United States v. Burgum
2011 U.S. App. LEXIS 1470
| 9th Cir. | 2011Background
- Burgum pled guilty to two counts of armed bank robbery in May 2003 (Anaheim, CA and Scottsdale, AZ).
- District court used an irregular calculation method; plea negotiations anticipated a 108–135 month range based on an earlier draft PSR.
- Correct draft PSR showed criminal history category VI with a range of 188–235 months and $258,280 restitution; final PSR adopted that higher range and restitution.
- Plea negotiations yielded a government recommendation at the low end of the originally calculated range (108–135 months).
- District court ultimately imposed 180 months, citing aggravating factors and Burgum’s likely inability to pay restitution; the court discussed the 258,280 restitution figure.
- Court later held Burgum’s inability to pay restitution was improperly treated as an aggravating factor and vacated/remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court used the guidelines as starting point or the statutory maximum | Burgum (plaintiff) argues the court treated the maximum as baseline | Burgum contends the court started with the guidelines range | No plain error; guidelines starting point proper, with consideration of maximum later |
| Whether the sentence was substantively reasonable | Burgum asserts the 180-month term was unreasonable given 108-month recommendation | U.S. argues sentence supported by offense nature and record | Not substantively unreasonable; court rationally explained departure upward to 180 months |
| Whether reliance on Burgum’s inability to pay restitution was an aggravating factor | Bearden/Parks principles prohibit longer imprisonment for poverty; cannot be aggravating | Court relied on financial status as background factor | Plain error to treat inability to pay as aggravating; remand for resentencing without considering ability to pay |
| Whether Bearden/Bearden-based limits constrain considerations of financial status post-Booker | Socio-economic status cannot drive punishment | Financial background permissible under Booker as background information | Court erred by treating inability to pay as aggravating; remanded accordingly |
| Whether the procedural handling of restitution factors affected the fairness of the proceeding | Aggravating treatment of inability to pay compromised fairness | Non-plain error, other factors justified the sentence | Plain error affecting fairness; remand without considering inability to pay |
Key Cases Cited
- United States v. Carty, 520 F.3d 984 (9th Cir. 2008) (en banc; starting-point vs maximum baseline discussed)
- Gall v. United States, 552 U.S. 38 (U.S. 2007) (established advisory framework post-Booker)
- Bearden v. Georgia, 461 U.S. 660 (U.S. 1983) (cannot imprison for inability to pay a fine absent alternatives)
- Parks v. United States, 89 F.3d 570 (9th Cir. 1996) (prohibits punishment based on poverty; Bearden-based principles)
- Williams v. Illinois, 399 U.S. 235 (U.S. 1970) (cannot impose imprisonment beyond the penalty for indigence)
- Tate v. Short, 401 U.S. 395 (U.S. 1971) (extends Bearden protections to deter imprisonment for inability to pay)
- Menyweather v. United States, 447 F.3d 625 (9th Cir. 2006) (post-Booker consideration of defendant background; socio-economic status allowed as context)
- United States v. Parks, 89 F.3d 570 (9th Cir. 1996) (Bearden/Parks framework for poverty-based sentencing concerns)
- United States v. Valencia-Barragan, 608 F.3d 1103 (9th Cir. 2010) (rebuttal to argument that sentence was unreasonable given offense)
- United States v. Ressam, 593 F.3d 1095 (9th Cir. 2010) (reaffirmed guideline-based starting-point approach)