U.S. v. Friedman

• Decision Date: 10 February 2009
• Docket Number: No. 07-4118.,07-4118.
• Citation: 554 F.3d 1301
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Charles Dennis FRIEDMAN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

554 F.3d 1301

UNITED STATES of America, Plaintiff-Appellant, v. Charles Dennis FRIEDMAN, Defendant-Appellee.

No. 07-4118.

United States Court of Appeals, Tenth Circuit.

February 10, 2009.

Elizabethanne C. Stevens, Assistant United States Attorney (Brett L. Tolman, United States Attorney, with her on the briefs), District of Utah, Salt Lake City, UT, for Plaintiff-Appellant.

Jeremy M. Delicino, (Stephen R. McCaughey, on the briefs), Salt Lake City, UT, for Defendant-Appellee.

Before KELLY, SEYMOUR, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Charles Friedman pleaded guilty to bank robbery. 18 U.S.C. § 2113(a). Varying dramatically from the 151- to 188-month range set out in the advisory Sentencing Guidelines, the district court sentenced Friedman to fifty-seven months' imprisonment. The government appeals, claiming the sentence imposed by the district court is substantively unreasonable. Exercising jurisdiction pursuant to 18 U.S.C. § 3742(b) and 28 U.S.C. § 1291, we reverse Friedman's sentence and remand the matter to the district court for further proceedings consistent with this opinion.

II. BACKGROUND

Friedman is a serial bank robber.¹ In May 1986, he robbed a bank in Arizona. During the Arizona robbery, he used a note indicating he had a gun. In June 1986, he robbed a bank in Utah while armed with a .45-caliber automatic pistol. Friedman was convicted of the Utah robbery in August 1986; he was sentenced to twenty years' imprisonment. He was convicted of the Arizona robbery in February 1987; he was sentenced to three years' imprisonment, to run consecutively to the sentence on the Utah robbery conviction. Friedman was paroled on June 13, 1998.²

Law enforcement officials investigated Friedman as a suspect in three bank robberies that took place between December 30, 1998, and January 19, 1999. During an arrest of Friedman on unrelated charges, officers found "bait bills" that were taken during the January 19th robbery. Shortly thereafter, he was indicted on three counts of bank robbery. Friedman pleaded guilty to one count, a 1999 robbery, in exchange for the dismissal of the remaining two charges.

The United States District Court for the District of Utah sentenced Friedman to seventy-one months' imprisonment. Pursuant to the terms of the plea agreement between Friedman and the government, the district court ordered the sentence to run concurrently with any term of incarceration imposed by the United States Parole Commission ("USPC") upon revocation of Friedman's parole on his previous convictions. Ultimately, however, the USPC declined to cooperate with such an approach, refusing to execute on the parole warrant until Friedman completed his seventy-one-month sentence for the 1999 bank robbery. Without such an action on the part of the USPC, the Bureau of Prisons informed the court it was unable to run Friedman's sentence concurrently to whatever sentence the USPC might impose when it executed its parole warrant. In response, the district court issued two amended orders, modifying Friedman's sentence to one day of imprisonment, followed by three years' supervised release.³

Friedman was placed on supervised release for the 1999 robbery in June 2005.⁴ Five months later, on November 8, 2005, Friedman robbed Chase Bank in West Valley City, Utah. Friedman was indicted on bank robbery charges in December of 2005; the Chase Bank case was transferred to the same district court judge who handled the 1999 robbery conviction and consolidated with proceedings to revoke Friedman's supervised release on the 1999 bank robbery conviction. Friedman thereafter pleaded guilty to robbing Chase Bank.

In advance of the sentencing hearing on the Chase Bank conviction, a United States probation officer prepared a presentence report ("PSR"). The PSR first calculated Friedman's offense level by reference to U.S.S.G. § 2B3.1, the Guideline provision applicable to robberies. Pursuant to § 2B3.1 (a), Friedman's base offense level was 20. The PSR adjusted Friedman's offense level upward two levels because the money was taken from a financial institution. U.S.S.G. § 2B3.1(b)(1). After deducting three levels for acceptance of responsibility, id. § 3E1.1, Friedman's adjusted offense level was 19. This offense level, coupled with Friedman's criminal history category V, resulted in a sentencing range of fifty-seven to seventy-one months' imprisonment. Id. ch. 5 pt. A.

Pursuant to the terms of § 4B1.1, the PSR also calculated Friedman's advisory sentencing range under the career offender provisions of the Guidelines.⁵ Under the career offender guideline, Friedman's offense level was 32⁶ and his criminal history category was VI.⁷ After a three-level reduction to his offense level for acceptance of responsibility, Friedman's offense level of 29 and criminal history category VI resulted in a sentencing range of 151 to 188 months. Id. Because this range was "greater than the offense level otherwise applicable" under § 2B3.1, it became Friedman's correctly calculated advisory Guideline range. Id. § 4B1.1(b). The PSR concluded by noting there was no information to suggest that either an upward or a downward departure was warranted in the case and "[n]o other sentencing factors have been identified by the probation office."

Friedman filed objections to the PSR. As relevant to the issues on appeal, he simply objected to the PSR because "there is no consideration given to any variances from the [G]uidelines based on factors set forth in 18 U.S.C. § 3553." The government filed a written response to Friedman's objections, specifically requesting that the district court sentence Friedman within the guideline range of 151 to 188 months.⁸ Defense counsel did not file a sentencing memorandum, but Friedman did submit a lengthy letter to the district court. Friedman explained he had been in prison for all but twenty months of the previous twenty-seven years and was institutionalized extensively as a juvenile. Friedman asserted his "lifetime of prisons and institutions did nothing to prepare [him] for the free world," and explained he thought he robbed the Chase Bank "not for the money or opportunity, but to escape the pressures of the [foreign] world [he] was in." Friedman stated he was not violent and was not a career criminal. As to his culpability, Friedman stated as follows "My point here is that I have done my share of prison time, considering my crimes, and as I pointed out earlier in this letter, I'm much like the turtle on the fencepost—I didn't get into this predicament all on my own. I think it's time the `system' took `some' responsibility." Friedman asked the district court to consider an alternative to long-term incarceration and stated he would not "abuse any opportunity" the court gave him.

Friedman's sentencing hearing took place on March 1, 2007. Defense counsel made a very brief opening statement, simply requesting a sentence of seven to eight years based on the § 3553 factors. Defense counsel did not specify the § 3553 factors to which he was referring, although he did note Friedman did not use a gun when he robbed the bank. The district court turned its attention to Friedman's letter:

Court: And you had been thinking after some further thought that you really do like to be on the great outside?

Friedman: Yes, sir.

....

Court: Well, if you don't want to be in prison, why do you keep doing that?

Friedman: I'm definitely here ... and I've admitted my responsibility to the crime... . [B]ut I don't think I'm here on my own and I don't think that's been sufficiently addressed either by the government or basically us as far as my history goes.

.... I've got an extensive juvenile history that involved like incorrigible or runaway, things that really weren't criminal but were enough to get me into the system at the time at a very young age. And it's never stopped since then.

.... I'll be 45 this year. And my breaks from institutions has been very brief since like the age of 10. And I think ... somewhere along the line, there's some other responsibility has to be assigned to the system itself. I've gotten no halfway house this last time I was out. There's no adjustment period there. I did find, Your Honor, in the statute while I was in prison, something called a Demonstration Project or a Demonstration Program that was funded through this year and was specifically designed for high-risk reoffenders, people that fit my category, people that have been in prison a long time, which is real rare to find any kind of program for people like me. I wrote to counsel at the time.... I wrote to my last known probation officer.... I approached the administration at the prison I was at.... Nobody knew anything about it.

.... Judge, it's not a matter of, "Don't you like it out here?" It's a matter of not knowing how to live out here. And normal people that are out here don't understand that, and I tried to explain to you in my letter as best I could.... It's hard just to come out of a maximum security penitentiary after years and years and come out here and be expected just to function normally.

Court: Well, it's hard to expect a system to be patterned directly for a person like you. You can be observing whatever programs are available; they're not going to create a new program for people who happen to be in prison almost perpetually. I feel sorry that you've been in prison for so long, but, you know, I didn't see anything in your long and well-written letter, eloquent in some parts, any remorse or any consideration of the victims that you have affected. You're worried about your life being affected. What about being concerned about their lives, about the trauma that you caused to a young teller who's thinking still, dreaming about the incident?

....

Friedman: There is no doubt that the teller in the instant offense or any teller that is approached by a stranger and gets demanded to hand over money is probably...