UNITED STATES of America, Appellee v. Frederick RATLIFF, Appellant, 252 F. App'x 519

OPINION OF THE COURT HARDIMAN, Circuit Judge. A grand jury indicted Appellant Frederick Ratliff on two counts of sexual exploitation of minors ,in violation of 18 U.S.C. §§ 2252A(a)(2)(

B) and 2252A(a)(5)(B). In full satisfaction of the original charges, Ratliff signed a plea agreement and pleaded guilty to a superseding information charging him with receipt of obscene material in commerce through an interactive computer service, in violation of 18 U.S.C. § 1462, which carries a statutory maximum penalty of five years imprisonment. The presentence investigation report (PSR) calculated Ratliffs adjusted Guidelines range at 121 to 151 months imprisonment, but Guideline § 5Gl.l(

a) provides for application of the statutory maximum, in this case 60 months, when it is lower. As part of his written objections to the PSR, Ratliff argued that he should receive a downward departure based on extraordinary post-offense rehabilitation, which we recognized as a permissible ground for departure in United States v. Sally, 116 F.3d 76, 80 (3d Cir.1997). During the sentencing proceeding, Ratliff testified and called witnesses in support of his argument.

After hearing the testimony, the District Court adopted the PSR without change, declined to depart downward from the advisory Guidelines sentence, and sentenced Ratliff to 60 months imprisonment. Ratliff appeals his sentence on two grounds: the District Court (1) failed to “formally rule on” Ratliffs motion for a downward departure, United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006) (internal brackets omitted); and (2) failed to give “meaningful consideration to the [18 U.S.C.] § 3553(

a) factors,” United States v. Cooper, 437 F.3d 324, 329 (3d Cir.2006). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We reject the first assignment of error because the District Court expressly acknowledged on the record that Ratliff was “asking that the Court would consider a downward departure or a variance ... based on the defendant’s extraordinary efforts at rehabilitation.” The District Court went on to conclude that the “Guideline sentence is appropriate in this case” after listening to the testimony and argument of counsel.

Although the exact words “I deny the defendant’s motion to depart downward” would have made for a clearer record, our holding in Gunter does not require them. See United States v. Jackson, 467 F.3d 834, 839-40 (3d Cir. 2006) (inferring that departure motion was denied despite absence of explicit ruling to that effect); see also United States v. Dragon, 471 F.3d 501, 506 (3d Cir.2006) (“we will not elevate form over substance”).

Here, the District Court’s imposition of the Guidelines sentence following its express recognition of its authority to depart therefrom is ample evidence that the District Court denied Ratliffs motion for downward departure. We also reject Ratliffs second argument because the District Court provided a sufficient explanation for its sentence. In Cooper, we held that “[t]he court need not discuss every argument made by a litigant if an argument is clearly without merit.” 437 F.3d at 329. Here, even assuming that it had any merit, the only argument Ratliff made to warrant a downward variance under § 3553(

a) is that he engaged in exceptional post-offense rehabilitative efforts. In discussing this argument, the District Court stated: “I’m giving the defendant credit for acceptance of responsibility, although I have expressed some reservations about whether or not he’s come clean with respect to how the images came to be on his computer. I think he is legally entitled to that credit.” Indeed, Ratliff received credit for acceptance of responsibility in the form of a three-level reduction from his adjusted offense level pursuant to Guidelines § 3E1.1.

But the District Court declined to vary downward from the Guidelines sentence by stating: “There might be ... a marginal acceptance of responsibility that would warrant the defendant getting that credit, but I think for me to even seriously consider what you’re asking here, I need to be completely confident that the defendant has owned up to his behavior here.” Therefore, in reaching its ultimate conclusion that the “Guideline sentence is appropriate in this case,” the District Court gave meaningful consideration to the argument for downward variance advanced by Ratliff. Moreover, even with respect to § 3553(

a) factors under which Ratliff made no argument for downward variance, the District Court stated: I’ve considered the factors set forth in 3553(a), especially looking at the defendant’s age, his health, his background, including his history of childhood abuse, his mental health, his rehabilitative efforts, the need for punishment, for rehabilitation, and for a sentence that would reflect the seriousness of his conduct and suggest some balance of all of the sentencing goals.

Although an ideal explanation by the District Court would tie each of these considerations to specific facts of record, the explanation given satisfies what the law requires. See Cooper, 437 F.3d at 329 (“[n]or must a court discuss and make findings as to each of the § 3553(

a) factors if the record makes clear the court took the factors into account in sentencing”). Ratliff does not argue that the District Court improperly calculated his adjusted Guidelines range (121 to 151 months) or ultimate Guidelines sentence (60 months), or that the sentence imposed was substantively unreasonable. Having concluded that Ratliffs arguments are without merit, we will affirm the judgment of the District Court.