U.S. v. Whitehead, No. 05-50458.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Per Curiam
• Citation: 532 F.3d 991
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Thomas Michael WHITEHEAD, Defendant-Appellee. United States of America, Plaintiff-Appellee, v. Thomas Michael Whitehead, Defendant-Appellant.
• Docket Number: No. 05-50506.,No. 05-50458.
• Decision Date: 14 July 2008

532 F.3d 991 UNITED STATES of America, Plaintiff-Appellant,
v.
Thomas Michael WHITEHEAD, Defendant-Appellee.
United States of America, Plaintiff-Appellee,
v.
Thomas Michael Whitehead, Defendant-Appellant. No. 05-50458. No. 05-50506. United States Court of Appeals, Ninth Circuit. Argued and Submitted August 16, 2006. Submission Vacated September 12, 2006. Resubmitted July 14, 2008. Filed July 14, 2008.

[532 F.3d 992]

Michael J. Raphael and Thomas P. O'Brien, Assistant United States Attorneys; Debra Wong Yang, United States Attorney, Los Angeles, CA, for the plaintiff-appellant.

Nina Marino, Kaplan Marino, Beverly Hills, CA, for the defendant-appellee.

Appeal from the United States District Court for the Central District of California; Christina A. Snyder, District Judge, Presiding. D.C. No. CR-03-00053-CAS-1.

Before: ALEX KOZINSKI, Chief Judge, DIARMUID F. O'SCANNLAIN and JAY S. BYBEE, Circuit Judges.

PER CURIAM Opinion; Dissent by Judge BYBEE.

PER CURIAM:

Thomas Michael Whitehead sold over $1 million worth of counterfeit "access cards" that allowed his customers to access DirecTV's digital satellite feed without paying for it. The jury convicted him of breaking various federal laws, including the Digital Millennium Copyright Act, which forbids the sale of devices that are designed to "circumvent[ ] a technological measure" that protects copyrighted works. 17 U.S.C. § 1201(a)(2)(A). The district court calculated a Guidelines range of 41 to 51 months, but imposed a more lenient sentence of probation, community service and restitution.

The government appeals, arguing that this below-Guidelines sentence was unreasonable, and Whitehead cross-appeals, claiming that the indictment and jury instructions

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omitted an element of the crime. Neither party disputes the district court's Guidelines calculation. We deferred submission pending our en banc decision in United States v. Carty, 520 F.3d 984 (9th Cir.2008), and now affirm.

Analysis

1. "One theme" runs through the Supreme Court's recent sentencing decisions: "[United States v.] Booker[, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005),] empowered district courts, not appellate courts .... [and] breathe[d] life into the authority of district court judges to engage in individualized sentencing...." United States v. Vonner, 516 F.3d 382, 392 (6th Cir.2008) (en banc) (Sutton, J.). We review sentences for abuse of discretion, and without presuming that outside-Guidelines sentences are unreasonable. United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). Even if we are certain that we would have imposed a different sentence had we worn the district judge's robe, we can't reverse on that basis. Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007).

We find no abuse of discretion in the district court's conclusion that a substantial amount of community service (1000 hours), a hefty restitution order ($50,000) and five years of supervised release were more appropriate than prison. At the sentencing hearing, the court heard from Whitehead and his father, who told the court how Whitehead repented his crime; how he had, since his conviction, devoted himself to his house-painting business and to building an honorable life; how his eight-year-old daughter depended on him; and how he doted on her. In addition, the court took into account its finding that Whitehead's crime "[di]d not pose the same danger to the community as many other crimes." These are all considerations that the district court may properly take into account. See 18 U.S.C. § 3553(a)(1)-(2). The district court was intimately familiar with the nature of the crime and defendant's role in it, as we are not. The district court could appraise Whitehead's and his father's sincerity first-hand, as we cannot. In short, the district court was "in a superior position" to find the relevant facts and to "judge their import." Gall, 128 S.Ct. at 597. The district court didn't abuse its discretion in so doing.

2. Whitehead argues that his conviction under 17 U.S.C. § 1201 must be reversed because the indictment and jury instructions omitted an element of the offense, namely, that the technological measures he circumvented were put in place "with the authority of the copyright owner." See 17 U.S.C. § 1201(a)(3)(B) (defining when a technological measure "effectively controls access to a work"). But the indictment quoted and cited section 1201(a)(2)(A), and thereby "adequately apprised the defendant of the charge[ ]"; any mistake here was "minor or technical" and doesn't require reversal. United States v. Severino, 316 F.3d 939, 943 (9th Cir.2003) (internal quotation marks and citation omitted). And the jury instructions defined "technological measure" using section 1201(a)(3)(B)'s exact language. Neither the indictment nor the instructions were erroneous.

AFFIRMED.

BYBEE, Circuit Judge, dissenting in part:

Thomas Whitehead will do no jail time for pirating a million dollars worth of "access cards" and selling them on the internet to persons who used them to steal satellite television service from DirecTV. The advisory Guidelines, after taking into account Whitehead's personal circumstances, called for a sentence of 41-51 months. Whitehead walked with probation, restitution, and community service.

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This was not an exercise of discretion so much as an abdication of responsibility. Our substantive review of sentences may be limited after Gall, but being deferential does not mean turning a blind eye to an injustice. I respectfully dissent.¹

I

Whitehead was convicted of selling over 1000 "access cards" that allowed individuals to pirate digital satellite service from DirecTV. The district court estimated that by enabling his customers to watch satellite TV without paying for it, Whitehead stole at least $1 million in profits from DirecTV. Whitehead himself bragged online that he had personally earned over $400,000 from his business. Money earned by stealing from DirecTV was not his only source of utility, however. Whitehead also bragged to his customers that "if anyone is a trooper and likes the danger of this bi[z], it's me."

At Whitehead's sentencing hearing, the district court applied the Guidelines and arrived at an offense level of 24. The court then reduced the sentence by two levels for "acceptance of responsibility," even though Whitehead put the government to its burden and demanded a trial to contest his factual guilt. Thus, the court arrived at a total offense level of 22, resulting in a Guideline range of 41-51 months. In other words, the Guidelines suggested Whitehead should serve at least three years and five months in jail.

The court then further reduced the sentence by two levels because "the crime did not pose the same danger to the community as other crimes," and in light of Whitehead's "post-offense rehabilitation" and his family circumstances. The court tentatively announced that it would reduce the total offense level to 20 and impose a 33-month sentence, with 150 hours of community service. The court stated that "a custodial sentence is appropriate." Thus, having accounted for Whitehead's "acceptance of responsibility," in the form of post-conviction remorse, and his family circumstances, which I discuss in greater depth below, the district court still found that the Guidelines recommended that Whitehead should spend at least two years and five months in jail.

Whitehead then argued that even this sentence was unreasonable when considered in light of the § 3553(a) factors. To support his argument, he presented once again the same evidence that the district court had just acknowledged when it reduced its original guidelines calculation from offense level 24 to offense level 20: his post-offense "rehabilitation," his family circumstances, and the fact the crime was a white-collar crime. The district court then took a brief recess. When she returned, the district judge announced that instead of sentencing Whitehead to serve over three years in prison as suggested by the Guidelines, Whitehead would not go to prison at all. Instead, he would serve 5 years' probation. The district court also sentenced Whitehead to 1000 hours of community service and restitution of $50,000. The government appealed.

II A

I agree with the Sixth Circuit's eloquent observation that "Booker breathe[d] life into the authority of district court judges to engage in individualized sentencing within reason in applying the § 3553(a) factors to the criminal defendants that

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come before them." United States v. Vonner, 516 F.3d 382, 392 (6th Cir.2008) (en banc) (discussing United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)). I am less persuaded, however, by the suggestion that the "[o]ne theme" running through the Booker line of cases is that the Court has "empowered district courts, [but] not appellate courts." Id. Nothing in Booker, Rita, Gall, or our own assimilation of these cases in Carty, suggests that the Supreme Court has taken the courts of appeals out of the business of reviewing sentences. If it had, we could save ourselves a lot of time. On the contrary, in each of these cases the Court has explicitly held that the appellate courts must continue to play an important role in the process of ensuring that criminals are punished fairly: we are to "review" each sentence for "reasonableness," under the "abuse of discretion" standard. Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007) ("[A]ppellate review of sentencing decisions is limited to determining whether they are `reasonable' ... [under] the familiar abuse-of-discretion standard of review."); id. at 597 ("[T]he appellate court must review the sentence under an abuse-of-discretion standard." (emphasis added)).

There are countless types of district court rulings that we review for abuse of discretion.² In none of our cases...