USA v. Edwards
Citation | 622 F.3d 1215 |
Decision Date | 20 September 2010 |
Docket Number | Nos. 08-30055, 08-30056, 08-30059.,s. 08-30055, 08-30056, 08-30059. |
Parties | UNITED STATES of America, Plaintiff-Appellant, v. Duncan William EDWARDS, Defendant-Appellee. United States of America, Plaintiff-Appellee, v. Duncan William Edwards, Defendant-Appellant. |
Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
OPINION TEXT STARTS HERE
District of Montana, Missoula. D.C. Nos. CR-03-00058-DWM, CR-04-00009-DVM, 9:04-cr-00009-DWM-1, 9:03-cr-00058-DWM-1.
Before: HARRY PREGERSON, CARLOS T. BEA and MILAN D. SMITH, Jr., Circuit Judges.
ORDER
A judge of this court sua sponte called for this case to be reheard en banc. A vote was taken, and a majority of the active judges of the court did not vote for a rehearing en banc. Fed. R.App. P. 35(f). The call for this case to be reheard en banc is Denied.
I respectfully dissent from the denial of rehearing en banc in this case.
In his cogent dissent from the majority decision of our three-judge panel, Judge Bea persuasively catalogs the laundry list of analytical errors committed by the district court at sentencing. See United States v. Edwards, 595 F.3d 1004, 1018-25 (9th Cir.2010) (Bea, J., dissenting). I will not restate all of those errors here. Instead, I write to emphasize a larger and recurrent problem: our court's practice of uncritically affirming unreasonably lenient sentences for white-collar criminals renders the Sentencing Guidelines a nullity, makes us an outlier among the circuit courts, and impairs our ability effectively to review sentences for substantive reasonableness. Our “rubber-stamp” approach to reasonableness review permits district courts to abuse their sentencing discretion by paying lip service to appropriate sentencing considerations while paying inadequate heed to the substance of those considerations. Hence we can end up with people like Edwards who engage in fraud and other criminal activities intended to cause extremely large monetary damages, yet who spend token and inadequate time, or even not one day, in jail.
Although we owe deference in the area of sentencing to a district court's “superior position to find the relevant facts and judge their import,” Edwards, 595 F.3d at 1016 (internal quotation marks omitted), in the area of white-collar crime we should be circumspect to draw careful boundaries around that deference. Because of the nature of their crimes, white-collar offenders are uniquely positioned to elicit empathy from a sentencing court. See United States v. Ruff, 535 F.3d 999, 1007 (9th Cir.2008) (Gould, J., dissenting) () ; Kenneth Mann et al., Sentencing the White-Collar Offender, 17 Am.Crim. L.Rev. 479, 500 (1980) ( ). And while judges take seriously violent crime and are forced by congressional mandatory minimums to take seriously drug crimes, there is latent risk in the case of white-collar sentencing that an “it's only money” rationale will result in undue leniency for serious offenses. I have no doubt that Edwards made a persuasive presentation to the district court that he was an unhealthy, aging retiree repentant of past frauds. Such cases are precisely when we should most rigorously review a sentence's reasonableness to ensure that the justifications relied on at sentencing are supported by objective evidence in the record. See Michael M. O'Hear, Appellate Review of Sentences: Reconsidering Deference, 51 Wm. & Mary L.Rev. 2123, 2141-49 (2010) ( ). We know that often criminal defendants who commit other types of crimes will serve some hard time. White-collar offenders like Edwards should not escape the same punishment simply because they are better-positioned to make a sympathetic presentation to the district judge.
This case is just the latest example of our circuit's pattern of approving unreasonably lenient sentences for serious white-collar offenses. See United States v. Whitehead, 532 F.3d 991, 993 (9th Cir.2008) (per curiam) ( ); Ruff, 535 F.3d at 1004 ( ). That pattern is evolving into a universal rule in this circuit that no incarceration is always an appropriate exercise of discretion in white-collar criminal cases. See, e.g., Edwards, 595 F.3d at 1016, 1018 ( ). Such a rule is an abdication of our responsibility to review sentencing decisions for substantive reasonableness under an abuse of discretion standard. “Our substantive review of sentences may be limited after Gall, but being deferential does not mean turning a blind eye to an injustice.” Whitehead, 532 F.3d at 994 (Bybee, J., dissenting); United States v. Davis, 537 F.3d 611, 615 (6th Cir.2008) ().
This practice also renders us an outlier when contrasted with other circuits' substantive scrutiny of lenient white-collar sentences. See, e.g., United States v. Vrdolyak, 593 F.3d 676, 678, 681-84 (7th Cir.2010) ( ); United States v. Engle, 592 F.3d 495, 497-98, 504-05 (4th Cir.2010) ( ); United States v. Livesay, 587 F.3d 1274, 1277-79 (11th Cir.2009) ( ); Davis, 537 F.3d at 611 (...
To continue reading
Request your trial-
LEGAL FICTION: READING LOLITA AS A SENTENCING MEMORANDUM.
...under a non-mandatory Guidelines regime"). (151) Brown, 479 U.S. at 548-50 (Brennan, J., dissenting). (152) See United States v. Edwards, 622 F.3d 1215, 1216-17 (9th Cir. 2010) (Gould, J., dissenting) (lamenting Ninth Circuit's "pattern of approving unreasonably lenient sentences for seriou......