United States v. Ali

¶4OPINION OF THE COURT

¶5AMBRO, Circuit Judge.

¶6The Government appeals the sentencing calculations and downward departures from the Sentencing Guidelines ranges for defendants found guilty of fraud. A criminal jury convicted Faridah Ali (also known as Rita Spicer) and her daughter Lakiha Spicer (together, “defendants”) for using a school to obtain federal funds for classes that were never conducted. At sentencing, the District Court applied a reasonable-doubt standard to determine loss amounts far below the ones the Government had urged under a preponderance-of-the-evidence standard. The Court then looked to good works and community support along with other factors to depart downward from the suggested Guidelines ranges. Defendants received no prison time. Instead, the Court sentenced each defendant to some term of probation with periods of in-home confinement and restitution payments in line with its determination of the loss amounts.

¶7The issues presented to us are whether the Court erred in its initial Guidelines calculations, whether it relied on inappropriate factors for its downward departures, and whether the resulting sentences were unreasonable. We conclude yes for all three issues and remand for further proceedings.

¶8II. Factual and Procedural Background

¶9The Community College of Philadelphia (the “College” or “CCP”) is a state-accredited public college that obtained a federal grant from the U.S. Department of Education to provide adult basic education (“ABE”) classes. In addition to on-site classes, the terms of the grant required the College to conduct classes at approved *140neighborhood sites in Philadelphia. Under the arrangement, CCP paid $450 per month in rent for these sites plus salaries for qualified teachers (i.e., those who had completed at least a bachelor’s degree). One of the approved ABE sites was the Sister Clara Muhammad School (“the School”) in West Philadelphia, a private K-12 school.

¶10Between 1999 and 2001, this program was a fagade. The School and CCP personnel maintained all the trappings of a functioning program — hiring and paying teachers, establishing a course schedule, filing registration forms, and causing CCP to pay rent to the School for the classrooms. But no courses were taught. Rather, Faridah Ali, assistant director of education at the School, and Delores Weaver, director of the ABE program at CCP, led a fraudulent scheme to steal the money allocated to the program. Specifically, they submitted false student registration forms to CCP, thereby ensuring that it would make salary and rent payments to the School for a certain number of classes. Ali and Weaver divided the rent payments between themselves and arranged for salaries to go to “ghost teachers,” many of them unqualified, for courses that never took place. Ali’s children, Lak-iha and Azheem Spicer, and Weaver’s son, Eugene Weaver III, were some of the ghost teachers who received money through this scheme.

¶11In 2004, Ali and the Spicers (Lakiha and Azheem) were tried and convicted on several counts of fraud by a federal jury in the United States District Court for the Eastern District of Pennsylvania.1 The grand jury indictment specified that Ali and Weaver had fraudulently obtained over $200,000, and Lakiha Spicer $71,000, but the verdict slip did not designate loss amounts. Those amounts were to be determined at sentencing.2

¶12*141Between the jury verdict and the time of sentencing in 2005, the Supreme Court issued United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), making “sweeping changes” to federal sentencing. United States v. Davis, 407 F.3d 162, 163 (3d Cir.2005). Booker “sever[ed] and excis[ed]” the portions of the United States Code that made the United States Sentencing Guidelines mandatory on sentencing and appellate courts. 543 U.S. at 245, 258-65, 125 S.Ct. 738; see also 18 U.S.C. §§ 3553(b)(1), 3742(e). It then set a “reasonableness” standard of appellate review to this now-advisory Guidelines scheme. 543 U.S. at 261, 125 S.Ct. 738. Booker did not, however, decide the required standard of proof for finding facts relevant to sentencing. See United States v. Grier, 475 F.3d 556, 561 (3d Cir.2007) (en banc).

¶13At sentencing, the Judge stated his view that the loss amounts should be calculated by evidence proved beyond a reasonable doubt. The Government argued that Booker required only proof by a preponderance of the evidence. However, the Judge maintained his view, stating:

The question then becomes, under the— in calculating the guideline range, what was the amount of money that is properly chargeable as having been obtained by fraud. I persist in the view that this is a finding — since it affects the guideline[s] calculation in an upward way, that this is a — an issue which should be resolved by — insofar as applying- — calculating the [G]uideline[s] range is concerned, it has to be found beyond a reasonable doubt.... I confess to considerable doubt as to exactly what the amount of loss was in each case.

¶14App. at 160.

¶15As noted below in more detail, the Judge determined that the Presentence Report (“PSR”) likely had overstated the amount of funds fraudulently obtained. For Ali he calculated the Guidelines sentencing range according to his determination of the loss amount proved beyond a reasonable doubt, and for Spicer based on the perjury conviction.3 He further departed downward from those advisory ranges based on four factors: (1) records of public service and community support for both defendants, (2) the lack of an initial intent to defraud for both, (3) the minor role played by Lakiha Spicer, and (4) the “exculpatory no” doctrine in Lakiha Spicer’s case.4 He sentenced Ali to five years’ probation with in-home confinement for the first year, restitution payments of $30,000, and a special assessment of $2,500. He sentenced Spicer to four years’ probation with in-home confinement for the first six months, restitution payments of $25,000, and a special assessment of $800.

¶16*142In appealing these sentences, the Government contends that the District Court erred by applying a reasonable-doubt standard to determine the loss amounts for both defendants, resulting in erroneous Guidelines calculations. It also argues that the Court relied on impermissible factors to depart downward for both defendants. In this context, the Government maintains the final sentences were unreasonable.5

¶17III. Standard of Review

¶18We review sentences for reasonableness. Booker, 543 U.S. at 261, 125 S.Ct. 738; see also Grier, 475 F.3d at 561. Booker “attempt[ed][no] elaborate discussion of [the reasonableness] standard,” Cunningham v. California, 549 U.S. -, 127 S.Ct. 856, 867, 166 L.Ed.2d 856 (2007), but the Supreme Court recently clarified its meaning. Reasonableness review “merely asks whether the trial court abused its discretion” in calculating and applying the Guidelines. Rita v. United States, 551 U.S. -, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007); see also id.at -, 127 S.Ct. at 2470 (Stevens, J., concurring) (“Simply stated, Booker replaced the de novo standard of review required by 18 U.S.C. § 3742(e) with an abuse-of-discretion standard that we called ‘reasonableness’ review.”).

¶19Rita, which allowed appellate courts to apply a nonbinding presumption of reasonableness to within-Guidelines sentences, did not set standards governing below-Guidelines range sentences like those before us. See id.at -, 127 S.Ct. at 2462.6 However, it did note that the reasonableness presumption applies only to within-Guidelines sentences without suggesting an unreasonableness presumption to outside-of-Guidelines sentences. Id. at -, 127 S.Ct. at 2467. It also emphasized that the reasonableness presumption applies to appellate review only; it does not affect the ordinary sentencing process that a district court judge must undertake. Id. at -, 127 S.Ct. at 2465.

¶20We have interpreted Booker to require the following three steps in the ordinary sentencing process:

(1) Courts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker.

(2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force.

(3) Finally, they are required to exercise their discretion by considering the relevant [18 U.S.C.] § 3553(a) factors in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines.

¶21United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006) (internal citations, brackets, and quotation marks omitted); see also United States v. King, 454 F.3d 187, 196 (3d Cir.2006); United States v. Cooper, 437 F.3d 324, 330 (3d Cir.2006).

¶22IV. Discussion

¶23A. Step One: Guidelines Calculation 1. Initial Calculation

¶24As we have noted repeatedly, sentencing “[c]ourts must continue to calculate a de*143fendant’s Guidelines sentence precisely as they would have before Booker.” Gunter, 462 F.3d at 247 (citing King, 454 F.3d at 196; Cooper, 437 F.3d at 330); see also Grier, 475 F.3d at 564 (“District courts must still conduct the full Guidelines analysis in every case.”)- Nothing in Rita changed this requirement. To the contrary, Rita affirmed our approach, emphasizing that the sentencing “process[] will normally begin by considering the presen-tence report and its interpretation of the Guidelines.” 551 U.S. at -, 127 S.Ct. at 2465.

¶25In calculating the Guidelines sentence, we have explained that, “[a] s before Booker, the standard of proof under the guidelines for sentencing facts continues to be preponderance of the evidence.” Cooper, 437 F.3d at 330.7 We have further determined that our “Court will continue to review factual findings relevant to the Guidelines for clear error and to exercise plenary review over a district court’s interpretation of the Guidelines.” Grier, 475 F.3d at 570; United States v. Fred Cooper, 394 F.3d 172, 176 (3d Cir.2005).8 “A finding is clearly erroneous when although there is evidence to support it, the reviewing body on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993) (internal quotation marks and brackets omitted). When a sentencing court clearly errs in making factual findings, the resulting sentence “will generally be deemed ‘unreasonable’ and, subject to the doctrines of plain and harmless error, will result in remand to the district court for resentenc-ing.” Grier, 475 F.3d at 570; see also Booker, 543 U.S. at 268, 125 S.Ct. 738; United States v. Miller, 417 F.3d 358, 362 (3d Cir.2005) (“This court has taken the position that Booker sentencing issues raised on direct appeal are best determined by the district courts in the first *144instance.”)-9

¶26In calculating the recommended Guidelines range for Ali, the District Judge rejected a preponderance standard for the loss calculation, and instead announced his intention to calculate the sentencing range according to his assessment of the loss amount proved beyond reasonable doubt.10 The PSR for Ali specified a base offense level of six under U.S.S.G. § 2B1.1 for violation of 18 U.S.C. § 1341. It alleged that she and her co-conspirators misappropriated a total of $245,975.08 and that she and Delores Weaver were jointly and severally responsible for $206,326.32 of that amount. It thus added 12 points pursuant to § 2B1.1(b)(1)(G) (for a loss amount of over $200,000 but under $400,000) and another four points for Ali’s major role in the offense pursuant to § 3B1.1(a). This yielded a total offense level of 22 coupled with a criminal offense category of I, for which the Guidelines advise a range of 41-51 months’ imprisonment. The Court rejected the PSR’s calculation. As noted, the Court did not state a finding of an exact loss amount, but ordered Ali to pay $30,000 in restitution. This amount requires a four-point addition to the base offense level pursuant to § 2Bl.l(b)(l)(C) (for a loss amount of over $10,000 but under $30,000). The Judge adopted the PSR’s determination that the base offense level was six, and having made his own determination of loss amount (yielding the four-point add-on), he presumably agreed that Ali’s major role warranted another four-point enhancement. Added together, this yielded a total offense level of 14, which, in conjunction with a criminal history category of I, corresponds to a 15-21 month recommended imprisonment range.

¶27With respect to Spicer, the District Court calculated the Guidelines range sentence based on the perjury offense.11 Sec*145tion 2J1.3 of the Guidelines specifies a base offense level of 14 for violation of 18 U.S.C. § 1621. As there were no specific offense characteristics or adjustments applicable to this offense,12 14 was also the total offense level. Coupled with a criminal history category of I, this total offense level corresponds to a 15-21 month recommended imprisonment range.

¶28To reiterate, the appropriate burden for finding sentencing facts here is by a preponderance of the evidence. See Grier, 475 F.3d at 561. Loss amount is a sentencing fact (a specific offense characteristic), so it must be found by a preponderance of the evidence. “The court need only make a reasonable estimate of the loss.” U.S.S.G. § 2B1.1, app. n. 3(C); see also United States v. Evans, 155 F.3d 245, 252 (3d Cir.1998).

¶29 By employing a reasonable-doubt standard rather than a preponderance standard in calculating the Guidelines at step one, the Judge here erred. He also failed to specify even a reasonable estimate of the loss amount for each defendant. Each of these three mistakes is legal error, rendering the resulting sentence unreasonable. As a result, we vacate the sentence and remand.13

¶302. Constitutional Claims

¶31Defendants argue that the reasonable-doubt standard as applied here was correct, because to allow proof by a preponderance standard would raise constitutional concerns.

¶32a. Sixth Amendment

¶33We have noted (supra note 2) that the sentencing Judge believed that, because of Blakely, any sentencing enhancements sought by the Government based on loss amount implicated defendants’ Sixth Amendment guarantee to trial by an impartial jury in criminal cases. This, he concluded, required the facts that support those enhancements to be proved to a jury with evidence beyond a reasonable doubt.

¶34However, other than the fact of a prior conviction, AlmendarezTorres v. United States, 523 U.S. 224, 239-47, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, *146530 U.S. at 490, 120 S.Ct. 2348;14see also Grier, 475 F.3d at 561-63. In other words, “the right to proof beyond a reasonable doubt attaches only when the [sentencing] facts at issue have the effect of increasing the maximum [statutory] punishment to which the defendant is exposed.” Grier, 475 F.3d at 565-66 (citing Apprendi 530 U.S. at 489-94, 120 S.Ct. 2348).15

¶35Differing loss amounts raise no such problem. After Booker, the statutory maximum to which Apprendi and Blakely refer is the maximum punishment in the U.S.Code for a certain crime. Section 1341 of Title 18, under which Ali was sentenced, sets a maximum fine and imprisonment term of $1,000,000 or 20 years, respectively, or both, for convictions of fraud that do not involve a financial institution (as here). Section 1621, under which Spi-cer was sentenced, permits violators to be fined and sets a maximum imprisonment term of five years, or both, for perjury convictions. The recommended Guidelines range sentences for Ali fall far below 20 years, whether the loss amount is caleulat-ed according to evidence proved by a preponderance (41-51 months) or beyond a reasonable doubt (15-21 months). Likewise, the recommended sentence for Spi-cer falls far below the five-year statutory maximum.

¶36The Judge here was mistaken as to what Blakely requires to show sentencing facts. This mistake led to his erroneous calculation of the Guidelines range. Because the differing loss amounts do not increase defendants’ sentences beyond the statutory máximums, there is no Sixth Amendment concern here with applying a preponderance standard for the sentencing calculation.

¶37b. Fifth Amendment

¶38Defendants argue that the Due Process Clause of the Fifth Amendment requires sentencing enhancements to be proved beyond a reasonable doubt. Following the briefing and argument of this case, however, an en banc majority of our Court considered this precise contention *147and rejected it. See Grier, 475 F.3d at 565-66 (“By excising the provisions of the United States Code requiring mandatory application of the United States Sentencing Guidelines, the Supreme Court in Booker altered the constitutional impact of the Guidelines. None of the facts relevant to enhancements or departures under the Guidelines can increase the maximum punishment to which the defendant is exposed. The Due Process Clause thus affords no right to have these facts proved beyond a reasonable doubt”) (internal citations omitted). We follow suit.

¶39c. Constitutional Avoidance

¶40Defendants also point to these same constitutional concerns to urge us to apply the doctrine of constitutional avoidance and read the Guidelines to require proof beyond a reasonable doubt. See Jones v. United States, 526 U.S. 227, 239, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (“ ‘[Wjhere a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.’ ”) (quoting United States ex rel. Att’y Gen. v. Del. & Hudson Co., 213 U.S. 366, 408, 29 S.Ct. 527, 53 L.Ed. 836 (1909)). This canon is out-of-place here because it applies to statutory interpretation only where there is doubt whether “an otherwise acceptable construction of a statute would raise serious constitutional problems.” Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988). Because there is no constitutional doubt, defendants’ arguments do not alter our conclusion that the Judge committed legal error because he failed to apply the preponderance standard to determine the loss amount.

¶41B. Step Two: Departure Determinations

¶421. Legal Framework

¶43Similar to our approach at step one, “we require that the entirety of the Guidelines calculation be done correctly, including rulings on Guidelines departures” at step two. United States v. Jackson, 467 F.3d 834, 838 (3d Cir.2006); see also Gunter, 462 F.3d at 247; King, 454 F.3d at 194; Cooper, 437 F.3d at 329. As with our conclusion concerning the proper standard of proof for finding sentencing facts, generally “there is every reason to believe that the Supreme Court intended that the practices that have guided us and other courts in the twenty years since the Guidelines were first promulgated would continue to govern sentencing in the federal courts.” Grier, 475 F.3d at 561. Booker itself suggested as much, 543 U.S. at 260-61, 125 S.Ct. 738 (discussing “the past two decades of appellate practice in cases involving departures”), as did Rita, 551 U.S. at -, 127 S.Ct. at 2465 (noting that, after calculating the Guidelines, the sentencing judge “may hear arguments by prosecution or defense that the Guidelines sentence should not apply, perhaps because ... [, inter alia,] ... (as the Guidelines themselves foresee) the case at hand falls outside the ‘heartland’ to which the Commission intends individual Guidelines to apply....”).

¶44Thus sentencing courts should continue to “treat each [sentencing factor] as carving out a ‘heartland,’ a set of typical cases embodying the conduct that each guideline describes.” U.S.S.G. § 1A1.1 cmt. 4(b); see also United States v. Sweeting, 213 F.3d 95, 99 (3d Cir.2000). Where the defendant’s conduct falls outside the “heartland” of cases, a district court may determine whether a departure is appropriate. United States v. Iannone, 184 F.3d, 214, 226 (3d Cir.1999); see also *148Sweeting, 213 F.3d at 99. “The Guidelines permit departures from the prescribed sentencing range in cases in which the judge ‘finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.’ ” Booker, 543 U.S. at 234, 125 S.Ct. 738 (quoting 18 U.S.C. § 3553(b)(1)); Sweeting, 213 F.3d at 99.

¶45In Koon v. United States, the Supreme Court outlined what is required of sentencing courts when considering a departure from the applicable Guidelines range. 518 U.S. 81, 92-96, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). In applying the Koon analysis, we have described the process as follows:

First, identify the factor or factors that potentially take the case outside the Guidelines’ “heartland” and make it special or unusual. Second, determine whether the Guidelines forbid departures based on the factor, encourage departures based on the factor, or do not mention the factor at all. Third, apply the appropriate rule: (1) if the factor is forbidden, the court cannot use it as a basis for departure; (2) if the factor is encouraged, the court is authorized to depart if the applicable guideline does not already take it into account; (3) if the factor is discouraged, or encouraged but already taken into account by the applicable guideline, the court should depart only if the factor is present to an exceptional degree, or in some other way makes the case different from the ordinary case in which the factor is present; or (4) if the factor is unmentioned, “the court must, after considering the structure and theory of both relevant individual guidelines and the Guidelines taken as a whole, decide whether [the factor] is sufficient to take the case out of the Guideline’s heartland.”

¶46United States v. Serafini, 233 F.3d 758, 772 (3d Cir.2000) (quoting Iannone, 184 F.3d at 226).

¶47In our review of these sentences for reasonableness, we assess the extent to which the sentencing court followed the proper procedures to depart at step two from the recommended sentencing range. Jackson, 467 F.3d at 838. That query includes consideration of “whether the factors relied on [by the district court] are appropriate bases for departure,” Kikumura, 918 F.2d at 1110 (brackets original, citations and quotation marks omitted); Jackson, 467 F.3d at 838.

¶482. Analysis

¶49Here the sentencing Judge identified four bases for his departure downward from the initial Guidelines calculations: (1) defendants’ good works and community support, (2) their lack of an initial intent to defraud, (3) Spicer’s minor role, and (4) the “exculpatory no” doctrine in Spicer’s case. We evaluate each according to the criteria of Koon, with particular emphasis on the first basis — good works and community support — on which the Judge and the parties rely most.

¶50a. Good works and community support

¶51The Judge stated that a downward departure was appropriate largely because of defendants’ “exemplary record of public service” and charitable works, as demonstrated by the “tremendous outpouring of public support.” App. at 231.16

¶52*149Public service and good works are discouraged bases for departures. See U.S.S.G. § 5H1.11 (“Military, civic, charitable, or public service; employment-related contributions; and similar prior good works are not ordinarily relevant in determining whether a departure is warranted.”); Fred Cooper, 394 F.3d at 176. Under the Koon analysis, the Court should have departed only if the works were “exceptional.” Serafini, 233 F.3d at 772; see also Fred Cooper, 394 F.3d at 176.

¶53“Exceptional” works involve acts that are both “substantial” and “personal” in nature. Id. at 177. They are “evaluated with reference to the offender’s wealth and status in life. More is expected of [those] who enjoy sufficient income and community status[, as] ... they have the opportunities to engage in charitable and benevolent activities.” Id. at 176 (citations and quotation marks omitted). Notably, in passing the PROTECT Act (which stands for “Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today”), Pub.L. No. 108-021, in 2003, Congress has expressed a “‘disinclination towards leniency for white collar criminals ... and its frustration with the fact that these defendants receive probation more often than other offenders who commit crimes of comparable severity.” Id. at 179 (Sloviter, J., dissenting) (citations omitted). For this reason, “exceptional,” as applied to charitable works, is a “hard standard to meet,” United States v. Wright, 363 F.3d 237, 248 (3d Cir.2004), and thus it is applied in very few cases.17

¶54In Fred Cooper, the District Court received 24 letters pleading for leniency because of Cooper’s charitable donations and activities. 394 F.3d at 174. The Judge granted a four-level downward departure on that basis, and sentenced Cooper to six months’ house arrest and another 30 months’ probation, expressing his belief that Cooper’s “community and charitable activities have been truly exceptional, and that’s just not the amount of money he spent on the things, but also the amount of personal effort, and work, and help that he has given to so many people.” Id. at 175.

¶55We affirmed, noting that Cooper’s acts were

not the detached acts of charity one might ordinarily expect from a wealthy business executive. They [were,] in a very real way, hands-on personal sacrifices, which have had a dramatic and personal impact on the lives of others. [In addition,] when compared with a similarly-situated defendant who received a downward departure based on good works, Cooper fares well.

¶56*150Id. at 177 (citations omitted). For support, we cited Serafim, which affirmed a downward departure for a politician convicted for violating election finance laws and perjury because of the personal nature of several exceptional community works, as described in several letters written to the sentencing judge asking for leniency. 233 F.3d at 774, 776; see also United States v. Woods, 159 F.3d 1132, 1136 (8th Cir.1998) (upholding a downward departure for defendant’s charitable activities, including bringing two troubled young women into her home).18

¶57The record here contains a number of attestations to the charitable acts of Ali (mainly) and Spicer. It also notes that Ali received numerous citations and awards from the likes of then-Philadelphia Mayor Edward G. Rendell (currently the Governor of Pennsylvania), the Pennsylvania House of Representatives, and the City of Philadelphia, between 1985 and 1996. In addition, several witnesses testified regarding Ali’s good works at the sentencing hearing, and 123 individuáis wrote letters to the sentencing judge on behalf of Ali and her children.

¶58A review of the testimony and the letters shows that Ali’s charitable works consisted largely of her financial generosity, a few personal charitable actions, and duties carried out in the course of her employment at the School. The letters praise Spicer for being a law-abiding citizen generally and sometimes helping at the School. Regardless whether we agree with the sentencing Judge’s assessment, we find it within the bounds of reason that he observed that Ali partook in the type of “sustained” and “personal” acts that would warrant a departure under Serafini-Cooper.19

¶59*151But there are few — if any — -attestations of charity of a “sustained” and “personal” nature with regard to Spicer. Most acts described seem “ordinary,” in that they occurred in the course of work with the School or family members and involved no special sacrifice. Thus we cannot conclude that Spicer’s actions here met the Serafi-ni-Cooper definition of “exceptional” or that a departure for good works for either defendant would align easily with the Guidelines’ advice to the contrary or with congressional policy of not privileging prominent citizens by allowing them to avoid prison time.

¶60For charitable works to justify a departure, they must work in tandem with other valid departure factors, the possibility of which is called into question in the discussion below. See United States v. Tomko, 498 F.3d 157, 171-73 (3d Cir.2007) (concluding that the charitable works alone did not justify a downward variance). Accordingly, we urge the Judge on remand to provide detailed explanation as to why the record justifies a departure for either or both of the defendants.

¶61b. No initial intent to defraud

¶62The Judge next expressed his view that defendants were well-meaning individuals who had no intention initially to defraud the Government.20 Section § 2B1.1 of the Guidelines makes no mention of fraud that was not intentional at the outset, no doubt because intent to defraud is an element of the crime itself. In that circumstance, under Koon a court should consider the “structure and theory” of the Guidelines pertaining to fraud and the Guidelines as a whole to determine whether the facts are “sufficient to take the case out of the Guidelines’ ‘heartland.’ ” Serafini, 233 F.3d at 772. The Court here engaged in no such structural or analogic analysis. If it had, it likely would have determined that the structure of § 2B1.1 indicates that this case of fraud was average because this section focuses on the loss amounts accompanying actual convictions for fraud, rather than whether intent to defraud existed at the outset.

¶63The Judge’s quarrel seems to be not with the culpability for fraud — for which there is a jury conviction — but the duration of the fraudulent scheme and thus the appropriate loss amount associated with that scheme. In our view, it is inappropriate to consider intent as a departure factor because of doubts about loss amount, particularly when, as here, the crime of con*152viction already specified an intent element.21 Moreover, there is nothing to suggest that any lack of intent here-even if it were an appropriate ground for departure-is sufficient to take this outside of the heartland under the Koon analysis for unmentioned factors. As such, we cannot affirm the downward departure on the ground of a lack of an initial intent to defraud.

¶64c. Minor role

¶65The Judge determined that Spicer played a minor role in this scheme, further justifying a downward departure. “It’s true,” he stated, “that [Lakiha and Azheem Spicer] did receive the money. But at least with respect to the people who were behind arranging matters so that the matter would continue to flow, even though no classes were being held, I don’t think these defendants are chargeable with that aspect of it.” App. at 163. Minor role is not a departure factor. Instead, it is an adjustment under the Guidelines calculation at step one, which provides for a two-point reduction from the offense level for defendants less culpable than most other participants, but whose role cannot be described as minimal. See U.S.S.G. § 3B1.2 app. note 5.

¶66Applying the Koon analysis, the District Court should have concluded that this factor is “encouraged but already taken into account by the applicable guideline [ie., § 3B1.2],” and calls for a “departure] only if the factor is present to an exceptional degree, or in some other way makes the case different from the ordinary case in which the factor is present.” Serafini, 233 F.3d at 772 (citations omitted). The Court failed to outline whether or how the “minor role” was exceptional. It thus should not have granted a downward departure on this basis.

¶67d. “Exculpatory no” doctrine

¶68Finally, the Judge determined that the “exculpatory no” doctrine warranted a lower sentence for Spicer with respect to her perjury charge. He reasoned that “the perjury [that] she committed was not much different from a simple denial of guilt, and therefore “is not [‘traditionally’] regarded as a punishable perjury.” App. at 160-61, 164 (Spicer’s Sentencing Hr’g).

¶69A downward departure from the Guidelines range for perjury could have been appropriate only if the sentencing court found that the circumstances were such as to remove Spicer’s perjury from the “heartland” of perjury cases. Spicer was convicted under 18 U.S.C. § 1621 of knowingly making a false statement under oath to the grand jury investigating the CCP fraud scheme. When asked whether she “actually [taught] on site at [the School] for every hour for which [she was] paid by the [CCP],” Spicer responded, “Yes.” The jury found that this statement was made under oath, that it was false, and that it was material to whether a fraud against the Government had been committed. This would appear to put it squarely within the § 1621 perjury cases. We fail to see how the fact that Spicer’s lie tended to be *153exculpatory from her perspective moves it beyond the heartland. There are undoubtedly many perjury convictions that arise from false testimony tending to exculpate the defendant.22 A downward departure from the Guidelines range was, accordingly, error.

¶70ijt …

¶71In sum, none of the factors on which the District Judge relied presented a “mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C. § 3553(b)(1). Good works and community service are discouraged factors under the Guidelines, and in any event the Judge has not explained how Ali and/or Spicer’s charitable activities were so exceptional, as we have interpreted that term in Serafini and Fred Cooper, as to warrant a downward departure, particularly if they constitute the sole valid departure factor. Lack of fraudulent intent is unmentioned, but it seems implausible that it should be considered at this stage because intent was an element of the conviction for which defendants are to be sentenced under the Guidelines. Even if lack of intent were to be considered, there is nothing on this record indicating that the sentence for fraud here was outside the heartland of fraud cases. Minor participation has already been taken into account by the Guidelines’ two-level reduction, and there is nothing to suggest that Spicer’s level of culpability is so exceptionally low as to warrant a downward departure. The “exculpatory no” doctrine has no place here, as Spicer perjured herself before the grand jury. For these reasons, we conclude that — -absent further explanation regarding charitable works — the Judge erred in granting downward departures on these grounds.23

¶72C. Step 3: Relevant § 3553(a) Factors

¶73At step three, a sentencing court must “state in open court the reasons for its imposition of the particular sentence,” 18 U.S.C. § 3553(c), particularly where, as here, it chooses to “var[y] significantly from the advisory Guidelines range.... ” United States v. Kononchuk, 485 F.3d 199, 204 (3d Cir.2007). There are “no magic words” that it must invoke when doing so. Cooper, 437 F.3d at 332; see also Rita, 551 U.S. at -, 127 S.Ct. at 2468 (“The appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances.”). Rather, we require courts generally to give “meaningful consideration to *154the relevant § 3553(a) factors,”24Gunter, 462 F.3d at 247 (quoting Cooper, 437 F.3d at 329) (quotation marks and brackets omitted), and “state adequate reasons for a sentence on the record so that this court can engage in meaningful appellate review.” King, 454 F.3d at 196. Where a court varies, and a party has raised cogent “objections with legal merit that the variance is unjustified by the record,” we require the court to “explain why the variance is justified, ... [with] explanations of the relevant sentencing factors [that] go beyond mere formalism.” Kononchuk, 485 F.3d at 204; see also Jackson, 467 F.3d at 841. Though the Supreme Court has not yet ruled on how sentencing judges must approach outside-of-Guidelines range sentences after Booker, it signaled agreement with our approach:

[While within-Guidelines range sentences] will not necessarily require a lengthy explanation, ... [w]here the defendant or prosecutor presents nonfrivo-lous reasons for imposing a different sentence ... the judge will normally go further and explain why he has rejected those arguments.... Where the judge imposes a sentence outside the Guidelines, the judge will explain why he has done so.

¶74Rita, 551 U.S. at -, 127 S.Ct. at 2468.

¶75Here, the Judge’s step-three analysis was flawed. The principal error occurred with respect to factor § 3553(a)(4), which requires meaningful consideration of the advisory Guidelines range for a conviction. We have outlined above why the application of a reasonable-doubt standard to determining the loss amount was legal error, and how that error resulted in an erroneous Guidelines calculation at step one. We have also explained how the Judge erred at step two when he relied on inappropriate or non-extraordinary factors to support his decision to depart downward. With an incorrectly calculated Guidelines range and an improper departure determination, the Judge necessarily was unable meaningfully to consider the recommended Guidelines range as required by § 3553(a)(4). Put simply, the preliminary errors at steps one and two tainted the step three analysis and resulting sentence.25

¶76*155The Judge’s concerns throughout this sentencing process revolved around his view that loss amounts drive sentences in contexts like these, and he apparently did not believe that the amounts alleged by the Government reflect accurately the offense for which defendants are culpable. The principal issue here, then, concerns a situation where a sentencing fact drives the Guidelines sentences, but the Judge has reservations about the strength of the evidence. Here, he doubted that the evidence of loss applied to the two-year duration of the crime alleged by the Government and thus doubted whether the evidence was strong enough to support the final Guidelines-recommended range. Booker afforded judges broad discretion to enter appropriate sentences in consideration of § 3553(a) factors.26 But under Grier it is not within a sentencing judge’s discretion to diverge from applying the preponderance-of-the evidence standard in the initial sentencing calculation at step one or employing appropriate departure factors at step two. In light of the step-one calculation error and the flawed departure analysis at step two, we vacate *156both sentences and remand for resentenc-ing.