United States v. Negroni

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

Nos. 10-1050/1487
_____________

UNITED STATES OF AMERICA,
Appellant

v.

PAUL NEGRONI
and
JAMES HALL, IV.
_______________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Nos. 08-cr-550-4 and 08-cr-550-3)
District Judge: Hon. Timothy J. Savage
_______________

Argued
February 8, 2011

Before: JORDAN, GREENAWAY, JR. and STAPLETON,
Circuit Judges.

(Filed March 29, 2011 )
_______________
Derek A. Cohen
Louis D. Lappen [ARGUED]
Robert A. Zauzmer
Office of United States Attorney
615 Chestnut Street - #1250
Philadelphia, PA 19106
Counsel for Appellant

Peter Goldberger [ARGUED]
50 Rittenhouse Place
Ardmore, PA 19003

Stephen R. LaCheen
LaCheen Wittels & Greenberg
1429 Walnut Street - #1301
Philadelphia, PA 19102
Counsel for Appellee Paul Negroni

Ann C. Flannery [ARGUED]
1835 Market Street – #2700
Philadelphia, PA 19103
Counsel for Appellee James Hall, IV
_______________

OPINION OF THE COURT
_______________

2
JORDAN, Circuit Judge.

I. Background

The United States appeals orders of the United States
District Court for the Eastern District of Pennsylvania
sentencing Appellee James Hall to fifteen months‟
imprisonment and Appellee Paul Negroni to five years‟
probation, including nine months‟ in-home detention.
Because the District Court committed procedural error in
reaching both of those sentences, we will vacate the orders
and remand for resentencing.

A. Factual History

These consolidated cases spring from a massive fraud
scheme organized and conducted by a man named Kevin
Waltzer. Between the years 2000 and 2008, Waltzer
fraudulently obtained more than $40 million in payments
from settlement funds in three class action lawsuits: In re
Nasdaq Market-Makers Antitrust Litigation, No. Civ. 94-
3996(RWS) (S.D.N.Y.) (the “Nasdaq Class Action”), In re
Cendant Corporation Litigation, No. Civ. 98-1664(WHW)
(D.N.J.) (the “Cendant Class Action”), and In re
BankAmerica Corporation Securities Litigation, No. MDL
1264 (E.D. Mo.) (the “BankAmerica Class Action”). His
scheme involved the submission of false claims in which he,
or individuals enlisted by him, asserted ownership or the
trading of certain relevant securities during the relevant class
periods when, in fact, the claimants did not own or trade the
securities and, thus, were not entitled to recovery.

3
 Waltzer and his cohorts took elaborate steps to
perpetrate the scheme, including the creation of fake
corporations, the establishment of virtual offices for those
corporations, and the creation of fake financial documents
that indicated ownership and trades. In addition, one of the
schemers, Christian J. Penta (“Penta”), was employed by
Heffler, Raditich, & Saitta (“Heffler”), the accounting firm
responsible for distributing settlement funds, and took steps to
ensure that claims were approved without anyone at Heffler
becoming aware of the fraud. In 2007, the scheme was
uncovered by the IRS, and, in cooperation with the IRS
investigation, Waltzer began to provide information regarding
the other individuals involved, including Hall and Negroni.

1. Hall’s Role in the Scheme

Hall‟s role dated to 2002, when, as he later admitted,
he submitted a fraudulent claim in the Nasdaq Class Action.
In that claim, he falsely stated that he had traded more than 19
million shares of Nasdaq listed securities. As recompense,
Hall received $507,910.99, of which he wired $200,000 to
Waltzer and $100,000 to Penta as their shares of the theft.

The government alleged that Hall also participated in
making other fraudulent claims, and the initial Presentence
Investigation Report in his case (the “PSR”) contained an
outline of his involvement in those claims. More particularly,
based on information obtained from Waltzer, Paragraph 45 of
the PSR stated that Hall had assisted Waltzer by
impersonating representatives of fake companies that were
used for submitting claims. For instance, after a
$2,144,778.85 check issued for a claim filed in the Cendant
Class Action on behalf of a fake company called Far East

4
Trading, LLC (“Far East”), Hall posed as a fictional partner
in Far East, contacted the bank in which the funds were
deposited, and authorized Waltzer to receive the proceeds of
the check on behalf of Far East. As described later in greater
detail, the District Court struck Paragraph 45 from the PSR
before sentencing Hall.

2. Negroni’s Role in the Scheme

From his youth, Negroni had known and associated
with Waltzer, and, like Hall, Negroni submitted a false claim
in the Nasdaq Class Action in 2002, stating that he had traded
millions of shares of Nasdaq listed securities during the class
period. He received $449,009.23 as payment for that claim.
Negroni also assisted Waltzer in creating a fake corporation
called the Denver Corporation (“Denver”), for which Waltzer
submitted a fraudulent claim in the BankAmerica Class
Action. Denver received a check for $228,795.82 as payment
for that claim, which Negroni deposited into an account he
had created for Denver. On September 23, 2004, Negroni
wired $190,000 of the proceeds from that check to Waltzer‟s
bank account.

B. Procedural History

On June 30, 2009, Negroni pled guilty to mail fraud,
wire fraud, and money laundering1 and, on July 1, 2009, Hall

1
Specifically, Negroni‟s plea agreement states that he
“agreed to plead guilty to the following charges in the
superseding indictment: two counts of mail fraud, in violation
of 18 U.S.C. §§ 1341, 1346, and 1349 (Counts 2 and 3), three
counts of wire fraud, in violation of 18 U.S.C. §§ 1343, 1346,

5
pled guilty to mail fraud, wire fraud, and tax evasion.2
Sentencing hearings for both defendants were held on
November 23, 2009.

1. Hall’s Sentencing Hearing

At sentencing, the government argued for an offense
level for Hall of 29, which included a six-level enhancement
under U.S. Sentencing Guidelines (“USSG” or the
“Guidelines”) § 2B1.1(b)(2)(C) based on the government‟s
assertion that Hall‟s offense involved more than 250 victims.
Although Hall had pled only to participation in the Nasdaq
Class Action, which was not shown to involve more than 250
victims, the government argued and presented evidence that
Hall facilitated false claims submitted in the Cendant and
BankAmerica Class Actions, which did involve such large
numbers of victims.

To support its argument, the government presented
testimony from IRS Agent Thomas Kauffman (“Kauffman”),

and 1349 (Counts 7, 10, and 12), two counts of money
laundering, in violation of 18 U.S.C. § 1957 (Counts 13 and
14), and aiding and abetting, in violation of 18 U.S.C. § 2.”
(App. at 71.)
2
Hall‟s plea agreement states that he agreed to plead
guilty to “one count of mail fraud, in violation of 18 U.S.C.
§§ 1341, 1346, and 1349 (Count 1), two counts of wire fraud,
in violation of 18 U.S.C. §§ 1343, 1346, and 1349 (Counts 7
and 15), one count of tax evasion, in violation of 26 U.S.C.
§ 201 (Count 17), and aiding and abetting, in violation of 18
U.S.C. § 2.” (App. at 90.)

6
who recounted Waltzer‟s description of the fraudulent Far
East claim (which was submitted in the Cendant Class
Action), including Hall‟s assistance in getting the money for
that claim released to Waltzer. Kauffman also testified
regarding an e-mail purportedly sent from Waltzer to Hall
that included the script Hall was to follow when posing as the
Far East partner (the “script e-mail”). He further testified
that, according to Waltzer, Hall had adopted other aliases and
made calls to assist Waltzer in other fraudulent claims in both
the Cendant and BankAmerica Class Actions. Waltzer‟s
account was corroborated by evidence that he had sent
$100,000 to Hall immediately after the Far East check cleared
and that, between April 2, 2003 and August 11, 2004, Waltzer
wired Hall numerous payments totaling nearly $600,000
(including the $100,000 after the Far East check cleared).
Thus Hall‟s profit from the scheme was alleged to be in
excess of $800,000: the more than $200,000 retained from the
settlement check he received pursuant to his admitted
participation in the false Nasdaq claim, plus several wire
transfers from Waltzer amounting to some $600,000. The
additional $600,000 is not explained by anything to which
Hall has confessed, but Waltzer told Kauffman it was the total
of payments he made to Hall for facilitating false claims in
the Cendant and BankAmerica Class Actions.3

3
The parties have shown some confusion about the
exact amount and source of Hall‟s fraud proceeds. In
response to a post-argument letter from Hall‟s counsel (in
which she clarified her position that while there was evidence
that Hall had received $800,000 in fraud proceeds, it was not
uncontroverted that those proceeds were for participation in
the fraudulent scheme), the government‟s attorney submitted
a letter stating that Hall‟s counsel now recognized Hall had

7
 On cross examination, Kauffman acknowledged
irregularities regarding the script e-mail, including that it
appeared not to have been forensically downloaded from
Waltzer‟s computer as other documents had been, that the
body of the e-mail did not appear lined up with the header
and “look[ed] like it was printed cock-eyed,” (App. at 710)
and that the phone number for the e-mail recipient was a New
York number, which Hall, who lived in Baltimore, was not
known to have. Kauffman also testified that, despite
subpoenaing Hall‟s phone records, the investigators did not
find any record of the phone calls Waltzer testified Hall had
made.

received “proceeds totaling $300,000 (above the $500,000
which Hall received directly from his claim in the NASDAQ
litigation).” That response is confusing and does not
accurately reflect the record. According to an exhibit
prepared by Kauffman, which accompanied his testimony,
Hall received a gross total of $1,100,110.99 in fraud
proceeds: $507,910.99 from the Nasdaq claim and $592,200
in wired payments from Waltzer. From the Nasdaq claim
proceeds, Hall wired $300,000 to Waltzer and Penta. Thus,
according to Kauffman‟s exhibit, Hall‟s net proceeds were
$800,110.99: $207,910.99 from the Nasdaq claim and
$592,200 in wired payments from Waltzer.
Whether Hall received an additional $300,000 or
$600,000 from Waltzer makes little difference, however, as
either way Hall received hundreds of thousands of dollars not
explained by his submission of the single claim in the Nasdaq
Class Action.

8
 Following Kauffman‟s testimony, the defense asked
the Court to strike Paragraph 45, which outlined Hall‟s
alleged calls on behalf of Far East, as described by Kauffman.
The defense argued that “45 relies upon the documents for
which there is absolutely no independent corroboration. It
came from Waltzer, made by Waltzer, interpreted by
Waltzer.” (App. at 734.) The District Court responded that it
was “not willing to accept carte blanche what Waltzer told
anybody” but questioned whether there was “reason to say
that [Waltzer was lying] in this context of his testimony”
other than “the mere existence of his cooperation status.”
(App. at 737-38.) The Court did not immediately rule on the
defense motion to strike but instead turned to a discussion of
other portions of the PSR. At the completion of that
discussion, the Court, without explanation, stated that it was
“going to strike [P]aragraph 45.” (App. at 739.)

As a result of Paragraph 45‟s removal from the PSR
and hence from consideration, the government conceded that
the six-level enhancement for 250 or more victims was not
appropriate, and the District Court eliminated the
enhancement. That resulted in Hall‟s calculated offense level
being 23, and, since his criminal history category was I, the
consequent Guidelines range called for 46 to 57 months‟
imprisonment. The government requested a sentence “in the
higher end of the guideline range,” giving its reasons as
follows:

The government sees the defendant as more
culpable than the remaining defendants. His
involvement with Mr. Waltzer was far more
extensive. I know your honor struck that
paragraph from the presentence report but you

9
 heard the testimony of Agent Kauffman, you
saw the records and the financial records that
showed that this defendant received over
$800,000 from Mr. Waltzer for his participation
in this scheme.

(App. at 749.)

Despite the government‟s request for a sentence at the
high end of the Guidelines range, the Court varied downward
and sentenced Hall to 15 months‟ imprisonment, as well as
restitution in the amount of $572,279.99. The government
then objected to the sentence as unreasonable.4

4
On appeal, the government‟s sole basis for contesting
Hall‟s sentence is the argument that the District Court erred
procedurally in striking Paragraph 45 and, thus, eliminating
the six-level enhancement. Because the government
challenges neither the procedural adequacy of any other part
of the Court‟s decision (including the downward variance
from the calculated Guidelines range) nor the substantive
reasonableness of the sentence, we do not discuss the Court‟s
explanation for those decisions.
We must correct, however, the government‟s
erroneous assertion that, despite its not having addressed the
substantive reasonableness of Hall‟s sentence, it has not
waived that issue and may raise it in a future appeal. The
government suggests that our decision in United States v.
Merced, 603 F.3d 203 (3d Cir. 2010), instructs that the
procedural and substantive reasonableness of a sentence can
and should be raised in separate appeals. Merced gives no
such instruction but simply explains that “[i]f the district
court commits procedural error, our preferred course is to

10
 2. Negroni’s Sentencing Hearing

For Negroni, the District Court calculated a criminal
history category of I and an offense level of 27, which
included the six-level enhancement for 250 or more victims,
based on Negroni‟s involvement in the Denver claim for the
BankAmerica Class Action. Those calculations resulted in a
Guidelines range of 70 to 87 months‟ imprisonment. Negroni
argued for a downward variance, saying both that he had
diminished capacity and that, due to a lack of guidance in his
youth, he had developed an unhealthy reliance on Waltzer.
To support those claims, Negroni submitted numerous letters

remand the case for re-sentencing, without going any
further.” Id. at 214. Thus, if we find that a sentence is the
product of procedural error, we may decline to consider any
arguments contesting the substantive reasonableness of that
sentence until after a district court has corrected the
procedural problems. The fact that our decision regarding
procedural error may sometimes obviate the need for us to
address substantive reasonableness does not, by any stretch,
excuse an appellant from raising substantive reasonableness
in the initial appeal. Having failed to do so here, the
government has waived any challenge to the substantive
reasonableness of the sentence now under review.
We do not mean to say, though, that if, on remand, the
District Court were to impose a new sentence, the
government would not be able to challenge the substantive
reasonableness of that sentence. The government would
never have had the opportunity to appeal that sentence and,
therefore, could not have waived any challenge as to either its
procedural or substantive reasonableness.

11
from family and friends and reports from Dr. Thomas
Kucharski, a psychologist who evaluated Negroni, and Lara
Fastman, a therapist who had treated him.

In letters to the Court, Negroni‟s brother and wife each
described the abuse suffered by Negroni as a child and the
lack of male supervision that led Negroni to bond with
Waltzer and to look up to him as a father figure. Upon
reviewing those letters and evaluating Negroni, Dr. Kucharski
reported that “as a result of substantial abuse and neglect
[Negroni] suffers from and has suffered from since childhood
serious psychological deficits and liabilities,” which caused
Negroni to “form an intense dependent attachment to Mr.
Waltzer.” (App. at 289.) That attachment resulted in a
“naïve trust in Mr. Waltzer, a strong need to please, low self
esteem and a denigrating self appraisal,” which “strongly
influenced Mr. Negroni‟s involvement with Mr. Waltzer in
the instant offense.” (Id.) Fastman‟s report made similar
findings, diagnosing Negroni as having “Dependent
Personality Disorder,” which resulted in an “unhealthy
attachment to [Waltzer],” which “prevented him from
realizing [Waltzer‟s] lies and deceits” and “from questioning
[Waltzer‟s] business plans.” (App. at 286-87.) She
concluded that Negroni‟s “fear of being alone and without
[Waltzer] led him to agree with things he felt wrong rather
than risk losing the relationship.” (App. at 287.) Negroni
also submitted his own letter to the Court in which, despite
his experts‟ assertions about Waltzer‟s unusual influence in
his life, he purported to take “full responsibility for [his]
actions,” stating that he, not Waltzer, was “responsible for
this mistake.” (App. at 285.)

12
 After hearing the evidence and arguments, the Court
considered the factors set forth in 18 U.S.C. § 3553(a) and,
while imposing sentence, said the following:

I consider … the nature and circumstances of
the offense. And in this particular case we have
a massive criminal fraud scheme that resulted in
a loss of over $40 million that was orchestrated
by Kevin Waltzer.

Mr. Negroni‟s role, albeit not minor, was
limited to only a portion of the scheme and loss.
He was involved in not only the fraud itself but
also in money laundering. He was lured into
this scam by his long-time friend, Waltzer,
whom he knew from childhood and trusted as a
brother. There was also two separate claims in
this particular case, Mr. Negroni‟s alone and
then the Denver Corporation later. He received
money from both.

I look at the history and characteristics of the
defendant. And what I see is a 42-year old man
who is married and the father of twins. That he
is actively and intimately involved in the
nurturing of his children.

He had a disruptive and unstable childhood
punctuated by violence. He has a dependent
personality disorder, which makes him a
follower rather than a leader. He is a college
graduate who has no prior contact with the
criminal justice system. He is physically well.

13
He has depression, anxiety, which is really a
result of his predicament caused by his
involvement here. He certainly does not have a
substantially reduced mental capacity as a result
of his psychological disorder; nevertheless, it is
there. He has been involved in various
businesses and jobs over the years, with no real
substantial income reported. He seems to be a
dreamer, a fantasizer of what he can be when he
grows up. He has worked as a stock trader on
Wall Street businesses. Until I heard him today
I was not so sure that he had accepted his
responsibility. But I‟m convinced that he has
and is truly remorseful not only because he has
gotten himself in this jam, because he
recognizes that it was wrong.

I consider the need to impose a sentence that
reflects the seriousness of the offenses as I have
described it. To afford deterrence, promote
respect for the law, and to protect the public
from the defendant‟s further crimes.

Mr. Negroni will never have any further contact
with the criminal justice system. The damage
to his reputation and what he has to do now to
explain to his children what he has done, and
what it means to his reputation are substantial in
this case.

I consider the need to provide him with needed
educational, vocational training and correctional
treatment in the most effective manner, the kind

14
 of sentences that are recommended, the
sentencing ranges recommended, the pertinent
policy statements issued by the sentencing
commission, the need to avoid unwarranted
sentence disparities among defendants with
similar records who have been found guilty of
similar conduct and the need to provide the
victims with restitution.

Therefore the Defendant shall make restitution
in the amount of $677,805.05, less credit for
those amounts that he has deposited …

The defendant is sentenced to a period of
probation of five years with the first nine
months to be served in home detention under
electronic monitoring.

(App. at 642-45.)

Upon announcement of the sentence, the government
objected to the variance “from the Guidelines range of 70
months to home confinement” as unreasonable. (App. at
645.) In response, the Court stated “I thought you told me it
would be somewhere under Mr. Hall,” to which the
government attorney replied, “I said that he was less culpable
than Mr. Hall … but I also objected to Mr. Hall‟s sentence as
unreasonable.” (Id.)

The government has timely appealed the sentences of
both Hall and Negroni.

15
II. Discussion5

A. The Roles of District and Appellate Courts in
Sentencing

In sentencing a defendant, district courts follow a well-
established three step process: First, the court calculates the
applicable Guidelines range. United States v. Tomko, 562
F.3d 558, 567 (3d Cir. 2009) (en banc). Second, it considers
any motions for departure and, if granted, states how the
departure affects the Guidelines calculation. Id. Third, it
considers the § 3553(a) factors6 and determines the

5
The District Court had jurisdiction pursuant to 18
U.S.C. § 3231. We have jurisdiction pursuant to 18 U.S.C.
§ 3742(b) and 28 U.S.C. § 1291.
6
Section 3553(a) lists the following factors for a court
to consider:

(1) the nature and circumstances of the
offense and the history and characteristics
of the defendant;
(2) the need for the sentence imposed (A) to
reflect the seriousness of the offense, to
promote respect for the law, and to provide
just punishment for the offense; (B) to
afford adequate deterrence to criminal
conduct; (C) to protect the public from
further crimes of the defendant; and (D) to
provide the defendant with needed
educational or vocational training, medical
care, or other correctional treatment in the
most effective manner;

16
appropriate sentence, which may vary upward or downward
from the range suggested by the Guidelines.7 Id.

Our review of a criminal sentence “proceeds in two
stages.” Id. We first review for procedural error, “such as
failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence – including an explanation for any deviation

(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing
range established for … the applicable
category of offense committed by the
applicable category of defendant as set
forth in the guidelines … ;
(5) any pertinent policy statement … issued
by the Sentencing Commission … ;
(6) the need to avoid unwarranted sentence
disparities among defendants with similar
records who have been found guilty of
similar conduct; and
(7) the need to provide restitution to any
victims of the offense.
7
As a matter of terminology, a “departure” refers to a
deviation from the step-one Guidelines calculations based on
provisions within the Guidelines themselves and results in a
change to the recommended Guidelines range. A “variance,”
by contrast, refers to a deviation from the recommended
Guidelines range based on the statutory factors outlined in
§ 3553(a). Tomko, 562 F.3d at 562 n.3.

17
from the Guidelines range.” Gall v. United States, 552 U.S.
38, 51 (2007). If we find procedural error “our preferred
course is to remand the case for re-sentencing, without going
any further.” United States v. Merced, 603 F.3d 203, 214 (3d
Cir. 2010). In the absence of procedural error, we review for
substantive reasonableness, and “we will affirm [the
sentence] unless no reasonable sentencing court would have
imposed the same sentence on that particular defendant for
the reasons the district court provided.” Tomko, 562 F.3d at
567. At both the procedural and substantive stages, we
review for abuse of discretion. United States v. Wise, 515
F.3d 207, 217-18 (3d Cir. 2008).

B. Hall’s Sentence

On appeal, the government argues that the District
Court committed procedural error in striking Paragraph 45
and, consequently, in failing to include the six-level
enhancement. According to the government, the evidence of
Hall‟s involvement in other frauds was so overwhelming that
the Court abused its discretion by rejecting it, and the Court
further erred by offering no explanation for its decision to
strike Paragraph 45. Hall responds that the proof of his
participation in other frauds was not overwhelming because
evidence presented to the District Court challenged Waltzer‟s
credibility. Moreover, Hall contends, as to the striking of
Paragraph 45, the District Court adequately explained its
decision by making it clear throughout the proceedings that it
doubted Waltzer‟s story. Despite the vigor invested in the
parties‟ competing arguments on this point, we need not
decide whether the rejection of Paragraph 45 necessarily
amounts to an abuse of discretion. It is sufficient to observe
that, given the evidence supporting that portion of the PSR,

18
the District Court failed to give an adequate explanation for
the rejection.

Waltzer told Kauffman that Hall participated in
fraudulent claims in the Cendant and BankAmerica Class
Actions by calling banks and other companies while falsely
posing as an authorized agent of claimants in those Actions,
as, for example, with respect to the Far East fraud. (See supra
Part I(A)(1).) Waltzer‟s story in that regard was corroborated
by the introduction of documentary evidence, including the
script e-mail, and by evidence that Waltzer wired Hall
$100,000 immediately after the Far East fraud and wired him
hundreds of thousands of dollars in additional payments
during 2003 and 2004. As the government rightly notes, the
timing of the $100,000 payment strongly corroborates
Waltzer‟s assertion that Hall was involved in the Far East
fraud. Likewise, the fact that Waltzer‟s total payments to
Hall were nearly three times greater than the $200,000 that
Hall received in connection with the Nasdaq Class Action
corroborates Waltzer‟s description of Hall‟s involvement as
going beyond the filing of that single Nasdaq claim. Thus,
we agree with the government that there is persuasive
evidence to support the facts set forth in Paragraph 45.

Nonetheless, we recognize, as Hall argues, that the
District Court was presented with evidence challenging
Waltzer‟s account – particularly, Kauffman‟s admission that
Hall‟s phone records do not show any of the calls Waltzer
claims were made and Kauffman‟s acknowledgement of
irregularities in the script e-mail. Furthermore, while Hall
was paid some $600,000 more than his take on the fraudulent
Nasdaq claim that underpins his guilty plea, that fact does not
necessarily prove (as the District Court notes) that Hall‟s

19
additional participation was in frauds pertaining to the
BankAmerica or Cendant Class Actions, which are the only
bases for saying there were 250 or more victims of Hall‟s
fraudulent activities. Thus, although the financial evidence
testified to by Kauffman corroborates some of Waltzer‟s
account of Hall‟s participation in all three Class Actions, it is
possible, given the evidence arrayed on both sides, that the
District Court nonetheless found that account to be incredible.
Certainly, the Court had indicated that it was “not willing to
accept carte blanche what Waltzer told anybody.” (App. at
737.) At the same time, however, the Court expressed
skepticism that there was any “reason to say that [Waltzer
was lying] in this context of his testimony.” (Id.) Thus, it is
not clear from the record whether the Court found Waltzer‟s
account to be incredible or otherwise why, ultimately, the
Court struck Paragraph 45. We are left wondering.

Because “there is no way to review [the District
Court‟s] exercise of discretion” when it did “not articulate the
reasons underlying its decision,” Merced, 603 F.3d at 216
(internal quotation marks and citation omitted), we will
vacate Hall‟s sentence and remand for resentencing, trusting
that the District Court will provide an explanation sufficient
to allow for appellate review.8

8
In arguing that the District Court erred when it struck
Paragraph 45, the government also challenged what it
describes as the District Court‟s refusal to consider transcripts
of various phone calls that the government claims would
prove Hall‟s participation in the other frauds. Hall counters
that the District Court did not refuse to consider the
transcripts but, instead, simply set them aside for later
consideration and that the government failed to bring them up

20
 C. Negroni’s Sentence

The government argues that Negroni‟s sentence was
unreasonable because “the district court did not give
meaningful consideration to the factors that called for a
significant prison sentence.”9 (Gov. Br. at 47.) Negroni

again when the District Court gave it the opportunity. Given
our decision to remand for resentencing, we need not decide
whether the District Court refused to consider the transcripts
or whether such refusal would be an abuse of discretion. On
remand, the government is free to ask that the transcripts and
any other evidence brought to the District Court‟s attention at
sentencing be explicitly considered.
9
Negroni argues that the government cannot challenge
the procedural reasonableness of his sentence because, in its
Statement of Issues on Appeal, the government asserted only
that it was contesting the substantive reasonableness of
Negroni‟s sentence and, therefore, has waived any challenge
to the procedural reasonableness. In the Statement of Issues
and throughout its brief, the government does, indeed,
describe its argument as challenging the substantive
reasonableness of Negroni‟s sentence rather than the
procedural reasonableness of the sentence. Nonetheless,
despite that description, many of the arguments it presents fall
squarely within the definition of procedural error articulated
by the Supreme Court in Gall. As Negroni points out, for
instance, Gall lists “failing to consider the § 3553(a) factors”
as procedural error, 552 U.S. at 51, and the government
claims that the District Court “failed to give meaningful
consideration to the factors that called for a significant prison
sentence,” (Gov. Br. at 47). Thus, despite the label applied

21
responds that, although the Court did not explicitly rely on all
the § 3553(a) factors, it “weighed the totality of the
factors … giving them meaningful consideration,” and “had
no duty to „discuss and make findings as to each of
the … factors [because] the record makes clear [it] took the
factors into account in sentencing.‟”10 (Negroni Br. at 54
(quoting Tomko, 562 F.3d at 568).)

by the government, its arguments include a challenge to the
procedural reasonableness of Negroni‟s sentence.
Nevertheless, while we agree with Negroni that the
government‟s arguments address primarily procedural errors,
we do not agree that the government has somehow waived
any argument with respect to procedural error simply because
the Statement of Issues labels the challenge as substantive
rather than procedural. Negroni has identified no case in
which an issue has been found waived where it was argued in
the briefs but mislabeled in the Statement of Issues.
Furthermore, while the Statement of Issues may have used the
word “substantive” rather than “procedural,” it still notified
the Court and the parties that the issue on appeal is the
reasonableness of Negroni‟s sentence, and the brief sets forth
at length the precise bases for that challenge. Negroni cannot,
therefore, claim to have been left in the dark as to the nature
of the government‟s challenge, and, in fact, Negroni has not
claimed to have suffered any prejudice as a result of the
government‟s mislabeling. Thus, we reject Negroni‟s
assertion that the government has waived any challenge to the
procedural adequacy of his sentence.
10
Negroni addressed the Court‟s consideration of the §
3553(a) factors in his discussion of the substantive
reasonableness of his sentence because, as discussed supra

22
 Again, our review is frustrated because, while the
District Court individually identified each § 3553(a) factor, it
did not discuss some of them and, as to those it did discuss, it
did not explain how they justified the frankly dramatic
downward variance it gave. The insufficiency of the
explanation prevents us from judging whether the Court
“gave meaningful consideration” to the relevant factors and is
itself procedural error. In addition, to the extent the District
Court‟s lenient sentence of Negroni was influenced by the
government‟s assertion that Hall was more culpable than
Negroni, that too is procedural error. We discuss each of
those problems in turn.

1. The District Court’s Consideration of the
§ 3553(a) Factors and the Explanation
for Its Sentence

“Appellate review, limited though it is by the abuse-
of-discretion standard, … requires district courts to plainly
state the reasoning behind each sentence. Moreover, in
deciding on appeal whether the reasons provided by a district
court are adequate, the degree that a sentence varies from the

note 9, the government describes its arguments as addressing
substantive reasonableness only. As already discussed,
however, the sufficiency of a court‟s consideration of the §
3553(a) factors is a question of procedural reasonableness,
not substantive, and we therefore consider it in that light.
Other than arguing that the government has waived any
argument regarding procedural reasonableness, Negroni does
not offer any argument explicitly directed to the procedural
reasonableness of his sentence.

23
recommendation given in the Guidelines matters.” United
States v. Levinson, 543 F.3d 190, 197 (3d Cir. 2008). Thus,
while we eschew any strict proportionality test requiring that
unusual variations from the Guidelines be based on equally
unusual circumstances, we do require that a substantial
variation be accompanied by a more complete explanation
than would be required for a sentence within or only modestly
outside the Guidelines range. Id.

Here, the Guidelines called for a range of 70 to 87
months‟ imprisonment and the District Court imposed a
sentence of 60 months‟ probation, with 9 months‟ home
confinement. The parties have not identified any case, and
we have not found one, in which an appellate court upheld a
probationary sentence that so significantly varied from the
Guidelines range. Such a variance is genuinely extraordinary
and should have been accompanied by a thorough
justification of the sentence, “including an explanation for
any deviation from the Guidelines.” Gall, 552 U.S. at 51.
Unfortunately, the District Court did not provide that kind of
justification.

Indeed, the Court did not acknowledge that the
sentence it chose deviated significantly from the Guidelines.
While the District Court properly identified the recommended
Guidelines range of 70 to 87 months‟ imprisonment, and
thoroughly discussed some of the § 3553(a) factors,
particularly the nature of the offense and of the defendant, at
no point did it describe how those factors justified a deviation
from the recommended range down to probation and in-home
confinement. In a case involving such a substantial variance,
it is not enough to note mitigating factors and then impose
sentence. Rather, the chain of reasoning must be complete,

24
explaining how the mitigating factors warrant the sentence
imposed.

It may be that the mitigating factors the District Court
identified, such as Negroni‟s alleged personality disorder and
his accompanying susceptibility to Waltzer‟s influence, could
justify a variance. We confess our doubts, however, and
emphasize the Sentencing Commission‟s express concern
with the once-common practice of sentencing “to probation
an inappropriately high percentage of offenders guilty of
certain economic crimes, such as theft, tax evasion, antitrust
offenses, insider trading, fraud, and embezzlement, that in the
Commission‟s view are „serious.‟” U.S.S.G. § 1A1.4(d)
(2010). Thus, if a district court seeks to vary from the
Guidelines recommendation of incarceration for persons who
have committed serious white-collar crimes, it must provide a
thorough and persuasive explanation for why the
congressionally-approved policy of putting white-collar
criminals in jail does not apply. Not having done so in
Negroni‟s case, the District Court committed procedural
error.

Part of the failure to adequately address the variance
lies in the lack of discussion of one highly relevant § 3553(a)
factor in these circumstances, namely the need to avoid
unwarranted sentencing disparities among similarly situated
individuals. Where the Guidelines call for a minimum of
nearly six-years‟ imprisonment, a sentence of probation
surely implicates concerns over sentencing disparities, and
that concern warrants explicit consideration. While the
District Court identified the concern and stated it had
considered that factor, it provided no explanation for why the

25
sentence it imposed was justified despite the clear disparity it
seemed to create.11

In short, since there is not an adequate “explanation for
[the] deviation from the Guidelines range,” as required by
Gall, 552 U.S. at 51, nor an explanation “sufficient for us to
see that the particular circumstances of the case have been
given meaningful consideration within the parameters of
§ 3553(a),” Levinson, 543 F.3d at 196, the sentence cannot
stand.

(2) The District Court’s Consideration of the
Relative Culpability of Hall and Negroni

The inadequacy of the explanation for Negroni‟s
sentence is exacerbated by what appears to be an
inconsistency in the District Court‟s assessment of the
relative culpability of Negroni and Hall. The Court based its
sentence in part on the government‟s assertion that Negroni
was less culpable than Hall. But that assertion had been
effectively rejected by the Court‟s own factual findings and,
therefore, could not warrant the probationary sentence.

11
We say “seemed to create” because the disparities
that matter are those between “similarly situated” individuals.
See United States v. King, 604 F.3d 125, 145 (3d Cir. 2010)
(“[S]entencing disparities are unreasonable only when the
defendants are similarly situated.”). The District Court in this
case noted circumstances which it evidently viewed as
distinguishing Mr. Negroni from the ordinary fraud convict.
Whether those distinctions take Mr. Negroni out of the
heartland of circumstances contemplated by the Guidelines is
one of the matters requiring added explanation.

26
 In seeking a sentence for Hall at the upper end of the
Guidelines range, the government had asserted that Hall was
more culpable than Negroni. That assertion was based on
“the testimony of Agent Kauffman … and the financial
records that showed that [Hall] received over $800,000” from
the scheme, a substantial portion of which came from frauds
involving 250 or more victims, at least according to the
government. (App. at 749-50.) In striking Paragraph 45,
however, the District Court necessarily rejected at least some
of the factual contentions advanced by Kauffman, and it
implicitly rejected the government‟s basis for concluding that
Hall was more culpable than Negroni. That is borne out by
the offense levels calculated for the two Appellees:
Negroni‟s offense level was 27; Hall‟s offense level, had it
included the six-level enhancement, would have been 29, but,
without that enhancement, it was only 23. Thus, having
rejected the factual predicate for the six-level enhancement,
the District Court also rejected the basis for concluding that
Hall was more culpable than Negroni.

Despite that rejection, when the government objected
to Negroni‟s sentence as unreasonable, the District Court‟s
reply was that “you [, the government,] told me it would be
somewhere under Hall,” which suggests that the District
Court felt constrained to give Negroni a lighter sentence than
Hall‟s. (App. at 645.) Because a Court abuses its discretion
when it bases a decision on a clearly erroneous finding of
fact, Tomko, 562 F.3d at 567-68, the Court abused its
discretion to the extent it concluded that Negroni needed a

27
lighter sentence than Hall despite the Court‟s rejection of the
factual basis for concluding that Negroni was less culpable.12

In summary, the District Court committed procedural
error in not adequately explaining Negroni‟s sentence and in
basing that sentence, in part, on the undermined assertion that
Hall was more culpable than Negroni. Consequently,
Negroni must be resentenced.

III. Conclusion

For the foregoing reasons, we will vacate the sentences
of both Hall and Negroni and remand for resentencing.

12
We do not imply that in sentencing co-defendants a
court cannot consider the relative culpability of those
defendants. To the contrary, just as a court should ensure that
it does not create sentencing disparities among similarly
situated individuals, it should also ensure that its sentences
appropriately reflect the relative culpability of individuals
who are not similarly situated. Here, the District Court‟s
error is that it failed to do the former and, in doing the latter,
erroneously gave Negroni a more lenient sentence after
having rejected the only expressed factual basis from which
to conclude that Negroni was less culpable.

28