In the Courts

Dissenting only as to the sentence, Judge Bybee was critical of the majority's deference to the district court as “not an exercise of discretion so much as an abdication of responsibility.” He went on to say that, “[o]ur substantive review of sentences may be limited after Gall, but being deferential does not mean turning a blind eye to an injustice.” Relying at several points on the Ninth Circuit's recent, en banc decision in United States v. Carty, 520 F.3d 984 (9th Cir. 2008), the dissent took aim at what Judge Bybee characterized as the majority's lax attitude toward appellate review of sentences after Booker. Judge Bybee's dissent emphasized that a more exacting review of the facts demonstrated that Whitehead was not entitled to the sentence imposed by the lower court because he made $400,000 from his illegal scheme and stole at least $1 million in profits from DirecTV. In addition, the factors the lower court relied on in imposing the sentence ' such as Whitehead's acceptance of responsibility ' were already accounted for in the guidelines calculation, Judge Bybee said.

Divided Ninth Circuit Panel Affirms Sentence Modification

In United States v. Ruff, No. 07-30213, slip op. at 9861 (9th Cir. Aug. 1, 2008), a split panel of the Ninth Circuit upheld a modified sentence of one day in prison and 12 months at a corrections center with a work release program. Kevin Ruff pled guilty to several counts of health care fraud, embezzlement, and money laundering. Ruff was a materials supervisor at a non-profit hospital, where over the course of three years, he stole $644,866 worth of medical supplies and sold them on eBay. Ruff hid the theft by creating false entries on the hospital's inventory lists. The guidelines called for a sentence of 30-37 months, but the district court imposed a sentence of 12 months plus one day, recommending that he serve his sentence at Geiger Corrections Center (“Geiger”) so Ruff could participate in the work release program, make restitution, get counseling, and see his son. Ruff was also sentenced to three years of supervised release. In imposing the sentence, the court cited five mitigating factors: 1) Ruff had a history of strong employment; 2) he cooperated and demonstrated remorse; 3) he had the support of his siblings; 4) he was not a risk to the public and would make restitution; and 5) he was addicted to gambling and required counseling. A week after imposing Ruff's sentence, the district court was informed that Geiger could house Ruff only if his sentence was imposed as a condition of supervised release. The judge convened a hearing upon receiving the information and amended Ruff's judgment to sentence him to one day of confinement in the custody of the Bureau of Prisons and 12 months of confinement at Geiger as a condition of three years supervised release.

The government appealed Ruff's modified sentence, arguing, inter alia, that the sentence was substantively unreasonable. As in the court's opinion in United States v. Whitehead, discussed supra, the court observed that it was bound to give substantial deference to the sentencing decisions of the lower courts. The majority rejected the government's objections to the sentence and affirmed, because the sentence was “reasonable in light of the mitigating factors the judge discussed in detail during” the first sentencing hearing.

Non-incarceration Sentence Affirmed By Ninth Circuit In Copyright Case

A divided panel of the Ninth Circuit Court of Appeals affirmed a non-incarceration sentence imposed by the district court despite a 41- to-51-month advisory guideline range. Thomas Michael Whitehead was convicted by a jury of violating the Digital Millennium Copyright Act, among other federal laws, for selling over $1 million worth of counterfeit “access cards” that allowed his customers to access DirecTV's digital satellite feed free of charge. United States v. Whitehead, Nos. 05-50458, 05-50506, slip op. at 8719 (9th Cir. July 14, 2008) (per curiam). Whitehead's advisory guideline range was 41- to 51 months' imprisonment, but the district court imposed a sentence of probation, community service, and restitution.

The government appealed Whitehead's sentence on the grounds that it was substantively unreasonable under United States v. Booker and its progeny. (Whitehead also cross-appealed aspects of his conviction, which the panel unanimously affirmed.) In a three-page opinion, Judges Kozinski and O'Scannlain wrote that the district court had not abused its discretion in imposing a non-incarceration sentence of 1,000 hours of community service, $50,000 in restitution, and five years of supervised release. Stating that the district court was in a better position to “find the relevant facts” and judge their significance, the majority noted that Whitehead's father informed the court that Whitehead repented his crime; had devoted himself to his house-painting business since his conviction; and that Whitehead's eight-year-old daughter depended on him. They also noted that the district court found that Whitehead's crime did not pose the “same danger to the community as many other crimes.” Id. at 8722.

Dissenting only as to the sentence, Judge Bybee was critical of the majority's deference to the district court as “not an exercise of discretion so much as an abdication of responsibility.” He went on to say that, “[o]ur substantive review of sentences may be limited after Gall , but being deferential does not mean turning a blind eye to an injustice.” Relying at several points on the Ninth Circuit's recent, en banc decision in United States v. Carty , 520 F.3d 984 (9th Cir. 2008), the dissent took aim at what Judge Bybee characterized as the majority's lax attitude toward appellate review of sentences after Booker . Judge Bybee's dissent emphasized that a more exacting review of the facts demonstrated that Whitehead was not entitled to the sentence imposed by the lower court because he made $400,000 from his illegal scheme and stole at least $1 million in profits from DirecTV. In addition, the factors the lower court relied on in imposing the sentence ' such as Whitehead's acceptance of responsibility ' were already accounted for in the guidelines calculation, Judge Bybee said.

Divided Ninth Circuit Panel Affirms Sentence Modification

In United States v. Ruff, No. 07-30213, slip op. at 9861 (9th Cir. Aug. 1, 2008), a split panel of the Ninth Circuit upheld a modified sentence of one day in prison and 12 months at a corrections center with a work release program. Kevin Ruff pled guilty to several counts of health care fraud, embezzlement, and money laundering. Ruff was a materials supervisor at a non-profit hospital, where over the course of three years, he stole $644,866 worth of medical supplies and sold them on eBay. Ruff hid the theft by creating false entries on the hospital's inventory lists. The guidelines called for a sentence of 30-37 months, but the district court imposed a sentence of 12 months plus one day, recommending that he serve his sentence at Geiger Corrections Center (“Geiger”) so Ruff could participate in the work release program, make restitution, get counseling, and see his son. Ruff was also sentenced to three years of supervised release. In imposing the sentence, the court cited five mitigating factors: 1) Ruff had a history of strong employment; 2) he cooperated and demonstrated remorse; 3) he had the support of his siblings; 4) he was not a risk to the public and would make restitution; and 5) he was addicted to gambling and required counseling. A week after imposing Ruff's sentence, the district court was informed that Geiger could house Ruff only if his sentence was imposed as a condition of supervised release. The judge convened a hearing upon receiving the information and amended Ruff's judgment to sentence him to one day of confinement in the custody of the Bureau of Prisons and 12 months of confinement at Geiger as a condition of three years supervised release.

The government appealed Ruff's modified sentence, arguing, inter alia, that the sentence was substantively unreasonable. As in the court's opinion in United States v. Whitehead, discussed supra, the court observed that it was bound to give substantial deference to the sentencing decisions of the lower courts. The majority rejected the government's objections to the sentence and affirmed, because the sentence was “reasonable in light of the mitigating factors the judge discussed in detail during” the first sentencing hearing.