D.C. No. CR-03-00053-CAS-1.
Before: Alex Kozinski, Chief Judge, Diarmuid F. O'Scannlain and Jay S. Bybee, Circuit Judges.
Order; Dissent by Judge Gould; Dissent by Judge Reinhardt
A majority of eligible judges has voted against rehearing en banc. The petition for rehearing and rehearing en banc is denied. Fed. R. App. P. 35, 40.
GOULD, Circuit Judge with whom KLEINFELD, BYBEE, CALLAHAN, and BEA Circuit Judges, join dissenting from the denial of rehearing en banc:
I respectfully dissent from the denial of rehearing en banc in this case.
The problem is simply that the desirable principle of deference to the sentencing judge, if taken too far, is transformed into an undesirable principle of no review in effect for substantive reasonableness of a sentence, contrary to what the Supreme Court declared as law. I believe that while Gall v. United States, 128 S.Ct. 586 (2007) reinforced district judges' considerable discretion in sentencing, it left appellate judges with the task of reviewing sentences for reasonableness, and that review must be more than the mere recitation that the district court knows the facts better than we do, with a citation to Gall. See United States v. Whitehead, 532 F.3d 991, 993 (9th Cir. 2008).
The scope of our duty to review a district court's sentencing decision for substantive reasonableness under an abuse of discretion standard goes beyond what our court did here, and we would all benefit if we had a better standard for such circumstances. Thomas Whitehead, the defendant in this case, pirated a million dollars worth of "access cards" and sold them to persons who used them to steal DirectTV's television services. He personally garnered more than $400,000 from his involvement in this illegal scheme. Yet despite this serious crime, he got zero jail time. After taking his personal circumstances into account and granting him acceptance of responsibility, even though he went to trial and did not save the government time by pleading guilty, the district judge calculated his guideline range at 33 to 41 months. Nonetheless, the judge sentenced him only to probation, restitution, and community service with no prison term, not a month, not even a day. The sentencing judge gave the following reasons: White-head displayed extreme remorse (which, I observe, was expressed after his conviction). Whitehead had family circumstances that the district court thought warranted leniency, specifically his mother's illness and his position as a parent with joint custody of his daughter. And the district court concluded that there was a low likelihood of recidivism. Whitehead, 532 F.3d at 99799. The Whitehead per curiam majority was comfortable affirming the sentence rather summarily and hardly needed to justify its affirmance with any analysis of the district court's reasons.
In Gall v. United States, the Supreme Court upheld a 36 month probationary sentence as reasonable when the applicable guideline range was a 30 to 37 month custodial sentence. Gall, 128 S.Ct. 586. The extent of the variance in Gall was substantially the same as in Whitehead, but the Supreme Court's reasoning and review of the record was significantly more thorough than in Whitehead. In Gall, the Supreme Court exhaustively detailed the compelling mitigating evidence of Gall's voluntary withdrawal from a conspiracy to distribute ecstacy and self-motivated rehabilitation-mitigation substantially more compelling than Whitehead's mitigation case. Whitehead cites Gall, but it does not engage in the same sort of review. The signal fact is that Whitehead expressed remorse after his conviction. And, of course, he also had some family obligations, but who doesn't? How do the factors of post-conviction remorse and some family make his case much different from all of the routine convictions where criminal defendants are unhappy that they were caught and convicted and also have fathers, mothers, spouses, or children? How do these mitigating factors warrant such a significant variance? It's hard to believe that the Sentencing Commission was unaware of such circumstances in the mass of cases they reviewed. It looks as if district courts can give a mere wrist-slap to those convicted of white collar crime, and then await a summary affirmance from our court.
However, it has been recognized for more than two thousand years that: "to spare the guilty is to injure the innocent."
Publius Syrus, Moral Sayings 113 (D. Lyman trans. 1856). Many of those now concerned with victims' rights have recognized the same thing. See, e.g., Crime Victims' Rights Act, 18 U.S.C. § 3771 (2006). Doubtless the district court thought it was sentencing in a just way, and doubtless the Whitehead panel majority also thinks it serves justice to affirm. None would dispute the importance of reaching a just result sentence for crime in our criminal justice system. As was well stated by no less a legal luminary than Daniel Webster, at the funeral of Mr. Justice Story, on September 12, 1845: "Justice is the great interest of man on earth. It is the ligament which holds civilized beings and civilized nations together." 2 Papers of Daniel Webster: Legal Papers, 695 (Andrew J. King, ed. 1989). We can accept that the Whitehead panel majority and the sentencing district court think Whitehead's sentence was just. But just as surely I conclude that it is unjust for a person who stole so much money to get no jail time. What is needed is some better standard by which in white collar crime cases, where physical injury to the public from the defendant is probably not in the cards, to assess what is an appropriate level of punishment. I do not think it is sufficient merely to defer to district court discretion with unbounded standards.
The Whitehead majority concludes that "the district court was 'in a superior position' to find the relevant facts and to 'judge their import.' [It] didn't abuse its discretion in so doing." Whitehead, 532 F.3d at 993. Surely it is true that the district court is in a better spot than we normally to consider the facts of a case and to render sentence. Nonetheless, we should provide some standard that would alert a district court to the concern that it should go only so far but not farther. To review for substantive reasonableness in such an undemanding manner, as was undertaken by the per curiam majority in Whitehead, undermines the ...