United States v. Warr ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-30125
Plaintiff-Appellee,
v.  D.C. No.
CR-06-00053-DWM
JONAH MICAH WARR,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued on January 7, 2008
Submitted on June 12, 20081
Seattle, Washington
Filed July 2, 2008
Before: Andrew J. Kleinfeld, A. Wallace Tashima, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman
1
We deferred submission in this case to await the Supreme Court’s deci-
sion in Irizarry v. United States, 2008 WL 2369164 (U.S. Jun. 12, 2008).
8019
8022 UNITED STATES v. WARR
COUNSEL
Kathleen L. DeSoto (argued), Garlington Lohn & Robinson,
PLLP, Missoula, Montana, for appellant Jonah Micah Warr.
Leif M. Johnson (argued), Assistant United States Attorney,
Timothy J. Racicot, Assistant United States Attorney, Mis-
soula, Montana, for appellee United States of America.
OPINION
TALLMAN, Circuit Judge:
Jonah Micah Warr (“Warr”) appeals his 120-month sen-
tence after pleading guilty to nine counts of wildland arson in
violation of 18 U.S.C. § 1855.2 He makes three arguments on
2
18 U.S.C. § 1855 provides, in relevant part: “Whoever, willfully and
without authority, sets on fire any timber, underbrush, or grass or other
UNITED STATES v. WARR 8023
appeal. First, he contends that the district court erred in calcu-
lating the advisory sentencing guidelines range by including
fire suppression costs in the loss calculation, resulting in an
elevated total offense level. Second, he asserts that the district
court imposed an unreasonably long sentence. Third, he
argues that the district court erred by relying at the sentencing
hearing on a statistical study about recidivism by young
offenders without providing advance notice to Warr. We
reject Warr’s arguments and affirm his sentence.
I
Between July 24, 2006, and September 1, 2006, Warr, who
was then nineteen years old, started nine wildland fires on
National Forest Service land.3 When he was apprehended, he
confessed, and explained how, when, and where he started
each fire.
At the change of plea hearing, the district court asked Warr,
who “was trained as a firefighter in South Dakota,” why he
started the various fires. With respect to one fire, Warr
explained that he had started it because he was “mad” that
firemen extinguished a previous fire he had started, and he
“wanted the fires to be going, I didn’t want them put out.” He
admitted that he experienced “a little bit” of a “thrill” by start-
ing fires. With respect to another fire, Warr stated that he had
started it because “there was a storm coming through and it
was really windy so I figured it would be a good time to start
a fire.”
Following the change of plea hearing, the district court
inflammable material upon the public domain or upon any lands owned
. . . by . . . the United States . . . shall be fined under this title or impris-
oned not more than five years, or both.”
3
Warr also ignited at least eleven other fires on Montana state forest
land. They were not included in the indictment because they did not occur
on federal land.
8024 UNITED STATES v. WARR
filed an order notifying the parties that it was contemplating
imposing a sentence “above the advisory guidelines based
upon United States v. Booker, 543 U.S. 220 (2005) and the 18
U.S.C. § 3553(a) factors.”
The Presentence Report calculated Warr’s total offense
level and criminal history. The report computed the total
offense level to be 25. That number included a 20-level
increase under United States Sentencing Guideline (“USSG”)
§ 2B1.1(b)(1)(K) based on an estimated loss of between $7
million and $8 million. The Presentence Report stated,
This amount is the actual loss defined at Application
Note 3(A)(I) as reasonably foreseeable pecuniary
harm that resulted from the offense. Application
Note 3(A)(I) further defines reasonably foreseeable
pecuniary harm as the pecuniary harm that the defen-
dant knew or, under the circumstances, reasonably
should have known, was a potential result of the
offense. In this case, [Warr] was a trained firefighter
and a Montana resident who, given his statements,
knew the risks of starting fires while forest restric-
tions were in place. He also knew or should have
known costs associated with fires.
Of the estimated damage, nearly $6.7 million was attributed
to fire suppression costs. Of that $6.7 million, about $6.5 mil-
lion was expended in suppressing Warr’s first and largest fire.
Warr’s criminal history, as described in the Presentence
Report, is extensive. He has eight criminal history points,
yielding a criminal history category of IV. As a juvenile, he
was cited for misdemeanor assault, shoplifting, and minor in
possession of alcohol. His adult convictions include posses-
sion of explosives (three counts), criminal mischief (four
counts), possession of dangerous drugs, third degree burglary,
possession of burglary tools, possession of less than two
ounces of marijuana, and shoplifting. On one occasion, he
UNITED STATES v. WARR 8025
made and exploded various types of bombs, including pipe
bombs, destroying a truck and several mailboxes.
In advance of the sentencing hearing, Warr submitted an
evaluation prepared by a psychologist, Dr. Michael Scolatti.
In it, Dr. Scolatti diagnosed Warr with pyromania and “a psy-
chotic disorder not otherwise specified,” both of which are
complicated by alcohol and marijuana use. Dr. Scolatti
observed, “Without psychiatric and psychological treatment,
Mr. Warr is a significant danger to society. He has significant
mental health disorders and without proper treatment will
become worse.”
The sentencing hearing occurred on March 27, 2007. First,
the district court discussed the appropriate sentencing guide-
lines range. The court accepted Warr’s argument that Forest
Service salaries should not be included in the loss calculation,
and thus reduced Warr’s total offense level from 25 to 23.
Next, the district court rejected Warr’s argument that fire
suppression costs should not be included in the loss calcula-
tion because those costs were not reasonably foreseeable. The
district court reasoned:
[I]f there was one fire that [Warr] set, I might think
[Warr’s argument] had weight. If there was two, pos-
sibly. But when there’s 20? And [Warr] said he was
hoping to set one that got out of control. Surely it’s
reasonable to believe that by virtue of his conduct,
he was trying to create a problem. And he wants
something to get out of control, it would seem to me
that it is reasonably foreseeable that if you set a fire
in extreme circumstances and continue to set fires
when you see the fire engines and the fire crews
going out, with a hope expressed that it would be
one that would get away, that what he was really
hoping for was something that was quite expensive
8026 UNITED STATES v. WARR
and costly in terms of whatever gratification he was
getting out of it.
I don’t think it’s unreasonable to say that if you set
20 fires in the state and national forests and it costs
however many millions of dollars to clean them up
that that should be a foreseeable consequence, the
actual loss.
The district court concluded that the sentencing guidelines
range for an offender with a total offense level of 23 and a
criminal history category of IV is 70 to 87 months.
At the sentencing hearing, and after calculating the appro-
priate sentencing guidelines range, the district court heard tes-
timony from Dr. Scolatti. Dr. Scolatti reaffirmed his diagnosis
of pyromania, “a psychotic disorder not otherwise named,”
and marijuana and alcohol abuse. He testified that Warr’s dis-
orders are treatable and that Warr “definitely” has the “desire
to change.” In Dr. Scolatti’s view, “the best place for [Warr]
would be a federal medical facility.” Dr. Scolatti opined that
Warr could complete his treatment within three years, but
would require “follow-up” therapy afterwards. On cross-
examination, Dr. Scolatti stated that, in Warr’s current condi-
tion, he poses a “significant danger” to the community, and
would continue to do so if he was unable to successfully com-
plete treatment.
After hearing testimony from Warr’s mother and Warr him-
self and hearing arguments from defense counsel and the gov-
ernment, the district court discussed the relevant factors
enumerated in 18 U.S.C. § 3553(a).4 After reading those fac-
4
18 U.S.C. § 3553(a) requires consideration of the following factors
when determining the appropriate sentence:
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
UNITED STATES v. WARR 8027
tors aloud, the district court began by expressing its “grave
concerns about the dangerousness of Jonah Warr and [its]
concern[ ] about the factors of public safety and the notion of
his likely recidivism coupled with the dangerous characteris-
tics that he possesses.”
In considering Warr’s recidivism, the district court appears
to have relied on a study done by the federal Bureau of Pris-
ons measuring how age and criminal history category affect
an offender’s likelihood of recidivism. As the district court
described that study, “people with [Warr’s] criminal history
category, who commit the offenses like those others that he
was involved in, have basically a two-out-of-three chance of
recidivating.” The district court also noted that, according to
the study, recidivism rates drop markedly when a person
reaches the age of “35 or 40,” a fact that, in the district court’s
view, militated in favor of a longer term of incarceration. This
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defen-
dant; and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional treat-
ment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established
for—
(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the guidelines
—
....
8028 UNITED STATES v. WARR
study is not part of the record, nor did the district court notify
Warr of its intention to rely on the study.
The district court conducted an in-depth examination of
“the characteristics of the offender.” It noted that when Warr
was released from his most recent stint in prison and returned
home, he could have sought help for his psychological prob-
lems, but chose not to do so. “Instead, he engaged in this
insidious pyromania, setting fires at great risk to everybody
who lived in the area.” The court was troubled by the fact that
although Warr claimed not to have intended to harm anyone,
Warr spoke of the “thrill” and “adrenaline rushes” he felt
when he started fires.
The district court also discussed Dr. Scolatti’s diagnoses,
and noted that Warr was a borderline psychopath, and that Dr.
Scolatti had “not ruled out anti-social personality disorder. . . .
He’s dangerous. He’s dangerous to himself and the communi-
ty.” Based on this discussion, the district court stated that
Warr’s “history and characteristics . . . would justify a sen-
tence of 180 months.”
Also considered by the district court was Warr’s manner
when testifying. According to the court, Warr appeared to
have a “flat affect,” which underscored his “lack of emotional
processing.”
Next, the district court turned to “the need for the sentence
imposed to reflect the seriousness of the offense and to pro-
mote a respect for the law and to provide just punishment.”
In analyzing this factor, the district court noted that Warr had
caused almost $7 million in damage, destroyed part of a for-
est, jeopardized many people’s lives, impacted the function-
ing of a federal agency, and drained federal resources. Based
on this “very, very serious offense,” the district court did not
believe a within-guidelines sentence would be sufficient.
The district court also discussed the role of deterrence —
both general and specific — in fashioning an appropriate sen-
UNITED STATES v. WARR 8029
tence. On the issue of general deterrence, although the district
court questioned whether a harsher sentence would deter oth-
ers from criminal conduct, it concluded that “I’m not certain
if there isn’t some general deterrence if Jonah Micah Warr
gets a significant sentence. And I believe that would justify a
sentence, perhaps, in the range of 180 months.”
The district court classified as “very important” the need
for specific deterrence, that is, “the need to protect the public
from further crimes by Jonah Micah Warr.” “This young man
has been involved in incredibly dangerous activities and the
offenses of conviction were catastrophic to the community.
And as I said, we’re all fortunate that he isn’t here on some
sort of homicide charges because of the fires he set.” In the
district court’s view, the sentence suggested by the guidelines
would not provide the public with adequate protection.
The district court also reasoned that a longer sentence
would provide Warr “with the needed educational, vocational,
medical care and other correctional treatment.”
The district court pondered whether to impose a 180-month
sentence, but decided against it because a lower sentence
would sufficiently accomplish the goals of protecting the pub-
lic and helping Warr deal with his psychological problems.
The district court admitted, “I simply have not dealt with a
case of this nature. I’ve not dealt with a person who’s had
Jonah Micah Warr’s psychological background, who is a bor-
derline psychopath pyromaniac who has been involved in the
extent of violence he’s been involved in, who is impulsive,
who has no risk aversion or who has set 20 fires in state and
national forests.” The district court then imposed a sentence
of 120 months.5 Warr filed a timely appeal.
5
The statutory maximum punishment was forty-five years (five years
for each of nine arson counts).
8030 UNITED STATES v. WARR
II
Our review of Warr’s sentence is a two-step inquiry. First,
we consider “whether the district court properly calculated the
applicable range under the advisory guidelines.” United States
v. Barsumyan, 517 F.3d 1154, 1157 (9th Cir. 2008) (citing
United States v. Mohamed, 459 F.3d 979, 985 (9th Cir.
2006)); United States v. Carty, 520 F.3d 984, 991 (9th Cir.
2008). Second, we consider “challenges to the reasonableness
of the overall sentence in light of all the 18 U.S.C. § 3553(a)
factors, including the applicable Guidelines range.” Barsu-
myan, 517 F.3d at 1157 (citing United States v. Cantrell, 433
F.3d 1269, 1280 (9th Cir. 2006)); Carty, 520 F.3d at 991.
A
1
We review de novo the district court’s calculation of the
advisory sentencing guidelines range. Cantrell, 433 F.3d at
1279. The district court’s factual findings are reviewed for
clear error, and its application of the guidelines to the facts is
reviewed for abuse of discretion. Mohamed, 459 F.3d at 985;
Cantrell, 433 F.3d at 1279.
2
Warr argues that the district court erred in determining the
advisory sentencing guidelines range. In particular, he argues
that the district court, when considering the “loss” caused by
Warr’s crimes, should not have included fire suppression
costs. According to Warr, those costs were not a reasonably
foreseeable pecuniary harm as a result of his actions.6
6
If the district court had excluded fire suppression costs, the total loss
would have been less than $2.5 million, and Warr’s total offense level
would have been reduced by four levels and yielded an advisory sentenc-
ing guidelines range of 46 to 57 months.
UNITED STATES v. WARR 8031
[1] In 2001, the Sentencing Commission amended the defi-
nition of “loss” under § 2B1.1 to “the reasonably foreseeable
pecuniary harm that resulted from the offense.” USSG
§ 2B1.1, Application Note 3(A)(I) (Nov. 2006). “Reasonably
foreseeable pecuniary harm” is “pecuniary harm that the
defendant knew, or under the circumstances, reasonably
should have known, was a potential result of the offense.” Id.
No circuit has yet addressed whether, in light of the 2001
amendment to § 2B1.1, fire suppression costs may be
included in the loss calculation.7
[2] The district court did not err in concluding that the cost
of fire suppression was a reasonably foreseeable pecuniary
harm of Warr’s actions. Warr started forest fires in the sum-
mer, sometimes in high winds, with the intention of causing
widespread destruction. He told investigators that he wanted
to “do something big,” and that he derived a “thrill” from
watching his fires spread. Warr told them that it made him
angry when firemen put out one fire, so he started more fires,
hoping that “one of them would get big.” From this evidence,
the district court properly concluded that Warr knew or
should have known that a “potential result” of his actions was
the expenditure of funds to put the fires out.
Warr argues that even assuming some suppression costs
were foreseeable, he neither foresaw nor reasonably could
have foreseen the magnitude of the fire suppression effort. Put
another way, although he may have intended to light a large
fire, it was not foreseeable that the fire would have necessi-
tated a multi-million dollar response.
7
Before the 2001 amendment, “loss” was defined as “the value of the
property taken, damaged, or destroyed.” USSG § 2B1.1, cmt. (n. 2)
(2000); see United States v. Newman, 6 F.3d 623, 630 (9th Cir. 1993). In
Newman, we held that “loss” did not encompass “consequential losses. If
the Sentencing Commission had intended to include consequential losses,
it could have included them in the definition of loss.” Id. In light of the
2001 amendment, that aspect of Newman is no longer good law.
8032 UNITED STATES v. WARR
We find this argument unavailing. There is nothing in the
record to challenge the district court’s common sense conclu-
sion that the damage Warr caused was an entirely foreseeable
consequence of his actions. At the sentencing hearing, Warr
was permitted to call witnesses and to testify on his own
behalf. If any link in the chain of events that occurred after
Warr lit his fires was not a reasonably foreseeable conse-
quence of the event that came before it, Warr was at liberty
to elicit testimony on this subject, but did not do so. As such,
the district court was presented with what to us appears to be
an unambiguous record: Warr intended to light a large fire
that would burn out of control; he took reasonable steps to
achieve that goal by lighting numerous fires in forests, during
the summer, in high winds, and in dried grass. That his suc-
cess in causing such a massive conflagration may have been
unlikely does not necessarily make it unforeseeable.
[3] Warr also contends that the district court placed undue
emphasis on the fact that Warr was a “trained firefighter” in
South Dakota and was therefore more likely to know the con-
sequences of his actions. We disagree. It does not appear that
the district court placed any emphasis, much less undue
emphasis, on this experience. The Presentence Report men-
tions Warr’s brief training as a firefighter, but the district
court did not mention it during its discussion on foreseea-
bility. To the extent that the district court did place some
emphasis on this experience, it was not improper to do so. It
is reasonable to infer that a person with knowledge of how
fires burn, how they spread, and how they are extinguished is
more likely to succeed in lighting a large fire, if, like Warr,
it was his intention to do so.
B
1
The district court did not err in making its advisory guide-
lines calculations. “Our review of the district court’s sentence
UNITED STATES v. WARR 8033
is for ‘reasonableness,’ which ‘merely asks whether the trial
court abused its discretion.’ ” Barsumyan, 517 F.3d at 1158(quoting Rita v. United States, 127 S. Ct. 2456, 2465 (2007));
see Gall v. United States, 128 S. Ct. 586, 591 (2007) (holding
that “courts of appeals must review all sentences — whether
inside, just outside, or significantly outside the Guidelines
range — under a deferential abuse-of-discretion standard”);
Carty, 520 F.3d at 993. As we have noted, “[t]his review
requires deference to the district court’s decision, and should
not resemble a de novo review.” United States v. Cherer, 513
F.3d 1150, 1159-60 (9th Cir. 2008) (citing Gall, 128 S. Ct. at
600).
2
Warr argues that the sentence he received was unreasonable
because the district court did not properly weigh the § 3553(a)
factors and thus arrived at an unreasonable sentence. In partic-
ular, Warr argues that “the District Court unreasonably found
that Warr’s history and characteristics, combined with the
need to protect society, warranted a sentence in excess of the
Guidelines.” We disagree.
[4] Where, as here, a district court “decides that an outside-
Guidelines sentence is warranted, he must consider the extent
of the deviation and ensure that the justification is sufficiently
compelling to support the degree of the variance.” Gall, 128
S. Ct. at 597. “This does not mean that the district court’s dis-
cretion is constrained by distance alone. Rather, the extent of
the difference is simply a relevant consideration.” Carty, 520
F.3d at 991. “[A] major departure should be supported by a
more significant justification than a minor one.” Id. (quoting
Gall, 128 S. Ct. at 597). “Once the sentence is selected, the
district court must explain it sufficiently to permit meaningful
appellate review.” Id.[5] Here, the district court’s discussion of the § 3553(a)
factors was a model of thoroughness and careful deliberation.
8034 UNITED STATES v. WARR
The district court discussed each factor extensively, stated the
relative importance it accorded to each factor, grappled with
a variety of possible sentences, and arrived at a sentence that
it felt best served the objectives set forth in 18 U.S.C. § 3553.
[6] First, the district court expressed deep concern about
Warr’s background, which, the district court concluded, mili-
tated strongly in favor of an above-guidelines sentence. In
particular, the district court noted that Warr is a pyromaniac,
a borderline psychotic, and may suffer from an anti-social
personality disorder. These conditions are exacerbated by his
abuse of marijuana and alcohol. He has minimal risk aversion,
suffers from impulse control problems, and derives pleasure
from starting fires and committing other crimes. Although
Warr professed interest in getting help for his psychological
problems, he did not do so when he had the opportunity.
Instead, after his release from prison, he went on a rampage
and started multiple fires which led to the instant convictions.
Moreover, at the time of sentencing, Warr was only twenty
years old, an age that, the district court noted, suggested Warr
might reoffend if given the opportunity after a shorter prison
term.
[7] The district court also discussed the circumstances of
Warr’s crimes which, in the district court’s view, were
strongly suggestive of an above-guidelines sentence. It is
beyond dispute that Warr acted with the intention to cause
widespread destruction, and he succeeded. His conduct
occurred during fire season when conditions were optimal to
set fires which could easily rage out of control. He started
fires during the summer, in high wind, in dried grass. He
caused $7 million in damage, destroyed part of the national
forest lands, and placed many peoples’ lives in danger.
[8] Warr’s personal characteristics, together with the seri-
ousness of his crimes strongly suggested to the district court
that Warr posed a significant danger to society and would
continue to do so for years to come. In the district court’s
UNITED STATES v. WARR 8035
view, a sentence within the guidelines range would not pro-
vide sufficient protection to the public, nor would it allow
Warr enough opportunity for educational training, medical
care and other correctional treatment. A lesser sentence would
also not provide sufficient deterrence to others contemplating
similar crimes.
In addition to considering and rejecting a sentence within
the guidelines, as well as Dr. Scolatti’s recommendation to
sentence Warr to three years in a federal medical facility, the
district court also considered and rejected stiffer sentences.
See Carty, 520 F.3d at 991 (“The overarching statutory charge
for a district court is to ‘impose a sentence sufficient, but not
greater than necessary’ to reflect [the principles stated in 18
U.S.C. § 3553(a) and (a)(2)].”). The district court noted that
based on the seriousness of Warr’s crimes and his psychologi-
cal makeup, a 180-month sentence would likely be justified.
Ultimately, however, the district court felt that the objectives
of the sentencing statute could be satisfied with a lesser, 120-
month sentence.
The district court’s final comments before imposing sen-
tence illustrate the extent to which it struggled to find a fair
and just sentence: “I simply have not dealt with a case of this
nature. I’ve not dealt with a person who’s had Jonah Micah
Warr’s psychological background, who is a borderline psy-
chopath pyromaniac who has been involved in the extent of
violence he’s been involved in, who is impulsive, who has no
risk aversion or who has set 20 fires in state and national for-
ests.”
[9] The district court’s discussion of the § 3553(a) factors
was exemplary, and we cannot say that the sentence it ulti-
mately imposed was unreasonable. See Gall, 128 S. Ct. at
594; Mohamed, 459 F.3d at 989 (holding that a sixty-month
sentence following a conviction for making bomb threats was
reasonable, despite a guidelines range of twelve to eighteen
months, where the district court thoroughly discussed the
8036 UNITED STATES v. WARR
§ 3553(a) factors and the sentence was only half the statutory
maximum).
[10] Warr also argues that he received an unreasonable sen-
tence because the district court improperly characterized Dr.
Scolatti’s testimony when reaching the conclusion that Warr
would continue to pose a danger to society. Not so. The dis-
trict court did not mischaracterize Dr. Scolatti’s testimony,
but disagreed with some parts of it and agreed with others.
That was within its province as the fact-finder at sentencing.
The district court agreed with Dr. Scolatti’s diagnosis of Warr
and his assessment that Warr posed a danger to society, and
would continue to do so if he did not successfully complete
treatment. The district court disagreed that the best course of
action would be to impose a three-year sentence in a federal
medical facility. The district court’s explanation for imposing
a longer sentence was well-reasoned and justified.
III
Next, Warr takes issue with the district court’s apparent
reliance on the Bureau of Prisons’ study. According to Warr,
this reliance was problematic because the study was not part
of the record, it did not take into account mental illness, and
it was not provided to the parties in advance of the sentencing
hearing.
The legal basis of Warr’s argument is unclear from his
brief. The argument appears in a section of his brief challeng-
ing the reasonableness of his sentence, but our cases have
analyzed similar arguments under either the Fifth Amend-
ment’s Due Process Clause or Federal Rule of Criminal Pro-
cedure 32. See United States v. Baldrich, 471 F.3d 1110, 1113
(9th Cir. 2006) (analyzing under the Fifth Amendment’s Due
Process Clause and Rule 32 the district court’s failure to dis-
close to the defendant prior to sentencing the probation offi-
cer’s confidential sentencing recommendation). Regardless of
the legal basis, Warr’s argument is without merit.
UNITED STATES v. WARR 8037
Because Warr did not object to the use of the study at the
sentencing hearing, we review the district court’s reliance on
the study for plain error. See United States v. Nappi, 243 F.3d
758, 760 (3d Cir. 2001). “A plain error is a highly prejudicial
error affecting substantial rights.” United States v. Mal-
donado, 215 F.3d 1046, 1051 (9th Cir. 2000) (citations omit-
ted). “We should correct a plain error only if it ‘seriously
affects the fairness, integrity or public reputation of judicial
proceedings.’ ” United States v. Ortiz-Lopez, 24 F.3d 53, 55
(9th Cir. 1994) (quoting United States v. Olano, 507 U.S. 725,
736 (1993)).
[11] Federal Rule of Criminal Procedure 32(i)(1)(C)
requires that, at sentencing, the district court provide defense
counsel the opportunity “to comment on the probation offi-
cer’s determination [in the Presentence Report] and other
matters related to an appropriate sentence.” (emphasis
added.) We have interpreted Rule 32 “to require the disclo-
sure of all relevant factual information to the defendant for
adversarial testing.” Baldrich, 471 F.3d at 1114.
In the Supreme Court’s most recent pronouncement in this
area, the Court said:
Sound practice dictates that judges in all cases
should make sure that the information provided to
the parties in advance of the hearing, and in the hear-
ing itself, has given them an adequate opportunity to
confront and debate the relevant issues. We recog-
nize that there will be some cases in which the fac-
tual basis for a particular sentence will come as a
surprise to a defendant or the Government. The more
appropriate response to such a problem is not to
extend the reach of Rule 32(h)’s notice requirement
categorically, but rather for a district judge to con-
sider granting a continuance when a party has a
legitimate basis for claiming that the surprise was
prejudicial.
8038 UNITED STATES v. WARR
Irizarry, 2008 WL 2369164, at *5; see Burns v. United States,
501 U.S. 129, 134 (1991) (Rule 32 “provides for focused,
adversarial development of the factual and legal issues rele-
vant to determining the appropriate Guidelines sentence”).
[12] Here, it can hardly be disputed that the Bureau of Pris-
ons’ study amounted to relevant factual information and that
the district court relied on it when sentencing Warr. One of
the reasons the district court sentenced Warr to a term well
beyond the guidelines range was to protect the public from
such a young, dangerous, and serial offender. A shorter term
would have, in the district court’s view, permitted his release
at an age when, statistically speaking, there was a significant
possibility of recidivism. Because the district court relied on
this study, it should have notified Warr of it before the sen-
tencing hearing.8 See Nappi, 243 F.3d at 764 (holding that
“where, as here, counsel are faced with having to review and
address the contents of an additional document on which the
Court intends to rely at sentencing, a meaningful opportunity
to comment requires the Court, in accordance with Rule
32(c)(1), to provide a copy of the document to counsel for the
defendant . . . within a sufficient time prior to the sentencing
hearing to afford them a meaningful opportunity to comment
on it at sentencing and, depending on the document, prepare
a response or contest it”) (citations omitted).
Warr must also show that the district court’s reliance on the
study caused him significant prejudice. Maldonado, 215 F.3d
at 1051. He argues that, if he had known about the study, he
may have been able to challenge its conclusions by, for exam-
ple, disputing its premises, taking issue with its statistical
methodology, or coming forward with other studies.
8
The government argues that reliance on the study was not improper
because the district court could have taken judicial notice of it, perhaps as
a learned treatise. This argument misses the mark. The issue is not whether
the district court, if it had provided proper notice to Warr, could have
relied on the study, but whether the district court erred by failing to pro-
vide Warr with any notice whatsoever before relying on the study.
UNITED STATES v. WARR 8039
[13] We reject Warr’s argument and conclude that Warr
was not prejudiced by the district court’s reliance on the
study. The district court relied on the study solely for the
well-known, common sense proposition that younger offend-
ers are more likely to recidivate. See, e.g., United States v.
Seljan, 497 F.3d 1035, 1047 (9th Cir. 2007) (finding a sen-
tence to be reasonable because, among other considerations,
the district court acknowledged that the defendant’s advanced
age reduced the likelihood of recidivism); United States v.
Kriesel, 508 F.3d 941, 950 (9th Cir. 2007) (noting that “recid-
ivism rates vary with factors like the offender’s age”) (quot-
ing Banks v. United States, 490 F.3d 1178, 1191 (10th Cir.
2007)).
[14] Even Dr. Scolatti acknowledged the general truth of
this empirical evidence during his sentencing testimony when
the district court asked him about the findings of the Bureau
of Prisons’ study. Based on our reading of the sentencing
transcript, and in particular, the thoroughness with which the
district court discussed all of the relevant § 3553(a) factors,
we have no doubt that, even without the study, the district
court would have imposed the same sentence. Thus, although
the district court should not have cited the study without first
notifying the parties, its failure to do so does not amount to
plain error that would require reversal of Warr’s sentence.
IV
The district court did not err in its calculation of the advi-
sory sentencing guidelines range, nor did the district court
impose an unreasonable sentence. Although the district court
should not have relied on the Bureau of Prisons’ study at sen-
tencing without notifying Warr in advance, the failure to pro-
vide advance notice was not plain error.
AFFIRMED.