United States v. Orlando ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-50473
Plaintiff-Appellee, D.C. No.
v.  CR-06-00308-AHM-
CARL ORLANDO, 001
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding
Submitted December 9, 2008*
Pasadena, California
Filed January 23, 2009
Before: Jerome Farris and Kim McLane Wardlaw,
Circuit Judges, and William W Schwarzer,** District Judge.
Opinion by Judge Farris
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
861
864 UNITED STATES v. ORLANDO
COUNSEL
Sean K. Kennedy, Federal Public Defender; Jonathan D.
Libby, Deputy Federal Public Defender, Los Angeles, Cali-
fornia, for the appellant.
Thomas P. O’Brien, United States Attorney; Sandra R.
Brown, Assistant United States Attorney, Chief, Tax Divi-
sion; Robert F. Conte, Assistant United States Attorney, Los
Angeles, California, for the appellee.
OPINION
FARRIS, Senior Circuit Judge:
Carl Orlando appeals his 40 month sentence and $30,000
fine following his guilty plea to one count of tax evasion. We
affirm the sentence but amend the written judgment to reflect
the $30,000 fine imposed at oral sentencing.
I. The Rule 32(h) notice requirement does not apply.
Under United States v. Irizarry, ___ U.S. ___, 2008, 128
S. Ct. 2198 (2008), Orlando’s 40-month sentence was not a
“departure” from the 27-33 month range specified by the sen-
UNITED STATES v. ORLANDO 865
tencing guidelines, but a “variance.” The notice requirement
in Fed. R. Crim. P. 32(h) does not apply.
II. The district court did not abuse its discretion by failing
to grant a continuance before announcing the variance.
A district court’s grant or denial of a continuance is
reviewed for abuse of discretion even where, as here, no
motion for continuance was made. United States v. Moreland,
509 F.3d 1201, 1211 (9th Cir. 2007).
[1] Relying on language in Irizarry, Orlando argues that the
court should have granted a continuance sua sponte. Irizarry
suggests that in the unusual instance where the factual basis
for a variance comes as a surprise, “[t]he . . . appropriate
response to such a problem is . . . for a district judge to con-
sider granting a continuance when a party has a legitimate
basis for claiming that the surprise was prejudicial.” Irizarry,
128 S. Ct. at 2203. However, the majority also indicated that
“in most cases” requiring advance notice of a contemplated
variance “may create unnecessary delay” by forcing a contin-
uance even though the content of notice “would not affect the
parties’ presentation of argument and evidence.” Id. Irizarry
established that a sentencing court abuses its discretion when
it imposes an upward variance 1) based on facts that amount
to a prejudicial surprise; 2) without considering a continu-
ance; 3) where advance notice might have affected the par-
ties’ presentations of evidence. Orlando fails on all three
elements.
[2] Orlando’s sentence may have been a surprise, but the
factual basis for it was not. As Irizarry explains, “[g]arden
variety considerations of culpability, criminal history, likeli-
hood of re-offense, seriousness of the crime, [etc.] . . . should
not generally come as a surprise to trial lawyers who have
prepared for sentencing.” Id. (quoting United States v. Vega-
Santiago, 519 F.3d 1, 5 (1st Cir. 2008)). The district court
relied upon these types of “garden variety considerations”: the
866 UNITED STATES v. ORLANDO
defendant’s long pattern of criminal history, the fact that he
committed the current offense while on supervised release
from previous custody, his disrespect for the law, the serious-
ness of his crime, the need to protect the public, and the valu-
able deterrent effect of a stiff tax evasion sentence.
[3] The record also indicates that the district court consid-
ered and rejected the possibility of delaying sentencing. Fur-
ther, Orlando does not explain how a continuance would have
affected his presentation of evidence, except by giving coun-
sel “an opportunity to prepare for and address the court’s con-
cerns.” Since a reasonably prepared lawyer would already
have been equipped to address the court’s “garden variety”
sentencing concerns, there is no merit to the argument.
III. The 40-month sentence is not unreasonable under 18
U.S.C. § 3553.
The substantive reasonableness of a sentence, whether
within the advisory guidelines or not, is reviewed for abuse of
discretion. Gall v. United States, 128 S. Ct. 586, 594 (2007);
United States v. Booker, 543 U.S. 220, 260-62 (2005). “This
review requires deference to the district court’s decision, and
should not resemble a de novo review.” United States v.
Cherer, 513 F.3d 1150, 1159-60 (9th Cir. 2008).
“[A] sentence outside the Guidelines carries no presump-
tion of unreasonableness.” Irizarry, 128 S. Ct. at 2202. “Any
expectation . . . that a criminal defendant will receive a sen-
tence within the presumptively applicable Guidelines range
did not survive . . . United States v. Booker, [ ] which invali-
dated mandatory features of the Guidelines.” Id.[4] Rather, the court “take[s] into account the totality of the
circumstances” to determine whether the sentence is reason-
able. Gall, 128 S. Ct. at 597. To that end, the appellate court
“may consider the extent of the deviation [from the Guide-
lines], but must give due deference to the district court’s deci-
UNITED STATES v. ORLANDO 867
sion that the [18 U.S.C.] § 3553(a) factors, on a whole, justify
the extent of the variance.” Id.1 A district court’s discretion
under the § 3553(a) factors is quite broad. See United States
v. Sylvester Norman Knows His Gun, III, 438 F.3d 913, 918
(9th Cir. 2006) (explaining that consideration of § 3553(a)
factors “does not necessitate a specific articulation of each
factor separately”); United States v. Fernandez, 443 F.3d 19,
30 (2d Cir. 2006) (“[W]e presume, in the absence of record
evidence suggesting otherwise, that a sentencing judge has
faithfully discharged her duty to consider the statutory fac-
tors”). The court has broad power to make a reasoned deci-
sion on the individualized facts before it. Rita v. United
States, 127 S. Ct. 2456, 2468 (2007).
In alleging that the sentence is unreasonable, Orlando
claims that the court 1) relied on Orlando’s criminal history
even though this history was already incorporated in the advi-
sory Guidelines range; 2) sought deterrence greater than that
suggested by the Guidelines; and 3) ignored Orlando’s three-
level reduction for substantial assistance under 8 U.S.S.G.
§ 5K1.1 when it imposed a sentence.
[5] Orlando misunderstands the non-mandatory nature of
the Sentencing Guidelines. See Booker, 543 U.S. at 261.
Although Orlando’s range incorporated his criminal history,
the court found that the range sufficiently captured neither the
deceit and deviousness of that history nor Orlando’s need to
learn respect for the law. These conclusions were reasonable,
given Orlando’s history of involvement in complex fraud
schemes, and were within the court’s authority under the
1
Section 3553(a) lists the seven factors that a court must consider in
imposing a sentence. These factors include (1) the general nature and cir-
cumstances of the crime and defendant; (2) the usefulness of the sentence
(A) to promote respect for the law, (B) to deter, (C) to protect the public,
or (D) to rehabilitate the defendant; (3) the kinds of sentences available;
(4) the Sentencing Guidelines range; (5) pertinent policy statements; (6)
the need to avoid sentence disparities between similarly situated defen-
dants; and (7) any need for restitution. 18 U.S.C. § 3553(a).
868 UNITED STATES v. ORLANDO
§ 3553(a) factors. The court similarly found that the range
failed to capture tax crimes’ particular sensitivity to deter-
rence. This was also reasonable, and was likewise within the
court’s authority under the § 3553(a) factors. Orlando is cor-
rect that pertinent policy statements express the appropriate-
ness of imposing lower sentences for those defendants who
substantially assist authorities in bringing other criminals to
justice. See 28 U.S.C. § 994(n); U.S.S.G. § 5K1.1. However,
a sentence at variance with the Guidelines is not itself evi-
dence of the court’s failure to consider Orlando’s substantial
assistance. The district court accepted the downward depar-
ture for substantial assistance under U.S.S.G. § 5K1.1, which
was reflected in the reduced advisory Guidelines. It was the
district court’s prerogative to impose a sentence based on the
totality of the circumstances. Gall, 128 S. Ct. at 597. The
court’s conclusions were reasonable, substantiated by the
record, and evaluated with careful reference to the § 3553(a)
factors. Id.; Rita, 127 S. Ct. at 2468. The 40-month sentence
was not unreasonable.
IV. The $30,000 fine was not unreasonable under 18 U.S.C.
§§ 3553 and 3572.
Orlando claims that the $30,000 fine, which was the maxi-
mum recommended by applicable sentencing Guidelines, was
unreasonable because Orlando is indigent and has no ability
to pay any fine, or alternatively, because the court provided
inadequate explanation for the fine.
[6] Under the advisory Guidelines, a court may impose a
fine “in all cases, except where the defendant establishes that
he is unable to pay and is not likely to become able to pay any
fine.” U.S.S.G. § 5E1.2(a); see also 18 U.S.C. § 3571. The
district court must consult the Guidelines’ recommendation,
the § 3553(a) factors, and the 18 U.S.C. § 3572(a) factors to
determine the appropriateness of the imposition of a fine and
its amount. See United States v. Eureka Labs., Inc., 103 F.3d
908, 913-14 (9th Cir. 1996). “[T]he district court must explain
UNITED STATES v. ORLANDO 869
[its decision] sufficiently to permit meaningful appellate
review.” United States v. Carty, 520 F.3d 984, 992 (9th Cir.
2008) (en banc). We review for reasonableness, see id. at 994,
the district court’s decision to impose the fine and the deter-
mination of the amount. See, e.g., United States v. LaGrou
Distrib. Sys., Inc., 466 F.3d 585, 594 (7th Cir. 2006).
[7] A district court’s finding of whether a defendant is able
to pay the fine is reviewed for clear error. United States v.
Brickey, 289 F.3d 1144, 1152 (9th Cir. 2002). The defendant
bears the burden of proving he is unable to pay the fine. Id.If the defendant so proves, then a fine may be inappropriate.
U.S.S.G. § 5E1.2(a); Eureka Labs., Inc., 103 F.3d at 913.
However, the court may fine a currently indigent defendant,
if it finds that he has earning capacity to pay the fine in the
future. U.S.S.G. § 5E1.2(d)(2); United States v. Haggard, 41
F.3d 1320, 1329 (9th Cir. 1994) (upholding a fine where
defendant made no showing of future inability to pay and
could earn money while incarcerated); United States v.
Favorito, 5 F.3d 1338, 1339 (9th Cir. 1993) (upholding a fine
where defendant had sufficient earning capacity to pay the
fine following his release from prison). In Brickey, we upheld
a $40,000 fine where a defendant convicted of tax evasion
refused to discuss his finances with his probation officer,
failed to prove his inability to pay once on supervised release,
and possessed marketable skills as a mechanic. Brickey, 289
F.3d at 1152-53.
[8] The $30,000 fine is reasonable under 18 U.S.C.
§§ 3553(a) and 3572(a). A district court need not articulate
every factor involved in sentencing. Sylvester Norman Knows
His Gun, III, 438 F.3d at 918. In this case, the court stated that
a fine was particularly appropriate for a tax evasion crime
where restitution is not ordered. See 18 U.S.C. §§ 3553(a)(7),
3572(a)(4). This explanation was sufficient to permit appel-
late review.
[9] Further, Orlando did not meet his burden of proving
that he was incapable of paying a fine. Like the defendant in
870 UNITED STATES v. ORLANDO
Brickey, Orlando deliberately refused to disclose finances to
his probation officer and possessed marketable employment
skills. While he was represented by appointed counsel and
maintained that he had no income and was homeless, the dis-
trict court found that Orlando’s claim of indigence was not
credible. This finding was supported by Orlando’s failure to
disclose information to the Probation Office, by the large
sums of money involved in his crime, and by his long history
of major financial misrepresentation. Even if Orlando did
demonstrate that he was currently indigent, the district court
had a basis for believing that he would be able to pay the fine
in the future. U.S.S.G. § 5E1.2(d)(2). Judging from the size of
his unreported income, for instance, Orlando’s exceptional
skills as a salesman are marketable. The district court’s find-
ing of Orlando’s ability to pay was not clearly erroneous.
V. The written judgment is amended to reflect the $30,000
fine announced at oral sentencing.
[10] At oral sentencing, the district court indicated a fine of
$30,000, but the court’s subsequent written judgment indi-
cated a fine of $60,000. Where a discrepancy arises between
the terms of an oral pronouncement of a sentence and the sub-
sequent written judgment, the terms of the oral pronounce-
ment control. United States v. Bergmann, 836 F.2d 1220,
1221 (9th Cir. 1988). The government concedes that $30,000
is the correct amount of the fine. We amend the judgment to
impose a $30,000 fine.
AFFIRMED in part; AMENDED in part.