[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-12304 JULY 7, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 04-00403-CR-BE-S
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
MICHAEL A. CRISP,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(July 7, 2006)
Before BIRCH, CARNES and BRUNETTI *, Circuit Judges.
CARNES, Circuit Judge:
*
Honorable Melvin Brunetti, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
As the comptroller of a corporation, Michael Crisp participated in a
fraudulent scheme that bilked a bank out of nearly half a million dollars. After
being caught, he pleaded guilty to making false statements to a financial institution
and helped the government prosecute a co-conspirator. Grateful, the government
moved for a substantial assistance departure. The district court exceeded the limits
of the government’s gratitude by departing to an offense level below the one that it
had recommended.
The court then went even further, using its post-Booker authority to dip
below the post-departure guidelines range, and sentenced Crisp to probation. The
government objected, pointing out that given the offense of conviction the law
requires incarceration. Persuaded of the legal correctness of the government’s
position, although not caught up in the spirit of it, the court modified the sentence
to one of incarceration, or something meant to resemble it. The court sentenced
Crisp to five hours in custody of the Marshals. Crisp had reason to be grateful.
The government did not. This is its appeal. We reverse.
I.
Crisp was comptroller for Southern Pride Contractors, Inc., a construction
company based in Birmingham, Alabama. He was supervised by John G. Grant,
Jr., the company’s president and principal owner. In late 2002 and early 2003, at
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Grant’s direction, Crisp prepared false financial statements overstating the
company’s accounts receivable, and he provided them to Covenant Bank on six
separate occasions. The bank, which had extended a $500,000 line of credit to
Southern Pride, relied on those reports in continuing to extend credit to the
company. Southern Pride did not repay the credit line, and the loss to the bank was
over $480,000.
For his role in the scheme to defraud the bank, Crisp was charged with one
count of violating 18 U.S.C. § 1014. He pleaded guilty to it. The United States
Probation Office prepared a presentence investigation report that assigned Crisp a
criminal history category of I and calculated his total offense level to be 17,
resulting in a sentencing range of 24–30 months. See United States Sentencing
Guidelines Ch. 5 Pt. A (Nov. 2002). Crisp did not object to any part of the PSI.
The government filed a motion for a downward departure pursuant to
U.S.S.G. § 5K1.1 based on Crisp’s substantial assistance in its prosecution of
Grant. The government’s motion indicated that Crisp’s assistance had included:
confessing to his crime upon being confronted by the Federal Bureau of
Investigation, agreeing to several interviews by FBI agents and government
prosecutors, participating in a monitored telephone conversation with Grant
“which materially aided the government’s case against Grant,” and testifying for
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the prosecution at Grant’s trial about their scheme to defraud the bank. The
government represented that “Crisp’s testimony was crucial in the trial of Grant.”
It recommended “that the Court depart from the recommended range by 50%,
which results in a guideline range of 12 to 15 months imprisonment,” which it
referred to as level 13, and “that the defendant be sentenced at the low end” of that
range—to 12 months.
Crisp was sentenced on March 23, 2005. Hearing no objection to it, the
court adopted the PSI’s calculation of the applicable pre-departure guidelines range
of 24–30 months. Crisp and his wife made statements to the court, and his counsel
and the government discussed briefly the assistance Crisp had provided in the
prosecution of Grant.
Before imposing its sentence, the court stated:
Let me say, Mr. Crisp, that I find that there is no excuse
for your participation in this matter with Mr. Grant. It’s
obvious that you knew it was wrong from the beginning.
And without your participation in this scheme, for lack of
a better word, it could not have occurred.
So I certainly do not want to minimize the wrongful
conduct in which you engaged.
However, I am, as is the government, appreciative of
your cooperation with the government in bringing Mr.
Grant to trial and to a conviction of him for his role in
this scheme. But it certainly was for his benefit, not for
yours.
I have taken all of those things into consideration.
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I have also taken into consideration the amount of
restitution that is due to this bank . . . . [T]he smaller
banks really feel a loss such as this more so than larger
banks.
And I am most concerned that justice really requires
restitution in this case. And [18 U.S.C.] Section
3553(a)(7) directs the court to consider the need to
provide restitution to any victims in coming up with the
appropriate punishment, and I certainly am considering
that in my determination as to the appropriate
punishment.
With all of those factors taken into consideration, the
court finds that the government’s motion for downward
departure pursuant to Section 5K1.1 and [18 U.S.C.]
Section 3553(e), based on the defendant’s substantial
assistance to the government, should be granted.
As I said, in taking into account all of those various
factors that the court has to consider, the court finds that
the appropriate guideline level for consideration should
be level ten, which when combined with the criminal
history category of one, creates a guideline range of six
to twelve months . . . .
After arriving at a post-departure range of 6–12 months, the court sentenced Crisp
to five years probation with 12 months in-home confinement. There was to be no
incarceration.
The court believed that its sentence of probation was “a reasonable one
based upon all the factors contained in [18 U.S.C.] Section 3553(a).” It
specifically stated “that the sentence reflects the seriousness of the offense,
provides just punishment, affords adequate deterrence and adequately protects the
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public.” The court weighed most heavily “the need to provide restitution to the
bank” explaining that “[i]f the court were to impose even a short period of
imprisonment, . . . the goal of restitution would be thwarted because it would
adversely affect [Crisp’s] ability to earn a living so as to be able to make restitution
payments.”
The court then ordered Crisp to pay restitution in the amount of
$484,137.38, and found that he would be jointly and severally liable with Grant for
that amount if Grant were ordered to pay restitution. Crisp was instructed to pay
the restitution amount “in full no later than the end of [his] term of probation.”
The court explained to Crisp that “the main reason” it had imposed the maximum
term of probation was “to allow [him] that time to pay off the restitution amount.”
No fine was imposed, because the court found that Crisp was unable to pay both a
fine and restitution and, in its words, “restitution takes priority over the imposition
of a fine.”
The government objected to the court’s initial probationary sentence as
illegal because probation may not be imposed for a Class B felony, and a violation
of § 1014 is a Class B felony. See 18 U.S.C. §§ 1014, 3559(a)(2), 3561(a)(1).
The court later reconvened and modified its sentence of Crisp as follows: “I am
ordering the defendant to serve five hours in the custody of the United States
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Marshal, that term of custody preferably will be served today or you can work out
a time with the marshal preferably some time this week.” The court also imposed
as part of the sentence a five-year term of supervised release. The government
objected to the final five-hour sentence as unreasonable, labeling it “farcical.”
II.
The district court arrived at the five-hour incarceration term of the sentence
after following a two-step process. First, it granted the government’s § 5K1.1
motion and departed from the PSI’s sentencing guidelines range of 24–30 months
to a range of 6–12 months, instead of the 12–15 months the government had
recommended. We review de novo the district court’s interpretation of any part of
the guidelines, including § 5K1.1, United States v. McVay, 447 F.3d 1348,
1352–53 (11th Cir. 2006), but we review the extent of a departure only for abuse of
discretion, id. at 1353.
The second step in the court’s sentencing decision was, after consulting the
factors set out in 18 U.S.C. § 3553(a), to vary from the post-departure guidelines
range of 6–12 months down to the final sentence of five hours. We review that
aspect of the sentence, the only part at issue here, for reasonableness. United
States v. Booker, 543 U.S. 220, 261, 125 S. Ct. 738, 765–66 (2005); United States
v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005).
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III.
Section § 5K1.1 authorizes a court to depart from the sentencing guidelines
“[u]pon motion of the government stating that the defendant has provided
substantial assistance in the investigation or prosecution of another person who has
committed an offense.” U.S.S.G. § 5K1.1. That guideline contains a list of factors
for sentencing courts to consider in making a substantial assistance departure, all of
which relate to the assistance the defendant provided:
(1) the court’s evaluation of the significance and
usefulness of the defendant’s assistance, taking into
consideration the government’s evaluation of the
assistance rendered;
(2) the truthfulness, completeness, and reliability of any
information or testimony provided by the defendant;
(3) the nature and extent of the defendant’s assistance;
(4) any injury suffered, or any danger or risk of injury to
the defendant or his family resulting from his assistance;
(5) the timeliness of the defendant’s assistance.
U.S.S.G. § 5K1.1(a)(1)—(5).
Although that list of factors is preceded by language indicating that they are
not exclusive, we have held that “[w]hen . . . a district court grants a downward
departure under U.S.S.G. § 5K1.1 . . ., the sentence reduction may be based only
on factors related to the defendant’s substantial assistance.” United States v. Luiz,
102 F.3d 466, 469 (11th Cir. 1996). In other words, in meting out a substantial
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assistance departure the court may consider factors outside the § 5K1.1(a) list, but
only if they are related to the assistance rendered. See U.S.S.G. § 5K1.1 cmt.
backg’d (indicating that the focus is on the “nature, extent, and significance” of the
defendant’s assistance to the government).
Because a substantial assistance departure is to be about assistance and
nothing else, “the sentencing court [may] not permissibly consider the sentencing
factors announced in 18 U.S.C. § 3553(a) when exercising its discretion in
deciding whether and how much to depart” under § 5K1.1. United States v. Davis,
407 F.3d 1269, 1271 (11th Cir. 2005). One of the § 3553(a) factors is restitution.
See 18 U.S.C. § 3553(a)(7) (“The court, in determining the particular sentence to
be imposed, shall consider . . . the need to provide restitution to any victims of the
offense.”). The reason that restitution, like the other § 3553(a) factors, may not be
considered in determining the extent of a substantial assistance departure is that it,
like the other § 3553(a) factors, has nothing to do with the assistance the defendant
rendered.
In deciding how much to depart on substantial assistance grounds, the
district court not only considered the need for restitution, it gave that factor
controlling weight. The court did not discuss any of the § 5K1.1(a) assistance-
related factors—not the significance and usefulness of the assistance; not the
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truthfulness, completeness, or reliability of the information or testimony provided;
not the nature and extent of the assistance; not any injury, danger, or risk to the
defendant resulting from the assistance; and not the timeliness of it. Instead, after
indicating that it had considered Crisp’s cooperation, the court said that it had “also
taken into consideration the amount of restitution that is due to this bank” and
explained that it was “most concerned that justice really requires restitution in this
case.” The court noted that restitution is enumerated in § 3553(a)(7) as an
appropriate factor to consider at sentencing. It is, of course, but it is not to be
considered when calculating the extent of a § 5K1.1(a) departure. None of the §
3553(a) factors are. Davis, 407 F.3d at 1271.
The court’s error in allowing the need for restitution to skew the substantial
assistance calculation is by itself enough to require that we vacate the sentence and
remand for resentencing. See McVay, 447 F.3d at 1355. There is another reason,
as well. Even if the district court had not based the extent of the § 5K1.1(a)
departure on an improper consideration, its leap from the post-departure guidelines
range of 6–12 months down to five hours would still have to be corrected.
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IV.
In deciding upon a sentence, a court is directed by 18 U.S.C. § 3553(a) to
consider the factors listed in that subsection. Our review of the reasonableness of
the sentence in light of those factors is deferential. United States v. Talley, 431
F.3d 784, 788 (11th Cir. 2005). There is, however, a difference between deference
and abdication. We do review the sentence, and in doing so we evaluate whether
the sentence imposed serves the purposes reflected in § 3553(a). Id. If it does not,
the sentence is an unreasonable one. In any given case there will be a range of
sentences that are reasonable and the district court gets to pick within that range.
Id. But there are also sentences outside the range of reasonableness which the
district court may not impose. See id.
After pronouncing its initial sentence of probation, the district court
indicated that it had considered several of the factors listed in § 3553(a). It said
“that the sentence reflects the seriousness of the offense, provides just punishment,
affords adequate deterrence and adequately protects the public.” However, the
court’s primary concern, above all others, was restitution. It explained its
motivation: “If the court were to impose even a short period of imprisonment, . . .
the goal of restitution would be thwarted because it would adversely affect
[Crisp’s] ability to earn a living so as to be able to make restitution payments.”
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Although the court did not say so, its reasoning behind the probationary sentence
obviously carried over to the five-hour sentence it imposed after learning that 18
U.S.C. § 3561(a) required some incarceration.
In a burst of startled candor at the sentence hearing, the government “with
all due respect” told the district court that the five-hour sentence was “farcical.”
Although we are sympathetic with that notion, we need not go that far to decide
that the sentence is unreasonable. The district court obviously imposed the five-
hour sentence, to be served at a convenient time, in order to evade the strictures of
the law forbidding a probationary sentence for a crime as serious as the one Crisp
had committed. While a five-hour sentence is not probation, neither is it a real
sentence of incarceration. There is a point at which the length of the incarceration
is short enough to cross the line into no incarceration, and we would be inclined to
say that five hours crosses that line, if the government had argued that the sentence
violated § 3561(a). Otherwise, courts could impose sentences of five minutes or
five seconds, making a mockery out of the statutory command. Because the
government does not advance the argument that the sentence violated § 3561(a),
however, we will not decide that issue. Instead, we confine ourselves to the
reasonableness issue the government has raised.
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For a number of reasons, we do not share the district court’s view that a five-
hour sentence is reasonable in this case. The scheme that Crisp engaged in was a
serious one. It extended over a period of nearly eight months. The crime he
committed is classified as a Class B felony. The loss Crisp and his co-conspirator
inflicted on the victim totaled more than $480,000. The victim was a small,
family-owned bank which the district court acknowledged was particularly
vulnerable: “[T]he smaller banks really feel a loss such as this more so than larger
banks.” The purpose of 18 U.S.C. § 1014 is to protect financial institutions, and
the Federal Deposit Insurance Corporation, against the risk of loss from frauds like
this one. See United States v. Stoddart, 574 F.2d 1050, 1053 (10th Cir. 1978);
United States v. Lentz, 524 F.2d 69, 71 (5th Cir. 1975); United States v. Pavlick,
507 F. Supp. 359, 362–65 (M.D. Pa. 1980).
For such a serious offense, however, Crisp did not receive so much as a slap
on the wrist—it was more like a soft pat. The sentence essentially converts a theft
by fraud into a loan that is unlikely to ever be repaid. The court gave Crisp five
hours for a crime that caused $484,137.38 in harm. That equates to $96,827.48 per
hour or $1,613.79 per minute served in custody. The sentence does not reflect the
seriousness of the crime, promote respect for the law, and provide just punishment
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for the offense, as § 3553(a)(2)(A) requires, nor does it afford adequate deterrence
to criminal conduct, as § 3553(a)(2)(B) requires.
In deciding on a sentence, district courts should consider the policies behind
the applicable guidelines provision. 18 U.S.C. § 3553(a)(5). The commentary to
U.S.S.G. § 2B1.1, which applies to Crisp’s 18 U.S.C. § 1014 felony violation,
states:
The Commission has determined that, ordinarily, the
sentences of defendants convicted of federal offenses
should reflect the nature and magnitude of the loss
caused or intended by their crimes. Accordingly, along
with other relevant factors under the guidelines, loss
serves as a measure of the seriousness of the offense and
the defendant’s relative culpability and is a principal
factor in determining the offense level under this
guideline.
U.S.S.G. § 2B1.1 cmt. backg’d (emphasis added). The court’s sentencing theory
turned that policy on its head. The more loss a defendant has caused, the greater
will be the amount of restitution due, and the greater the incentive for a court that
places the need for restitution above all else to shorten the sentence in order to
increase the time for the defendant to earn money to pay restitution. Therefore, the
more loss a criminal inflicts, the shorter his sentence. That approach cannot be
deemed reasonable.
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We do not mean to imply that there is even a fanciful hope that Crisp can
meet the restitution obligations imposed on him. The PSI indicated that Crisp’s
financial condition would prevent him from making much of a dent in his
$484,137.38 obligation to the bank. At the time of sentencing, Crisp had a net
worth of $6,973 and monthly cash flow, net of living expenses, of just $954.
Applying all of Crisp’s net worth to the restitution obligation and even assuming
that his cash flow remains the same, and that he will devote all of it to restitution, it
would take Crisp (age 46 at sentencing) 41 years to pay off the amount of
restitution he owes. His five-hour sentence and five years of supervisory release
will be over long before then.
As the Eight Circuit recently said: “An extraordinary reduction must be
supported by extraordinary circumstances.” United States v. Dalton, 404 F.3d
1029, 1033 (8th Cir. 2005) (discussing a § 5K1.1 departure). The circumstances of
this case are not out of the ordinary at all, much less extraordinary enough to
justify the extremely lenient sentence the court imposed. Cf. United States v.
Dean, 414 F.3d 725, 729 (7th Cir. 2005) (adopting a rule that “the farther the
judge’s sentence departs from the guidelines sentence (in either direction-that of
greater severity, or that of greater lenity), the more compelling the justification
based on factors in section 3553(a) that the judge must offer”); accord United
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States v. Smith, 445 F.3d 1, 4 (1st Cir. 2006); United States v. Moreland, 437 F.3d
424, 434 (4th Cir. 2006); United States v. Smith, 440 F.3d 704, 707 (5th Cir.
2006); United States v. McMannus, 436 F.3d 871, 874 (8th Cir. 2006).
Other courts have found that a district court’s “unjustified reliance upon any
one [§ 3553(a)] factor is a symptom of an unreasonable sentence.” United States v.
Rattoballi, __ F.3d __, __, 2006 WL 1699460, at *8 (2d Cir. June 21, 2006);
accord United States v. Ture, __ F.3d __, __, 2006 WL 1596754, at *5 (8th Cir.
June 13, 2006); United States v. Hampton, 441 F.3d 284, 288–89 (4th Cir. 2006);
see also United States v. Cage, __ F.3d __, __, 2006 WL 1554674, at *9 (10th Cir.
June 8, 2006); United States v. Givens, 443 F.3d 642, 646 (8th Cir. 2006). That is
what happened in this case. The district court focused single-mindedly on the goal
of restitution to the detriment of all of the other sentencing factors. An
unreasonable approach produced an unreasonable sentence.
V.
For these reasons, we vacate Crisp’s sentence and remand the case to the
district court for resentencing in a manner consistent with this opinion.
VACATED AND REMANDED.
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