FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-30125
Plaintiff-Appellee,
v. D.C. No.
4:05-cr-00167-SEH
PATRICIA BETTERMAN PAUL,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted September 5, 2008*
Pasadena, California
Filed April 2, 2009
Before: Stephen Reinhardt, Cynthia Holcomb Hall and
Milan D. Smith, Jr., Circuit Judges.
Per Curiam Opinion;
Dissent by Judge Hall
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
3947
3950 UNITED STATES v. PAUL
COUNSEL
Anthony R. Gallagher, Michael Donahoe, Federal Defenders
of Montana, Helena, Montana, for the defendant-appellant.
William w. Mercer, Carl E. Rostad, United States Attorney’s
Office, Great Falls, Montana, for the plaintiff-appellee.
OPINION
PER CURIAM:
In United States v. Paul, 239 Fed. App’x 353 (9th Cir.
2007) (Paul I), we held that a 16-month sentence imposed on
Patricia Betterman Paul for theft from a local government
receiving federal funding, a violation of 18 U.S.C.
§ 666(a)(1)(A), was unreasonable. Id. at 354. We viewed her
case as one that did not fall within the “heartland” of cases to
which the Federal Sentencing Guidelines are most applicable,
as contemplated by Rita v. United States, 551 U.S. 338, 127
S. Ct. 2456, 2465 (2007) (a court may decide “that the Guide-
lines sentence should not apply, perhaps because . . . the case
at hand falls outside the ‘heartland’ to which the Commission
intends individual Guidelines to apply”); cf. United States v.
Mohamed, 459 F.3d 979, 987 (9th Cir. 2006) (“any post-
Booker decision” as to whether a case falls within the heart-
land “is subject to a unitary review for reasonableness”), and
allowed by Gall v. United States, ___ U.S. ___, 128 S. Ct.
586, 595 (2007) (rejecting “an appellate rule that requires
‘extraordinary’ circumstances to justify a sentence outside the
UNITED STATES v. PAUL 3951
Guidelines range”). We vacated the sentence and remanded
for resentencing, pointing to four specific mitigating factors
that demonstrated the 16-month sentence was unreasonably
high. Paul now appeals the subsequent sentence of 15 months
that the district court imposed upon remand. This case pre-
sents the question whether a district court can disregard the
spirit and express instructions of an appellate court’s mandate
to reconsider an unreasonable sentence. We once more vacate
Paul’s sentence, and remand to a different judge for resen-
tencing.
Factual and Procedural Background
Paul was convicted by jury verdict for misappropriation of
federal program funds under 18 U.S.C. § 666(a)(1)(A), and
originally sentenced by the district court on this conviction to
16 months in prison. Paul appealed to this Court, raising mul-
tiple issues and appealing both the conviction and the sen-
tence. Paul prevailed on the latter but not on the former. We
held, in an unpublished memorandum disposition, that her
sentence was substantively unreasonable. We determined that
the district court did not adequately take into consideration
numerous factors that demonstrated that the 16-month sen-
tence was unreasonably high: (a) that Paul was a first-time
offender with no criminal record whatsoever; (b) that she
promptly returned all of the funds to the school district; (c)
that she displayed remorse in two statements given to the
Department of Labor prior to the filing of criminal charges;
and (d) that she believed that the misappropriated funds repre-
sented compensation for work that she had performed for the
district. We held that “[t]he district court did not adequately
consider this strong mitigating evidence in sentencing Paul to
the very top of the guidelines range,” and thus, the sentence
was unreasonable. Paul, 239 Fed. App’x at 354-55. The panel
vacated and remanded for resentencing, and the United States
did not file a petition for rehearing.
On remand, the United States argued to the district court
that the “Circuit’s factual conclusions were, in significant
3952 UNITED STATES v. PAUL
part, flawed and unsupported by the record” and that the
“original sentence was not unreasonable.” The district court
agreed, and while acknowledging this Court’s declaration that
Paul’s original sentence was unreasonable, it determined that
it was “totally satisfied that a sentence at the upper end of
[the] guideline range would not only be reasonable, but that
it would meet all of the current law criteria.” The district court
then sentenced Paul to a 15-month prison term, removing one
month from its original sentence that was declared unreason-
able by this Court. Paul now appeals, claiming that the district
court violated the rule of mandate by failing to credit the miti-
gating evidence that it was specifically directed to take into
consideration.
Jurisdiction and Standard of Review
The district court had subject matter jurisdiction to resen-
tence Appellant under 18 U.S.C. § 3742(g). We review de
novo a district court’s compliance with a mandate. United
States v. Kellington, 217 F.3d 1084, 1092 (9th Cir. 2000).
Discussion
[1] We vacate the district court’s reimposition of a sentence
at the top of the Guidelines range because it flouts our prior
mandate. The language in our prior disposition is clear:
Paul’s 16-month sentence is unreasonable. Several
factors that are absent from the district court’s sen-
tencing analysis demonstrate that this case does not
fall within the “heartland” of cases to which the
guidelines are most applicable . . . . All of the fol-
lowing facts demonstrate that a 16-month sentence
was unreasonably high: Paul was a first-time
offender with absolutely no criminal record whatso-
ever; she promptly returned all of the funds to the
school district; she displayed remorse in two state-
ments given to the Department of Labor prior to the
UNITED STATES v. PAUL 3953
filing of criminal charges; and the misappropriated
funds represented compensation for work that she
had performed for the district. The district court did
not adequately consider this strong mitigating evi-
dence in sentencing Paul to the very top of the guide-
lines range. Accordingly, we vacate Paul’s 16-month
sentence and remand with instructions for the district
court to resentence Paul after giving appropriate con-
sideration to the above-mentioned factors.
Paul, 239 Fed. App’x at 354-55. Nonetheless, on remand, the
district court imposed a nearly identical sentence on Paul,
removing only one month from the original top of the Guide-
lines sentence. In doing so, the district court was in violation
of both the spirit and express instructions of our mandate. See
Cassatt v. Stewart, 406 F.3d 614, 621 (9th Cir. 2005) (holding
that a lower court may deviate from mandate only if it is “not
counter to the spirit of the circuit court’s decision”).
[2] Further, the district court did not impose the new sen-
tence because of any new information submitted after the
imposition of the sentence that was the subject of the prior
appeal, nor because intervening authority made reconsidera-
tion appropriate.1 See Lindy Pen Co. v. Bic Pen Corp., 982 F.
2d 1400, 1404 (9th Cir. 1993) (“The law of the case controls
unless evidence on remand is substantially different from that
presented in previous proceedings.”). The district court pri-
marily relied upon the reasoning and justifications that we
declared insufficient in our prior disposition. Specifically, the
district court focused heavily on Appellant’s abuse of trust, as
it did in the first sentencing, and omitted any meaningful con-
sideration of the other factors which our mandate directed it
to give appropriate consideration.
1
If the United States had believed, as it claimed in its argument to the
district court at resentencing, that Paul I’s factual conclusions were flawed
and unsupported by the record, it should have argued as much in a petition
for rehearing. The district court was not at liberty to re-determine what
this Court had previously determined.
3954 UNITED STATES v. PAUL
Further, contrary to the dissent’s assessment, no interven-
ing case law made reconsideration appropriate in this case. In
our prior disposition, we held that Paul’s sentence was unreason-
able.2 Review for “unreasonableness” amounts to review for
abuse of discretion. See Gall, 128 S. Ct. at 594 (“Our explana-
tion of ‘reasonableness’ review in the Booker opinion made
it pellucidly clear that the familiar abuse-of-discretion stan-
dard of review now applies to appellate review of sentencing
decisions.”); Kimbrough v. United States, ___ U.S. ___, 128
S. Ct. 558, 576 (2007) (“The ultimate question . . . is ‘whether
the sentence was reasonable- i.e., whether the District Judge
abused his discretion.’ ”).
[3] While it is true that more recent cases Gall v. United
States, 128 S. Ct. 586, and United States v. Carty, 520 F. 3d
984 (9th Cir. 2008) (en banc) reiterate the holding of United
States v. Booker, 543 U.S. 220, 246 (2005), that a sentence is
reviewed for reasonableness under an abuse of discretion
standard, this standard was clearly established when we
issued our prior holding — notably so in Rita v. United States,
a case on which we explicitly relied, see 127 S. Ct. at 2465
(“ ‘[R]easonableness’ review merely asks whether the trial
court abused its discretion.”). While each of these subsequent
cases has added nuance to our review of district court sentenc-
2
No one contends that the original sentence was procedurally invalid.
Cf. Gall, 128 S. Ct. at 596-97; United States v. Carty, 520 F. 3d 984,
992-93 (9th Cir. 2008) (en banc). Thus, the only question is whether cases
issued after Rita v. United States, 551 U.S. 338, 127 S. Ct. 2456, have
changed the law with respect to reasonableness review so as to justify the
district court’s departure from this court’s mandate. The dissent argues
that “reasonableness review in our circuit . . . . focuse[s] on whether the
district court adequately explained the basis of its sentence . . . and
whether the court considered the defendant’s arguments.” Dissenting Op.
at 3969-70 n.8. This is simply incorrect. As this Court recently held in an
en banc decision, “[i]t would be procedural error for a district court . . .
to fail adequately to explain the sentence selected.” Carty, 520 F.3d at 993
(emphasis added). It is the procedural provisions of 18 U.S.C. § 3553(c)
that require engagement with the defendant’s arguments, see Rita 127
S. Ct. at 2468-2469, not the substantive provisions of 18 U.S.C. § 3553(a).
UNITED STATES v. PAUL 3955
ing, the basic tenet of our prior holding in Paul I — that this
is not a case that falls within the “heartland” of cases to which
the Guidelines are applicable — remains good law. District
courts are clearly vested with considerable discretion at sen-
tencing. See United States v. Whitehead, 532 F.3d 991, 993
(9th Cir. 2008). However, this discretion does not authorize
the district court to trespass beyond boundaries established by
this Court in a previous appeal.3
Here, following the mandate laid out in Paul I would not
have required the district court to render an illegal sentence.
Cf. United States v. Bad Marriage II, 439 F.3d 534, 538 (not-
ing that Booker was intervening case law that allowed for
reconsideration of a mandate, as imposing a sentence pursuant
to a mandatory sentencing regime would be illegal). Nothing
in Gall, Kimbrough, or Carty so undermines the legal analysis
in Paul I so as to allow the district court to deviate from our
mandate. There is no merit to the suggestion that there have
been intervening changes in the law of sentencing that permit
us to abandon the law of the case established in our prior dis-
position.
[4] On remand, the district court did precisely what the
Paul I disposition rejected; specifically, it relied excessively
3
Further, Carty explicitly declined to adopt an appellate presumption of
reasonableness for within Guidelines sentences, such as Paul’s. Carty, 520
F. 3d at 994. Subsequent cases have held that “ ‘[T]he Guidelines factor
[may not] be given more or less weight than any other.’ So while the
Guidelines are the ‘starting point and initial benchmark’ and must ‘be kept
in mind throughout the [sentencing] process,’ the Guidelines range consti-
tutes only a touch-stone in the district court’s sentencing considerations.”
United States v. Autery, 555 F.3d 864, 872 (9th Cir. 2009)(citations omit-
ted). The dissent’s extended discussion of the Guidelines provisions mis-
understands their function post Booker. Contrary to the dissent’s view they
simply constitute one factor, albeit the factor from which a sentencing
court’s analysis must start in determining a sentence that must be reason-
able under the provisions of 18 U.S.C. § 3553(a). Compare Mohamed, 459
F.3d at 987, and United States v. Tankersley, 537 F.3d 1100, 1113-14 &
n.11 (9th Cir. 2008), with Dissenting Op. at 3960-62.
3956 UNITED STATES v. PAUL
upon defendant’s abuse of trust while not giving sufficient
consideration to other factors. Absent either new information
or intervening case law, the district court was required to fol-
low the principles announced in our prior disposition. As nei-
ther of these exceptions apply in this case, our mandate must
be followed. Accordingly, we vacate and remand for resen-
tencing, with instructions that in imposing the new sentence
the district court take into consideration both the mitigating
factors discussed in our previous disposition and our conclu-
sion “that this case does not fall within the ‘heartland’ of
cases to which the guidelines are most applicable.” Paul, 239
Fed. App’x at 354.
We also grant the request to remand this matter to a differ-
ent district judge. Remand to a new judge is reserved for “un-
usual circumstances.” United States v. Arnett, 628 F.2d 1162,
1165 (9th Cir. 1987). To determine whether “unusual circum-
stances” exist, the court considers: (1) whether the original
judge would reasonably be expected upon remand to have
substantial difficulty in putting out of his or her mind previ-
ously expressed views or findings determined to be erroneous
or based on evidence that must be rejected, (2) whether reas-
signment is advisable to preserve the appearance of justice,
and (3) whether reassignment would entail waste and duplica-
tion out of proportion to any gain in preserving the appear-
ance of fairness. Smith v. Mulvaney, 827 F.2d 558, 562-63
(9th Cir. 1987).
[5] In this situation, we believe that the appearance of jus-
tice will be best preserved by remanding to a different judge.
While the district judge on remand explained some of the rea-
soning behind his resentencing of Paul, he clearly did not put
out of his mind his previously expressed view that the Appel-
lant’s abuse of trust trumped all other mitigating factors com-
bined, as shown by the fact that he again sentenced Paul to a
prison sentence at the top of the Guidelines range. We have
little faith that Judge Haddon would be able to do so on
remand this time either. We conclude that reassignment will
UNITED STATES v. PAUL 3957
best preserve the appearance of justice in this case. We do not
believe that resentencing by another judge would entail waste
and duplication out of proportion to the gain achieved in pre-
serving an appearance of fairness, as a new sentencing hear-
ing will be required whether the case is reassigned or remains
with Judge Haddon. The sentence is vacated, and the case is
remanded to the district court for resentencing by a new
judge.
SENTENCE VACATED; REMANDED FOR RESEN-
TENCING BY A NEW JUDGE.
HALL, Circuit Judge, dissenting:
Under the guise of the rule of mandate, the majority seeks
to insulate this court’s previous unpublished disposition from
intervening Supreme Court and Ninth Circuit precedent. In so
doing, the majority demonstrates a complete disregard for the
appropriate roles of the sentencing judge and the appellate
court. As we stated in United States v. Whitehead, “[o]ne
theme runs though the Supreme Court’s recent sentencing
decisions: empowered district courts, not appellate courts . . .
and breathed life into the authority of district court judges to
engage in individualized sentencing.” 532 F.3d 991, 993 (cit-
ing United States v. Vonner, 516 F.3d 382, 392 (6th 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.” Id. at 993 (citing Gall
v. United States, 128 S.Ct. 586, 597 (2007)). Here, the major-
ity relies on a scant one-paragraph section of an unpublished
disposition, unsupported by any analysis, and decided without
the benefit of the subsequent decisions in Gall, Kimbrough,
and Carty, to do just that. See Gall, 128 S. Ct. 586; Kim-
brough v. United States, 128 S. Ct. 558 (2007); United States
v. Carty, 520 F.3d 984 (2008). I respectfully dissent.
3958 UNITED STATES v. PAUL
Unlike the majority, I neither conclude that the district
court violated our mandate nor believe that the mandate sur-
vived Carty. The district court first sentenced Paul in Septem-
ber 2006, after the Booker decision, but before the Supreme
Court clarified sentencing law through its Rita, Gall, and
Kimbrough decisions. Our Ninth Circuit sentencing frame-
work was rather fluid at that point, with most sentencing cases
stayed pending our decision in Carty. It was in this turbulent
environment that we decided Paul I, just one month after the
Court’s decision in Rita was announced. The majority is cor-
rect that our disposition relied upon Rita and cited several fac-
tors that suggested the case did not fall within the “heartland”
of cases. See Rita v. United States, 127 S. Ct. 2456, 2465
(2007). The majority and I differ, however, on whether the
district court complied with our mandate to “resentence Paul
after giving appropriate consideration to the above-mentioned
factors.”
The majority correctly asserts that compliance with the
terms of a mandate is reviewed de novo. United States v. Kel-
lington, 217 (F.3d 1084, 1092 (9th Cir. 2000). District courts
are “free [to decide] as to anything not foreclosed by the man-
date, and, under certain circumstances, an order issued after
remand may deviate from the mandate if it is not counter to
the spirit of the circuit court’s decision.” Id. at 1092-1093
(internal citations omitted). Kellington reiterated the Supreme
Court’s holding in In re Sanford Fork & Tool Co., that “in
addition to the mandate itself, the opinion by this court at the
time of rendering its decree may be consulted to ascertain
what was intended by its mandate,” and “in determining what
was heard and decided by the appellate court, bear[ing] in
mind the settled practice of courts with respect to the applica-
ble substantive law.” Id. at 1093 (citing In re Sanford Fork &
Tool Co., 160 U.S. 247, 256 (1895)). Thus, the district court
is free to evaluate our entire opinion, the procedural posture
of the case, and substantive sentencing law in construing our
mandate. Id. at 1093.
UNITED STATES v. PAUL 3959
In Kellington, this court found that the district court com-
plied with at least the spirit of the mandate to “reverse entry
of acquittal and remand for entry of judgment and for sentenc-
ing” by reversing entry of acquittal and granting defendant’s
motion for a new trial. Id. at 1095. The previous unpublished
memorandum disposition, though including strong language
supporting the jury’s determination of guilt, did not specifi-
cally address the defendant’s motion for retrial. As such, the
procedural posture differed and consideration of the motion
was not foreclosed by the mandate. In so holding, the panel
dismissed the “dissent’s view, that a district court must
always woodenly follow the strict terms of mandate” as “sq-
uar[ing] neither with the Supreme (Court . . . nor our prece-
dent,” which has upheld remands “despite the plain terms of
the mandate.” Id. at 1095 (emphasis in original).
In Lindy Pen Co. v. Bic Pen Corp., we upheld the district
court’s ultimate denial of an accounting and damages award
despite a prior mandate “instruct[ing] the district court to
order an accounting and to award damages and other relief as
appropriate.” 982 F.2d 1400, 1404 (9th Cir. 1993). The court
stated that the “district court must be given a meaningful
opportunity to follow the directive of the circuit court in
resolving the issues.” Id. Because the underlying determina-
tion was equitable in nature, the district court was in a better
position to undertake “additional discovery and argument
prior to ordering an accounting,” and so the ultimate determi-
nation that “an accounting was not appropriate under the cir-
cumstances of the case” was in compliance with the mandate
and reviewed only under an abuse of discretion standard. Id.
at 1405.
Similarly, the district court here was in a better position,
both procedurally and under substantive sentencing law to
make the ultimate determination of whether mitigation “was
. . . appropriate under the circumstances of the case.” Id.
To better understand the district court’s position in apply-
ing Paul I, it is useful to walk through the steps required
3960 UNITED STATES v. PAUL
under current sentencing law had the district court chosen to
depart from the Guidelines in the first instance, based on the
factors we identified. “[D]istrict courts must begin their anal-
ysis with the Guidelines and remain cognizant of them
throughout the sentencing process.” Gall, 128 S. Ct. at 597, n.
6. This is because, “[w]hile rendering the Sentencing Guide-
lines advisory, [the Supreme Court has] nevertheless pre-
served a key role for the Sentencing Commission.”
Kimbrough, 128 S. Ct. at 574. As Carty reiterates, “Rita sug-
gests the parties could argue that the Guidelines sentence
should not apply ‘perhaps because (as the Guidelines them-
selves foresee) the case at hand falls outside the ‘heartland’ to
which the Commission intend individual Guidelines to apply,
USSG § 5K2.0 . . . .” United States v. Carty, 520 F.3d 984,
991 (9th Cir. 2008) (en banc) (citing Rita, 127 S. Ct. at 2465)
(further elaborating that this change is to allow departure by
sentencing judges and to facilitate “thorough adversarial test-
ing” of sentencing decisions). The consideration of whether
the factors argued suffice to take a case out of the “heartland”
is a factual matter for the district court to decide. Koon v.
United States, 518 U.S. 81, 99-100 (1996); see also Gall, 128
S. Ct. at 597.
Turning first to the Guidelines, and specifically USSG
§ 5K2.0, which governs departures from the Guidelines
“heartland,” the district court would: (1) make a factual deter-
mination of whether each factor merited a departure; and (2)
was a permissible basis for departure. Section 5K2.0(d) lists
six circumstances which the Sentencing Commission has
determined to be prohibited bases for departure. Of those six,
three are pertinent to this case:
(2) The defendant’s acceptance of responsibility
for the offense, which may be taken into account
only under 3E1.1 (Acceptance of Responsibility).
(5) The defendant’s fulfillment of restitution obli-
gations only to the extent required by law . . . .
UNITED STATES v. PAUL 3961
(6) Any other circumstance specifically prohibited
as a ground for departure in the guidelines.
USSG § 5K2.0(d).
The first circumstance listed in Paul I is that “Paul was a
first-time offender with absolutely no criminal history record
whatsoever.” United States v. Paul, 239 Fed. Appx. 353 (9th
Cir. 2007) (Paul I). Turning to USSG § 4A1.3(b)(2)(A)
(Departures Based on Inadequacy of Criminal History Cate-
gory), the Guidelines prohibit “departure below the lower
limit of the applicable guideline range for Criminal History
Category I.” Because this is a prohibited ground of departure,
it also implicates the prohibition of § 5K2.0(d)(6). If the dis-
trict court found Paul’s lack of criminal history sufficiently
compelling to justify departure, then, it would have to do so
on the basis of the advisory nature of the Guidelines post-
Booker.
The second circumstance is that Paul “promptly returned all
of the funds to the school district.” Paul I, 239 Fed. Appx. at
354. Here, the district court would first need to make the fac-
tual determination whether or not Paul’s return of the funds,
22 months after they were first taken, but shortly after her
indictment, constituted a “prompt” return. If the sentencing
judge did make this determination, a departure based on this
circumstance is only allowed because the Guidelines are advi-
sory post-Booker. Payment of restitution only as otherwise
required by law is an impermissible basis for departure from
the “heartland.” USSG § 5K2.0(d)(5).
The third circumstance is that Paul “displayed remorse in
two statements given to the Department of Labor prior to the
filing of criminal charges.” Paul I, 239 Fed. Appx. at 354-
355. A display of remorse is akin to acceptance of responsi-
bility for the offense. First, the district court would need to
make the factual determination whether or not the two state-
ments qualified as displays of remorse or acceptance of
3962 UNITED STATES v. PAUL
responsibility. If so determined, under the terms of
§ 5K2.0(d)(2), the district court would be prevented from
departing from the “heartland” on this basis and would
instead be limited to a decrease in the initial Guidelines calcu-
lation according to the terms of USSG § 3E1.1. According to
the Presentence Report, Paul was ineligible for this reduction
in offense level because it is “not intended to apply to a defen-
dant who puts the government to its burden of proof at trial
by denying the essential factual elements of guilt . . . ,” and
Paul went to trial twice before appealing her conviction.
§ 3E1.1, n. 2.1 Again, the court would need to rely on the
advisory nature of the Guidelines to depart from the calcu-
lated range.
The final circumstance noted in Paul I is that “the misap-
propriated funds represented compensation for work that she
had performed for the district.” Paul I, 239 Fed. Appx. at 355.
The district court would be unable to depart on this basis. An
essential element of Paul’s conviction is that the funds did not
represent “bona fide salary, wages, fees, or other compensa-
tion paid.” 18 U.S.C. § 666(c). The jury made this factual
determination and it is not within the realm of the sentencing
judge’s discretion to disturb it through its sentencing decision.2
See United States v. Hunt, 521 F.3d 636, 649 (6th Cir. 2008).
If the district court instead evaluated the factor as applying
only to Paul’s subjective belief that she was entitled to com-
pensation, and made the appropriate factual and credibility
determinations to support this factor, it could depart from the
now-advisory Guidelines if reasonably tied to a 3553(a) fac-
tor. See Gall, 128 S. Ct. at 597.3
1
It is useful to note that the initial Guidelines calculation in this case has
never been objected to or otherwise challenged by Paul.
2
The Montana Department of Labor also concluded that Paul was not
entitled to overtime compensation, prior to her federal indictment.
3
While the majority claims that this discussion misunderstands the func-
tion of the Guidelines post-Booker, see Opinion at n. 3, I am not suggest-
ing that an appellate review of the sentence would be reviewed for
UNITED STATES v. PAUL 3963
Because the factors prescribed in Paul I are prohibited
bases of departure under the Guideline applicable to departure
itself, § 5K2.0, Paul’s case is not one of those “particular
case[s] outside the ‘heartland’ to which the Commission
intends individual Guidelines to apply.” Kimbrough, 128
S. Ct. at 575 (citing Rita, 127 S. Ct. at 2465). Instead, unlike
circumstances unanticipated by the “heartland” of cases, the
Guidelines squarely contemplate first-time offenders, pay-
ment of restitution, and displays of remorse. The Guidelines
simply reflect the Sentencing Commission’s views that they
are impermissible bases for departure. In this situation, where
the sentencing judge “varies from the Guidelines based solely
on the judge’s view that the Guidelines range fails properly to
reflect § 3553(a) considerations,” Kimbrough makes clear that
a sentencing court must provide a reasoned appraisal tying the
variance to the § 3553(a) factors, which is subject to “closer
review” than those variances based on circumstances not con-
templated by the Guidelines. 128 S. Ct. at 574-575.
The Supreme Court has made abundantly clear that:
The sentencing judge is in a superior position to find
facts and judge their import under § 3553(a) in the
individual case. The judge sees and hears the evi-
dence, makes credibility determinations, has full
knowledge of the facts and gains insights not con-
veyed by the record. The sentencing judge has
access to, and greater familiarity with, the individual
anything other than reasonableness. Rather, Paul I stated that “this case
does not fall within the “heartland” of cases to which the guidelines are
most applicable, as described by the Supreme Court in Rita v. United
States, 127 S. Ct. 2456, 2465 (2007).” Paul I, 239 Fed. Appx. at 354. In
turn, Rita referenced § 5K2.0 as the Guideline applicable to determining
whether a case falls outside the “heartland” of cases the Guidelines fore-
saw. Rita, 127 S. Ct. at 2465. It would, thus, be natural for the district
court, upon receiving our disposition in Paul I, to turn to the Guideline
applicable to determining if a case falls outside the “heartland.”
3964 UNITED STATES v. PAUL
case and the individual defendant before him than
the Commission or the appeals court. Moreover, dis-
trict courts have an institutional advantage over
appellate courts in making these sorts of determina-
tions, especially as they see so many more Guide-
lines sentences than appellate courts do.
Gall, 128 S. Ct. at 597-598 (internal quotations and citations
omitted). When the district court received our decision in
Paul I, it was appropriate for the court to “bear in mind the
settled practice of courts with respect to the applicable sub-
stantive [sentencing] law,” including the district court’s role
as fact-finder, when attempting “to ascertain what was
intended by [our] mandate.” Kellington, 217 F.3d at 1093 (cit-
ing Sanford, 160 U.S. at 256).
While our prior decision listed four factors which were not
given “appropriate consideration,” it did not analyze any of
the factors. The disposition did not find that the district court
had clearly erred in making any factual determinations, partic-
ularly those factual determinations required to determine
whether a factor is present or sufficiently strong to justify
departure from the Guidelines range. See Koon, 518 U.S. at
99-100; Gall, 128 S. Ct. at 597-598. Indeed, as to Paul’s dis-
plays of remorse in her statements to the Montana Department
of Labor, the district court had not previously considered this
factor at all. Paul did not argue that this factor was mitigating
in her original sentencing,4 and argued in her original briefing
to this court in Paul I that “in terms of admitting the compo-
nents of a crime there is no confession.”5 Most importantly,
4
Deciding this factor outright would have been inappropriate, as the par-
ties did not argue the issue in Paul I. See United States v. Cruz, 554 F.3d
840, 848 (9th Cir. 2009) (citing “our longstanding general rule that we will
not decide questions not raised by the parties before us”).
5
To the extent the majority expected the district court to “woodenly fol-
low,” Kellington, 217 F.3d at 1095, as settled facts Paul I’s four factors,
engaging in such factual determinations would be beyond our role as an
appellate court. If such were the situation, I respectfully submit that we
should find that our prior disposition was clearly erroneous and refuse to
apply the law of the case doctrine on this review. See United States v.
Lummi Indian Tribe, 235 F.3d 443, 452-453 (9th Cir. 2000).
UNITED STATES v. PAUL 3965
our disposition did not explain how any of the factors tied to
a § 3553(a) factor and justified departure from the Guideline
range. Our disposition certainly did not justify the departure
sufficiently to survive the “closer review” standard dictated
by the Supreme Court when the departure is based on a mere
disagreement with the Sentencing Commission’s weight
assigned to a factor in the Guidelines. See Kimbrough, 128
S. Ct. at 574-575. And, as the Supreme Court faulted the
appellate court in Gall for doing, our disposition “made no
attempt to quantify the strength of any of the mitigating cir-
cumstances,” 128 S.Ct. at 596, n.5, beyond a statement that
“[t]he district court did not adequately consider this strong
mitigating evidence in sentencing Paul to the very top of the
guidelines range.” (emphasis added).
Faced with the first decision holding a within-Guideline
sentence unreasonable, a dearth of guidance as to why the fac-
tors justified departure, or how much weight to afford the fac-
tors, the district court complied with our mandate by “giving
appropriate consideration” to the factors upon resentencing.
The district court deferred resentencing Paul until after the
decision in Carty was announced so that it would have a “sub-
stantive checklist of procedures . . . to follow.” The district
court expressed its understanding that the “matter is before
the court for resentencing,” and noted its intention to “address
each and all” of the “separately-stated reasons specifically set
forth for the conclusion that the circuit drew.” As in Lindy
Pen, the district court satisfied the terms of the mandate by
allowing Paul “the opportunity” to show the factors should be
mitigating. 982 F.2d at 1407. This opportunity allowed the
“adversarial process,” contemplated by Rita, to function prop-
erly. See Rita, 127 S.Ct. at 2465.
“[T]he sentencing judge ‘set forth [more] than enough to
satisfy us that he has considered the parties’ arguments and
has a reasoned basis for exercising his own legal decision-
making authority.’ ” Carty, 520 F.3d at 996 (citing Rita, 127
S.Ct. at 2468). Even when a “party raises specific, non-
3966 UNITED STATES v. PAUL
frivolous argument [including those set forth in our Paul I
mandate] tethered to a relevant § 3553(a) factor . . . the dis-
trict court does not abuse its discretion when it listens to the
defendant’s arguments and then ‘simply finds those circum-
stances insufficient (to warrant a sentence lower than the
Guidelines range.’ ” United States v. Stoterau, 524 F.3d 988,
999 (9th Cir. 2008) (citing Carty, 520 F.3d at 995). Rather
than simply listening to Paul’s arguments, however, the dis-
trict court engaged in a very thorough sentencing hearing,
including discussions of the factors mentioned in Paul I and
each of the § 3553(a) factors.6
6
For example, though the district court sentencing transcript spanned 36
pages, below is a sample of how the district court addressed the factors
presented in Paul I.
First-time offender: “I have taken note of the circuit’s observation that
you had no criminal history, and I have fully evaluated that as part of this
guideline calculation. But that does not end the analysis, because I am
obliged to consider these matters under your characteristics under
3553(a).” The district court then went on to state that this factor was out-
weighed by the seriousness of the conduct, “because this is more than sim-
ply taking money from a vulnerable victim,” noting the dire financial
straights of the Native American school district and that public money was
stolen.
Prompt return of the funds: The district court discussed the time line of
Paul’s return of the funds, noting that Paul only returned the amount she
was otherwise responsible to pay under the law nearly two years after the
funds were taken, and only after her claim of compensation had been
denied, her counsel recommended she return the funds, and trial was
imminent.
Funds represented compensation for work performed: The district court
noted that Paul was hired on a salary basis with no right to overtime pay,
that both the State of Montana and the jury had determined she was not
entitled to compensation, and that Paul felt sorry for herself, but her belief
she could make the situation “entirely right by simply paying the money
back” was not the way the law worked.
Displays of remorse: The district court, after announcing its sentence,
stated on the record “these matters you have raised have been fully consid-
ered by this court . . . and I find them to be without significant weight in
this assessment process as to whether your client has [taken] full responsi-
bility for what she did.”
UNITED STATES v. PAUL 3967
The district court issued a sentence within the Guideline
range, and lower than the sentence previously vacated. The
15-month sentence represented a sentence only 12.5% of the
10-year statutory maximum, and was no longer at the “very
top” of the 10-16 month Guideline range. The majority is cor-
rect in stating that the district court focused heavily on Paul’s
abuse of trust. The district court was troubled by Paul’s delib-
erate actions in stealing funds from a near-bankrupt Native
American school district. The court’s reasoning was tied not
only to relevant § 3553(a) factors, however, but also to the
Sentencing Commission’s recommendation, based on “empir-
ical data and national experience, guided by a professional
staff with appropriate expertise,” Kimbrough, 128 S. Ct. at
574 (citation omitted), that “if the defendant abused a position
of public or private trust,” the offense level should be
increased. USSG § 3B1.3.7 The district court complied with
our mandate and imposed a reasonable sentence.
Perhaps most prescient to this case is the well-founded
exception to the rule of mandate, and law of the case, which
allows (“intervening controlling authority [to] displac[e] prior
law of the case.” United States v. Bad Marriage, 439 F.3d
534, 538 (9th Cir. 2006) (upholding longer sentence imposed
post-Booker, after issuing prior mandate that upward depar-
ture was not justified by (the facts); accord United States v.
Williams, 517 F.3d 801, 807 ((5th Cir. 2008) (upholding
resentencing decision because Booker and Gall were interven-
ing controlling authority displacing the prior mandate and the
district court satisfied abuse of discretion standard by fully
applying the § 3553 factors). Since Paul I, the Supreme Court
has altered sentencing law in Gall and Kimbrough, and Carty
established the proper procedure for reviewing such chal-
lenges in our circuit. Like Booker, these cases altered both the
7
Paul I provided no guidance to the district court on this factor. Our
prior disposition neither instructed the district court that this factor was
improper nor explained why Paul’s abuse of trust did not justify a within-
Guidelines sentence.
3968 UNITED STATES v. PAUL
district and appellate courts’ approach to sentencing deci-
sions.
Although the majority claims that sentencing law has not
changed because Booker established the abuse of discretion
standard, this position in untenable. In United States v. Cav-
era, 550 F.3d 180 (2d Cir. 2008) (en banc) the Second Circuit
recently reversed a decision holding a sentence unreasonable,
finding that Gall and Kimbrough were intervening controlling
authority. Writing for the court, Judge Calabresi noted that
until the Supreme Court provided further guidance in Gall
and Kimbrough, appellate courts were unaware to what extent
they should defer to district courts, and now the “Supreme
Court has suggested that the ‘unreasonableness’ standard is a
particularly deferential form of abuse-of-discretion review.”
Id. at 188 (also noting that “abuse of discretion is not a uni-
form standard of review” and summarizing appellate reason-
ableness review following Gall and Kimbrough) (citing Gall,
128 S. Ct. at 591).
A brief review of the decisions in Gall and Kimbrough
illustrates how the Supreme Court has elaborated on reason-
ableness review following our decision in Paul I. Gall made
clear that the Guidelines were relevant throughout the entire
process, and any departure from them must be sufficiently
justified in light of § 3553(a) factors. 128 S. Ct. at 596-597.
The Court elaborated that the abuse of discretion review
should not resemble a de novo review, and that “the fact that
the appellate court might reasonably have concluded that a
different sentence was appropriate is insufficient to justify
reversal of the district court.” Id. at 597; see also id. at 602.
Gall further clarified the role of the sentencing judge and
appellate court, noting that it is the sentencing court’s position
to find facts and make credibility determinations. Id. at 597-
598.
In Kimbrough, the Court again emphasized the continuing
importance of the Guidelines and the function of the Sentenc-
UNITED STATES v. PAUL 3969
ing Commission. Kimbrough reiterated Gall’s holding that
any departure from the Guidelines must be justified by
§ 3553(a) factors, and took one step further in announcing
that a departure is accorded most deference when the case is
truly outside the “heartland” of the Guidelines, rather than
based on a disagreement with the Guidelines, and hence, the
Sentencing Commission’s expertise. 128 S. Ct. at 574-575.
This court’s en banc decision in Carty summarized sen-
tencing law as outlined by the Supreme Court in Rita, Gall,
and Kimbrough. See United States v. Carty, 520 F.3d 984 (9th
Cir. 2008) (en banc). In outlining the process by which our
appellate court reviews sentencing decisions, Carty relied
upon, and heavily cited, all three cases. Carty also held that
any prior cases were “overruled to the extent they are incon-
sistent with Rita, Gall, Kimbrough, or [Carty].” Id. at 990, n.5
(emphasis added). We cannot say that our disposition in Paul
I was consistent with the Supreme Court’s directives in Gall
and Kimbrough. The majority should acknowledge that Paul
I did not afford the proper deference to the district court’s
determination that a within-Guidelines sentence, fully sup-
ported by an analysis of the § 3553(a) factors, was appropri-
ate, as required by Gall and Kimbrough. The majority should
also acknowledge that our own disposition in Paul I did not
comply with the requirements of Gall and Kimbrough: we did
not properly acknowledge the district court’s role in fact-
finding and judging credibility, explain the weight that should
be afforded to each of the mitigating factors, or justify our
disagreement with the Guidelines in reference to applicable
§ 3553(a) factors. We cannot say that our mandate in Paul I,
made without the benefit of the guidance provided by subse-
quent Supreme Court and Ninth Circuit en banc decisions,
survived Carty, Gall, and Kimbrough.8
8
The inconsistency of our disposition in Paul I with the directives of
Carty, Gall, and Kimbrough is also illustrated by examining reasonable-
ness review in our circuit following those decisions. Recent cases review-
ing for reasonableness have heavily cited both Gall and Kimbrough, and
3970 UNITED STATES v. PAUL
Finally, and in any event, I believe it is inappropriate to
remand to a new judge for resentencing. The district court
here followed the procedural directives of Carty. While ulti-
mately concluding that some of the factors in Paul I were not
mitigating, the district court carefully set forth its analysis of
the issues. This is unlike United States v. Ferguson, 624 F.2d
81 (9th Cir. 1980), where remanding to a different judge was
appropriate because the original judge refused to let the par-
ties even present their mitigating evidence. The careful expla-
nation put forth by the district court also counters any
appearance of injustice in the sentencing.
Also unlike in Ferguson, where there was little waste and
duplication in allowing a different judge to form a first
impression evaluating the mitigating evidence as to why
defendant’s suspended sentence should not be completely
reinstated, resentencing here would entail a significant waste
of judicial resources already invested in this case. The district
court judge has seen and heard the evidence presented at trial,
made credibility determinations, has full knowledge of the
facts, and has gained insight not conveyed by the record. Gall,
128 S.Ct. at 597. A new district court would receive a cold
record, coupled with two mandates by this panel to mitigate
Paul’s sentence based on very specific but somewhat ambigu-
ous factors. Such a result would be contrary to the “empower-
[ment] of district courts, not appellate courts . . . to engage in
individualized sentencing.” Whitehead, 532 F.3d at 993. I dis-
sent.
focused on whether the district court adequately explained the basis of its
sentence, the basis was proper and tied to relevant § 3553(a) factors, and
whether the court considered the defendant’s arguments. See, e.g., United
States v. Whitehead, 532 F.3d 991 (9th Cir. 2008); United States v. Warr,
530 F.3d 1152 (9th Cir. 2008); United States v. Shi, 525 F.3d 709 (9th Cir.
2008); United States v. Cherer, 513 F.3d 1150 (9th Cir. 2008); United
States v. Autery, 555 F.3d 864 (9th Cir. 2009).