NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________

No. 20-3557 ________________

UNITED STATES OF AMERICA

v.

SCOTT CAPPS, Appellant ________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-18-cr-00572-001) Honorable Michael M. Baylson, U.S. District Judge ________________

Submitted Under Third Circuit L.A.R. 34.1(a) July 8, 2021

Before: SHWARTZ, KRAUSE, and RENDELL, Circuit Judges

(Opinion filed: July 9, 2021)

________________

OPINION* ________________

KRAUSE, Circuit Judge.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Appellant Scott Capps challenges the District Court’s imposition of a 48-month

sentence following this Court’s remand for resentencing in relation to his convictions for

conspiracy to commit mail fraud, money laundering, and filing a false tax return. See

United States v. Capps,

(3d Cir. 2020). At resentencing, the District

Court reduced the applicable Sentencing Guidelines range but imposed the same sentence

as before, which remained below the revised range. Capps argues on appeal that it was

procedurally unreasonable to reimpose that sentence. Because the District Court

meaningfully considered Capps’s sentencing arguments and all relevant factors under

(a), it committed no procedural error and we will affirm its sentence.1

I. Discussion

When imposing a sentence, a district court must (1) “calculate a defendant’s

Guidelines [range] precisely,” (2) “formally rul[e] on the motions of both parties and stat[e]

on the record whether [it is] granting a departure and how that departure affects the

Guidelines calculation,” and, ultimately, (3) “exercise[] [its] discretion by considering the

relevant [

(a)] factors.” United States v. Gunter,

(3d

Cir. 2006) (second, third, fifth, and seventh alterations in original) (citation omitted).

While the District Court’s consideration of these factors need not include explicit findings,

its analysis “must adequately demonstrate its exercise of ‘independent judgment’ and

meaningful consideration of the relevant sentencing factors” and any “colorable

1 The District Court had jurisdiction under

and we have jurisdiction under

and

(a).

2 argument[s] about the[ir] applicability” raised by the parties. United States v. Merced,

(3d Cir. 2010) (citation omitted). Capps claims that the District Court, in

carrying out this final step, committed two procedural errors, and because he failed to

object at sentencing, we review for plain error.2

But Capps cannot show error, much less plain error. First, he contends that the

District Court misconstrued its discretion to vary from its original sentence, thereby failing

to meaningfully consider the factors set forth in § 3553(a). But that assertion is belied by

the record. Far from proceeding as if “bound to consider the original sentence,” or the

erroneous Guidelines calculation, Appellant Br. 12, the Court went “back over the original

record and the record for [the resentencing] hearing,” JA 148, and concluded that the

relevant § 3553(a) factors presented no “need . . . to change the sentence,” JA 150. Using

the new Guidelines range and the “sentencing protocols established by [them],” JA 149, as

the “starting point and . . . initial benchmark,” for its analysis, Molina-Martinez v. United

States,

(2016) (citation omitted), the District Court again imposed a

below-range sentence. In light of the Court’s lengthy and “meaningful consideration” of

the sentencing factors, Merced,

, we are satisfied it did not misconstrue its

discretion at step three of the sentencing process.

2 To establish plain error, Capps “must show that there is ‘(1) an error; (2) that is plain; [and] (3) that affects substantial rights.’” United States v. Poulson,

(3d Cir. 2017) (citation omitted). Once those conditions have been met, this Court may “exercise its discretion to correct the forfeited error if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Rosales-Mireles v. United States,

(2018) (citation omitted). 3 Neither can Capps prevail on his contention that the District Court did not

acknowledge or address his argument for a downward variance based on post-sentencing

rehabilitation. Capps argued that “he ha[d] proven his redemption,” JA 144, in prison by

taking “opportunities to self-reflect and permanently change his past . . . problematic

thinking and behavior patterns,” JA 143–44, and on that basis, he requested a sentence of

time served. In response, the Court observed that Capps had “acknowledged that he made

a terrible mistake,” and had persuaded the Court that “his future life will not include any

criminal conduct.” JA 149. Considering the relevant § 3553(a) factors, however, including

“the seriousness of the offense, . . . respect for the law, and [the need to] provide just

punishment,” JA 149, the Court concluded “that [a] time served sentence would [not]

accomplish any of those goals,” JA 149–50. The Court thus engaged with the substance

of Capps’s request.

In short, the sentencing judge “set forth enough to satisfy the appellate court that he

has considered the parties’ arguments and ha[d] a reasoned basis for exercising his own

legal decisionmaking authority.” Rita v. United States,

(2007). Because

the District Court did not err in its “exercise of discretion” and “meaningful consideration

of the relevant sentencing factors,” Merced,

(citation omitted), we conclude

that Capps’s sentence was procedurally reasonable.

II. Conclusion

For the foregoing reasons, we will affirm the judgment of the District Court.

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