NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 10-2997

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UNITED STATES OF AMERICA

v.

FRANK B. AZAN, 

Appellant

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On Appeal from the United States District Court

for the District of Delaware

(No. 1:08-cr-114-3)

District Judge: Honorable Gregory M. Sleet

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

March 22, 2012

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Before: RENDELL, FISHER, CHAGARES, Circuit Judges.

(Filed: May 16, 2012)

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OPINION 

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CHAGARES, Circuit Judge.

Frank B. Azan appeals his sentence of 24 months of incarceration. For the reasons 

that follow, we will affirm.
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I.

Because we write solely for the parties, we recite only those facts necessary for 

our disposition. Prior to the events that led to this appeal, Azan was employed at Bank of 

America as a senior credit analyst and business card representative. In 2007, Azan began 

associating with his codefendant Arthur Ishkanian (“Ishkanian”). Ishkanian asked Azan 

to help his “customers,” who were supposedly small business owners, to obtain an 

increase on their credit lines at FIA Card Services N.A., a subsidiary of Bank of America. 

After Azan fraudulently increased the credit lines on their business and personal 

accounts, the “customers” withdrew the full amount of cash that was authorized and did 

not pay it back. Initially, Azan increased the credit lines himself, but he later recruited 

his codefendant Frank McCann to assist in the scheme by increasing existing credit lines. 

From July 2007 through January 2008, McCann increased the credit lines on several 

hundred accounts. McCann and Azan were compensated by Ishkanian for performing 

these tasks. The total loss incurred by Bank of America was $7,776,694.

In February 2008, Azan was discharged from his position with Bank of America 

after the bank discovered his fraudulent activities. When he was contacted by federal 

authorities, he immediately confessed and, for two years, cooperated with the 

Government in its attempt to apprehend Ishkanian, who was a fugitive. In particular, 

Azan helped the Government by meeting with federal prosecutors and agents from the 

Federal Bureau of Investigation when needed, participating in numerous recorded 

telephone conversations, persuading Ishkanian to attend a wedding in Florida so that 

federal authorities could arrest him, being present in the vehicle with Ishkanian when he 
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was apprehended in Florida, and appearing at Ishkanian’s sentencing in case his 

testimony was needed. 

In February 2009, Azan pled guilty to one count of conspiracy to commit bank 

fraud in violation of 18 U.S.C. § 1344. The United States Sentencing Guidelines range 

for Azan’s offense was 78 to 97 months. Prior to sentencing, the Government moved 

under U.S.S.G. § 5K1.1 for a downward departure to 24 to 30 months due to Azan’s 

extraordinary cooperation. In addition, Azan filed a sentencing memorandum seeking a 

downward variance based on the factors set forth in 18 U.S.C. § 3553(a). In particular, 

Azan emphasized that he had worked for Bank of America for thirteen years before he 

was discharged, earning regular promotions and excellent performance ratings. He 

submitted thirteen character reference letters describing him as a hard-working man, a 

trusted friend, and a loving son and brother. Azan had not previously engaged in 

criminal conduct and his attorney argued that Azan had fallen prey to Ishkanian. 

Additionally, Azan maintained that his assistance to the Government exceeded the 

normal assistance given in federal white collar cases and even placed him in danger. 

The District Court sentenced Azan to 24 months of incarceration, three years of 

supervised release, and $7,776,694 in restitution for which he and his codefendants were 

jointly and severally liable. The District Court granted the Government’s motion for a 

downward departure but did not specify how the motion would affect Azan’s sentence. 

The Court went on to consider the nature of the scheme that Azan and his co-defendants 

had engaged in and Azan’s personal characteristics, in particular, his “impressive work 

history” and letters of support. Appendix (“App.”) 13. The Court emphasized the 
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seriousness of the offense and Azan’s participation in its commission. Although the 

Court found that Azan had otherwise lived an “exemplary life” and that the offense was 

“out of character,” it rejected Azan’s claim that he was a “naïve member of the 

conspiracy” and had “merely exercised poor judgment in committing this offense.” Id.

19-20, 16-17. After explicitly considering the § 3553(a) factors, the Court concluded: “I 

believe that your specific circumstances warrant the following sentence, which in my 

view strikes the appropriate balance among all of the 3553 factors[.]” Id. 21. 

II.

We review the procedural and substantive reasonableness of a District Court’s 

sentence for an abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007).1 After 

United States v. Booker, 543 U.S. 220 (2005), the District Courts must follow a threestep sentencing process:

(1) Courts must continue to calculate a defendant’s Guidelines sentence 

precisely as they would have before Booker.

(2) In doing so, they must formally rule on the motions of both parties and 

state on the record whether they are granting a departure and how that

departure affects the Guidelines calculation, and take into account [our] 

Circuit’s pre-Booker case law, which continues to have advisory force. 

(3) Finally, they are required to exercise their discretion by considering the 

relevant § 3553(a) factors, in setting the sentence they impose regardless 

whether it varies from the sentence calculated under the Guidelines.

United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006) (quotation marks and citations 

omitted). With respect to the substantive reasonableness of the sentence, “we will affirm 

 

1

 The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231 and we 

have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
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[the sentence] unless no reasonable sentencing court would have imposed the same 

sentence on that particular defendant for the reasons the district court provided.” United 

States v. Wright, 642 F.3d 148, 152 (3d Cir. 2011) (quoting United States v. Tomko, 562 

F.3d 558, 568 (3d Cir. 2009) (en banc)). The defendant bears the burden of showing 

unreasonableness. United States v. Bungar, 478 F.3d 540, 543 (3d Cir. 2007). A District 

Court’s decision to give mitigating factors less weight than the defendant believes they 

deserve does not render the sentence unreasonable. Id. at 546.

III.

It is well-settled that we lack jurisdiction to review the extent of a District Court’s 

discretionary downward departure for substantial assistance pursuant to U.S.S.G. § 5K1.1

so long as the District Court properly understood its authority to consider the departure 

motion. United States v. King, 604 F.3d 125, 141 n.9 (3d Cir. 2010). Accordingly, Azan

appeals only the extent of the District Court’s discretionary downward variance based on 

the § 3553(a) factors. That analysis is somewhat elusive in this case because the Court 

granted the Government’s § 5K1.1 motion but did not specify how much or whether it 

intended to further vary the sentence based on the § 3553(a) factors. Azan argues that the 

sentencing court should have stated specifically which portion of the downward 

sentencing adjustment was attributed to the requested departure and which was 

attributable, if any, to the requested variance. 

Azan’s argument implicates United States v. Lofink, 564 F.3d 232, 238-39 (3d 

Cir. 2009), in which this Court articulated that, pursuant to the analysis set forth in United 

States v. Gunter, 462 F.3d at 247, the sentencing court must decide the merits of 
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departure motions separately from its resolution of variance requests based on the 

§ 3553(a) factors. If a court grants a departure motion, it must state on the record that it 

is granting the motion and specify the new Guidelines range before assessing the 

§ 3553(a) factors. Id. at 239; Gunter, 462 F.3d at 247. 

This case is distinguishable from Lofink, however, because in that case the District 

Court had declined altogether to rule on the departure motion and had conflated steps two 

and three in the Gunter analysis. See Lofink, 564 F.3d at 239-40. Here, the District 

Court explicitly stated that it was granting the Government’s departure motion, which 

sought a departure down to 24 to 30 months, and then separately went through the 

§ 3553(a) factors to explain why the sentence it chose was appropriate. It is clear from 

the record that, once the Court granted the Government’s motion, the Court understood 

the new advisory Sentencing Guidelines range to be 24 to 30 months. In turn, the Court’s

choice of a sentence at the lowest end of that range was clearly determined by its 

consideration of the applicable § 3553(a) factors. We conclude, therefore, that the 

District Court made no procedural error.

We also conclude that Azan’s sentence was substantively reasonable. Although 

Azan was a first-time offender and had many letters of support, the Court appropriately 

emphasized the gravity of his offense and his substantial involvement therein. In 

particular, the Court’s sentence is reasonable in light of the astounding amount of money 

that Bank of America lost as a result of Azan’s scheme, Azan’s abuse of his employer’s 

trust, and Azan’s recruitment of McCann. Additionally, because granting the 

Government’s motion resulted in a considerable departure from the advisory Sentencing 
7

Guidelines range due to Azan’s substantial cooperation, it was not unreasonable for the 

District Court to decline to depart further based on that cooperation. 

IV.

For those reasons, we hold that the District Court’s sentence was both 

procedurally and substantively reasonable and we will affirm the sentence of the District 

Court.