Below Guidelines Sentence Upheld for Bankruptcy and Bank Fraud

cr-03-00058-dwmduncan william edwards, any other source be considered in determining the amount of considered in the calculation of his criminal history category. [2] although compensation to edwards's victims was the agreement expressly states that the parties entered into the vented the district court from ordering restitution in favor of (11th cir. 2006) (explaining that § 3553(a)(2)(b) speaks to "[t]he party asserting preclusion bears the burden of showing 513 f.3d 1150 (9th cir. 2008) is not persuasive. the defendant in cherer on a whole, justify the extent of the variance.' " autery, 555 that may be drawn from the facts in the record. although we sentence because in the government's view it creates an nowhere to be found in the statute. mcquillion v. schwarzenegger, 369 f.3d 1091, 1096 (9th cir. federal fraud defendants. the district court considered and stantively unreasonable and remanded for resentencing. id. rence by a probationary sentence because of the vagueness of cloud argued that the terms of the settlement agreement pre- because edwards's claim fails on the first factor, we need not address fraud and bankruptcy fraud nine years earlier with no subse- the history and characteristics of the defendant[.]" the gov- tion. raphy cases that we see frequently in this court. our circuit's analysis of below-guidelines sentences in the jacobellis v. ohio, 378 u.s. 184, 197 (1964) (stewart, j., con- the one imposed could be reasonable under 18 u.s.c. between them" and could not be used as an admission of lia- court did not abuse its discretion by sentencing the defendant to a lengthy extends also to the possible downside of his fraud: apprehen- been deterred, or not, by a conviction followed by only a pro- v. d.c. no. of 18 u.s.c. § 1014. although the advisory sentencing unreasonable. circuit courts exist to correct such mistakes the government's citation to our decision in united states v. cherer, there's a very good likelihood that he would engage in this ordered restitution. i also agree that the district court committed no proce- and rely on cases interpreting the vwpa as precedent." gor- gory because he had committed bank fraud while on proba- 2466 united states v. edwards circumstances already taken into account by the guidelines. on december 20, 2000, a bankruptcy judge approved a u.s. 36, 52 (1986)). million fdic obligation arising from his arizona conviction. you'll probably get probation and a restitution order of 20% furthermore, when reviewing a sentence that falls outside of u.s.c. § 3553(a)(2)(b). in this day and age of internet and argued and submitted defendant-appellant. dwm-1 restitution." 18 u.s.c. § 3664(f)(1)(b) (emphasis added).4 here, the district court identified and applied the correct concludes this sentence is substantively reasonable. but like unwarranted disparity in the treatment of edwards and other 2 fit from that fact. dealing with edwards. but the thieves among them have not been deterred his plot to carry out an attack against the united states by detonating tionary sentences of equivalent terms."). here, the sentence lished that (1) the issue necessarily decided at the perceivable receipt of just punishment accorded by incarcera- agreements, the banks agreed to waive "all direct rights or seventy-eight months' imprisonment). edwards's "changes in his life prior to any kind of indictment constitutes "unreasonable" in the abstract? i think the court, erroneous finding that general deterrence is not a significant the settlement did not compensate edwards's victims in the full able, "the appellate court must review the sentence under an including the need to protect the public."); united states v. tions of section 3553(a)"). here, the district court, like the dis- the district court concluded that the sentence of probation sory guidelines range. id. at 41, 47 ("[t]he extent of the dif- factor in this case and the conclusion that the sentencing fac- sentence was based on the § 3553(a) factors, it was based on united states of america, 9 be deterred by knowledge of his conviction. how does knowl- and approval of the voluntary settlement agreement contrasts 2470 united states v. edwards [3] "the purpose of a compromise agreement is to allow the sentencing court must consider "the need for the sen- in addition to the standard conditions of probation, edwards's proba- "likely to be a possibility, let alone a probability in the future" tion on both counts, to be served concurrently.2 and the imposition of a sentence that included no that the district court's sentence was substantively unreason- 2457united states v. edwards future, that finding does not justify the significant deviation u.s. at 51. and when we review the reasonableness of a defendant-appellee. cution, observing that "i've been doing this long enough that trial court identified the correct legal rule to apply to the relief record, the guidelines recommended a sentence of incarcera- sentence is affirmed. tively unreasonable. but, with one exception,6 and distributed to creditors. there is no repayment plan. in re coleman, vasquez, 567 f.3d 1050 (9th cir. 2009), we held that a supreme court decided gall v. united states, 552 u.s. 38 the future. in addition, the district judge recognized that resti- f.3d at 872 (quoting gall, 128 s. ct. at 597). "even if we are the district court explicitly consid- the heightened deterrent effect of incarceration and the readily the district court was not barred from ordering restitution to lines as mandatory instead of advisory; to fail to consider the able views in the premises. 7 fraud and bankruptcy fraud and the community where he now is to make victims of crime whole."). decides whether to impose a sentence outside the guidelines range. sec- tence to allow for meaningful appellate review and to promote tion, restitution, and community service was unreasonably a false statement to a bank in violation of 18 u.s.c. § 1014. was appropriate. the district court did not abuse its discretion imprisonment--and then considered the 18 u.s.c. § 3553(a) district court's sentence. furthermore, considering the factors thousands of dollars worth of loans. edwards admitted that he of recidivism into account by not assigning edwards a higher ity will result in edwards serving no time in prison. the dis- in accordance with ameline ii, a divided panel of this court over $600,000 and the guidelines range was thirty to thirty- in evaluating whether a sentence is substantively unreason- assuming the important goal of specific deterrence is reflected for the ninth circuit 2478 united states v. edwards which the sentence imposed is longer or shorter than the advi- of bankruptcy fraud in violation of 18 u.s.c. § 152(9) and from following in his footsteps. in 2004, duncan w. edwards pleaded guilty to one count at 597. --can have an effect. like the taxpayer who decides not to 2458 united states v. edwards the amount he actually steals. the fact that the losses attri- an abuse of discretion is not persuasive. explosives at the los angeles international airport ("lax") on the eve sentence. we have jurisdiction under 18 u.s.c. § 3742(b)(3) new pre-sentence report, and the parties filed new sentencing milan d. smith, jr., circuit judges. months of which was to be served under house arrest, a [7] section 3553(a)(1) of title 18 requires the district court deterrence could best be achieved. the district court did not 2479united states v. edwards ter in this case. see, e.g., united states v. livesay, 587 f.3d 1274, 1278-79 (11th cir. its discretion when it sentenced edwards. the district court's vacated edwards's sentence and remanded for "full resentenc- the principles guiding the bankruptcy court's assessment it is precisely at this point--when the thief of above- factor, which considers whether the issue necessarily decided negligence cases, and review of damages awards--or determination of decided united states v. ameline, 409 f.3d 1073 (9th cir. ernment contends that the district court gave short shrift to the cluded that it would not have imposed a different sentence lenient where the defendant stole over $1 million and the 2004) (citing united states v. real prop. located at 22 santa in addition to failing to list these assets and liabilities, there's a chance in hell that he's going to engage in this again points out that "[t]he district court concluded that the sentence § 3553(a) factors; to choose a sentence based on clearly errone- tors within its discretion including its evaluation of edwards's states v. whitehead, 532 f.3d 991, 999-1000 (9th cir. 2008) (emphasis added). criminal restitution is mandatory under the defrauding the earlier bank. he then filed for bankruptcy to edwards was forced to repay some of his ill-gotten gains, but ing [the defendant's] sentence based on a low likelihood of the need for the sentence imposed-- edwards's sentence conveys the message that white collar with regard to providing "adequate deterrence to criminal conditions of probation constituted sufficient specific deter- some crimes require at least some time in prison--no proba- necessarily attending it; (d) the paramount interest of ernment argues that not imposing a sentence of incarceration edwards's crimes were "extremely serious," but observed that opinions--both majority and dissenting--of our court. the run-of-the-mill thief intends to steal is usually greater than ing on an open record." id. at *2 (citing united states v. mat- previous proceeding is identical to the one which is ended with a final judgment on the merits; and (3) 2480 united states v. edwards required edwards to provide the probation officer with any requested at *1. the advisory guidelines range in that case was sixty-five years to states v. rutgard, 116 f.3d 1270, 1294 (9th cir. 1997)). we 560 f.3d 1000, 1003 n.2 (9th cir. 2009). challenges the district court's sentence as substantively unrea- reimposed the same sentence as it had previously. the district united states v. cloud, 872 f.2d 846 (9th cir. 1989), to con- ment that the bureau of prisons was capable of providing for general deterrence is more likely to occur in white collar than: "oh, if you get caught and you put on a repentant's suit, posted to lead sentences only downwards. but as ressam principles underlying the bankruptcy settlement and the later on remand, the united states probation office prepared a datory and precluding the sentencing court from considering general deterrence. however, without some term of imprison- by the concept of the crook's immediate community--a term 2467united states v. edwards judgment." offshore sportswear, inc. v. vuarnet int'l, b.v., a. the district court's criminal restitution order and focused on edwards's demeanor and mannerisms during allo- 2456 united states v. edwards munities: one hopes those in his communities have been deterred from id. therefore, i respectfully dissent from the guidelines range called for twenty-seven to thirty-three recidivism was low because edwards had committed bank in gall, wants us to try. in fact, gall itself provided some 2455united states v. edwards i agree with the majority that the district court did not err when it somehow engaged in illegal conduct in arizona" and was the difficulties, if any, to be encountered in the mat- guilty to bank fraud and to bankruptcy fraud. the intended conviction, an expected tax return of $28,000, and other assets bankruptcy leaves the individual debtor in control of its assets but the because the issue litigated in bankruptcy court was not the tion when it imposed a below-guidelines sentence, in part, address the particulars of edwards's offense. moreover, the district court unlike many of our sister circuits,4 imprisonment, yet the sentence today approved by the major- similarity between edwards's previous theft crime in arizona and took special note of edwards's sincerity during allocu- tence based on the record before it. united states v. edwards, deterrence is more likely to occur than in something 18 u.s.c. § 3663a(c)(1)(a)(ii). based on the facts presented" to which they are entitled. gall, 128 s. ct. 18 u.s.c. § 3553(a)(2)(c) requires district courts to con- next argues that the district court improperly weighed the 535 f.3d at 1003. it is difficult to reconcile the holding of application of the § 3553(a) factors in reaching its sentence. § 3553(a). of probation and the fact of a felony conviction would serve illogical, (2) implausible, or (3) without support in inferences of 2000. section 3553(a), for instance, does not require the goal of court abused its discretion in weighing the relevant factors by sharply with the district court's duty to impose restitution such finding, the district court's application of § 3553(a)-- us with another such opportunity. edwards's criminal history when fashioning the sentence. in tion to edwards's victims had already been determined court "a totally different person" than "the person who was lines range . . . . it may consider the extent of the stances of the defendant." 18 u.s.c. § 3664(f)(1)(a). "in no taxpayers. while the district court agreed with the govern- sider whether it is avoiding "unwarranted sentence disparities his statement, his allocution, to be very credible. i don't think courts to consider whether the sentence imposed "afford[s] [5] we affirmed the restitution order, reasoning that the is unreasonable, what term of incarceration is unreasonable? sonability" in the ninth circuit is a one-way street that is is, therefore, not before us, and we express no opinion as to the permissi- such deterrence should be limited to the defendant's own that "look[ing] at the record with [edwards] . . . i'm satisfied edwards's sentence. judge their import under § 3553(a) in the individual case." id. fifth, we should consider whether the district court gave guidelines range, the appellate court may not apply a pre- into its sentence the important goal of deterrence. we hold fraud totaled more than $500,000. the advisory guidelines under the mvra. the district court's sentence was not sub- and the crimes he committed in montana. a review of the duncan w. edwards is no stranger to the criminal justice the district court next considered whether the sentence ligent criminal, capable of gauging the upside of how others states v. autery, 555 f.3d 864, 871 (9th cir. 2009). this stan- insufficient to justify reversal of the district court. shared custody of his daughter was not an exceptional circum- to determine whether it would have imposed a different sen- gers our duty to defer." here, the district court's decision expressed doubt as to whether the goals of general deterrence although no list of factors will be exhaustive and not all fac- 2005) (unpublished) (citing ameline ii, 409 f.3d 1073). "criminal restitution is not ordered because victims have an "too much weight" to a particular § 3553(a) factor. see res- deterrence, the district court agreed with the government that that its consideration of the deterrent effect of its sentence was in other areas, district judges at times make mistakes that are this is not meant to imply that the committee considers a sen- 1 duct in which edwards engaged: he caused and intended to before our court, the united states supreme court decided bation) differs from the type of sentence recommended by the of restitution. 455 f.3d at 1240 (holding that a sentence of seven days' iii. conclusion imprisonment was substantively unreasonable where the i can tell, i think, when people are genuine . . . . i find . . . rule, we move to the second step . . . to determine whether the prior to committing the montana crimes, and that therefore unreasonably lenient where the defendant engaged in wire fraud and court after he stole more than $3 million. while edwards was third, we should consider whether the mitigating factors sentencing range was twenty-seven to thirty-three months' district court correctly ordered restitution. [edwards] would engage in this kind of business in the payments." 18 u.s.c. § 3664(g)(2). finally, the amount of 7 general deterrence, i don't think it has a significant government] that in white collar crime cases general legal rule. the district court correctly calculated the advisory (a) to reflect the seriousness of the offense, to promote respect edwards had left the stress of his earlier job in the construc- gall v. united states, 128 s. ct. 586, 597 (2007)). to the district courts so that we can minimize sentencing dis- criminals is probation and restitution. we risk allowing this that a sentence imposed on a defendant who was convicted of tic that would justify a sentence significantly below the tence of imprisonment to be the only form of sentence that may ical complications. considering the diabetes and related medi- the district court "must adequately explain the chosen sen- mended by the now-advisory guidelines. see gall, 552 u.s. recidivism where the guidelines calculation itself had already ticularly given that the guidelines already took the likelihood no affirmative steps to rehabilitate edwards. this assertion is contrary to special conditions required edwards to obtain his probation officer's edwards was not likely to commit a similar crime in the united states court of appeals the ultimate decision. the creditors and a proper deference to their reason- tionary sentence would best accomplish the goals of the resti- opinion for the district of montana tation after committing the crimes, and the fact that edwards we have recently clarified the abuse of discretion standard unreasonably lenient a twenty-two year sentence for a terrorist who "was "defendants in white collar crimes often calculate the finan- is inside the guidelines range or outside of it." carty, 520 a white collar crime is unreasonably lenient since the recovers for the same loss in civil proceedings. 18 u.s.c. edwards would not engage in similar conduct in the future with the defrauded banks. id. at 853. as part of the settlement tion to protect the public from edwards. tions; engaging in any type of self-employment or acting as a consultant, the defendant was convicted of multiple counts of bank fraud to the bankruptcy court, whose aid he had sought to avoid his custodial sentences are qualitatively more severe than proba- ings, we hold that collateral estoppel does not apply and that § 3553(a)(2)."2 for the law, and to provide just punishment for the offense; months' incarceration, the district court sentenced edwards to edwards was convicted of bank fraud in an arizona state however, "if, upon reviewing the record, we have a definite competing interests of multiple creditors and the strength of crimes. was collaterally estopped from imposing restitution in the from the decisions of our sister circuits and the reasoned tor, based on the conclusion that general deterrence is limited reflection, calculation of the odds of success or failure, and agreement "for the purpose of terminating the disputes guilty of similar conduct[.]"10 disparities 1. substantive unreasonableness made misrepresentations to obtain the loans and pleaded no criminal victims do not possess an "independently enforce- reversed and remanded edwards's case "for the district court government, the legislative history continues by stating: was not an abuse of discretion. pregerson, circuit judge: deviation of the sentence imposed from the sentence recom- laid out by our decision in carty when reviewing a sentence edwards amended his chapter 7 bankruptcy filings to show [6] we have held that, other than making restitution man- abuse its discretion. our circuit has not held the district court first began by observing that the applica- probation. the state court later extended probation until july five years' probation (the maximum term of probation), seven lives in oklahoma--is simply an incorrect application of 18 [12] as we explained in united states v. ruff, 535 f.3d court's finding that the likelihood of recidivism was low, that zona." the district judge noted that the advisory sentencing incarceration--was illogical and without support in inferences trict court sentenced edwards to sixty months' probation-- guished edwards's case from other federal fraud cases. district court gave "too much weight" to the defendant's "his- through the bankruptcy settlement agreement. we review the how do we determine whether a sentence without incarcera- edwards's conduct over the five years prior to the resentenc- sufficient, but not greater than necessary." 18 u.s.c. court concluded general deterrence was not an important fac- whether a sentence is unreasonable: "i know it when i see it," the majority's holding that edwards's sentence is substan- head, 532 f.3d at 995 (bybee, j., dissenting); see also rita v. 2477united states v. edwards amount of $102,696.07. edwards contends that the district long time because he knows that the government goes after plaintiff-appellant, no. 08-30056 we have con- codified at 18 u.s.c. §§ 3663a, 3664. the mvra requires case shall the fact that a victim has received or is entitled to edwards was criminally indicted in december 2003. in v. d.c. no. and to `judge their import.' " whitehead, 532 f.3d at 993.8 harsh sentence can be substantively unreasonable, but not so $5,000 fine, and a special assessment of $100 on each count is substantively reasonable.3 and (2) without support in inferences that may be drawn from converted from a chapter 13 to a chapter 7 bankruptcy. a chapter 13 520 f.3d at 993(citing gall, 128 s.ct. at 597). deterrent effect of its sentence. id. under the first step, we "determine de novo whether the of the new millennium, december 31, 1999." ressam, 2010 wl 347962, worry too much because, in america, there are no debtor's tors will be relevant in every case, we must provide guidance application, he valued the options at $0 in his bankruptcy fil- it was unable to assess the reasonableness of edwards's sen- ally and for his company, adventure motorsports. subse- states v. ressam, no. 09-30000, 2010 wl 347962, at *33 (9th cir. feb. edwards would simply pass the cost of medical care on to the district court made a directly contrary finding on the proceeds. onment); united states v. ruff, 535 f.3d 999, 1004-07 (9th range. id. at 47. as the supreme court explained, "it [is] tion for a prior conviction of theft of six times as much! sure, i do not ignore the fact that edwards was ordered to pay prison sentence"). here, the district court explained that a tect the public from further crimes by the defendant." how- ber 21, 1991. the state court ordered edwards to pay restitu- but can we do any better by attempting to spell out what deterrence. see united staes v. martin, 455 f.3d 1227, 1240 1262 (9th cir. 2009) (en banc). we now apply a two-part test within-guidelines sentence was unduly harsh, hence substan- sumption of unreasonableness. gall, 128 s. ct. at 597. in after his arizona conviction, edwards relocated to mon- sends the message that a reasonable sentence for white collar basis." united states v. whitehead, 532 f.3d 991, 993 (9th would satisfy the requirement of providing needed care in the trustee was able to intervene, edwards had exercised the bulk tion refers to whether the type of sentence imposed (e.g., pro- necessary to protect the public. id. our holding in cherer that the district and witness protection act ("vwpa"). id. at 848. in cloud, abuse-of-discretion standard." gall, 128 s. ct. at 597; united trial courts are called on daily to determine what is "reasonable" in a the district court found that a probationary sentence and a banks did not have "a pre-existing `right' to receive restitution take[s] into account the totality of the circumstances, imposed by the district court was a significant deviation-- able. our review of the reasonableness of a sentence proceeds edwards's sentence have general deterrent value, and a proba- 2464 united states v. edwards credit accounts; and any employment that "would give him access to stance because "the mere imposition of hardship on family opinion rent or punitive purpose. rence to prevent edwards from engaging in similar conduct in settlement and release agreement between edwards, the datory restitution under the mvra does not alter cloud.6 whether paid or not, for any business, corporation, or trust; engaging in from further crimes of the defendant." id. § 3553(a)(2)(c). f.3d 1050, 1055 (9th cir. 2009). we next consider the government's challenge on appeal 2. history and characteristics of edwards of the factors at play in this difficult case, and did not abuse quent convictions; he had significant medical problems, other than to claim people in edwards's communities would (b) to afford adequate deterrence to criminal conduct; edwards was not assigned the lowest criminal history cate- restitution is offset by any other amounts the victim later the government briefly argues that the district court's sentence takes 9:04-cr-00009-v. opinion by judge pregerson; tion. after the statement in the legislative history quoted by the tion industry, which "is what got him into the trouble in the court did not request the views of the parties in writing or was a party or in privity with a party at the first pro- for procedural error, we hold that the district court did not commentary in the legislative history of the sentencing poor physical condition, edwards's statements, the statements defendant had previously committed a similar crime, the gov- quately protect the public from edwards. the government's explain why some term of imprisonment was not necessary. that edwards would re-offend. the district court judge con- ered each of the § 3553(a) factors and provided a detailed or retribution[.]" id. at 854 (discussing kelly v. robinson, 479 community. for sure, edwards's present sentence will not our holding is consistent with the sixth circuit's opinion in united we first address edwards's argument that the district court general deterrence is effective in the context of white col- decision itself, not the specific reasons that are cited, that trig- tion were of critical importance." s. rep. no. 98-225, at 91- finding cannot support the extent of the district court's devia- f.3d at 993 (citing gall, 128 s. ct. at 596-97). if, as is the other sentences." whitehead, 532 f.3d at 999 (bybee, j., dis- imposed will enable [edwards] to continue working in order avoid paying his new, fraudulently procured loan, but he shows that it rested on a reasoned basis and relied upon fac- him to pay just over $100,000 in restitution. the majority the majority's holding also evidences an intra-circuit con- under this title . . . including any offense committed by fraud or deceit." loan--he did not tell the new bank he had been convicted of imposed a probationary sentence of five years with no incar- him and brought the fraud charges in this case, he pleaded neither party challenges the procedural soundness of the reform act. the portion of the legislative history submitted court could not impose a restitution order because compensa- ordering the defendant to pay restitution to the victim under the mvra). 2000) (internal quotations omitted). we have also stated that general issue in the bankruptcy settlement, the issue is not (2007).5 4 that if edwards did not comply with the terms of his probation, edwards 2451united states v. edwards uncontroversial that a major departure should be supported by lar crime such as edwards's bank fraud and bankruptcy fraud. 2454 united states v. edwards sider whether the sentence imposed "protect[s] the public among other provisions, the settlement agreement provided judge kleinfeld, "i cannot see how a sentence anything like tencing reform act. we find no support for such a rule. way impairing the obligation of the defendant to make such b. reasonableness of the district court's sentence of the stock options, receiving net proceeds of $445,000. the cloud and holding that a settlement agreement that releases a victim's independent legal entitlement to it but, rather, as a means of cir. aug. 22, 2007) (unpublished). the edwards ii court gained based on the circumstances of the offense and his his- together worth nearly $14,000.1 its view, however, based on edwards's history and character- dard applies to all sentencing decisions, "whether the sentence we worn the district judge's robe, we can't reverse on that for publication same issue that was litigated in edwards's criminal proceed- tence had it understood that the guidelines were advisory." 999, 1003 (9th cir. 2008), "it is the [district court's] reasoned restitution to each victim in the full amount of each victim's cause losses totaling more than $500,000 while still on proba- appeal from the united states district court using the intended loss, overstated the circumstances of person who was somehow engaged in illegal conduct in ari- limited the court's discretion in setting the amount of . . . res- a more significant justification than a minor one." id. at 50. without incarceration would have on edwards's community, correctional treatment could be satisfied in the most effective manner. the more than $100,000 in restitution. i agree with both the dis- we explained in carty: from the guidelines sentencing range. because the district also review de novo the application of collateral estoppel. edwards's argument that collateral estoppel applies to prevent edwards to concurrent sentences of probation for five years, ceeding. that the appellate court might reasonably have con- 2447 we consider each of the government's challenges in turn. and 28 u.s.c. § 1291. not a rubber stamp of all sentencing decisions made by a dis- united states of america, no. 08-30059 i agree with judge kleinfeld's description of edwards: he seven months to be served under house arrest, a $5,000 fine, convene a hearing. the government again appealed and chal- ings. effectively be taken care of by edwards, and need not fall on taxpayers, knowingly did not fully disclose all of his assets and liabilities john rhodes, assistant federal defender, missoula, montana, an erroneous interpretation of § 3553(a)(2)(b). the district 8 tion by finding that it could meet the goal of deterrence as the record, which clearly shows that the district court considered how reasoned that the fact of edwards's felony conviction and the unexceptional or "common to similarly situated offenders." was remanded to the district court, the district court imposed to consider "the nature and circumstances of the offense and substantive. at times, they will impose sentences that are the district court evaluated the need for the sentence issue of compensation to his victims and thus precludes reliti- ernment urges us to hold that the district court erred in its 2472 united states v. edwards sentence to become "a baseline against which we measure rejected that idea. finally, the district court reasoned that its explained that "[t]he probation office . . . has a very short chain for people that the corporation owned the stock options. although he factor in a case like this, but i will agree with [the ii. discussion stoddard, 150 f.3d 1140, 1147 (9th cir. 1998) (citing united the district court found that edwards appeared in district wise would rob criminal defendants of the "individualized assessment § 3553(a)(2)(d). at the time of resentencing, edwards was tively unreasonable. see whitehead, 532 f.3d at 993; ruff, context of white collar crime and that of our sister circuits. 1128, 1135 (8th cir. 1984)). in this case, the settlement the view that the guidelines range, which was calculated tion of $3,057,916.01 to the fdic, and to serve five years' ousness of the offense, to promote respect for the law, and to but not incarceration. for support, the government points to 2008) (quoting gall, 128 s. ct. at 597). . . . ." united states v. cherer, 513 f.3d 1150, 1159 (9th cir. the majority concludes that "[t]he district court explicitly should focus on whether a sentence will provide general gation of that issue in the subsequent criminal proceedings. ment, restitution is simply inadequate to deter the type of con- tory and characteristics by incarcerating him." young age--twenty years old--was not a unique characteris- ment in the most effective manner." 18 u.s.c. opening or obtaining signature authority over any checking, savings, or of conviction. after the government appealed and the case edge of edwards's conviction provide general deterrence? tution order because it would enable edwards to earn the and ordered to pay $7.5 million in restitution. id. prior to sen- in the future." criminal sentences--are just some of the many such contexts. where pre- on february 9, 2006, in a short order, the district court con- lines range. see gall, 128 s. ct. at 597 (listing factors to con- substantive reasonableness of the sentence." united states v. collateral estoppel applies only where it is estab- counsel tion 3553(a)(2) requires the district court to consider claims against a criminal defendant does not bar the district court from the district court acknowledged several times that the ari- the district court from ordering restitution fails on the first "is a big time thief." united states v. edwards, 158 fed. united states v. edwards, 158 f. app'x 930, 931-32 (9th cir. conduct," 18 u.s.c. § 3553(a)(2)(b), the district judge con- imposed to "provide the defendant with needed educational or tution payments to the crime victims fund . . . without in any tional training, medical care, or other correctional treatment in i. background relied on by the district court to reduce the sentence were earlier had valued those stock options at $189,000 on his loan that somebody who committed these offenses . . . roughly actual loss he caused. but it is unexceptional that the actual sistently refused to hold that sentences significantly below the crime cases, but found that general deterrence was not a sig- criminals can steal and not do time. the district court did not speaks to deterring "criminal conduct"; it does not suggest tain crimes,3 sought to be relitigated; (2) the first proceeding the other factors in detail. advisory guidelines range are unduly lenient, hence substan- prisons. so if you don't pay, you won't do time." edwards initially filed for chapter 13 bankruptcy, but the matter was tant respects, and courts interpreting the mvra may look to bank fraud thief should be forced to consider a message other in two steps. "[w]e first consider whether the district court general deterrence while § 3553(a)(2)(c) speaks to specific certain that we would have imposed a different sentence had (bybee, j., dissenting) (explaining that a sentence of proba- caused more than $1 billion in losses). white collar crime, when they occur."). we must review sentences for significant j., dissenting). judge kleinfeld would have vacated the sentence as sub- 2481united states v. edwards [8] in short, the district court was aware of and weighed ground that there was not "a very good likelihood that 10 acteristics of [edwards]," the district judge observed that to deter edwards from future wrongdoing." id. at 2465. even explained why he felt a disparity was warranted and distin- deterrence). the trustee and the creditors to avoid the expenses and burdens including diabetes and neuropathy; and he left the construc- lenient where the defendant played a key role in an accounting fraud at times like this, one is tempted to reach for justice potter 2453united states v. edwards months' probation and $100,000 in restitution that included district court's determination that edwards's medical care could most guidelines range was forty-one to fifty-one months' impris- considered probation to carry significant punitive weight. the judge dwm-1duncan william edwards, 9:03-cr-00058- (a) the probability of success in the litigation; (b) not enough weight to the other relevant § 3553(a) factors, 2461united states v. edwards defraud the fisc for fear of wearing an orange jumpsuit for a 2448 united states v. edwards trict court." ruff, 535 f.3d at 1005 (gould, j., dissenting). discretion standard." gall, 552 u.s. at 41. however, nothing sound like what an appellate court should be laying down as tution, the vwpa and the mvra "are identical in all impor- to order restitution to the defendant's victims. 18 whole, justify the extent of the variance. the fact whether the public needed to be protected from edwards was imposed a non-prison sentence. the district court stated: clude that the existence of a prior bankruptcy settlement does unlike its pre- toward him" and gave "not enough [weight] to the other por- average education and wit is deciding whether to do the deed by the government indeed expresses the opinion that many tion is unreasonable? and if a sentence without incarceration (d) to provide the defendant with needed educational or voca- of one day's imprisonment and three years of supervised of appeals out of the business of reviewing sentences." white- 15th ed. rev.). in a chapter 7 bankruptcy, the debtor's assets are liquidated stantively unreasonable. the district court was clearly aware sidered the fact that by the time of the 2008 re-sentencing, the barbara drive, 264 f.3d 860, 868 (9th cir. 2001)). during bankruptcy proceedings, the chapter 7 trustee to all defendants who commit crimes while on probation. to hold other- 2474 united states v. edwards financial information. defendant-appellee. 2009) (holding that a sentence of five years' probation was unreasonably stewart's definition of pornography and apply it to determine plaintiff-appellant, no. 08-30055 united states, 551 u.s. 338, 354 (2007) ("in sentencing, as adequate deterrence to criminal conduct[.]" the government ("the district court abused its discretion by completely reduc- involved, and the expense, inconvenience and delay tion order results in double recovery to them. the issue of double recovery once since gall held that a sentence is unreasonably lenient. see united cal complications, the district court reasoned that imprisoning trustee was able to recover approximately $417,000 of the tence imposed . . . to afford adequate deterrence to criminal cedent has produced a practice, the task is easier. a practice develops set- for the appellant-cross-appellee. where the bankruptcy court is required to consider the effect prison terms would have on edwards's community. if sentencing hearing. requested." id. "if the trial court identified the correct legal edwards's case. while acknowledging edwards's felony con- noticed that the stock's price had jumped. by the time the trict court and the majority that a restitution order does create ever, edwards's likelihood of recidivism had already been edwards from future wrongdoing. with respect to general the district court explicitly considered, weighed and factored caused $90,000 in losses and the guidelines range was sixty-three to edwards to pay $102,696.07 in restitution. edwards appeals an assault in a tavern or even domestic abuse, tends to be a because of the increased importance of general deterrence in and a $100 special assessment on each count of conviction. 1160. because the defendant did not take advantage of the first court's united states of america, money he is required to pay. [11] the district court carefully weighed this factor before admission of liability by any party hereto for any purpose, when it reviews the substantive reasonableness of a sentence. edwards appeared to be a much changed individual "than the lenged the reasonableness of the sentence. this court again 2452 united states v. edwards hydranautics v. filmtec corp., 204 f.3d 880, 885 (9th cir. filed february 16, 2010 a circuit, we have an obligation to ensure roughly equal sen- tana. in early 1998, while still on probation for his arizona quently, a chapter 7 bankruptcy trustee was appointed. zona felony edwards committed was a very serious offense. everyone--even al capone--for tax fraud, the contemplating and actual losses from edwards's bank fraud and bankruptcy flict that continues to develop. in united states v. amezcua- edwards's sentence was based on the district court's clearly 1279. edwards's crimes fall into that category. dant." 18 u.s.c. § 3553(a)(2)(c). the district judge stated at the previous proceeding is identical to the one sought to be a rule to the district courts. 5. the need to avoid unwarranted sentencing to thirty-three months' incarceration, but the district court givens, 443 f.3d 642, 646 (8th cir. 2006) (vacating and nine years ago, and has lived the life that he has lived in the cir. 2008) (gould, j., dissenting) (explaining that a sentence (c) to protect the public from further crimes of the defendant; s. rep. no. 98-225, at 92 (footnote omitted). as noted, see supra note 2, bankruptcy court must consider a number of factors in making on probation imposed as part of his sentence for the arizona would be sent to the federal penitentiary. cf. autery, 555 f.3d at 868, 876. contrary to chapter 7 disclosure requirements, edwards did deviation, but must give due deference to the district omole, 523 f.3d at 698 (explaining that the defendant's achieving penal objectives such as deterrence, rehabilitation, rence is effective in the context of white collar crime but still on september 10, 2004, the district court sentenced had it known the sentencing guidelines were advisory, and kind of business in the future . . . ." 2469united states v. edwards considering the need for the sentence "to reflect the seri- like the kinds of drug cases or gun cases or pornog- sooner or later our circuit must come to the final question: cluded that "general deterrence" was not a significant factor guidelines range--twenty-seven to thirty-three months' 3. specific and general deterrence the settlement agreement agreed to release its claims against effect would be in the communities where edwards had lived in this circuit. see united states v. hinkson, 585 f.3d 1247, reviewing sentences for substantive reasonableness. scheme that caused over $1 billion in losses to a company's shareholders the party against whom collateral estoppel is asserted unreasonable sentence, i respectfully dissent. important in white collar crime cases. the district court judge ceration. bility of double recovery under the mvra. [10] we cannot find as a matter of law, however, that the tences both among our judicial districts and within each judi- dural error--substantive unreasonability not being "procedural"--when it defendant participated in a securities fraud conspiracy that edwards's medical care, it found that a sentence of probation loan obligations. when the government finally caught up with including any deviation from the guidelines range. contends that edwards committed a major, comparable crime half years of probation. the court also considered edwards's tory of any person or business entity." the special conditions additionally guidelines range is surely relevant."). the qualitative devia- the statutory requirement that the court "impose a sentence the most effective manner . . . . cr-04-00009-dwmduncan william edwards, quately protect the public from edwards. the government 2, 2010). don, 393 f.3d at 1048. contrary to edwards's argument, man- [4] furthermore, the district court correctly relied upon 1 sonable. edwards cross-appeals from the district court's order dissented from the majority's decision to remand edwards's sentence to ation is a violation of § 3553(a) or inconsistent with the sen- both quantitatively and qualitatively--from the recommended we ignore the district court's finding there was general deter- 2468 united states v. edwards bation, "without due consideration being given to the fact that tution serves as a deterrent, and that "[t]he term of probation parities even in the absence of mandatory guidelines.8 able right to receive restitution" under the mvra any more guidelines (e.g., incarceration). id. at 48 ("we recognize that carty, 520 f.3d 984, 993 (9th cir. 2008) (en banc) (citing "the need for the sentence imposed . . . to protect the public of edwards's former step-son supporting edwards's rehabili- this finding--that general deterrence was not a significant ment provides in support of its argument, unequivocally support its posi- that may be drawn from the facts in the record." id. (internal trict court in givens, gave too much weight to edwards's § 3553(a)(2)(a), the district court acknowledged that the district court also considered the testimony regarding case here, the sentencing court imposes a sentence outside the u.s.c. § 3663a(a)(1). further, the district court "shall order to "consider the substantive reasonableness of the sentence not preclude a subsequent criminal restitution order. cloud of what you stole. and about that restitution order, don't 6 f.3d at 649 (holding that the district court abused its discre- 2 titution."); united states v. gordon, 393 f.3d 1044, 1048 (9th ence to the district court's decision that the § 3553(a) factors, this determination: associated with litigating sharply contested and dubious united states v. bright, 353 f.3d 1114, 1121 (9th cir. 2004) 3 the perception of fair sentencing." id. thus, even after gall, no incarceration was (1) illogical as to the effect a sentence offenses had been committed nine years previously and that history and characteristics and gave too little weight to gen- § 3553(a). including the extent of any variance from the guide- amount of $102,696.07. for the third time, the government vocational training, medical care, or other correctional treat- terms of the defendant's community? section 3553(a)(2)(b) the district carefully crafted specific probationary terms designed to sixty-three years old and living with diabetes and related med- below-guidelines sentence was warranted because the guide- states v. bearden, 247 f.3d 1031, 1040-41 (6th cir. 2001) (relying on from the district court's order of restitution. the government sider in evaluating procedural reasonableness). because the on a prior appeal of edwards's sentence to this court, judge kleinfeld the district court assumed the only general deterrence edwards also initially did not list certain stock options owned causes of action" against the defendant. id. the defendant in see whitehead, 532 f.3d at 998-99 (bybee, j., dissenting) bationary sentence. tant goal of deterrence." maj. op. at 2467. the majority same sentence of probation but added a restitution order in the coming to the conclusion that it did not think that it was been reduced to reflect this factor."). here, the district court eral deterrence. i agree that edwards's sentence had some deterrence effect in his com- tor of general deterrence is somehow restricted only to the must give deference to the district court's finding that to pay the significant amount of restitution he ow[e]s." the government appealed. while the case was pending bea, circuit judge, concurring in part and dissenting in part: trial court's application of the correct legal standard was (1) the court then turned to each of the factors in 18 u.s.c. may 2004, he pleaded guilty to one count of bankruptcy fraud it is clear that "[t]he abuse of discretion standard of review is will be gulled by his well-honed fables. this ability to foresee 1986). before approving a settlement agreement, the bank- the facts in the record. thus, the district court abused its dis- committed significant procedural error, then we consider the senting). edwards lived in montana at the time he committed bank under the vwpa that it could assert or waive." id. at 854. we white collar crime cases, particularly where, as here, the but that is an unnecessarily restrictive view of general deter- cretion under the mvra is much more constrained. see under the mandatory victims restitution act ("mvra"), expressed in § 3553(a)(2)(b) with probation and restitution "base[d] the sentence on impermissible factors." hunt, 521 victims "may at any time assign the victim's interest in resti- considered how others, on a nationwide level, would have considered the federal restitution scheme under the victim cir. 2008) (citing gall, 128 s. ct. at 597). we may reverse, § 3553(a)(2)(c), which requires the district court to consider criminal history category. august 4, 2009--seattle, washington fraud scheme, and completed without incident three and one demonstrates, there is no such rule. 2010 wl 347962, at *33. identical to the issue in the criminal proceedings. the legal "convinced that mr. edwards has changed." the district court second, we should consider whether the district court's broadband communications, the district court should have failure to impose a sentence that includes a period of incarcer- lion obligation to the fdic arising out of his arizona state 8 further, the district court's imposition of a sentence of sixty nificant factor "in a case like this." the district court except as otherwise expressly provided herein." each party to tory and characteristics and showed a great deal of sympathy william mercer, united states attorney, billings, montana, record, however, shows that the district court did not abuse its 3 for the appellee-cross-appellant. approval before: incurring new lines of credit; filing any bankruptcy peti- cretion. the defendant's economic circumstances when ordering resti- be affected and reduced with serious punishment." martin, here, the district court acknowledged that general deter- 2463united states v. edwards seven months' imprisonment). edwards's sentence presents planned, deliberate crime, which allows plenty of time for 2008) (holding that a sentence of twelve months' imprisonment was considered, weighed and factored into its sentence the impor- [1] we have explained that: from further crimes of the defendant[.]" the government when it concluded that its probationary sentence would ade- variety of contexts. discovery orders, extensions of time, bench trials in general deterrence be met through a period of incarceration.9 4 the district court's view that the purpose of general deterrence the district court sentenced edwards to five years' proba- 2476 united states v. edwards unless we adopt a rule that what a panel considers to be a the same sentence. after a second appeal and a second ous facts; or to fail adequately to explain the sentence selected, briefly argues that the district court's sentence does not ade- ever, specific deterrence is also considered under deviation from the advisory guidelines range was based on relying on its " `superior position' to find the relevant facts particular situation will adequately satisfy any appropriate deter- and that the people in those communities had already been legality of an order of restitution de novo. united states v. the banks. id. prison term does not require district courts to provide lengthy sentences edwards argues that the bankruptcy settlement resolved the money, bank or investment accounts, real or personal property, or inven- outside the guidelines range. see gall, 552 u.s. at 49-50. but it is not enough to state that general deterrence does not mat- 18 u.s.c. § 3553(a)(6) requires the district court to con- the government challenges the criminal restitution order differ greatly. changed and reformed character and the court's view of how guidelines range); see whitehead, 532 f.3d at 997-98 (bybee, even outside the context of white collar crime, our circuit has only nos. 06-30163, 06-30165, 2007 u.s. app. lexis 20335, (9th donald w. molloy, district judge, presiding had the intent to defraud). here, although the district court's indicate a respect for the law." edwards's victims.5 sam, 2010 wl 347962, at *33 ("[i]t appears that the district remand to the district court, the district court imposed the ing hearing, and was of the opinion that "there's nothing to be cir. 2004) ("the primary and overarching goal of the mvra j., dissenting) (explaining that the fact the defendant had cial gain and risk of loss, and white collar crime therefore can debtor must use income earned during chapter 13 to pay off creditors. 1 114 f.3d 848, 850 (9th cir. 1997) (internal citation omitted). explained that a probationary sentence "was sufficient to pro- with clarity and certainty what was determined by the prior interim despite all the things that have gone on, i don't think tencing, the defendant entered into settlement agreements factor in this case--is clearly erroneous and cannot justify united states v. booker, 543 u.s. 220 (2005), and this court edwards's needs for educational or vocational training, medical care, or range had been calculated based on the loss intended by was reversible error. would "protect the public from further crimes of the defen- first place." although we must give deference to the district in edwards's sentence, i fail to see how the equally important and firm conviction that the district court committed a clear id. we give due deference to the district court because "[t]he guidance as to factors an appellate court should consider memoranda. on january 17, 2007, the district judge held a error of judgment in the conclusion it reached upon weighing deterred based on their awareness of edwards's conviction.7 tion business that led him to become involved in the financial tion from the sentence recommended by the guidelines, par- reversed and remanded in a memorandum disposition because provide just punishment for the offense," 18 u.s.c. in violation of 18 u.s.c. § 152(9) and one count of making to determine whether the district court abused its discretion. losses were less than the intended losses. i expect the amount tion for a similar crime in arizona. based on edwards's track that "[t]his consent shall not be used or construed as an i agree with the majority that we must review the sentence see 552 u.s. at 47-48. additional factors to consider emerge lines range was based on edwards's intended loss, not the cated that he had significant assets. he did not disclose the $3 and circumstances of the offense and the history of the char- losses . . . without consideration of the economic circum- collier on bankruptcy ¶ 1.03[6] (alan n. resnik & henry j. sommer eds., the district court for possible resentencing in light of united states v. 5 [9] section 3553(a)(2)(b) of title 18 requires district cluded that a different sentence was appropriate is their respective claims to the debtor's assets in order to the public is in need of protection from edwards's future with seven months served under house arrest--and ordered the district court, in sentencing a defendant convicted of cer- district court's sentence was procedurally sound, we proceed 2459united states v. edwards remanding a sentence as substantively unreasonable where the effectively carry deterrent or punitive weight. it may very often court abused its discretion when it imposed this substantively fraud conviction, he lied to another bank to obtain a new bank in gall "suggests that the supreme court has taken the courts it would be procedural error for a district court to calculate--or reflects the fact that edwards got caught. he should not bene- claims." in re a&c props., 784 f.2d 1377, 1380-81 (9th cir. edwards. collateral estoppel does not apply to prevent the district sentenced edwards. any type of employment involving land development or construction; by a corporation of which he owned 100% of the shares. bility by any party. that is not for lack of opportunity. see, e.g., united in this case, although he conceded that general deterrence was court's decision that the § 3553(a) factors, on a whitehead, 532 f.3d at 999-1000 (bybee, j., dissenting) ("as reviewing any such variance, the appellate court: the government argues that district court abused its discre- cases involving white collar crime were disposed of with pro- vious two sentences, however, the district court ordered explanation for its sentence and its variance from the guide- 2475united states v. edwards 6 before: harry pregerson, carlos t. bea and requirement that edwards make restitution payments satisfied 5 § 3664(j)(2). thus, when a district court considers § 3553(a)(2)(b), it relationships . . . necessarily accompanies the order of any ter of collection; (c) the complexity of the litigation procedural error and for substantive reasonableness. gall, 552 not disclose all his assets and liabilities, including the $3 mil- ference between a particular sentence and the recommended istics, the district court did not feel a sentence of incarceration the mvra requires restitution to victims of "an offense of property partial concurrence and partial dissent by judge bea nor does the legislative history, which is the only source the govern- especially bank fraud, usually requires a well-schooled, intel- be that release on probation under conditions designed to fit the commit procedural error.7 would be served through a prison sentence for edwards, and deter criminal conduct. it will incentivize it. the sentence sion, conviction, and punishment. further, bank fraud, unlike fourth, we should consider whether the district court imprisonment); united states v. omole, 523 f.3d 691, 698-700 (7th cir. goal of general deterrence is reflected in edwards's sentence to calculate incorrectly--the guidelines range; to treat the guide- tion contained special conditions of supervision. among other things, the 2005) (en banc) ("ameline ii"). court from ordering restitution, which it was required to do under this abuse of discretion standard of review, the gov- future." the district court explained that the likelihood of the one exception is our recent decision in ressam, where we held mvra and cannot be waived by a prior civil settlement. the section 3553(a)(2) lists factors a district court must consider when it amount they lost at his hands, and edwards does not argue that the restitu- 92 (1983) as reprinted in 1984 u.s.c.c.a.n. 3182, 3274-75. one count of making a false statement to a bank in violation system. in the early 1980s, edwards made misrepresentations life in prison. id. receive compensation with respect to a loss from insurance or ruptcy court is charged with considering the "fairness, reason- a lenient sentence; in other words, that "substantive unrea- at 47-48. the quantitative deviation refers to the extent to see discretion in weighing edwards's history and characteristics. the relevant factors." united states v. amezcua-vasquez, 567 of incarceration between twenty-seven to thirty-three months. ("in passing the mvra in 1996, congress . . . significantly tively reasonable evidences an ever-widening split between not an abuse of discretion. which the sentence imposed deviates from the guidelines giving too much weight to [the defendant's] cooperation and first, we should consider the quantitative and qualitative achieve a fair and equitable agreement, the district court's dis- leniency, the district court determined that a lengthy prison sentence was the defendant's community--here, the community where is limited to the effect that deterrence could have only within below-guidelines sentence, we may consider the extent to convicted by a jury on nine counts of criminal activity in connection with he will not be subjected to the loss of liberty that accompanies on december 15, 1998, edwards filed for bankruptcy person- and the guidelines range was seventy-eight to ninety-seven months' 2462 united states v. edwards rence. why should general deterrence be considered only in booker, 543 u.s. 220 (2005). edwards, 158 fed. app'x at 932 (kleinfeld, relitigated. passes both general deterrence and specific deterrence. how- 2471united states v. edwards sentencing factors to determine whether to impose a sentence buted to edwards were intended rather than actual simply further looked to supreme court precedent holding that 2460 united states v. edwards ableness, and adequacy" of the agreement. id. at 1381. the order of restitution would satisfy the requirement that 2473united states v. edwards thews, 278 f.3d 880, 885-86 (9th cir. 2002) (en banc)). conduct." 18 u.s.c. § 3553(a)(2)(b). deterrence encom- among defendants with similar records who have been found like mr. edwards and his liberty is significantly restricted," and he warned 2465united states v. edwards app'x 930, 931 (9th cir. 2005) (kleinfeld, j., dissenting).1 sentencing judge is in a superior position to find facts and majority's holding that edwards's below-guidelines sentence viction in arizona, the district court was of the opinion that 4. protection of the public quotation marks and citation omitted). contest to felony theft charges in arizona state court on octo- curring). such a personalized and subjective norm does not release was unreasonably lenient where the defendant stole plaintiff-appellee, d.c. nos. and the fact of a felony conviction would serve to deter once again challenges the substantive reasonableness of the felony, he filled out a loan application in montana and indi- edwards rather than the actual loss. the district judge was of to banks in arizona that allowed him to obtain hundreds of guidelines sentence. the guidelines range was twenty-seven committed a crime while on probation for a prior, similar crime. id. at --that reflection on probable prison time--general deterrence than they did under the vwpa. cloud, 872 f.2d at 854 the guidelines range, "appellate courts must `give due defer- imposed by the district court "under a deferential abuse-of- a term of imprisonment. i agree with the eleventh circuit: would continue to be scrutinized by the probation department ble advisory sentencing guidelines range called for a period amezcua-vasquez with the holdings of whitehead and ruff, most effective manner. 18 u.s.c. § 3553(a)(2)(d). argument that the district court's careful consideration of id. (quoting in re flight transp. corp. sec. litig., 730 f.2d because it disagreed with the jury's finding that the defendant in accordance with § 3553(a)(1), considering the "nature tionary sentence will be sufficient. see livesay, 587 f.3d at when it considered edwards's history and circumstances, cial district."). tled expectations. we must begin to do the same in the context of bankruptcy trustee, and several of edwards's victims.