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February 17, 2010

Split Ninth Circuit affirms as substantively reasonable a probation sentence for "big time thief”

Distracted by another(!) snow day yesterday, I missed the very significant split sentencing ruling handed down by a Ninth Circuit panel in US v. Edwards, No. 08-30055 (9th Cir. Feb. 16, 2010) (available here). Here is how the majority opinion (per Judge Pregerson) gets started:

In 2004, Duncan W. Edwards pleaded guilty to one count of bankruptcy fraud in violation of 18 U.S.C. § 152(9) and one count of making a false statement to a bank in violation of 18 U.S.C. § 1014.  Although the advisory Sentencing Guidelines range called for twenty-seven to thirty-three months’ incarceration, the district court sentenced Edwards to five years’ probation (the maximum term of probation), seven months of which was to be served under house arrest, a $5,000 fine, and a special assessment of $100 on each count of conviction. After the Government appealed and the case was remanded to the district court, the district court imposed the same sentence.  After a second appeal and a second remand to the district court, the district court imposed the same sentence of probation but added a restitution order in the amount of $102,696.07.  For the third time, the Government challenges the district court’s sentence as substantively unreasonable.  Edwards cross-appeals from the district court’s order of restitution.

Judge Bea's partial dissent starts this way:

I agree with Judge Kleinfeld’s description of Edwards: he “is a big time thief.”  United States v. Edwards, 158 Fed. App’x 930, 931 (9th Cir. 2005) (Kleinfeld, J., dissenting).  Edwards was convicted of bank fraud in an Arizona state court after he stole more than $3 million.  While Edwards was on probation imposed as part of his sentence for the Arizona fraud conviction, he lied to another bank to obtain a new bank loan—he did not tell the new bank he had been convicted of defrauding the earlier bank.  He then filed for bankruptcy to avoid paying his new, fraudulently procured loan, but he knowingly did not fully disclose all of his assets and liabilities to the bankruptcy court, whose aid he had sought to avoid his loan obligations. When the government finally caught up with him and brought the fraud charges in this case, he pleaded guilty to bank fraud and to bankruptcy fraud.  The intended and actual losses from Edwards’s bank fraud and bankruptcy fraud totaled more than $500,000.   The advisory Guidelines sentencing range was twenty-seven to thirty-three months’ imprisonment, yet the sentence today approved by the majority will result in Edwards serving no time in prison.  The district court sentenced Edwards to sixty months’ probation— with seven months served under house arrest—and ordered him to pay just over $100,000 in restitution.  The majority concludes this sentence is substantively reasonable. But like Judge Kleinfeld, “I cannot see how a sentence anything like the one imposed could be reasonable under 18 U.S.C. § 3553(a)(2).” Id. Therefore, I respectfully dissent from the majority’s holding that Edwards’s below-Guidelines sentence is substantively reasonable.

Though one should never bank on en banc review, I have a feeling that this Edwards case may become the subject of still further activity in the Ninth Circuit.

February 17, 2010 at 05:23 PM | Permalink


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"But can we do any better by attempting to spell out what constitutes “unreasonable” in the abstract? I think the Court, in Gall, wants us to try. In fact, Gall itself provided some guidance as to factors an appellate court should consider when it reviews the substantive reasonableness of a sentence. See 552 U.S. at 47-48. Additional factors to consider emerge from the decisions of our sister circuits and the reasoned opinions—both majority and dissenting—of our Court. Although no list of factors will be exhaustive and not all factors will be relevant in every case, we must provide guidance to the district courts so that we can minimize sentencing disparities even in the absence of mandatory guidelines.8 See Whitehead, 532 F.3d at 999-1000 (Bybee, J., dissenting) (“As a circuit, we have an obligation to ensure roughly equal sentences both among our judicial districts and within each judicial district.”)"

I think this is very well said and I agree with all of it. The admission in the first sentence is itself a revelation; it seems that a few judges are at least, perhaps grudgingly, willing to go along with the great Gall experiment. Good for them.

BTW, for the record, I think that I too would reject a probation sentence in this case as substantial unreasonable. I think the much harder question is just how much prison time is necessary. I suspect that I'd tolerate a much broader definition of "rough" than the learned judge.

Posted by: Daniel | Feb 17, 2010 6:23:16 PM

The majority makes a good argument for why this sentence is not substantively unreasonable. In addition, the court notes that this conclusion does not necessarily mean that the judges themselves would have done the same thing, had they been in the District Court’s position.

At the time of sentencing, the defendant’s crimes were nine years in the past. The District Court concluded that he had self-rehabilitated during the intervening years, all of them spent outside of prison, with no further trouble. After five years’ probabion, assuming he lives that long (he is in poor health), he will be nearly 70 years old.

It is fairly easy to conclude, under these circumstances, that there is no particularly good reason to commit him to prison.

The government argues that a prison term is necessary as a general deterrent, but this is an over-used excuse. The collateral consequences of a felony conviction, even without any further punishment, are pretty substantial. And of course, there is further punishment: house arrest, probabion, and a hefty restitution order.

Posted by: Marc Shepherd | Feb 18, 2010 12:11:07 PM

Marc. I do think there is an important message that gets sent when someone is sentenced to prison, if only for a short time. I think prison has a symbolic value separate and distinct from any practical value it has. Society should take a stand not only based upon what happens to the criminal but based upon its own highest ideals. Is probation punishment? Yes, but it's a slap on the wrist. I personally would have sent him to jail as a means to reinforce the message that society considers his behavior a serious offense. All the factors you mention make it likely that the term I would give would be short, 3-6 months, but I would not let him just walk away. Probation for this type of offense is just unreasonable.

Posted by: Daniel | Feb 18, 2010 3:31:47 PM

Daniel, I think you will find that the collateral consequences of a federal felony conviction are, all by themselves, pretty severe. One consequence of our society’s addiction to prison terms is that all non-prison sentences start to look easy. In reality, they are not.

If the whole point of a 3–6 month sentence is symbolic, the exact purpose of it deserves further scrutiny. The set of people who would be deterred by that sentence, who wouldn’t be deterred by the sentence he actually got, is probably very small or empty.

Anyone who is not deterred by the sentence he got, would probably not be deterred by 3 months in the pen either.

Posted by: Marc Shepherd | Feb 18, 2010 4:13:01 PM

Marc's exactly right.

Lots of folks who end up dealing with the feds these days were the first in their families to ever be in trouble with the law. So immediately they feel like outcasts.

The humiliation of the publicity alone has hurt some of the people I've interviewed more than any other aspect of the experience...including terms of confinement.

Most of these cases play out over a period of years. And from the moment of the ominous knock on the door until the imposition of sentence, the target and family members spend countless sleepless nights of anguish and fear, contemplating all the terrifying possibilities.

Will prison be dangerous? Will the government seize their possessions? How will they pay their attorney? How will they pay the bills while their loved one is in prison? Will the prison be close enough for routine visits? After prison will there be gainful job for an ex-felon. I could go on and on.

Some may deserve all of it. Some don't deserve any of it. Either way, it takes a real lack of imagination or a powerful mean streak to think what these folks go through, prison sentence or not, is a day at the beach.

Posted by: John K | Feb 18, 2010 8:01:45 PM

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