United States v. Edwards ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellant, No. 08-30055
v.  D.C. No.
DUNCAN WILLIAM EDWARDS, CR-03-00058-DWM
Defendant-Appellee.

UNITED STATES OF AMERICA, 
Plaintiff-Appellant, No. 08-30056
v.  D.C. No.
DUNCAN WILLIAM EDWARDS, CR-04-00009-DWM
Defendant-Appellee.

UNITED STATES OF AMERICA,  No. 08-30059
Plaintiff-Appellee, D.C. Nos.
v. 9:04-cr-00009-
DUNCAN WILLIAM EDWARDS,  DWM-1
9:03-cr-00058-
Defendant-Appellant. DWM-1
 OPINION
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
August 4, 2009—Seattle, Washington
Filed February 16, 2010
2447
2448 UNITED STATES v. EDWARDS
Before: Harry Pregerson, Carlos T. Bea and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Pregerson;
Partial Concurrence and Partial Dissent by Judge Bea
UNITED STATES v. EDWARDS 2451
COUNSEL
William Mercer, United States Attorney, Billings, Montana,
for the appellant-cross-appellee.
John Rhodes, Assistant Federal Defender, Missoula, Montana,
for the appellee-cross-appellant.
OPINION
PREGERSON, Circuit Judge:
In 2004, Duncan W. Edwards pleaded guilty to one count
of bankruptcy fraud in violation of 18 U.S.C. § 152(9) and
one count of making a false statement to a bank in violation
of 18 U.S.C. § 1014. Although the advisory Sentencing
Guidelines range called for twenty-seven to thirty-three
months’ incarceration, the district court sentenced Edwards to
five years’ probation (the maximum term of probation), seven
months of which was to be served under house arrest, a
$5,000 fine, and a special assessment of $100 on each count
of conviction. After the Government appealed and the case
was remanded to the district court, the district court imposed
the same sentence. After a second appeal and a second
remand to the district court, the district court imposed the
same sentence of probation but added a restitution order in the
amount of $102,696.07. For the third time, the Government
challenges the district court’s sentence as substantively unrea-
2452 UNITED STATES v. EDWARDS
sonable. Edwards cross-appeals from the district court’s order
of restitution.
I. BACKGROUND
Duncan W. Edwards is no stranger to the criminal justice
system. In the early 1980s, Edwards made misrepresentations
to banks in Arizona that allowed him to obtain hundreds of
thousands of dollars worth of loans. Edwards admitted that he
made misrepresentations to obtain the loans and pleaded no
contest to felony theft charges in Arizona state court on Octo-
ber 21, 1991. The state court ordered Edwards to pay restitu-
tion of $3,057,916.01 to the FDIC, and to serve five years’
probation. The state court later extended probation until July
of 2000.
After his Arizona conviction, Edwards relocated to Mon-
tana. In early 1998, while still on probation for his Arizona
felony, he filled out a loan application in Montana and indi-
cated that he had significant assets. He did not disclose the $3
million FDIC obligation arising from his Arizona conviction.
On December 15, 1998, Edwards filed for bankruptcy person-
ally and for his company, Adventure Motorsports. Subse-
quently, a Chapter 7 bankruptcy trustee was appointed.
Contrary to Chapter 7 disclosure requirements, Edwards did
not disclose all his assets and liabilities, including the $3 mil-
lion obligation to the FDIC arising out of his Arizona state
conviction, an expected tax return of $28,000, and other assets
together worth nearly $14,000.1
1
Edwards initially filed for Chapter 13 bankruptcy, but the matter was
converted from a Chapter 13 to a Chapter 7 bankruptcy. A Chapter 13
bankruptcy leaves the individual debtor in control of its assets but the
debtor must use income earned during Chapter 13 to pay off creditors. 1
Collier on Bankruptcy ¶ 1.03[6] (Alan N. Resnik & Henry J. Sommer eds.,
15th ed. rev.). In a Chapter 7 bankruptcy, the debtor’s assets are liquidated
and distributed to creditors. There is no repayment plan. In re Coleman,
560 F.3d 1000, 1003 n.2 (9th Cir. 2009).
UNITED STATES v. EDWARDS 2453
In addition to failing to list these assets and liabilities,
Edwards also initially did not list certain stock options owned
by a corporation of which he owned 100% of the shares.
Edwards amended his Chapter 7 bankruptcy filings to show
that the corporation owned the stock options. Although he
earlier had valued those stock options at $189,000 on his loan
application, he valued the options at $0 in his bankruptcy fil-
ings.
During bankruptcy proceedings, the Chapter 7 Trustee
noticed that the stock’s price had jumped. By the time the
Trustee was able to intervene, Edwards had exercised the bulk
of the stock options, receiving net proceeds of $445,000. The
Trustee was able to recover approximately $417,000 of the
proceeds.
On December 20, 2000, a Bankruptcy Judge approved a
Settlement and Release Agreement between Edwards, the
Bankruptcy Trustee, and several of Edwards’s victims.
Among other provisions, the Settlement Agreement provided
that “[t]his Consent shall not be used or construed as an
admission of liability by any party hereto for any purpose,
except as otherwise expressly provided herein.” Each party to
the Settlement Agreement agreed to release its claims against
Edwards.
Edwards was criminally indicted in December 2003. In
May 2004, he pleaded guilty to one count of bankruptcy fraud
in violation of 18 U.S.C. § 152(9) and one count of making
a false statement to a bank in violation of 18 U.S.C. § 1014.
On September 10, 2004, the district court sentenced
Edwards to concurrent sentences of probation for five years,
seven months to be served under house arrest, a $5,000 fine,
and a $100 special assessment on each count of conviction.
The Government appealed. While the case was pending
before our court, the United States Supreme Court decided
United States v. Booker, 543 U.S. 220 (2005), and this court
2454 UNITED STATES v. EDWARDS
decided United States v. Ameline, 409 F.3d 1073 (9th Cir.
2005) (en banc) (“Ameline II”).
In accordance with Ameline II, a divided panel of this court
reversed and remanded Edwards’s case “for the district court
to determine whether it would have imposed a different sen-
tence had it understood that the Guidelines were advisory.”
United States v. Edwards, 158 F. App’x 930, 931-32 (9th Cir.
2005) (unpublished) (citing Ameline II, 409 F.3d 1073).
On February 9, 2006, in a short order, the district court con-
cluded that it would not have imposed a different sentence
had it known the Sentencing Guidelines were advisory, and
reimposed the same sentence as it had previously. The district
court did not request the views of the parties in writing or
convene a hearing. The Government again appealed and chal-
lenged the reasonableness of the sentence. This court again
reversed and remanded in a memorandum disposition because
it was unable to assess the reasonableness of Edwards’s sen-
tence based on the record before it. United States v. Edwards,
Nos. 06-30163, 06-30165, 2007 U.S. App. LEXIS 20335, (9th
Cir. Aug. 22, 2007) (unpublished). The Edwards II court
vacated Edwards’s sentence and remanded for “full resentenc-
ing on an open record.” Id. at *2 (citing United States v. Mat-
thews, 278 F.3d 880, 885-86 (9th Cir. 2002) (en banc)).
On remand, the United States Probation Office prepared a
new pre-sentence report, and the parties filed new sentencing
memoranda. On January 17, 2007, the district judge held a
sentencing hearing.
The district court first began by observing that the applica-
ble advisory Sentencing Guidelines range called for a period
of incarceration between twenty-seven to thirty-three months.
The court then turned to each of the factors in 18 U.S.C.
§ 3553(a).
In accordance with § 3553(a)(1), considering the “nature
and circumstances of the offense and the history of the char-
UNITED STATES v. EDWARDS 2455
acteristics of [Edwards],” the district judge observed that
Edwards appeared to be a much changed individual “than the
person who was somehow engaged in illegal conduct in Ari-
zona.” The district judge noted that the advisory sentencing
range had been calculated based on the loss intended by
Edwards rather than the actual loss. The district judge was of
the view that the Guidelines range, which was calculated
using the intended loss, overstated the circumstances of
Edwards’s case. While acknowledging Edwards’s felony con-
viction in Arizona, the district court was of the opinion that
Edwards would not engage in similar conduct in the future
and took special note of Edwards’s sincerity during allocu-
tion.
The district court found that a probationary sentence and a
requirement that Edwards make restitution payments satisfied
the statutory requirement that the court “impose a sentence
sufficient, but not greater than necessary.” 18 U.S.C.
§ 3553(a).
The district court also considered the testimony regarding
Edwards’s conduct over the five years prior to the resentenc-
ing hearing, and was of the opinion that “there’s nothing to be
gained based on the circumstances of the offense and his his-
tory and characteristics by incarcerating him.”
Considering the need for the sentence “to reflect the seri-
ousness of the offense, to promote respect for the law, and to
provide just punishment for the offense,” 18 U.S.C.
§ 3553(a)(2)(A), the district court acknowledged that
Edwards’s crimes were “extremely serious,” but observed that
Edwards’s “changes in his life prior to any kind of indictment
indicate a respect for the law.”
With regard to providing “adequate deterrence to criminal
conduct,” 18 U.S.C. § 3553(a)(2)(B), the district judge con-
cluded that “general deterrence” was not a significant factor
in this case, although he conceded that general deterrence was
2456 UNITED STATES v. EDWARDS
important in white collar crime cases. The district court judge
reasoned that the fact of Edwards’s felony conviction and the
conditions of probation constituted sufficient specific deter-
rence to prevent Edwards from engaging in similar conduct in
the future. In addition, the district judge recognized that resti-
tution serves as a deterrent, and that “[t]he term of probation
imposed will enable [Edwards] to continue working in order
to pay the significant amount of restitution he ow[e]s.”
The district court next considered whether the sentence
would “protect the public from further crimes of the defen-
dant.” 18 U.S.C. § 3553(a)(2)(C). The district judge stated
that “look[ing] at the record with [Edwards] . . . I’m satisfied
that somebody who committed these offenses . . . roughly
nine years ago, and has lived the life that he has lived in the
interim despite all the things that have gone on, I don’t think
there’s a very good likelihood that he would engage in this
kind of business in the future . . . .”
The district court evaluated the need for the sentence
imposed to “provide the defendant with needed educational or
vocational training, medical care, or other correctional treat-
ment in the most effective manner.” 18 U.S.C.
§ 3553(a)(2)(D). At the time of resentencing, Edwards was
sixty-three years old and living with diabetes and related med-
ical complications. Considering the diabetes and related medi-
cal complications, the district court reasoned that imprisoning
Edwards would simply pass the cost of medical care on to
taxpayers. While the district court agreed with the Govern-
ment that the Bureau of Prisons was capable of providing for
Edwards’s medical care, it found that a sentence of probation
would satisfy the requirement of providing needed care in the
most effective manner. 18 U.S.C. § 3553(a)(2)(D).
The district court sentenced Edwards to five years’ proba-
tion on both counts, to be served concurrently.2 Unlike its pre-
2
In addition to the standard conditions of probation, Edwards’s proba-
tion contained special conditions of supervision. Among other things, the
UNITED STATES v. EDWARDS 2457
vious two sentences, however, the district court ordered
Edwards to pay $102,696.07 in restitution. Edwards appeals
from the district court’s order of restitution. The Government
once again challenges the substantive reasonableness of the
sentence. We have jurisdiction under 18 U.S.C. § 3742(b)(3)
and 28 U.S.C. § 1291.
II. DISCUSSION
A. The District Court’s Criminal Restitution Order
We first address Edwards’s argument that the district court
was collaterally estopped from imposing restitution in the
amount of $102,696.07. Edwards contends that the district
court could not impose a restitution order because compensa-
tion to Edwards’s victims had already been determined
through the bankruptcy settlement agreement. We review the
legality of an order of restitution de novo. United States v.
Stoddard, 150 F.3d 1140, 1147 (9th Cir. 1998) (citing United
States v. Rutgard, 116 F.3d 1270, 1294 (9th Cir. 1997)). We
also review de novo the application of collateral estoppel.
McQuillion v. Schwarzenegger, 369 F.3d 1091, 1096 (9th Cir.
2004) (citing United States v. Real Prop. Located at 22 Santa
Barbara Drive, 264 F.3d 860, 868 (9th Cir. 2001)).
[1] We have explained that:
special conditions required Edwards to obtain his probation officer’s
approval before: incurring new lines of credit; filing any bankruptcy peti-
tions; engaging in any type of self-employment or acting as a consultant,
whether paid or not, for any business, corporation, or trust; engaging in
any type of employment involving land development or construction;
opening or obtaining signature authority over any checking, savings, or
credit accounts; and any employment that “would give him access to
money, bank or investment accounts, real or personal property, or inven-
tory of any person or business entity.” The special conditions additionally
required Edwards to provide the probation officer with any requested
financial information.
2458 UNITED STATES v. EDWARDS
collateral estoppel applies only where it is estab-
lished that (1) the issue necessarily decided at the
previous proceeding is identical to the one which is
sought to be relitigated; (2) the first proceeding
ended with a final judgment on the merits; and (3)
the party against whom collateral estoppel is asserted
was a party or in privity with a party at the first pro-
ceeding.
Hydranautics v. FilmTec Corp., 204 F.3d 880, 885 (9th Cir.
2000) (internal quotations omitted). We have also stated that
“[t]he party asserting preclusion bears the burden of showing
with clarity and certainty what was determined by the prior
judgment.” Offshore Sportswear, Inc. v. Vuarnet Int’l, B.V.,
114 F.3d 848, 850 (9th Cir. 1997) (internal citation omitted).
Edwards’s argument that collateral estoppel applies to prevent
the district court from ordering restitution fails on the first
factor, which considers whether the issue necessarily decided
at the previous proceeding is identical to the one sought to be
relitigated.
Edwards argues that the bankruptcy settlement resolved the
issue of compensation to his victims and thus precludes reliti-
gation of that issue in the subsequent criminal proceedings.
[2] Although compensation to Edwards’s victims was the
general issue in the bankruptcy settlement, the issue is not
identical to the issue in the criminal proceedings. The legal
principles underlying the bankruptcy settlement and the later
criminal restitution order differ greatly.
[3] “The purpose of a compromise agreement is to allow
the trustee and the creditors to avoid the expenses and burdens
associated with litigating sharply contested and dubious
claims.” In re A&C Props., 784 F.2d 1377, 1380-81 (9th Cir.
1986). Before approving a settlement agreement, the bank-
ruptcy court is charged with considering the “fairness, reason-
ableness, and adequacy” of the agreement. Id. at 1381. The
UNITED STATES v. EDWARDS 2459
bankruptcy court must consider a number of factors in making
this determination:
(a) The probability of success in the litigation; (b)
the difficulties, if any, to be encountered in the mat-
ter of collection; (c) the complexity of the litigation
involved, and the expense, inconvenience and delay
necessarily attending it; (d) the paramount interest of
the creditors and a proper deference to their reason-
able views in the premises.
Id. (quoting In re Flight Transp. Corp. Sec. Litig., 730 F.2d
1128, 1135 (8th Cir. 1984)). In this case, the Settlement
Agreement expressly states that the parties entered into the
agreement “for the purpose of terminating the disputes
between them” and could not be used as an admission of lia-
bility by any party.
The principles guiding the bankruptcy court’s assessment
and approval of the voluntary Settlement Agreement contrasts
sharply with the district court’s duty to impose restitution
under the Mandatory Victims Restitution Act (“MVRA”),
codified at 18 U.S.C. §§ 3663A, 3664. The MVRA requires
the district court, in sentencing a defendant convicted of cer-
tain crimes,3 to order restitution to the defendant’s victims. 18
U.S.C. § 3663A(a)(1). Further, the district court “shall order
restitution to each victim in the full amount of each victim’s
losses . . . without consideration of the economic circum-
stances of the defendant.” 18 U.S.C. § 3664(f)(1)(A). “In no
case shall the fact that a victim has received or is entitled to
receive compensation with respect to a loss from insurance or
any other source be considered in determining the amount of
restitution.” 18 U.S.C. § 3664(f)(1)(B) (emphasis added).4
3
The MVRA requires restitution to victims of “an offense of property
under this title . . . including any offense committed by fraud or deceit.”
18 U.S.C. § 3663A(c)(1)(A)(ii).
4
The settlement did not compensate Edwards’s victims in the full
amount they lost at his hands, and Edwards does not argue that the restitu-
2460 UNITED STATES v. EDWARDS
Victims “may at any time assign the victim’s interest in resti-
tution payments to the Crime Victims Fund . . . without in any
way impairing the obligation of the defendant to make such
payments.” 18 U.S.C. § 3664(g)(2). Finally, the amount of
restitution is offset by any other amounts the victim later
recovers for the same loss in civil proceedings. 18 U.S.C.
§ 3664(j)(2).
Where the bankruptcy court is required to consider the
competing interests of multiple creditors and the strength of
their respective claims to the debtor’s assets in order to
achieve a fair and equitable agreement, the district court’s dis-
cretion under the MVRA is much more constrained. See
United States v. Bright, 353 F.3d 1114, 1121 (9th Cir. 2004)
(“In passing the MVRA in 1996, Congress . . . significantly
limited the court’s discretion in setting the amount of . . . res-
titution.”); United States v. Gordon, 393 F.3d 1044, 1048 (9th
Cir. 2004) (“The primary and overarching goal of the MVRA
is to make victims of crime whole.”).
Because the issue litigated in bankruptcy court was not the
same issue that was litigated in Edwards’s criminal proceed-
ings, we hold that collateral estoppel does not apply and that
the district court was not barred from ordering restitution to
Edwards’s victims.5
[4] Furthermore, the district court correctly relied upon
United States v. Cloud, 872 F.2d 846 (9th Cir. 1989), to con-
clude that the existence of a prior bankruptcy settlement does
not preclude a subsequent criminal restitution order. Cloud
considered the federal restitution scheme under the Victim
tion order results in double recovery to them. The issue of double recovery
is, therefore, not before us, and we express no opinion as to the permissi-
bility of double recovery under the MVRA.
5
Because Edwards’s claim fails on the first factor, we need not address
the other factors in detail.
UNITED STATES v. EDWARDS 2461
and Witness Protection Act (“VWPA”). Id. at 848. In Cloud,
the defendant was convicted of multiple counts of bank fraud
and ordered to pay $7.5 million in restitution. Id. Prior to sen-
tencing, the defendant entered into settlement agreements
with the defrauded banks. Id. at 853. As part of the settlement
agreements, the banks agreed to waive “all direct rights or
causes of action” against the defendant. Id. The defendant in
Cloud argued that the terms of the settlement agreement pre-
vented the district court from ordering restitution in favor of
the banks. Id.
[5] We affirmed the restitution order, reasoning that the
banks did not have “a pre-existing ‘right’ to receive restitution
under the VWPA that it could assert or waive.” Id. at 854. We
further looked to Supreme Court precedent holding that
“criminal restitution is not ordered because victims have an
independent legal entitlement to it but, rather, as a means of
achieving penal objectives such as deterrence, rehabilitation,
or retribution[.]” Id. at 854 (discussing Kelly v. Robinson, 479
U.S. 36, 52 (1986)).
[6] We have held that, other than making restitution man-
datory and precluding the sentencing court from considering
the defendant’s economic circumstances when ordering resti-
tution, the VWPA and the MVRA “are identical in all impor-
tant respects, and courts interpreting the MVRA may look to
and rely on cases interpreting the VWPA as precedent.” Gor-
don, 393 F.3d at 1048. Contrary to Edwards’s argument, man-
datory restitution under the MVRA does not alter Cloud.6
Criminal victims do not possess an “independently enforce-
able right to receive restitution” under the MVRA any more
than they did under the VWPA. Cloud, 872 F.2d at 854
6
Our holding is consistent with the Sixth Circuit’s opinion in United
States v. Bearden, 247 F.3d 1031, 1040-41 (6th Cir. 2001) (relying on
Cloud and holding that a settlement agreement that releases a victim’s
claims against a criminal defendant does not bar the district court from
ordering the defendant to pay restitution to the victim under the MVRA).
2462 UNITED STATES v. EDWARDS
(emphasis added). Criminal restitution is mandatory under the
MVRA and cannot be waived by a prior civil settlement. The
district court correctly ordered restitution.
B. Reasonableness of the District Court’s Sentence
We next consider the Government’s challenge on appeal
that the district court’s sentence was substantively unreason-
able. Our review of the reasonableness of a sentence proceeds
in two steps. “[W]e first consider whether the district court
committed significant procedural error, then we consider the
substantive reasonableness of the sentence.” United States v.
Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc) (citing
Gall v. United States, 128 S. Ct. 586, 597 (2007)).
Neither party challenges the procedural soundness of the
district court’s sentence. Furthermore, considering the factors
laid out by our decision in Carty when reviewing a sentence
for procedural error, we hold that the district court did not
commit procedural error.7 The district court explicitly consid-
ered each of the § 3553(a) factors and provided a detailed
explanation for its sentence and its variance from the Guide-
lines range. See Gall, 128 S. Ct. at 597 (listing factors to con-
sider in evaluating procedural reasonableness). Because the
district court’s sentence was procedurally sound, we proceed
to “consider the substantive reasonableness of the sentence
. . . .” United States v. Cherer, 513 F.3d 1150, 1159 (9th Cir.
2008) (quoting Gall, 128 S. Ct. at 597).
7
We explained in Carty:
It would be procedural error for a district court to calculate—or
to calculate incorrectly—the Guidelines range; to treat the Guide-
lines as mandatory instead of advisory; to fail to consider the
§ 3553(a) factors; to choose a sentence based on clearly errone-
ous facts; or to fail adequately to explain the sentence selected,
including any deviation from the Guidelines range.
520 F.3d at 993(citing Gall, 128 S. Ct. at 597).
UNITED STATES v. EDWARDS 2463
1. Substantive Unreasonableness
In evaluating whether a sentence is substantively unreason-
able, “the appellate court must review the sentence under an
abuse-of-discretion standard.” Gall, 128 S. Ct. at 597; United
States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009). This stan-
dard applies to all sentencing decisions, “whether the sentence
is inside the Guidelines range or outside of it.” Carty, 520
F.3d at 993 (citing Gall, 128 S. Ct. at 596-97). If, as is the
case here, the sentencing court imposes a sentence outside the
Guidelines range, the appellate court may not apply a pre-
sumption of unreasonableness. Gall, 128 S. Ct. at 597. In
reviewing any such variance, the appellate court:
take[s] into account the totality of the circumstances,
including the extent of any variance from the Guide-
lines range . . . . It may consider the extent of the
deviation, but must give due deference to the district
court’s decision that the § 3553(a) factors, on a
whole, justify the extent of the variance. The fact
that the appellate court might reasonably have con-
cluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.
Id. We give due deference to the district court because “[t]he
sentencing judge is in a superior position to find facts and
judge their import under § 3553(a) in the individual case.” Id.
Furthermore, when reviewing a sentence that falls outside of
the Guidelines range, “appellate courts must ‘give due defer-
ence to the district court’s decision that the § 3553(a) factors,
on a whole, justify the extent of the variance.’ ” Autery, 555
F.3d at 872 (quoting Gall, 128 S. Ct. at 597). “Even if we are
certain that we would have imposed a different sentence had
we worn the district judge’s robe, we can’t reverse on that
basis.” United States v. Whitehead, 532 F.3d 991, 993 (9th
Cir. 2008) (citing Gall, 128 S. Ct. at 597). We may reverse,
however, “if, upon reviewing the record, we have a definite
and firm conviction that the district court committed a clear
2464 UNITED STATES v. EDWARDS
error of judgment in the conclusion it reached upon weighing
the relevant factors.” United States v. Amezcua-Vasquez, 567
F.3d 1050, 1055 (9th Cir. 2009).
Under this abuse of discretion standard of review, the Gov-
ernment urges us to hold that the district court erred in its
application of the § 3553(a) factors in reaching its sentence.
We consider each of the Government’s challenges in turn.
2. History and Characteristics of Edwards
[7] Section 3553(a)(1) of Title 18 requires the district court
to consider “the nature and circumstances of the offense and
the history and characteristics of the defendant[.]” The Gov-
ernment contends that the district court gave short shrift to the
similarity between Edwards’s previous theft crime in Arizona
and the crimes he committed in Montana. A review of the
record, however, shows that the district court did not abuse its
discretion in weighing Edwards’s history and characteristics.
The district court acknowledged several times that the Ari-
zona felony Edwards committed was a very serious offense.
The district court found that Edwards appeared in district
court “a totally different person” than “the person who was
somehow engaged in illegal conduct in Arizona” and was
“convinced that Mr. Edwards has changed.” The district court
focused on Edwards’s demeanor and mannerisms during allo-
cution, observing that “I’ve been doing this long enough that
I can tell, I think, when people are genuine . . . . I find . . .
his statement, his allocution, to be very credible. I don’t think
there’s a chance in hell that he’s going to engage in this again
in the future.”
[8] In short, the district court was aware of and weighed
Edwards’s criminal history when fashioning the sentence. In
its view, however, based on Edwards’s history and character-
istics, the district court did not feel a sentence of incarceration
was appropriate. The district court did not abuse its discretion
when it considered Edwards’s history and circumstances,
UNITED STATES v. EDWARDS 2465
relying on its “ ‘superior position’ to find the relevant facts
and to ‘judge their import.’ ” Whitehead, 532 F.3d at 993.8
3. Specific and General Deterrence
[9] Section 3553(a)(2)(B) of Title 18 requires district
courts to consider whether the sentence imposed “afford[s]
adequate deterrence to criminal conduct[.]” The Government
next argues that the district court improperly weighed the
deterrent effect of its sentence.
The district court concluded that the sentence of probation
and the fact of a felony conviction would serve to deter
Edwards from future wrongdoing. With respect to general
deterrence, the district court agreed with the Government that
general deterrence is more likely to occur in white collar
crime cases, but found that general deterrence was not a sig-
nificant factor “in a case like this.” The district court
expressed doubt as to whether the goals of general deterrence
would be served through a prison sentence for Edwards, and
rejected that idea. Finally, the district court reasoned that its
order of restitution would satisfy the requirement that
Edwards’s sentence have general deterrent value, and a proba-
tionary sentence would best accomplish the goals of the resti-
tution order because it would enable Edwards to earn the
money he is required to pay.
8
The Government’s citation to our decision in United States v. Cherer,
513 F.3d 1150 (9th Cir. 2008) is not persuasive. The defendant in Cherer
committed a crime while on probation for a prior, similar crime. Id. at
1160. Because the defendant did not take advantage of the first court’s
leniency, the district court determined that a lengthy prison sentence was
necessary to protect the public. Id. Our holding in Cherer that the district
court did not abuse its discretion by sentencing the defendant to a lengthy
prison term does not require district courts to provide lengthy sentences
to all defendants who commit crimes while on probation. To hold other-
wise would rob criminal defendants of the “individualized assessment
based on the facts presented” to which they are entitled. Gall, 128 S. Ct.
at 597.
2466 UNITED STATES v. EDWARDS
The Government argues that district court abused its discre-
tion by finding that it could meet the goal of deterrence as
expressed in § 3553(a)(2)(B) with probation and restitution
but not incarceration. For support, the Government points to
commentary in the legislative history of the Sentencing
Reform Act. The portion of the legislative history submitted
by the Government indeed expresses the opinion that many
cases involving white collar crime were disposed of with pro-
bation, “without due consideration being given to the fact that
the heightened deterrent effect of incarceration and the readily
perceivable receipt of just punishment accorded by incarcera-
tion were of critical importance.” S. Rep. No. 98-225, at 91-
92 (1983) as reprinted in 1984 U.S.C.C.A.N. 3182, 3274-75.
Because of the increased importance of general deterrence in
white collar crime cases, particularly where, as here, the
defendant had previously committed a similar crime, the Gov-
ernment argues that not imposing a sentence of incarceration
was reversible error.
[10] We cannot find as a matter of law, however, that the
failure to impose a sentence that includes a period of incarcer-
ation is a violation of § 3553(a) or inconsistent with the Sen-
tencing Reform Act. We find no support for such a rule.
Section 3553(a), for instance, does not require the goal of
general deterrence be met through a period of incarceration.9
9
Nor does the legislative history, which is the only source the Govern-
ment provides in support of its argument, unequivocally support its posi-
tion. After the statement in the legislative history quoted by the
Government, the legislative history continues by stating:
This is not meant to imply that the Committee considers a sen-
tence of imprisonment to be the only form of sentence that may
effectively carry deterrent or punitive weight. It may very often
be that release on probation under conditions designed to fit the
particular situation will adequately satisfy any appropriate deter-
rent or punitive purpose.
S. Rep. No. 98-225, at 92 (footnote omitted). As noted, see supra note 2,
the district carefully crafted specific probationary terms designed to
UNITED STATES v. EDWARDS 2467
The district court explicitly considered, weighed and factored
into its sentence the important goal of deterrence. We hold
that its consideration of the deterrent effect of its sentence was
not an abuse of discretion.
4. Protection of the Public
18 U.S.C. § 3553(a)(2)(C) requires district courts to con-
sider whether the sentence imposed “protect[s] the public
from further crimes of the defendant[.]” The Government
briefly argues that the district court’s sentence does not ade-
quately protect the public from Edwards. The Government
contends that Edwards committed a major, comparable crime
prior to committing the Montana crimes, and that therefore
the public is in need of protection from Edwards’s future
crimes.
[11] The district court carefully weighed this factor before
coming to the conclusion that it did not think that it was
“likely to be a possibility, let alone a probability in the future”
that Edwards would re-offend. The district court judge con-
sidered the fact that by the time of the 2008 re-sentencing, the
offenses had been committed nine years previously and that
Edwards had left the stress of his earlier job in the construc-
tion business that led him to become involved in the financial
fraud scheme, and completed without incident three and one
half years of probation. The court also considered Edwards’s
poor physical condition, Edwards’s statements, the statements
of Edwards’s former step-son supporting Edwards’s rehabili-
tation after committing the crimes, and the fact that Edwards
would continue to be scrutinized by the probation department
address the particulars of Edwards’s offense. Moreover, the district court
considered probation to carry significant punitive weight. The judge
explained that “[t]he Probation Office . . . has a very short chain for people
like Mr. Edwards and his liberty is significantly restricted,” and he warned
that if Edwards did not comply with the terms of his probation, Edwards
would be sent to the federal penitentiary. Cf. Autery, 555 F.3d at 868, 876.
2468 UNITED STATES v. EDWARDS
when it concluded that its probationary sentence would ade-
quately protect the public from Edwards. The Government’s
argument that the district court’s careful consideration of
whether the public needed to be protected from Edwards was
an abuse of discretion is not persuasive.
5. The Need to Avoid Unwarranted Sentencing
Disparities
18 U.S.C. § 3553(a)(6) requires the district court to con-
sider whether it is avoiding “unwarranted sentence disparities
among defendants with similar records who have been found
guilty of similar conduct[.]”10 The Government challenges the
sentence because in the Government’s view it creates an
unwarranted disparity in the treatment of Edwards and other
federal fraud defendants. The district court considered and
explained why he felt a disparity was warranted and distin-
guished Edwards’s case from other federal fraud cases.
[12] As we explained in United States v. Ruff, 535 F.3d
999, 1003 (9th Cir. 2008), “it is the [district court’s] reasoned
decision itself, not the specific reasons that are cited, that trig-
gers our duty to defer.” Here, the district court’s decision
shows that it rested on a reasoned basis and relied upon fac-
tors within its discretion including its evaluation of Edwards’s
changed and reformed character and the court’s view of how
deterrence could best be achieved. The district court did not
abuse its discretion.
10
The Government briefly argues that the district court’s sentence takes
no affirmative steps to rehabilitate Edwards. This assertion is contrary to
the record, which clearly shows that the district court considered how
Edwards’s needs for educational or vocational training, medical care, or
correctional treatment could be satisfied in the most effective manner. The
district court’s determination that Edwards’s medical care could most
effectively be taken care of by Edwards, and need not fall on taxpayers,
was not an abuse of discretion.
UNITED STATES v. EDWARDS 2469
III. CONCLUSION
Collateral estoppel does not apply to prevent the district
court from ordering restitution, which it was required to do
under the MVRA. The district court’s sentence was not sub-
stantively unreasonable. The district court was clearly aware
of the factors at play in this difficult case, and did not abuse
its discretion when it sentenced Edwards. The district court’s
sentence is AFFIRMED.
BEA, Circuit Judge, concurring in part and dissenting in part:
I agree with Judge Kleinfeld’s description of Edwards: he
“is a big time thief.” United States v. Edwards, 158 Fed.
App’x 930, 931 (9th Cir. 2005) (Kleinfeld, J., dissenting).1
Edwards was convicted of bank fraud in an Arizona state
court after he stole more than $3 million. While Edwards was
on probation imposed as part of his sentence for the Arizona
fraud conviction, he lied to another bank to obtain a new bank
loan—he did not tell the new bank he had been convicted of
defrauding the earlier bank. He then filed for bankruptcy to
avoid paying his new, fraudulently procured loan, but he
knowingly did not fully disclose all of his assets and liabilities
to the bankruptcy court, whose aid he had sought to avoid his
loan obligations. When the government finally caught up with
him and brought the fraud charges in this case, he pleaded
guilty to bank fraud and to bankruptcy fraud. The intended
and actual losses from Edwards’s bank fraud and bankruptcy
fraud totaled more than $500,000. The advisory Guidelines
sentencing range was twenty-seven to thirty-three months’
1
On a prior appeal of Edwards’s sentence to this Court, Judge Kleinfeld
dissented from the majority’s decision to remand Edwards’s sentence to
the district court for possible resentencing in light of United States v.
Booker, 543 U.S. 220 (2005). Edwards, 158 Fed. App’x at 932 (Kleinfeld,
J., dissenting). Judge Kleinfeld would have vacated the sentence as sub-
stantively unreasonable and remanded for resentencing. Id.
2470 UNITED STATES v. EDWARDS
imprisonment, yet the sentence today approved by the major-
ity will result in Edwards serving no time in prison. The dis-
trict court sentenced Edwards to sixty months’ probation—
with seven months served under house arrest—and ordered
him to pay just over $100,000 in restitution. The majority
concludes this sentence is substantively reasonable. But like
Judge Kleinfeld, “I cannot see how a sentence anything like
the one imposed could be reasonable under 18 U.S.C.
§ 3553(a)(2).”2 Id. Therefore, I respectfully dissent from the
majority’s holding that Edwards’s below-Guidelines sentence
is substantively reasonable.3
The majority’s holding that Edwards’s sentence is substan-
tively reasonable evidences an ever-widening split between
our circuit’s analysis of below-Guidelines sentences in the
context of white collar crime and that of our sister circuits.
Unlike many of our sister circuits,4 our circuit has not held
2
Section 3553(a)(2) lists factors a district court must consider when it
decides whether to impose a sentence outside the Guidelines range. Sec-
tion 3553(a)(2) requires the district court to consider
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 defendant;
and
(D) to provide the defendant with needed educational or voca-
tional training, medical care, or other correctional treatment in
the most effective manner . . . .
3
I agree with the majority that the district court did not err when it
ordered restitution. I also agree that the district court committed no proce-
dural error—substantive unreasonability not being “procedural”—when it
sentenced Edwards.
4
See, e.g., United States v. Livesay, 587 F.3d 1274, 1278-79 (11th Cir.
2009) (holding that a sentence of five years’ probation was unreasonably
lenient where the defendant played a key role in an accounting fraud
scheme that caused over $1 billion in losses to a company’s shareholders
UNITED STATES v. EDWARDS 2471
that a sentence imposed on a defendant who was convicted of
a white collar crime is unreasonably lenient since the
Supreme Court decided Gall v. United States, 552 U.S. 38
(2007).5 That is not for lack of opportunity. See, e.g., United
States v. Whitehead, 532 F.3d 991, 999-1000 (9th Cir. 2008)
(Bybee, J., dissenting) (explaining that a sentence of proba-
tion, restitution, and community service was unreasonably
lenient where the defendant stole over $1 million and the
Guidelines range was forty-one to fifty-one months’ impris-
onment); United States v. Ruff, 535 F.3d 999, 1004-07 (9th
Cir. 2008) (Gould, J., dissenting) (explaining that a sentence
of one day’s imprisonment and three years of supervised
release was unreasonably lenient where the defendant stole
over $600,000 and the Guidelines range was thirty to thirty-
seven months’ imprisonment). Edwards’s sentence presents
us with another such opportunity.
The majority’s holding also evidences an intra-Circuit con-
flict that continues to develop. In United States v. Amezcua-
Vasquez, 567 F.3d 1050 (9th Cir. 2009), we held that a
within-Guidelines sentence was unduly harsh, hence substan-
tively unreasonable. But, with one exception,6 we have con-
and the Guidelines range was seventy-eight to ninety-seven months’
imprisonment); United States v. Omole, 523 F.3d 691, 698-700 (7th Cir.
2008) (holding that a sentence of twelve months’ imprisonment was
unreasonably lenient where the defendant engaged in wire fraud and
caused $90,000 in losses and the Guidelines range was sixty-three to
seventy-eight months’ imprisonment).
5
Even outside the context of white collar crime, our circuit has only
once since Gall held that a sentence is unreasonably lenient. See United
States v. Ressam, No. 09-30000, 2010 WL 347962, at *33 (9th Cir. Feb.
2, 2010).
6
The one exception is our recent decision in Ressam, where we held
unreasonably lenient a twenty-two year sentence for a terrorist who “was
convicted by a jury on nine counts of criminal activity in connection with
his plot to carry out an attack against the United States by detonating
explosives at the Los Angeles International Airport (“LAX”) on the eve
of the new Millennium, December 31, 1999.” Ressam, 2010 WL 347962,
at *1. The advisory Guidelines range in that case was sixty-five years to
life in prison. Id.
2472 UNITED STATES v. EDWARDS
sistently refused to hold that sentences significantly below the
advisory Guidelines range are unduly lenient, hence substan-
tively unreasonable. See Whitehead, 532 F.3d at 993; Ruff,
535 F.3d at 1003. It is difficult to reconcile the holding of
Amezcua-Vasquez with the holdings of Whitehead and Ruff,
unless we adopt a rule that what a panel considers to be a
harsh sentence can be substantively unreasonable, but not so
a lenient sentence; in other words, that “substantive unrea-
sonability” in the Ninth Circuit is a one-way street that is
posted to lead sentences only downwards. But as Ressam
demonstrates, there is no such rule. 2010 WL 347962, at *33.
I agree with the majority that we must review the sentence
imposed by the district court “under a deferential abuse-of-
discretion standard.” Gall, 552 U.S. at 41. However, nothing
in Gall “suggests that the Supreme Court has taken the courts
of appeals out of the business of reviewing sentences.” White-
head, 532 F.3d at 995 (Bybee, J., dissenting); see also Rita v.
United States, 551 U.S. 338, 354 (2007) (“In sentencing, as
in other areas, district judges at times make mistakes that are
substantive. At times, they will impose sentences that are
unreasonable. Circuit courts exist to correct such mistakes
when they occur.”). We must review sentences for significant
procedural error and for substantive reasonableness. Gall, 552
U.S. at 51. And when we review the reasonableness of a
below-Guidelines sentence, we may consider the extent to
which the sentence imposed deviates from the Guidelines
range. Id. at 47. As the Supreme Court explained, “it [is]
uncontroversial that a major departure should be supported by
a more significant justification than a minor one.” Id. at 50.
The district court “must adequately explain the chosen sen-
tence to allow for meaningful appellate review and to promote
the perception of fair sentencing.” Id. Thus, even after Gall,
it is clear that “[t]he abuse of discretion standard of review is
not a rubber stamp of all sentencing decisions made by a dis-
trict court.” Ruff, 535 F.3d at 1005 (Gould, J., dissenting).
We have recently clarified the abuse of discretion standard
in this circuit. See United States v. Hinkson, 585 F.3d 1247,
UNITED STATES v. EDWARDS 2473
1262 (9th Cir. 2009) (en banc). We now apply a two-part test
to determine whether the district court abused its discretion.
Id. Under the first step, we “determine de novo whether the
trial court identified the correct legal rule to apply to the relief
requested.” Id. “If the trial court identified the correct legal
rule, we move to the second step . . . to determine whether the
trial court’s application of the correct legal standard was (1)
illogical, (2) implausible, or (3) without support in inferences
that may be drawn from the facts in the record.” Id. (internal
quotation marks and citation omitted).
Here, the district court identified and applied the correct
legal rule. The district court correctly calculated the advisory
Guidelines range—twenty-seven to thirty-three months’
imprisonment—and then considered the 18 U.S.C. § 3553(a)
sentencing factors to determine whether to impose a sentence
outside the Guidelines range. See Gall, 552 U.S. at 49-50. But
the district court’s view that the purpose of general deterrence
is limited to the effect that deterrence could have only within
the defendant’s community—here, the community where
Edwards lived in Montana at the time he committed bank
fraud and bankruptcy fraud and the community where he now
lives in Oklahoma—is simply an incorrect application of 18
U.S.C. § 3553(a)(2)(B). In this day and age of internet and
broadband communications, the district court should have
considered how others, on a nationwide level, would have
been deterred, or not, by a conviction followed by only a pro-
bationary sentence.
Further, the district court’s imposition of a sentence of sixty
months’ probation and $100,000 in restitution that included
no incarceration was (1) illogical as to the effect a sentence
without incarceration would have on Edwards’s community,
and (2) without support in inferences that may be drawn from
the facts in the record. Thus, the district court abused its dis-
cretion.
The sentencing court must consider “the need for the sen-
tence imposed . . . to afford adequate deterrence to criminal
2474 UNITED STATES v. EDWARDS
conduct.” 18 U.S.C. § 3553(a)(2)(B). Deterrence encom-
passes both general deterrence and specific deterrence. How-
ever, specific deterrence is also considered under
§ 3553(a)(2)(C), which requires the district court to consider
“the need for the sentence imposed . . . to protect the public
from further crimes of the defendant.” Id. § 3553(a)(2)(C).
Thus, when a district court considers § 3553(a)(2)(B), it
should focus on whether a sentence will provide general
deterrence. See United Staes v. Martin, 455 F.3d 1227, 1240
(11th Cir. 2006) (explaining that § 3553(a)(2)(B) speaks to
general deterrence while § 3553(a)(2)(C) speaks to specific
deterrence).
General deterrence is effective in the context of white col-
lar crime such as Edwards’s bank fraud and bankruptcy fraud.
“Defendants in white collar crimes often calculate the finan-
cial gain and risk of loss, and white collar crime therefore can
be affected and reduced with serious punishment.” Martin,
455 F.3d at 1240 (holding that a sentence of seven days’
imprisonment was substantively unreasonable where the
defendant participated in a securities fraud conspiracy that
caused more than $1 billion in losses). White collar crime,
especially bank fraud, usually requires a well-schooled, intel-
ligent criminal, capable of gauging the upside of how others
will be gulled by his well-honed fables. This ability to foresee
extends also to the possible downside of his fraud: apprehen-
sion, conviction, and punishment. Further, bank fraud, unlike
an assault in a tavern or even domestic abuse, tends to be a
planned, deliberate crime, which allows plenty of time for
reflection, calculation of the odds of success or failure, and
the ultimate decision.
It is precisely at this point—when the thief of above-
average education and wit is deciding whether to do the deed
—that reflection on probable prison time—general deterrence
—can have an effect. Like the taxpayer who decides not to
defraud the fisc for fear of wearing an orange jumpsuit for a
long time because he knows that the government goes after
UNITED STATES v. EDWARDS 2475
everyone—even Al Capone—for tax fraud, the contemplating
bank fraud thief should be forced to consider a message other
than: “Oh, if you get caught and you put on a repentant’s suit,
you’ll probably get probation and a restitution order of 20%
of what you stole. And about that restitution order, don’t
worry too much because, in America, there are no debtor’s
prisons. So if you don’t pay, you won’t do time.”
Here, the district court acknowledged that general deter-
rence is effective in the context of white collar crime but still
imposed a non-prison sentence. The district court stated:
General deterrence, I don’t think it has a significant
factor in a case like this, but I will agree with [the
government] that in white collar crime cases general
deterrence is more likely to occur than in something
like the kinds of drug cases or gun cases or pornog-
raphy cases that we see frequently in this court.
This finding—that general deterrence was not a significant
factor in this case—is clearly erroneous and cannot justify
Edwards’s sentence.
The district court assumed the only general deterrence
effect would be in the communities where Edwards had lived
and that the people in those communities had already been
deterred based on their awareness of Edwards’s conviction.7
But that is an unnecessarily restrictive view of general deter-
rence. Why should general deterrence be considered only in
terms of the defendant’s community? Section 3553(a)(2)(B)
speaks to deterring “criminal conduct”; it does not suggest
such deterrence should be limited to the defendant’s own
community. For sure, Edwards’s present sentence will not
7
I agree that Edwards’s sentence had some deterrence effect in his com-
munities: one hopes those in his communities have been deterred from
dealing with Edwards. But the thieves among them have not been deterred
from following in his footsteps.
2476 UNITED STATES v. EDWARDS
deter criminal conduct. It will incentivize it. The sentence
sends the message that a reasonable sentence for white collar
criminals is probation and restitution. We risk allowing this
sentence to become “a baseline against which we measure
other sentences.” Whitehead, 532 F.3d at 999 (Bybee, J., dis-
senting).
The majority concludes that “[t]he district court explicitly
considered, weighed and factored into its sentence the impor-
tant goal of deterrence.” Maj. Op. at 2467. The majority
points out that “[t]he district court concluded that the sentence
of probation and the fact of a felony conviction would serve
to deter Edwards from future wrongdoing.” Id. at 2465. Even
assuming the important goal of specific deterrence is reflected
in Edwards’s sentence, I fail to see how the equally important
goal of general deterrence is reflected in Edwards’s sentence
other than to claim people in Edwards’s communities would
be deterred by knowledge of his conviction. How does knowl-
edge of Edwards’s conviction provide general deterrence?
Edwards’s sentence conveys the message that white collar
criminals can steal and not do time. The district court did not
explain why some term of imprisonment was not necessary.
It is not enough to state that general deterrence does not mat-
ter in this case.
I do not ignore the fact that Edwards was ordered to pay
more than $100,000 in restitution. I agree with both the dis-
trict court and the majority that a restitution order does create
general deterrence. However, without some term of imprison-
ment, restitution is simply inadequate to deter the type of con-
duct in which Edwards engaged: he caused and intended to
cause losses totaling more than $500,000 while still on proba-
tion for a prior conviction of theft of six times as much! Sure,
Edwards was forced to repay some of his ill-gotten gains, but
he will not be subjected to the loss of liberty that accompanies
a term of imprisonment. I agree with the Eleventh Circuit:
some crimes require at least some time in prison—no proba-
UNITED STATES v. EDWARDS 2477
tionary sentence will be sufficient. See Livesay, 587 F.3d at
1279. Edwards’s crimes fall into that category.
Sooner or later our circuit must come to the final question:
how do we determine whether a sentence without incarcera-
tion is unreasonable? And if a sentence without incarceration
is unreasonable, what term of incarceration is unreasonable?
At times like this, one is tempted to reach for Justice Potter
Stewart’s definition of pornography and apply it to determine
whether a sentence is unreasonable: “I know it when I see it,”
Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., con-
curring). Such a personalized and subjective norm does not
sound like what an appellate court should be laying down as
a rule to the district courts.
But can we do any better by attempting to spell out what
constitutes “unreasonable” in the abstract? I think the Court,
in Gall, wants us to try. In fact, Gall itself provided some
guidance as to factors an appellate court should consider
when it reviews the substantive reasonableness of a sentence.
See 552 U.S. at 47-48. Additional factors to consider emerge
from the decisions of our sister circuits and the reasoned
opinions—both majority and dissenting—of our Court.
Although no list of factors will be exhaustive and not all fac-
tors will be relevant in every case, we must provide guidance
to the district courts so that we can minimize sentencing dis-
parities even in the absence of mandatory guidelines.8 See
Whitehead, 532 F.3d at 999-1000 (Bybee, J., dissenting) (“As
a circuit, we have an obligation to ensure roughly equal sen-
tences both among our judicial districts and within each judi-
cial district.”).
8
Trial courts are called on daily to determine what is “reasonable” in a
variety of contexts. Discovery orders, extensions of time, bench trials in
negligence cases, and review of damages awards—or determination of
criminal sentences—are just some of the many such contexts. Where pre-
cedent has produced a practice, the task is easier. A practice develops set-
tled expectations. We must begin to do the same in the context of
reviewing sentences for substantive reasonableness.
2478 UNITED STATES v. EDWARDS
First, we should consider the quantitative and qualitative
deviation of the sentence imposed from the sentence recom-
mended by the now-advisory Guidelines. See Gall, 552 U.S.
at 47-48. The quantitative deviation refers to the extent to
which the sentence imposed is longer or shorter than the advi-
sory Guidelines range. Id. at 41, 47 (“[T]he extent of the dif-
ference between a particular sentence and the recommended
Guidelines range is surely relevant.”). The qualitative devia-
tion refers to whether the type of sentence imposed (e.g., pro-
bation) differs from the type of sentence recommended by the
Guidelines (e.g., incarceration). Id. at 48 (“We recognize that
custodial sentences are qualitatively more severe than proba-
tionary sentences of equivalent terms.”). Here, the sentence
imposed by the district court was a significant deviation—
both quantitatively and qualitatively—from the recommended
Guidelines sentence. The Guidelines range was twenty-seven
to thirty-three months’ incarceration, but the district court
imposed a probationary sentence of five years with no incar-
ceration.
Second, we should consider whether the district court’s
deviation from the advisory Guidelines range was based on
circumstances already taken into account by the Guidelines.
See Whitehead, 532 F.3d at 998-99 (Bybee, J., dissenting)
(“The district court abused its discretion by completely reduc-
ing [the defendant’s] sentence based on a low likelihood of
recidivism where the Guidelines calculation itself had already
been reduced to reflect this factor.”). Here, the district court
explained that a probationary sentence “was sufficient to pro-
tect the public from further crimes by the defendant.” How-
ever, Edwards’s likelihood of recidivism had already been
considered in the calculation of his criminal history category.
Edwards was not assigned the lowest criminal history cate-
gory because he had committed bank fraud while on proba-
tion for a similar crime in Arizona. Based on Edwards’s track
record, the Guidelines recommended a sentence of incarcera-
tion to protect the public from Edwards.
UNITED STATES v. EDWARDS 2479
The district court made a directly contrary finding on the
ground that there was not “a very good likelihood that
[Edwards] would engage in this kind of business in the
future.” The district court explained that the likelihood of
recidivism was low because Edwards had committed bank
fraud and bankruptcy fraud nine years earlier with no subse-
quent convictions; he had significant medical problems,
including diabetes and neuropathy; and he left the construc-
tion industry, which “is what got him into the trouble in the
first place.” Although we must give deference to the district
court’s finding that the likelihood of recidivism was low, that
finding cannot support the extent of the district court’s devia-
tion from the sentence recommended by the Guidelines, par-
ticularly given that the Guidelines already took the likelihood
of recidivism into account by not assigning Edwards a higher
criminal history category.
Third, we should consider whether the mitigating factors
relied on by the district court to reduce the sentence were
unexceptional or “common to similarly situated offenders.”
Omole, 523 F.3d at 698 (explaining that the defendant’s
young age—twenty years old—was not a unique characteris-
tic that would justify a sentence significantly below the
Guidelines range); see Whitehead, 532 F.3d at 997-98 (Bybee,
J., dissenting) (explaining that the fact the defendant had
shared custody of his daughter was not an exceptional circum-
stance because “the mere imposition of hardship on family
relationships . . . necessarily accompanies the order of any
prison sentence”). Here, the district court explained that a
below-Guidelines sentence was warranted because the Guide-
lines range was based on Edwards’s intended loss, not the
actual loss he caused. But it is unexceptional that the actual
losses were less than the intended losses. I expect the amount
the run-of-the-mill thief intends to steal is usually greater than
the amount he actually steals. The fact that the losses attri-
buted to Edwards were intended rather than actual simply
reflects the fact that Edwards got caught. He should not bene-
fit from that fact.
2480 UNITED STATES v. EDWARDS
Fourth, we should consider whether the district court
“base[d] the sentence on impermissible factors.” Hunt, 521
F.3d at 649 (holding that the district court abused its discre-
tion when it imposed a below-Guidelines sentence, in part,
because it disagreed with the jury’s finding that the defendant
had the intent to defraud). Here, although the district court’s
sentence was based on the § 3553(a) factors, it was based on
an erroneous interpretation of § 3553(a)(2)(B). The district
court concluded general deterrence was not an important fac-
tor, based on the conclusion that general deterrence is limited
by the concept of the crook’s immediate community—a term
nowhere to be found in the statute.
Fifth, we should consider whether the district court gave
“too much weight” to a particular § 3553(a) factor. See Res-
sam, 2010 WL 347962, at *33 (“[I]t appears that the district
court abused its discretion in weighing the relevant factors by
giving too much weight to [the defendant’s] cooperation and
not enough weight to the other relevant § 3553(a) factors,
including the need to protect the public.”); United States v.
Givens, 443 F.3d 642, 646 (8th Cir. 2006) (vacating and
remanding a sentence as substantively unreasonable where the
district court gave “too much weight” to the defendant’s “his-
tory and characteristics and showed a great deal of sympathy
toward him” and gave “not enough [weight] to the other por-
tions of section 3553(a)”). Here, the district court, like the dis-
trict court in Givens, gave too much weight to Edwards’s
history and characteristics and gave too little weight to gen-
eral deterrence.
Edwards’s sentence was based on the district court’s clearly
erroneous finding that general deterrence is not a significant
factor in this case and the conclusion that the sentencing fac-
tor of general deterrence is somehow restricted only to the
effect prison terms would have on Edwards’s community. If
we ignore the district court’s finding there was general deter-
rence by a probationary sentence because of the vagueness of
such finding, the district court’s application of § 3553(a)—
UNITED STATES v. EDWARDS 2481
and the imposition of a sentence that included no
incarceration—was illogical and without support in inferences
that may be drawn from the facts in the record. Although we
must give deference to the district court’s finding that
Edwards was not likely to commit a similar crime in the
future, that finding does not justify the significant deviation
from the Guidelines sentencing range. Because the district
court abused its discretion when it imposed this substantively
unreasonable sentence, I respectfully dissent.