United States v. Whitehead ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-50458
Plaintiff-Appellant, D.C. No.
v.  CR-03-00053-
THOMAS MICHAEL WHITEHEAD, CAS-1
Defendant-Appellee.

UNITED STATES OF AMERICA,  No. 05-50506
Plaintiff-Appellee, D.C. No.
v.  CR-03-00053-
THOMAS MICHAEL WHITEHEAD, CAS-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted
August 16, 2006—Pasadena, California
Submission Vacated September 12, 2006
Resubmitted July 14, 2008
Filed July 14, 2008
Before: Alex Kozinski, Chief Judge,
Diarmuid F. O’Scannlain and Jay S. Bybee, Circuit Judges.
Per Curiam Opinion;
Dissent by Judge Bybee
8719
UNITED STATES v. WHITEHEAD 8721
COUNSEL
Michael J. Raphael and Thomas P. O’Brien, Assistant United
States Attorneys; Debra Wong Yang, United States Attorney,
Los Angeles, California, for the plaintiff-appellant.
Nina Marino, Kaplan Marino, Beverly Hills, California, for
the defendant-appellee.
OPINION
PER CURIAM:
Thomas Michael Whitehead sold over $1 million worth of
counterfeit “access cards” that allowed his customers to
access DirecTV’s digital satellite feed without paying for it.
The jury convicted him of breaking various federal laws,
including the Digital Millennium Copyright Act, which for-
bids the sale of devices that are designed to “circumvent[ ] a
technological measure” that protects copyrighted works. 17
U.S.C. § 1201(a)(2)(A). The district court calculated a Guide-
lines range of 41 to 51 months, but imposed a more lenient
sentence of probation, community service and restitution.
8722 UNITED STATES v. WHITEHEAD
The government appeals, arguing that this below-
Guidelines sentence was unreasonable, and Whitehead cross-
appeals, claiming that the indictment and jury instructions
omitted an element of the crime. Neither party disputes the
district court’s Guidelines calculation. We deferred submis-
sion pending our en banc decision in United States v. Carty,
520 F.3d 984 (9th Cir. 2008), and now affirm.
Analysis
[1] 1. “One theme” runs through the Supreme Court’s
recent sentencing decisions: “[United States v.] Booker[, 543
U.S. 220 (2005),] empowered district courts, not appellate
courts . . . . [and] breathe[d] life into the authority of district
court judges to engage in individualized sentencing . . . .”
United States v. Vonner, 516 F.3d 382, 392 (6th Cir. 2008)
(en banc) (Sutton, J.). We review sentences for abuse of dis-
cretion, and without presuming that outside-Guidelines sen-
tences are unreasonable. United States v. Carty, 520 F.3d 984,
993 (9th Cir. 2008) (en banc). Even if we are certain that we
would have imposed a different sentence had we worn the dis-
trict judge’s robe, we can’t reverse on that basis. Gall v.
United States, 128 S. Ct. 586, 597 (2007).
[2] We find no abuse of discretion in the district court’s
conclusion that a substantial amount of community service
(1000 hours), a hefty restitution order ($50,000) and five
years of supervised release were more appropriate than
prison. At the sentencing hearing, the court heard from White-
head and his father, who told the court how Whitehead
repented his crime; how he had, since his conviction, devoted
himself to his house-painting business and to building an hon-
orable life; how his eight-year-old daughter depended on him;
and how he doted on her. In addition, the court took into
account its finding that Whitehead’s crime “[di]d not pose the
same danger to the community as many other crimes.” These
are all considerations that the district court may properly take
into account. See 18 U.S.C. § 3553(a)(1)-(2). The district
UNITED STATES v. WHITEHEAD 8723
court was intimately familiar with the nature of the crime and
defendant’s role in it, as we are not. The district court could
appraise Whitehead’s and his father’s sincerity first-hand, as
we cannot. In short, the district court was “in a superior posi-
tion” to find the relevant facts and to “judge their import.”
Gall, 128 S. Ct. at 597. The district court didn’t abuse its dis-
cretion in so doing.
[3] 2. Whitehead argues that his conviction under 17
U.S.C. § 1201 must be reversed because the indictment and
jury instructions omitted an element of the offense, namely,
that the technological measures he circumvented were put in
place “with the authority of the copyright owner.” See 17
U.S.C. § 1201(a)(3)(B) (defining when a technological mea-
sure “effectively controls access to a work”). But the indict-
ment quoted and cited section 1201(a)(2)(A), and thereby
“adequately apprised the defendant of the charge[ ]”; any mis-
take here was “minor or technical” and doesn’t require rever-
sal. United States v. Severino, 316 F.3d 939, 943 (9th Cir.
2003) (internal quotation marks and citation omitted). And the
jury instructions defined “technological measure” using sec-
tion 1201(a)(3)(B)’s exact language. Neither the indictment
nor the instructions were erroneous.
AFFIRMED.
BYBEE, Circuit Judge, dissenting in part:
Thomas Whitehead will do no jail time for pirating a mil-
lion dollars worth of “access cards” and selling them on the
internet to persons who used them to steal satellite television
service from DirectTV. The advisory Guidelines, after taking
into account Whitehead’s personal circumstances, called for
a sentence of 41-51 months. Whitehead walked with proba-
tion, restitution, and community service.
8724 UNITED STATES v. WHITEHEAD
This was not an exercise of discretion so much as an abdi-
cation of responsibility. Our substantive review of sentences
may be limited after Gall, but being deferential does not mean
turning a blind eye to an injustice. I respectfully dissent.1
I
Whitehead was convicted of selling over 1000 “access
cards” that allowed individuals to pirate digital satellite ser-
vice from DirectTV. The district court estimated that by
enabling his customers to watch satellite TV without paying
for it, Whitehead stole at least $1 million in profits from
Direct TV. Whitehead himself bragged online that he had per-
sonally earned over $400,000 from his business. Money
earned by stealing from DirectTV was not his only source of
utility, however. Whitehead also bragged to his customers that
“if anyone is a trooper and likes the danger of this bi[z], it’s
me.”
At Whitehead’s sentencing hearing, the district court
applied the Guidelines and arrived at an offense level of 24.
The court then reduced the sentence by two levels for “accep-
tance of responsibility,” even though Whitehead put the gov-
ernment to its burden and demanded a trial to contest his
factual guilt. Thus, the court arrived at a total offense level of
22, resulting in a Guideline range of 41-51 months. In other
words, the Guidelines suggested Whitehead should serve at
least three years and five months in jail.
The court then further reduced the sentence by two levels
because “the crime did not pose the same danger to the com-
munity as other crimes,” and in light of Whitehead’s “post-
offense rehabilitation” and his family circumstances. The
court tentatively announced that it would reduce the total
offense level to 20 and impose a 33-month sentence, with 150
1
I agree with the majority that the indictment and jury instructions prop-
erly supported Whitehead’s conviction.
UNITED STATES v. WHITEHEAD 8725
hours of community service. The court stated that “a custodial
sentence is appropriate.” Thus, having accounted for White-
head’s “acceptance of responsibility,” in the form of post-
conviction remorse, and his family circumstances, which I
discuss in greater depth below, the district court still found
that the Guidelines recommended that Whitehead should
spend at least two years and five months in jail.
Whitehead then argued that even this sentence was unrea-
sonable when considered in light of the § 3553(a) factors. To
support his argument, he presented once again the same evi-
dence that the district court had just acknowledged when it
reduced its original guidelines calculation from offense level
24 to offense level 20: his post-offense “rehabilitation,” his
family circumstances, and the fact the crime was a white-
collar crime. The district court then took a brief recess. When
she returned, the district judge announced that instead of sen-
tencing Whitehead to serve over three years in prison as sug-
gested by the Guidelines, Whitehead would not go to prison
at all. Instead, he would serve 5 years’ probation. The district
court also sentenced Whitehead to 1000 hours of community
service and restitution of $50,000. The government appealed.
II
A
I agree with the Sixth Circuit’s eloquent observation that
“Booker breathe[d] life into the authority of district court
judges to engage in individualized sentencing within reason in
applying the § 3553(a) factors to the criminal defendants that
come before them.” United States v. Vonner, 516 F.3d 382,
392 (6th Cir. 2008) (en banc) (discussing United States v.
Booker, 543 U.S. 220 (2005)). I am less persuaded, however,
by the suggestion that the “[o]ne theme” running through the
Booker line of cases is that the Court has “empowered district
courts, [but] not appellate courts.” Id. Nothing in Booker,
Rita, Gall, or our own assimilation of these cases in Carty,
8726 UNITED STATES v. WHITEHEAD
suggests that the Supreme Court has taken the courts of
appeals out of the business of reviewing sentences. If it had,
we could save ourselves a lot of time. On the contrary, in each
of these cases the Court has explicitly held that the appellate
courts must continue to play an important role in the process
of ensuring that criminals are punished fairly: we are to “re-
view” each sentence for “reasonableness,” under the “abuse
of discretion” standard. Gall v. United States, 128 S. Ct. 586,
594 (2007) (“[A]ppellate review of sentencing decisions is
limited to determining whether they are ‘reasonable’ . . .
[under] the familiar abuse-of-discretion standard of review.”);
id. at 597 (“[T]he appellate court must review the sentence
under an abuse-of-discretion standard.” (emphasis added)).
There are countless types of district court rulings that we
review for abuse of discretion.2 In none of our cases have we
suggested that the “abuse of discretion” standard means that
our power of appellate review is illusory. On the contrary, we
regularly reverse rulings for abuse of discretion where the law
requires us to do so.3 Deferring to an exercise of a district
2
See, e.g., United States v. Torres-Flores, 502 F.3d 885, 887-88 (9th
Cir. 2007) (whether to instruct the jury on a lesser included offense);
United States v. Gementera, 379 F.3d 596, 599-600 & n.5 (9th Cir. 2004)
(whether supervised release conditions are reasonably related to permissi-
ble purposes); United States v. Verduzco, 373 F.3d 1022, 1029-30 (9th Cir.
2004) (whether to exclude evidence as unfairly prejudicial under Federal
Rule of Evidence 403); id. at 1032 & n.6 (whether to exclude expert testi-
mony); Caudle v. Bristow Optical Co., 224 F.3d 1014, 1023 (9th Cir.
2000) (whether to reduce a jury’s award for damages in a Title VII case
because it was duplicative of another award for an overlapping claim);
United States v. Olano, 62 F.3d 1180, passim (9th Cir. 1995) (whether to
admit evidence on numerous grounds, and whether to grant a variety of
trial-management motions).
3
See, e.g., United States v. Jimison, 493 F.3d 1148, 1151 & n.6 (9th Cir.
2007) (holding that we would reverse under the abuse of discretion stan-
dard where the district court applied a sentencing enhancement for posses-
sion of a firearm in connection with another felony but there was
insufficient evidence to demonstrate that the defendant intended to commit
that other felony); In re ZiLOG, Inc., 450 F.3d 996, 1003-07 (9th Cir.
UNITED STATES v. WHITEHEAD 8727
court’s discretion does not mean rubber-stamping the court’s
actions.
Thus, while I agree that the Booker line of cases has
breathed life into the notion of individualized sentencing, I
fear that the years spent attempting to read the Supreme
Court’s six-fingered palm may have distracted the majority
from the important task of substantive review those cases
gave us. When we sit in review of a district court’s sentencing
determination, the issue before is us not whether we have
been sufficiently “empowered” above the district courts to
impose a particular sentence. But see Vonner, 516 F.3d at 382(“Booker empowered district courts, not appellate courts
2006) (holding that the bankruptcy court abused its discretion in failing to
find excusable neglect, notwithstanding that “excusable neglect” is “an
equitable [determination], taking account of all relevant circumstances
surrounding the party’s omission,” where the debtor’s notices to layperson
claimants were confusing) (quoting Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993) (holding that a bankruptcy
court abused its discretion in not finding excusable neglect where an expe-
rienced bankruptcy attorney failed to file a timely proof of claim)); United
States v. Southwell, 432 F.3d 1050, 1052-54 (9th Cir. 2005) (holding that
a district court abused its discretion by providing the jury with a note that
instructed the jury to refer to the jury instructions and return a unanimous
verdict, but failed to include an additional clarifying instruction, when
then jury inquired about a legitimate ambiguity in the original instruc-
tions); United States v. Ayres, 166 F.3d 991, 996-97 (9th Cir. 1999) (hold-
ing that a district court abused its discretion when it fined a witness for
failure to comply with a civil contempt order because the IRS’s inability
to schedule a hearing on short notice ultimately caused the finable delay,
notwithstanding that the defendant’s own delay in contacting the IRS cre-
ated a foreseeable risk that the IRS could not accommodate him on short
notice); Mendenhall v. NTSB, 92 F.3d 871, 877 (9th Cir. 1996) (holding
that the NTSB abused its discretion in finding that the FAA’s position was
substantially justified for purposes of EAJA because the agency’s actions
violated FAA policy and were in bad faith); Hyde & Drath v. Baker, 24
F.3d 1162, 1172 (9th Cir. 1994) (holding that the district court abused its
discretion by sanctioning appellees’ counsel for appellees’ failure to attend
depositions but the special master monitoring discovery found counsel’s
behavior unobjectionable).
8728 UNITED STATES v. WHITEHEAD
. . . .” ). Rather the issue is the same we face in any review
under the abuse of discretion standard: Was the district
court’s decision within the boundaries that the law places on
the court’s discretion?
B
The challenge for us, then, is to determine the boundaries
of a reasonable sentence for a given conviction and set of
individualized circumstances and then to decide whether the
sentence imposed by the district court sits within these bound-
aries. We have repeatedly stated that “[w]e may not reverse
a district court’s exercise of its discretion unless we have a
definite and firm conviction that the district court committed
a clear error of judgment in the conclusion it reached upon
weighing the relevant factors.” SEC v. Coldicutt, 258 F.3d
939, 914 (9th Cir. 2001) (reviewing a district court’s denial of
a motion under Fed. R. Civ. P. 60(b)(5)). The Supreme Court
has cautioned us that “[t]he fact that the appellate court might
reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district
court.” Gall v. United States, 128 S. Ct. 586, 597 (2007). Yet
this warning must not be construed as a categorical bar to
reversal. The Court has instructed that the appellate court
“must” review the sentence, both for “procedural error” in
calculating the Guidelines and imposing the sentence, and
also for “the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.” Id. The
Court’s requirement that we “must” review sentences for rea-
sonableness necessarily implies that under some circum-
stances, we must reverse. Thus, “[t]he fact that the appellate
court might reasonably have concluded that a different sen-
tence was appropriate is insufficient to justify reversal,” id.,but it is sufficient if we are left with a definite and firm con-
viction that the district court committed a clear error of judg-
ment in the conclusion it reached upon weighing the relevant
factors.
UNITED STATES v. WHITEHEAD 8729
What might leave us with such a definite and firm convic-
tion? Among many factors discussed, the Supreme Court has
instructed us that, even when reviewing a below-guidelines
sentence under the deferential abuse of discretion standard,
“the extent of the difference between a particular sentence and
the recommended Guidelines range is surely relevant.” Id. at
591 (emphasis added). Thus, “[i]n reviewing the reasonable-
ness of a sentence outside the Guidelines range, appellate
courts may therefore take the degree of variance into account
and consider the extent of a deviation from the Guidelines.”
Id. at 594-95 (holding that appellate courts may not adopt
bright-line rules or mathematical formulas to determine the
strength of justifications necessary for an outside-Guidelines
sentence). “[I]f the sentence is outside the Guidelines range,
the [appellate] court may not apply a presumption of unrea-
sonableness,” but “[w]hen conducting this review, the court
will, of course, take into account the totality of the circum-
stances, including the extent of any variance from the Guide-
lines range.” Id. at 597 (emphasis added).
Our recent interpretation of the Booker cases encapsulated
these instructions from the Court. See United States v. Carty,
520 F.3d 984, 2008 WL 763770 (9th Cir. 2008) (en banc). We
held that, although “[a] court of appeals may not presume that
a non Guidelines sentence is un-reasonable,” “we are to con-
sider the totality of the circumstances, including the degree of
variance for a sentence imposed outside the Guidelines
range.” Id. (citation omitted). We are also to consider whether
the district court’s weighing of the § 3553(a) factors “on a
whole, justify the extent of the variance” from the Guidelines.
Id. And while “[w]e may not reverse just because we think a
different sentence is appropriate,” id, we must reverse where
the district court abused its discretion by committing a clear
error of judgment in the conclusion it reached upon weighing
the relevant factors.
The majority, in my view, has not fulfilled our responsibil-
ity to review this sentence. The majority simply shrugs at the
8730 UNITED STATES v. WHITEHEAD
district court’s sentence because “[t]he district court was inti-
mately familiar with the nature of the crime and defendant’s
role in it, as we are not.” Maj. Op. at 8722-23. If that is the
standard, we will save ourselves considerable time, because
the majority’s reasoning is true in every case. District courts
will always be more familiar with the crime and the defen-
dant’s role. If the majority is correct, then we have moved
well beyond Carty to a presumption that all sentences are rea-
sonable. That was not the rule before the adoption of the
Guidelines; it certainly was not the rule while the Guidelines
were in effect; and I cannot see that Rita, Gall, or Carty sup-
port, must less compel, such a rule.
III
Under the standard described above, I would find that the
district court abused its discretion when, after calculating a
Guidelines-recommended sentence of 33 months—a sentence
that was already adjusted to take into account the mitigating
circumstances of Whitehead’s case—it sentenced Whitehead
to a mere term of probation, coupled with community service
and $50,000 in restitution. This sentence is substantively
unreasonable for someone who was convicted of stealing over
$1 million in profits from Direct TV and who bragged to have
personally made over $400,000 from the theft. None of the
factors upon which the district court relied, alone or in combi-
nation, warranted this unreasonable sentence.
The district court found mitigating circumstances in the
combination of the fact that Whitehead’s mother was ill and
that he was a custodial parent of his 8-year-old daughter. Yet
there was nothing remarkable about the evidence of family
relationships Whitehead presented. He testified that he shared
custody of his daughter, that they shared a close emotional
bond, and that “[j]ust last week we bought a puppy.” White-
head’s claim was “nothing more than that which innumerable
defendants could no doubt establish: namely, that the imposi-
tion of prison sentences normally disrupts [family] relation-
UNITED STATES v. WHITEHEAD 8731
ships.” United States v. Berlier, 948 F.2d 1093, 1096 (9th Cir.
1991) (quotation marks and citation omitted). Our pre-Booker
decisions held that a downward departure for “extraordinary
family circumstances” required that the defendant be the “ir-
replaceable” caretaker of a child or parent. See United States
v. Leon, 341 F.3d 928, 931-33 (9th Cir. 2003). Even if these
pre-Booker cases no longer control, their reasoning is persua-
sive. A sentence is substantively unreasonable under the
abuse of discretion standard where the district court mitigates
a sentence based on the mere imposition of hardship on fam-
ily relationships that necessarily accompanies the order of any
prison sentence. Cf. U.S.S.G. § 5H1.6 (“[F]amily ties and
responsibilities are not ordinarily relevant in determining
whether a departure may be warranted.”).
The district court also found mitigating circumstances in
the “extreme remorse of the defendant,” and his acceptance of
responsibility. The district court did not explain the basis for
its conclusion nor why this factor called for no jail time.
Whitehead put the government to its burden to prove his guilt
at trial. The only possible basis for finding “acceptance of
responsibility” was that Whitehead admitted to a parole offi-
cer that he illegally sold five access cards. Although the dis-
trict court would be entitled to consider this as acceptance of
responsibility, here the district court already awarded White-
head a 2-level downward departure for this factor under its
preliminary sentencing calculation. It was an abuse of discre-
tion to use the same facts that under the Guidelines would
warrant a 2-level departure to justify a complete sentence
reduction, at least without further explanation of why the 2-
level departure was insufficient to account for this factor. As
for remorse, Whitehead’s testimony amounted to little more
than an admission that after he got caught and indicted, he
wisely turned to a legitimate form of business. The district
court offered no explanation as to how this showed such “ex-
treme remorse” that a total reduction of sentence was warranted.4
4
The contrast between the facts of this case and Gall are illustrative.
After a seven month stint in college helping friends to sell drugs, Gall
8732 UNITED STATES v. WHITEHEAD
The district court also stated it found mitigating the fact
that there was “little likelihood of recidivism” by Whitehead.
However, the likelihood of recidivism was already taken into
account during the district court’s calculation of Whitehead’s
criminal history category: the district court placed him into
Criminal History Category I, “set for a first offender with the
lowest risk of recidivism.” See U.S.S.G. § 4A1.3, cmt. n.3. In
a pre-Booker case, the Supreme Court held that a downward
departure based on a low likelihood of recidivism was double-
counting because the “Commission took that factor into
account in formulating the criminal history category.” Koon
v. United States, 518 U.S. 81, 111 (1996); see also United
States v. Working, 287 F.3d 801, 808 (9th Cir. 2002). Even if
these pre-Booker cases are no longer controlling, their reason-
ing is persuasive. The district court abused its discretion by
completely reducing Whitehead’s sentence based on a low
likelihood of recidivism where the Guidelines calculation
itself had already been reduced to reflect this factor.
In addition to erroneously reducing Whitehead’s sentence
based on factors that were both unexceptional and already
made the decision to choose a different path in life. See Gall, 128 S. Ct.
at 591-92. Completely on his own initiative, he stopped using drugs,
announced that he was withdrawing from the conspiracy, and never sold
illicit drugs again. Id. at 592. The district court found that Gall’s post-
offense conduct “ ‘was not motivated by a desire to please the [c]ourt . . .
but was the pre-Indictment product of the Defendant’s own desire to lead
a better life.’ ” Id. at 593. Here, Whitehead continued his criminal activi-
ties up through the time he sold three unlawfully reprogrammed access
cards to an undercover FBI agent and was arrested. He contested his guilt
through trial. Only after he was caught did he open a painting business to
support himself. In Gall, the Court reversed the Eighth Circuit because “it
ignore[d] the critical relevance of Gall’s voluntary withdrawal, a circum-
stance that distinguished his conduct . . . from the vast majority of defen-
dants convicted of conspiracy in federal court.” Id. at 600. Gall can hardly
be read to foreclose reversal when the same kind of mercy shown to Gall
was shown in this case to Whitehead, who was merely one of the “vast
majority of defendants” from which the Supreme Court distinguished Gall.
UNITED STATES v. WHITEHEAD 8733
reflected in the district court’s tentative Guidelines calcula-
tion, the district court abused its discretion by erroneously
failing to consider and balance the fact that Whitehead’s sen-
tence would result in unjust sentencing disparities with his co-
defendant. See 18 U.S.C. § 3553(a)(6). Whitehead’s co-
defendant, Vanderziel, had played a minor role in White-
head’s business, and had pleaded guilty and cooperated with
the government by testifying against Whitehead at trial. The
same district court sentenced Vanderziel to three years’ pro-
bation and a small fine. As Whitehead concedes, Vanderziel
was sentenced to probation instead of imprisonment as recog-
nition for his early guilty plea and agreement to testify against
Whitehead at trial. Whitehead, in contrast, was the owner of
the piracy enterprise, and contested his guilt through trial. The
district court failed to explain how a defendant who contested
his guilt through trial should end up with an almost identical
sentence to a co-defendant who had specifically been given a
minimal sentence in exchange for his guilty plea and coopera-
tion with the government.
IV
Were it merely the case that I was certain that I, sitting as
the district court, would have sentenced Whitehead differ-
ently, I would agree with the majority that reversal is not
proper. See Carty, 520 F.3d 984. In this case, however, I am
left with a definite and firm conviction that the district court
committed a clear error of judgment in the conclusion it
reached upon weighing the relevant factors. The district court
reduced Whitehead’s sentence from a Guidelines-
recommended sentence of 33 months’ imprisonment to a term
of mere probation based on factors that had already been
reflected in that Guideline calculation, and failed to explain
why the Guidelines-recommended adjustments for these fac-
tors were insufficient. The district court failed to account for
the fact that by completely reducing Whitehead’s sentence, it
gave Whitehead essentially the same “reward” that was given
8734 UNITED STATES v. WHITEHEAD
to his co defendant, notwithstanding that only the co-
defendant pleaded guilty and cooperated with the government.
Moreover, I am concerned that this sentence now becomes
a baseline against which we measure other sentences.
Although the majority is quite comfortable leaving White-
head’s sentencing to the district court, we also have an obliga-
tion to other defendants to ensure that their sentences are fair
and within some broad range of Platonic equality. White-
head’s non-sentence surely becomes an important starting
point for defendants in this circuit willing to claim close fam-
ily ties and post-conviction remorse to avoid prison.5 As a cir-
cuit, we have an obligation to ensure roughly equal sentences
both among our judicial districts and within each judicial dis-
trict. Deferring equally to district court sentences is not the
same as securing equal sentences in district court.
Whitehead stole over $1 million in profits from DirectTV,
and personally took in approximately $400,000. The district
court’s sentence of a mere term of probation, where the
Guidelines—adjusted to account for Whitehead’s mitigating
circumstances—recommended 33 months in prison, was sub-
stantively unreasonable. I agree with the government’s attor-
ney, who uttered in shock when he heard the district court’s
proposed sentence: “It’s got to be . . . the case, Your Honor,
that folks are held responsible for what they do.”
I respectfully dissent.
5
I am further troubled by the possibility that upholding this abuse of dis-
cretion will greatly weaken the ability of prosecutors to secure the evi-
dence necessary for successful convictions. The majority opinion
eviscerates the power to negotiate plea agreements contingent on coopera-
tion with law enforcement and testimony at trial. Why would a low-level
player plead guilty and testify against a high-ranking co-conspirator in
exchange for the promise of a sentence reduction, risking possible recrimi-
nations for snitching, when he knows he is just as likely to receive the
same complete sentence reduction whether or not he cooperates with the
government?