NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________ No. 19-1828

________________ UNITED STATES OF AMERICA

v. SHAWN HILLIARD, ALSO KNOWN AS BUGGZ, ALSO KNOWN AS RICK, ALSO KNOWN AS BELOVED, ALSO KNOWN AS BOOGZ, Appellant

________________ On Appeal from the United States District Court for the Eastern Districtof Pennsylvania (D.C. Criminal No. 2-14-cr-00134-001) District Judge: Honorable C. Darnell Jones, II

________________ Submitted Pursuant to Thir d Circuit L.A.R. 34.1(a) on April 15, 2020 Before: CHAGARES, SCIRICA, and ROTH, Circuit Judges (Filed: August 18, 2020)

________________ OPINION *

________________

* This disposition is not an opinion of the full Co urt and pursuant to I.O.P. 5.7 does not constitute binding precedent.2 SCIRICA , Circuit Judge Shawn Hilliard was involved in a scheme that defrauded several FDIC-insured banks. For his conduct in this scheme, Hilliard pleaded guilty to one count of bank fraud under 18 U.S.C. § 1344, one count of conspi racy under 18 U.S.C. § 371, and six counts of aggravated identity theft under 18 U.S.C. §§ 2, 1028 A. Hilliard appeals his sentence for the second time. Hilliard presents three is sues for our review: (1) whether the trial court erred in ordering res titution of $777,583.80; (2) whether his sentence was procedurally unreasonable because the trial c ourt failed to meaningfully consider certain evidence and factors; and (3) whether his se ntence was substantively unreasonable in comparison to his co-conspirators and to hi s previous sentence. We conclude the trial court did not err and we will affirm Hilliard’s sentence.
I. Hilliard, along with multiple co-conspira tors, conducted a nationwide bank fraud scheme that involved corrupting bank employe es to appropriate confidential account information and directing impostors to use that information to withdraw funds from compromised accounts. The scheme caused lo sses at four banks: TD Bank, Citibank, Wells Fargo Bank, and Capita l One Bank. Hilliard was char ged in March 2015 (along with multiple co-conspirators) with one count of bank fraud, one coun t of conspiracy, and six counts of aggravated id entity theft. While under pret rial supervision, Hilliard repeatedly failed to report and absconded to Maine under a false identity, only being apprehended months later. As noted, Hilliard pleaded gu ilty to all charges and was sentenced to 126 months’3 imprisonment, a five-year term of supervised release, restitution of $1,375,125.12 and a special assessment of $800. Hilliard timely appealed his sentence. This Court vacated Hilliard’s sentence and remanded the ca se to the trial court for resentencing. United States v. Hilliard , 726 F. App’x 918 (3d Cir. 2018). We concluded the trial court erred in finding that Hilliard had “joined the conspira cy before his parole expired in October 2012.” Id. at 920. Additionally, we st ated we had “concerns” about the trial court’s basis for its finding on th e restitution amount and noted the trial court “will necessarily recalculate th e loss amount per our holding on the restitution amount.” Id. at 921. Finally, we stated the sentence wa s not substantively unreasonable solely on the basis that co-conspirators received more lenient sent ences, noting the “downward variances [were] based on [the co-conspir ators’] post-offense rehabilitation efforts.” Id. On remand, the trial court requested new briefing to address the issues noted in our opinion and conducted a loss amount hear ing to determine loss for sentencing and restitution purposes. One witne ss, Special Agent Michael John son of the Department of Homeland Security, Homeland Se curity Investigations, testif ied as to the losses stemming from the identity theft and bank fraud conspiracy attributable to Hilliard. The trial court ordered the parties to submit supplemental briefing on multiple issues, including the proper restitution amount. Both parties s ubmitted detailed charts listing the losses they contended were legally a ttributable to Hilliard. After receiving the supplemental briefing, the trial court held a sentencing hearing and heard argument on the issues raised in the supplemental briefing, sentencing in general, and the introduction of post-offe nse rehabilitation evidence. The trial court4 deferred imposing a sentence so it could co nsider the parties’ arguments and any evidence of post-offe nse rehabilitation. On March 27, 2019, the trial court resentenced Hilliard to 126 months’ imprisonment—the same term of imprisonme nt imposed at his first sentencing—as well as a five-year term of supervised release. It also ordered Hilliard to pay restitution of $777,583.80 and a special asse ssment of $800. J.A. 3–4, 6 –7. Hilliard objected to two aspects of the sentence: (1) the weight assign ed to mitigating factors Hilliard introduced “in favor of a [sentencing] va riance” and (2) the trial court labeling Hilliard “a leader or organizer” for sentencing purposes. J. A. 782. Hilliard timely appealed. 1
II. As noted, Hilliard presents three overall i ssues for our review: (1) whether the trial court erred in imposing a re stitution amount of $777,583.80; (2) whether his sentence was procedurally unreasonable because the tria l court failed to meaningfully consider certain evidence and factors; and (3) wh ether his sentence was substantively unreasonable. A. Hilliard contends the trial court erre d in imposing a restitution amount of $777,583.80. It appears Hilliard asserts two arguments here: (1) failure to use the right test in reaching the restitution amount and (2 ) employing the correct test, actual loss, but imposing a restitution amount that was too high. Because we conc lude the restitution

1 The trial court possessed juri sdiction under 18 U.S.C. § 3231. We possess jurisdiction to review Hilliard’s sentence under 28 U.S. C. § 1291 and 18 U.S.C. § 3742.5 amount imposed reflects only actual loss, we need not address Hilliard’s first argument and we conclude the trial court did not err. 2
We “review a restitution orde r under a bifurcated standard: plenary review as to whether restitution is permitted by law, and a buse of discretion as to the appropriateness of the particular award.” United States v. Fallon , 470 F.3d 542, 5 48 (3d Cir. 2006) (quoting United States v. Quillen , 335 F.3d 219, 221 (3d Ci r. 2003)). The trial court’s fact-finding is reviewed for clear error; in other words, whether it is “completely devoid of a credible evidentiary basis or bears no rational relationship to the supporting data.” United States v. Vitillo , 490 F.3d 314, 330 (3d Cir. 2007) (quoting United States v. Haut , 107 F.3d 213, 218 (3d Cir. 1997)). 3 The parties agree that the Mandatory Victims Restitution Act requires the imposition of restitution in this case. 18 U.S.C. § 3663A(c)(1); 18 U.S.C. § 3664( f)(1)(A) (stating restitution mu st be ordered “in the full amount of each victim’s losse s”). What remains is a challe nge to the amount of the award.

2 We note that it appears Hilli ard complains about the $777,583.80 figure when it was used both as the loss amount for sentencing purposes and to impose restit ution. The amount of loss for sentencing and restitution may differ, because se ntencing loss may be “intended loss” while restitution is limited to “actual loss.” See United States v. Feldman , 338 F.3d 212, 215–16 (3d Cir. 2003) (discussing that actual or intended loss may serve as the basis for a sentencing enhancement, but “a restitution award can only be based upon actual loss”). Because this case hinges on actual, rather than intended, loss, we need only review th e restitution amount. See id. at 219 (“We will first discuss th e restitution issue, which turns on the determination of actual loss. This will obviate the need to discuss actual loss in conjuncti on with the sentencing issue.”).

3 When reviewing loss amount, factual findings are also reviewed for clear error. United States v. Napier , 273 F.3d 276, 278 (3d Cir. 2001) (citing United States v. Sharma , 190 F.3d 220, 226 (3d Cir. 1999)). We exercise plenary re view over a trial court’s interp retation of the United States Sentencing Guidelines. Id. (citing Sharma , 190 F.3d at 229). Our conclusion would remain the same, even if under thes e standards of review.6 Restitution is limited to the victims’ actual losses. Feldman , 338 F.3d at 216. Although relying on different bases, the partie s agree that actual loss standard includes losses which were reasonably foreseeable to H illiard, even if the lo sses were caused by the conduct of his co-conspirators. This appear s to be the proper te st for actual loss in cases of conspiracy and we will apply it here. Cf. United States v. Robinson , 167 F.3d 824, 830–32 (3d Cir. 1999) (using “reasonably foreseeable” test to hold conspirator liable for drug death for sentencing purposes even thou gh conspirator did not sell drugs to decedent). 4 Accordingly, we must determine wh ether the restitution amount reflects losses that Hilliard directly cau sed, knew about, or were re asonably foreseeable to occur. As noted, the trial court imposed $777,583 .80 in restitution. J.A. 6–7, 774–75. At his second sentencing, Hilliard contended only $639,440 in loss was attributable to him. J.A. 728, 736. According to Hilliard, his pr oposed restitution amount reflected all losses that he was directly involved in or had di rect knowledge of. The government asserted $1,161,568.80 of th e approximately $1.3 million total loss was attributable to Hilliard. J.A. 700, 732. In reaching a restitution amoun t, the trial court explained that Hilliard was directly responsible for or ha d direct knowledge of the fo llowing percentages of losses

4 It is also the standard in our Sister Circuits. See United States v. Newell , 658 F.3d 1, 32 (1st Cir. 2011) (“[I]t is well establishe d that defendants can be requi red to pay restitution for the reasonably foreseeable offenses of their co-conspirators.”); United States v. Boyd , 222 F.3d 47, 51 (2d Cir. 2000) (same); United States v. Newsome , 322 F.3d 328, 338 (4th Cir. 2003) (same); United States v. Bogart , 576 F.3d 565, 576 (6th Cir. 2009) (same); United States v. Ismoila , 100 F.3d 380, 398–99 (5th Cir. 1996) (similar); United States v. Rand , 403 F.3d 489, 495 (7th Cir. 2005) (same); United States v. Rodriguez , 915 F.3d 532, 535 (8th Cir. 2019) (same); United States v. Riley , 335 F.3d 919, 931–32 (9th Cir. 2003) (same); United States v. Osborne , 332 F.3d 1307, 1314 (10th Cir. 2003) (same); United States v. Odom , 252 F.3d 1289, 1298–99 (11th Cir. 2001) (same).7 caused by the conspiracy: 33% from TD Bank, 75% from Citibank, 90% from Wells Fargo, and approximately 1% from Capital One. J.A. 775. Based on the charts received from the parties and the testimony of Spec ial Agent Johnson, the trial court imposed restitution for Hilliard’s “self-admitted” losses at institutions —TD Bank and Capital One—where Hilliard was responsible for less than 50% of the loss. J.A. 774–75. Where Hilliard was responsible for more than 50% of the loss—namely, the losses incurred by Citibank and Wells Fargo—the trial court imposed restitution in the amount the government requested. Because Hilliard admitte d the full restitution am ount for TD Bank and Capital One and most of the restitution amount for Citibank and Wells Fargo, we need only examine th e excess loss amounts, that is , the amounts exceeding those admitted by Hilliard, at C itibank and Wells Fargo. Comparing the portions of the parties’ ch arts on Citibank, the excess loss amounts attributed to Hilliard by th e government stem from account information provided by Yolanda Gorham, a Citibank em ployee. Special Agent Johnso n’s testimony shows that Hilliard knew Gorham was providing conf idential account info rmation to his coconspirators and had provided him with account informati on through an intermediary, Wayne Collins. Losses in volving account information re ceived from Gorham, even if Hilliard was not directly invol ved and did not have direct knowle dge, were reasonably foreseeable to him. The trial court did not abus e its discretion in attributing these losses to Hilliard. Comparing the portions of the parties’ charts on Wells Fargo, the excess loss amounts attributed to Hilliard by the gove rnment stem from one impostor, Christina8 Bevilacqua. Special Agent Johnson’s testim ony reveals that Dramian Combs, whom Hilliard recruited as a driver and an impo stor, stated Hilliard managed Bevilacqua. Because Hilliard had managed and worked with her in the past, it was reasonably foreseeable to him that she wo uld continue her role in the conspiracy in the future. The trial court did not abuse its discretion in attributing these losses to Hilliard. The trial court’s restituti on award only included those lo sses Hilliard was directly responsible for, had direct knowl edge of, or which were reasonably foreseeable to him. In other words, it only reflected actual loss. Ac cordingly, we will affi rm the trial court’s restitution order, as there was no legal or factua l error and it did not abuse its discretion in imposing restitution in the amount of $777,583.80.
B. Hilliard asserts his sentence was not proc edurally reasonable. When reviewing for procedural reasonableness, we: ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chos en sentence—includin g an explanation for any deviation from the Guidelines range. United States v. Douglas , 885 F.3d 145, 150 ( 3d Cir. 2018) (quoting United States v. Tomko , 562 F.3d 558, 567 (3d Cir. 20 09) (en banc)) (alteration omitted). Hilliard presents three proc edural reasonableness issues for our review. First, he contends the trial court refused to consider evidence of post-offense rehabilitation as required under Pepper v. United States , 562 U.S. 476 (2011). Second, he contends the9 trial court erred in failing to m eaningfully consider “the lowe r criminal history score, the lower restitution amount, and his post-senten cing rehabilitative efforts.” Appellant’s Br. 45–46. Third, he contends the trial court erre d in its weighing of his abscondment during pretrial supervision. Because Hilliard did not lo dge an objection in the tr ial court on the first two issues, we review those for plain error. See United States v. Flores-Mejia , 759 F.3d 253, 258 (3d Cir. 2014) (“[I]n a criminal prosecu tion, unless a relevant objection has been made earlier, a party must object to a procedural error after the sentence is pronounced in order to preserve the error and avoid plain e rror review.”). Because he did object to the weight given to his abscondment, we review for abuse of discretion. United States v. Negroni , 638 F.3d 434, 443 (3d Cir. 2011) (citing United States v. Wise , 515 F.3d 207, 217–18 (3d Cir. 2008)). First, Hilliard suggests the trial c ourt did not consider his post-offense rehabilitative conduct because it reject ed its obligation to do so under Pepper v. United
States , 562 U.S. 476 (2011), and only later “b egrudgingly gave Hilliard the opportunity to present the evidence.” A ppellant’s Br. 47. Hilliard misc haracterizes the exchange between the trial court and counsel, as it appears the trial court believed Hilliard’s counsel was asserting that Pepper supported his contention that he should be able to introduce new evidence on the issue of role enhancement, not post-offense rehabilitation. Moreover, it appears the trial court agreed with Hilliard’s counsel multiple times that evidence of post-offense rehab ilitation may be introduced at resentencing and explicitly stated it would give counsel “the opportunity to present the evidence.” J.A. 744. In fact,10 as detailed below, the trial c ourt explained that it consider ed “Hilliard’s evidence of postsentencing conduct” in determin ing its sentence. J.A. 780. The trial court did not err, let alone commit plain error, in accepting and considering Hilliard’s evidence of postoffense rehabilitation. Second, Hilliard asserts the trial court did not give meaningful consideration to his lower criminal history score, his lower re stitution amount, and th e evidence of postoffense rehabilitation. In discussing the § 35 53(a) factors, a trial court must give “meaningful consideration” to the “par ticular circumstances of the case.” United States v. Thornhill , 759 F.3d 299, 311 (3d Cir. 2014) (quoting Tomko , 562 F.3d at 567). We have held “[a] sentencing court does not have to ‘d iscuss 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.’” Tomko , 562 F.3d at 568 (quoting United States v. Cooper , 437 F.3d 324, 329 (3d Cir. 2006)); see also Thornhill , 759 F.3d at 311 (“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 to ok the factors into account in sentencing.’” (quoting United States v. Bungar , 478 F.3d 540, 543 (3d Cir. 2007))). In imposing Hilliard’s second sentence, the trial court stated: “I have taken into account the reduced restitution amount of $777,583.80, th e reduced criminal history category of 2” and “Hilliard’s evidence of post-sentencing conduct,” including: eight disciplinary charges in a 27-m onth period, completion of 46 credit hours of educational a nd vocational course work , completion of a drug education program, the Bureau of Prisons’ recommendation that he be assigned to a lower level security pris on, and Mr. Hilliard’s preparation for11 a productive life as a personal trainer after he satisfies his term of imprisonment. J.A. 779–80. The record reflect s meaningful consideration and we conclude that the trial court did not err, let alone commit plain error, in its consideration of the evidence and these factors. 5 Third, Hilliard contends th e trial court gave his absc ondment too much weight. But a trial court’s decision to give a factor different weight than that urged by the defendant does not make a sentence unreasonable. See United States v. Young , 634 F.3d 233, 243 (3d Cir. 2011) (“The District C ourt’s decision to accord less weight to mitigation factors than that urged by [the defendant] does not render the sentence unreasonable.” (citing Bungar , 478 F.3d at 546)). The trial court did not abuse its discretion in affording greater weight in sentencing to Hilliard’s abscondment than Hilliard wished and the weight given was re asonable. We conclude Hilliard’s sentence was procedurally reasonable. C. We next consider the substantive reasonableness of Hilliard’s sentence. Hilliard contends the sentence imposed is not substa ntively reasonable for two reasons: (1) the sentence is identical to his pr evious sentence even though certain factors were more favorable to him and (2) the sentence is disproportionate to those imposed on co5 In support of his argument that the trial court di d not meaningfully consid er certain factors and evidence, Hilliard asserts the trial court did not explain the amount of time he was sentenced to serve for each count and could not have imposed his sentence in the same manner as at his first sentencing. But this contention is incorrect. It appears to have no relation to procedural reasonableness, as Hilliard does not contend this senten ce could not lawfully have been imposed nor that the trial court’s calculations were incorrect.12 conspirators. We conclude neith er argument is meritorious. We review substantive unreasonabl eness for abuse of discretion. Tomko , 562 F.3d at 567. Where, as here, the sentence impos ed was within the Guidelines range, “the appellate court may, but is not required to , apply a presumption of reasonableness.” Gall v. United States , 552 U.S. 38, 51 (2007) (citing Rita v. United States , 551 U.S. 338, 347 (2007)). We will affirm “unless no reasonabl e sentencing court woul d have imposed the same sentence on that particular defendant fo r the reasons the district court provided.” Tomko , 562 F.3d at 568. We presume reasonableness here because Hilliard’s sentence is within the applicable Guidelines range. Although certain factors impr oved for Hilliard between his first and second sentencing, the relevant test is not—as Hilliard appears to contend— whether the sentence is reasonable in light of a previous, vacated sentence, but whether “no reasonable sentencing court would have imposed the same sentence.” Id. at 568. This is not a case where no reasonable senten cing court would have imposed the same sentence. There was no abuse of discretion. Nor is it substantively unreasonable just be cause Hilliard’s sentence is longer than his co-conspirators. 6 A sentencing court need only co nsider “the need to avoid

6 The Government contends we need not address this issue on the merits because it was decided by the previous panel. We disagree. Even t hough the previous panel considered whether Hilliard’s sentence was substantively unreasonable compared to his co-conspirators, Hilliard , 726 F. App’x at 921, it did not consider that c ontention under the current sentence and evidence of post-offense rehabilitation. The law-of-the-case doctrine only appl ies when “prior decisions in an ongoing case either expressly resolved an issu e or necessarily resolv ed it by implication.” UA Theatre Cir. v. Twp. of Warrington , 316 F.3d 392, 397–98 (3d Cir. 2003) (quoting Aramony v. U. Way of Am. , 254 F.3d 403, 410 (2d Cir. 2001)). There was neither an e xpress nor implied holding on Hilliard’s contention under this set of facts.13 unwarranted sentence disparities among defenda nts with similar records who have been found guilty of similar conduc t.” 18 U.S.C. § 3553(a)(6). This portion of the statute only applies when “co-defendants are similarly situated.” United States v. Parker , 462 F.3d 273, 278 (3d Cir. 2006). And “[d]isparity of sentence between co-defendants does not of itself show an abuse of discretion.” United States v. Cifuentes , 863 F.2d 1149, 1156 n.5 (3d Cir. 1988) (citing United States v. Endicott , 803 F.2d 506, 510 (9th Cir. 1986); United States v. Peters , 791 F.2d 1270, 1303 (7th Cir. 1986); United States v. Herrera , 757 F.2d 144, 150 (7th Cir. 1985); United States v. Garrett , 680 F.2d 650, 652 (9th Cir. 1982)). Hilliard admits he is not similarly situated to his co-conspirators. See Appellant’s Br. 58 (“Hilliard did not have the same type of mitigating eviden ce that the Clemente brothers did . . . .”). Because Hilliard and his co-conspirators are dissimilar in both the type and amount of mitigation evidence presen ted, Hilliard can point to no more than a disparity of sentence. This is not sufficien t. We see no abuse of discretion. Hilliard’s sentence is not substa ntively unreasonable.
III. For the reasons stated, we will affirm th e sentence imposed by the trial court.