United States v. Whitehead
559 F.3d 918
9th Cir.
2009
Check Treatment
Docket

*1 sentence, America, contrary Supreme UNITED STATES what the Plaintiff-Appellant, Court declared as law. I believe that — U.S. -, while v. Gall United v. (2007) 586, rein WHITEHEAD, Michael Thomas forced judges’ considerable discre Defendant-Appellee. sentencing, tion in appellate judges it left America, United States of with the task of reviewing sentences for Plaintiff-Appellee, reasonableness, and that review must be more than the mere recitation that district court knows the facts better than Whitehead, Thomas Michael do, with a citation to Gall. See United Defendant-Appellant. Whitehead, States v. 05-50458, Nos. 05-50506. Cir.2008). Appeals,

United States Court of scope The duty our to review a dis- Ninth Circuit. trict court’s decision for sub- stantive reasonableness under abuse of March 2009. discretion goes beyond standard what our Becky Walker, Esq., S. Ng, Lawrence here, court did and we would all benefit Esq., Raphael, Michael J. Esq., Office of we had a better standard for such circum- Attorney Division, the U.S. Criminal Los stances. Thomas the defen- CA, Angeles, Plaintiff-Appellant. for case, dant in pirated this a million dollars Marino, Hills, CA, Nina Esq., Beverly worth of “access cards” and sold them to for Defendan1>-Appellee. persons who used them to steal DireetTV’s television services. personally He gar- KOZINSKI, ALEX Before: Chief $400,000 nered more than from his involve- Judge, DIARMUID F. O’SCANNLAIN ment in illegal this despite scheme. Yet BYBEE, and JAY S. Judges. Circuit this serious got he zero After taking personal his circumstances GOULD; Dissent Judge Dissent into account granting him acceptance Judge REINHARDT. responsibility, though even he went to ORDER trial and did not government save the time by pleading guilty, judge the district calcu- GOULD, Circuit with whom guideline lated his range at 33 to 41 BYBEE, KLEINFELD, CALLAHAN, Nonetheless, months. the judge sen- join and BEA Judges, dissenting him only restitution, tenced to probation, from the rehearing denial of en banc: community service prison with no A majority eligible judges has voted term, month, not a day. not even a The against rehearing en petition banc. The sentencing judge gave following rea- rehearing and en rehearing banc is denied. sons: displayed extreme re- Fed. R.App. P. 40. (which, observe, morse was I respectfully dissent from the denial of conviction). after his Whitehead had fami- rehearing en banc this case. ly circumstances that the district court problem simply that the desirable thought leniency, warranted specifically principle of deference to the sentencing his mother’s position illness and his as a judge, if far, taken too is transformed into parent joint custody daughter. of his an undesirable principle of no review And the district court concluded that there effect for substantive reasonableness of a was a low likelihood of recidivism. White-

919 1856). head, Many man trans. 532 F.3d at 997-99. The Whitehead those now majority af- rights recog- curiam was comfortable concerned with victims’ have per summarily See, rather and firming thing. e.g., the sentence nized the same Crime justify Act, to its affirmance Rights needed Victims’ 18 U.S.C. 3771 any analysis of the district court’s Doubtless the district court reasons. thought sentencing just it was in a way, and panel majori- doubtless the Whitehead Supreme In v. the Gall United ty justice also thinks it serves to affirm. upheld probationary a 36 month Court None dispute importance would the applica- sentence as reasonable when the reaching just a sentence for crime in our a to guideline range ble was 30 37 month justice system. criminal As was well stat- Gall, custodial sentence. 128 S.Ct. 586. by legal ed no a luminary less than Daniel of the variance in was The extent Gall Webster, at the funeral of Mr. Justice Whitehead, substantially the same as in Story, September on 1845: “Justice is Supreme reasoning but the Court’s and great the of man on interest earth. It is significantly review of the record was ligament beings which holds civilized Gall, In thorough than Whitehead. together.” and civilized nations 2 Papers Supreme exhaustively Court detailed the (An- of Daniel Legal Papers, Webster: 695 compelling mitigating evidence of Gall’s ed.1989). King, accept drew J. We can to voluntary conspiracy withdrawal from panel majority that the Whitehead ecstacy distribute and self-motivated reha- court think district Whitehead’s -mitigation substantially more bilitation— just. just But surely sentence was mitigation compelling Whitehead’s unjust person conclude that it is for a who Gall, but it not case. Whitehead cites does money get stole so much no engage in the same sort of review. The by What is needed is some better standard fact is that signal Whitehead cases, which in collar white crime where And, remorse his conviction. injury public physical to the from the de- course, family he also had some obli- cards, probably fendant not gations, but who doesn’t? How do the appropriate pun- assess what is an level of post-conviction factors of remorse think it ishment. do not is sufficient family much some make his case different merely to defer to district court discretion from all of the routine convictions where with unbounded standards. unhappy they criminal defendants are caught were and convicted and also have majority concludes that fathers, mothers, spouses, or children? ‘in superior posi- “the district court was mitigating How do these factors warrant tion’ to find the relevant facts a significant such variance? It’s hard to ‘judge import.’ their didn’t abuse its [It] Sentencing believe that Commission Whitehead, doing.” 532 discretion so unaware in the was of such circumstances Surely it F.3d at 993. is true It mass of cases reviewed. looks as than we spot district court is a better can give wrist-slap district courts mere a case normally to consider the facts of to those convicted of white collar Nonetheless, and to render sentence. summary and then await a affirmance provide should some standard that would from our court. it alert a court to the concern that go only so far but not farther. To

However, recognized it has been review for substantive reasonableness years more than two that: “to thousand manner, un- undemanding as was spare guilty injure is to the innocent.” such (D. per majority curiam Syrus, Sayings Ly- Publius Moral 113 dertaken deal from the equality goal get criminals who worse undermines Guidelines, sentencing judges. by the and em- envisioned remedy portion in the braced the Court puts This case the Ninth Circuit what Booker, of Booker. United States I consider to be a conflict with several of *3 250-51, 261-63, U.S. adopted who a our sister circuits have vigorous approach reviewing to sen that for far Bybee’s valid concern tences reasonableness. So as I share determine, that Ninth become the “baseline” have been able to will Whitehead other sentences. has never found a sentence sub to measure we use Indeed, stantively F.3d at 999. it unreasonable after Gall a 532 opinion. But cir Ruff, published In United States v. some other already has. dissent, my in white collar crime have con majority, upheld over cuits cases panel sentence, a that un one-day significant custodial cluded Gall sentences were guideline range significant from a of 30 to 37 reasonable when contained variance See, months, citing archetype permissive- e.g., downward variances. United Omole, ness, Ruff, 535 F.3d at 1002. States v. 523 F.3d 691 Cir. Whitehead. 2008) case, (reversing Ruff a 12 month In that Kevin had stolen more custodial sen $600,000 supplies from the tence for a defendant convicted of wire than worth guideline range Medical Center then fraud when the was 87-102 Sacred Heart and months, by entering sentencing judge’s expla tracks more than covered his inventory support one thousand false downward nation did not a sentence so far Hunt, adjustments the range); in the medical center’s com- below United States v. (6th Cir.2008) 521 F.3d 636 puterized log. (reversing The district court Ruff history employment; probationary cited Ruffs his sentence for health care remorse; family cooperation sup- range and his fraud where the Guideline was 27- months). port; public and the absence of risk to restitution; as well appropriateness of give light To such sentences for such and gambling as his mental health issues premises serious crime is an affront to the vary to addiction for the reasons down- system rely of our criminal law which Again, at 1001. are ward. 535 F.3d these part punishment serving purpose on some justify that a le- mitigating factors such general say, deterrent. to Needless nient sentence? victims of these crimes could be expected uniformly ask: Given that Whitehead took more to endorse a lack of Indeed, profited by and some incarceration. Sentencing million $1 fraud, $400,000, jail Commission, in a calculated is no with its mandate from Con- gress uniformity that Ruff took proportion- time warranted? Given foster and $600,000 fraud, ality sentencing, more than a calculated has concern years, spending day Guidelines, over several one “courts sen- before jail society enough? probation inappropriately Doubtless our has tence[d] all paying imprisoned high percentage guilty hard time those of offenders of cer- crimes, theft, imprisoned and doubtless those who aren’t tain economic such tax evasion, offenses, might generating trading, have a better chance at antitrust insider restitution, fraud, pay income to victim but those and embezzlement....” U.S.S.G. A.4(d) (2006). 1A1.1, rubber-stamp Regret- are not sufficient reasons to Ch. Pt. leniency tably, signals for criminals who are better that we are re- placed society turning inappropriate than the run-of-the-mill to that era of sen- advisory guidelines, disposi- commit from the who Wilful offenders tences. mercy might enough. towards alone be intentionally tion who steal collar white millions of But there have to be some limits and for or even of thousands hundreds per- are transcended when dollars, degree of me these limits receive some sons who orchestrate massive white collar know often incarceration. We forced given virtually criminal defen- crimes are no or no powerless poor larceny or common who commit dants pub- time. The some hard

theft will serve If a district court in the Ninth Circuit find it lic, legal system, may respecting our only predicta- need cite one or two of these abuse of discre- to believe that our difficult ble reasons to allow a white collar criminal court deference to trial tion review with time, forgo jail these white collar crimi- *4 to conclude that sentencing permits us generally nals won’t have much hundreds of thousands persons who steal 3553(a), § Under 18 U.S.C. we should be long over in intentional schemes of dollars upholding sentences that will reflect the pris- suffer little or no periods of time will offense, adequate seriousness of the afford on time. protect public. deterrence and the We toward mean to sound harsh I do not not, by inaction and excessive def- in white collar the criminal defendants erence, inviting people open up shop be giving our district courts crime cases or to scamming law-abiding corpo- individuals or in or to our light sentences such cases or rations out of hundreds of thousands to affirm might that be inclined panels dollars, accepting of and then even millions Gall, panel’s view of but them under the they say they that if on conviction that are sentencing judges the the reasons cited any jail time. sorry, they need not serve in most will exist Ponzi, Thomas Whitehead is no Charles Ruff hardly criminal cases. We can white collar gives affirm a that but still to sentence if remorse surprised express be criminals pass jail time is unwise. total from they caught facing and are the are REINHARDT, Judge, sur- consequences. can be We dissenting rehearing the denial of en from good criminal has a if a white collar prised banc: he or she history otherwise, employment — position in a to commit likely would not be have taken this case en banc We should reason, Possibly for that as the crime. reasons set forth in Section II.A of for the dissent, my “district mentioned Ruff Judge Bybee’s dissent. United States criminals sentencing courts white collar 994-96 Cir. identify often with the crimi- can more 2008). view, Although, my the result But, ... comfort with a nal. socioeconomic necessarily not reached Whitehead was reason criminal convict is not sufficient erroneous, the re cursory nature of leniency....” Ruff, 535 to show extreme surely majority engaged view which (Gould, J., dissenting). F.3d at 1007 re majority’s superficial opinion was. The misunderstanding flects a fundamental Many judges naturally will hesitate to responsibility appellate judges might with views that be our step forward examination of the sen being less than merciful conduct serious characterized as one, I, of district courts and to tencing to a criminal defendant.1 would decisions they if do not any with reasonable variance reverse those sentences quarrel not Cicero, clemency.” De good authority placability and 1. We have it on the of Cicero: Cicero, Writings nothing “Nothing praise-worthy and in The Ethical is more officiis 1887). (Andrew [person] Peabody trans. befitting great and eminent P. only by of “substantive reason- do so is limited not standard deference meet the v. United 552 U.S. ableness.” Gall we must show to sentencing judges but 586, 597, sentencing policies Congress harsh has adopted, especially respect to manda- Still, tory minimum sentences. district Gould has chosen to regret judges remain free most cases to follow to the complaint limit his statutory principles Congress criminals empha- and that he has es- white collar tablished, length impose a need for increase and to a sentence that sizes is sentences, only in their “sufficient, case. The greater but not than neces- sentencing policies problem with our these account, alia, sary,” taking into inter “the days quite opposite: the sentences nature and circumstances of the offense far harsh. impose are too Those harsh history and characteristics of the “poor fall all too on the penalties often defendant.” 18 U.S.C. 3553. The Su- from Denial of Re- powerless.” Dissent ruled, preme Court has and fairness de- hearing at 3180. Some of the sentences mands, that we must conduct a serious are, indeed, impose federal courts both of the imposed by review sentences fairly and inhumane. A recent ex- absurd judges ensure are reasonable. handed down in *5 ample is sentence responsibility We abdicate our when we Hungerford, United States v. may fail to do so—whoever the defendant (9th Cir.2006), a case in which we be, and whatever the crime. were on account of our manda- compelled, (and

tory sentencing regime minimum prosecutorial charg-

some unconscionable decisions)

ing immensely to affirm “an cru-

el, barbaric, 159-year if not sentence [of]

severely mentally person who disturbed CORPORATION, SYMANTEC played fairly passive a limited and role in Plaintiff-Appellee, during several robberies which no one was physically in addition a harmed.” She was IMPACT, INC., GLOBAL a Florida Cor 52-year-old first offender. Id. at poration doing business as www. (Reinhardt, J., concurring global-impact.com, Impact, Global judgment). fifty-nine A one hundred and Impact, Distribution, Global Inc. year ? solution to our sentence? The sen- Impact Corporation; Joseph Global is, my view, tencing problem in to treat all Cristina, individual, an Defendants- fairly, defendants white collar and other- Appellants. end, wise. To that I am less concerned with our No. 07-56758. occasional deference lenient district court decisions than Appeals, United States Court of continuing obligation with our to ensure Ninth Circuit. unreasonably that sentences are not se- Submitted March 2009.* vere. Filed March 2009. Appellate judges play impor- must tant, deferential, though role in achieving goal. recognize ability

this that our

* 34(a)(2). panel unanimously R.App. finds this case suitable P. argument. without decision oral See Fed.