friedman owned and concluded that

, in addition to the building‘s fifteen legal units, it contained a sixteenth illegal unit. On March 27, 2007, Acosta issued a Notice of Violation instructing Friedman to remove the illegal apartment unit. Friedman did not comply and Acosta issued a Munici pal C ourt complaint on May 25, 2007, claiming that Friedman was in violation of § 106.1 of the International Property Maintenance Code.

On or around July 5 , 2007, Friedman met with Construction Code Official, Franco Zanardelli (―Zanardelli‖). At the ti m e of the meeting, Zanardelli had been cooperating with the F ederal Bureau of Investigation (―FBI‖)

, as a result of his June 25, 2007 arrest for bribes he had previously accepted. Zanardelli confirmed that the computerized tax records showed only fifteen legal units in the building and informed Friedman that he needed to either seek a variance from the Board of Adjustment or remove the illegal apartment. Friedman f

ollowed Zanardelli‘s admonition and filled out an ―Application for Variance/Denial Letter,‖ the first step in the variance application process

. (App. at 1515.) In essence, Friedman claimed that the building contained4 sixteen rental units wh en he bought it in 2006 and that there was no indication that the unit was a recent addition.

On July 11, 2007, Friedman appeared in the Municipal Court in response to the complaint. The Municipal Court advised Friedman to work with the town‘ s Building Office to devise a resolution out o f court because the violation could accrue a daily penalty of up to $500.

Friedman called Zanardelli on July 12, 2007, urging him to grant a C ertificate of O ccupancy (―C.O.‖)

, without going through the process of the variance. Zanardelli said that ― maybe‖ there was a way to do so and said

, ―let me look at all the record s I have in there. What, what do you want to do? You just want to legalize the unit? ‖ and Friedman responded, ―Yes I want to legalize it and take out permits, and just redo it, to make, to make a new unit out of it.‖ ( App. at 979

- 80.) Zanardelli said, ―Oh . I don‘t care. Without going through the, without going through the

- ‖; Friedman interjected and said ―Without going through the whole nine yards.‖ ( Id. at 980. ) Zanardelli replied, ― Without going through the nine yards. Uh

- huh. Alright, let me see w hat I can do.‖ ( Id. )

The parties disagree as to which documents Zanardelli reviewed. According to Zanardelli‘s testimony, he requested all tax documents associated with the tax property and reviewed the paper tax file for WN Y to confirm the computerize d records. He found that

, as of 1962, the apartment building was reported to contain fifteen units. A ssistant tax assessor Michael Jaeger (―Jaeger‖) testified at a Federal Rule of Evidence 104 hearing before the District Court that the property record ca rd showed that the building had sixteen physical units, was the most current and accurate5 record maintained by the Tax Department, and was the record upon which the WNY Building Department relied to determine the number of units in a building. Jaeger coul d not attest to whether Zanardelli had reviewed this document. Zanardelli testified that he did not review this property record card

. According to Friedman, Zanardelli intention ally overlooked the property record card, which indicated that the building h ad sixteen physical units.

On August 30, 2007, Fri edman and Zanardelli met at the apartment build ing

. Friedman said to Zanardelli that the apartment was ―existing‖ and ―not something that was created yesterday or a year ago.‖ ( Id. at 988 .) Zanarde lli responded that ―[i] t‘s not on your paperwork and it‘s not on anything.‖ ( Id. ) Friedman said

, ―so you found an existing apartment which wasn‘t there, you, you put it on. It‘s not, it‘s not the first time this happens.‖ ( Id. ) Zanardelli answered, ―N o . . . this unit was

- wasn‘t here. Wasn‘t there‖ and that ― [y] ou‘re gonna have to go for a variance. That‘s it. I mean, I mean what are you gonna do.‖ ( Id. at 989.) Friedman replied, ―Well, you know what you could do, what you c an do?‖ and Zanardelli asked

, ―So what are you suggesting here?‖ ( Id. 989

- 990.) Friedman responded with

, ―You tell me . . . Whatever it is.‖ ( Id. at 990. ) Zanardelli replied, ―I can‘t tell you, you tell me.‖ ( Id. )

Friedman used hand gestures to indicate that Zanardelli sh ould write down a monetary amount ; Zanardelli refused to write anything down and Friedman used hand gestures to offer a bribe of $2,000 , then $3,000 and ultimately of $5,000. The parties agree that Friedman offered to pay $5,000 to Zanardelli

, in lieu of seeking a variance from the zoning board. In return, Zanardelli would issue a C.O. approving the undocumented apartment.6 After the agreement was brokered, Zanardelli held the violation in abeyance and dismissed the complaint. Zanardelli called Friedman on September 10, 2007, September 13, 2007, and October 18, 2007

. Friedman did not return his calls. In November 2007, Zanardelli reinstated the complaint against Friedman, at the direction of the FBI, to pressure Friedman. Zanardelli called Friedman aga in on February 6, 2008, March 10, 2008, Marc h 14, 2008

, and March 24, 2008. Friedman

, again

, did not respond.

Meanwhile, Friedman placed the building on the market for $1,350,000. In February 2008, he had located a potential buyer, Steven Steiner (―Ste iner‖), who was willing to pay $1,150,000, but only if the sixteenth apartment was properly approved by the municipality. With the sale in jeopardy, Friedman sent an associate to persuade Zanardelli to issue the C.O. Zanardelli responded that Friedman ha d two weeks to remove the illegal apartment, seek a variance from the board, or ―let him

. . . know what he want [s] to do.‖ ( Id. at 1011

- 12.)
On March 25, 2008, Steiner‘s attorney threatened to abandon the sale unless Friedman was able to deliver the bui lding with sixteen approved units. That same day, almost seven months after Friedman agreed to the bribe, he paid Zanardelli $5,000 in cash and asked that the C.O. be issued immediately. Friedman called Zanardelli numerous times that day to inquire about the C.O., but Zanardelli never issued it. Friedman did not make the sale to Steiner.

On February 26, 2009, Friedman was indicted on one count of bribery, in violation of 18 U.S.C. § 666(a)(2). A jury trial commenced on November 16, 2009. During the trial, the District Court excluded Jaeger‘s testimony that the property7 record card showed that the building had sixteen units and was the most current record maintained and used by the WNY Building Department . The District Court excluded the testimony as it was ―distracting . . . it‘s a whimsical argument that this is someh ow related to entrapment ‖ and ―Mr. Jaeger‘s testimony doesn‘t seem to me to be pertinent or relevant because I just don‘t see any relevance to it, quite frankly.‖ ( Id. at 627, 639.)

During trial, the District Court also limited the testimony of Zanardelli and Acosta. The Government‘s disclosure listed twenty

- two properties for which Zanardelli had received money to facilitate building approvals. Zanardelli testified about these bri bes during direct examination. During cross

- examination, the District Court allowed Friedman to question Zanardelli generally about the twenty

- two properties

, but did not allow counsel to continue Zanardelli‘s cross

- examination w ith respect to details abo ut each individual property and bribes solicited once Zanardelli had indicated that he did not remember specific details . The District Court reasoned : ―I just want to make sure that we make the best use of our time. Now, to go through every one of those, the point has been made. The details of that is really not this case.‖ ( Id. at 373.)

Friedman was permitted to question Zanardelli generally on the bribes and whether he had solicited the bribes or had been approached about the bribes. Zanardelli

was asked on cross

- examination, ―but there were bribes that you solicited, right? That‘s what you pleaded guilty to.‖ ( Id. at 378.) Later, Zanardelli was asked at least three more times: ―Were people just coming in and offering you bribes?‖ ( Id. at 386), ― Were there times when you solicited bribes and people refused to pay them?‖ ( Id. at 387), and ―Were there times8 when you asked for [bribes] and people refused to pay them?‖ ( Id. at 388).
Additionally, the District Court permitted cross

examination of Ac osta generally regarding his fifty

- four building code violations, but did not permit questioning of each of the fifty

- four violations, individually. When the District Court instructed Friedman‘s counsel to ask general questions about the issue but avoid s pecific questions with regard to every single violation, Friedman‘s attorney responded that he ―wasn‘t planning on it.‖ ( Id. )

Prior to trial, the Government had provided the defense with a disclosure letter, pursuant to Giglio , which included the follo wing paragraph:

Silvio Acosta has identified approximately 11 properties for which he was told by Zanardelli or Thomas O‘Malley, who was Zanardelli‘s successor, to disregard apparent violations. The properties include Zanardelli‘s residence, although Acos ta is not aware that the property belongs to Zanardelli. Acosta states that this behavior started approximately two years
ago.
(Appellant‘s Br. at 42.) At trial, Acosta testified that Zanardelli or his successor, O‘Malley, never told him to ignore vi olations for eleven properties and the Government did not identify eleven properties for which Acosta was told9 to ignore apparent violations. The Government represented to the District Court that Mr. Acosta had not retracted his statement during witness p reparations and that ― [t]he first time we heard about it was when Mr. Acosta testified. It came as a surprise to us just like it came as a surprise to [Appellant].‖ (App. at 195.) The District Court denied a motion for mistrial, explaining that there wa s not sufficient prejudice and that Appellant had every opportunity to cross

examine Acosta on the issue. Notably, the District Court also stated that ―[w]hatever [was] said during [Friedman‘s counsel‘s] opening statement with regard to this had so little traction I don‘t remember it. I daresay most of the jurors

wou ldn‘t have remembered it.‖ ( Id

. )
The Government also submitted discovery to Friedman of a statement made by Friedman‘s real estate broker , Scott Callahan (―Callahan‖)

, to the FBI that Frie dman told Callahan that the town did not consider one of Friedman‘s apartments to be legal

. The Gov ernment concedes that it interviewed Callahan at a later date and at that time, he denied having made the above

- mentioned statement. A t trial, Callahan
tes tified that Friedman had not immediately disclosed the illegal apartment to Callahan

. On November 19, 2009, t he District Court gave the government‘s proposed instruction on the theory of defense :

It is not a defense to the crime of bribery that a defe ndant claims he was coerced or extorted into paying a bribe. Extortion and coercion are not a defense to bribery. The reason for this is that giving a bribe to an official10 undermines governmental integrity, even where an official solicits money to do act s that the official is obligated to do anyway. The correct decision in such a situation is to refuse the e licit [sic] overture and to report it to the appropriate authorities, not to pay the bribe.

In addition, it is not a defense to bribery that the of

ficial action that was the subject of the bribe might have been lawful. It makes no difference whether the official action sought to be influenced was right or wrong. That is, it makes no difference that the bribe giver may have paid the official to perf orm an act to which the bribe giver was legally entitled.

( Id. at 683.)
Friedman‘s proposed ins truction with respect to the theory of defense :

It is not a complete defense to the crime of bribery that a defendant claims he was coerced or extorted i nto making a payment to a public official. That is, you cannot find the defendant not guilty of the bribery charged simply because11 he was the victim of extortion by the public official whom he paid. However, the fact that the defendant was extorted or

co erced, while it is not alone a defense to the charge, may bear upon whether the defendant ever formed the intent required to commit the crime of bribery, specifically upon whether he committed the act, ― willfully, ‖ that is, with a purpose to disobey or dis regard the law.

― Extortion ‖ means obtaining property from another, with his consent, in either one of two
ways: [] inducing or bringing about this consent through the use of actual or threatened force, violence or fear, which can include fear of economi c harm or hardship, which exists if a victim experiences anxiety, concern, or worry over expected personal economic harm, and which fear must be reasonable under the circumstances existing at the time of the defendant‘s actions.

As I also explained to yo u earlier, a person may be guilty of bribery whether or not the official action sought to be influenced was right12 or wrong. That is, a bribery defendant may be guilty even if he paid the official to perform an act to which the defendant was legally entitl ed.

However, you may consider whether the defendant believed that he was paying the official to perform an act to which he believed he was legally entitled in evaluating whether the government has proven that the defendant had the intent required
to comm it the bribery at issue, that is, whether the government has proven that he had the purpose to disobey or disregard the law.
(Appellant‘s Br. at 19

- 20.) The District Court rejected Friedman‘s proposed instruction, stating, ―I think that‘s confusing. I have thought about it. I‘ve read your submission. I reject it. I think it‘s confusing.‖ (App. at 649

- 50.)
The jury convicted Friedman of bribery. Following the conviction, Friedman filed a motion for a new trial based on the District Court‘s denia l of Jaeger‘s testimony, the limitation on Acosta and Zanardelli‘s cross

- examination, and the Government‘s failure to disclose Giglio and Brady material to the defense regarding Acosta and Callahan . The District Court denied the new trial motion

.13 In Fr iedman ‘s sentencin g memor andum he raised several arguments. Most prominently, he raised the issue of unwarranted disparities in sentences , pursuant to § 3553(a)(6) . In particular, he emphasized that based on his proposed Guidelines sentence, there would be a significant disparity in his sentence as compared to Anthony Lam, who was convicted of the same offense

— making a cash payment of $5,000 to Zanardelli, in viola tion of 18 U.S.C. § 666(a)(2)

— and received a sentence of three years‘ pr obation. Likewise, Friedman co ntended that his sentence , as proposed by the Guidelines, would be disparate from Zanardelli‘s 24

- month sentence , which had already been imposed by the District Court

. Friedman also moved for a downward departure from the Sentencing Guidelines

, arguing that he had c ommitted the offense because of ―serious coercion, blackmail or duress, under circumstances not amounting to a comple te defense

. ‖ U

. S

. S

. G

. § 5K2.12. Th e District Court sentenced Fri edman to a 34

- month term of imprisonment and a $25, 000 fine.

The District Court began the sentencing proceeding by disc ussing the loss calculation. The District Court acknowledged that both the Presentence R eport and the G overnment concluded that the total offense level should be 22 and a term o f impris onment for that level would be 41 to 51 months

, based on a net v alue of the benefit of $67,647. Friedman‘s counsel argued that the only certain figure was the $5,000 bribe ; as such, the total offense level should be 16

, with a term of imprisonment of 21 t o 27 months

. In response to the parties‘ arguments, the District Court stated14 Neither calculation, it seems to me, is perfect or altogether satisfying. [Defense counsel] is correct when he says that when you start going into the facts and try to determi ne, well, what was the . . . building going to sell for with or without that apartment, going at it backwards, forwards, is not a totally satisfying exercise . . . . Mr. Friedman has a criminal history of 1, and so everything in terms of where in the guide lines one would find the correct and accurate number depends on how one determines the net value of the benefit here.

I think it‘s somewhere in between, quite frankly. I think there‘s no question but the $5,000 bribe just in and of itself does not adequ ate [sic] and fairly produce the value, and the guideline language of the manual suggests that only if that‘s the last alternative, would you turn to the amount of the exact bribe.

( Id. at 957

- 58.)

Later, the District Court stated, ―it seems to me that something less than the 22 is fair in this case, but I do think15 that a custodial sentence should be imposed, and I do think that a sentence of 34 months is a fair sentence in this case. And the Court intends to impose it.‖ ( Id. at 962.)

At the end o f the sentencing proceeding, the Government requested clarification on the District Court‘s Guideline calculation, explaining that it had ―inferred from [the District C ourt‘s] comments, Your Honor, that you had said that the value was somewhere between the 67 that we argued for and the 5 of the defense.‖ ( Id. at 967.) The District Court replied, ―That‘s correct.‖ ( Id. ) The Government further inquired, ― [a] nd so the range that‘s in the middle of that is 10 to 30, which would be a plus 4 enhancement, make [sic] him a Level 20 with a 33

- to 41

- month range.‖ ( Id. ) The District Court concluded that, ―34 would be a Level 20. Or it could be Level 19 because it would be in the middle of

-- and it could be

– yeah, it could be a 19 or a 20 . . . . If you‘d like me to say it‘s a specific number, it‘s either 19 or 20.‖ ( Id. at 96 7

- 6 8.)
The District Court, after hearing arguments regarding a downward departure based on coercion, blackmail, or duress

, stated at the sentencing proceeding :

I am convinced based on the testimony at the trial, listening to it carefully, that the defendant thought about [the bribe], seemed to have no moral objection to it, seemed willing, but then wasn‘t

– couldn‘t

– did nothing for a while. But I am absolutely persuaded from the t estimony on the

– the tape recordings and everything I16 heard, that he really wanted to sell this building when the opportunity appeared, and it was his anxious

— anxiousness to sell that building to [o] quickly not [to] go the whole nine yards, but to quickly get that certificate of occupancy, which motivated him to just pay the bribe and get i t over with. And so he did, as we saw in the video.

( Id. at 959.)

Th e District Court went on to say :

I think that 34 months is [a] fair sentence, and I‘ve considered the nature of the offense, I‘ve considered the offender himself, the full penalty of the trial. This is not a case in which I impose [the] sentence based on a guilty plea, where I don‘t get to know anything about the facts of the case. I sat here and lis tened to the witnesses testify. And so I sensed and became

– was able to absorb the interior of this fact pattern. I considered that. I considered the seriousness of the offense and the other factors which have been set forth as the 3553 factors.17 ( Id. a t 963.) The District Court also noted that it was required to ―consider a fairness with regard to other offenders who are sentenced by this Court.‖ ( Id. at 961.)

In the District Court‘s Statement of Reasons

, it explained that it ―lowered the  ̳net valu e of the benefit‘ in the [ Presentence Report ] because of its uncertainty. Instead of impo sing [ a ] sentence at level 22, [the District Court ] imposed a sentence at a level 20 (although 34 months custody is also embraced within a level 19).‖ ( Id

. at 8.) N ext, the District Court stated that it ―reject[ed] the notion that t he $5,000 bribe figure should determine the offense level under the guidelines.‖ ( Id. )

T he District Court ent ered the Judgment of Conviction and sentence . Friedman filed a timely appe al.

II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction, pursuant to 28 U.S.C. § 3231. We have jurisdiction to review challenges to

a conviction under 28 U.S.C. § 1291 and challenges to the sentence under 28 U.S.C. § 3742(a). We review the District Court‘s refusal to give specific jury instru ctions for abuse of discretion , but exercise plenary review over whether the District Court gave a correct statement of law in its jury instructions

. United States v. Jimenez , 513 F.3d 62, 74 (3d Cir. 2008). Evidentiary rulings are reviewed for abuse of discretion, United States v. Starnes , 583 F.3d 196, 213

- 14 (3d Cir. 2009), but even erroneous rulings only require a new trial if the ruling affects a ―substantial right of the party,‖ F ED R. E VID . 103(a). An error in an evidentiary ruling is harmless error when ―it is highly probable that the error did not affect the result.‖ Hill v. Laeisz , 435 F.3d 404, 420 (3d Cir. 2006).18 This Court will only reverse a district court‘s limitation on cross

- examination where the limitation ―is so severe as to constitute a denial of the defendant‘s right to confront witnesses against him and it is prejudicial to substantial rights of the defendant.‖ United States v. Casoni

, 950 F.2d 893, 918

- 19 (3d Cir. 1991) (internal quotation marks and citations omitted). The District Court‘s decision to limit cross

- examination is reviewed for abuse of discretion. United States v. Ellis , 156 F.3d 493, 498 (3d Cir. 1998).

When a motion for a new trial is based on a Brady claim, we ― conduct a de novo review of the district court‘s conclusions of law as well as a  ̳ clearly erroneous ‘ review of any findings of fact.‖ United States v. Pel ul l o , 399 F.3d 197, 202 (3d Cir. 2005) (citation omitted).

III. ANALYSIS

1. Jury In structions

Friedman maintains that the District Court abused its discretion in rejecting hi s proposed jury instruction because Friedman argues that an instruction that coercion bears upon the defendant‘s state of mind is required

.
This Court has establ ished that ―[a] defendant is entitled to a theory of defense instruction if (1) he proposes a correct statement of the law; (2) his theory is supported by the evidence; (3) the theory of defense is not part of the charge; and (4) the failure to include an instruction of the defendant‘s theory would deny him a fair trial.‖ United States v. Hoffecker , 530 F.3d 137, 176 (3d Cir. 2008) ( citation and internal quotation marks omitted) ; see also United States v. Davis , 183 F.3d 231, 250 (3d Cir. 1999) (―A court e rrs in1 9 refusin g a requested instruction only if the omitted instruction is correct, is not substantially covered by other instructions, and is so important that its omission prejudiced the defendant.‖) . We have cautioned that a defendant is ―not entitled to a judicial narrative of his version of the facts, even [if] such a narrative is, in one sense of the phrase, a  ̳theory of defense.‘‖ Hoffecker , 530 F.3d at 176 ( citation and internal quotation marks omitted ).

Friedm an has not established that his proposed jury instruction was a correct statement of the law

— that coercion or extortion bears upon the defendant‘s state of mind for bribery

. Friedman presents no support for his proposition that coercion bears upon the specific intent , or lack thereof, f or bribery.

Friedman concedes that it is a matter of first impression in this Circuit whether the defendant is entitled to an instruction that extortion or coercion, while not a complete defense to bribery under § 666, may bear upon whether the defendan t ever formed sufficient intent to commit the crime. Nothing in Supreme Court precedent , this Court‘s precedent or the Third Circuit Model Jury instructions for bribery under § 666(a)(2 ) requires an instruction that coercion or extortion be considered by the jury for the defendant‘s intent to bribe. 1

1 The Third Circuit Model Jury Instructions for 18 U.S.C. § 666(a)(2) is as follows:

Count ( No. ) of the indictment charges the defendant ( name ) with ( describe offense; e.g., bribing an agent of a20 federally funded program ), w hich is a violation of federal law.

In order to find the defendant guilty of this offense, you must find that the government proved each of the following five elements beyond a reasonable doubt:

First: That at the time alleged in the indictment, ( na me of agent ) was an agent of ( specify organization, government, or
agency );

Second: That ( specify organization, government or
agency ) received federal benefits in excess of $10,000 in a one

- year period;

Third: That ( name ) [ (gave) (agreed to give) (of fered) ] something of value to ( name of agent );

Fourth: That ( name ) acted corruptly with the intent to influence or reward ( name of agent ) with respect to ( the business ) ( a transaction ) ( a series21 Friedman asserts that his proposed instruction is correct law in the United States Court of Appeals for the Second Circuit . Hence, although a correct statement of law in that Circuit, its value within the confines of Hoffecker , is limited. Moreover, the instruction approved in the Second Circuit is more limited in scope than Friedman‘s proposed instruction. Specifically, t he Second Circui t has found that coercion can bear on the intent required fo r the c ommission of bribery only where: (1) the defendant is paying the official to perform an act to which he is legally entitled and (2) the official threatens the defendant with ―serious economic loss‖ unless the bribe is paid. S ee United States v. Barash , 36 5 F .2d 395, 401

- 02 (2d Cir. 1966).
Friedman‘s proposed instruction, in contrast, did not limit the consideration of coercion to situations in which the defendant was legally entitled to the act. While h is proposed instruction did include an explanation that the jury could consider whether the defendant believed that he was paying Zanardelli for an act to which he was legally entitled, it would have charged the jury that extortion or coercion ― may bear upon whether the defendant ever formed the intent re quired to commit the crime of bribery

, ‖ even when the defendant was not legally entitled to the act

. (Appellant‘s Br. at 19.)

of transactions ) of ( specify organization, government or

a gency ); Fifth: That the value of the ( business ) ( transaction ) ( series of transactions ) to which the payment related was at least $5,000.22 Friedman argues that his proposed instruction is supported by the language of the federal statute for bribery under which he was convicted, 18 U.S.C. § 666. The bribery
statute criminalizes the actions of an individual who ―corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward‖ a government agency involving anything o f value of $5,000 or more. 18 U.S.C. § 666(a)(2). According to Friedman, forming corrupt intent can be negated by coercion, because coercive conduct by Zanardelli could have influenced Friedman‘s state of mind , and that the jury should have be en charged accordingly

. We reject this argument.

In Hoffecker , this Court was faced with a similar argument, namely that a theory of defense to negate intent in a material misrepresentation case should have been permitted in a jury charge to explain that the defe ndan ts lacked intent. 530 F.3d at 177. However, this Court rejected that argument on the basis that it duplicated other instructions that the District Court gave on the subject of criminal intent, such as instructions on ―knowingly and willfully‖ and the ―good faith defense‖ to fraud. Id.

Likewise, in this case, Friedman‘s argument is that his proposed theory of defense instruction would negate the intent requirement set forth in 18 U.S.C. § 666(a)(2). But, the District Court provided thorough instruct ions as to the elements of bribery under the relevan t statute, defining ―knowingly,‖ ―corruptly,‖ and ―willfully.‖ (App. at 679

- 80.) In particular, the District Court instructed the jury that it may consider ―all the other facts and circumstances shown b y the evidence that ma y prov e what was in his mind at the time‖ and whether Friedman had intended a lawful or unlawful end. ( Id. at 679. ) Thus, the jury was free to consider all23 circumstances and arguments set forth by Friedman as to why the element of i ntent was not satisfied and the District Court did not abuse its discretion in denying a separate instruction on intent

.
Even if Friedman‘ s proposed jury instruction was a correct statement of the law, Friedman‘s instruction on coercion or extortion is not supported by the evidence in the record. The facts in this case do not constitute coercion or extortion

. Friedman did not bribe Zanardelli in exchange for
an act to which he was legally entitled. He gave the bribe to Zanardelli in exchange for the i llegal act of Zanardelli legalizing the sixteen th unit without a variance. Additionally, Zanardelli did not threaten Friedman with economic loss. Zanardelli frequently clarified that Friedman could proceed through the normal route of applying for a varia nce. Although obtaining a variance requires time and money, it is the correct legal process that should have been followed and informing someone of the correct, legal steps they should take, in itself, is not threatening serious economic loss. That Fried man would likely lose a potential buyer for his apartment building is also not Zanardelli threatening Friedman with serious economic loss. T here is no evidence that t he potential buyer ‘s threat to pull out of the deal was influenced by Zanardelli‘s action

. In light of our conclusion that Friedman‘s proposed instruction was not a correct statement of law, nor was his theory supported by the facts, we need not discuss whether the failure to include an instruction would have denied Friedman a fair trial.

2. Exclusion of Witness Testimony24 Friedman asserts that the District Court erred in precluding assistant tax assessor Michael Jaeger‘s testimony. A s a result, he requests reversal of the convicti on and remand for a new trial. We disagree.

Federal Rule of Evidence 402 provides that ―[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory author ity. Evidence which is not relevant is not admissible.‖ F ED

. R. E VID . 402. Under Federal Rule of Evidence 401, ― ̳ [r]elevant evidence‘ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.‖ F ED

. R. E VID . 401.

Evidence that is relevant may still be excluded ―if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the is sues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presen tation of cumulative evidence.‖ F ED

. R. E VID

. 403. The District Court‘s discretion is ―construed especially broadly in the context of Rule 403.‖ United S tates v. Kemp

, 500 F.3d 257, 295 (3d Cir. 2007) (citation and internal quotation marks omitted)

. Jaeger testified at a Federal Rule of Evidence 104 hearing that the property record card showed that the building had sixteen units, was the most current an d accurate record maintained by the Tax Department, and was the record upon which the WNY Building Department relied to determine the number of units in a building. The District Court excluded th is testimony because it was distracting and not relevant

.25 Friedman argues that Jaeger‘s testimony shows that Zanardelli induced Friedman‘s payment by claiming that t he records showed that the building had only fifteen units, when the records actually reflected sixteen units. From this evidence, Friedman conten ds, the jury could have inf erred that Zanardelli induced Friedman‘s payment.

The District Court did not abuse its discretion in precluding Jaeger‘s testimony. While Jaeger did testify as to the number of physical units reported on the card , his testim ony was clear that the property record card indicated, in handwritten notes by Jaeger‘s secretary, that the number of physical units was sixteen

. Nowhere in Jaeger‘s testimony does he say that the number of legal units was sixteen

. It is undisputed that the bu ilding physically had sixteen units, thus testimony about the number of physical units is not relevant

. Moreover, Jaeger testified at the Rule 104 hearing that that he did not have knowledge of whether Zanardell i had seen the property record card

. This render s his testimony not relevant to support Friedman‘s theory that Zanardelli lied to Friedman about what the property record card reflected

. Zanardelli responded on cross

- examination that he h ad not seen the tax records. Friedman could have arg ued, without Jaeger‘s testimony, that Zanardelli intentionally overlooked the tax records , thus Jaeger‘s testimony that he did not know whether Zanardelli saw the records is not relevant

. T here was

no error here; thus, we need not determine whether the er ror was harmless . The District Court did not abuse its discretion in rejecting Jaeger‘s testimony.

3. Limitation of Cross

- Examination26 The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that

, ― [ i ] n all criminal
prose cutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him

. . . . ‖ U.S. C ONST

. amend. VI. Yet, the Confrontation Clause does not grant unfettered rights to cross

- ex amine witnesses. ―[T]he Confrontation Clause guara ntees an opportunity for effective

cross

- examination, not cross

- examination that is effective in whatever way, and to whatever extent, the defense might wish.‖ Delaware v. Van Arsdall , 475 U.S. 673, 679 ( 1986) (citation and internal quotation marks omitte d) ; United States

v. Casoni

, 950 F.2d at 919 (― Van Arsdall requires us to strike a balance between the constitutionally required opportunity to

cross

- examine and the need to prevent repetitive or abus ive

cross

- examination .‖). District c ourt s have discreti on to ―impose reasonable limits on such cross

- examination based on concerns about, among other things, . . . interrogation that is repetitive or only marginally relevant.‖ Van Arsdall , 47 5 U.S. at 679. 2

Friedman claims that his Sixth Amendment right to confrontation was violated because the District Court limited the scope of cross

- examination regarding both Zanardelli and Acosta. While the District Court did limit the extent of Friedman ‘s cr oss

- examin ation, it was not violative of the

2 Federal Rule of Evidence 611(a) states: ―The court shall exercise reasonable control over the mode and order of int errogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.‖ F ED

. R. E VID

. 611(a).27 Constitution. The District Court permitted the full scope of

cross

- examination of Zanardelli regarding money he had received on twenty

- two properties to facilitate building approvals but limited the specific details that could be delved into. Most important, Friedman was still permitted to questi on Zanardelli generally on these matters

.
Friedman‘s cross

- examination of Zanardelli sought to obtain information regarding the amount of the bribes, what Zanardelli did with the bribe money he received

, and the identities of multiple people from whom Zanardelli received bribes. Friedman argues th at he should have been permitted to show through cross

- examination that Zanardelli solicited bribes, rather than merely accept ed bribes. But the District Court allowed multiple oppo rtunities to obtain this testimony

. Friedman‘s counsel asked on cross

- examination, ―but there were br ibes that you solicited, right? That‘s what you pleaded guilty to.‖ ( App. at 378.) Later, Zanardelli was asked : ―Were peop le just coming in and offeri ng you bribes?‖ ( Id. at 386) ; ―Were there times when you solicited bribes and people refused to pay them?‖ ( Id. at 387) ; and ―Were there times when you asked for [bribes] and people refused to pay them?‖ ( Id. at 388).

Zanardelli responded, on the record, to these quest ions. The jury heard direct evidence and admissions of Zanardelli‘s wrongdoing. The District Court‘s limitation was reasonable and did not deny Friedman his Sixth Amendment right to confront witnesses against him. The District Court did n ot abuse its discretion by limiting Friedman‘s ability to cross

examine Zanardelli.

Similarly, the District Court permitted cross

examination of Acosta generally regarding fifty

- four28 violations of the building code , that he failed to accurately report, a s part of his inspection duties. On the other hand, the District Court d id not permit questioning regarding each and
every one of the individual fifty

- four violations. Friedman
asserts that this limitation prevented him from demonstrating that Acosta man ipulated the building code rules that he should have been enforcing and that this manipulation pressured Friedman into bribing Zanardelli to ge t around the building code

. This argument lacks merit

. Friedman‘s counsel sought to solicit information during cross

- examination regarding Acosta‘s citations for violations of the building code and that he had previously made misrepresentations regarding building units. However, Friedman‘s counsel‘s statement at trial undercuts the argument. When instructed to a sk general questions about the violations

, but to avoid questions regard ing each and every specific violation, Friedman‘s attorney stated candidly that he ―wasn‘t planning on it.‖ ( Id. at 171. ) Friedman‘s counsel had not intended to cross

- examine Acosta on the indi vidual building code violation s anyway

.
The District Court‘s limitation was reasonable and did not deny Friedman his Sixth Amendment right to confront witnesses against him . The District Court did not abuse its discretion in limiting Friedman ‘s cross

- examination of Acosta

. With respect to both Zanardelli and Acosta, Friedman had the opportunity to cross

- examine them on their alleged wrongdoing and the limitation on cross

- examination did not inhibit the argument that Acosta and Zanardelli e ngaged in malfeasance. The jury learned of the full extent of Acosta‘s and Zanardelli‘s malfeasance and criminal activity

. The29 District Court‘s ruling on the scope of cross

- examination with respect to Zanardelli and Acost a is consistent with Van Arsdall that Friedman does not have the unfettered right to

cross

- examination.

4. Giglio

Friedman argue s that the Government violated Brady v. Maryland , 373 U.S. 83 (1963) and Giglio v. United States

, 405 U.S. 150 (1972) because it concealed certain impeachment evidence related to Acosta and Callahan.

Brady stands for the proposition that ―the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irresp ective of the good faith or bad faith of the prosecution.‖ 373 U.S. at 87. Under Giglio

, ―the government must disclose materials that go to the question of guilt or innocence as well as mater ials that might affect the jury‘ s judgment of the credibility o f a crucial prosecution witness.‖ United States v. Milan , 304 F.3d 273, 287 (3d Cir. 2002) (citing United States v. Bagley , 473 U.S. 667, 676

– 77 (1985)). A defendant must prove three elements for a Brady violation: (1) ― the evidence at issue must be favo rable to the defendant; ‖ (2) ― it must be material; ‖ and (3)

― it must have been suppressed by the prosecution. ‖ United States v. Reyeros , 537 F.3d 270, 281 (3d Cir. 2008) (citing Pelullo , 399 F.3d at 209 ; United States v. Perdomo

, 929 F.2d 967, 970 (3d Cir . 1991) ).

Evidence is material ― only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.‖ United States v. Bagley , 473 U.S. 667, 682 (1985).30 Material evidence c an include evidence that may be used to impeach a witness. Id. at 676

- 77 ; Giglio , 405 U.S. at 154. However, ― i mpeachment evidence, if cumulative of similar impeachment evidence used at trial . . . is superfluous and therefore has little, if any, probativ e value.‖ Lambert v. Beard , 633 F.3d 126, 133 (3d Cir. 2011) (citations omitted). On the other hand, it does not follow ―th at whenever a witness is impeached in one manner, any other impeachment becomes immaterial.‖ Id.

Here, Friedman argues that he was disadvantaged because the Government failed to disclose Acosta‘s change in testimony. Originally, Acosta had identified properties for which Zanardelli, or Zanardelli‘s successor, had told him to disregard apparent violations. Later, on cross

- examina tion, Acosta denied this assertion. The defense argued that this change was material and a violation of Giglio and Brady to suppress it. T he District Court found that the Government did not suppress the change in Acosta‘s testimony or intentionally misle ad Friedman because the Government was not aware of the change in Acosta‘s testimony until Acosta was cross

examined at trial

. This finding was not clearly erroneous.

Friedman chose not to cross

- examine Acosta on the inconsistency of his prior statemen t and the District Court noted that Friedman‘s opening statement regarding Acosta‘s
pre

- trial statements were not central to his defense. T he refore, the District Court did not abuse it s discretion by holding that Friedman was not prejudiced by the lack of prior knowledge of the change of testimony . Further, the result of the trial w ould not have been different if the change had been disclosed.31 Next, Friedman requests a new trial based on the Government‘s failure to disclose a change in testimony by a

r eal estate broker

, Callahan

. The Government provided discovery to Friedman that Callahan had told the FBI that early in the process of preparing the building for listing to sell, Friedman told Callahan that the Town of WNY did not consider one of the apar tments to be legal. Callahan later denied ever making that statement. Friedman asserts that he would have use d Callahan‘s statement to argue that he did not have a corrupt intent in bribing Zanardelli because he was honest in his disclosure to Callahan a bout the illegal unit. According to Friedman, the Government‘s failure to disclose this change in testimony about whether Friedman disclosed to Callahan that the unit was illegal deprived Friedman of the opportunity to argue that he did not have a corrupt intent to bribe. The Government concedes that the change in testimony may reflect on Callahan‘s credibility and that it should have been disclosed to Friedman.

The question that remains given the concession is whether the failure to disclose the change in testimony amounts to a constitution al deprivation requiring the ordering of a new trial. The District Court found that it did not. This finding is not clearly erroneous. Callahan‘s testimony regarding whether Friedman told him about the illegal apart ment is not relevant regarding whether Friedman had a corrupt intent in bribing Zanardelli. The evidence implicating Friedman was that he bribed Zanardelli in exchange for a C.O. to legalize the sixteenth unit

. Alt hough the Government concealed evidence from Friedman that may have been favorable to Friedman , the evidence was not material . T her e is not a reasonable probability that the result of the proceeding would have been different if the Government had32 disclosed Callahan‘s change in testimony regardi ng what Friedman had told Callahan about the illegal unit . The District Court did not err in denying Friedman‘s motion for mistrial.

5. Procedural and Substantive Unreasonableness in Sentencing

Friedman argues that his sentence is procedurally unreasonabl e because the District Court did not (1) follow the proper order of the steps set forth in Gunter ; (2) compute a definitive loss calculation or offense level to reach the Guidelines range ; (3) formally rule on Friedman‘s departure motion; or (4) meaningful ly consider the § 3553(a) factors. Friedman also argues that his sentence is substantively unreasonable.

Here, the District Court did not follow the correct order of the steps set forth in Gunter , did not c omput e a definitive loss c alculation or offens e level to reach its Guidelines range n or did it meaningfully consider § 3553(a)(6), ― the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct

. ‖ 18 U.S.C. § 3553(a)(6). Based o n these procedural errors, we will remand to the District Court for resentencing.

Following United States v. Booker , 543 U.S. 220 (2005) , we directed district courts to follow a three

- step sentencing process

. United States v. Gunter , 462 F.3d 237, 247 (3d Cir. 2006) . During the first step, a district court must ―calculate a defendant‘s Guidelines sentence precisely as they would have before Booker .‖ Id

. (citation omitted). During33 the second step, district court s ―must  ̳formally rul[e] on the

m otions of both parties and stat [e] on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and tak[e] into account [our] Circuit‘s
pre

- Booker case law, which continues to have advisory force.‘‖ Id

. (alter ati ons in Gunter ) (citation omitted). During the third step, district court s must ― ̳exercise [] [their] discretion by considering the relevant [ § 3553(a) ] factors‘ 3 in

3 The § 3553(a) factors include:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed

- - (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or voca tional training, medical care, or other34 setting the sentence they impose regardless of whether it varies from t h e sentence calculat ed under the Guidelines. ‖ Id.

correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for

-

- (A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines . . . ;

(5) any pertinent policy statement . . . issued by the Sentencing Commission . . . [that] is in effect on the date the defendant is sentenced;

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a).35 (alter ations in Gunter ) (citation omitted). During the third step, district courts should engage in ―a true, considered exercise of discretion . . . including a recognition of, and response to, the parties‘ non

- frivolous ar guments.‖ United States v. Jackson , 467 F.3d 834, 841 (3d Cir. 2006) (citation omitted)

. Appellate review is limited to determining whether the sentence is reasonable. United States v. Merced , 603 F.3d 203, 21 3 (3d Cir. 2010) (citation omitted)

. Our re view for reasonablenes s proceeds in two stages: (1) ―First, we ensure that the district court committed no  ̳significant procedural error,‘  ̳such as failing to calculate (or improperly calculating) the Guidelines rage, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence‖ and (2) ―if the district court‘s procedures are sound, we proceed to examine the substantive reasonable ness of the sentence.‖ Id. at 214 (quoting United States v. Tomko , 562 F.3d 558, 568 (3d Cir. 2009) ; Gall v. United States , 552 U.S. 38, 51 (2007) ) (citation omitted) ; United States v. Levinson , 5 43 F.3d 190, 195 (3d Cir. 2008) ( ―[W]e are to ensure that a substantively reasonable sentence has been imposed in a procedurally fair way.‖ ). At both the procedural and substantive stages, this Court reviews for abuse of discretion. United States v. Negroni , 638 F.3d 434, 443 (3d Cir. 2011) (citation omitted)

. To demonstrate that a sentence is procedurally reasonable, a district court must show ―meaningful consideration of the relevant statutory factors and the exercise of independent judgment. ‖ United States v. Grier , 475 F.3d 556, 571

- 72 (3d Cir. 2007) (en banc), cert. denied

, 552 U.S.36 848 (2007). A major variance from the s entencing Guidelines may require a more significant justification than a minor one. Gall , 552 U.S. at 50.

We will affirm a procedurally sound sentence as substantively reasonable ―unle ss no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.‖ Tomko , 562 F.3d at 568

. We focus on the totality of the circumstances, and the party challenging the sentenc e bears the burden of proving the sentence‘s unreasonableness. Id. at 567. ―[W]hile reviewing courts may presume that a sentence within the advisory Guidelines is reasonable, appellate judges must still always defer to the sentencing judge‘s individualiz ed sentencing determination.‖ Rita v. United States , 551 U.S. 338 , 364 (2007). ― ̳[ I ]t is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence, ‘ ‖ except to the ex tent specifically directed by
statute. Williams v. United States

, 503 U.S. 193, 205 (1992) (quoting Solem v. Helm , 463 U.S. 277, 290 n.16 (1983)).

a. Order of the Gunter Steps

Friedman argues that the District Court erred procedurally by analyzing the Gunter steps out of order. The District Court began its sentencing procedures with the first Gunter step by discussing the disputed loss calculation. Before resolving what the loss or offense level was, the District Court conducted the second step of Gunter an d discussed the departure motion. The District Court then returned to a discussion of step one by resolving two other guidelines disputes: whether Zanardelli was a high

- level official and whether Friedman accepted responsibility for the37 crime. Next, the District Court engaged in a discussion of some of the § 3553(a) factors, the third step of Gunter , and then stated that it would impose something less than a Guidelines level of 22 before continuing its discussion of § 3553(a) factors. Finally, the Distri ct Court imposed a 34

- month sentence, stating it was at an offense level of either 19 or 20.

The Government concedes that the District Court should have completed its calculation of the Guidelines range prior to its § 3553(a) analysis, but contends that Friedman fails to show that the sentencing calculation was impacted by the order of analysis.

The District Court in this matter strayed from our three step process in Gunter

. D istrict court s should consider the steps separately and sequentially

. See Un ited States v. Lofink , 564 F.3d 232, 242 (3d Cir. 2009) (holding that it was not harmless error for the district court to consider a motion for a downward departure together with the § 3553(a) factors in the third step, rather than as a discrete second ste p of the process); United States v. Brown , 578 F.3d 221, 226

- 27 (3d Cir. 2009) (remanding to the district court for conflating the Gunter steps and failing to specify whether the below Guidelines range sentence was a result of a departure or a variance). Following the process set forth in Gunter ensures that the District Court‘s decision

- making process is both logical and fair. Departure and variance motions logically cannot be determined until the district court knows what the Guidelines calculation is. Likewise, the § 3553(a) factors cannot be consulted until after departure and variance motions are completed. The fact that the District Court failed to adhere to this process inhibits our ability to review the sentence for reasonableness and thus requir es remand.38 b. Guidelines Calculation

While the District Court ultimately concluded that it was imposing a 34

- mon th sentence, it did not make any determinations as to what the loss calculation and total offense level was to lead it to the appropriate Guideli nes range. Rather, the District Court imposed a 34

- month sentence and then stated that this corresponded to a Guideline range of 19 or 20

. Under the Supreme Court and this Court‘ s precedent, the District Court is required to calculate the Guidelines rang e

. Gall , 552 U.S. at 597 . A sentence rendered without a calculation of the Guidelines range constitutes procedural error. See id. In order to determine the appropriate Guidelines range under step one of Gunter , the District Court must determine the tot al offense level. Here, th e record does not contain an explanation of how a Guidelines calculation of 19 or 20 was reached. The record merely indicates that the District Court believed the Guidelines calculation should be ― somewhere in between ‖ what the Government proposed, 22, and what the defense proposed, 16

. (App. at 9 58.)

The District Court did not ―adequately explain the chosen sentence.‖ Gall , 552 U.S. at 597. The ―failure to begin with a properly

- calculated Guidelines range . . . preclude[s] this Court from concluding that [the procedural error] was harmless error.‖ U nited States v. Smalley , 517 F.3d 208, 215 (3d Cir. 2008) (remanding to the district court to properly justify deviating eight months above the upper

end of the properly calculat ed Guidelines range) . For this reason, we wi ll remand to the District Court to explain and determine a specific Guidelines calculation.

c. Departure Motion39 Next, Friedman challenges his sentence by asserting that the District Court did not formal ly rule o n his motion for

a downward departure for coercion, blackmail, or duress

. Under Gunter

, a district court must ―formally rule on the motions of both parties and state on the record whether [it is] granting a departure and how that departure affects the Gui delines calculation.‖ 462 F.3d at 247. This Court has emphasized the importance of ruling on departure motions:

[W] e require that the entirety of the Guidelines calculation be done correctly, including rulings on Guidelines departures. Put another
way, district courts must still calculate what the proper Guidelines sentencing range is, otherwise the Guidelines cannot be considered properly at Gunter‘ s third step. The scenario is simple: error entering this sentencing step may presage the sentence ultimat ely set

.
Lofink , 564 F.3d at 238

- 39 (citation omitted)

.
In Rita , the Supreme Court held that the district court sufficiently rejected the defendant‘s request for a downward departure when it simply stated that without downward departure, the G uidelines ran ge was not ―inappropriate‖ and the sentence was ―appropriate.‖ 551 U.S. at 358 . The Supreme Court recognized that the judge could have explained more regarding why it rejected the defendant‘s downward departure motion , but noted that the ―context and40 the record make clear that this, or similar, reasoning underlies the judge‘s conclusion.‖ Id. at 359

.
In this case, the District Court clearly rejected Friedman‘s downward departure motion . The D istrict Court explained that it was ―convinced based on the testimony at the trial‖ that Friedman had ―no moral objection‖ to the bribe and that Friedman was not the victim of extortion

, but instead was motivated to pay the bribe in order to sell the building quickly and to avoid proper procedures to legalize the

s ixteenth unit. (App. at 959.) The District Court did not commit procedural error in its resolution of the departure motion.

d. Meaningful Consideration of § 3553(a) Factors

Friedman ‘s final argument with respect to his sentence is that the District Court failed to give m eaningful consideration to the § 3553 (a) factors.

In Booker , the Supreme Court held that appellate courts should insure that district courts analyze the § 3553(a) factors when determining sentences for criminal enterprises. 543 U.S. at 261

. Sentencing courts must give ―meaningful consideration‖ to the factors in 18 U.S.C. § 3553(a)

. United States v. Olhovsky , 562 F.3d 530, 546 (3d Cir. 2009)

. A district court‘s fail[ure] to consider the § 3553(a) factors can create a procedurally unre asonable sentence. Levinson , 543 F.3d 190, 196 (3d Cir. 2008).
―[T]he district court need not discuss and make findings as to each of the § 3553(a) factors if the record makes clear that the court took the facto rs into account in sentencing . . . . ‖ United States v. Kononchuk , 485 F.3d 199,41 204 (3d Cir. 2007)

. Still, ―[w]here one party raises a colorable argument about the applicability of one of the factors, [] the court should respond to that argument as part of its  ̳ meaningful consideration of the relevant statutory factors and the exercise of independent judgment. ‘‖ United States v. Merced , 603 F.3d 203, 221 (3d Cir. 2010) (quoting Grier , 475 F.3d at 571

- 72)

.
A mere recitation of the factors and a statement that counsel‘s arguments have been co nsidered is insufficient, but ―brevity is not error per se .‖ Jackson , 467 F.3d at 84 1

- 4 2 (holding that the district court‘s statement that it considered the defendant‘s prior convictions for crimes of violence, circumstances of defendant‘s upbringing, and financial circumstances w as sufficient discussion of the § 3553 (a) factors).

During the sentencing proceeding, the District Court stated that it considered the ―loving letters from family and friends,‖ the ―less

- than

- disciplined attitude‖ towards his inco me taxes, his various housing violations incurred through the years, and an indifference in abiding by the requirements. ( Id. at 962.) The District Court also generally stated that it had considered the § 3553(a) factors.

Friedman raised in his senten cing memorandum § 3553(a)(6) , ―unw arranted sentencing disparities

. ‖ 18 U.S.C. § 3553(a)(6). He referred to the sentence of Anthony Lam

, who was convicted of the same offense

— making a cash payment of $5,000 to Zanardelli, in violation of 18 U.S.C. § 666(a )(2). Anthony Lam received a sentence of three years‘ probation from District C ourt Judge Garrett E. Brown, Jr

. Likewise, Friedman draws attention to the 24

- month sentence that the District Court imposed on Zanardelli for accepting42 bribes as a public off

icial

. The District Court was intimately familiar with all of the facts as they relate to Zanardelli. Responding to Friedman‘s motion with respect to § 3553(a)(6) was clearly within the District Court‘s knowledge of the case.

The District Court ‘s only discussion of this alleged disparity in sentencing was that the District Court noted that it was required to ―consider a fairness with regard to other off enders who are sentenced by the Court.‖ (App. at 961.) The District Court did not state whether the re was a sentencing disparity or address whether comparing Friedman‘s sentence to Lam‘s sentence or Zanardelli‘s sentence demonstrated a sentencing disparity. T he District Court must address whether there is a sentencing disparity because there is no expl icit discussion or indication in the record that it was considered

. See Negroni , 638 F.3d at 446 (3d Cir. 2011) (―While the District Court identified the concern and stated it had considered that factor, it provided no explanation for why the sentence it imposed was justified despite the clear disparity it seemed to create.‖); Merced

, 603 F.3d at 225 (requiring remand where Merced‘s sentence was 128 months less than what a similarly situated defendant could expect to receive under the circumstances and the re was no explicit discussion or indication in the record that the district court considered this disparit y ) ; c f. United States v. Larkin , 629 F.3d 177, 196 (3d Cir. 2010) (finding no procedural error in the district court‘s discussion of the sentence disp arity because the District Court explained the similarity in conduct between the defendant and the co

defendant).43 For the reasons discussed above, we will remand to the District Court for resentencing to cure the procedural errors in the sentence. 4

IV. C ONCLUSION

We will affirm the judgment of conviction, vacate the
sentence , and remand for resentencing

, in accordance with this opinion

.

4 In light of our decision to re mand for procedural error , we need not consider Friedman‘s arguments that the sentence was substantively unreasonable. See Merced , 603 F.3d at 214 (―If the district court commits procedural error, our preferred course is to remand the case for re

- sentencing, without going
any fur ther.‖ (citation omitted)).