U.S. v. Paul

• Citation: 561 F.3d 970
• Decision Date: 02 April 2009
• Docket Number: No. 08-30125.,08-30125.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Patricia Betterman PAUL, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

561 F.3d 970

UNITED STATES of America, Plaintiff-Appellee, v. Patricia Betterman PAUL, Defendant-Appellant.

No. 08-30125.

United States Court of Appeals, Ninth Circuit.

Submitted September 5, 2008.^*

Filed April 2, 2009.

Anthony R. Gallagher, Michael Donahoe, Federal Defenders of Montana, Helena, MT, for the defendant-appellant.

William W. Mercer, Carl E. Rostad, United States Attorney's Office, Great Falls, MT, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Montana, Sam E. Haddon, District Judge, Presiding. D.C. No. 4:05-cr-00167-SEH.

Before: STEPHEN REINHARDT, CYNTHIA HOLCOMB HALL and MILAN D. SMITH, JR., Circuit Judges.

Per Curiam Opinion; Dissent by Judge HALL.

PER CURIAM:

In United States v. Paul, 239 Fed. App'x 353(9th Cir.2007) (Paul I), we held that a 16-month sentence imposed on Patricia Betterman Paul for theft from a local government receiving federal funding, a violation of 18 U.S.C. § 666(a)(1)(A), was unreasonable. Id. at 354. We viewed her case as one that did not fall within the "heartland" of cases to which the Federal Sentencing Guidelines are most applicable, as contemplated by Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007) (a court may decide "that the Guidelines sentence should not apply, perhaps because ... the case at hand falls outside the `heartland' to which the Commission intends individual Guidelines to apply"); cf. United States v. Mohamed, 459 F.3d 979, 987 (9th Cir.2006) ("any post-Booker decision" as to whether a case falls within the heartland "is subject to a unitary review for reasonableness"), and allowed by Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 595, 169 L.Ed.2d 445 (2007) (rejecting "an appellate rule that requires `extraordinary' circumstances to justify a sentence outside the Guidelines range"). We vacated the sentence and remanded for resentencing, pointing to four specific mitigating factors that demonstrated the 16-month sentence was unreasonably high. Paul now appeals the subsequent sentence of 15 months that the district court imposed upon remand. This case presents the question whether a district court can disregard the spirit and express instructions of an appellate court's mandate to reconsider an unreasonable sentence. We once more vacate Paul's sentence, and remand to a different judge for resentencing.

Factual and Procedural Background

Paul was convicted by jury verdict for misappropriation of federal program funds under 18 U.S.C. § 666(a)(1)(A), and originally sentenced by the district court on this conviction to 16 months in prison. Paul appealed to this Court, raising multiple issues and appealing both the conviction and the sentence. Paul prevailed on the latter but not on the former. We held, in an unpublished memorandum disposition, that her sentence was substantively unreasonable. We determined that the district court did not adequately take into consideration numerous factors that demonstrated that the 16-month sentence was unreasonably high: (a) that Paul was a first-time offender with no criminal record whatsoever; (b) that she promptly returned all of the funds to the school district; (c) that she displayed remorse in two statements given to the Department of Labor prior to the filing of criminal charges; and (d) that she believed that the misappropriated funds represented compensation for work that she had performed for the district. We held that "[t]he district court did not adequately consider this strong mitigating evidence in sentencing Paul to the very top of the guidelines range," and thus, the sentence was unreasonable. Paul, 239 Fed. App'x at 354-55. The panel vacated and remanded for resentencing, and the United States did not file a petition for rehearing.

On remand, the United States argued to the district court that the "Circuit's factual conclusions were, in significant part, flawed and unsupported by the record" and that the "original sentence was not unreasonable." The district court agreed, and while acknowledging this Court's declaration that Paul's original sentence was unreasonable, it determined that it was "totally satisfied that a sentence at the upper end of [the] guideline range would not only be reasonable, but that it would meet all of the current law criteria." The district court then sentenced Paul to a 15-month prison term, removing one month from its original sentence that was declared unreasonable by this Court. Paul now appeals, claiming that the district court violated the rule of mandate by failing to credit the mitigating evidence that it was specifically directed to take into consideration.

Jurisdiction and Standard of Review

The district court had subject matter jurisdiction to resentence Appellant under 18 U.S.C. § 3742(g). We review de novo a district court's compliance with a mandate. United States v. Kellington, 217 F.3d 1084, 1092 (9th Cir.2000).

Discussion

We vacate the district court's reimposition of a sentence at the top of the Guidelines range because it flouts our prior mandate. The language in our prior disposition is clear:

Paul's 16-month sentence is unreasonable. Several factors that are absent from the district court's sentencing analysis demonstrate that this case does not fall within the "heartland" of cases to which the guidelines are most applicable .... All of the following facts demonstrate that a 16-month sentence was unreasonably high: Paul was a first-time offender with absolutely no criminal record whatsoever; she promptly returned all of the funds to the school district; she displayed remorse in two statements given to the Department of Labor prior to the filing of criminal charges; and the misappropriated funds represented compensation for work that she had performed for the district. The district court did not adequately consider this strong mitigating evidence in sentencing Paul to the very top of the guidelines range. Accordingly, we vacate Paul's 16-month sentence and remand with instructions for the district court to resentence Paul after giving appropriate consideration to the above-mentioned factors.

Paul, 239 Fed. App'x at 354-55. Nonetheless, on remand, the district court imposed a nearly identical sentence on Paul, removing only one month from the original top of the Guidelines sentence. In doing so, the district court was in violation of both the spirit and express instructions of our mandate. See Cassett v. Stewart, 406 F.3d 614, 621 (9th Cir.2005) (holding that a lower court may deviate from mandate only if it is "not counter to the spirit of the circuit court's decision").

Further, the district court did not impose the new sentence because of any new information submitted after the imposition of the sentence that was the subject of the prior appeal, nor because intervening authority made reconsideration appropriate.¹ See Lindy Pen Co. v. Bic Pen Corp., 982 F.2d 1400, 1404 (9th Cir.1993) ("The law of the case controls unless evidence on remand is substantially different from that presented in previous proceedings."). The district court primarily relied upon the reasoning and justifications that we declared insufficient in our prior disposition. Specifically, the district court focused heavily on Appellant's abuse of trust, as it did in the first sentencing, and omitted any meaningful consideration of the other factors which our mandate directed it to give appropriate consideration.

Further, contrary to the dissent's assessment, no intervening case law made reconsideration appropriate in this case. In our prior disposition, we held that Paul's sentence was unreasonable.² Review for "unreasonableness" amounts to review for abuse of discretion. See Gall, 128 S.Ct. at 594("Our explanation of `reasonableness' review in the Booker opinion made it pellucidly clear that the familiar abuse-of-discretion standard of review now applies to appellate review of sentencing decisions."); Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 576, 169 L.Ed.2d 481 (2007) ("The ultimate question ... is `whether the sentence was reasonable-i.e., whether the District Judge abused his discretion.'").

While it is true that more recent cases Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 169 L.Ed.2d 445, and United States v. Carty, 520 F.3d 984 (9th Cir.2008) (en banc) reiterate the holding of United States v. Booker, 543 U.S. 220, 246, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), that a sentence is reviewed for reasonableness under an abuse of discretion standard, this standard was clearly established when we issued our prior holding—notably so in Rita v. United States, a case on which we explicitly relied, see 127 S.Ct. at 2465 ("`[R]easonableness' review merely asks whether the trial court abused its discretion."). While each of these subsequent cases has added nuance to our review of district court sentencing, the basic tenet of our prior holding in Paul I—that this is not a case that falls within the "heartland" of cases to which the Guidelines are applicable—remains good law. District courts are clearly vested with considerable discretion at sentencing. See United States v. Whitehead, 532 F.3d 991, 993 (9th Cir. 2008). However, this discretion does not authorize the district court to trespass beyond boundaries established by this Court in a previous appeal.³

Here, following the mandate laid out in Paul I would not have required the district court to render an illegal sentence. Cf. United States v. Bad Marriage II, 439 F.3d 534, 538 (noting that Booker was intervening case law that allowed for reconsideration of a mandate, as imposing a sentence pursuant to a mandatory sentencing regime would be illegal). Nothing in Gall, Kimbrough, or Carty so undermines the legal analysis in Paul I so as to allow the district court to deviate from our mandate. There is no merit to the suggestion that there have been intervening changes in the law of sentencing that permit us to abandon...