Free Sentencing Memorandum - District Court of Arizona - Arizona

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Slip Copy, 2005 WL 3487659 (C.A.9 (Mont.))
(Cite as: Slip Copy)
1014. The court sentenced the defendant to seven
Briefs and Other Related Documents months house arrest followed by five years
Only the Westlaw citation is currently probation. The presentence report had
availablc.This case was not selected for publication recommended a sentence enhancement, but the
in the Federal Reporter.Please use FIND to look at district court felt itself bound by the then recent
the applicable circuit court rule before citing this three judge panel decision in United States v.
opinion. (FIND CTA9 Rule 36-3.) Ameiine, 376 F.3d 967 (9th Cir.2004) (Anteline I ).
United States Court of Appea1s,Ninth Circuit. Under that decision, the court was precluded from
UNITED STATES OF AMERICA, relying on any factors not found by the jury in
Plaintiff-Appellant, determining defendanfs sentence.
v.
Duncan William EDWARDS, Defendant-Appellee. We subsequently ordered Amefine I reheard en
N0. 04-30451. banc, after the Supreme Court's decision in United
D.C. No. CR-03-00058-DVVM. States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160
1..Ed.2d 621 (2005). We held that where, as here, a
Argued and Submitted Sept. 15,2005. district court believed itself bound by pre-Booker
Decided Dec. 20, 2005. law, we should remand for the district court to
determine whether it would have imposed a
different sentence had it understood that the
William W. Mercer, Esq., USBI-Office of the U.S. Guidelines were advisory. United States v. Anieline,
Attomey, Billings, MT, for Plaintiff-Appellant. 409 F .3d 1073 (9th Cir.2005) (Antefine H ).
John P. Rhodes, Esq., FDM'1`-l-`ederal Defenders of Accordingly, the parties agree that we must, at least,
Montana, Missoula, MT, for Defendant-Appellee. remand this case under Ameiine H.
Appeal from the United States District Court for the The govemment asks us further to hold, as a matter
District of Montana, Donald W. Molloy, District of law, that the sentence imposed was unreasonable
Judge, Presiding. pursuant to 13 U.S.C. § 3553(a)(2). This we decline
I to do. The sentence imposed after the Arnefine
Before SCHROEDER, Chief Judge, ALARCON remand may well be different from the sentence
and KLEINFELD, Circuit Judges. imposed, and the government will be tree to argue
at that point, if it so desires, that the remaining
MEMORANDUM * sentence is unreasonably low. Moreover, we believe
that the orderly development of the law under §
3553(a}(2} would be furthered by the district eourt's
FN"‘ This disposition is not appropriate for addressing the reasonableness issue in the frst
publication and may not be cited to or by instance.
the courts of this circuit except as provided
by 9th Cir. R. 36-3. The remaining contention that Booker violates ex
post facto principles has been decided in United
*1 The United States appeals a sentence imposed States v. Dnpas, 419 F.3d 916 (9th Cir.2005). There
upon defendant Duncan William Edwards following is no cx post facto violation.
his guilty plea conviction for bankruptcy fraud, in
violation of 18 U.S.C. § 152(9) and making false Pursuant to Ameiine, the sentence is REMANDED.
statements to a bank, in violation of 18 U.S.C. §
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Slip Copy Page 2
Slip Copy, 2005 WI, 3487659 (C.A.9 (Mont.))
(Cite as: Slip Copy)
KLEINFELD, J. dissenting. Brief of Defendant-Appellant (Apr. 21, 2005)
KLEINFELD, Judge. Original [mage of this Document (PDF)
I would vacate the sentence because 1 cannot see · 04-30451 (Docket) (Oct. 28, 2004)
how a sentence anything like the one imposed could
be reasonable under is usc. gs ssssrayrzi. Fm END OF DOCUMENT
FNI. 18 U.S.C. § 3553(a)(2)(A) requires a
sentence to reflect the seriousness of thc
offense, to promote respect for the law,
and to provide just punishment for the
offense,
Edwards is a big time thief. He was convicted of
bank fraud in Arizona and ordered to pay $3 million
in restitution. Then he did it again, while on
probation. He lied to a bank and tried to hide more
than $600,000 from his creditors. The district court
spared him from prison on the theory that he had
made "life-changing determinations? His victims
deserve better, even if hc has made "1ife-changing
determinations."
The majority holds that because we do not know if
the sentence, after the Ameline FN2 remand, will
be different from thc sentence imposed that we
should not detenninc if this sentence is
unreasonable. Our post-Amefine decisions have
focused on the fact that "[b]ecause we cannot say
that the district judge would have imposed the same
sentence in the absence of mandatory Guidelincs,"
we should remand for resentencing in accordance
with Booker. Fm In this case, I think we can safely
conclude that the lcnienee did not result from the
view that the Guidelines were mandatory.
FN2. United States v. Amefine, 409 F,3d
1073 (9th Cir.2005) (en banc).
FN3. United States v. Ruiz—AIOns0, 397
F.3d 815, 820 (9th Cir.2005).
C.A.9 (Mont.),2005.
U.S. v. Edwards
Slip Copy, 2005 WL 3487659 (C.A.9 (Mont.))
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· 2005 WL 2158276 (Appellate Brief) Response
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Case 2:04-cr-00718-DKD

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