United States v. Christensen

• Decision Date: 11 October 2013
• Docket Number: No. 11–10562.,11–10562.
• Citation: 732 F.3d 1094
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Collins Max CHRISTENSEN, aka Collie Christensen, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

732 F.3d 1094

UNITED STATES of America, Plaintiff–Appellee,

v.Collins Max CHRISTENSEN, aka Collie Christensen, Defendant–Appellant.

No. 11–10562.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 10, 2013.

Filed Oct. 11, 2013.

Courtney J. Linn (argued) and McGregor W. Scott, Orrick Herrington & Sutcliffe LLP, Sacramento, CA, for Defendant–Appellant.

Camil A. Skipper (argued), Assistant United States Attorney, Benjamin B. Wagner, United States Attorney, Russell L. Carlberg, Assistant United States Attorney, Sacramento, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Eastern District of California, John A. Mendez, District Judge, Presiding. D.C. No. 2:11–cr–00070–JAM–1.

Before: A. WALLACE TASHIMA and JAY S. BYBEE, Circuit Judges, and WILLIAM H. STAFFORD, Senior District Judge.^*

Opinion by Judge STAFFORD; Dissent by Judge TASHIMA.

OPINION

STAFFORD, Senior District Judge:

Collins Max Christensen appeals the sentence imposed by the district court following his pre-indictment guilty plea to one count of wire fraud in violation of 18 U.S.C. § 1343. Christensen's sentence—60 months in prison—was 19 months above the high end of the applicable advisory guideline range and 27 months above the recommended sentence set out in the plea agreement. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I.

Christensen waived indictment by a grand jury and pleaded guilty to a one-count information charging wire fraud. The plea agreement revealed that, between 2006 and 2008, Christensen managed the operations of at least six land development companies, which—in turn—managed multiple real estate projects spearheaded by Christensen. By soliciting individual investors, Christensen received a total of approximately $2,385,959 from fourteen individuals who agreed to invest in one or more of Christensen's projects. Over time, Christensen diverted a significant amount of the investors' funds, using the diverted funds for undisclosed purposes. Indeed, Christensen admitted that he misappropriated approximately $985,994 of investors' funds using the interstate wires to further his criminal scheme. Christensen further admitted that he diverted investors' funds not only for use on undisclosed real estate projects but also for his own personal use.

In the Presentence Investigation Report (“PSR”), the probation officer summarized the losses sustained by the various “victims” of Christensen's offense of conviction. Only those persons who had some or all of their investment funds unlawfully diverted by Christensen were listed as “victims” of Christensen's offense. Consistent with the plea agreement, the total “victim” loss reported by the probation officer was $985,994.

Given the loss amount reported in the PSR and admitted by Christensen, the probation officer calculated a total offense level of 20, including a three-level reduction for acceptance of responsibility. With a criminal history category of I, the recommended sentencing range under the Guidelines was 33 to 41 months. Christensen agreed with the probation officer's Guidelines calculations.

The probation officer included in the PSR a sampling of the written statements that Christensen's “victims” submitted to the court. In his informal objections to the PSR, which were submitted to the probation officer before sentencing, Christensen complained that one of the victim impact statements was “misleading.” He did not provide specifics, and he did not otherwise object to the content of any of the victim impact statements quoted in the PSR. After the probation officer amended the PSR in response to Christensen's informal objections, Christensen did not again complain about the victim impact statements.

One day before sentencing was scheduled to begin, the district court advised counsel that—for “a number of reasons”—it was considering an upward variance to Christensen's sentence. To that end, the district judge requested that the government provide information concerning the amount of investor monies that Christensen diverted to his own personal use. Given the last-minute notice concerning a possible upward variance, Christensen's counsel requested and obtained a continuance of the sentencing hearing.

As directed by the district court, the government filed a spreadsheet itemizing Christensen's use of $507,805 for personal expenses. Among other things, the spreadsheet revealed that Christensen used investor monies for personal investment properties held in his wife's name, to pay his more–than–$13,000–per–month home mortgage, to make payments to his ex-wife, to make a car payment for his daughter, to pay his daughter's college tuition, and to gamble at a casino in Biloxi, Mississippi. According to the FBI, $507,805 was a “conservative figure” for the amount of diverted funds used for Christensen's personal expenses.

Christensen did not contest the accuracy of the personaluse transactions listed in the government's spreadsheet. Christensen instead argued—both in a written sentencing memorandum and in open court at sentencing—that an upward variance based on his personal use of diverted funds would constitute improper double-counting because the total loss amount—$985,994—had already resulted in a 14–level increase in Christensen's offense level pursuant to U.S.S.G. § 2B1.1(b)(1)(H). The district court was unpersuaded by Christensen's double-counting argument.

At the first of two sentencing hearings, the district court overruled Christensen's informal objections to the PSR and, on the record, adopted the findings in the amended PSR, determining them to be “true and correct as modified.” Included in the findings adopted by the district court was the total loss—$985,994—resulting from Christensen's criminal offense. Although a number of Christensen's victims spoke at that first hearing, Christensen failed to call the district court's attention to any false or misleading information provided by those victims.¹ Indeed, Christensen offered no objection at all to the victims' statements.

At the second sentencing hearing, after hearing from both counsel and Christensen himself, the district court explained its reasons for an upward variance as follows:

The sentencing factors require the Court to impose a sentence that is sufficient, but not greater than necessary to comply with the purposes set forth in 18 U.S.C. Section 3553(a)(2). And if the Court is going to vary, the Court has to state its reasons for varying upward.

And focusing on the nature and circumstances of the offense, and the nature and characteristics of the defendant, ... it concerns the Court ... that in effect [Christensen] used his positions to influence innocent victims to invest at a time when he knew that he was not going to use the money for those purposes, without disclosing that to them. He diverted $985,994, which has been the agreed upon sum in terms of loss in this case.

After adding that (1) Christensen apparently learned nothing from a 28–year–old felony conviction for obtaining money by false pretenses and (2) Christensen's numerous victims included “vulnerable, retirement age victims, victims that trusted Mr. Christensen,” the district court continued:

Mr. Christensen indicated that he did not set out to bilk his investors. I accept that. But, again, that's only half the story. At some point he did consciously and intentionally decide to bilk his investors, and that conduct continued for a period of years, and it involved a number of different investors in the same type of conduct.

And I found interesting Mr. Christensen's statement to the Court in which he explained, at least attempted to explain why he did what he did. And he wrote in there that he's the type of person in which he believes that failure is not an option. I've heard that phrase over and over again by many people. And in this case, it clearly was an option. It's clearly what you should have done. You should have accepted failure. Sometimes you learn more from your failures than you do from your successes. But it certainly would have saved not only your family, but all of these victims who have made statements, submitted loss statements to the Court, from having to postpone their retirement, have their marriages destroyed, lose their jobs or lose their homes.

The Court believes, therefore, for those reasons, and specifically given the—as in Schlueter, the fact that I don't think the sentencing guideline range adequately accounts for the harm that Mr. Christensen's fraud caused his victims, I believe that given the egregiousness of his conduct, including lying, covering up, using funds for personal purposes, destroying the victims' lives, cheating victims out of significant sums of money that they needed, and taking advantage of personal relationships, that the guideline range doesn't adequately account for the harm that his conduct has caused. There is a need—despite the fact that there has been almost 28 years between his last conviction, there still is a need I believe in this case to protect the public from further crimes.

For all these reasons, the Court believes an upward variance is appropriate and, given the loss in this case, that a sentence of 60 months is appropriate and sufficient, but not greater than necessary to satisfy the sentencing requirements imposed by the Court.

At the conclusion of the sentencing hearing, Christensen offered only two objections to the sentence imposed. Christensen first objected to the purported lack of notice regarding the basis for an upward variance. Specifically, Christensen asserted that he had not been given notice that the court might base an upward variance on the victims' statements. He did not assert that the district court committed procedural error by relying on clearly erroneous facts, speculative evidence, and unreliable victim statements. Second, Christensen objected to the district court's alleged “discounting” of his...