United States v. Sample

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS August 27, 2018
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 17-2086
MATTHEW DALE SAMPLE,
Defendant - Appellee.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:15-CR-04265-JCH-1)
_________________________________
Fred J. Federici, United States Attorney’s Office, Albuquerque, New Mexico (James D.
Tierney, United States Attorney’s Office, Albuquerque, New Mexico, with him on the
briefs), for Plaintiff-Appellant.
Ray Twohig, Albuquerque, New Mexico for Defendant-Appellee.
_________________________________
Before LUCERO, HARTZ, and HOLMES, Circuit Judges.
_________________________________
LUCERO, Circuit Judge.
_________________________________
The United States government appeals the sentence of Matthew Sample,
following his guilty plea to one count of frauds and swindles under 18 U.S.C. § 1341
and two counts of wire fraud under 18 U.S.C. § 1343. In sentencing Sample to a
five-year term of probation on the rationale that such a sentence would allow him to
repay his victims, the district court essentially sentenced Sample based on his
income. We conclude that this sentence was unreasonable. Exercising jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b), we reverse and remand for
resentencing.
I
Sample began working as a licensed investment advisor and registered broker
in 1995. He worked for several large brokerage firms and was recognized as a top
advisor. In 2006, Sample began operating the Vega Opportunity Fund (the “Vega
Fund”). One year later, in 2007, he closed the fund after it had lost sixty-five percent
of its value. Sample had been diverting funds invested in the Vega Fund for his own
personal expenses, and had been providing investors with false account statements
and quarterly updates on their purported investments.
After closing the Vega Fund, Sample moved from Chicago, Illinois, to
Albuquerque, New Mexico. In October of 2009, he began a hedge fund called the
Lobo Volatility Fund, LLC (the “Lobo Fund”). He reverted to form. In a scheme
similar to that perpetrated on investors in the Vega Fund, Sample provided false
monthly statements showing appreciation in value, engaged in misleading email
correspondence about market strategies, and provided false tax reports to Lobo Fund
investors. All the while, Sample diverted a total of $1,086,453.62 from investors for
his personal use.
2
In December of 2015, Sample was charged with one count of defrauding and
swindling in violation of 18 U.S.C. § 1341 and two counts of wire fraud, in violation
of 18 U.S.C. § 1343. He pled guilty to all charges.
On sentencing, the government requested a sentence at the low end of
Sample’s Guidelines range, which was 78 to 97 months’ imprisonment. It argued
that the impact upon Sample’s victims had been profound: some lost their entire life
savings, others were unable to retire as planned, and many expressed profound
emotional distress as a result of Sample’s betrayal. Sample’s conduct was cast by the
government as selfish, callous, and dishonest. The government referenced his
attempts to convince investors to testify for him before the Securities and Exchange
Commission and in his criminal case as evidence of his selfishness.
The government noted Sample’s previous unadjudicated conduct in Illinois,
regarding the Vega Fund, now imported to New Mexico, and argued that Sample’s
betrayal of his fiduciary obligations and the trust placed in him as a financial
professional demanded a significant sentence. It reasoned that Sample’s sentence
should reflect the seriousness of white collar crime and deter other financial
professionals from similar conduct. Although the government acknowledged that
less prison time would aid in victim restitution, restitution was unlikely to occur
because Sample had filed a petition in bankruptcy. Even were he able to enhance the
opportunity for restitution, the government urged Sample should serve the same
prison time for his crimes as another defendant with a lower earning capacity would
suffer.
3
To the contrary, Sample argued that he should receive consideration for
probation based on his unblemished record in the securities industry before 2008, his
charity and volunteer work during that time, and his previous financial support of his
family and friends. Sample construed his crimes as an aberration resulting from
stress. That stress arose from, in part, the 2008 financial crisis, the collapse of his
financial practice, his divorce, acceptance of his gay identity, and his move to New
Mexico. He began using alcohol, cocaine, and ecstasy, which he claimed contributed
to his reckless behavior. Essentially, Sample rationalized that he swindled his clients
in order to provide for his family and entertain his friends. He sought
acknowledgement that at the time of sentencing, he was gainfully employed,
engaged, and was free of drugs and alcohol. Continued employment with a six-figure
annual income, Sample told the court, would allow him to make significant
restitution payments to his former investors.
At Sample’s sentencing, the district court acknowledged that Sample’s crimes
were “quite shameful” and indicated that it was ignoring Sample’s statements as the
usual “right things” most defendants mouthed at sentencing. The court chose instead
to focus on the impact that the crimes had upon the victims. Every defrauded
investor “wants their money back,” said the court. “A prison term would end the
current job that you have, with no guarantee that you would have this job or one like
it when you got out of jail,” the court explained, “I want you to keep your job,
because I want you to have a good job to pay these victims back.”
4
In choosing probation, the court noted that society at large had suffered, and
accordingly imposed what the court described as strict probation conditions. The
court explicitly indicated that if Sample did not have his “current job and [his] ability
to make these payments, I might be doing something different” and that “one of the
reasons I’m willing to place the defendant on probation was because of this job and
his earning capacity.” Sample was sentenced to a five-year term of probation.
Special conditions were imposed. Sample is banned from using or possessing
alcohol or drugs and from acting in a fiduciary capacity. He is required to obtain
permission from the probation office for personal travel and incurrence of new credit
charges. Sample is also required to maintain gainful employment, allow the
probation office access to his financial information, participate in a substance abuse
treatment program, and undergo regular drug testing. He is ordered to pay restitution
to his victims.
The government brings this appeal.
II
We are urged to hold that Sample’s sentence is substantively unreasonable
because the district court gave improper weight to Sample’s income and consequent
ability to pay restitution. However, the government asserts that its substantive
challenge may also be considered procedural in nature. Our jurisprudence regarding
whether such arguments are properly considered procedural or substantive has not
been fully developed. See United States v. Sayad, 589 F.3d 1110, 1116-17 (10th Cir.
2009) (summarizing conflicting precedent regarding the proper framing of a
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challenge based on a sentencing court’s consideration of an impermissible factor).
Because the government describes its challenge as addressed to the weight that the
district court gave to this factor, rather than whether it is permissible, we will
consider it a substantive challenge. United States v. Pinson, 542 F.3d 822, 835-36
(10th Cir. 2008) (“[T]he weight the district court places on certain factors is reviewed
for substantive unreasonableness, use of an improper factor is reviewed for
procedural unreasonableness.”).
“Review for substantive reasonableness focuses on whether the length of the
sentence is reasonable given all the circumstances of the case in light of the factors
set forth in 18 U.S.C. § 3553(a).” United States v. Friedman, 554 F.3d 1301, 1307
(10th Cir. 2009) (quotation omitted). We review the substantive reasonableness of a
sentence for abuse of discretion. Sayad, 589 F.3d at 1116. This is a deferential
standard: “a district court’s sentence is substantively unreasonable only if it is
arbitrary, capricious, whimsical, or manifestly unreasonable.” Id. (quotation
omitted). Nevertheless, “appellate review continues to have an important role to play
and must not be regarded as a rubber stamp.” Pinson, 542 F.3d at 836.
We do not apply “a rigid mathematical formula that uses the percentage of a
departure as the standard for determining the strength of the justifications required
for a specific sentence.” Gall v. United States, 552 U.S. 38, 47 (2007). But in
examining a sentence that varies from that suggested by the Sentencing Guidelines,
we must determine whether “the justification [for varying from the Guidelines range]
is sufficiently compelling to support the degree of variance.” Id. at 50. It is
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“uncontroversial that a major departure should be supported by a more significant
justification than a minor one.” Id.
We are puzzled by the court’s implicit suggestion that if the defendant were
poor and unemployed, he might get a prison term. Our court has previously
explained in an unpublished decision that courts should not rely on a defendant’s
wealth in fashioning a sentence. See United States v. Morgan, 635 F. App’x 423, 446
(10th Cir. 2015) (unpublished) (concluding that focusing on the collateral
consequences of a conviction “impermissibly favor[s] criminals . . . with privileged
backgrounds”); 1 see also United States v. Kuhlman, 711 F.3d 1321, 1329 (11th Cir.
2013) (“The Sentencing Guidelines authorize no special sentencing discounts on
account of economic or social status.”); United States v. Prosperi, 686 F.3d 32, 47
(1st Cir. 2012) (“[I]t is impermissible for a court to impose a lighter sentence on
white-collar defendants than on blue-collar defendants because it reasons that white-
collar offenders suffer greater reputational harm or have more to lose by
conviction.”); United States v. Stall, 581 F.3d 276, 286 (6th Cir. 2009) (“We do not
believe criminals with privileged backgrounds are more entitled to leniency than
those who have nothing left to lose.”); United States v. Stefonek, 179 F.3d 1030,
1038 (7th Cir. 1999) (“Business criminals are not to be treated more leniently than
1
In Morgan, as with some of the out-of-circuit cases cited infra, the court
analyzed the procedural reasonableness of considering these factors. Id. But see id.
at 455-69 (Holmes, J., concurring) (considering the issue as a substantive
reasonableness challenge). We conclude that these cases provide persuasive
guidance on the related issue of whether a district court imposes a substantively
unreasonable sentence by granting these factors significant weight.
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members of the ‘criminal class’ just by virtue of being regularly employed or
otherwise productively engaged in lawful economic activity.”). Cf. 28 U.S.C.
§ 994(d)(11) (requiring that the Commission “shall assure that the guidelines and
policy statements are entirely neutral as to the race, sex, national origin, creed, and
socioeconomic status of offenders.”)
During its final sentencing determination, the district court repeatedly stressed
the importance of restitution in its decision. And it explicitly based its sentencing
decision in large measure on Sample’s ability to repay his victims. The court stated
that if Sample did not have his “current job and [his] ability to make these payments,
I might be doing something different” and that “one of the reasons I’m willing to
place the defendant on probation was because of this job and his earning capacity.”
The need to provide restitution to victims is one of the factors district courts must
consider in fashioning a sentence. See 18 U.S.C. § 3553(a)(7). However, the district
court’s reliance on Sample’s salary as overriding all other sentencing considerations
exceeded the bounds of permissible choice.
As the district court noted, Sample’s offense was serious and it inflicted
considerable harm upon his victims. See § 3553(a)(2)(A) (requiring that district
courts consider “the need for the sentence imposed” to “reflect the seriousness of the
offense”). He misappropriated more than a million dollars. That seriousness alone
weighs against the lenient nature of the sentence that the trial court imposed. United
States v. Walker, 844 F.3d 1253, 1256 (10th Cir. 2017) (“[T]he length of the sentence
8
should reflect the harm done and the gravity of the defendant’s conduct.” (quotations
omitted)).
Similarly, the district court failed to adequately balance the need to “promote
respect for the law,” “provide just punishment for the offense,” and “afford adequate
deterrence to criminal conduct.” § 3553(a)(2)(A), (B). “General deterrence is one of
the key purposes of sentencing.” Walker, 844 F.3d at 1257 (quotation omitted).
Congress has recognized that general deterrence is particularly important in the
context of white collar crime. See United States v. Martin, 455 F.3d 1227, 1240
(11th Cir. 2006) (“[T]he Congress that adopted the § 3553 sentencing factors
emphasized the critical deterrent value of imprisoning serious white collar criminals,
even where those criminals might themselves be unlikely to commit another
offense.”); S. Rep. No. 98-225, at 76 (1983), reprinted in 1984 U.S.C.C.A.N. 3182,
3259 (“The second purpose of sentencing is to deter others from committing the
offense. This is particularly important in the area of white collar crime.”). White
collar criminals may be particularly susceptible to general deterrence because
“[d]efendants in white-collar crimes often calculate the financial gain and risk of
loss, and white-collar crime therefore can be affected and reduced with serious
punishment.” Kuhlman, 711 F.3d at 1329 (quotation and alteration omitted)).
In imposing minimal sentences on white-collar criminals, courts “raise
concerns of sentencing disparities according to socio-economic” status. United
States v. Levinson, 543 F.3d 190, 201 (3d Cir. 2008); see also United States v.
Mueffelman, 470 F.3d 33, 40 (1st Cir. 2006) (noting the importance of “minimiz[ing]
9
discrepancies between white- and blue-collar offenses, and limit[ing] the ability of
those with money or earning potential to buy their way out of jail”). The district
court failed to sufficiently consider “the need to avoid unwarranted sentence
disparities.” § 3553(a)(6). The vast majority of fraud offenders convicted in 2016
were imprisoned, and for those with a criminal history level such as Sample’s,
Category II, the mean length of imprisonment was 39 months. U.S. Sent’g Comm’n,
Sourcebook of Fed. Sent’g Statistics, Table 12, Table 14 (2016). Of course, the
Guidelines themselves are designed to restrain unwarranted disparities. See Gall,
552 U.S. at 54. For an individual with Sample’s particular characteristics, the
Guidelines suggest a range of 78 to 97 months’ imprisonment.
We are not permitted to treat probation as if it were no punishment at all. Id.
at 47. However, “custodial sentences are qualitatively more severe than probationary
sentences of equivalent terms.” Id. Moreover, the particular terms of Sample’s
probation provide overly lenient punishment for a crime the Sentencing Commission
considers deserving of approximately seven years in federal prison. Sample may
travel for work, pay his fiancé’s college tuition, and even contribute to his 401(k)
retirement fund. He need not report to the Bureau of Prisons on weekends, engage in
community service, or even suffer restriction to his own home. Although the district
court indicated that it would not “look favorably” upon his “living the high life,” he
is not legally prohibited from any number of leisure activities by any condition of his
sentencing.
10
The record is clear that the district court imposed a lenient probation sentence
because Sample’s high income allowed him to make restitution payments to his
victims. Our system of justice has no sentencing discount for wealth. Stefonek, 179
F.3d at 1038. Other than Sample’s earning capacity, the district court identified a
few factors in mitigation: (1) Sample’s lack of a serious criminal history; (2) his
conduct on pretrial release; (3) his acceptance of responsibility; and (4) the likelihood
that he would not reoffend. These factors, considered cumulatively, do not justify the
extent of the district court’s variance from the Guidelines range. Examining the
§ 3553(a) sentencing factors without considering Sample’s earning capacity, it is not
possible to conclude that the probation Sample received, with its lenient conditions,
was a reasonable sentence. The seriousness of his crime, the importance of general
deterrence, and consistency in sentencing all clearly weigh against such an extreme
variance, and Sample’s limited criminal history and pretrial compliance with the law
cannot sustain a finding to the contrary. Resentencing is required.
III
For the foregoing reasons, we VACATE Sample’s sentence and REMAND
for resentencing. The parties’ motions to supplement the appendix are DENIED.
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