United States v. Bragg

N. RANDY SMITH, Circuit Judge,

dissenting:

I respectfully dissent. The district judge adequately explained the sentence, did not consider any inappropriate factors, and did not abuse his discretion.

As our en banc decision in United States v. Whitehead instructs, recent Supreme Court’s decisions have “empowered district courts, not appellate courts ... [and] breathe[d] life into the authority of district court judges to engage in individualized sentencing.” 532 F.3d 991, 993 (9th Cir.2008) (en banc) (quoting United States v. Vonner, 516 F.3d 382, 392 (6th Cir.2008)). “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.” Id. at 993 (citing Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)).

In my view, the majority opinion vacates a sentence with which it simply disagrees. Although the majority holds only that the district judge failed to adequately explain the sentence, its reasoning shows that it has failed to follow the “sage advice” of precedent that should bind our review. It has also confused the traditional “role of an appellate court,” which is not to “substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence.” Koon v. United States, 518 U.S. 81, 97, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (quoting Williams v. United States, 503 U.S. 193, 205, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992) (internal citations omitted)).

I. The District Court Adequately Explained the Sentence.

The record sufficiently shows that the district judge considered the parties’ arguments and had a reasoned basis for the sentence he imposed. Generally, “the judge must explain why he imposes a sentence outside the Guidelines.” United States v. Carty, 520 F.3d 984, 992 (9th Cir.2008) (citing Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007); Gall, 128 S.Ct. at 594 (indicating that a district judge “must explain his conclusion that an unusually lenient or an unusually harsh sentence is appropriate in a particular case with sufficient justifications”)). However, “adequate explanation in some cases may also be inferred from the PSR or the record as a whole.” Carty, 520 F.3d at 992. Therefore, to determine whether the judge adequately explained the sentence, we must view the record as a whole.

The record confirms that the district judge explicitly stated why he gave Bragg a below the Guidelines sentence. The judge specifically referenced consideration of (1) Bragg’s honorable military service; (2) Bragg’s conduct since 2000 (including his community service, his clean record, his educational achievements, and his alcohol rehabilitation), (3) the fact that the crime was a one-year problem; (4) that the tax liability was for an Arizona corporation that no longer exists; and (5) and the interests of justice in not putting Bragg in prison for events that occurred many years earlier. He also expressly considered Bragg’s vital role in continuing a business that employs over 700 individuals. The judge also credited Bragg’s restitution payments. Additionally, the judge stated that he considered the parties’ sentencing memoranda, reflected on Bragg’s circumstances, and considered the § 3558(a) factors and Gall.

The district court is not required to “tick off each of the § 3553(a) factors to show it has considered them.” Carty, 520 F.3d at 992. “Nor need the district court articulate in a vacuum how each § 3553(a) factor influences its determination of an appropriate sentence.” Id. The record is sufficient, and we can be “satisfied] ... that [the sentencing judge] has considered the parties’ arguments and has a reasoned basis for exercising his own legal decision-making authority.” Rita, 127 S.Ct. at 2468 (citing United States v. Taylor, 487 U.S. 326, 336-337, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988)). Therefore, I would affirm the district court as having sufficiently explained the sentence.

II. The District Court Did Not Consider Inadmissible Sentencing Factors.

The majority concludes that the district judge committed procedural error, because his explanation of the below-Guidelines variance included discussion of several “questionable” items. Majority Op. 968. I disagree.

First, the opinion faults the district judge for considering evidence that Bragg had a vital role in managing Brownstone. “Significant procedural” error can include “selecting a sentence based on clearly erroneous facts.” Gall, 128 S.Ct. at 597 (emphasis added). However, to the extent the district court selected a sentence on evidence of Bragg’s vital importance to Brownstone, such evidence is not clearly erroneous.

Our review under the clearly erroneous standard is significantly deferential, requiring a “definite and firm conviction that a mistake has been committed.” See Easley v. Cromartie, 532 U.S. 234, 242, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001). If the district court’s account of the evidence is plausible in light of the entire record, we may not reverse, even if we would have weighed the evidence differently. See Husain v. Olympic Airways, 316 F.3d 829, 835 (9th Cir.2002), aff'd, 540 U.S. 644, 124 S.Ct. 1221, 157 L.Ed.2d 1146 (2004). “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” United States v. Elliott, 322 F.3d 710, 714 (9th Cir.2003); see also Hayes v. Woodford, 301 F.3d 1054, 1067 n. 8 (9th Cir.2002) (internal quotation omitted) (“To be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must ... strike us as wrong with the force of a five-week-old unrefrigerated dead fish.”).

There is evidence in the record to support the district court’s finding that Bragg was indispensable to his company. The majority acknowledges the letter from Bragg’s father (indicating Bragg’s indispensability), but then concludes that “[t]he record, in fact, is far from clear as to Bragg’s indispensability in any business.” Majority Op. at 968. Bragg also testified about his role in the business, explaining that if he were incarcerated, his father may have to sell the company. This evidence was unrebutted by the Government. The majority suggests that more evidence (perhaps financial records) is needed to prove Bragg’s indispensability. However, the standard for procedural error (based on erroneous facts) is not whether the record is clear as to the asserted fact, but whether the facts relied on by the district court are clearly erroneous. See Gall, 128 S.Ct. at 597. Even though Bragg spoke about “the companies [his] Dad runs,” he also told the court about “[t]he current companies that my dad owns that I’m running.” In addition to the letter from Bragg’s father, Bragg’s statements at sentencing and Bragg’s sentencing memorandum also assert Bragg’s critical importance to his company’s continuing operations. Although we may question whether Bragg was truly indispensable, the district court’s reliance on evidence (that Bragg ran and was indispensable to Brownstone) is not procedural error. It is not clearly erroneous, and, therefore, not an “inadmissible” or improper factor.

Second, the majority faults the district court for considering that the offense of conviction was “old.” The fact that Bragg’s tax crime was an isolated incident (occurring many years ago) is at least relevant and cannot be an improper factor for the district court to consider in imposing a sentence.

Third, the majority makes too much of the district judge’s statements about deterrence in tax cases. Contrary to the majority’s assertion, the district judge’s comments do not “shrug off the entire policy [of deterrence].” Majority Op. at 970. Rather, in the context of the sentence Bragg received, the district judge essentially expressed an opinion that a custodial sentence in a tax case does not necessarily serve the interest of deterrence any greater than probation, fines and restitution do. This does not mean that he discounted deterrence as a factor in selecting a sentence, but rather that deterrence can be sufficiently achieved with probation, fines, and restitution. After all, fines, restitution, and probation (with its attending conditions and consequences) may, in some cases, be “sufficient, but not greater than necessary to reflect the seriousness of the offense, promote respect for the law, and provide just punishment; to afford adequate deterrence; to protect the public; and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment.” See Carty, 520 F.3d at 991 (9th Cir.2008) (citing 18 U.S.C. § 3553(a) and (a)(2)) (internal quotation marks omitted).

Depending on the circumstances, probation may be more effective at balancing the competing objectives of sentencing.Probation generally places significant restrictions on the liberty of probationers. With appropriate conditions, probation empowers the court to ensure rehabilitation, full restitution to victims, payment of fines, protection of the public, and compliance with the law. If the defendant falters or fails to comply, the violation of probation gives the judge power to mete out greater punishment, including incarceration. As the majority notes, “Probation is not leniency.” Majority Op. at 968. It is a “substantial restriction of freedom” that “can have a significant impact on both th[e] person and society.” Gall, 128 S.Ct. at 593-94, 596 & n. 4 (citations omitted). Not only can probation be sufficient punishment in some cases, but “ § 3553(a)(3) directs the judge to consider sentences other than imprisonment.” See Gall, 128 S.Ct. at 602. To the extent that the district judge expressed a doubtful opinion on the efficacy of custodial sentences in deterring tax crimes, such an expression does not mean he completely disregarded the interest of deterrence and does not amount to reversible error. The record is sufficiently clear, and there is simply no need to remand this case for the district judge to explain his expressions on deterrence in tax cases.

Fourth, the majority faults the district judge for considering Bragg’s payment of restitution as a reason for imposing a noncustodial sentence. Yet, § 3553(a)(7) expressly directs the district court to consider “the need to provide restitution to any victims of the offense.” Therefore, the district judge’s consideration of restitution cannot be procedural error.

The majority also appears to conclude that the district court should not have considered Bragg’s restitution payment, because it was insignificant in light of the possible civil penalties the IRS might impose under the Internal Revenue Code. I do not challenge the majority’s computation of the potential civil penalties Bragg may be required to pay. But the possibility or even probability that the IRS can or will impose future civil penalties should not weigh in our analysis. Our review should turn only on whether the district court violated the law in considering restitution as a factor, when imposing the sentence, not on our own assessment of whether Bragg’s restitution was significant enough in comparison to the total civil penalties the IRS could impose.

The majority also reweighs the restitutionary interest against the government’s interest in “assuring obedience to the law.” Majority Op. at 970. It also concludes that Bragg’s restitution payment was not “just punishment.” Majority Op. at 970. The majority discounts that Bragg was also placed on probation and ordered to pay a fine in addition to the criminal restitution. More importantly, however, the majority forgets our role as an appellate court. While we may disagree with the sentence, “it is not for [us] to decide de novo whether the justification for a variance is sufficient or the sentence reasonable. On abuse-of-discretion review,[we] should [give] due deference to the District Court’s reasoned and reasonable decision that the § 3553(a) factors, on the whole, justiffy] the sentence.” Gall, 128 S.Ct. at 602.

Although the parties agree that the judgment erroneously states that the district court waived any fine, this error is purely clerical and harmless. The record is clear that the district court ordered Bragg to pay a $20,000 fine, which Bragg has already paid and which he does not challenge. I see no reason to remand the judgement for reformation of an unchallenged clerical error.