NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 16-3325

_____________ UNITED STATES OF AMERICA

v. CHINA LEE SCOTT, Appellant

______________ On Appeal from the United States District Court for the Middle Distri ct of Pennsylvania (District Court No. 1:16-CR-00079-001)

District Judge: Hon. Sylvia H. Rambo

______________ Submitted Pursuant to Thir d Circuit L.A.R. 34.1(a) February 6, 2017

______________ Before: McKEE, COWE N, and FUENTES, Circuit Judges

. (Opinion filed: June 15, 2017)

_____________ __________ OPINION *

__________ ____________

* This disposition is not an opinion of the fu ll court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2 McKEE, Circuit Judge

. China Scott appeals the sentence that wa s imposed after she pled guilty to one count of healthcare fraud. For the reasons that fo llow, we will affirm.
I Scott’s nursing license had previously be en revoked based on a 2005 conviction for healthcare fraud. Close to ten years late r, in September 2015, Sc ott pled guilty to one count of making false statemen ts related to health care ma tters under 18 U.S.C. § 1035 (a)(2) (MDPA 1:15-CR-00191). 1 One of the conditions of her release pending sentencing was that she not seek employment in the health care field. As a result, the United States Department of Health and Human Services lis ted her as an “excluded individual,” which precluded her from receiving federal paymen t for healthcare services provided. Despite the prohibition, Scott entered employment with a home healthcare services agency in No vember 2015. As part of her em ployment duties with that agency, Scott served as a home healthcare aide for at least one recipient of both Medicaid and Medicare (federally-funded healthcare benefit pr ograms) in violation of that condition for release. Consequently, in March 2016, Scott wa s indicted by a grand jury, and again charged with health care fraud in violati on of 18 U.S.C. § 1347 (MDPA No. 1:16-CR00079). The Presentence Report for the March 2016 indictment calculated a total offense

1 This appeal concerns only MDPA No. 1:16-CR-00079.3 level of six and a crimin al history category of III. 2 Relevant to this appeal, the Probation Office did not reduce Scott’s offense level for acceptance of responsibility. Probation calculated Scott’s Guideline range as two to eight months’ imprisonment. The Probation Office also calculated the restituti on Scott owed to be $2,103. In July 2016, the District Court conducted a co mbined change of plea and sentencing hearing in this case (MDPA 1:16- CR-00079), together with the sentencing hearing for her September 2015 case (MDPA No. 1:15-CR-00191). The judge explained at the hearing that the Senten cing Guidelines were the “star ting point,” but that she could “vary or depart from [them] upward or downwar d depending on what [it] finds as a result of the pre-sentence report.” 3 She then imposed the se ntences: twenty-one months’ imprisonment and payment of $112,434.80 in restitution for MDPA No. 1:15-CR-00191; and twelve months’ imprisonment and payment of $2,103 in re stitution in the instant case (MDPA 1:16-CR-00079), with the prison time to be served consecutiv e to that imposed in MDPA No. 1:15-CR-00191. 4

2 The Presentence Report for MDPA No. 16-C R-00079 further stated that an upward departure from the Guidelines range “may be warranted to adequately reflect the seriousness of the defendant’s cr iminal history and the likelih ood that she will reoffend.” PSR (MDPA No. 1:16-CR-00079) at 16. 3 App. 19–20. 4 The District Court had subject matter jurisd iction over the revocat ion hearing under 18 U.S.C. § 3231. This Court has appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.4 As to MDPA 1:16-CR-00079, the District C ourt stated that it “relied pretty much on the pre-sentence report that was filed . . . .” 5 The judge explained her decision not to credit Scott for acceptance of responsibility as follows: [Scott] committed the inst ant offense after she pled guilty to her related healthcare matters and was awaiting sent encing in this case, which was just imposed today, and she is still out th ere not learning her lesson. . . . Under application note under the commentar y 3, it also says, a Defendant who enters a plea of guilty is not entitled to an adjustment under this section as a matter of right. [Scott’s] initial appear ance on this was March 18, and she was under pretrial services supervis ion during that peri od of time, and has continued to be involved in fraud. I don’t believe that she is deserving of acceptance of responsibility under the circumstances of this case. 6 Also relevant to this appeal, the District Court reached its sentencing decision in MDPA 1:16-CR-00079 by departing upwa rd from the Senten cing Guidelines. 7 Scott did not object to the sentence, nor did sh e object to the restitution assessment. 8 Scott now appeals the senten ce in MDPA No. 1:16-CR-00079. 9 She argues that the District Court provided no record basis for imposing an upward departure to the suggested Guidelines range. She further cl aims that the District Court abused its discretion by denying her credit for acceptan ce of responsibility an d by inappropriately

5 App. 34. 6 App. 35–36. 7 Specifically, the District Court made an upward departur e from the Sentencing Guideline of two to eight mont hs by sentencing Scott to twelve months’ imprisonment. App. 36. The District Court issued a St atement of Reasons explaining its upward departure and final sentence. The Statement of Reasons was filed under seal. 8 Scott objected to the lack of credit for Acceptance of Re sponsibility, which the District Court ruled against. 9 We have jurisdiction over this appeal unde r 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).5 duplicating the restitution judgment from MDPA No. 1:15-CR-00191. We consider these challenges below.
II. A. Acceptance of Respons ibility and Restitution 1. Acceptance of Responsibility A court’s determination of a defendant’s acceptance of responsibility is a factual matter that we review for clear error. 10 “The sentencing judge is in a unique position to evaluate a defendant’s acceptance of respon sibility, [so] the de termination of the sentencing judge is entitled to great deference on review.” 11 In considering Scott’s claim, we also note that it is generally a defendant’s burden to show, by a preponderance of the evidence, that she is entitled to any reduction. 12 The sentencing judge is responsible for determining, in light of the totality of the circumstances, whether a defendant has met that standard. 13 As we have already noted, the court clearly explained why it was not impressed with Scott’s claim that sh e was accepting responsibility and entitled to a sentencing reduction. Based on our review of the reco rd and the circumstances of this case, the District Court did not err in concluding that Scott was not entitled to a reduction for acceptance of responsibility. Th e District Court concluded th at Scott was “still . . . not

10 United States v. DeLeon-Rodriguez , 70 F.3d 764, 767 (3d Cir. 1995) (citing United States v. Rodriguez , 975 F.2d 99 9, 1008 (3d Cir. 1992)). 11 Application Note 5 to U.S.S.G. § 3E1.1. 12 United States v. Harris , 751 F.3d 123, 126 (3d Cir. 2014) (citing United States v. Boone , 279 F.3d 163, 193 (3d Cir. 2010)). 13 Id. (quoting United States v. Cohen , 171 F.3d 796, 806 (3d Cir. 1999)).6 learning her lesson” and had “conti nued to be involved in fraud.” 14 The accuracy of that finding is obvious gi ven Scott’s conduct. There was no error, and we will affirm the District Court’s denial of credit for acceptance of responsibility. 2. Restitution Judgment 15 Scott next argues that the District Cour t imposed $114,537.80 restitution “for no
reason” and characterizes the District Court’s judgment as a “clerical error” that this Court should correct. However, the record demonstrates that the District Court set the restitution in this case, MDPA No. 1:16-CR-00079, at $2,103. 16 We find no error in its doing so. B. Upward Departure Generally, a district court follows a three- step process in sentencing: 1) calculate a defendant’s Guidelines sentence; 2) formally rule on the pa rties’ respective motions and state on the record whether it is granting a depa rture as well as how that departure affects

14 App. 35–36. The Sentencing Guidelines provide numerous, nonex clusive factors that a sentencing court may consider in determining the propriety of any reduction, and one of these is a defendant's voluntar y withdrawal from criminal conduct or associations. See U.S.S.G. § 3E1.1, App. Note 1(B). 15 This Court reviews the legality of a dist rict court’s restituti on order de novo, but reviews specific awards for abuse of discretion. United States v. Turner , 718 F.3d 226, 235 (3d Cir. 2013). 16 App. 36–37, 39–40. Earlier in the sentencing hearin g, the District Court imposed restitution in MDPA No. 1:15-C R-00191 in the amount of $1 12,434.80. App. 30–31. The District Court then went on to impose a separate $2,103 restitution award for MDPA No. 1:16-CR-00079. App. 36–37, 39–40. At no point did the District Court state that the combined total of the two re stitution award ($114,537.80) sh ould apply in both cases, and at no point did Scott object to the $2,103 restitution awar d specifically for MDPA No. 1:16-CR-00079. The District Court’s Judgment ultimatel y entered further indicates that the restitution amount entered for this case was $2,103. App. 7.7 the Guidelines calculation—an an alysis that should account for this Circuit’s case law before United States v. Booker ; 17 and 3) exercising its discretion pursuant to the relevant factors in 18 U.S.C. § 3553(a), irrespectiv e of whether it varies from the sentence calculated under the Guidelines. 18 Although this process is inte nded to ensure an adequate record for an appeals court to verify that the district court considered the parties’ arguments, 19 a sentencing court need not address arguments or sentencing fact ors at length. Rather, the sentencing court need only demonstrate that it gave “meani ngful consideration” to a defendant’s arguments. 20 “In considering a criminal defe ndant’s claim that a sentence is unreasonable, we inquire into whether the di strict court: (1) exercised its discretion by giving ‘meaningful consideration’ to the § 35 53(a) factors; and (2) applied those factors reasonably by selecting a sentence grounded on reasons that are logical and consistent with the [§ 3553 (a)] factors.” 21 Scott argues that her sentence is procedurally unreasonable. 22 She claims that the District Court failed to sufficiently articulat e its reasoning in sentencing her to twelve

17 543 U.S. 220 (2005). 18 United States v. Flores-Mejia , 759 F.3d 253, 256 (3d Cir. 2014) (internal quotation marks, citations, and brackets omitted). 19 See United States v. Ausburn , 502 F.3d 313, 328 (3d Cir. 20 07) (“[I]n order to provide for effective appellate review, the sentencing court must provide a record sufficient to allow a reviewing court to conclude that the se ntencing court exercised its discretion.”). 20 Flores-Mejia , 759 F.3d at 256. 21 Ausburn , 502 F.3d at 328 (interna l quotation marks omitted). 22 See id. at 328 n.29 (noting that “determining whether the district court actually exercised its discretion—has been de scribed as ‘procedural review’”).8 months’ incarceration. Because Scott did not object to th e District Court’s upward departure, we review for plain error. 23 We do find the District Court’s proced ure for imposing a sentence on MDPA No. 1:16-CR-00079 troubling. A district court can, of course, impose upward departures if, for example, “reliable information indicates that the criminal history category does not adequately reflect the seriousness of the de fendant’s past criminal conduct or the likelihood that the defendant will commit other crimes.” 24 But not only must a sentencing court comply with 18 U.S.C. § 35 53(c)(2) by providing a written explanation of why it departed from a Guidelines range, it al so must “state in op en court the reasons for its imposition of the particular sentence.” 25 Here, in its Statement of Reasons—file d several days after the July 28, 2016 sentencing —the District Cour t explained its rationale for the upward departure. It discussed, among other things, that Scott’s criminal histor y was “replete with activities involving fraud and/or theft” and that she “has shown no regard for the law and has not been deterred by previous contacts with law enforcement.” The District Court recognized that a twelve-month sentence “c ontemplates a one level upward departure,”

23 Flores-Mejia , 759 F.3d at 256. Under this standa rd, the Court considers whether: (1) there was an error; (2) the error was “plain”; (3) the e rror affects substantial rights— generally, whether the error was prejudicial; and (4) the error “s eriously affects the fairness, integrity, or public repu tation of judicial proceedings.” Id. at 259. 24 U.S.S.G. § 4A1.3. This ru le was designed to “provide fl exibility in those cases where a point-by-point calculation of th e defendant’s criminal history category is not alone sufficient to reflect his cu lpability and dangerousness.” United States v. Harris , 44 F.3d 1206, 1214 (3d Cir. 1995). 25 18 U.S.C. § 3553(c); see Ausburn , 502 F.3d at 330 n.33.9 and it further explained that the departure wa s “sufficient yet not greater than necessary to impress upon [Sco tt] the seriousness of her conduct, and will protect the public from further crimes.” However, it does not appear that the cour t ever explained that rationale for the upward departure in open court, or in Scott’s presence. During the sentencing proceeding, the Court failed to mention any of the § 3553(a) factors, much less give them any “meaningful consideration” 26 with regard to the senten cing for MDPA No. 1:16-CR00079. Subsection (c) of § 3553 provides that “[t]he court, at the time of sentencing , shall state in open court the reasons for its imposition of the particular sentence . . . .” 27 However, during the sentencing, the Distri ct Court offered scant reasoning for its sentencing for MDPA No. 1:16-C R-00079 beyond its acknowle dgment that it was relying on the Presentence Report. 28 This was insufficient to sa tisfy the requirements of §

26 Flores-Mejia , 759 F.3d at 256 (internal quota tion marks, citations, and brackets omitted). 27 18 U.S.C. § 3553(c) (emphases added). 28 By contrast, the District Court judge, in sentencing Scott for MDPA No. 1:15-CR00191, stated explicitly: “The sentence [o f 21 months’ imprisonm ent] is within the guideline range, and the Court finds no reason to depart.” App. 33. The District Court judge further responded to the parties’ argum ents before sentenci ng Scott for MDPA No. 1:15-CR-00191 and found: . . . [Scott] played a significant role in carrying out the scheme. [She] was well aware that her nursing license was suspended due to a prior federal healthcare fraud conviction. She comp leted documents containing false information to conceal that she was operating u nder suspended license. And for roughly 19 months, [she ] used aliases and another person’s medical license number to submit false claims for payment. She was convicted in 2005 of similar c onduct and suggest she was very much aware of what she was doing and th e illegal nature of her activity.10 3553. 29 Consequently, the delayed explanation of the District Court’s reasoning in the Statement of Reasons was error. We nonetheless find that the District C ourt’s error did not satisfy the plain error standard. 30 Although the District Court’s omissi on here was plain, it did not violate Scott’s substantial rights because the sent ence was not substantively unreasonable. 31
Based on the record that was created at the se ntencing, we are satisfied that the error did

With regard to assist ance to the Government, I have to abide by the Government’s take on what her assi stance was and the reasons stated for not granting her a downward de parture under 5k1.1 motion. App. 29. 29 See United States v. Merced , 603 F.3d 203, 216 (3d Cir. 2010) (“The extent of the explanation we require of the district court may turn on whether th e court has varied from the Guidelines range, and, if it has, on th e magnitude of the variance. If the court imposes a sentence outside of th e Guidelines, it ‘must consider the extent of the deviation and ensure that the justifica tion is sufficiently compelling to support the degree of the variance.’” (quoting Gall v. United States , 552 U.S. 38, 50 (2007))). 30 See United States v. Vazquez , 271 F.3d 93, 103 (3d Cir. 2 001) (“[S]entencing errors can also be harmless . . . .”). In contrast to our case here, consider, for example, United States v. Lewis , 424 F.3d 239 (2d Cir. 2005). In that case, this Court of Appeals for the Second Circuit found that the district court committed plain error by imposing a greaterthan-recommended sentence and providing bo th an insufficient verbal explanation and a “bare” written explanation to support the sentence. Id. at 245. 31 See, e.g. , United States v. Colian , 228 F. App’x 179, 181–83 (3d Cir. 2007) (not precedential) (finding that the se ntencing procedure the district court followed resulted in harmless error, even tho ugh the court had “failed to men tion its consideration of any of the 18 U.S.C. § 3553(a) factors,” and instea d had issued its reasoning by way of an explanatory order several days after the sentencing hearing); United States v. Parker , 462 F.3d 273, 278 (3d Cir. 2006) (applying plain error review to the defendant’s argument that the district court failed to give a suffi cient statement of reas ons under § 3553(c)); United States v. Stevens , 223 F.3d 239, 241–46 (3d Cir. 2000) (applying a plain error review to the district court’s failure to veri fy that the defendant had read and discussed the presentence report with his attorney—as required by Rule 32 of the Federal Rules of Criminal Procedure—and determ ining that the error, while plain, did not affect the defendant’s substantial rights).11 not contribute to the District Court imposing a materially different sentence than it would have had the error never occurred. The Distri ct Court’s explanation in the Statement of Reasons, though improperly delayed and not offered in open court while the defendant was present, nevertheless satisfies the require ment that a court consider the relevant § 3553(a) factors on the record. 32 The Statement of Reasons “provide[d] [Scott] with a platform upon which to build an argumen t that her sentence [wa]s unreasonable.” 33
The Statement of Reasons that the court did finally provide demonstrates that the District Court considered the nature of Sco tt’s crime; Scott’s individual characteristics and criminal history; the sentence’s potentia l deterrent effect; the applicable guideline range; and Scott’s recidivism with regard to fraud and/or theft. Based on these factors, the twelve-month sentence was not unreasonable . Accordingly, despite our displeasure with the fact that these reasons were not offered in open cour t, we cannot conclude that Scott has shown plain error. There is simp ly no way for us to find “that the District

32 See United States v. Ausburn , 502 F.3d 313, 328 (3d Cir. 20 07) (“[I]n order to provide for effective appellate review, the sentencing court must provide a record sufficient to allow a reviewing court to conclude that the sentencing court exercised its discretion.”). See also, e.g. , United States v. Perry , 460 F. App’x 149, 157 (3d Cir. 2012) (not precedential) (finding that the de fendant’s argument that the di strict court “fail[ed] to adequately explain its reasons for granting an upward departure . . . lack[s] merit because the District Court complied with the § 3553(c)(2) requirement by issuing a written Statement of Reasons with its Judgment, explaining the basis for th[e] departure.” The Court concluded: “Although the Statement of Reasons was filed under seal, the sentence has received meaningful appellate review.”); United States v. Tinajero-Rivera , 278 F. App’x 150, 153 (3d Cir. 2008) (not precedential) (“The Co urt clearly stated its reasons for imposing the sentence that it imposed, and its opinion was adequate for us to engage in meaningful review of the reasona bleness of defendant’s sentence.”). 33 Cf. Lewis , 424 F.3d at 249 (remanding the case ba sed on the district court’s lacking statement of reasons under § 3553(c)(2)).12 Court would have imposed a lesser sentence ha d defense counsel been given the required notice.” 34 Indeed, on appeal, Scott levies not a single challenge to any of the specific reasons contained in the Statement of Reasons that justify the upward departure. We nonetheless note our strong discourag ement with the procedure adopted here. We have previously explained: “[T]he mandate of § 3553(c) and the presumption in our case law [is] that all issues pertaining to the pronouncement of sentence will be addressed at the sentencing hearing while the defendant is present.” 35 Indeed, “sentencing judges normally state and resolve sentencing issu es from the bench while the sentencing proceeding is underway.” 36 This “offers the defendant, the government, the victim, and the public a window into the decision-making process and an explan ation of the purposes the sentence is intended to serve.” 37 Moreover, “it promotes respect for the adjudicative process, by demonstrating the serious re flection and deliberation that underlies each criminal sentence, and allows for effective appellate oversight.” 38

34 United States v. Reynoso , 254 F.3d 467, 470 (3d Cir. 2001); see United States v. Berger , 689 F.3d 297, 300 (3d Cir. 20 12) (“A defendant establishe s that an error affected her substantial rights by showing ‘that the Di strict Court would have imposed a lesser sentence had defense counsel been given the required notice’” (quoting Reynoso , 254 F.3d at 470)); United States v. Nappi , 243 F.3d 758, 770 (3d Cir. 2001) (stating that the defendant “bears the burden of demonstrati ng that he was prejudiced by the District Court’s error”). 35 Id. at 182; see also United States v. Stevens , 223 F.3d 239, 246 (3d Cir. 2000). (“[D]istrict court errors like th is one are regrettable and easily avoidable, and we exhort district courts to engage in the ‘simple practi ce’ of addressing defendants directly . . . .”). 36 United States v. Cooper , 437 F.3d 324, 330 n.8 (3d Cir. 2006). 37 United States v. Grier , 475 F.3d 556, 572 (3d Cir. 2007). 38 Id.13 Thus, despite our conclusion that the Dist rict Court’s error did not violate Scott’s substantial rights, we take this opportuni ty to reiterate “the principle that a contemporaneous explanation of the rationale should accompany the pronouncement of
sentence.” 39 Indeed, absent her undeniable patte rn of criminal conduct, Scott may well have been able to satisfy her high burden under plain error review here.
III Because we find the District Court’s error harmless, we will affi rm the judgment.

39 Colian , 228 F. App’x at 183. In Ausburn , this Court also found it “useful to draw attention to the continued vitality of § 3553 (c),” 502 F.3d at 330 n.33, by approvingly noting Justice Scalia’s observation in Rita v. United States , 551 U.S. 338, 382 (2007). In Rita , Justice Scalia observed, as dicta, that the “explanations” § 3553(c) requires “help the [Sentencing] Commission revise the advisory Guidelines to reflec t actual sentencing practices consistent with the statutory goals .” 551 U.S. 338, 382 (2007) (Scalia, J., concurring in part and in judgment). Justice Scalia further observed that the “reasonableness review g[i]ve[s] appellate courts the necessary means to reverse a district court that . . . does not comply with § 3553(c)’s requirement for a statement of reasons.” Id. at 383.