UNITED STATES of America, Plaintiff-Appellant, v. Steven Dwight HAMMOND, Defendant-Appellee. United States of America, Plaintiff-Appellant, v. Dwight Lincoln Hammond, Jr., Defendant-Appellee.
Nos. 12-30337, 12-30339
United States Court of Appeals, Ninth Circuit
Submitted Dec. 3, 2013. Filed Feb. 7, 2014.
742 F.3d 880
* The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
The decision of the district court is REVERSED and the case is remanded for further proceedings consistent with this opinion.
Kelly A. Zusman, Assistant United States Attorney; S. Amanda Marshall, United States Attorney, District of Oregon, Portland, OR, for Plaintiff-Appellant.
Lawrence H. Matasar, Lawrence Matasar, P.C., Portland, OR, for Defendant-Appellee Steven Dwight Hammond.
Marc D. Blackman and Kendra M. Matthews, Ransom & Blackman, LLP, for Defendant-Appellee Dwight Lincoln Hammond, Jr.
Before: RICHARD C. TALLMAN and CARLOS T. BEA, Circuit Judges, and STEPHEN J. MURPHY, III, District Judge.**
OPINION
MURPHY, District Judge:
The government appeals the sentences of Steven and Dwight Hammond, whom a jury convicted of maliciously damaging the real property of the United States by fire, in violation of
I. Background
The Hammonds have long ranched private and public land in Eastern Oregon. Although they lease public land for grazing, the Hammonds are not permitted to burn it without prior authorization from the Bureau of Land Management. Government employees reminded Steven of this restriction in 1999 after he started a fire that escaped onto public land.
But in September 2001, the Hammonds again set a fire on their property that spread to nearby public land. Although the Hammonds claimed that the fire was designed to burn off invasive species on their property, a teenage relative of theirs testified that Steven had instructed him to drop lit matches on the ground so as to “light up the whole country on fire.” And the teenager did just that. The resulting flames, which were eight to ten feet high, spread quickly and forced the teenager to shelter in a creek. The fire ultimately consumed 139 acres of public land and took the acreage out of production for two growing seasons.
In August 2006, a lightning storm kindled several fires near where the Hammonds grew their winter feed. Steven responded by attempting back burns near the boundary of his land. Although a burn ban was in effect, Steven did not seek a waiver. His fires burned about an acre of public land.
While the jury deliberated on the remaining charges, the parties reached an oral agreement and presented it to the court.1 The government told the court that the Hammonds had agreed to “waive their appeal rights“—except with respect to ineffective assistance of counsel claims—“and accept the verdicts as they‘ve been returned thus far by the jury.” In return, the government promised to “recommend” that Steven‘s sentences run concurrently and agreed that the Hammonds “should remain released pending the court‘s sentencing decision.”
The Hammonds agreed with the government‘s summary of the plea agreement. Their attorneys also added that the Hammonds wanted the “case to be over” and hoped to “bring th[e] matter to a close.” According to the defense, the “idea” of the plea agreement was that the case would “be done with at the sentencing” and that the “parties would accept ... the sentence that‘s imposed.” The district court then accepted the plea agreement and dismissed the remaining charges.
At sentencing, the court found that the guidelines range for Steven was 8 to 14 months and for Dwight was 0 to 6 months. Yet their convictions carried five-year minimum terms of imprisonment. See
The court, however, concluded that the Eighth Amendment required deviation from the statutory minimum. Observing that Congress probably had not intended for the sentence to cover fires in “the wilderness,” the court reasoned that five-year sentences would be grossly disproportionate to the severity of the Hammonds’ offenses. The court then sentenced Steven to two concurrent terms of twelve months and one day of imprisonment and Dwight to three months of imprisonment.
II. Standard of Review
We review both a waiver of appeal and the legality of a sentence de novo. See United States v. Bibler, 495 F.3d 621, 623 (9th Cir.2007) (waiver of appeal); United States v. Dunn, 946 F.2d 615, 619 (9th Cir.1991) (legality of a sentence).
III. Discussion
A. Waiver
A threshold issue is whether the government waived its right to appeal the Hammonds’ sentences in the plea agreement or otherwise failed to preserve its
The Hammonds first argue that the government waived its right to appeal in the plea agreement. Because a plea agreement is partly contractual in nature, we interpret it from the perspective of a reasonable defendant. See United States v. De la Fuente, 8 F.3d 1333, 1337-38 (9th Cir.1993). But there is no ambiguity here to interpret. A reasonable defendant would expect that the absence of any statements on the government‘s right to appeal simply means that no waiver was contemplated. See United States v. Anderson, 921 F.2d 335, 337-38 (1st Cir.1990).
The Hammonds respond by arguing that the statements of defense counsel show that an all-around waiver of appellate rights was the sine qua non of the plea agreement. The record, however, belies that assertion. The statements made by defense counsel just before the judge accepted the plea agreement underscore that all parties sought to resolve the case swiftly, but finality was not the only benefit supporting the plea agreement. Other benefits included favorable recommendations from the government and the dismissal of charges. We thus cannot reasonably read defense counsels’ references to finality as meaning that no party could take an appeal.
Assuming then that the plea agreement is silent on the government‘s right of appeal, the Hammonds urge us to imply a waiver into the plea agreement. We have never before done so. But relying on United States v. Guevara, 941 F.2d 1299 (4th Cir.1991), the Hammonds argue that construing the government‘s silence as an implied waiver will promote fairness and finality. We reject that position.
The principles governing the formation and interpretation of plea agreements leave no room for implied waivers.
Moreover, nothing in the nature of plea agreements requires that each promise must be “matched against a mutual and ‘similar’ promise by the other side.” United States v. Hare, 269 F.3d 859, 861 (7th Cir.2001). To be sure, the idea behind a plea agreement is that each side waives certain rights to obtain some benefit. See Partida-Parra, 859 F.2d at 633. But there are ample reasons that a defendant might enter a plea agreement short of extinguishing the government‘s right to appeal, including the possibility of a lower sentence and the dismissal of other charges. Hare, 269 F.3d at 861; cf. Brady v. United States, 397 U.S. 742, 752 (1970) (listing possible reasons for entering a plea). For example, the Hammonds negotiated for favorable recommendations from the government and the dismissal of charges. Such benefits are consideration enough to support a plea agreement. See Hare, 269 F.3d at 861-62.
Finally, contrary to the Hammonds’ assertion, the record leaves no doubt that the government preserved the objection to the sentences that it raises on appeal. Nowhere did the government make a “straightforward” concession. United States v. Bentson, 947 F.2d 1353, 1356 (9th Cir.1991). Nor did the government fail to give the district court an opportunity to address the argument it raises on appeal. See United States v. Grissom, 525 F.3d 691, 694-95 (9th Cir.2008). In its sentencing memorandum and at sentencing, the government argued that the trial judge lacked discretion to deviate from the statutory minimum. The government thus preserved its objection, and we may hear its appeal.
B. Sentences
Turning now to the merits, we hold that the district court illegally sentenced the Hammonds to terms of imprisonment less than the statutory minimum. A minimum sentence mandated by statute is not a suggestion that courts have discretion to disregard. See United States v. Wipf, 620 F.3d 1168, 1169-70 (9th Cir.2010). The court below was bound to sentence the Hammonds to five-year terms of imprisonment. See
Rather than categorically challenge five-year sentences for arson, the Hammonds argue that the sentences would be constitutionally disproportionate “under the unique facts and circumstances of this case.” We assess this type of Eighth Amendment challenge by “compar[ing] the gravity of the offense to the severity of the sentence.” United States v. Williams, 636 F.3d 1229, 1232 (9th Cir.2011) (citing Graham v. Florida, 560 U.S. 48, 60 (2010)). Only in the “rare case in which this threshold comparison leads to an inference of gross disproportionality,” do we then “compare the defendant‘s sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions.” Graham, 560 U.S. at 60 (internal citations and quotation marks omitted).
Here, we need not progress beyond the first step. Congress has “broad authority” to determine the appropriate sentence for a crime and may justifiably consider arson, regardless of where it occurs, to be a serious crime. Solem v. Helm, 463 U.S. 277, 290 (1983). Even a fire in a remote area has the potential to spread to more populated areas, threaten local property and residents, or endanger the firefighters called to battle the blaze. The September 2001 fire here, which nearly burned a teenager and damaged grazing land, illustrates this very point.
Given the seriousness of arson, a five-year sentence is not grossly disproportionate to the offense. The Supreme Court has upheld far tougher sentences for less serious or, at the very least, comparable offenses. See Lockyer v. Andrade, 538 U.S. 63 (2003) (upholding a sentence of fifty years to life under California‘s three-strikes law
Because the district court erred by sentencing the Hammonds to terms of imprisonment less than the statutory minimum, we vacate the sentences and remand for resentencing in compliance with the law.
VACATED AND REMANDED.