United States Court of Appeals
For the First Circuit
No. 05-1991
UNITED STATES OF AMERICA,
Appellee,
v.
GARY A. SAGENDORF,
Defendant, Appellant.
APPEAL FROM
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Timothy G. Watkins, on brief for the appellant.
Paul G. Levenson, Assistant United States Attorney, and
Michael J. Sullivan, United States Attorney, on brief for the
appellee.
April 20, 2006
Per Curiam. Defendant Gary Sagendorf was found
guilty, after a jury trial, of trafficking in counterfeit goods
(i.e., counterfeit "Stolichnaya" vodka) in violation of 18
U.S.C. § 2320. At his original sentencing, which occurred
before the Supreme Court issued its decision in United States
v. Booker, 543 U.S. 220 (2005), the primary issue in dispute
was whether or to what extent Sagendorf's sentence should be
enhanced under USSG § 2B5.3 based on the "infringement amount."
The district court ultimately enhanced the sentence 12 levels
on that ground and sentenced Sagendorf to the bottom of the
resulting guideline range, i.e., 41 months.
Sagendorf appealed from his sentence (but not his
conviction). His brief challenged his sentence on two grounds:
(1) that the district court committed a guidelines
interpretation error in calculating the infringement amount and
(2) that he was entitled to resentencing under Booker, which
had come down after sentencing but before appellate briefing.
After Sagendorf filed his brief but before the government
responded, Sagendorf filed an unopposed motion to withdraw his
brief and remand the case to the district court for
resentencing. In that motion, Sagendorf expressly "agree[d] to
withdraw his appeal and to abandon his claim that the district
court incorrectly calculated the Sentencing Guidelines." In so
doing, Sagendorf expressed his understanding "that if this
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Court remands the case as requested in this motion, the
district court will be permitted to determine whether
Sagendorf's sentence should be reduced in light of the Supreme
Court's decision in Booker and the sentencing goals set out in
18 U.S.C. §3553(a) and will use its computation of the
guideline sentencing range as advisory." Sagendorf also
expressly stated that he "underst[ood] that the district court
is not obligated to alter the sentence on remand, and may re-
impose the sentence that is the subject of this appeal." "In
accordance with" Sagendorf's motion, we remanded the case for
resentencing.
The sentence imposed on remand was identical to that
imposed under the mandatory guidelines. In appealing the
reimposed sentence, Sagendorf challenges it both as
unreasonable under Booker (because the district court
purportedly gave presumptive weight to the guidelines) and as
based on an incorrect calculation of the guideline sentencing
range. Given the course of events described above, we conclude
that Sagendorf waived any argument that the guideline
calculations were incorrect. See United States v. Rodriguez,
311 F.3d 435, 437 (1st Cir. 2002) (finding it "difficult to
conceive of a more conspicuous example of a knowing and
voluntary abandonment of a legal right" than when "[a] party
identifies an issue, and then explicitly withdraws it").
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"Although an appellate court has discretion to excuse waiver
'in the interests of justice,'" Olsen v. United States, 414
F.3d 144, 154 (1st Cir. 2005) (quoting Thomas v. Arn, 474 U.S.
140, 155, & n.15 (1986)), we see no reason to do so here.
We therefore turn to Sagendorf's only remaining
claim: that, by re-imposing the 41-month sentence (rather than
the 13-month sentence that Sagendorf sought), the district
court treated the guideline sentencing range as "presumptive."
If so, that would be inconsistent with this court's recent
decision in United States v. Jiménez-Beltre, 440 F.3d 514, 518
(1st Cir. 2006), in which we declined to view the guidelines,
post-Booker, as "presumptively controlling."1 We disagree,
however, with Sagendorf's characterization of the district
court's methodology. Our own review of the record leads us to
conclude that the district court's consideration of the
guideline sentencing range, in conjunction with the other
relevant statutory factors, was fully consistent with the
standards articulated in Jiménez-Beltre.
In support of his argument, Sagendorf points to one
of the general principles that the court indicated that it
would follow in "consulting the guidelines" post-Booker. In
1
Sagendorf's suggestion that the guideline sentencing range be
given equal weight with the other statutory factors also has been
foreclosed by Jiménez-Beltre, 440 F.3d at 518, as has the
government's argument that this court lacks jurisdiction to review
a within-guidelines sentence at all, id. at 517.
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that general context, the district court did state its
tentative view that "relying on grounds that would not justify
a guidelines departure to impose a nonguideline sentence is
inherently suspect . . .[,] [s]o the burden of persuasion will
be high for someone seeking to persuade me to agree to a shadow
departure where a departure in the sunlight would be
unjustified." Regardless of whether that particular statement,
standing alone, accurately states the law--a matter on which we
take no view--it was tempered, in context, by the
countervailing principle that "consultation of the guidelines
must be qualified by the reality that the guidelines . . .
necessarily remain general and categorical to a significant
degree," as well as by the principle that the court's approach
"cannot be so . . . slavishly compliant as to constitute
effective submission to the guidelines, thereby reviving in
them a de facto mandatory quality." Those principles presaged
our similar statements in Jiménez-Beltre. See, e.g., 440 F.3d
at 518 ("the guidelines are still generalizations that can
point to outcomes that may appear unreasonable to sentencing
judges in particular cases"); id. (declining to view the
guidelines as "'presumptively' controlling or a guidelines
sentence as 'per se reasonable'" because doing so "tends in the
direction [of making them mandatory]").
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Perhaps more important, whatever the merit of the
judge's general reference to "shadow departures," that was not
the basis for the district court's decision in this case (and,
so, it is not the focus of our review). Here, the district
court based its decision not to impose a below-guidelines
sentence primarily on the principle that to do so simply
because the guideline sentencing range for this offense "seems
high" would be "willfully idiosyncratic" or, in other words, "a
judge-by-judge recalibration of the guidelines," which would
constitute a "serious mistake." That principle is consistent
with this court's later warning that, in the post-Booker world,
"sentencing decisions must be done case by case and must be
grounded in case-specific considerations, not in general
disagreement with broad-based policies enunciated by Congress
or the [Sentencing] Commission, as its agent." United States
v. Pho, 433 F.3d 53, 65 (1st Cir. 2006).
In applying that principle to this case, the district
judge asked whether the previously calculated guideline
sentencing range "seem[s] high because of something unique or
specific to this case or because [he] generally regard[s] the
calibration of guidelines ranges to be set higher than [he]
would set them if [he] had the freedom and authority to do so."
He then proceeded to answer that question by consulting the
relevant factors set forth in 18 U.S.C. § 3553(a).
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As to the nature and circumstances of the offense,
id. § 3553(a)(1), the court considered the offense a serious
one, "committed over an extended period of time with planning
and effort[,] . . . not a crime of momentary weakness or a
crime of opportunity, but a deliberate criminal project." As
to how that seriousness was quantified, the court indicated
that "many of the close questions in that calculation were
resolved in the defendant's favor," and that alternative
calculations would have resulted in an even higher sentence.
As to deterrence, id. § 3553(a)(2)(B), the court concluded
"that adequate general deterrence requires a penalty that
reflects the seriousness of the offense, even if specific
deterrence might be satisfied with a lesser penalty." As to
the history and characteristics of the defendant, id. §
3553(a)(1), which, the court acknowledged, "are in
[Sagendorf's] favor,"2 the court concluded that Sagendorf's
lack of a criminal history was already taken into account by
placing him in criminal history category I for purposes of
computing his guideline sentencing range.
2
Sagendorf points to that acknowledgment as illustrating the
excessive weight given to the guidelines relative to the other
statutory factors. However, "the requirement that the sentencing
judge consider a § 3553(a) factor that may cut in a defendant's
favor does not bestow on the defendant an entitlement to receive
any particular 'credit' under that factor." United States v.
Fernandez, 2006 WL 851670, at *12 (2d Cir. Apr. 3, 2006).
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On the basis of the totality of these factors, as
well as consultation of the guidelines, the court concluded
that its "sense that the sentence previously imposed seems high
derives not from factors specific to this case that distinguish
it in its seriousness from other possible cases of purveyors of
counterfeit goods and marks where there was an intended loss of
about $300,000, but rather from a more generalized view of the
guidelines ranges." Accordingly, the court reimposed the same
41-month sentence, which it deemed, "under all the
circumstances[,] reasonable and just."
Because the district court's explanation for that
sentence is "plausible," Jiménez-Beltre, 440 F.3d at 519, and
the resulting sentence is, at the very least, "defensible,"
id., we decline to second-guess the district court's judgment.
Accordingly, we affirm the sentence.
Affirmed.
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