FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-30055
Plaintiff-Appellant,
D.C. No.
v. CR-03-00058-DWM
DUNCAN WILLIAM EDWARDS, District of Montana,
Defendant-Appellee.
Missoula
UNITED STATES OF AMERICA, No. 08-30056
Plaintiff-Appellant,
D.C. No.
v. CR-04-00009-DWM
DUNCAN WILLIAM EDWARDS, District of Montana,
Defendant-Appellee.
Missoula
UNITED STATES OF AMERICA, No. 08-30059
Plaintiff-Appellee, D.C. Nos.
v. 9:04-cr-00009-
DWM-1
DUNCAN WILLIAM EDWARDS,
Defendant-Appellant. 9:03-cr-00058-
DWM-1
District of Montana,
Missoula
ORDER
Filed September 20, 2010
Order;
Dissent by Judge Gould
14399
14400 UNITED STATES v. EDWARDS
Before: Harry Pregerson, Carlos T. Bea and
Milan D. Smith, Jr., Circuit Judges.
A judge of this court sua sponte called for this case to be
reheard en banc. A vote was taken, and a majority of the
active judges of the court did not vote for a rehearing en banc.
Fed. R. App. P. 35(f). The call for this case to be reheard en
banc is DENIED.
GOULD, Circuit Judge, with whom BYBEE, CALLAHAN,
and BEA, Circuit Judges, join, dissenting from the denial of
rehearing en banc:
I respectfully dissent from the denial of rehearing en banc
in this case.
In his cogent dissent from the majority decision of our
three-judge panel, Judge Bea persuasively catalogs the laun-
dry list of analytical errors committed by the district court at
sentencing. See United States v. Edwards, 595 F.3d 1004,
1018-25 (9th Cir. 2010) (Bea, J., dissenting). I will not restate
all of those errors here. Instead, I write to emphasize a larger
and recurrent problem: our court’s practice of uncritically
affirming unreasonably lenient sentences for white-collar
criminals renders the Sentencing Guidelines a nullity, makes
us an outlier among the circuit courts, and impairs our ability
effectively to review sentences for substantive reasonable-
ness. Our “rubber-stamp” approach to reasonableness review
permits district courts to abuse their sentencing discretion by
paying lip service to appropriate sentencing considerations
while paying inadequate heed to the substance of those con-
siderations. Hence we can end up with people like Edwards
who engage in fraud and other criminal activities intended to
cause extremely large monetary damages, yet who spend
token and inadequate time, or even not one day, in jail.
UNITED STATES v. EDWARDS 14401
Although we owe deference in the area of sentencing to a
district court’s “superior position to find the relevant facts and
judge their import,” Edwards, 595 F.3d at 1016 (internal quo-
tation marks omitted), in the area of white-collar crime we
should be circumspect to draw careful boundaries around that
deference. Because of the nature of their crimes, white-collar
offenders are uniquely positioned to elicit empathy from a
sentencing court. See United States v. Ruff, 535 F.3d 999,
1007 (9th Cir. 2008) (Gould, J., dissenting) (“[D]istrict courts
sentencing white collar criminals can more often identify with
the criminal . . . . But, socioeconomic comfort with a criminal
convict is not a sufficient reason to show such extreme
leniency . . . .”); Kenneth Mann et al., Sentencing the White-
Collar Offender, 17 Am. Crim. L. Rev. 479, 500 (1980) (con-
cluding from a survey of federal judges that they evinced par-
ticular “understanding” and “sympathy” “for the person
whose position in society may be very much like their own,”
and that “factors intimately related to the defendant’s social
status do receive weight in the judges’ thinking” about sen-
tencing). And while judges take seriously violent crime and
are forced by congressional mandatory minimums to take
seriously drug crimes, there is latent risk in the case of white-
collar sentencing that an “it’s only money” rationale will
result in undue leniency for serious offenses. I have no doubt
that Edwards made a persuasive presentation to the district
court that he was an unhealthy, aging retiree repentant of past
frauds. Such cases are precisely when we should most rigor-
ously review a sentence’s reasonableness to ensure that the
justifications relied on at sentencing are supported by objec-
tive evidence in the record. See Michael M. O’Hear, Appellate
Review of Sentences: Reconsidering Deference, 51 Wm. &
Mary L. Rev. 2123, 2141-49 (2010) (criticizing appellate def-
erence to trial judge assessment of demeanor evidence at sen-
tencing on the basis of the “emerging consensus in the legal
and social science literature that people generally do a poor
job in evaluating demeanor evidence,” and concluding that a
defendant’s demeanor “seems about as likely to lead the trial
judge astray as to facilitate good decision making”). We know
14402 UNITED STATES v. EDWARDS
that often criminal defendants who commit other types of
crimes will serve some hard time. White-collar offenders like
Edwards should not escape the same punishment simply
because they are better-positioned to make a sympathetic pre-
sentation to the district judge.
This case is just the latest example of our circuit’s pattern
of approving unreasonably lenient sentences for serious
white-collar offenses. See United States v. Whitehead, 532
F.3d 991, 993 (9th Cir. 2008) (per curiam) (affirming sen-
tence of probation and no imprisonment where the Sentencing
Guidelines recommended 41 to 51 months’ incarceration);
Ruff, 535 F.3d at 1004 (affirming sentence of no imprison-
ment where the Sentencing Guidelines recommended 30 to 37
months’ incarceration). That pattern is evolving into a univer-
sal rule in this circuit that no incarceration is always an appro-
priate exercise of discretion in white-collar criminal cases.
See, e.g., Edwards, 595 F.3d at 1016, 1018 (citing Whitehead
and Ruff, and quoting Ruff for the proposition that “it is the
district court’s reasoned decision itself, not the specific rea-
sons that are cited, that triggers our duty to defer” (brackets
omitted)). Such a rule is an abdication of our responsibility to
review sentencing decisions for substantive reasonableness
under an abuse of discretion standard. “Our substantive
review of sentences may be limited after Gall, but being def-
erential does not mean turning a blind eye to an injustice.”
Whitehead, 532 F.3d at 994 (Bybee, J., dissenting); United
States v. Davis, 537 F.3d 611, 615 (6th Cir. 2008) (“Even
after Gall, appellate courts still have some role to play, even
if it is a modest one, in ensuring that there is some consis-
tency between and among district-court sentencing prac-
tices.”).
This practice also renders us an outlier when contrasted
with other circuits’ substantive scrutiny of lenient white-collar
sentences. See, e.g., United States v. Vrdolyak, 593 F.3d 676,
678, 681-84 (7th Cir. 2010) (reversing as an abuse of discre-
tion a sentence of five years’ probation, community service,
UNITED STATES v. EDWARDS 14403
and a $50,000 fine, where the defendant had intended a loss
by fraud of between $1 million and $2.5 million, and the Sen-
tencing Guidelines recommended a sentence of 33 to 41
months’ imprisonment); United States v. Engle, 592 F.3d 495,
497-98, 504-05 (4th Cir. 2010) (vacating as substantively
unreasonable a sentence of four years’ probation including
eighteen months’ confinement in a community corrections
center, where the defendant had evaded $600,000 in taxes and
the Sentencing Guidelines recommended a sentence of 27 to
33 months’ imprisonment); United States v. Livesay, 587 F.3d
1274, 1277-79 (11th Cir. 2009) (vacating as substantively
unreasonable a sentence of five years’ probation where the
defendant orchestrated a massive corporate accounting fraud
and the Sentencing Guidelines recommended 78 to 97
months’ imprisonment); Davis, 537 F.3d at 611 (reversing as
substantively unreasonable a sentence of one day in prison
where the defendant had been convicted of bank fraud caus-
ing $1.6 million in losses and the Sentencing Guidelines rec-
ommended 30 to 37 months’ imprisonment); United States v.
Omole, 523 F.3d 691 (7th Cir. 2008) (reversing a 12 month
custodial sentence for a defendant convicted of wire fraud
when the Sentencing Guidelines range was 87 to 102 months’
imprisonment, and the sentencing judge’s explanation did not
support a sentence so far below the range); United States v.
Hunt, 521 F.3d 636 (6th Cir. 2008) (reversing a probationary
sentence for health care fraud where the Sentencing Guide-
lines recommended 27 to 33 months’ imprisonment); United
States v. Cutler, 520 F.3d 136 (2d Cir. 2008) (reversing as
substantively unreasonable two sentences for fraud, one of
probation and one of a year and a day); United States v. Crisp,
454 F.3d 1285, 1291 (11th Cir. 2006) (reversing as substan-
tively unreasonable a sentence of probation and five hours in
custody where the defendant defrauded a bank of $500,000
and the Sentencing Guidelines recommended 24 to 30
months’ imprisonment); United States v. Givens, 443 F.3d
642 (8th Cir. 2006) (reversing as substantively unreasonable
a sentence of five years’ supervised release including twelve
14404 UNITED STATES v. EDWARDS
months of house arrest, eighty hours of community service,
and $1.2 million in restitution, where the defendant commit-
ted bank fraud and the Sentencing Guidelines recommended
24 to 30 months’ imprisonment).
Statistics illustrate my point. In fiscal year 2009, the
median sentence of imprisonment in the Ninth Circuit for
fraud was 6 months.1 Compare that to the national median of
18 months. Or contrast it with the median sentence of impris-
onment in the Ninth Circuit during the same time period for
immigration offenses (21 months); for drug trafficking
offenses (40 months); and for firearms offenses (48 months).
I’m sure there are good explanations for some of these dispar-
ities, but we should be concerned about the substantial diver-
gence between our treatment of white-collar criminals and
other types of criminals, and between white-collar criminal
sentences in our circuit and in other circuits.
Unless and until an en banc opinion posts an outer limit on
sentencing discretion, we can expect to see more non-
imprisonment sentences for serious offenses committed by
repeat white-collar offenders. As a circuit we are not taking
seriously the recommendations of the Sentencing Guidelines
Commission in white-collar criminal matters. It doesn’t take
a crystal ball to see that those occasional dishonest persons in
the business community may make a slide-rule calculation
that they can steal hundreds of thousands of dollars, maybe
even millions, because if caught they see a good chance that
they can walk away with expressed contrition and probation.
That is the result the Sentencing Guidelines have long worked
to prevent. See U.S.S.G. Ch. 1, Pt. A.4(d) (2009) (“Under pre-
guidelines sentencing practice, courts sentenced to probation
an inappropriately high percentage of offenders guilty of cer-
1
All statistics are drawn from data in Tables 5-7 in the report of the
United States Sentencing Commission, Statistical Information Packet, Fis-
cal Year 2009, Ninth Circuit, available at http://www.ussc.gov/
JUDPACK/2009/9c09.pdf.
UNITED STATES v. EDWARDS 14405
tain economic crimes, such as theft, tax evasion, antitrust
offenses, insider trading, fraud, and embezzlement . . . .”);
Stephanos Bibas, White-Collar Plea Bargaining and Sentenc-
ing After Booker, 47 Wm. & Mary L. Rev. 721, 724-25
(2005) (“By using short but certain terms of imprisonment to
deter and punish, the Commission hoped to reduce greatly the
percentage of [white collar] offenders receiving probation.”).
Edwards fraudulently obtained more than $3 million and
got a break at sentencing. While on probation, he did it again.
And again. We owe it to Edwards’s victims, and to the public,
to make sure that this time he gets the message. And we can
only hope that the public does not get our court’s current mes-
sage of leniency for white-collar criminals but frequent harsh
punishment for the poor and powerless. We need not contrast
Edwards’s case with Victor Hugo’s literary classic of exces-
sive punishment, Les Miserables, in which a convict gets
nineteen years for stealing a loaf of bread, to see that Edwards
presents a case of excessive leniency. Cf. People v. Taylor, 71
Cal. App. 4th 693, 699, 703 (1999) (Johnson, J., dissenting)
(comparing the case of a homeless man sentenced to 25 years
to life under California’s three-strikes law for stealing food
from a church to Les Miserables). I respectfully dissent
because as a circuit we should have reviewed this case en
banc to fashion some standard for when a sentence resulting
in no time in prison is unreasonable for white-collar crime.