United States v. Collins Christensen
2013 U.S. App. LEXIS 20696
9th Cir.2013Background
- Christensen pleaded guilty to one count of wire fraud after admitting he diverted investor funds; agreed loss in PSR and plea agreement was $985,994 and he received a 3-level acceptance reduction.
- PSR listed 14 victims whose invested funds were partially diverted; total diverted loss used to calculate Guidelines was $985,994 (Guidelines range 33–41 months).
- The government later produced a spreadsheet showing about $507,805 of investor funds were used for Christensen’s personal expenses; Christensen did not dispute those transactions.
- The district court announced it was considering an upward variance, heard victim impact statements (some describing larger total investment losses or harms not solely tied to diverted funds), and imposed a 60‑month sentence—19 months above the Guidelines high end.
- On appeal Christensen preserved only two objections (double‑counting and alleged discounting of acceptance of responsibility); other procedural objections were reviewed for plain error.
Issues
| Issue | Plaintiff's Argument (Christensen) | Defendant's Argument (Government/District Court) | Held |
|---|---|---|---|
| Whether upward variance impermissibly double‑counts factors already in Guidelines | Upward variance punished harms (loss amount, number of victims, personal use) already accounted for in Guidelines, thus double‑counting | Booker allows courts to give additional weight to factors even if considered in Guidelines; district court may vary where Guidelines inadequately reflect harm | No error; upward variance not impermissible double‑counting and was supported by record (affirmed) |
| Whether district court discounted acceptance of responsibility when imposing variance | Court effectively nullified 3‑level acceptance reduction by imposing a much higher sentence | Court expressly awarded 3‑level reduction and based variance on separate conduct and harms | No clear error; court both awarded the reduction and relied on independent reasons for variance (affirmed) |
| Whether district court erred under Rule 32(i)(3)(B) by failing to resolve PSR factual conflicts about victim losses | Court relied on victim statements and impacts without resolving discrepancies in PSR; Rule 32 obligated district court to resolve if defendant had made specific factual objections | Defendant failed to make specific PSR objections; Rule 32 not triggered and court properly adopted PSR findings | No error (plain‑error reviewed): defendant did not preserve specific PSR objections, so Rule 32 did not apply (affirmed) |
| Whether due process barred reliance on uncorroborated/unsworn victim statements or on allegedly erroneous facts | Sentencing based on unreliable, untested victim statements and impacts not demonstrably tied to diverted funds, violating due process | Federal rules of evidence do not apply at sentencing; court may consider broad information under 18 U.S.C. § 3661; no demonstrable showing of materially false information affecting substantial rights | No due process violation shown; victim statements permissible at sentencing and defendant failed to show prejudice or that sentencing rested on materially false information (affirmed) |
Key Cases Cited
- United States v. Booker, 543 U.S. 220 (2005) (holding Guidelines advisory and permitting consideration of factors already accounted for in Guidelines)
- United States v. Carty, 520 F.3d 984 (9th Cir.) (en banc) (sets out procedural and substantive reasonableness review of sentences)
- Gall v. United States, 552 U.S. 38 (2007) (standards for review of sentencing decisions and requirement to explain variance)
- Irizarry v. United States, 553 U.S. 708 (2008) (no requirement of advance notice for upward variance)
- Nichols v. United States, 511 U.S. 738 (1994) (sentencing courts may consider broad information)
- Pepper v. United States, 562 U.S. 476 (2011) (permitting broad evidence about defendant at sentencing; court may consider rehabilitation and other background)
- United States v. Schlueter, 634 F.3d 965 (7th Cir. 2011) (upward variance affirmed where Guidelines failed to account for egregious victim harm)
- United States v. Armstead, 552 F.3d 769 (9th Cir. 2009) (procedural error definitions including reliance on clearly erroneous facts)
- Easley v. Cromartie, 532 U.S. 234 (2001) (clear‑error standard: "definite and firm conviction" to find mistake)