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July 14, 2008

Split Ninth Circuit panel affirms below-guideline probation sentence as reasonable

Federal defense practitioners on the West Coast will be pleased to see the Ninth Circuit's latest reasonableness ruling today in US v. Whitehead, No. 05-50458 (9th Cir. July 14, 2008) (available here).  Here is how the short per curiam opinion starts:

Thomas Michael Whitehead sold over $1 million worth of counterfeit “access cards” that allowed his customers to access DirecTV’s digital satellite feed without paying for it. The jury convicted him of breaking various federal laws, including the Digital Millennium Copyright Act, which forbids the sale of devices that are designed to “circumvent[ ] a technological measure” that protects copyrighted works. 17 U.S.C. § 1201(a)(2)(A). The district court calculated a Guidelines range of 41 to 51 months, but imposed a more lenient sentence of probation, community service and restitution.

The government appeals, arguing that this below- Guidelines sentence was unreasonable, and Whitehead crossappeals, claiming that the indictment and jury instructions omitted an element of the crime. Neither party disputes the district court’s Guidelines calculation. We deferred submission pending our en banc decision in United States v. Carty, 520 F.3d 984 (9th Cir. 2008), and now affirm.

Judge Bybee dissents in a lengthy opinion that starts this way:

Thomas Whitehead will do no jail time for pirating a million dollars worth of “access cards” and selling them on the internet to persons who used them to steal satellite television service from DirectTV. The advisory Guidelines, after taking into account Whitehead’s personal circumstances, called for a sentence of 41-51 months. Whitehead walked with probation, restitution, and community service.

This was not an exercise of discretion so much as an abdication of responsibility. Our substantive review of sentences may be limited after Gall, but being deferential does not mean turning a blind eye to an injustice. I respectfully dissent.

July 14, 2008 at 12:57 PM | Permalink


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What sort of blind eye should we turn to the torture memos?

Posted by: S.cotus | Jul 14, 2008 1:37:32 PM

Also, note the other two judges on the panel.

Posted by: Jay | Jul 14, 2008 3:11:40 PM

All three of the judges are extremely well-connected politically. While O’Scannlain was a bit of a political hack, he never wrote a torture memo, and Kozinski has a remarkable talent for directing all attention toward himself. Again, he never wrote a torture memo.

Posted by: S.cotus | Jul 14, 2008 6:26:24 PM

Very nice opinion indeed by conservative majority too. Should hold up en banc and in Supremes. Defense laywers should move to the 9th Circuit: c'mon over we have plenty of room.

Michael R. Levine
Admitted in California, Oregon, and Hawaii

Posted by: Michael R. Levine | Jul 14, 2008 9:28:48 PM

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