United States of America v. FRANCIS RAIA On Appeal from the United States District Court for the District of…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________________
No. 20-1033
_______________________
UNITED STATES OF AMERICA,
Appellant
v.
FRANCIS RAIA
_______________________
On Appeal from the United States District Court for the
District of New Jersey
District Court No. 2:18-cr-00657-001
District Judge: The Honorable William J. Martini
__________________________
Argued January 7, 2021
Before: SMITH, Chief Judge, AMBRO and CHAGARES,
Circuit Judges

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(Filed: April 6, 2021)
Mark E. Coyne
Steven G. Sanders ARGUED
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Counsel for Appellant
Jenny Chung
Lee Vartan ARGUED
Chiesa Shahinian & Giantomasi
One Boland Drive
West Orange, NJ 07052
David M. Dugan
Chiesa Shahinian & Giantomasi
11 Times Square
31st Floor
New York, NY 10036
Alan L. Zegas
Third Floor West
60 Morris Turnpike
Summit, NJ 07901
Counsel for Appellee

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__________________________
OPINION OF THE COURT
_________________________
SMITH, Chief Judge.
A jury found Appellee Francis Raia guilty of conspiracy to
bribe voters. At sentencing, the District Court calculated
Raia’s total offense level under the Sentencing Guidelines to
be 14, which with Raia’s criminal history category yielded a
Guidelines range of 15–21 months’ imprisonment. The Court
then stated it would vary to offense level 8—zero to six
months—and sentenced Raia to a three-month term of
imprisonment. The Government appeals the sentence claiming
procedural error, arguing that the District Court miscalculated
the Guidelines offense level by not applying two sentencing
enhancements: a four-level aggravating role enhancement
under U.S.S.G. § 3B1.1(a) and a two-level obstruction of
justice enhancement under § 3C1.1.
Because the District Court erred in its interpretation of the
Guidelines, we will vacate the sentence and remand for
resentencing. The Government requests that we remand with
instructions that the District Court apply both the four-level
aggravating role enhancement and the two-level obstruction of
justice enhancement. But because the record does not clearly
support the application of either enhancement, we will leave it
to the District Court to make whatever factual findings are
necessary to determine whether either or both of the
enhancements apply.

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I. FACTS AND PROCEDURAL HISTORY
A. Indictment
In 2013, Raia ran for election to a city council seat in
Hoboken, New Jersey. In that same election, Raia also
supported—through a political action committee (“PAC”) he
chaired—a ballot referendum to weaken local rent control
laws. Raia’s campaign strategy was to solicit voters residing
in the Hoboken Housing Authority to vote by mail. To that
end, Raia’s PAC cut $50 checks to hundreds of these voters.
Raia claimed that the voters who received the $50 did so in
exchange for get-out-the-vote work they did for Raia’s
campaign, such as wearing campaign-branded t-shirts and
handing out campaign literature. Raia lost the election.
An investigation supported a different reason for Raia’s
campaign’s vote-by-mail strategy and his PAC’s use of $50
checks: voters were paid in exchange for casting their mail-in
ballots in favor of Raia’s slate and the rent control referendum.
In short, the Government believes that “Raia instructed his
campaign workers—including [1] Matthew Calicchio, [2]
Michael Holmes, [3] Freddie Frazier, [4] Lizaida Camis, [5]
Dio Braxton, and [6] Ana Cintron”—to bribe voters. Gov’t Br.
3. Under the Government’s version of events, Raia directed
his campaign workers to collect and bring back unsealed mail-
in ballots to his club in Hoboken so that he could verify
whether each bribed voter cast his or her ballot as directed
before having a $50 check issued to the voter from his PAC.
To conceal the nature of the bribes, Raia created a cover story
that each voter who received a $50 check did get-out-the-vote

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work for Raia’s campaign, and he made each voter sign a
declaration to support that narrative.
On October 31, 2018, Raia and co-defendant Braxton were
charged with one count of conspiracy to commit an offense
against the United States in violation of 18 U.S.C. § 371, with
the underlying offense being the use of the mails to facilitate
any “unlawful activity” in violation of the Travel Act, 18
U.S.C. § 1952(a)(3). The Travel Act defines “unlawful
activity” to include state bribery offenses. See § 1952(b)(2).
Paying for votes is illegal bribery under New Jersey law. See
N.J.S.A. §§ 2C:27-2(a) and 19:34-25(a).
By the time of Raia’s trial in June 2019, most of his co-
conspirators had reached agreements with the Government.
Camis pleaded guilty, pursuant to a plea agreement, to a
separate indictment on November 8, 2018. Calicchio pleaded
guilty, pursuant to a plea agreement, to an information against
him on May 7, 2019. Raia’s co-defendant Braxton pleaded
guilty, pursuant to a plea agreement, on May 30, 2019.
Holmes, Frazier, and Cintron were not charged. Holmes and
Frazier each entered into a non-prosecution agreement with the
Government.
B. Trial
A jury trial was held before Judge Martini in the District of
New Jersey. The Government called, among other witnesses,
Calicchio, Holmes, and Frazier. Each testified that Raia
directed himself and others, including the three non-testifying
co-conspirators, to bribe voters.

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Raia took the stand in his own defense. The gist of Raia’s
testimony, and overall defense theory, was that the campaign
workers acted independently to bribe voters without any
direction from Raia, and that the cooperating witnesses’
testimony to the contrary were just lies told to stay on the good
side of Government prosecutors. Under oath, Raia testified,
among other things, that he “never bought a vote in [his] life”
and that he did not instruct Camis, Cintron, or Braxton to bribe
voters. App. 753; see App. 737–41.
The jury returned a verdict of guilty as to the one count of
conspiracy charged and made no special findings.
C. Sentencing
Judge Martini held a sentencing hearing on December 2,
2019. We summarize the District Court’s rulings on each
enhancement the Government sought to apply before turning
to the rulings on Raia’s motion for a downward departure or
variance.
1. Aggravating Role Enhancement
The Government, in accord with the Probation Office’s
recommendation in the Presentence Investigation Report,
argued that a four-level aggravating enhancement under
U.S.S.G. § 3B1.1(a) applied because Raia was an “organizer
or leader” of the voter bribery scheme and the scheme involved
five or more participants. The District Court stated that
applying the four-level enhancement would be “extreme” and
noted there was no testimony at trial that Raia ever imposed
consequences on his campaign workers for not following his

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directives to bribe voters. App. 1092. Raia had advanced this
same “no consequences” theory in his sentencing
memorandum, arguing that without any evidence of threatened
consequences for disobedience he could not be an “organizer,
leader, manager or supervisor” of another person, and thus no
enhancement under § 3B1.1 was applicable. See App. 1019–
21 (citing United States v. DeGovanni, 104 F.3d 43, 45–46 (3d
Cir. 1997)).
But the District Court declined to follow Raia’s suggestion
that no aggravating role enhancement applied. Instead, it
determined that the two-level aggravating role enhancement in
subsection (c) “may be applicable” because Raia was the
beneficiary of the conspiracy. App. 1095; see also App. 1094
(positing that subsection (c) “at best . . . might apply”). The
Court did not make any finding as to whether Raia was an
“organizer, leader, manager, or supervisor” of the conspiracy.
Nor did it make an explicit finding as to the number of
participants in the conspiracy.
2. Obstruction of Justice Enhancement
The Government also argued that a two-level obstruction
of justice enhancement under § 3C1.1 applied because Raia
committed perjury at trial. “A defendant who testifies under
oath at trial commits perjury within § 3C1.1 if he ‘[1] gives
false testimony [2] concerning a material matter [3] with the
willful intent to provide false testimony, rather than as a result
of confusion, mistake, or faulty memory.’” United States v.
Napolitan, 762 F.3d 297, 312 (3d Cir. 2014) (quoting United
States v. Dunnigan, 507 U.S. 87, 94 (1993)). The Government
maintained that Raia’s testimony to the effect that he had

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“[n]ever engaged in vote-buying or instructed particular
campaign workers to bribe voters” was necessarily false
because it was irreconcilable with the guilty verdict returned
by the jury.1 App. 996, 1002–03 (Gov’t sentencing memo.).
Raia primarily contested the falsity element, positing that the
jury could have convicted him while believing that he did not
instruct his campaign workers to bribe voters.
The District Judge stated he was “not comfortable” with
applying an obstruction of justice enhancement in Raia’s case.
App. 1096 (Sentencing Hr’g Tr. at 26:20–22). He believed he
was being asked to find Raia’s testimony false based on the
testimony of the cooperating witnesses—Holmes, Frazier, and
Calicchio. The Court expressed hesitancy in crediting the
testimony of the cooperating witnesses because each had either
received a non-prosecution agreement or lied during the course
of the proceedings, and there was no other evidence clearly
corroborating their testimony regarding the instruction of
campaign workers.
The District Court ultimately declined to apply the
obstruction of justice enhancement. However, it did not make
specific findings as to any of the elements of perjury—falsity,
materiality, and willfulness.
1 The Government also argued that Raia gave false testimony
on two other points. On appeal, the Government argues for the
obstruction of justice enhancement based solely on Raia’s
testimony that he did not instruct his campaign workers to
bribe voters. See Gov’t Br. 20–21.

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3. Downward Departure and Variance
In his sentencing memorandum, Raia conceded that his
base offense level was 12, which would result in a Guidelines
range of 10–16 months’ imprisonment. But he sought a
downward variance—down to a non-custodial sentence—on
account of both his medical needs and his history of
community service. Raia also characterized these factors as
justifications for a downward departure under U.S.S.G.
§§ 5H1.4 (Physical Condition) and 5H1.11 (Charitable
Service/Good Works). The Government opposed any
reduction in Raia’s sentencing exposure and asserted that Raia
should be sentenced to 27 months’ imprisonment—the bottom
of his Guidelines range if the total offense level were 18.
The District Court stated that it would grant Raia’s motion
for a downward departure based on Raia’s “extraordinary”
charitable and public service that showed “true caring, more
than [Judge Martini had] ever observed.” App. 1083
(Sentencing Hr’g Tr. 13:7–13); see also id. at 1092 (Sentencing
Hr’g Tr. 22:1–4) (“[A]n appropriate departure will be applied
for that conduct.”). The Court rejected Raia’s motion for a
departure based on his physical condition because Raia’s
health problems were neither extraordinary nor untreatable by
the Bureau of Prisons.
Only after analyzing the applicability of the two
enhancements and ruling on the departure motions did the
District Court announce a total offense level under the
Guidelines: 14. The District Court then expressly considered
factors under 18 U.S.C. § 3553—including Raia’s
extraordinary community service, his physical condition, and

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the need for general deterrence—and announced that “[f]or the
record, I will vary down to a Level 8, Offense Level 8, which
is a guideline of zero to six months.” App. 1119 (Sentencing
Hr’g Tr. 49:3–4). The Court then sentenced Raia to a three-
month term of imprisonment with a one-year term of
supervised release. This appeal followed.2
II. ANALYSIS
The Government argues that the District Court erred in its
calculation of Raia’s Guidelines total offense level and
sentencing range by declining to apply a four-level aggravating
role enhancement and a two-level obstruction of justice
enhancement. We review a district court’s factual findings
relevant to Guidelines enhancements for clear error and we
exercise plenary review over a district court’s interpretation of
the Guidelines. United States v. Grier, 475 F.3d 556, 570 (3d
Cir. 2007) (en banc). We will address the applicability of each
enhancement in turn. Raia, in the alternative, argues that any
errors in the Guidelines calculation were harmless because it is
highly likely that the District Court would impose the same
sentence under the correct Guidelines range. We will address
the harmless error issue after discussing the two enhancements.
A. Aggravating Role Enhancement
2 The District Court had jurisdiction under 18 U.S.C. § 3231.
The Government timely appealed Raia’s sentence and the
Solicitor General approved the prosecution of the appeal. We
have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(b).

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Section 3B1.1 of the Guidelines provides for an
enhancement based on the role the defendant played in
committing the offense. There are three possible offense-level
increases depending on both the responsibility of the defendant
and the scope of the criminal activity: (a) four levels if the
defendant was an “organizer or leader” of the criminal activity
and the crime involved five or more participants or was
otherwise extensive; (b) three levels if the defendant was
merely a “manager or supervisor” not rising to the level of
“organizer or leader” and the crime involved five or more
participants or was otherwise extensive; and (c) two levels if
the defendant was any one of those roles but the criminal
activity involved fewer than five participants and was not
otherwise extensive. § 3B1.1(a)–(c). The Guidelines do not
define “organizer,” “leader,” “manager,” or “supervisor.”
Commentary to § 3B1.1 provides a non-exhaustive list of
seven factors that a court should consider when distinguishing
an organizer or leader from a manager or supervisor, including
“the recruitment of accomplices,” “the claimed right to a larger
share of the fruits of the crime,” “the degree of participation in
planning or organizing the offense,” and “the degree of control
and authority exercised over others.” Id., App. Note 4; see also
United States v. Ortiz, 878 F.2d 125, 127 & n.2 (3d Cir. 1989)
(“The commentary to the guidelines of course is intended only
to suggest various factors to be weighed.”).
Here, the District Court applied a two-level enhancement
under § 3B1.1(c) despite the uncontested fact that the voter
bribery scheme involved five or more participants. This was
error, as the text of the Guidelines makes plain. “A trial court’s
only options in cases involving a criminal activity with five or

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more participants are . . . a four-level enhancement under
§ 3B1.1(a), a three-level enhancement under § 3B1.1(b), or no
enhancement at all.” United States v. Kirkeby, 11 F.3d 777,
778–79 (8th Cir. 1993). Raia concedes this error, arguing only
that a one-level increase in the total offense level would be
harmless error. See Oral Arg. Recording at 58:42–59:19. For
reasons discussed infra Section II.C, we are not persuaded by
Raia’s arguments of harmless error. So we will vacate Raia’s
sentence and remand for resentencing.
Still, the Government seeks more than just a do-over. It
asks that our remand include instructions that the District Court
apply the four-level aggravating role enhancement under
§ 3B1.1(a). We decline to cabin the District Court’s further
consideration in that manner as it is not clear that “‘the record
permits only one resolution of the factual issue.’” Bedrosian v.
I.R.S., 912 F.3d 144, 152 (3d Cir. 2018) (quoting Sprint/United
Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 387 n.3 (2008)).
For the aggravating role enhancement to apply, “the
evidence must show that [the defendant] exercised some
degree of control over at least one other person involved in the
offense.” United States v. Fountain, 792 F.3d 310, 321 (3d Cir.
2015) (citing United States v. Helbling, 209 F.3d 226, 243–44
(3d Cir. 2000)). But once it is established that the defendant
exercised some degree of control over another, the sentencing
court must still determine whether the defendant was merely a
“manager or supervisor”—meriting a three-level enhancement
where, as here, the criminal activity involved five or more
participants—or was an “organizer or leader,” meriting a four-
level enhancement.

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The record before us does not point to only one
determination of Raia’s role in the offense. This is
unsurprising given that the inquiry into a defendant’s role
involves weighing numerous factors. Here, however, there
was a dearth of findings by the District Court.3 The District
3 Oddly, both parties suggest that by imposing the two-level
enhancement, the District Court implicitly found that Raia was
a “manager or supervisor” but not an “organizer or leader.”
The application of the two-level enhancement does not support
such an implicit finding because the enhancement applies to a
defendant who was “an organizer, leader, manager, or
supervisor” of a non-extensive criminal activity. § 3B1.1(c).
The parties theorize, roughly, that the District Court must have
found Raia to be a “manager or supervisor” but erroneously
went “down” one level too far to the two-level enhancement,
possibly because it viewed Raia as having exercised a small
degree of control over others. But the District Court’s
references to control do not foreclose other possibilities.
Perhaps the Court found Raia to be an “organizer or leader” on
the balance of factors but (erroneously) applied only a two-
level enhancement because the control factor was particularly
weak. Or perhaps the Court thought Raia was not even a
“manager or supervisor” (meriting no enhancement) because
there was no “evidence that . . . he was the boss saying to
people: You have to go do this,” but applied a two-level
enhancement because Raia was the beneficiary of the
conspiracy (which would also be an error). App. 1094
(Sentencing Hr’g Tr. 23:17–18); see id. at 1095 (“[L]ook – he
was the beneficiary of this conspiracy.”). This indeterminacy
prevents us from concluding that the District Court made an

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Court did find that there was no “evidence that . . . [Raia] was
the boss saying to people: You have to go do this”—a finding
which the Government argues is contradicted by the jury
verdict. App. 1094 (Sentencing Hr’g Tr. 23:17–18). But
whether Raia issued instructions to campaign workers to bribe
voters is not dispositive. Looking, for example, to some of the
factors in the Guidelines commentary, there is no finding as to
who recruited the co-conspirators into the voter bribery
scheme, nor is there a finding as to Raia’s degree of planning
the scheme. It is true that “[t]here need not be evidence of
every factor before a defendant is found to be a ‘leader or
organizer.’” Ortiz, 878 F.2d at 127. But the record here is not
developed enough to enable us to determine that in the first
instance.
On remand, the District Court should make explicit
findings as to the number of participants in the criminal activity
and whether Raia exercised some degree of control over
another participant. The Court should then make a finding as
to whether Raia was an “organizer or leader” or a mere
“manager or supervisor” of the criminal activity, weighing all
relevant factors as appropriate.
B. Obstruction of Justice Enhancement
In United States v. Dunnigan, the Supreme Court held that
whenever a defendant challenges the application of a § 3C1.1
enhancement based on perjured testimony, “the trial court must
make findings to support all the elements of a perjury violation
implicit finding that Raia was a “manager or supervisor” but
not an “organizer or leader.”

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in the specific case.” 507 U.S. 87, 97 (1993). We have held
that this Dunnigan rule is “not implicated when the
enhancement is being rejected.” Napolitan, 762 F.3d at 314.
Nevertheless, a reasoned and rational justification is necessary
to facilitate meaningful appellate review. Id. So, in Napolitan
we exercised our supervisory power to hold that a district court
must make the same explicit factual findings as to each element
of perjury when the Government seeks to have the
enhancement applied and the district court declines to apply it.
762 F.3d at 314–15.
Here, the District Court declined, over the Government’s
objection, to apply the enhancement under § 3C1.1. Yet,
despite Raia’s suggestion to the contrary, the District Court did
not clearly express which elements of perjury the Government
had failed to prove. While Raia is correct that the Court’s
discussion of the enhancement was longer than the single
sentence at issue in Napolitan, 762 F.3d at 312 (“I don’t know
that the record supports it”), the Court did not even mention the
specific elements of perjury. In declining to apply the
obstruction of justice enhancement, it did indeed state that
there was no email4 “directly contradictory” to Raia’s
4 The Government makes much of the District Court’s
reference to a lack of corroborating evidence, claiming that the
Court “imposed a corroboration requirement” not found in the
Guidelines. Gov’t Br. 24. We see no such imposition. While
there is no requirement in § 3C1.1 that the falsity of a
defendant’s testimony be corroborated by documentary
evidence or other testimony, the Court remained free to
consider the existence of corroborating evidence in

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testimony, which suggests that falsity was an unproven
element. App. 1096. But it is not clear from the record that
the Court declined to apply the enhancement because a
preponderance of the evidence failed to show that Raia made
false statements, or, instead, because it was “not comfortable”
applying a two-level enhancement for policy reasons. App.
1096. (The latter would be a procedural error. See Napolitan,
762 F.3d at 312–13, 315 (holding the enhancement must be
applied if the elements of perjury are satisfied notwithstanding
policy concern regarding the right of a defendant to testify in
his defense).)
Because the District Court did not make explicit findings as
to the elements of perjury, we cannot fulfill our obligation to
meaningfully review the determination of Raia’s offense level
under the Guidelines. This requires us to remand. And, as
discussed infra Section II.C, a two-level miscalculation of the
Guidelines offense level would not be a harmless error.
Here too, the Government seeks more than a remand for
sufficient findings. It asks that we remand with instructions
that the District Court apply the enhancement because all the
elements of perjury are clear from the record. As an initial
matter, this remedy would be unusual regardless of the record’s
clarity. The Government points us to no precedential case—
nor could we find one—where our Court directed that an
obstruction of justice enhancement be applied when the district
court did not apply the enhancement. See Oral Arg. Recording
at 6:11–7:13 (citing United States v. Yaniro, 303 F. App’x 100,
determining whether Raia’s testimony was false by a
preponderance of evidence.

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103–04 (3d Cir. 2008) (not precedential) (affirming district
court’s application of the enhancement for perjury based on
defendant’s testimony at trial when district court erroneously
applied enhancement for defendant’s post-arrest statements)).
Substantively, the Government’s argument for falsity relies
entirely on the jury’s guilty verdict. In evaluating whether a
defendant’s testimony is false, “‘the sentencing court [is
bound] to accept the facts necessarily implicit in the verdict.’”
Napolitan, 762 F.3d at 315 (quoting United States v. Boggi, 74
F.3d 470, 479 (3d Cir. 1996)). The Government argues that
the jury’s guilty verdict implies that Raia instructed his
campaign workers to bribe voters, so his testimony to the
contrary was necessarily false.
“When a case involves a general verdict, establishing that
the verdict necessarily determined any particular issue is
extremely difficult.” United States v. Bailin, 977 F.2d 270, 282
(7th Cir. 1992), cited by United States v. McLaughlin, 126 F.3d
130, 138 (3d Cir. 1997). Our cases affirming the application
of the obstruction of justice enhancement for perjury based on
facts implicit in a guilty verdict have involved testimony that
all but stated an element of the offense. For example, in United
States v. Gray, we affirmed the application of an enhancement
for perjury when the defendant “repeatedly testified that he did
not have a gun” but was convicted of unlawful possession of a
firearm by a felon. 942 F.3d 627, 630, 632–33 (3d Cir. 2019).
It is a logical implication that a defendant who testified that he
did not possess something but who is then convicted of
possession of that thing lied on the stand. See also United
States v. Johnson, 302 F.3d 139, 144, 153–54 (3d Cir. 2002)
(enhancement not clearly erroneous for defendant convicted of

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possession with intent to distribute drugs when defendant
testified that “none of the drugs found in his coat, in the taxi,
and in the bags in [woman’s] bedroom belonged to him”);
Boggi, 74 F.3d at 479 (enhancement not clearly erroneous for
defendant union representative convicted of, inter alia,
unlawful receipt of money or thing of value by a union official
in violation of 29 U.S.C. § 186 where defendant on the witness
stand “deni[ed] acceptance or extortion of money and other
things of value.”).
But Raia was charged with conspiracy to commit voter
bribery, not simple possession. The jury was instructed that
the Government had to prove the existence of an agreement to
achieve the object of the conspiracy, but that the agreement or
mutual understanding could have been spoken or unspoken.
App. 903. And the jury was instructed that the Government
did not have to prove that Raia himself committed any overt
acts to further the conspiracy. App. 906. In other words, the
jury did not need to believe that Raia instructed his campaign
workers to bribe voters in order to find him guilty of
conspiracy. For example, the jury could have found Raia
guilty of conspiracy for tacitly agreeing to further the
conspiracy without telling the campaign workers to bribe
voters.
The Government’s rejoinder is that although the jury
logically could have found Raia guilty without believing that
he instructed campaign workers to bribe voters, neither the
Government nor Raia asked the jury to so finely parse the
evidence. Instead, the case was tried to the jury as a binary
choice: believe either the Government’s witnesses or Raia. So,
since the jury found Raia guilty, it must have believed the

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Government’s account. Yet a jury is always free to believe
only part of a defendant’s testimony. See, e.g., App. 913 (jury
instructions) (“You may believe everything a witness says or
only a part of it or none of it.”). A general verdict does “not
disclose whether the jury rejected all or only part of
[defendant’s] testimony.” McLaughlin, 126 F.3d at 140 n.11.
Whether a fact is “necessarily implicit in the verdict” is a
different inquiry from determining which facts the jury most
likely believed.
Because the fact that Raia instructed his campaign workers
to bribe voters is not necessarily implicit in the verdict, we
cannot say that Raia’s testimony was false. We will not,
therefore, direct the application of the obstruction of justice
enhancement.5 On remand, the Government may attempt to
prove by a preponderance of the evidence that Raia instructed
campaign workers to bribe voters—or any other fact contrary
to his testimony—with testimonial or documentary evidence.
C. Harmless Error
The District Court committed multiple errors in the
calculation of the Guidelines offense level that normally
warrant a remand for resentencing. Yet Raia submits that any
errors committed by the District Court are harmless in light of
the three-month sentence imposed. Procedural errors at
sentencing—including miscalculations of the Guidelines—are
5 Because we hold that the verdict here does not necessarily
imply that Raia’s testimony regarding instruction of campaign
workers was false, we do not address the parties’ arguments as
to willfulness.

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indeed subject to harmless error review. See United States v.
Zabielski, 711 F.3d 381, 386 (3d Cir. 2013). “In the context of
a Guidelines calculation error,” harmless error “means that the
record must demonstrate that there is a high probability ‘that
the sentencing judge would have imposed the same sentence
under a correct Guidelines range, that is, that the sentencing
Guidelines range did not affect the sentence actually
imposed.’” Id. at 387 (quoting United States v. Langford, 516
F.3d 205, 216 (3d Cir. 2008)). “‘High probability’ requires
that the court possess a ‘sure conviction’” that the sentence
would be the same, not merely an assumption that “‘places us
in the zone of speculation and conjecture.’” Langford, 516
F.3d at 215 (quoting United States v. Zehrbach, 47 F.3d 1252,
1265 (3d Cir. 1995)), 218 (quoting United States v. Conlan,
500 F.3d 1167, 1170 (10th Cir. 2007)).
The proponent of maintaining the sentence—here, Raia—
has the burden of persuading a court on appeal that the district
court would have imposed the same sentence under the correct
Guidelines range. See United States v. Smalley, 517 F.3d 208,
212 (3d Cir. 2008). It is a “rare case where we can be sure that
an erroneous Guidelines calculation did not affect the
sentencing process and the sentence ultimately imposed.”
Langford, 516 F.3d at 219 (emphasis added). Our Court has
emphasized two ways a party might meet its heavy burden and
fall into the “rare case” category.
First, we may be sure that a Guidelines miscalculation is
harmless where the district court explicitly states that it would
have imposed the same sentence even under the correct
Guidelines range. Cf. Zabielski, 711 F.3d at 387–88 (“[I]t will
usually be difficult for an appellate court to conclude with

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sufficient confidence that the same sentence would have been
imposed absent a clear statement to that effect by the
sentencing judge.”); Molina-Martinez v. United States, 136 S.
Ct. 1138, 1347 (2016) (“Where, however, the record is silent
as to what the district court might have done had it considered
the correct Guidelines range, the court’s reliance on an
incorrect range in most instances will suffice to show an effect
on the defendant’s substantial rights.”). However, even an
explicit statement that the same sentence would be imposed
under a different Guidelines range is insufficient if that
alternative sentence is not also a product of the entire three-
step sentencing process. See Smalley, 517 F.3d at 215; United
States v. Wright, 642 F.3d 148, 154 n.6 (3d Cir. 2011) (vacating
and remanding for resentencing when district court’s statement
in the alternative did not explain why upward departure or
variance that would have resulted in same sentence was
merited); United States v. Hester, 910 F.3d 78, 91–92 (3d Cir.
2018) (vacating and remanding for resentencing despite
“explicit statement [from the district court] that it intended to
rectify a likely Guidelines miscalculation when imposing the
sentence”).
Second, we have held a Guidelines miscalculation to be
harmless where the district court “chose to disregard the
Guidelines as too severe in such a way that we can be certain
that the miscalculation had no effect on the sentence imposed.”
Langford, 516 F.3d at 218 (cleaned up); see also Zabielski, 711
F.3d at 389 (holding error was harmless on these grounds). Of
course, we cannot be sure that a Guidelines error is harmless
simply because the sentence imposed is the result of a variance
outside both the correct and incorrect Guidelines ranges. See

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United States v. Welshans, 892 F.3d 566, 573 (3d Cir. 2018)
(no harmless error where improper application of enhancement
increased offense level from 37 to 39, yet district court
imposed sentence after varying downward to offense level 34);
United States v. Douglas, 885 F.3d 124, 136 (3d Cir. 2018) (en
banc) (remanding for resentencing where improper application
of enhancement increased Guidelines range from 360 months
to life imprisonment (level 42) to life imprisonment (level 43),
yet district court varied downward to impose sentence of 240
months). In Zabielski, one of the rare cases where we
determined that an erroneous calculation was harmless, we
stressed that “what is most important is that the sentencing
judge understands the facts . . . and incorporates them into a
just sentence” and that it was the “District Court’s detailed
findings of fact and explanation” that convinced us that the
same sentence would be imposed on remand. 711 F.3d at 388.
Raia does not attempt to satisfy his burden under the
first rationale because the District Court provided no explicit
statement that it would have sentenced Raia to three months’
imprisonment regardless of the offense level. Instead, Raia
relies on the second rationale and argues that the departures
and variances that the District Court employed to reach offense
level 8 were completely disconnected from the Guidelines
range calculation. In other words, the Guidelines did not
inform the District Court’s sentence at all because the Court
deemed them to be too punitive. Raia cannot satisfy his burden
under this second rationale either.
The first obstacle Raia faces is that the District Court
did not follow the post-Booker three-step sentencing process,
which requires the sentencing court to calculate, at step one, a

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Guidelines offense level or range inclusive of any
enhancements before, at step two, stating on the record how
much any departure affected the offense level or range. See,
e.g., United States v. Fumo, 655 F.3d 288, 308–09 (3d Cir.
2011) (citing United States v. Gunter, 462 F.3d 237, 247 (3d
Cir. 2006)). The District Court’s elision of the two steps leaves
us uncertain as to the extent to which the Court either departed
or varied. After stating that it would apply a departure for
Raia’s charitable works, the District Court announced an
offense level of 14—consistent with a base offense level of 12
plus a two-level enhancement under § 3B1.1(c) plus no
enhancement for obstruction of justice and no departures. The
next offense level the Court announced was offense level 8,
which the Court reached after “vary[ing] down.” App. 1119.
This chain of events admits at least three interpretations: 1)
there was no departure—or an erroneous departure of zero
offense levels—despite the District Court’s statement that it
would apply one; 2) there was no variance because the Court
misspoke when announcing an offense level of 8; or 3) there
was a downward departure of an unknown, non-zero number
of levels applied to the offense level from which the Court then
varied downward to level 8. These various possibilities make
it far from certain, if not improbable, that the Court would
reach the same total offense level were either enhancement
applied.
The second obstacle confronting Raia is that the District
Court did not provide “detailed findings of fact and
explanation” in its analysis of the Guidelines. With respect to
the aggravating role enhancement, for example, the Court did
not demonstrate that it understood all the factors supporting

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and cutting against finding Raia to be an organizer, leader,
manager, or supervisor. Thus, unlike the variance applied in
Zabielski, we cannot tell if the District Court “grasp[ed] the[]
significance” of these factors and imposed the three-month
sentence regardless of the Guidelines enhancements. 711 F.3d
at 388.
Finally, Raia points to the compassionate release he
obtained during the pendency of this appeal as evidence that
the District Court is highly likely to impose the same sentence
on remand. On May 7, 2020, Judge Martini granted Raia’s
motion for compassionate release pursuant to 18 U.S.C.
§ 3582(c)(1)(A)(i) and allowed Raia to serve the remainder of
his sentence under home confinement (but did not reduce the
length of Raia’s sentence). See Order, United States v. Raia,
No. 2:18-cr-00657-WJM (D.N.J. May 7, 2020), ECF No. 91.
But the question before the Court on the compassionate release
motion—i.e, whether Raia’s sentence should be reduced
because of extraordinary and compelling reasons—did not go
to the reasons that Raia was sentenced in the first place.
Because there are no detailed findings of fact to review
nor an explanation as to how the District Court reached the
sentence it imposed, we do not regard this as the “rare case
where we can be sure that an erroneous Guidelines calculation
did not affect the sentencing process and the sentence
ultimately imposed.” Langford, 516 F.3d at 219. Thus, the
error was not harmless and we will remand so the District
Court may correct the procedural errors involving the two
enhancements.
III. CONCLUSION

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The District Court made multiple errors in its interpretation
of the Guidelines that affect the calculation of Raia’s offense
level. Raia has not met his heavy burden to show that these
errors are harmless. We will vacate Raia’s sentence and
remand to the Court for resentencing.
On remand, it should proceed under the three-step post-
Booker sentencing process, applying any enhancements before
ruling on motions for departure. In deciding whether to apply
the aggravating role enhancement, the Court should make
explicit findings as to the number of participants in the criminal
activity, whether Raia exercised some degree of control over
another participant, and whether he was a “manager or
supervisor” or “organizer or leader.” In deciding whether to
apply the obstruction of justice enhancement for perjury, the
Court must “either make findings to support all the elements of
a perjury violation, or clearly express which elements it
believes have not been proven.” Napolitan, 762 F.3d at 315.

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