U.S. v. Givens, 05-1711.

• Decision Date: 11 April 2006
• Docket Number: No. 05-1711.,05-1711.
• Parties: UNITED STATES of America, Appellant, v. Gordon J. GIVENS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

443 F.3d 642

UNITED STATES of America, Appellant, v. Gordon J. GIVENS, Appellee.

No. 05-1711.

United States Court of Appeals, Eighth Circuit.

Submitted: December 14, 2005.

Filed: April 11, 2006.

Michael P. Norris, argued, Asst. U.S. Atty., Omaha, NE, for appellant.

Donald Lee Schense, argued, Bellevue, NE, for appellee.

Before WOLLMAN, BEAM, and RILEY, Circuit Judges.

BEAM, Circuit Judge.

Following a plea of guilty to bank fraud, the district court departed from the twenty-four to thirty month United States Sentencing Guidelines range suggested by the pre-sentence investigation report (PSR) and sentenced Gordon Givens to time served (Givens had served no time) and five years of supervised release to include a twelve-month term of house arrest, eighty hours of community service and restitution in the amount of $1,220,875. The government appeals, arguing that this sentence is wholly unreasonable. We agree, vacate Givens' sentence and remand for resentencing.

I. BACKGROUND

Givens ran a cattle feedlot near O'Neill, Nebraska. In late 2001, he obtained an operating loan, a line of credit, and residential refinancing from United Nebraska Bank. Givens pledged various assets as security for the $750,000 operating loan. These supposed assets were later determined to be nonexistent. Specifically, Givens represented that certain cattle in his feedlot were his and in turn pledged them as collateral when, in truth, the cattle belonged to other ranchers.

In August 2003, Givens approached the bank and told them he would not be able to pay off the loans and admitted to falsifying the computer documents related to the ownership of cattle at his feedlot. The bank declared a loss of $2,216,088.47. After partial recovery was made through the sale of existing feedlot assets, the loss remained at $1,220,875.

On November 12, 2004, Givens waived indictment and pleaded guilty to bank fraud in violation of 18 U.S.C. § 1344. The information charged him with executing a scheme to defraud the bank of approximately $900,000. The parties agreed on the relevant conduct and that the loss to the bank was greater than $400,000 and less than $1,000,000 and that the corresponding fourteen-level sentencing enhancement for that amount was appropriate. The PSR also included a suggested three-level reduction for acceptance of responsibility. The government abided by its promise to request that Givens be sentenced at the low end of the suggested twenty-four to thirty month guidelines range.

Prior to sentencing, the U.S. Probation Office submitted a recommendation to the district court suggesting that Givens be sentenced to time served (even though Givens had not yet served any time) followed by a five-year term of supervised release despite the suggested twenty-four to thirty month guideline range. The probation officer substantiated this proposal by stating that Givens had no prior criminal history, this was not a crime of violence, Givens reported the crime to the bank himself, and Givens likely faced jail time on the corresponding state charges for the same conduct. While the probation officer apparently felt that probation was likely the best option for Givens, it was not authorized by the statutory provisions for this crime.

At sentencing, Givens sought an additional downward departure under chapter five of the guidelines for civic, charitable, or public service; a record of prior good works; and for voluntary disclosure of his offense. At sentencing there were several letters submitted to the district court on Givens' behalf attesting to his moral character and the fact that Givens had already signed over some life insurance policies in an attempt at restitution.

The district court refused to depart on the bases requested by Givens under U.S.S.G. § 5H1.11 even though Givens had taken responsibility for his actions and remained a charitable and civic-minded individual. The district court did, however, depart downward for its own reasons, recognizing Givens' extraordinary post-offense rehabilitation since Givens had stepped forward and had done what he could to make things right. The court also considered other factors it believed took this case out of the heartland of bank fraud cases including: the social concerns of rural agriculture communities struggling to make ends meet in a competitive world market, prompting men like Givens to resort to fraud; the fact that placing Givens in jail would jeopardize his new position of running a cattle operation for the community; and that the bank was partially to blame because it had to have known that the numbers weren't right and, thus, should not have extended the loans.

The district court explained that the imposed, non-custodial sentence would allow Givens to continue to be an asset to his community and would not jeopardize the community which had put Givens in charge of another cattle operation. Simultaneously, the district court intended that the limitations imposed by the house arrest would keep Givens from participating in many family events, punish Givens for the grief he had caused his community, and account for the "issue" between Givens and the bank concerning the fraud committed by Givens.

II. DISCUSSION

In imposing sentences, a district court should determine the advisory guideline sentencing range, based on the total offense level, criminal history category, and any appropriate departures from the guidelines. United States v. Shannon, 414 F.3d 921, 923 (8th Cir.2005). The district court may then vary from the advisory guideline range based on the factors set forth in section 3553(a), so long as such a variance is reasonable. Id. On appeal, we start by considering whether the district court properly calculated the guideline range, whether it erred in any departure decision, and then whether the sentence imposed was reasonable....