NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 10-4368

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UNITED STATES OF AMERICA

v.

MARY LU FRANKOVIC,

 Appellant

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On Appeal from the United States District Court

for the District of Western Pennsylvania

(D.C. No. 2-08-cr-00280-001)

District Judge: Hon. Nora B. Fischer

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Submitted under Third Circuit LAR 34.1(a)

February 15, 2011

Before: SLOVITER, HARDIMAN and ALDISERT, Circuit Judges.

(Filed: February 16, 2011)

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OPINION OF THE COURT

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ALDISERT, Circuit Judge.

At issue in this appeal is whether the District Court committed a procedural error 

during sentencing in this case. Appellant Mary Lu Frankovic contends that the District 

Court failed to apply the proper legal framework when ruling upon her motion for a
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“departure” within, or a “variance” from, the United States Sentencing Guidelines

(“Guidelines”), and urges us to remand for resentencing. We disagree, and will affirm.

I.

The District Court had jurisdiction pursuant to 18 U.S.C. § 1331. We have 

jurisdiction pursuant to 28 U.S.C. § 1291, and 18 U.S.C. § 3742(a).

We give great deference to a district court’s factual findings during a sentencing 

hearing, United States v. Wise, 515 F.3d 207, 217 (3d Cir. 2008), but whether a district 

court committed a procedural error in sentencing is a question of law we review de novo, 

cf. United States v. Lofink, 564 F.3d 232, 237 (3d Cir. 2009).

II.

Appellant Mary Lu Frankovic pleaded guilty to various fraud-related offenses, and 

was sentenced to a split term of prison and supervised release. During the sentencing 

hearing, her attorney asked the court for a variance, as well as a departure, from the 

Guidelines’ recommended sentence: “We believe a downward variance or a departure 

under the amended guidelines is clearly appropriate based on Ms. Frankovic’s mental 

illness . . .” (App. 193.)

At the conclusion of the hearing, the District Court first addressed the request for a

variance. It stated that, “after considering all the facts of record and the factors under

Section 3553(a), including the policy statements, as well as the recent amendments that 

now pertain[] to this case, the Court will not vary from the advisory guideline range.”

(App. 207, 208) (“I will not vary based on the mental and emotional health conditions.”).

The Court next addressed the request for a downward departure. The Court ruled 

out any departure based upon mental incapacity (App. 211), and any departure based upon 

mental and emotional conditions (App. 212), stating that “all together, I don’t believe a 

departure under the newly revised guideline is warranted” (App. 213). The Court then 
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imposed the Guidelines’ recommended sentence.

III.

The Appellant contends that the District Court failed to apply the proper legal 

framework, thereby tainting her sentence with procedural error, when ruling upon her 

motion for a departure or a variance. We disagree. In United States v. Brown we set forth 

the procedural framework that guides courts’ rulings upon variances and departures:

We expressly distinguish between departures from the guidelines and variances 

from the guidelines. Departures are enhancements of, or subtractions from, a 

guidelines calculation based on a specific Guidelines departure provision. These 

require a motion by the requesting party and an express ruling by the court. 

Variances, in contrast, are discretionary changes to a guidelines sentencing range 

based on a judge’s review of all the [18 U.S.C.] § 3553(a) factors and do not require 

advance notice. District courts should be careful to articulate whether a sentence is a 

departure or a variance from an advisory Guidelines range.

578 F.3d 221, 225-226 (3d Cir. 2009) (internal quotations and citations omitted). We are 

satisfied that the District Court in this case followed the procedures Brown described. The 

Court ruled first upon the variance, making findings of fact framed by the judge’s review of 

the § 3553(a) factors. Then, separately, the Court made an “express ruling” upon the 

departure, as Brown requires. See id. at 225. The Court concluded by heeding Brown’s 

warning to “be careful to articulate” its rulings on both the departure (App. 213) and the 

variance (App. 212) before announcing the sentence in this case. See 578 F.3d at 226. For 

those reasons, we are convinced that the Appellant’s sentence is procedurally sound.

*****

We conclude that there was no procedural error in the sentencing proceeding in this 

case. The judgment of the District Court will be AFFIRMED.