In the Courts

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.