United States v. Guy Savage ( 2010 )

FILED
NOT FOR PUBLICATION DEC 20 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S . CO UR T OF AP PE A LS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50456
Plaintiff - Appellee, D.C. No. 8:05-cr-00139-CJC-1
v.
MEMORANDUM *
GUY WILLIAM SAVAGE,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted September 1, 2010
Pasadena, California
Before: O'SCANNLAIN, FISHER and GOULD, Circuit Judges.
Guy William Savage appeals the sentence imposed following his guilty plea
to three counts of armed banµ robbery, in violation of 18 U.S.C. y 2113(a) and (d),
and two counts of banµ robbery, in violation of y 2113(a). We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. Savage's appeal waiver bars our review of his argument that the
district court failed to comply with two procedural rules imposed by Rule 32(i) of
the Federal Rules of Criminal Procedure. Savage expressly waived his right to
appeal 'the manner in which [his] sentence [was] determined.' This language
plainly encompasses the district court's alleged errors under Rule 32(i)(1)(A) and
(i)(4)(A)(ii). See United States v. Baramdyµa, 95 F.3d 840, 843 (9th Cir. 1996)
('In reviewing a waiver of appeal, we . . . focus . . . upon the language of the
waiver to determine its scope.'). United States v. Petty, 80 F.3d 1384 (9th Cir.
1996), upon which Savage relies, is distinguishable. As Petty explains, the scope
of a plea agreement turns on the intent on the parties. See id. at 1387. Here, in
contrast to Petty, the language of the agreement refers to the manner in which the
sentence was determined. It thus expressly covers the errors that Savage seeµs to
raise on appeal. Furthermore, in contrast to Petty, nothing in the parties'
statements or conduct contradicts the language of the agreement.
2. The district court 'adequately explain[ed] the chosen sentence.' Gall
v. United States, 552 U.S. 38, 51 (2007). Before imposing a below-Guidelines
sentence, the court discussed in detail the seriousness of Savage's offenses,
including the number of banµ robberies, the use of hoax bombs, that the robberies
were 'committed in a cruel and calculated way that are surely to lead to the
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intentional infliction of emotional distress on the banµ tellers' and Savage's
recruitment of a homeless man as an accomplice. The court also discussed several
mitigating factors, particularly the extreme pain and emotional distress Savage
suffered while in custody as a result of gunshot wounds he sustained at the time of
his arrest. Finally, the court explained how it balanced Savage's pain and suffering
against the 'other objectives of sentencing, such as just punishment for the offense,
deterrence, and maµing sure that the sentence reflects the seriousness of what he
did.'
3. The sentence is not substantively unreasonable. The district court
reasonably concluded that, absent mitigation, Savage's offenses were serious
enough to warrant a sentence in excess of the Guidelines range. The court then
reasonably determined that the extreme pain and suffering Savage suffered while
in custody warranted a five-year reduction in his sentence. This resulted in a
substantively reasonable, below-Guidelines term of 120 months in prison. See,
e.g., United States v. Blinµinsop, 606 F.3d 1110, 1116 (9th Cir. 2010) ('When a
district judge has considered the y 3553(a) factors and the totality of the
circumstances supports the sentence, we have held that the sentence is
substantively reasonable . . . .').
AFFIRMED.
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FILED
United States v. Savage, 09-50456 DEC 20 2010
MOLLY C. DWYER, CLERK
GOULD, J., concurring in part and dissenting in part: U .S . CO UR T OF AP PE A LS
I respectfully dissent from the majority's determination that an appeal
waiver applies prospectively to a district court's unforeseeable post-waiver errors.
I would follow United States v. Petty, 80 F.3d 1384 (9th Cir. 1996), and remand
for resentencing because Savage's personal right of allocution under Rule 32 of the
Federal Rules of Criminal Procedure was not honored before sentence was
rendered. It does not matter that Savage had submitted a letter and that after the
sentence he thanµed the court. The right personally to allocute before issuance of
the sentence is a bedrocµ requirement of Rule 32, and is explicitly mandated by
Rule 32(i)(4). It may seem liµe a waste of time to resentence and permit the
defendant to be present and speaµ at his sentencing, when the sentencing judge
may be liµely to reimpose the same reasonable sentence. However, the principle of
permitting allocution is an important one and I would not disregard it. When the
defendant exercises a right to speaµ to the court, there is always the chance of a
judicial change of mind, and further when the court addresses the defendant the
court's words may have important impact in deterring recidivism.
As for the scope of the appeal waiver, I would follow Petty because in
agreeing to the waiver Savage could not have reasonably anticipated that the
district court in sentencing would disregard the clear requirement of Rule 32
permitting a personal allocution. Following Petty does not pose any conflict with
United States v. Johnson, 67 F.3d 200 (9th Cir. 1995), because Johnson merely
permits a waiver to reach post-agreement errors that were foreseeable when it was
entered, whereas here it was not reasonably foreseeable, in the light of Rule 32ùs
command, that the sentencing court would pretermit personal allocution.
I concur that the district court adequately explained the sentence, and that
the sentence was not substantively unreasonable.
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