United States v. Ruff , 535 F.3d 999 ( 2008 )

Opinion by Judge FISHER; Dissent by Judge GOULD.

FISHER, Circuit Judge:

Kevin Lee Ruff (“Ruff’) pled guilty to several counts of health care fraud, embezzlement and money laundering. The district court originally sentenced Ruff to a prison term of 12 months and one day and three years supervised release, recommending that he serve his sentence at Geiger Corrections Center (“Geiger”) to allow him to work, pay restitution and visit with his then 11-year-old son. Discovering that Geiger would not house prisoners, the district court amended Ruffs sentence to one day of imprisonment and three years of supervised release, with the condition that he serve 12 months and one day of his supervised release at Geiger. The government insists that this modification overstepped the bounds of the district court’s sentencing authority. We disagree. Applying the requisite deferential standard of review, we conclude that the district court did not abuse its discretion and that the sentence it imposed is reasonable. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

BACKGROUND

Ruff worked as a Materials Supervisor at Sacred Heart Medical Center (“SHMC”) between January 2002 and October 2005. In this capacity, he “had access and authority to record receipt of inventory, to make adjustments to the inventory account, and to modify purchase orders to include additional items for inventory.” Ruff took advantage of this authority to steal $644,866 worth of SHMC inventory and sell it over eBay. When confronted by his employer, Ruff readily admitted his illegal conduct and cooperated with federal investigators. In December 2006, he pled guilty to one count of health care fraud, in violation of 18 U.S.C. § 1347, four counts of theft, embezzlement and conversion of property and assets of a health care benefit program, in violation of 18 U.S.C. § 669, and four counts of money laundering, in violation of 18 U.S.C. § 1956(a)(1). The Presentencing Report calculated Ruffs guideline range as 30-37 months.

At a May 1, 2007 sentencing hearing, the district judge began his analysis by accepting the guideline range as accurate and noting its advisory nature. Acknowledging that he was “required to impose a sentence that’s sufficient, but not greater than necessary to comply with the provisions of the law,” the judge then considered the sentencing factors embodied in 18 U.S.C. § 3553(a). With respect to aggravating factors, he noted the crime was “serious” given the manner in which it was committed and the amount of property it involved. He went on to emphasize a host of mitigating factors, including: (1) Ruffs history of strong employment; (2) his cooperation and “clear[ ] remorse[ ]”; (3) his support from his siblings; (4) the absence of potential risk to the public and the appropriateness of restitution; and (5) his mental health issues and gambling addiction. With respect to this final factor, Ruff admitted that he had lost approximately $200,000 to compulsive gambling, and that he had participated in counseling for pathological gambling and depression between November 2005 and March 2006. The judge observed that Ruff would clearly benefit from continued mental health treatment for his illness and, considering all of the factors, committed Ruff to the custody of the United States Board of Prisons (“BOP”) for 12 months and one day, recommending that he serve his sentence at Geiger to allow him to participate in work release, get counseling and attend off-site visits with his son. He also placed Ruff on three years of supervised release.

Less than one week later, the judge learned that Geiger could house Ruff only if his confinement was as a condition of supervised release. Reconvening a hearing on May 7, the judge “amend[ed] the judgment” by committing Ruff to the custody of BOP for one day and placing him on three years supervised release. As a condition of his supervised release, Ruff was required to serve a term of confinement of one year and one day in a confinement facility. The judge again recommended that Ruff spend this period at Geiger to facilitate his work release, treatment and child visitation.

STANDARD OF REVIEW

The abuse of discretion standard applies to all sentencing decisions, both those within and outside of the guidelines. See Gall v. United States, — U.S.-, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007); United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). We first must ensure that the district court did not commit a significant procedural error and then consider the sentence’s substantive reasonableness. See Gall, 128 S.Ct. at 597; United States v. Rising Sun, 522 F.3d 989, 993 (9th Cir.2008). Although we “consider the totality of the circumstances, including the degree of variance for a sentence imposed outside the [guidelines range,” extraordinary circumstances are not needed to justify a sentence outside the guidelines range and we must give due deference to the district court’s decision that the sentencing factors warrant a particular variance. Carty, 520 F.3d at 993; see also Gall, 128 S.Ct. at 595-97. This standard reflects the common theme throughout the Supreme Court’s recent sentencing decisions — to “breathe life into the authority of district court judges to engage in individualized sentencing.” United States v. Whitehead, 532 F.3d 991, 993 (9th Cir. 2008) (per curiam) (internal quotation marks omitted).

I.

The government first contends that the district court committed a procedural error by failing to address any of the sentencing factors during the May 7, 2007 hearing. Because we cannot reasonably consider this second hearing in isolation from the May 1 hearing, when the court analyzed the sentencing factors in detail, the district judge’s failure to reiterate his previous analysis from the week before does not constitute procedural error.

The district court is statutorily required “at the time of sentencing, [to] state in open court the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). “It is most helpful for this to come from the bench, but adequate explanation in some cases may also be inferred from ... the record as a whole.” Carty, 520 F.3d at 992. The district court “articulated its reasoning to the degree required for meaningful appellate review” during the May 1 hearing. United States v. Perez-Perez, 512 F.3d 514, 517 (9th Cir.2008). Discovering that the intended sentence was not feasible in its original structure, the judge convened the May 7 hearing to modify the sentence specifically to allow the BOP to effectuate the sentence the judge had initially proposed. It is plain that the judge considered this second hearing a mere continuation of the first. It would elevate form over substance to require the judge to reiterate the sentencing factors at the second hearing, as the only alteration was the terminology he used: both before and after the second hearing, Ruff was required to spend 12 months and one day of confinement in a residential center, where he could receive counseling for his gambling addiction, participate in work release to help pay restitution and have periodic visitations with his son as BOP might approve. Applying the judge’s reasoning from the May 1 hearing to the substantively identical sentence imposed at the May 7 hearing, we conclude that there was no procedural error. Cf United States v. Crisp, 454 F.3d 1285, 1290 (11th Cir.2006) (holding that the reasoning for the probationary sentence “carried over” to the five hour prison sentence that was imposed after the district court learned that the criminal statute required some incarceration).

II.

For similar reasons, we are not persuaded by the government’s argument that Ruffs sentence is substantively unreasonable. The original below-guideline sentence was reasonable in light of the mitigating factors the judge discussed in detail during the May 1 hearing. Cf. Gall, 128 S.Ct. at 592-93, 598-602(holding that a sentence of 36 months probation when the applicable guideline range recommended 30 to 37 months imprisonment was reasonable based on district court’s reasoning); Whitehead, 532 F.3d at 992-93 (affirming below-guideline sentence post-GaZZ based on district court’s reasoning). The dissent emphasizes that certain factors discussed in Gall are not present here. Dissent at 1004-06. The clear message in Gall, however, is that we must defer “to the District Court’s reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the sentence.” 128 S.Ct. at 602. Gall happened to discuss post-crime maturation and self-rehabilitation because they were the basis of the district court’s reasoned decision in that case, but it is the reasoned decision itself, not the specific reasons that are cited, that triggers our duty to defer. Here, the district judge plainly satisfied this requirement, relying on factors such as treatment, cooperation and familial support to arrive at his chosen sentence. “[I]ntimately familiar with the nature of the crime and [the] defendant’s role in it, as we are not” and able to appraise Ruffs sincerity, as we cannot, “the district court was ‘in a superior position’ to find the relevant facts and to ‘judge their import.’ ” Whitehead, 532 F.3d at 993 (quoting Gall, 128 S.Ct. at 597).¹

These same factors also justify the amended sentence as reasonable, because the only difference between the two sentences is one of meaningless semantics. Repeatedly referring to Ruffs sentence as imposing only one day in jail, the government entirely ignores that a condition of the modified sentence is a 12 month and one day period of confinement in a residential facility. The dissent similarly downplays the severity of Ruffs sentence, describing it as “a mere slap on the wrist.” Dissent at 1006. These characterizations directly flout the Supreme Court’s instruction that courts should not quantify variances from the guidelines “as a certain

percentage of the maximum, minimum, or median prison sentence recommended by the [guidelines” because this “gives no weight to the ‘substantial restriction of freedom’ involved in a term of supervised release or probation.” Gall, 128 S.Ct. at 595. Noting that custodial sentences (such as the one at issue here) are “qualitatively more severe than probationary sentences,” the Supreme Court went on to emphasize that even the latter are quite oppressive given that probationers are “subject to several standard conditions that substantially restrict their liberty.” Id. Following this lead, we recently affirmed a sentence of probation, community service and restitution, where the guidelines range recommended 41-51 months, emphasizing “the district court was ‘in a superior position’ to find the relevant facts and to ‘judge their import.’ ” Whitehead, 532 F.3d at 993 (quoting Gall, 128 S.Ct. at 597). Ruffs sentence is even more arduous than Gall’s or Whitehead’s, given that Ruff is being confined in the very facility the district court had originally recommended for his imprisonment, subject to the identical conditions relating to work, visitation and counseling. Moreover, Ruffs subsequent probation is subject to several special conditions that drastically curtail his financial autonomy. See Gall, 128 S.Ct. at 596(citing special conditions during probationary period as evidence of its severity). Given these circumstances, it is illogical and inappropriate to treat the modified sentence as anything other than functionally identical to Ruffs original, substantively reasonable sentence.

Even assuming we were to disagree with the district judge’s assessment of Ruffs merits and demerits, “[t]hat we might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” United States v. Stoterau, 524 F.3d 988, 999(9th Cir.2008) (internal quotation marks omitted); see also Whitehead, 532 F.3d at 993 (“Even if we are certain that we would have imposed a different sentence had we worn the district judge’s robe, we can’t reverse on that basis.”). Following the Supreme Court’s clear mandate, we defer to the district court’s “reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the sentence.” Gall, 128 S.Ct. at 602.

AFFIRMED.

1 . With respect to the dissent's discussion of sentencing decisions involving white collar crime, we note that courts have affirmed low or below guidelines sentences for crimes ranging from the distribution of controlled substances to the unlawful possession of child pornography or a firearm. See, e.g., Gall, 128 S.Ct. at 602(affirming below guidelines sentence for conspiracy to distribute ecstasy); United States v. Martin, 520 F.3d 87 (1st Cir. 2008) (affirming below guidelines sentence for conspiracy to distribute cocaine base); United States v. Grossman, 513 F.3d 592 (6th Cir.2008) (affirming below guidelines sentence for possession of child pornography); United States v. Lehmann, 513 F.3d 805 (8th Cir.2008) (affirming below guidelines sentence for unlawful possession of a firearm); United States v. McGhee, 512 F.3d 1050 (8th Cir.2008) (affirming below guidelines sentence for possession with intent to distribute cocaine base); United States v. Pauley, 511 F.3d 468 (4th Cir.2007) (affirming below guidelines sentence for possession of child pornography); United States v. McBride, 511 F.3d 1293 (11th Cir.2007) (affirming below guidelines sentence for distribution of child pornography). Although “more time thinking about the appropriate punishment for white collar crime,” Dissent at 1006, may be necessary as a general matter, neither we nor the district court, as the record shows, are purporting to treat white collar crimes differently from other crimes.