U.S. v. Burgum

• Decision Date: 25 January 2011
• Docket Number: No. 09–50449.,09–50449.
• Citation: 633 F.3d 810
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Joseph Case BURGUM, aka Joseph Charles Barrett, aka Seal A, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

633 F.3d 810

11 Cal. Daily Op. Serv. 1106

2011 Daily Journal D.A.R. 1371

UNITED STATES of America, Plaintiff–Appellee,

v.Joseph Case BURGUM, aka Joseph Charles Barrett, aka Seal A, Defendant–Appellant.

No. 09–50449.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 1, 2010.Filed Jan. 25, 2011.

Sean K. Kennedy, Federal Public Defender, and Alexandra W. Yates (argued), Deputy Federal Public Defender, Los Angeles, CA, for the defendant-appellant.George S. Cardona, Acting United States Attorney, Douglas F. McCormick, Assistant United States Attorney, and Anne C. Gannon (argued), Assistant United States Attorney, Santa Ana, CA, for the plaintiff-appellee.Appeal from the United States District Court for the Central District of California, Cormac J. Carney, District Judge, Presiding. D.C. No. 8:07–cr–00061–CJC–1.Before: DIARMUID F. O'SCANNLAIN, RAYMOND C. FISHER and RONALD M. GOULD, Circuit Judges.Opinion by Judge FISHER; Dissent by Judge O'SCANNLAIN.

OPINION

FISHER, Circuit Judge:

Joseph Case Burgum appeals the district court's imposition of a 180–month sentence of imprisonment following his guilty plea to two counts of armed bank robbery in violation of 18 U.S.C. § 2113. Burgum contends that the district court improperly used the statutory maximum instead of the U.S. Sentencing Guidelines range as a starting point for sentencing and improperly treated his inability to pay restitution as an aggravating factor. He also argues that the sentence imposed was substantively unreasonable. Because we conclude that reliance on Burgum's inability to pay was plain error that seriously affected the fairness and integrity of the sentencing proceeding, we vacate and remand for resentencing.

I.

In June 2008, Burgum pled guilty to two counts of bank robbery. The robberies took place in Anaheim, California and Scottsdale, Arizona in May 2003. Burgum used the same technique for both robberies: he first met with a bank manager, posing as an FBI officer, then attached a metal box to the manager's wrist using handcuffs. He then told the manager that the box was a bomb he could detonate remotely. Burgum also showed both managers the gun he was carrying. He threatened to use the gun during the Scottsdale robbery, when the manager resisted his demands. When Burgum learned he had been indicted for bank robbery several years later, he turned himself in.

After Burgum's indictment, the probation office prepared a pre-plea presentence report (PSR) that placed Burgum in criminal history category II. Burgum pled guilty after reviewing this draft of the PSR, which led him and the government to expect a Sentencing Guidelines range of 108–135 months. In plea discussions, the government agreed to recommend a sentence at the low end of that guidelines range. The probation office later realized, however, that due to a clerical error, the wrong draft PSR had been disclosed to the parties. The correct draft showed Burgum to be in criminal history category VI and recommended a guidelines range of 188–235 months. Consistent with the correct draft, the final PSR included the higher guidelines range calculation and recommended a sentence of 188 months, at the low end of the higher range. The final PSR also recommended ordering $258,280 in restitution.

Recognizing that plea negotiations had proceeded with the understanding that Burgum would be sentenced according to the 108–135 month guidelines range originally calculated, the government recommended a sentence at the low end of that lower guidelines range in its sentencing memorandum. Burgum agreed with the government's recommendation.

At sentencing, the district court calculated a guidelines range of 108–135 months, using a different calculation method than that used in any version of the PSR.¹ The court then listed various mitigating factors it found persuasive but also emphasized several “very troubling, aggravating factors.” In describing aggravating factors, the district court focused on “the nature of these bank robberies,” including the use of a hoax bomb, the impersonation of an FBI agent and the “infliction of emotional distress on the bank manager and the tellers.” The court also mentioned “[o]ne additional aggravating factor”: Burgum was very unlikely to be able to pay the $258,280 in restitution the court intended to order. In addition to ordering the restitution payment, the court ultimately imposed a 180–month term of imprisonment.

II.

The substantive reasonableness of a sentence is reviewed for abuse of discretion. See United States v. Autery, 555 F.3d 864, 871 (9th Cir.2009). Procedural sentencing errors raised for the first time on appeal are generally reviewed for plain error. See United States v. Evans–Martinez, 611 F.3d 635, 642 (9th Cir.2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 956, 178 L.Ed.2d 788 (2011).²

III.

Burgum first argues that instead of “begin[ning] by determining the applicable Guidelines range” as required by United States v. Carty, 520 F.3d 984, 991 (9th Cir.2008) (en banc), the district court improperly based its sentencing analysis on the statutory maximum. Burgum did not object to this alleged error below, so our review is for plain error, which we conclude did not occur. The court properly calculated the guidelines range as the starting point, then considered the statutory maximum and applied mitigating factors.

Had the district court used the statutory maximum rather than the guidelines range as the baseline for sentencing, it would have been reversible error. See id. at 993. The district court mentioned “working from the statutory maximum and building downward,” but the record clarifies that the court used the guidelines as a “starting point” and recognized its obligation to consider the 18 U.S.C. § 3553(a) sentencing factors.

Specifically, the court said it would “in normal circumstances be looking, believe it or not, at the statutory maximum” and would then be “working down.” But before discussing the statutory maximum, the court made clear that the “starting point of [its] analysis [was] the guideline range.” The court concluded that the aggravating factors warranted an upward adjustment all the way to the statutory maximum, and then applied mitigating factors to reduce that hefty sentence. Thus the court properly used the guidelines as the “initial benchmark,” id. at 991 (citation and internal quotation marks omitted), and its repeated references to the guidelines “demonstrate that the court ‘remain[ed] cognizant of [them] throughout the sentencing process.’ ” United States v. Ressam, 593 F.3d 1095, 1124 (9th Cir.2010) (quoting Gall v. United States, 552 U.S. 38, 50 n. 6, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). There was no plain error.

IV.

Burgum also contends that his 180–month sentence is substantively unreasonable, pointing out that both parties and the probation office recommended a 108–month sentence. We conclude that the district court's sentencing decision was rational and substantiated by the record. We therefore hold that the district court did not abuse its discretion and that the sentence imposed was not substantively unreasonable.

At sentencing, the prosecution and the probation office recommended the low sentence to avoid penalizing Burgum for pleading guilty in reliance on the erroneous draft PSR, which reported the 108–135 month guidelines range. The district court, however, viewed the 108–month sentence as inappropriate for a “very cruel and tormenting” offense and found the low 108–month recommendation to be an undeserved “windfall.” The court's finding was rational, clearly explained and closely tied to the factual record.³ The 180–month sentence was not unreasonable. See United States v. Valencia–Barragan, 608 F.3d 1103, 1108–09 (9th Cir.2010) (rejecting the defendant's contention that the sentence imposed was substantively unreasonable, in light of “the nature of [the defendant's] crime”).

Burgum also argues that, because the district court referred to his offense as “about as bad a bank robbery[as] I can imagine,” the sentence imposed left “little room for marginal deterrence.” The district court was not required to conform the sentence to those imposed in similar cases, however. Although comparability is a legitimate sentencing factor, divergence from sentences imposed in similar cases is permissible so long as the court is attentive to relevant sentencing factors, as the district court was here. See United States v. Marcial–Santiago, 447 F.3d 715, 719 (9th Cir.2006).

Accordingly, we reject Burgum's contention that the district court abused its discretion by imposing a substantively unreasonable sentence.

V.

Finally, we conclude that the district court did plainly err by treating Burgum's inability to pay restitution as an aggravating sentencing factor. The district court explicitly cited Burgum's financial status as a factor aggravating the severity of his conduct. After reviewing mitigating and aggravating evidence, the court added that:

One additional aggravating factor that I didn't mention is I just think realistically the chances of restitution in this case are probably slim, maybe even null in light of the amount of restitution being $258,280, Mr. Burgum not really having the finances or the financial condition to even pay a fine.

The court went on to base its calculation of the sentence on “these [§ 3553] objectives, the aggravating and mitigating factors, [and] the guideline range.”

We recognize that the district court mentioned Burgum's inability to pay restitution only once during the sentencing hearing. We also acknowledge that the court undoubtedly relied more heavily on other factors in reaching its ultimate sentencing determination, especially given its focus on the nature of Burgum's crime. Moreover, because Burgum's counsel unfortunately did not object to the district court's consideration of his inability to pay, the court had no occasion to clarify the weight, if any, it gave...