2012 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2012/246NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________

No. 12

- 1542

____________ UNITED STATES OF AMERICA

v. ERIC S. ANDERSON, Appellant

____________ On Appeal from the Un ited States District Court for the District of Delaware (D.C. No. 1

- 11

- cr - 00030

- 001 ) District Judge: Honorable Gregory M. Sleet

____________ Submitted Pursuant to Third Circuit LAR 34.1(a) October 4, 2012 Before: FUENTES, FISHER and COWEN , Circuit Judg es . (Filed: October 25,2012 )

____________ OPINION OF THE COURT

____________ FISHER, Circuit Judge

. Eric Anderson appeals from his judgment of sentence in the District of Delaware , challenging its procedural reasonableness. We will affirm.2 I. We write principally f or the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis. Anderson was indicted on one count of possession of a firearm by a convicted felon, in viol ation of 18 U.S.C. § § 922(g)(1) and 924(a)(2)

. Anderson moved to suppress the firearm . The D istrict Court held a suppression hearing, and denied Anderson’s

“ colorable motion ” by order and opin ion

. Joint App. II at 69

. At Anderson’s change of plea heari ng , the District Court accepted his plea agreement and his guilty plea. The presentence report identified a base offense level of twenty. Incorporating the terms of the plea agreement, the presentence report provided for a two

- level reduction for affirma tive acceptance of responsibility pursuant to U.S.S.G. § 3E1.1( a ) , but did not provide for an additional one

- level reduction for timely ac ceptance of responsibility pursuant to U.S.S.G. § 3E1.1(b). The resulting total offense level of eighteen, combined

w ith a criminal history category of four, yielded a Guidelines range of forty

- one to fifty

one months imprisonment. Anderson did not object to the presentence report

. However, Anderson did submit a sentencing memorandum in which he argued for a downward v ariance based on his remorse and his loss of the third reduction point for3 acceptance of responsibility due to his filing of the colorable motion to suppress. 1

At the sentencing hearing , the District Court first adopted the presentence report’s Guidelines calculation without objection

. Anderson then briefly referenced his loss of the third reduction point for a cceptance of responsibility based on his filing of the colorable motion to suppress . T he District Court responded that it was “ not sure that should factor into the calculus as to what ultimat ely the appropriate sentence is. ” Joint App. II at 69

. Anderson next argue d at length about his remorse. The District Court rejected Anderson’s request for a downward variance, and sentenced him to a within

Guidelines term of forty

- eight months imprisonment. Anderson timel y appealed. Anderson claimed that he was entitled to a below

- Guidelines sentence of thirty

- six months impri sonment

. T he Government submitted a response letter arguing for a within

Guidelines sentence of forty

- eight months imprisonment.

II. The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231. We have jurisdiction over this sentencing appeal pursuant to 18 U.S.C. § 3742 and 28

1 Anderson correctly labels his request as a downward variance rather than as a downward departure. See United States v. Tomko , 562 F.3d 558, 562 n.3 (3d Cir . 2009) ( en banc ) (“[S]entencing departures . . . are based on specific Guidelines provisions, and sentencing variances . . . are based on the § 3553(a) factors.”). Although Anderson requested a sentence at the bottom of the Guidelines range that would ha ve applied had he received the full three

- level reduction for acceptance of responsibility, he “d[id] not object to the Guideline calculations.” Joint App. II at 53. Instead, Anderson “request[ed] a sentence below the advisory guideline range . . . [in] compl[iance] with the statutory directives set forth in 18 U.S.C. § 3553(a).” Id. at 49.4 U.S.C. § 1291

. We review a district court’s sentencing decision “to ensure that a substantively reasonable sentence has been imposed in a procedurally fair way.” United
States v. Levinson , 5 43 F.3d 190 , 195 (3d Cir. 200 8 ). We employ an abuse of discretion standard, United States v. Tomko , 562 F.3d 558, 567 (3d Cir. 2009) ( en banc ) (citing Gall v. United States , 552 U.S. 38, 51 (2007)) , re versing when a district court base d its sentencing decision “ on a clearly erroneous factual conclusion or an erroneous legal conclusion.” United States v . Wise , 515 F.3d 207, 217 (3d Cir. 2008)

. The appellant bears the burden of demonstrating unreasonableness. Tomko , 562 F.3d at 567

. III. On appeal, Anderson argues only that his sentence was procedurally unreasonable, contending that the District Court erred by questioning its authority to grant a downward variance based on his remorse a nd his loss of the third reduction point for acceptance of responsibility due to his filing of the colorable motion to suppress. 2

2 Although the plea agreement includes an appellate waiver, the waiver does not bar an appeal related to sentencing. In support of his claim, Anderson point s only to the District Court’s statement at his sentencing hearing that it was “not sure [his loss of the third reduction point for acceptance of responsibility based on his filing of the colorable motion to suppress ] should factor into the calculus as
to what ultimately the appropriate sentence is.” Joint App. II at 69

. We find that the District Court was aware of its authority to grant Anderson a downward variance for his5 acceptance of responsibility, exercised its discretion not to do so, and imposed a
p rocedurally reasonable sentence.
A district court commits “significant procedural error” by “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selectin g a sentence b ased on clearly erroneous fact s, or failing to adequately explain the chosen sentence

– including an explanation for any deviation from the Guidelines range.” Tomko , 562 F.3d at 567 (quoting Gall , 552 U.S. at 51). We analyze a claim that a d istrict c ourt failed to recognize its authority to consider acceptance of responsibility as a sentencing factor as a claim that it committed significant procedural error by treating the Guidelines as mandatory. See generally United States v. Severino , 45 4 F.3d 206, 210

- 14 (3d Cir. 2006). We do not require a district court “to routinely state by rote that

. . . [it] know[s] the sentencing guidelines are now advisory.” United States v. Cooper , 437 F.3d 324, 3 29 (3d Cir. 2006)

. We review the entire record , Severino , 454 F.3d at 211, rather than isolated statements, id. at 214, to determine whether a district court believed that it was bound by the Guidelines. Here,
t he District Court understood the advisory nature of the Guidelines. A t the change of plea hearing, the District Court explained to Anderson that it was “not required to follow” “the Guideline advice . . . about a sente nce, ” Gov’t App. at 18 , and tha t it “retain[ed] the discretion

. . . to sentence [ him ]

. . . less severely t han advised by the Guidelines. ” I d. at 19

. Similarly, at the sentencing hearing, the District Court recognized that the Guidelines6 were only one of “a number of factors that direct[ed] the exercise of [its] discretion in sentencing

. ” Joint App. II at 86

. Notwithstanding the single ambiguous sentence Anderson highlights, w e find that the record as a whole amply demonstrates that the District Court did not treat the Guidelines as mandatory. See Severino , 454 F.3d at 214 (recognizing that “district judges issue sentencing d ecisions from the bench in ‘spontaneous remarks’ that are ‘unlikely to be a perfect or complete statement of all of the surrounding law.’”) (quoting Cooper , 437 F.3d at 330 n.8). Thus, w e conclude that Anderson has not met his burden of demonstrating proc edural error.
IV. For the reasons set forth above, we will affirm the District Court’s sentence

.