There's only one published opinion from the Ninth Circuit today. The first one, I might add, in almost a week. Fortunately, it's one that's definitely worth reading.
Reasonable minds might approach this case from a variety of different perspectives. Which is evidenced in part by the fact that the panel is divided.
The issue surrounds what sentence should be given to Duncan Edwards, who was convicted of bankruptcy fraud as well as making a false statement to a bank. The district court sentenced him to five years of probation and seven months of house arrest. The question is whether that sentence is substantively unreasonable.
On the one hand, there's Judge Bea's dissent. Which most assuredly has a point, both globally as well as in this particular case. Both of which are also expressed exceptionally well; this is really a great job by Judge Bea.
As to this particular case, Judge Bea forcefully contends that it's totally unreasonable to sentence Edwards to no prison time. And there are plenty of good arguments in favor of that position. To take but one, the guidelines call for two to three years of prison. For another, it's important (to me, at least) that Edwards committed his current offenses while on probation for another set of offenses. And equally important (again, to me) is that those prior offenses were darn similar to the criminal offenses for which he was earlier convicted in Arizona before moving to Montana; essentially, we have a guy here who really, really likes to lie to banks (and, thereafter, to the bankruptcy court). Indeed, one reason why Edwards was convicted in the second round was because he lied to a bank because, when getting a loan, he failed to tell the bank that he had previously been convicted for lying to a bank in order to get a loan!
In short, you've got a serial felon who clearly hasn't learned in Round I -- and who's fradulently obtaining a pretty large amount of money as a result (hundreds of thousands, if not millions, of dollars). That's a guy who, in general, we should want to incarcerate. A conclusion that Judge Bea supports by rightly noting the need for general deterrence and the need to avoid having "white collar" criminals given a slap on the wrist while sentencing more downtrodden souls to lengthy prison terms for less serious offenses.
Judge Bea also makes a more global point, beyond this particular case, that the Ninth Circuit is unusually lenient in this regard. He aggressively labels this tendency both a "circuit split" as well as an "intra-circuit split," which I think is wrong, but I agree that the Ninth Circuit has an overall take on these "outside the guidelines" cases, and it's generally not one of being overly harsh.
As Judge Bea correctly notes, there have been several cases in which the Ninth Circuit has reversed outside-guidelines sentences as subjectively unreasonable for being overly long, and yet -- despite several opportunities (and over several dissents) -- has almost never reversed a below-guidelines sentence for being unreasonable. I say "almost never" because even in the Ninth Circuit there's what we might call the "terrorist exception" to that rule, an exception that arises from that court's recent decision in Rassam (which I discuss here) that held that even a 22-year sentence was unreasonably low for the would-be Millenium Bomber. But, in general, I think that Judge Bea is correct that the Ninth Circuit has a particular take on these cases. I'm quite confident that this "take" generally entails generalized deference to district courts, mind you, perhaps even more so than other circuits. But I also agree that, beyond this, there's a slight tendency for the Ninth Circuit to be more lenient than, say, the Fifth Circuit.
So that's the one hand. And I think Judge Bea presents it fairly well.
On the other hand, there's Judge Pregerson's opinion. Which, as you might imagine, does a decent job of vetting the other side. Basically, Judge Pregerson repeats the consistent refrain of deference. Plus points out the particular reasons why this sentence may well not be so absurd. Like the fact that the district court expressly found that Edward's claim to be a "different man" nowadays was credible, and hence that he was unlikely to do it again. In part due to his current health problems, in part to his change of careers, and in part because the district court judge simply thought that was the case, saying: "I've been doing this long enough and I can tell, I think, when people are genuine . . . . I find . . . his statement, his allocution, to be very credible. I don't think there's a chance in hell that he's goin to engage in this again in the future." If we give district courts discretion (and we do), it seems to me that findings like these are precisely why.
Judge Pregerson (i.e., the "other hand" also has one other extra-legal thing going for him as well: the fact that Judge Milan Smith joined the opinion. This not only makes it precedent as a realpolitik matter, but also lends it credibility, as Judge Smith is hardly a namby-pamby leftie looking to coddle criminals. I'm sure that Judge Pregerson had to water down what he might have otherwise written in the opinion in order to keep Judge Smith on board. But the fact that, in the end, Judge Smith agrees that the sentence here was reasonable says something.
Let me just add one additional thought. My initial impression of the case, even after reading Judge Pregerson's opinion and before reading the dissent, was that the sentence seemed a bit low. Maybe not "abuse of discretion" low, but low. However, what immediately came to mind for me -- beyond what was in the existing opinions -- was my recollection of other white collar case in which the defendants engaged in much more serious criminality and were also sentenced to house arrest. The one that instantly jumped to my mind was the sentence of Sothby's CEO DeDe Brooks to six months of house arrest for price-fixing that resulted in tens of millions of dollars in direct loss to customers, an offense that (in my mind, at least) was much worse than the offense here. And not only did Brooks get less house arrest time, as well as fewer years of probation, but she also got to serve her house arrest in a multi-million dollar New York City penthouse that, I'm quite confident, was far from the place where Edwards spent his time in Montana. If that's an appropriate sentence for CEOs like Brooks (and I'm not saying it was), it seems to me that the disparity point that Judge Bea makes seems less powerful, and that a judge firmly convinced of rehabiliation might indeed come out the way the district court did here.
So there you have it. Some thoughts on sentencing as we begin our shortened week.