United States v. Collins Christensen , 732 F.3d 1094 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10562
Plaintiff-Appellee,
D.C. No.
v. 2:11-cr-00070-
JAM-1
COLLINS MAX CHRISTENSEN, AKA
Collie Christensen, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted
June 10, 2013—San Francisco, California
Filed October 11, 2013
Before: A. Wallace Tashima and Jay S. Bybee, Circuit
Judges, and William H. Stafford, Senior District Judge.*
Opinion by Judge Stafford;
Dissent by Judge Tashima
*
The Honorable William H. Stafford, Jr., Senior District Judge for the
United States District Court for the Northern District of Florida, sitting by
designation.
2 UNITED STATES V. CHRISTENSEN
SUMMARY**
Criminal Law
The panel affirmed a sentence imposed following the
defendant’s guilty plea to wire fraud in connection with a real
estate investment scheme.
The panel held that the record supports the district court’s
conclusion that the Sentencing Guidelines did not properly
take into account the harm caused by the egregiousness of the
defendant’s conduct, and that this conclusion did not
constitute impermissible double-counting.
Regarding the defendant’s contention that the district
court improperly discounted the defendant’s acceptance of
responsibility, the panel held that the fact that the defendant
received a three-level Guidelines reduction for acceptance of
responsibility but ended up with an above-Guidelines
sentence is insufficient to leave the panel with a definite and
firm conviction that the district court erred.
Reviewing for plain error, the panel deemed unavailing
unpreserved contentions that the district court committed
procedural error by among other things (1) failing to resolve
factual conflicts in the presentence report regarding victim
impact and loss amounts; (2) failing to provide advance
notice of the precise grounds for an upward variance; and
(3) improperly relying on clearly erroneous facts, speculative
evidence, and unreliable victim statements.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. CHRISTENSEN 3
Dissenting, Judge Tashima wrote that the district court
committed prejudicial, significant procedural error in
imposing an upward variance on the basis of investor losses
that were not attributable to the defendant’s criminal conduct.
COUNSEL
Courtney J. Linn (argued) and McGregor W. Scott, Orrick
Herrington & Sutcliffe LLP, Sacramento, California, for
Defendant-Appellant.
Camil A. Skipper (argued), Assistant United States Attorney,
Benjamin B. Wagner, United States Attorney, Russell L.
Carlberg, Assistant United States Attorney, Sacramento,
California, for Plaintiff-Appellee.
OPINION
STAFFORD, Senior District Judge:
Collins Max Christensen appeals the sentence imposed by
the district court following his pre-indictment guilty plea to
one count of wire fraud in violation of 18 U.S.C. § 1343.
Christensen’s sentence—60 months in prison—was 19
months above the high end of the applicable advisory
guideline range and 27 months above the recommended
sentence set out in the plea agreement. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
4 UNITED STATES V. CHRISTENSEN
I.
Christensen waived indictment by a grand jury and
pleaded guilty to a one-count information charging wire
fraud. The plea agreement revealed that, between 2006 and
2008, Christensen managed the operations of at least six land
development companies, which—in turn—managed multiple
real estate projects spearheaded by Christensen. By soliciting
individual investors, Christensen received a total of
approximately $2,385,959 from fourteen individuals who
agreed to invest in one or more of Christensen’s projects.
Over time, Christensen diverted a significant amount of the
investors’ funds, using the diverted funds for undisclosed
purposes. Indeed, Christensen admitted that he
misappropriated approximately $985,994 of investors’ funds
using the interstate wires to further his criminal scheme.
Christensen further admitted that he diverted investors’ funds
not only for use on undisclosed real estate projects but also
for his own personal use.
In the Presentence Investigation Report (“PSR”), the
probation officer summarized the losses sustained by the
various “victims” of Christensen’s offense of conviction.
Only those persons who had some or all of their investment
funds unlawfully diverted by Christensen were listed as
“victims” of Christensen’s offense. Consistent with the plea
agreement, the total “victim” loss reported by the probation
officer was $985,994.
Given the loss amount reported in the PSR and admitted
by Christensen, the probation officer calculated a total
offense level of 20, including a three-level reduction for
acceptance of responsibility. With a criminal history
category of I, the recommended sentencing range under the
UNITED STATES V. CHRISTENSEN 5
Guidelines was 33 to 41 months. Christensen agreed with the
probation officer’s Guidelines calculations.
The probation officer included in the PSR a sampling of
the written statements that Christensen’s “victims” submitted
to the court. In his informal objections to the PSR, which
were submitted to the probation officer before sentencing,
Christensen complained that one of the victim impact
statements was “misleading.” He did not provide specifics,
and he did not otherwise object to the content of any of the
victim impact statements quoted in the PSR. After the
probation officer amended the PSR in response to
Christensen’s informal objections, Christensen did not again
complain about the victim impact statements.
One day before sentencing was scheduled to begin, the
district court advised counsel that—for “a number of
reasons”—it was considering an upward variance to
Christensen’s sentence. To that end, the district judge
requested that the government provide information
concerning the amount of investor monies that Christensen
diverted to his own personal use. Given the last-minute
notice concerning a possible upward variance, Christensen’s
counsel requested and obtained a continuance of the
sentencing hearing.
As directed by the district court, the government filed a
spreadsheet itemizing Christensen’s use of $507,805 for
personal expenses. Among other things, the spreadsheet
revealed that Christensen used investor monies for personal
investment properties held in his wife’s name, to pay his
more-than-$13,000-per-month home mortgage, to make
payments to his ex-wife, to make a car payment for his
daughter, to pay his daughter’s college tuition, and to gamble
6 UNITED STATES V. CHRISTENSEN
at a casino in Biloxi, Mississippi. According to the FBI,
$507,805 was a “conservative figure” for the amount of
diverted funds used for Christensen’s personal expenses.
Christensen did not contest the accuracy of the personal-
use transactions listed in the government’s spreadsheet.
Christensen instead argued—both in a written sentencing
memorandum and in open court at sentencing—that an
upward variance based on his personal use of diverted funds
would constitute improper double-counting because the total
loss amount—$985,994—had already resulted in a 14-level
increase in Christensen’s offense level pursuant to U.S.S.G.
§ 2B1.1(b)(1)(H). The district court was unpersuaded by
Christensen’s double-counting argument.
At the first of two sentencing hearings, the district court
overruled Christensen’s informal objections to the PSR and,
on the record, adopted the findings in the amended PSR,
determining them to be “true and correct as modified.”
Included in the findings adopted by the district court was the
total loss—$985,994—resulting from Christensen’s criminal
offense. Although a number of Christensen’s victims spoke
at that first hearing, Christensen failed to call the district
court’s attention to any false or misleading information
provided by those victims.1 Indeed, Christensen offered no
objection at all to the victims’ statements.
1
Christensen did object to the government’s reading of a “victim impact
statement” from W.H. Mehr. Christensen noted for the record that Mehr
was not, in fact, listed as a “victim.” The district court responded to the
objection by stating: “So noted.” Mehr’s investment—$128,571.42—was
not included in the $985,994 loss attributed to Christensen’s criminal
conduct.
UNITED STATES V. CHRISTENSEN 7
At the second sentencing hearing, after hearing from both
counsel and Christensen himself, the district court explained
its reasons for an upward variance as follows:
The sentencing factors require the Court to
impose a sentence that is sufficient, but not
greater than necessary to comply with the
purposes set forth in 18 U.S.C. Section
3553(a)(2). And if the Court is going to vary,
the Court has to state its reasons for varying
upward.
And focusing on the nature and
circumstances of the offense, and the nature
and characteristics of the defendant, . . . it
concerns the Court . . . that in effect
[Christensen] used his positions to influence
innocent victims to invest at a time when he
knew that he was not going to use the money
for those purposes, without disclosing that to
them. He diverted $985,994, which has been
the agreed upon sum in terms of loss in this
case.
After adding that (1) Christensen apparently learned
nothing from a 28-year-old felony conviction for obtaining
money by false pretenses and (2) Christensen’s numerous
victims included “vulnerable, retirement age victims, victims
that trusted Mr. Christensen,” the district court continued:
Mr. Christensen indicated that he did not set
out to bilk his investors. I accept that. But,
again, that’s only half the story. At some
point he did consciously and intentionally
8 UNITED STATES V. CHRISTENSEN
decide to bilk his investors, and that conduct
continued for a period of years, and it
involved a number of different investors in the
same type of conduct.
And I found interesting Mr. Christensen’s
statement to the Court in which he explained,
at least attempted to explain why he did what
he did. And he wrote in there that he’s the
type of person in which he believes that
failure is not an option. I’ve heard that phrase
over and over again by many people. And in
this case, it clearly was an option. It’s clearly
what you should have done. You should have
accepted failure. Sometimes you learn more
from your failures than you do from your
successes. But it certainly would have saved
not only your family, but all of these victims
who have made statements, submitted loss
statements to the Court, from having to
postpone their retirement, have their
marriages destroyed, lose their jobs or lose
their homes.
The Court believes, therefore, for those
reasons, and specifically given the – as in
Schlueter, the fact that I don’t think the
sentencing guideline range adequately
accounts for the harm that Mr. Christensen’s
fraud caused his victims, I believe that given
the egregiousness of his conduct, including
lying, covering up, using funds for personal
purposes, destroying the victims’ lives,
cheating victims out of significant sums of
UNITED STATES V. CHRISTENSEN 9
money that they needed, and taking advantage
of personal relationships, that the guideline
range doesn’t adequately account for the harm
that his conduct has caused. There is a need –
despite the fact that there has been almost 28
years between his last conviction, there still is
a need I believe in this case to protect the
public from further crimes.
For all these reasons, the Court believes
an upward variance is appropriate and, given
the loss in this case, that a sentence of 60
months is appropriate and sufficient, but not
greater than necessary to satisfy the
sentencing requirements imposed by the
Court.
At the conclusion of the sentencing hearing, Christensen
offered only two objections to the sentence imposed.
Christensen first objected to the purported lack of notice
regarding the basis for an upward variance. Specifically,
Christensen asserted that he had not been given notice that the
court might base an upward variance on the victims’
statements. He did not assert that the district court committed
procedural error by relying on clearly erroneous facts,
speculative evidence, and unreliable victim statements.
Second, Christensen objected to the district court’s alleged
“discounting” of his acceptance of responsibility. He offered
no other objections to the sentence imposed.
10 UNITED STATES V. CHRISTENSEN
II.
A.
Christensen raises a number of issues, only two of which
were properly preserved for appeal—namely, whether the
district court committed procedural error by imposing a non-
Guidelines sentence based on factors already incorporated
into the Guidelines and whether the district court improperly
“discounted” Christensen’s acceptance of responsibility. We
find no merit to either issue.
We review a sentence for reasonableness; “only a
procedurally erroneous or substantively unreasonable
sentence will be set aside.” United States v. Carty, 520 F.3d
984, 993 (9th Cir. 2008) (en banc). “Procedural errors
include, but are not limited to, incorrectly calculating the
Guidelines range, treating the Guidelines as mandatory,
failing to properly consider the [18 U.S.C.] § 3553(a) factors,
using clearly erroneous facts when calculating the Guidelines
range or determining the sentence, and failing to provide an
adequate explanation for the sentence imposed.” United
States v. Armstead, 552 F.3d 769, 776 (9th Cir. 2008).
Christensen has only challenged the procedural
reasonableness of his sentence.
We review the district court’s construction and
interpretation of the Guidelines de novo, United States v.
Nielsen, 694 F.3d 1032, 1034 (9th Cir. 2012), and the district
court’s application of the Guidelines for abuse of discretion,
United States v. Holt, 510 F.3d 1007, 1010 (9th Cir. 2007).
We review the district court’s factual determinations for clear
error. United States v. Tulaner, 512 F.3d 576, 578 (9th Cir.
2008).
UNITED STATES V. CHRISTENSEN 11
We review the first of Christensen’s preserved
issues—whether the district court engaged in impermissible
double-counting—for abuse of discretion. See Holt, 510 F.3d
at 1010. As the Fifth Circuit correctly noted in United States
v. Williams, 517 F.3d 801 (5th Cir. 2008), “[t]he Supreme
Court’s decision in [United States v. Booker, 543 U.S. 220(2005),] implicitly rejected the position that no additional
weight could be given to factors included in calculating the
applicable advisory Guidelines range, since to do otherwise
would essentially render the Guidelines mandatory.” Id. at
809 (internal footnote omitted). “This necessarily means that
the sentencing court is free to conclude that the applicable
Guidelines range gives too much or too little weight to one or
more factors, either as applied in a particular case or as a
matter of policy.” Id. Here, when selecting an above
Guidelines sentence for Christensen, the district court was not
prohibited from considering the extent to which the
Guidelines did not sufficiently account for the nature and
circumstances of Christensen’s offense, including the amount
of the loss, the number of victims, or the harm to the victims,
even though the Guidelines account for these factors either
implicitly or explicitly, to some extent. The district court did
not err by concluding that the Guidelines did not properly
take into account the harm caused by “the egregiousness of
[Christensen’s] conduct, including lying, covering up, using
funds for personal purposes, destroying the victims’ lives,
cheating victims out of significant sums of money that they
needed, and taking advantage of personal relationships.” The
district court’s conclusion is supported by the record and did
not constitute impermissible double-counting.
We review Christensen’s second preserved issue—
whether the district improperly discounted his acceptance of
responsibility—for clear error. United States v. Cortes,
12 UNITED STATES V. CHRISTENSEN
299 F.3d 1030, 1037 (9th Cir. 2002). Christensen was, in
fact, awarded a 3-level reduction for acceptance of
responsibility; the district court expressly denied that it
discounted “in any way the fact that [Christensen] accepted
responsibility;” and the record otherwise belies Christensen’s
suggestion that the district court “turned his acceptance of
responsibility on its head by using it as a justification for the
upward variance.” To determine that the district court clearly
erred, we must be “left with the definite and firm conviction
that a mistake has been committed.” Easley v. Cromartie,
532 U.S. 234, 242 (2001). Mere evidence that Christensen
received a 3-level reduction, but ended up with an above
Guidelines sentence is insufficient, in this case, to leave us
with a “definite and firm conviction” that the district court
erred. Rather, the district court acknowledged that
Christensen was entitled to an acceptance of responsibility
reduction and based the upward variance on Christensen’s
behavior wholly independent of his acts constituting
acceptance of responsibility. We have no basis for
questioning whether the district court did, both in word and
in fact, award Christensen a 3-level reduction for acceptance
of responsibility.
B.
Christensen contends that the district court committed
procedural error by, among other things, (1) failing to resolve
factual conflicts in the PSR regarding victim impact and loss
amounts as required by Federal Rule of Criminal Procedure
32(i)(3)(B); (2) failing to provide advance notice of the
precise grounds for the 19-month upward variance in his
sentence in violation of the Due Process Clause; and (3)
improperly relying on clearly erroneous facts, speculative
evidence, and unreliable victim statements, also in violation
UNITED STATES V. CHRISTENSEN 13
of the Due Process Clause. Because Christensen failed to
raise these alleged procedural errors before the district court,
we review for plain error. United States v. Burgum, 633 F.3d
810, 812 (9th Cir. 2011).
To secure reversal under the plain error standard,
Christensen must show that: (1) there was error; (2) the error
was plain; and (3) the error affected Christensen’s substantial
rights. United States v. Joseph, 716 F.3d 1273, 1277 (9th Cir.
2013). “If these three conditions [are satisfied], [we] may
exercise [our] discretion to notice a forfeited error that . . .
seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. (internal quotation marks omitted)
(quoting United States v. Ameline, 409 F.3d 1073, 1078 (9th
Cir. 2005) (en banc)). A sentencing error prejudices the
substantial rights of a defendant when there is a reasonable
probability that he would have received a different sentence
had the district court not erred. Id. at 1280. The defendant
bears the burden of showing a reasonable probability that he
would have received a different sentence absent the error. Id.
When a defendant fails to make specific allegations of
factual inaccuracy in a PSR, a district court has no obligation
under Rule 32(i)(3)(B). United States v. Petri, No. 11-30337,
2013 WL 1490604, at *7 (9th Cir. Apr. 12, 2013). Because
Christensen never made specific factual objections to the PSR
regarding victim impact and loss amounts, Rule 32 was never
triggered. Id. We find that the district court committed no
error, much less plain error, under Rule 32(i)(3)(B).
We likewise find that the district court committed no
error, much less plain error, by failing to provide advance
notice of the precise grounds upon which the the 19-month
upward variance to Christensen’s sentence was based. A
14 UNITED STATES V. CHRISTENSEN
district court is not required—either by the Federal Rules of
Criminal Procedure or by the Due Process Clause—to give
advance notice of its intent to impose a sentence outside the
advisory Guidelines range. Irizarry v. United States,
553 U.S. 708, 713–16 (2008). It follows that, if a district
court is not required to give advance notice of its intent to
vary upward, it is also not required to give advance notice of
the precise grounds upon which it might base an upward
variance.
To the extent Christensen complains, in general, that the
district court erred by taking into account the
“uncorroborated,” “unsworn,” and “untested” statements of
victims, his claim of error is without merit. The Federal
Rules of Evidence do not apply at a sentencing hearing. Fed.
R. Evid. 1101(d)(3). Indeed, “a sentencing judge may
appropriately conduct an inquiry broad in scope, largely
unlimited either as to the kind of information he may
consider, or the source from which it may come.” Nichols v.
United States, 511 U.S. 738, 747 (1994) (internal quotation
marks omitted). By statute, there is “[n]o limitation . . . on
the information concerning the background, character, and
conduct of a person convicted of an offense which a court of
the United States may receive and consider for the purpose of
imposing an appropriate sentence.” 18 U.S.C. § 3661. The
Federal Rules of Criminal Procedure, moreover, provide that
the presentence report must contain “information that
assesses any financial, social, psychological, and medical
impact on any victim.” Fed. R. Crim. P. 32(d)(2)(B). As a
general matter, then, a district court may consider victim
impact statements, whether sworn or not, at sentencing.
United States v. Santana, 908 F.2d 506, 507 (9th Cir. 1990)
(per curiam).
UNITED STATES V. CHRISTENSEN 15
To the extent Christensen complains that the district court
procedurally erred and his due process rights were violated by
the district court’s purported reliance on “erroneous facts”
provided by the victims, we are presented with a closer
question. Specifically, Christensen points to statements made
by the district court at sentencing regarding victim losses and
impacts. The district court referred, for example, to the
statement of one victim (Jennifer R.) who said she invested
her entire life savings ($330,000) in one of Christensen’s
projects, only to lose it all and her 19-year marriage to boot.
In the PSR, that particular victim’s loss—or, more precisely,
the portion of her overall investment that was attributed to
Christensen’s diversion of investor funds ($90,000) that was
lost—was reported to be only $23,017. The district court
noted that another investor had been unable to retire as
planned, although the PSR stated that the portion of that
victim’s overall investment that was subject to
misappropriation ($20,000) only resulted in a loss of $5,496.
The district court also referred to the statement of another
individual (W.H. Mehr), who said that he would not have
invested his “$128,000 plus dollars” had Christensen been
truthful with him. Mehr was not listed as a “victim” in the
PSR at all, and his losses were not included in the $985,994
loss figure reported in the PSR, apparently because his
investment dollars were not diverted by Christensen. Finally,
the district court repeated the claims of various victims
regarding the impacts they suffered—foregone vacations,
delayed retirement, a ruined marriage, sale of the family
homes, lost savings—without separating (perhaps an
impossible task) the impacts attributable to Christensen’s
criminal behavior from the impacts attributable to non-
criminal investment losses.
16 UNITED STATES V. CHRISTENSEN
Christensen bears the burden of showing that the district
court relied on clearly erroneous facts, affecting his
substantial rights, when either (1) calculating the Guidelines
range or (2) determining his sentence. See Armstead,
552 F.3d at 776. Christensen does not argue that the district
court relied on any clearly erroneous fact in calculating the
Guidelines range. In fact, Christensen agreed with the
calculated Guidelines range, including the loss amount that
the district court accepted, and reiterated numerous times as
the basis for the loss calculation in the case, in arriving at that
calculation—$985,994. Thus, the only question is whether
the district court relied on any clearly erroneous fact in
determining the sentence. Again, to find clear error, we must
be “left with the definite and firm conviction that a mistake
has been committed.” Easley, 532 U.S. at 242. We are left
with no such conviction that a mistake has been committed in
this case.
It is clear that, at sentencing, the district court expressly
adopted the findings reported in the PSR, including the
$985,994 loss suffered by Christensen’s “victims.” During its
recitation of reasons for varying upward, moreover, the
district court expressly stated that (1) Christensen “diverted
$985,994, which has been the agreed upon sum in terms of
loss in this case;” (2) “this case . . . involved almost a million
dollars;” and (3) “the Court believes an upward variance is
appropriate . . . given the loss in this case.” It thus seems
clear that the district court based its variance on “the agreed
upon sum in terms of loss in this case,” a sum—
$985,994—that included only victim losses attributable to
Christensen’s criminal conduct.
In addition to explaining that the upward variance was
based on “the agreed upon sum in terms of loss in this case,”
UNITED STATES V. CHRISTENSEN 17
the district court iterated the following additional reasons for
its upward variance: (1) Christensen took advantage of
personal relationships to solicit large sums of investment
monies from people who trusted him; (2) Christensen used
over $500,000 of investor monies to enrich himself—to
invest in properties held in his wife’s name, to pay his home
mortgage, to make payments to his ex-wife, to pay his
daughter’s college tuition, and to gamble at a casino in Biloxi,
Mississippi; (3) Christensen repeatedly and continually lied
to his victims, not only about the true state of project affairs
but also about the uses to which he was putting their
investment dollars, enabling him to keep his unlawful scheme
going for a period of years; (4) Christensen’s unlawful
scheme caused his victims to lose sums of money they could
ill afford to lose; and (5) Christensen apparently learned
nothing from a 28-year-old unscored conviction for obtaining
money by false pretenses. Christensen did not and does not
dispute the factual basis for the above reasons iterated by the
district court. Each of those reasons, moreover, constitutes a
proper sentencing factor under 18 U.S.C. § 3553(a), and
together they provide sufficient support for the district court’s
decision to vary upward.
The district court included another reason for the upward
variance when it referred to the “life-destroying impacts”
described by Christensen’s victims. As noted by the district
court, these victim-reported impacts included loss of homes,
a failed marriage, postponement of retirement, foregone
vacations, loss of life-savings, and loss of the ability to pay
for children’s private schooling. The victims reported the
impacts they suffered from having lost all of their investment
dollars, without differentiating losses that were solely
attributable to Christensen’s diversion of investor funds.
These “life-destroying impacts” undoubtedly went beyond the
18 UNITED STATES V. CHRISTENSEN
stipulated losses to investors based on Christensen’s diversion
of funds.
These “life-destroying impacts,” however, were proper
for the district court to consider even if not tied to the loss
Christensen caused by misappropriating investor funds.
There is “[n]o limitation . . . on the information concerning
the background, character, and conduct of a person convicted
of an offense which a court . . . may receive and consider for
the purpose of imposing an appropriate sentence.”2 18 U.S.C.
§ 3661; see also Pepper v. United States, 131 S. Ct. 1229,
1240 (2011) (“Permitting sentencing courts to consider the
widest possible breadth of information about a defendant
2
Despite this plain and capacious language, the dissent insists that
information considered under 18 U.S.C. § 3661 must be criminal in
nature. See Dis. Op. at 31–34. We disagree. The Supreme Court “[has]
recognized that ‘the broad language of § 3661’ does not provide ‘any
basis for the courts to invent a blanket prohibition against considering
certain types of evidence at sentencing.’” Pepper v. United States,
131 S. Ct. 1229, 1241 (2011) (quoting United States v. Watts, 519 U.S.
148, 152 (1997)). Therefore, subject to constitutional constraints, see id.at 1240 n.8, we take Congress at its word: a sentencing court may rely on
any evidence relating to a defendant’s background, character, and conduct
when considering the sentencing factors found in 18 U.S.C. § 3553(a).
See Pepper, 131 S. Ct. at 1236 (holding that a sentencing court may
consider post-sentencing rehabilitation).
Our decision in United States v. Mercado, 474 F.3d 654 (9th Cir.
2007), cited by the dissent, does not alter this conclusion. See Dis. Op. at
34 n.5. In Mercado, the district court considered the criminal activity
charged in several acquitted counts when it sentenced the defendant on the
counts for which he was convicted. 474 F.3d at 655–56. We affirmed,
holding that “the district court could constitutionally consider the
acquitted conduct.” Id. at 657. Thus, although Mercado establishes that
a district court may consider acquitted conduct, it does not suggest that
information considered under § 3661 must be criminal in nature.
UNITED STATES V. CHRISTENSEN 19
‘ensures that the punishment will suit not merely the offense
but the individual defendant.’”) (quoting Wasman v. United
States, 468 U.S. 559, 564 (1984)). These “life-destroying
impacts,” supported by victim statements, provide greater
insight into Christensen’s “background, character, and
conduct” that the district court was entitled to rely on in
determining that for a specified loss resulting from criminal
conduct, the Guidelines did not adequately account for the
seriousness of Christensen’s offense, provide adequate
deterrence, or sufficiently protect the public and innocent
investors from the infliction of further harm at the hands of
Christensen.3 See 18 U.S.C. § 3553(a)(2). Moreover, it was
not the dollar amount of these victims’ losses that the district
court relied on in imposing this upward variance; rather, it
was the intangible nature of Christensen’s conduct. As the
district court stated:
I believe that given the egregiousness of his
conduct, including lying, covering up, using
funds for personal purposes, destroying the
victims’ lives, cheating victims out of
significant sums of money that they needed,
and taking advantage of personal
relationships, that the guideline range doesn’t
adequately account for the harm that his
conduct has caused. There is a need—despite
the fact that there has been almost 28 years
3
The dissent worries that our holding might allow sentencing courts to
vary upward based on “the tradition or school of yoga [a defendant]
favors.” Dis. Op. at 34. Of course, this fanciful scenario is not before us.
The question presented here is much easier: Does 18 U.S.C. § 3661authorize a sentencing court to consider life-destroying impacts that flow
directly from a substantially criminal scheme? As explained above, the
answer is “yes.”
20 UNITED STATES V. CHRISTENSEN
between his last conviction, there still is a
need I believe in this case to protect the public
from further crimes.
In addition, we note that many of the “life destroying
impacts” were indivisible. For example, Jennifer R.
attributed the dissolution of her 19-year marriage to
Christensen’s conduct. The dissent argues that it was
inappropriate for the district court to consider this divorce
because the PSR indicates that Jennifer R. lost only $23,017
due to Christensen’s fraud. Dis. Op. at 27–29. In so doing,
the dissent assumes Jennifer R.’s divorce was a matter of
simple arithmetic: it resulted from the loss of a certain sum of
money, and that sum must have been greater than $23,017;
therefore, because Jennifer R. lost only $23,017, the district
court was required to ignore her claim that Christensen’s
conduct had caused her divorce. This argument ignores the
indivisible nature of the harm. The fact of the matter is that
we do not know how much financial stress Jennifer R.’s
marriage could have withstood. What we do know is that
Jennifer R. and her husband entrusted their life savings to
Christensen, that he fraudulently diverted a portion of it, that
their marriage never recovered from the stress, and that
neither the causes nor the impacts of a divorce break down
neatly into dollars and cents. This is precisely the type of
situation in which the Guidelines do not adequately account
for the seriousness of the offense. As a result, it was proper
for the district court to consider Jennifer R.’s divorce,
together with the other “life destroying impacts” described by
Christensen’s victims.
If the district court had used non-offense “losses” to
erroneously calculate the Guidelines range, this would be a
much different case. But, where as here, the district court
UNITED STATES V. CHRISTENSEN 21
used the correct loss calculation to arrive at the correct
Guidelines range, and appears to have only relied on extrinsic
evidence as support for the Guidelines inadequate accounting
for the harm caused by Christensen, we cannot say that the
district court clearly erred in any manner. Therefore, we
conclude that the district court committed no error in this
regard.
Even assuming that the district court did err, Christensen
has fallen short of establishing that his substantial rights were
affected by any such error. Indeed, while the record provides
ample support for the district court’s 19-month upward
variance, the record provides no basis for concluding that
there is a reasonable probability Christensen would have
received a more lenient sentence absent the asserted error.
At the conclusion of the sentencing hearing, the district
court expressly stated that it was “imposing a sentence that
was less than what I think the Court could have imposed
given the egregiousness of the conduct in this case,” conduct
which—in effect—amounted to stealing over a long period of
time from people whose trust Christensen maintained through
lies. The district court also stated that “[t]his could have been
a sentence that was far greater than 60 months.” The district
court said nothing to suggest that it would have imposed a
lesser sentence if the overstated impacts of Christensen’s
egregious criminal conduct had not been considered. At best,
it is highly uncertain whether Christensen would have
received a lesser sentence if the district court had not
considered those impacts, and such a high degree of
uncertainty precludes a finding that any alleged error affected
his substantial rights. See Jones v. United States, 527 U.S.
373, 394–95 (1999) (“Where the effect of an alleged error is
so uncertain, a defendant cannot meet his burden of showing
22 UNITED STATES V. CHRISTENSEN
that the error actually affected his substantial rights.”); see
also United States v. Gonzalez-Aguilar, 718 F.3d 1185, 1189
(9th Cir. 2013) (explaining that a defendant cannot meet the
third prong of the plain error test by demonstrating a mere
“possibility” that he could have obtained a lesser sentence
absent the alleged error); United States v. Rodriguez,
627 F.3d 1372, 1382 (11th Cir. 2010) (explaining that “where
the effect of an error on the result in the district court is
uncertain or indeterminate—where we would have to
speculate—the appellant has not met his burden of showing
a reasonable probability of a different result” (internal
quotation marks omitted)); United States v. Lorenzo, 995 F.2d
1448, 1457 n.4 (9th Cir. 1993) (noting that “if plain error
analysis applies, it appears that the appellants . . . pay the
price for the inadequacy of the record”). Thus, even
assuming error, it did not affect Christensen’s substantial
rights.
Likewise, Christensen’s due process argument is
unavailing. The Due Process Clause requires that a defendant
not be sentenced on the basis of “misinformation of
constitutional magnitude.” United States v. Tucker, 404 U.S.
443, 447 (1972). To establish that his due process rights were
violated, Christensen must show that materially false or
unreliable information was demonstrably made the basis for
the sentence imposed by the district court. United States v.
McGowan, 668 F.3d 601, 606 (9th Cir. 2012). Here, because
Christensen failed to raise his “erroneous facts” issue before
the district court, Christensen must show not only that the
district court committed error under the Due Process Clause
but also that the error affected his substantial rights. As we
have shown, Christensen cannot satisfy this burden.
UNITED STATES V. CHRISTENSEN 23
III.
Having found no merit to any of the issues raised by
Christensen, we AFFIRM.
TASHIMA, Circuit Judge, dissenting:
We review a district court’s sentencing decisions for
abuse of discretion, thus affording district courts a substantial
degree of deference. But, as we recently observed en banc,
“[t]he abuse of discretion standard is deferential, but it does
not mean anything goes.” United States v. Ressam, 679 F.3d
1069, 1087 (9th Cir. 2012) (en banc). And, as the Supreme
Court has observed in a related context, we should “not
indulge [in] post hoc rationalization” of the sentencing
court’s “decisionmaking that contradicts the available
evidence . . . .” Harrington v. Richter, 131 S. Ct. 770, 790
(2011). In short, “[t]he abuse of discretion standard of review
is not a rubber stamp of all sentencing decisions made by a
district court, United States v. Ruff, 535 F.3d 999, 1005 (9th
Cir. 2008) (Gould, J., dissenting), and we should not turn a
blind eye when a district court distorts the sentencing process.
Because that is precisely what the majority does, I
respectfully dissent.
In affirming the sentence in the present case, the majority
obfuscates a fact that is apparent from any fair reading of the
record: the district court based its above-guidelines sentence
on investor losses not caused by Christensen’s criminal
conduct.
24 UNITED STATES V. CHRISTENSEN
This was “significant procedural error.” United States v.
Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). The
district court either mistakenly believed that the losses in
question did result from Christensen’s criminal conduct, in
which case the sentence was predicated on “clearly erroneous
facts,” id. (internal quotation marks omitted), or it knowingly
increased the sentence based on the impact of non-criminal
conduct, a proposition that not even the government contends
would be justified. Because victim impact formed the central
basis for the upward variance, there is a “reasonable
probability” that the district court’s error affected the
outcome of the proceedings. United States v. Whitney,
673 F.3d 965, 972 (9th Cir. 2012) (internal quotation marks
omitted). For these reasons, I believe Christensen has
demonstrated plain error entitling him to relief.
I.
As an initial matter, it is necessary to clarify the nature of
the victims and their losses in this case. The presentence
investigation report (“PSR”) identified fourteen victims of
Christensen’s criminal conduct. The PSR explained the basis
on which this determination was made:
The victims of this offense are the numerous
individuals who invested money into the
various projects the defendant managed and
who had their investment funds diverted for
other uses which they did not authorize. It is
noted victim statements were received from
other individuals who lost investment funds
due to the failure of all of Christensen’s
projects. As their funds were properly
invested into the projects they designated and
UNITED STATES V. CHRISTENSEN 25
were not diverted, they are not victims for the
purposes of this criminal matter.
Consistent with this approach, for each of the fourteen
victims, the PSR separately listed the amount of money
invested with Christensen, and the portion of that investment
fraudulently diverted and lost as a result of the criminal
conduct. Across the fourteen victims, the total amount of
money lost due to Christensen’s fraud was $985,994,
representing less than half of the more than $2.1 million
invested by these individuals.
The district court accepted the PSR’s calculation of
$985,994 as “the agreed upon sum in terms of loss in this
case.” Indeed, this was the figure employed in calculating
Christensen’s advisory guidelines sentencing range and was
the amount of restitution that Christensen was eventually
ordered to pay. As described below, however, the district
court disregarded the PSR’s methodology in assessing the
impact of Christensen’s conduct on individual victims,
conflating losses suffered due to the fraud and losses suffered
from legitimate (i.e., non-criminal), but failed investments.
II.
Although one would never know it from the majority
opinion, the district court based its upward variance on the
impact of Christensen’s conduct on individual investors,
specifically five victims identified in the PSR and one
investor who was not a victim at all. This is abundantly clear
from the record.
At the outset of explaining the basis for its sentence, the
district court stated that it had “researched a number of cases”
26 UNITED STATES V. CHRISTENSEN
in which sentencing courts had varied upward “under similar
circumstances.” The district court then described in detail
three out-of-circuit cases that it considered particularly
analogous, all involving defendants convicted of financial
fraud who received above-guidelines sentences on the basis
of victim impact. The district court characterized the final
case it discussed, United States v. Schlueter, 634 F.3d 965(7th Cir. 2011), as the “most instructive.”1 According to the
district court, the upward variance in Schlueter was imposed
(and affirmed) because “the guideline range failed to
adequately account for the harm that [the defendant’s] fraud
had caused his victims or for the egregiousness of his
conduct.” The victims in Schlueter were friends of the
defendant, many of retirement age, and, in the district court’s
words, the defendant “[took] advantage of personal
relationships to cheat them out of significant sums that they
needed at critical stages of their lives,” including “one victim
[who] was unable to purchase a home because of the fraud.”
After recounting the details of Schlueter, the district court
explained that it “went back to the victim impact statements
and the presentence report to compare, in effect, Mr.
Christensen to the defendant in Schlueter.” It was at this
point that the district court described the alleged impact of
Christensen’s conduct on six specific investors. The district
court prefaced this discussion by stating that it was “looking
at the victims’ losses [and] statements.”
1
The other two cases were United States v. Siman, 419 F. App’x 979
(11th Cir. 2011), and United States v. Scherrer, 444 F.3d 91 (1st Cir.
2006). The district court characterized Siman as a case where the
sentencing court varied upward “relying on the impact experienced by the
victims and who the victims were.” Similarly, the district court described
Scherrer as a case where the sentencing court “focus[ed] on the victims”
in imposing a variance.
UNITED STATES V. CHRISTENSEN 27
For at least three of the six investors, however, the district
court considered the impact of losses well beyond those
caused by Christensen’s criminal conduct. For instance, the
district court described Robert G. as a victim who “has been
unable to retire . . . as planned; he’s had to continue to work.”
Yet, according to the PSR, Robert G. only lost $5,496 due to
the fraud. It is unlikely that this narrow loss was the cause of
Robert G.’s inability to retire, especially given that
Christensen repaid all but $192 of that loss more than two
years prior to the sentencing hearing.
The district court also discussed an investor named Mehr,
who apparently lost $128,000 through investing in one of
Christensen’s projects. The district court noted Mehr’s
statement that “if he had known and been told the truth, he
obviously would not have invested in the project.” But Mehr
is not listed in the PSR as a victim. Rather, as the
government concedes, he is one of the investors not included
in the PSR because his funds were properly invested and not
diverted.
Finally, and most importantly, is Jennifer R., whom the
district court described as “the victim that concerns me the
most.” Jennifer R. submitted a letter to the probation officer
indicating that she lost $330,000 of her life savings from
investing with Christensen, which led to the disintegration of
her marriage. The PSR, however, lists Jennifer R. as having
lost only $23,017 due to Christensen’s fraud.2 Nevertheless,
2
The PSR lists Jennifer R. as having invested a total $90,000 with
Christensen. It is not entirely clear why there is a discrepancy between
this amount and the $330,000 described in her letter to the probation
officer, although it may be that the additional funds were invested in
projects from which Christensen did not fraudulently divert any funds (and
28 UNITED STATES V. CHRISTENSEN
in weighing the impact of Christensen’s conduct, the district
court described Jennifer R.’s experience as follows:
She invested $330,000 of her life savings, her
and her husband’s, which they had saved for
17 years. This was going to be their
retirement. They were invited to Mr.
Christensen’s home. He befriended them, he
talked them into investing and, as a result,
they lost the entire amount of their life
savings. And her marriage, as she writes,
could not handle the loss. So not only did she
lose her entire life savings, her 19-year
marriage has ended as a result of the
defendant’s criminal behavior.
(Emphasis added.)
For all three of these investors (and likely two more of the
remaining three),3 it is evident that the district court based its
analysis on losses unrelated to Christensen’s criminal
conduct. These losses may have been caused by
therefore were not included the PSR’s calculations). In any event, the
relevant comparison is the $23,017 loss established by the PSR and the
$330,000 figure on which the district court expressly relied.
3
For two of the other three victims discussed, William K. and James D.,
there was also a sizeable gap between the amount invested and the amount
lost due to the fraud (an over $90,000 difference for William K. and a
$51,000 difference for James D.). The district court did not mention
specific dollar amounts lost by these two investors, but its discussion
again suggested that it was considering total investment loss, not loss
caused by the fraud. For only one of the six investors, Twila K., was the
amount invested the same as the amount lost as a result of the criminal
conduct.
UNITED STATES V. CHRISTENSEN 29
Christensen’s poor, but non-criminal, management, the
victims’ poor judgment in investing with him, the
deterioration of the economy, or some combination thereof.
None of these are reasons why Christensen was convicted of
a crime.
The district court’s consideration of these losses can be
explained in only one of two ways: (1) it mistakenly believed
that the full investment losses were attributable to the fraud;
or (2) it realized that just a portion of the losses resulted from
the fraud, but it nonetheless knowingly based its upward
variance on the impact of non-criminal conduct. For reasons
described below, the record supports the former
interpretation, but under either scenario, the district court
committed significant procedural error.
III.
If the district court operated under the erroneous belief
that the full losses of Robert G., Mehr, and Jennifer R. were
attributable to Christensen’s crimes, there can be little dispute
that the sentence was predicated on “clearly erroneous facts.”
Carty, 520 F.3d at 993 (quoting Gall v. United States,
552 U.S. 38, 51 (2007)). Indeed, the government has never
contested the accuracy of the PSR’s loss calculations for
these investors. The district court’s statements at sentencing
make plain that it did proceed under this incorrect
assumption.
As described, the district court immediately led into its
discussion of the six investors by stating that it was “looking
at the victims’ losses.” Then, with regard to Jennifer R., the
most important victim in the district court’s calculus, the
district court stated that she lost her entire life savings of
30 UNITED STATES V. CHRISTENSEN
$330,000, as well as her 19-year marriage, “as a result of the
defendant’s criminal behavior.” (Emphasis added.) The
district court could not have made a more direct statement
indicating that it was treating and relying on full investment
losses (including non-criminal losses) as attributable to
Christensen’s criminal activities.
Nearly as compelling an indication is the district court’s
reference to Mehr, who was not a victim at all. The district
court’s discussion of the six investors, including Mehr,
followed its long description of the purportedly analogous
cases in which sentencing courts had varied upward on the
basis of victim impact. In fact, the district court used the
word “victim” ten times in the three pages of the sentencing
transcript preceding its discussion of these investors. It is
inconceivable that the district court deemed it relevant to
discuss Mehr’s losses in this context while fully cognizant
that Mehr was not a victim.
The majority offers no refutation of this evidence in
holding that the district court did not premise its sentence on
clearly erroneous facts. Instead, the majority attempts to
elide the factual basis underlying the upward variance by
pointing to two passing references that the district court
made, later in the sentencing hearing, to the PSR’s aggregate
loss calculation of $985,994. Maj. Op. at 16. From these
references, the majority reasons that the district court surely
predicated its variance only on losses caused by the fraud. Id.at 16–17. This analysis ignores the reality that the district
court’s variance was based not on aggregate losses, but on the
impact on individual victims. The district court emphasized
as much over and over at sentencing. In evaluating those
individual victims, the district court relied on clearly
UNITED STATES V. CHRISTENSEN 31
erroneous facts, and it thereby committed significant
procedural error.
IV.
If, on the other hand, the district court appreciated that the
referenced investor losses were not attributable to
Christensen’s crimes, this would necessarily mean that the
district court intentionally rested its sentence, in part, on the
impact of non-criminal conduct. Otherwise, the district
court’s extended discussion of the full investor losses would
have been without purpose. At oral argument, however, the
government expressly disclaimed reliance on any notion that
the district court could permissibly base its upward variance
on non-criminal conduct. Hence, if the majority is correct
that the district court did not rely on erroneous facts in
misperceiving the nature of the losses, the only remaining
possibility depends on an argument that the government
wisely has elected not to pursue, and that we should not
advance in its stead. See United States v. Anekwu, 695 F.3d
967, 985 (9th Cir. 2012) (arguments not raised by parties are
waived).
Yet, because the majority has not clearly disavowed the
possibility that the district court may have varied upward
based on the impact of non-criminal conduct, reluctantly, I
find it necessary to address that question. I believe it must be
answered in the negative. In the analogous context of
“relevant conduct” under U.S.S.G. § 1B1.3, used in
calculating a defendant’s guidelines offense level, the Courts
of Appeals are unanimous in holding that the provision is
limited to conduct that is criminal. See United States v.
Catchings, 708 F.3d 710, 712, 720 (6th Cir. 2013); United
States v. Griffith, 584 F.3d 1004, 1013 (10th Cir. 2009);
32 UNITED STATES V. CHRISTENSEN
United States v. Schaefer, 291 F.3d 932, 940–41 (7th Cir.
2002); United States v. Dove, 247 F.3d 152, 155 (4th Cir.
2001); United States v. Jain, 93 F.3d 436, 443 (8th Cir.
1996); United States v. Peterson, 101 F.3d 375, 385 (5th Cir.
1996); United States v. Dickler, 64 F.3d 818, 830–31 (3d Cir.
1995). The reasoning behind this limitation applies equally
here, i.e., to the basis for a variance. To allow for an upward
variance based on non-criminal conduct “would allow
individuals to be punished by having their [sentence]
increased for activity which is not prohibited by law but
merely morally distasteful or viewed as simply wrong by the
sentencing court.” Peterson, 101 F.3d at 385.
The sentencing factors of 18 U.S.C. § 3553(a)(2) confirm
this conclusion. With the exception of the rehabilitative goals
of clause (D), all of the factors focus on the unlawful nature
of the defendant’s past or future behavior. The factors speak
of the seriousness of “the offense,” the need to provide just
punishment for “the offense,” the need to deter “criminal
conduct,” and the need to protect the public from “further
crimes.” See 18 U.S.C. § 3553(a)(2). The impact of a
defendant’s completed, non-criminal activities – in this case,
losses caused by poor investment decisions – is not relevant
to any of these inquiries. And given that sentencing courts
must impose a sentence that is “sufficient, but not greater
than necessary to comply with the purposes” of the
§ 3553(a)(2) factors, there is no place for increasing a
defendant’s sentence on the basis of this consideration. Id.
§ 3553(a) (emphasis added).
The majority’s response on this point is perplexing. The
majority seems to concede that it would have been improper
for the district court to vary upward based on the magnitude
of the losses caused by Christensen’s non-criminal conduct.
UNITED STATES V. CHRISTENSEN 33
In other words, the majority seems to concede that the district
court would have erred in stating, “I am varying upward
because Christensen caused over $2.1 million in investor
losses, including over $1.1 million in losses not related to the
fraud.” But the majority nonetheless contends that it was
appropriate to vary upward based on the “life-destroying
impacts” of those same losses. Maj. Op 18–19. This is a
classic distinction without a difference.4
In its limited explanation, the majority vaguely references
18 U.S.C. § 3661, which allows sentencing courts to receive
any information concerning a defendant’s “background,
character, and conduct.” Maj. Op. 19. However, this
provision, which “remov[es] typical ‘jury trial’ evidentiary
limitations” on the information that may be presented and
considered at sentencing, United States v. Booker, 543 U.S.
220, 249 (2005), says nothing of the grounds upon which a
4
The majority charges that
the dissent assumes Jennifer R.’s divorce was a matter
of simple arithmetic: it resulted from the loss of a
certain sum of money, and that sum must have been
greater than $23,017; therefore, because Jennifer R. lost
only $23,017, the district court was required to ignore
her claim that Christensen’s conduct had caused her
divorce.
Maj. Op. 20. But I make no such assumption; instead, I take the district
court at its word. It stated: “So not only did she [Jennifer R.] lose her
entire life savings, her 19-year marriage has ended as a result of the
defendant’s criminal behavior.” (Emphasis added.) Even more disturbing
than the majority’s refusal to confront the facts is its assertion that because
“many of the ‘life destroying impacts’ were indivisible,” id., we need not
and should not even attempt to parse out what harm was caused by a
defendant’s criminal conduct.
34 UNITED STATES V. CHRISTENSEN
district court may grant an upward variance. To the extent
the majority implies that all information countenanced under
§ 3661 may serve as the basis for a variance, such is patently
absurd. For then, a sentencing court could vary upward based
on a defendant’s eating or dressing habits, the tradition or
school of yoga he favors, or the regularity with which he
recycles, all of which “provide greater insight into [the
defendant’s] ‘background, character, and conduct.’”5 Maj.
Op. 18–19.
For these reasons, I would hold that it is significant
procedural error to rest an upward variance on the impact of
a defendant’s lawful activities and conduct.
V.
Christensen must also establish prejudice, and to do so, he
must demonstrate that there is a “reasonable probability” that
the district court’s error affected the outcome of the
sentencing. Whitney, 673 F.3d at 972 (quoting United States
v. Marcus, 130 S. Ct. 2159, 2164 (2010)). Ordinarily, this
would be a difficult task given the inherent challenges in
identifying “the effect of any discrete set of errors on a
district court’s multifaceted sentencing determination.” Id.5
Our decision in United States v. Mercado, 474 F.3d 654 (9th Cir.
2007), provides an example of when information received under § 3661
can be pertinent to a defendant’s criminal activities. There, we cited
§ 3661 in holding that sentencing courts may consider criminal conduct
charged in the indictment, but of which the defendant was acquitted, in
calculating the defendant’s guidelines range. See id. at 656–57. This
scenario centers on the conduct at issue being criminal, requiring that the
sentencing court find by a preponderance of the evidence that the
defendant is culpable for the charged, but acquitted conduct. See id. at
655–56.
UNITED STATES V. CHRISTENSEN 35
Here, however, Christensen is presented with no such
difficulties given that the district court made clear that the
issue on which it committed error provided the central basis
for its upward variance.
In seeking to minimize the import of this error, the
majority paints a grossly distorted picture of the district
court’s decisionmaking process. Rather than informing the
reader of the district court’s unambiguous emphasis on victim
impact, the majority relays every snippet of the sentencing
hearing it can locate that would suggest other considerations
played a role in the sentencing decision. See Maj. Op. 7–9,
16.
The majority alternatively holds that, even if the district
court did err in overstating the impact of Christensen’s
criminal conduct, Christensen cannot demonstrate prejudice
because it is “uncertain” whether the outcome would have
been different if not for the error. Maj. Op. 21–22. The
majority’s analysis in this regard places an incorrect, and
virtually impossible to meet, burden on a defendant under
plain error review. To demonstrate prejudice, Christensen
need not show with absolute certainty that he would have
received a lesser sentence in the absence of the error, he need
only show a “reasonable probability” of such. See Whitney,
673 F.3d at 972; see also United States v. Gonzalez-Aguilar,
718 F.3d 1185, 1189 (9th Cir. 2013). Given the overriding
role that victim impact played at sentencing, I have little
difficulty finding a reasonable probability that the district
court would not have varied to the degree that it did –
nineteen months above the high end of the guidelines range
and almost double the low end of the guidelines range – had
it not erred.
36 UNITED STATES V. CHRISTENSEN
Indeed, to not find a reasonable probability of prejudice
when a district court’s error undermines the primary
justification for its sentence makes a mockery of the
requirement that the sentencing court adequately explain its
decision, a requirement that is of particular importance in the
context of a variance. See Gall, 552 U.S. at 46. It is true that,
in the present case, the district court evidenced a desire to
reach its eventual outcome regardless of the reasons. Prior to
the second sentencing hearing, the district court indicated to
the parties that it was considering varying on the basis of
Christensen’s personal use of the funds diverted. It was only
after Christensen submitted briefing as to why it would be
inappropriate to vary on this basis that the district court
suddenly shifted gears and changed its justification at the
second hearing, without advance notice, to victim impact.
However, it would be perverse to find a lack of prejudice
because we suspect that a district court was bent on reaching
a particular outcome. The integrity of the sentencing process
requires that we take a district court at its word as to the
reasons for the sentence imposed. See id. at 50 (“[A district
court] must adequately explain the chosen sentence to allow
for meaningful appellate review and to promote the
perception of fair sentencing.”). Here, those reasons were
fundamentally flawed.
VI.
The district court committed “significant procedural
error” in imposing an upward variance on the basis of
investor losses that were not attributable to Christensen’s
criminal conduct. This was prejudicial error, and Christensen
is entitled to resentencing. Accordingly, I would vacate the
sentence and remand for resentencing. I respectfully dissent.