PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 12-1511

____________

UNITED STATES OF AMERICA

 

v.

LAWRENCE SCOTT WARD,

 Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D. C. No. 2-08-cr-00148-001)

District Judge: Honorable Petrese B. Tucker

Argued on March 5, 2013

Before: SCIRICA, JORDAN and ROTH, Circuit Judges

 

(Opinion filed: October 15, 2013)
2

Peter Goldberger, Esq. (Argued)

50 Rittenhouse Place

Ardmore, PA 19003

Counsel for Appellant

Sonja M. Ralston, Esq.

United States Department of Justice

Criminal Division

950 Pennsylvania Avenue, N. W.

Suite 1264

Washington, DC 20530

Bea L. Witzleben, Esq. (Argued)

Office of United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

O P I N I O N 

ROTH, Circuit Judge:

Lawrence Scott Ward appeals the District Court’s 

judgment of sentence. Ward alleges several sources of error 

in the proceedings below, including a violation of Federal 
3

Rule of Criminal Procedure 32 on the theory that the District 

Court improperly required that he deliver his allocution under 

oath. For the reasons that follow, we will affirm the District 

Court’s judgment of sentence.

I. Background

On August 27, 2006, Ward arrived at Dulles 

International Airport after a trip to Brazil. A search of 

Ward’s possessions revealed that he was in possession of 

child pornography. Ward was arrested and indicted in the 

Eastern District of Virginia for that offense.

After Ward’s arrest in Virginia, federal agents 

searched his office at the Wharton Graduate School of 

Business, in Philadelphia, Pennsylvania, where he served as 

an Emeritus Professor. The search revealed numerous 

photographs and videos of Ward engaged in sex acts with 

minors later identified as J.D. and R.D. The pictures and 

videos were taken in Brazil, where J.D. and R.D. lived. A 

search of Ward’s email showed communications between 

Ward and J.D. and R.D. in which Ward requested that the 

boys engage in various sex acts, including having sex with 

other men chosen by Ward. The investigation also exposed 

evidence that Ward had paid for J.D.’s housing and provided 

J.D.’s family with money.

Between March and August 2006, Ward attempted to 

acquire a visa for J.D. to visit the United States. During the 

visa application process, Ward made several false statements

to State Department personnel, including misrepresentations

that J.D.’s family was affluent when in fact it was destitute. 
4

Ward allegedly did this to show that there was little risk that 

J.D. would overstay his visa.

On May 17, 2007, after unsuccessfully attempting to 

consolidate the cases pending in the Eastern District of

Pennsylvania and the Eastern District of Virginia, Ward 

pleaded guilty in the Eastern District of Virginia case and 

received a sentence of 15 years of imprisonment. On March 

13, 2008, Ward was indicted in the Eastern District of 

Pennsylvania on two counts of shipping child pornography in 

interstate commerce, in violation of 18 U.S.C. § 2252(a)(1),

and one count of false statements to a federal official, in 

violation of 18 U.S.C. § 1001. On August 21, 2008, the 

grand jury returned a superseding indictment charging Ward 

with an additional two counts of inducing a minor to engage 

in sexually explicit conduct, in violation of 18 U.S.C. § 

2251(a).

On November 17, 2008, Ward pleaded guilty in the

Eastern District of Pennsylvania case to all five counts of the

superseding indictment. At the sentencing hearing, the 

government requested and received a two-level sentencing 

enhancement because Ward’s conduct involved two victims. 

The District Court sentenced Ward to 300 months of

incarceration, lifetime supervised release, a $100,000 fine, 

and a $500 special assessment.1 However, the District Court

 

1

The District Court originally intended not to impose a fine 

but to award restitution of $100,000. When the prosecutor 

expressed concern about restitution because the victim, J.D., 

could not be found, the court responded, “so the $100,000 

will be a fine, not restitution.”
5

did not specify a particular sentence for each charge to which 

Ward pleaded guilty.

Ward appealed the sentence to this Court on three 

grounds: (1) challenging the two-level enhancement, (2)

asserting that the District Court’s rationale for imposing a fine 

was flawed, and (3) arguing that his sentence was an 

impermissible general sentence. We found no error in the 

District Court’s conclusion that Ward’s crime involved two 

victims. United States v. Ward, 626 F.3d 179, 183-84 (3d 

Cir. 2010). We also held that the District Court, in switching

the $100,000 from restitution to a fine, stated insufficient 

reasons for imposing that fine, but, because Ward did not 

object to the fine at sentencing, we concluded that this error 

was not plain. Id. at 185-86. Finally, we held that the District 

Court erred by failing to impose a separate sentence for each 

count of the superseding indictment. Id. at 184. This error 

was reversible; thus, we remanded the case to the District 

Court for resentencing. Id. at 186.

While his appeal was pending, Ward maintained 

contact with J.D. and R.D., who at this point had fathered 

children. Ward attempted to establish a relationship with 

those children. Additionally, Ward violated prison rules by 

spending money on other inmates and attempting to use his 

attorneys to make contact with his victims for non-legal 

reasons.

At the resentencing hearing on February 9, 2012, the 

District Court personally addressed Ward, asking if he wished 

to speak on his own behalf. When Ward indicated that he 

wished to make a statement, the District Court, over defense 

counsel’s objection, insisted that his allocution be delivered 
6

under oath, pursuant to that judge’s individual practice. Ward 

was placed under oath and proceeded to speak about his 

contrition for violating societal norms, his interest in 

rehabilitation, his personal struggle in coming to terms with 

the fact that he is a homosexual, his recent diagnosis of

leukemia, and his hope that he would have a sentence short 

enough that he would not die in prison because he wanted to 

maintain his ties with family and friends. 

After Ward allocuted, the District Court sentenced him

to the same prison term of 300 months of incarceration, but 

increased the fine from $100,000 to $250,000. The District 

Court explained that the increased fine was not meant as 

punishment for Ward’s successful appeal of his sentence; 

rather, the court stated that the $250,000 fine was within the 

advisory range and that the amount was a reasonable figure 

which Ward had the means to pay. The District Court also 

ordered that Ward have no contact with any person under 18 

years of age, especially his victims’ children in Brazil.

II. Discussion2

Ward challenges his sentence on seven independent 

grounds, arguing that his sentence should be vacated because 

(1) he had the right to deliver an unsworn allocution, (2) the 

District Court impermissibly increased his fine, (3) the 

government presented insufficient evidence to warrant a

sentencing enhancement for Ward’s involvement in a pattern 

of prohibited sexual conduct, (4) the District Court did not 

 

2

The District Court had jurisdiction under 18 U.S.C. § 3231. 

This Court has appellate jurisdiction under 18 U.S.C. § 3742

and 28 U.S.C. § 1291. 
7

adequately explain the reasons for choosing a 300 month 

sentence, (5) the District Court’s refusal to grant Ward’s 

request for a downward variance was procedurally 

unreasonable; (6) a 300 month sentence was substantively 

unreasonable, and (7) the District Court impermissibly failed 

to order restitution. All of Ward’s arguments are unavailing.

A. May the Court Require that Allocution be 

Sworn.

3

Ward argues that Federal Rule of Criminal Procedure 

32 affords all criminal defendants the right to deliver an 

unsworn allocution.4 The issue of whether a criminal 

defendant has the right to an unsworn allocution is a matter of 

first impression in this Court and appears to be a novel 

question of federal law. As with any analysis of the Federal 

Rules of Criminal Procedure, our inquiry is guided by the text 

of the rule as well as its history and purpose. See United 

States v. Higgs, 504 F.3d 456, 459 (3d Cir. 2007). For the 

reasons that follow, we conclude that there is no right to 

 

3

Following oral argument, the Court directed the United 

States to file a supplemental brief, stating the formal position 

of the Department of Justice as to whether a criminal 

defendant may be required to be sworn at a sentencing 

hearing – either at the beginning or immediately before 

allocution. The Department of Justice filed such a brief. 

Ward was permitted to file a response and he did so. This 

post-argument briefing has been considered in our resolution 

of this appeal.

4 Our review of a district court’s compliance with Rule 32 is 

plenary. United States v. Cherry, 10 F.3d 1003, 1013 (3d Cir. 

1993). 
8

deliver an unsworn allocution. We leave it to the unfettered 

discretion of the district courts to decide whether the

defendant will be placed under oath during allocution. 

1. Legal Framework

“[T]he right of allocution is deeply rooted in our legal 

tradition” and dates back to at least the fifteenth century. U.S. 

v. Adams, 252 F.3d 276, 282 (3d Cir. 2001). The rules of 

evidence in early English and American common law deemed 

criminal defendants “incompetent as witnesses.” Ferguson v. 

Georgia, 365 U.S. 570, 574 & n.3 (1961) (citing 3 

Blackstone, Commentaries on the Laws of England, 369 

(1769)). As a result, they could not testify on their own 

behalf at trial or plead legal defenses like insanity or 

justification. Kimberly A. Thomas, Beyond Mitigation: 

Towards a Theory of Allocution, 75 Fordham L. Rev. 2641, 

2646-47 (2007). Thus, allocution, before sentencing, was the 

defendant’s one chance to argue for mitigation. Adams, 252 

F.3d at 282; Paul W. Barrett, Allocution, 9 Mo. L. Rev. 115, 

120-21 (1944). Although the right of allocution predates the 

founding of the Republic, it is not a right guaranteed by the 

Constitution.5 Adams, 252 F.3d at 282. 

 

5

There is some authority in other circuits suggesting that the 

right of allocution may be protected by the Fifth and 

Fourteenth Amendments. See, e.g., Boardman v. Estelle, 957 

F.2d 1523, 1525 (9th Cir. 1992) (habeas case, discussing right 

of allocution in state court); United States v. Moree, 928 F.2d 

654, 656 (5th Cir. 1991) (discussing right of defendant to be 

present at sentencing); Ashe v. North Carolina, 586 F.2d 334, 

336 (4th Cir. 1978) (habeas case, discussing right of

allocution in state court). We do not adopt their reasoning.
9

However, acknowledging the historical and common 

law roots of the right of allocution, Congress codified the 

right in 1944 by promulgating Federal Rule of Criminal 

Procedure 32. Id. at 280 (citing Green v. United States, 365 

U.S. 301, 304 (1961) (plurality opinion)). The text of Rule 32 

sets forth only two requirements: the sentencing court must 

address the defendant personally and must permit the 

defendant to speak or present any information to mitigate the 

sentence. Fed. R. Crim. P. 32(i)(4)(a)(ii). The rule is silent 

as to whether the allocution should be sworn or unsworn.

There is no legislative history discussing whether a defendant 

should be allowed to deliver an unsworn allocution, nor do 

the committee notes address the question.

The Supreme Court’s 1961 decision in Green

recognized the historical roots of the common law right of 

allocution, highlighting the equitable concern that a criminal 

defendant must always be asked if he has anything to say 

before sentence is imposed so that he has “the opportunity to 

present to the court his plea in mitigation.” 365 U.S. at 304. 

The rationale supporting this procedural requirement is that 

even “[t]he most persuasive counsel may not be able to speak 

for a defendant as the defendant might, with halting 

eloquence, speak for himself.” Id. Rule 32 was codified with 

this policy in mind. Id.

The cases decided since Green confirm that the critical 

purpose of Rule 32 is threefold: (1) to allow the defendant to 

present mitigating circumstances, (2) to permit the defendant 

to present personal characteristics to enable the sentencing 

court to craft an individualized sentence, and (3) to preserve 

the appearance of fairness in the criminal justice system. See 
10

Thomas, Beyond Mitigation, 75 Fordham L. Rev. at 2643. 

Thus, allocution “is designed to temper punishment with 

mercy in appropriate cases, and to ensure that sentencing 

reflects individualized circumstances.” United States v. De 

Alba Pagan, 33 F.3d 125, 129 (1st Cir. 1994). “Aside from 

[allocution’s] practical role in sentencing, the right ‘has value 

in terms of maximizing the perceived equity of the process,’”

United States v. Barnes, 948 F.2d 325, 328 (7th Cir. 1991)

(quoting 3 ABA Standards for Criminal Justice, 18-459 (2d 

ed. 1980)), because the defendant is given the “right to speak 

on any subject of his choosing prior to the imposition of 

sentence.” Barnes, 948 F.2d at 328. 

The contemporary practice of swearing or not 

swearing defendants before a Rule 32 allocution varies by 

district and by judge. Although no federal court has 

addressed the question of whether a Rule 32 allocution must 

be unsworn, our sister circuits have made passing references 

to both sworn and unsworn allocutions. Compare, e.g., 

United States v. Kaniss, 150 F.3d 967, 969 (8th Cir. 1998) 

(noting that the defendant’s Rule 32 allocution was sworn),

with United States v. Whitten, 610 F.3d 168, 199 (2d Cir. 

2010) (noting that a defendant may deliver “an unsworn, 

uncrossed allocution”); see United States v. Gilbert, 244 F.3d 

888, 924 n.79 (11th Cir. 2001) (noting that Black’s Law 

Dictionary defines allocution as an “unsworn statement” that 

“is not subject to cross examination”). However, under Rule 

32, no court has ever held that a criminal defendant has an 

affirmative right to deliver an unsworn allocution. 

Moreover, the Sentencing Guidelines do not 

distinguish between sworn and unsworn statements, 

permitting a sentence enhancement for any false statement, 
11

whether sworn or not, made during an allocution. See 

U.S.S.G. § 3C1.1; United States v. Parker, 594 F.3d 1243, 

1249-50 (10th Cir. 2010) (applying § 3C1.1 enhancement for 

a false statement made during the defendant’s allocution 

without distinguishing between sworn or unsworn 

statements).6 

2. Analysis

We conclude from the above review that, although 

allocution may frequently be unsworn, neither the 

Constitution nor Rule 32 require that this be so. Whether an 

allocution is sworn or unsworn does not affect a defendant’s 

right to make a statement to the sentencing court nor does it 

subvert the policy goals of Rule 32. The reason for allocution

is not to permit the defendant to re-contest the factual issues 

of innocence and guilt. Rather, the purpose of allocution is to 

afford the defendant an opportunity to raise mitigating 

circumstances and to present his individualized situation to 

the sentencing court. See Adams, 252 F.3d at 280; see also 

Shelton v. Carroll, 464 F.3d 423, 442 (3d Cir. 2006) (finding 

that the defendant had no constitutional right to make factual 

statements about his involvement in the crime during 

allocution in a capital case). 

Under existing jurisprudence, the defendant’s right of 

allocution is not unlimited. The sentencing judge has always 

 

6

The Application Note to § 3C1.1 states, without 

distinguishing between sworn and unsworn statements, that 

“providing materially false information to a judge or 

magistrate judge” is sufficient to warrant an enhancement. 

U.S.S.G. § 3C1.1 app. note 4(F). 
12

retained the discretion to place certain restrictions on what 

may be presented during an allocution. See, e.g., United 

States v. Mack, 200 F.3d 653, 657-58 (9th Cir. 2000) 

(affirming district court’s refusal to allow the defendants to

discuss their beliefs about environmental issues and civil 

disobedience); United States v. Li, 115 F.3d 125, 133 (2d Cir. 

1997) (“[A] defendant’s right to allocution is not unlimited in 

terms of either time or content.”). These decisions confirm 

that a sentencing judge may impose procedural limitations

during an allocution, so long as the judge personally 

addresses the defendant and offers him the opportunity to 

address the court before the sentence is pronounced. See 

United States v. Hall, 152 F.3d 381, 392 (5th Cir. 1998) 

(interpreting Rule 32 narrowly as imposing only its two stated 

requirements), abrogated on other grounds by United States 

v. Martinez-Salazar, 528 U.S. 304 (2000); see also United 

States v. Pelaez, 930 F.2d 520, 523 (6th Cir. 1991) 

(confirming that Rule 32 has only two procedural 

requirements, but also holding that the sentencing judge must 

meaningfully consider the defendant’s statement during 

allocution).

Moreover, when a defendant presents such a statement, 

the fact that the court puts the defendant under oath could 

have the effect of enhancing the credibility of the defendant’s 

presentation and leaving a more meaningful impression on 

the sentencing court. See Estes v. Texas, 381 U.S. 532, 558 

(1965); Celine Chan, Note, The Right to Allocution: A 

Defendant’s Word on its Face or Under Oath?, 75 Brook. L. 

Rev. 579, 582 (2009). That being said, the Supreme Court 

has also noted that, regardless of whether the statement is 

sworn, all “[s]olemn declarations in open court carry a strong 
13

presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 

74 (1977). 

We conclude, therefore, that the choice by a particular 

judge to require that the defendant be sworn for the allocution 

is not inconsistent with the procedural requirements of Rule 

32. 

Ward, however, argues that the District Court’s 

requirement of a sworn allocution overstepped the bounds of 

Rule 32 – that 

by placing Mr. Ward under oath as if he 

were appearing as a witness, the district court 

violated one of the essential attributes of the 

defendant’s historic and fundamental right to 

present a personal allocution prior to being 

sentenced. This right includes an opportunity 

for the defendant personally to express remorse 

to the court, to explicate factors in mitigation, 

and to plead for mercy prior to the imposition of 

sentence, an opportunity that is by its nature and 

by hundreds of years of historical tradition both 

unsworn and without cross-examination. 

This concern is without merit. As discussed above, the 

purpose of Rule 32 is to give the defendant an opportunity to 

speak about mitigating circumstances and offer his reasoning 

for a more lenient sentence. Ward was free to address the 

sentencing court on any and all of these topics. These are not 

topics that address the factual elements of guilt, which have 

already been decided by the jury. 
14

We would also point out that, rather than exercising 

his right to allocution, Ward could have remained silent. A 

risk in speaking at allocution, whether sworn or unsworn, is 

that the allocution statement can be used in subsequent 

criminal prosecutions. See Harvey v. Shillinger, 76 F.3d 

1528, 1535 (10th Cir. 1996) (“A defendant’s choice to 

exercise his right to allocution, like the choice to exercise the 

right to testify, is entirely his own; he may speak to the court, 

but he is not required to do so.”). If the defendant is 

concerned about future use of his statement against him, it 

makes no difference whether the statement was sworn or not.

See Whitten, 610 F.3d at 199 (holding that that prosecutors 

may use “an unsworn, uncrossed allocution” by a criminal 

defendant in a subsequent proceeding against the same 

defendant).7 Ward’s argument that an unsworn allocution 

 

7 Ward also cites to a case from an intermediate Tennessee 

appellate court, State v. Keathly, 145 S.W.3d 123 (Tenn. 

Crim. App. 2003), which appears to be the only court to have 

addressed the right to an unsworn allocution. The court in 

Keathly found a violation of the right of allocution because 

the defendant should have been “permitted to make an 

unsworn statement to the court without having been subjected 

to rigorous cross-examination.” Id. at 130.

Keathly is distinguishable for two reasons. First, the 

court interpreted Tennessee law (the text of which mirrors 

Rule 32) as granting the right to an unsworn allocution based 

on the definition of the term in Blalck’s Law Distionary. Id.

at 124. The court did not engage in an analysis of the history 

or purpose of the right of allocution. Instead, it just looked to 

the definition provided in Black’s Law Dictionary and cited 

an Eleventh Circuit case that cited the dictionary for the same 

proposition. Id. at 125 (citing Gilbert, 244 F.3d at 924).
15

would have allowed him to deliver a more candid statement 

to the sentencing court is not persuasive. 

In sum, we conclude that the District Court retained 

the discretion to require Ward to deliver a sworn allocution. 

We find no basis to hold that the District Court violated Rule 

32 when it required Ward’s allocution to be sworn. The 

District Court’s decision to place Ward under oath did not

impinge upon Ward’s right to speak on his own behalf, nor 

did the administration of an oath affect Ward’s ability to 

present a plea of mitigation. Consequently, we find that there 

was no violation of Ward’s right of allocution.

 

Second, and more importantly, the court held that the 

cross-examination during the defendant’s allocution was 

improper under Tennessee law because it transformed the 

function of the allocution far beyond an opportunity for the 

defendant to express contrition and request leniency. Id. at 

129-30. Indeed, the fact that the allocution was subject to 

cross-examination appears to be the dispositive issue in 

Keathly. Here, however, Ward was not subject to crossexamination. For these reasons, we do not find Keathly to be 

persuasive. 
16

B. The Remaining Grounds for Appeal8

1. The Increase of Ward’s Fine From 

$100,000 to $250,000

Ward claims that the District Court vindictively

increased his fine at resentencing from $100,000 to $250,000,

in violation of the Fifth Amendment. The Due Process clause 

forbids judges from retaliating against a defendant for 

succeeding on an appeal by imposing a more severe sentence 

on remand. See North Carolina v. Pearce, 395 U.S. 711, 726 

(1969). In such cases, the defendant is typically entitled to a 

presumption of vindictiveness, although the government may 

rebut the presumption by “proffering legitimate, objective 

reasons for its conduct.” Esposito, 968 F.2d at 303 (citations 

omitted). Additionally, the Supreme Court has limited 

application of the presumption to circumstances in which 

there is a “reasonable likelihood” that the increased sentence 

is the product of actual vindictiveness. Alabama v. Smith, 

490 U.S. 794, 799 (1989). Where there is no reasonable 

likelihood of vindictiveness, the burden remains upon the 

defendant to prove actual vindictiveness. Id. at 799-800.

Here, the District Court acknowledged that the new 

fine was being imposed to correct an error identified by us in 

his earlier appeal, i.e., the failure to state sufficient reasons 

for imposing the fine. The District Court then examined the 

 

8

In challenges to the sentence, we review a district court’s 

factual findings for clear error and exercise plenary review 

over its applications of legal precepts. United States v. 

Esposito, 968 F.2d 300, 302-03 (3d Cir. 1992). 
17

relevant factors: the Guidelines range, Ward’s ability to pay, 

and Ward’s crimes. At the second sentencing, with this 

information at hand, the District Court arrived at the figure of 

$250,000 as an appropriate fine. Additionally, the District 

Court explicitly stated that the increased sentence was not 

vindictive. (While certainly not determinative, a district 

court’s statement of its aim and intention in pronouncing 

sentence is a factor to be considered in making a 

determination about vindictiveness.) Ward offers no 

evidence of vindictiveness other than stating that he is entitled 

to a presumption of vindictiveness based on the increased 

fine.

Assuming, however, that the presumption of 

vindictiveness applies, the particular facts of this case 

overcome the presumption. First, as the government points 

out, the District Court never actually considered the 

appropriate factors when assessing a fine during the first 

sentencing, but it did so at the second sentencing. Second, and 

contrary to Ward’s assertion, there is evidence in the record 

that his sentence was partially based on the government’s new 

information presented at his second sentencing. Specifically, 

after Ward objected to the imposition of the $250,000 fine, 

the government responded by saying: “Let me say that from 

what I understand, the Court is intending to increase the 

amount of the fine based on the new information and not 

based on the fact that the defendant took an appeal.” The 

District Court responded

Absolutely. It is not based upon that. 

My understanding of the opinion from the 3rd

Circuit was that there was no basis in the 

previous sentencing for the imposition of the 
18

$100,000. And based upon the presentence 

report and the defendant’s financial 

background, the $250,000, which is under the 

guidelines, is a reasonable figure and he is in a 

position to afford that. And so that’s the basis 

of that.

The court’s statement confirms that the court analyzed 

the factors for imposing a fine. That objective evidence, 

combined with the court’s statement is adequate on this 

record to overcome any presumption of vindictiveness. 

Given the lack of evidence or argument that there was actual 

vindictiveness, the District Court did not err in determining to 

increase Ward’s fine.

Therefore, we reject Ward’s argument that the 

increased fine was vindictive.

2. The Five Level Enhancement for 

Ward’s Engagement in a Pattern of 

Prohibited Sexual-Conduct

Ward claims that there was insufficient evidence to 

support the District Court’s application of a five level 

enhancement under U.S.S.G. § 4B1.5(b)(1) for engaging in a 

pattern of prohibited sexual conduct. 

Section 4B1.5(b)(1) provides that, “[i]n any case in 

which the conviction is a covered sex crime and the defendant 

engaged in a pattern of activity involving prohibited sexual 

conduct[,] [t]he offense level shall be [increased by] 5[.]” 

U.S.S.G. § 4B1.5(b)(1). The commentary to subsection (b) 

provides that a “defendant [has] engaged in a pattern of 
19

activity involving prohibited sexual conduct if on at least two 

separate occasions, the defendant engaged in prohibited 

sexual conduct with a minor.” U.S.S.G. § 4B1.5(b)(1) app. 

note. 4(a). Prohibited sexual conduct with a minor includes 

the production of child pornography . Id. 

At Ward’s resentencing, the District Court made note 

of the entire record that had been submitted at his first 

sentencing and incorporated all findings made therein. The 

District Court also received new evidence showing that Ward 

produced photos and videos of J.D. engaged in sex acts. 

When the District Court announced Ward’s new sentence, it 

stated that it was considering “not only the information that 

was given here today, but the information that was given 

previously about Mr. Ward’s contact with young people, 

young men, previously.” Given the extensive evidence of a 

pattern of prohibited sexual conduct, the District Court did 

not err in imposing the five level enhancement under § 

4B1.5(b)(1).

3. The Imposition of a Within-Guidelines 

Range Sentence

Ward contends that his sentence should be vacated 

because the District Court failed to comply with 18 U.S.C. § 

3553(c)(1). 

Section 3553(c)(1) provides that, when the Guidelines 

range of the sentence spans more than 24 months, the 

sentencing court must explain “the reason for imposing a 

sentence at a particular point within the range”. 18 U.S.C. § 

3553(c)(1). A sentencing court will satisfy the requirements 

of § 3553(c)(1) when it gives “concrete reasons for its choice 
20

of sentences.” United States v. Gricco, 277 F.3d 339, 363 (3d 

Cir. 2002). 

Here, the Guidelines range for Ward’s sentence ran 

from 292 to 365 months—a span of 73 months. The District 

Court imposed a 300-month sentence. Before imposing the 

sentence, the District Court listed a variety of reasons why the 

sentence was necessary, including the seriousness of the 

crimes, Ward’s lack of respect for the law, his high risk of 

reoffending, and the need for general and specific deterrence. 

This was clearly a sufficiently detailed explanation of the 

reasons for Ward’s sentence. See Lloyd, 469 F.3d at 326 

(holding that the sentencing court provided an adequate 

explanation for the defendant’s sentence when it discussed

the defendant’s criminal history, the sentences received by his 

co-defendants, and the danger of his crime to society). 

Ward takes issue with the District Court’s failure to 

state why a 300 month sentence was more appropriate than 

any other sentence within the 292 to 365 month range. This 

argument misconstrues the law. The District Court did not 

have an obligation to state why a 300 month sentence was 

more appropriate than all other possible sentences. Rather, 

the District Court needed only to state why the 300 month 

sentence was sufficient. See Gricco, 277 F.3d at 363. 

Therefore, we reject Ward’s argument that the District Court 

failed to comply with 18 U.S.C. § 3553(c)(1). 

4. Ward’s Request for a Downward 

Variance 

Ward claims that he was entitled to a downward 

variance based on his age, physical and psychological 
21

condition, and the atypically harsh conditions of confinement 

to which he was subject. Ward argues that the District 

Court’s alleged failure to consider and appreciate the 

relevance of these factors rendered his sentence procedurally 

unreasonable. 

We may not overturn a sentence on procedural 

unreasonableness grounds when the sentencing judge has “set 

forth enough to satisfy the appellate court that he has 

considered the parties’ arguments and has a reasoned basis for 

exercising his own legal decisionmaking authority.” Rita v. 

United States, 551 U.S. 338, 356 (2007). Here, the District 

Court did not disregard Ward’s arguments at sentencing. The 

District Court specifically addressed and rejected each claim. 

The District Court’s consideration of Ward’s arguments for a 

variance adhered to the Supreme Court’s guidance in Rita. 

Therefore, we will not disturb the sentence on procedural 

reasonableness grounds.

5. Ward’s Sentence Is Not Substantively 

Unreasonable

Ward argues that 300 months of incarceration is 

substantively unreasonable because the sentence exceeds his 

projected life expectancy. We will affirm unless “no 

reasonable sentencing court would have imposed the same 

sentence on that particular defendant for the reasons the 

district court provided.” Id. at 568. 

The fact that Ward may die in prison does not mean 

that his sentence is unreasonable. See U.S. v. Watson, 482 

F.3d 269, 273 (3d Cir. 2007). Looking at the totality of the 

circumstances, we are not convinced that Ward’s sentence—
22

which is within the advisory Guidelines range—is 

substantively unreasonable. The District Court found that 

Ward posed a grave danger to society and had committed 

serious crimes, thus necessitating a long sentence. The 

District Court was well within its discretion to impose a 300 

month sentence. We therefore reject Ward’s argument that 

his sentence is substantively unreasonable. 

6. Restitution

Ward contends that the District Court failed to comply

with 18 U.S.C. § 2259, which requires the sentencing court to 

order the defendant to pay restitution to his victims if their 

losses can be determined. 18 U.S.C. § 2259(a), (b)(3), & 

(b)(4)(A). Ward now requests that we vacate his sentence 

and remand for resentencing so that the District Court can 

order restitution. Ward did not object to the District Court’s 

decision not to order restitution at his resentencing. As a 

result, we review the District Court’s decision for plain error. 

United States v. Couch, 291 F.3d 251, 252-53 (3d Cir. 2002).

Ward lacks standing to raise this challenge because 

only the crime victim, the crime victim’s legal representative, 

or the government may assert rights related to a restitution 

award. 18 U.S.C. § 3771(d)(1). Therefore, his argument is 

meritless.

Ward, however, asserts that he has standing because 

the imposition of a fine was directly related to the District 

Court’s inability to impose restitution. This argument 

misconstrues the record on appeal. On Ward’s first appeal, 

we noted that the District Court’s decision to impose a fine 

instead of restitution was improper because “the Court simply 
23

translated the intended restitution into a fine owed to the 

government, without engaging in any analysis as to why a 

fine was appropriate and despite it having appeared . . . that 

no fine would be imposed.” Ward, 626 F.3d at 185-86 

(citation omitted). At Ward’s resentencing, as noted above, 

the District Court did not translate the intended restitution 

into a fine. Instead, the District Court considered the factors 

relevant to the imposition of a fine, consistent with 18 U.S.C. 

§ 3572. Based on the record before us, the District Court’s 

decision to impose a fine at resentencing was unrelated to its 

decision not to order restitution. We therefore will not 

consider Ward’s argument that the relatedness of the fine and 

restitution gives him standing to challenge the failure to order 

restitution. 

III. Conclusion

For the foregoing reasons, we will affirm the District 

Court’s judgment of sentence.