USA v. Joseph Burgum

Filing

FILED OPINION (DIARMUID F. O'SCANNLAIN, RAYMOND C. FISHER and RONALD M. GOULD) We hold that the district court did not improperly base its sentencing analysis on the statutory maximum, and that the sentence imposed was not substantively unreasonable. Nonetheless, because the district court s treatment of Burgum s inability to pay was plain error affecting substantial rights that compromised the fairness and integrity of the sentencing hearing, we vacate and remand for resentencing without consideration of Burgum s inability to pay. VACATED AND REMANDED. Judge: DFO Dissenting, Judge: RCF Authoring, FILED AND ENTERED JUDGMENT. [7623213]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSEPH CASE BURGUM, AKA Joseph
Charles Barrett, AKA Seal A,
Defendant-Appellant.





No. 09-50449
D.C. No.
8:07-cr-00061CJC-1
OPINION

Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted
September 1, 2010—Pasadena, California
Filed January 25, 2011
Before: Diarmuid F. O’Scannlain, Raymond C. Fisher and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Fisher;
Dissent by Judge O’Scannlain

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UNITED STATES v. BURGUM

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COUNSEL
Sean K. Kennedy, Federal Public Defender, and Alexandra
W. Yates (argued), Deputy Federal Public Defender, Los
Angeles, California, for the defendant-appellant.

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UNITED STATES v. BURGUM

George S. Cardona, Acting United States Attorney, Douglas
F. McCormick, Assistant United States Attorney, and Anne C.
Gannon (argued), Assistant United States Attorney, Santa
Ana, California, for the plaintiff-appellee.

OPINION
FISHER, Circuit Judge:
Joseph Case Burgum appeals the district court’s imposition
of a 180-month sentence of imprisonment following his guilty
plea to two counts of armed bank robbery in violation of 18
U.S.C. § 2113. Burgum contends that the district court
improperly used the statutory maximum instead of the U.S.
Sentencing Guidelines range as a starting point for sentencing
and improperly treated his inability to pay restitution as an
aggravating factor. He also argues that the sentence imposed
was substantively unreasonable. Because we conclude that
reliance on Burgum’s inability to pay was plain error that seriously affected the fairness and integrity of the sentencing proceeding, we vacate and remand for resentencing.
I.
In June 2008, Burgum pled guilty to two counts of bank
robbery. The robberies took place in Anaheim, California and
Scottsdale, Arizona in May 2003. Burgum used the same
technique for both robberies: he first met with a bank manager, posing as an FBI officer, then attached a metal box to
the manager’s wrist using handcuffs. He then told the manager that the box was a bomb he could detonate remotely.
Burgum also showed both managers the gun he was carrying.
He threatened to use the gun during the Scottsdale robbery,
when the manager resisted his demands. When Burgum
learned he had been indicted for bank robbery several years
later, he turned himself in.

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After Burgum’s indictment, the probation office prepared a
pre-plea presentence report (PSR) that placed Burgum in
criminal history category II. Burgum pled guilty after reviewing this draft of the PSR, which led him and the government
to expect a Sentencing Guidelines range of 108-135 months.
In plea discussions, the government agreed to recommend a
sentence at the low end of that guidelines range. The probation office later realized, however, that due to a clerical error,
the wrong draft PSR had been disclosed to the parties. The
correct draft showed Burgum to be in criminal history category VI and recommended a guidelines range of 188-235
months. Consistent with the correct draft, the final PSR
included the higher guidelines range calculation and recommended a sentence of 188 months, at the low end of the
higher range. The final PSR also recommended ordering
$258,280 in restitution.
Recognizing that plea negotiations had proceeded with the
understanding that Burgum would be sentenced according to
the 108-135 month guidelines range originally calculated, the
government recommended a sentence at the low end of that
lower guidelines range in its sentencing memorandum. Burgum agreed with the government’s recommendation.
At sentencing, the district court calculated a guidelines
range of 108-135 months, using a different calculation
method than that used in any version of the PSR.1 The court
then listed various mitigating factors it found persuasive but
also emphasized several “very troubling, aggravating factors.”
In describing aggravating factors, the district court focused on
“the nature of these bank robberies,” including the use of a
hoax bomb, the impersonation of an FBI agent and the “infliction of emotional distress on the bank manager and the tellers.” The court also mentioned “[o]ne additional aggravating
1

Although the district court arrived at a different guidelines range than
the final PSR, the parties do not dispute the accuracy of the calculation.
Accordingly, we proceed on the assumption that it is correct.

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factor”: Burgum was very unlikely to be able to pay the
$258,280 in restitution the court intended to order. In addition
to ordering the restitution payment, the court ultimately
imposed a 180-month term of imprisonment.
II.
The substantive reasonableness of a sentence is reviewed
for abuse of discretion. See United States v. Autery, 555 F.3d
864, 871 (9th Cir. 2009). Procedural sentencing errors raised
for the first time on appeal are generally reviewed for plain
error. See United States v. Evans-Martinez, 611 F.3d 635, 642
(9th Cir. 2010), petition for cert. filed, __ U.S.L.W. __ (U.S.
Nov. 19, 2010) (No. 10-7645).2
III.
Burgum first argues that instead of “begin[ning] by determining the applicable Guidelines range” as required by
United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en
banc), the district court improperly based its sentencing analysis on the statutory maximum. Burgum did not object to this
alleged error below, so our review is for plain error, which we
conclude did not occur. The court properly calculated the
guidelines range as the starting point, then considered the statutory maximum and applied mitigating factors.
Had the district court used the statutory maximum rather
than the guidelines range as the baseline for sentencing, it
would have been reversible error. See id. at 993. The district
court mentioned “working from the statutory maximum and
building downward,” but the record clarifies that the court
2

To the extent we have discretion not to apply plain error review, we
decline to exercise that discretion in this instance. See Evans-Martinez,
611 F.3d at 642; United States v. Echavarria-Escobar, 270 F.3d 1265,
1267-68 (9th Cir. 2001) (explaining that we have discretion to consider
issues raised for the first time on appeal under limited circumstances).

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used the guidelines as a “starting point” and recognized its
obligation to consider the 18 U.S.C. § 3553(a) sentencing factors.
[1] Specifically, the court said it would “in normal circumstances be looking, believe it or not, at the statutory maximum” and would then be “working down.” But before
discussing the statutory maximum, the court made clear that
the “starting point of [its] analysis [was] the guideline range.”
The court concluded that the aggravating factors warranted an
upward adjustment all the way to the statutory maximum, and
then applied mitigating factors to reduce that hefty sentence.
Thus the court properly used the guidelines as the “initial
benchmark,” id. at 991 (citation and internal quotation marks
omitted), and its repeated references to the guidelines “demonstrate that the court ‘remain[ed] cognizant of [them]
throughout the sentencing process.’ ” United States v. Ressam, 593 F.3d 1095, 1124 (9th Cir. 2010) (quoting Gall v.
United States, 552 U.S. 38, 50 n.6 (2007)). There was no
plain error.
IV.
Burgum also contends that his 180-month sentence is substantively unreasonable, pointing out that both parties and the
probation office recommended a 108-month sentence. We
conclude that the district court’s sentencing decision was
rational and substantiated by the record. We therefore hold
that the district court did not abuse its discretion and that the
sentence imposed was not substantively unreasonable.
[2] At sentencing, the prosecution and the probation office
recommended the low sentence to avoid penalizing Burgum
for pleading guilty in reliance on the erroneous draft PSR,
which reported the 108-135 month guidelines range. The district court, however, viewed the 108-month sentence as inappropriate for a “very cruel and tormenting” offense and found
the low 108-month recommendation to be an undeserved

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“windfall.” The court’s finding was rational, clearly explained
and closely tied to the factual record.3 The 180-month sentence was not unreasonable. See United States v. ValenciaBarragan, 608 F.3d 1103, 1108-09 (9th Cir. 2010) (rejecting
the defendant’s contention that the sentence imposed was substantively unreasonable, in light of “the nature of [the defendant’s] crime”).
Burgum also argues that, because the district court referred
to his offense as “about as bad a bank robbery [as] I can imagine,” the sentence imposed left “little room for marginal deterrence.” The district court was not required to conform the
sentence to those imposed in similar cases, however.
Although comparability is a legitimate sentencing factor,
divergence from sentences imposed in similar cases is permissible so long as the court is attentive to relevant sentencing
factors, as the district court was here. See United States v.
Marcial-Santiago, 447 F.3d 715, 719 (9th Cir. 2006).
Accordingly, we reject Burgum’s contention that the district court abused its discretion by imposing a substantively
unreasonable sentence.
V.
Finally, we conclude that the district court did plainly err
by treating Burgum’s inability to pay restitution as an aggravating sentencing factor. The district court explicitly cited
Burgum’s financial status as a factor aggravating the severity
of his conduct. After reviewing mitigating and aggravating
evidence, the court added that:
One additional aggravating factor that I didn’t men3

In holding that the district court offered a reasonable explanation for
deviating from the recommended sentence, we do not consider its reliance
on Burgum’s inability to pay restitution, which was improper for the reasons explained in Part V, below.

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tion is I just think realistically the chances of restitution in this case are probably slim, maybe even null
in light of the amount of restitution being $258,280,
Mr. Burgum not really having the finances or the
financial condition to even pay a fine.
The court went on to base its calculation of the sentence on
“these [§ 3553] objectives, the aggravating and mitigating
factors, [and] the guideline range.”
We recognize that the district court mentioned Burgum’s
inability to pay restitution only once during the sentencing
hearing. We also acknowledge that the court undoubtedly
relied more heavily on other factors in reaching its ultimate
sentencing determination, especially given its focus on the
nature of Burgum’s crime. Moreover, because Burgum’s
counsel unfortunately did not object to the district court’s
consideration of his inability to pay, the court had no occasion
to clarify the weight, if any, it gave to this consideration. We
cannot assume, however, that the court gave no weight to this
factor. After all, the court’s reference to Burgum’s inability to
pay was quite clear. Even this brief reference is troubling in
light of the well settled principle that inability to pay restitution does not justify imposition of a longer term of imprisonment.
Because Burgum did not object in the district court, our
review is for plain error. We may correct only “a plain forfeited error affecting substantial rights [that] ‘seriously affect[ed] the fairness, integrity or public reputation of judicial
proceedings.’ ” United States v. Olano, 507 U.S. 725, 736
(1993) (quoting United States v. Atkinson, 297 U.S. 157, 160
(1936)). We conclude that all of the Olano requirements are
satisfied.
First, it is well established that the Constitution forbids
imposing a longer term of imprisonment based on a defendant’s inability to pay restitution. The Supreme Court first

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articulated this principle in Williams v. Illinois, 399 U.S. 235,
240-42 (1970), which held that the Constitution forbade the
state from imposing on the indigent defendant a term of
imprisonment beyond the statutory maximum so that he might
“work off” a fine he was unable to pay. In Tate v. Short, 401
U.S. 395, 398-99 (1971), the Court extended Williams, concluding that the Fourteenth Amendment prohibits imposition
of a jail sentence as an alternative to a monetary penalty for
a defendant unable to pay. Bearden v. Georgia, 461 U.S. 660
(1983), again held that the Fourteenth Amendment forbids a
sentencing court from imposing a term of imprisonment in
lieu of a fine the defendant cannot pay, at least without considering alternative means of punishment or finding willful
nonpayment. See id. at 667-68 (“[I]f the State determines a
fine or restitution to be the appropriate and adequate penalty
for the crime, it may not thereafter imprison a person solely
because he lacked the resources to pay it.”).
[3] To be sure, Bearden recognized that “the sentencing
court can consider the entire background of the defendant,
including his employment history and financial resources.” Id.
at 670 (citing Williams v. New York, 337 U.S. 247, 250 &
n.15 (1949)). Bearden thus does not pose an absolute constitutional bar to consideration of a defendant’s financial status.
For example, Bearden permits a sentencing court to consider
the defendant’s ability to pay restitution in deciding to impose
a more lenient sentence. See United States v. Menyweather,
447 F.3d 625, 634 (9th Cir. 2006) (“We . . . observe that the
district court’s goal of obtaining restitution for the victims of
Defendant’s offense . . . is better served by a non-incarcerated
and employed defendant.”), abrogation on other grounds recognized by United States v. Munoz-Camarena, 621 F.3d 967,
969 (9th Cir. 2010) (per curiam). But Bearden’s allowance for
limited consideration of the defendant’s financial background
does not undermine the core constitutional prohibition against
imposition of a longer prison term as a substitute for a monetary penalty. This interpretation of Bearden is confirmed by
our holding in United States v. Parks, 89 F.3d 570 (9th Cir.

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1996), in which we read Bearden and its predecessors to prohibit imposition of a longer term of imprisonment solely due
to poverty. See id. at 572 (“[The defendant] may be receiving
an additional eight months on this sentence due to poverty.
Such a result is surely anathema to the Constitution.” (citing
Tate, 401 U.S. at 397-98)). In sum, under Bearden and Parks,
the Constitution prohibits imposition of a longer prison term
based on the defendant’s poverty, although it does not forbid
all consideration of the defendant’s financial resources.
[4] The Sentencing Guidelines make socio-economic status an impermissible basis for an upward or downward departure. See United States v. Chastain, 84 F.3d 321, 326 (9th Cir.
1996) (holding that the need to provide restitution “may not
be used as a basis for departure from a guideline range”);
U.S.S.G. § 5H1.10 (“Socio-Economic Status . . . [is] not relevant in the determination of a sentence.”). After United States
v. Booker, 543 U.S. 220 (2005), of course, the guidelines’
directive is advisory only. As we explained in Menyweather,
Booker gives district courts “the discretion to weigh a multitude of mitigating and aggravating factors . . . such as age,
education and vocational skills, mental and emotional conditions, employment record, and family ties and responsibilities.” Menyweather, 447 F.3d at 634 (citation, internal
quotation marks and italics omitted). Thus, post-Booker, a
district court may consider the defendant’s socio-economic
status as part of its broad review of the defendant’s background, despite the guidelines’ instruction to the contrary. A
court may, for example, impose a reduced sentence to further
the legitimate sentencing goal of providing restitution by
allowing the defendant to work. Compare Menyweather, 447
F.3d at 634, with Parks, 89 F.3d at 572 (holding, pre-Booker,
that the Sentencing Guidelines as well as the Constitution forbid harsher sentencing based on inability to pay fines), and
Chastain, 84 F.3d at 325 (concluding, before Booker, that
“[a]llowing a sentencing judge to reduce a defendant’s sentence to preserve a defendant’s job and facilitate restitution
would introduce precisely the type of socio-economic dispar-

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ity into sentencing that the Guidelines were designed to eliminate.”). Nonetheless, Booker left intact the constitutional
principles articulated in Bearden, Tate and Parks. Those well
settled principles dictate our conclusion that the district court
erred by treating Burgum’s inability to pay as an aggravating
factor.
We also conclude that the error was plain. Again, although
its reference to Burgum’s financial status was brief, the district court explicitly said it considered Burgum’s inability to
pay to be an “aggravating factor.” As we have explained, the
authority forbidding such an approach is abundant and unambiguous. See, e.g., Bearden, 461 U.S. at 674; Parks, 89 F.3d
at 572. Because the district court cited Burgum’s inability to
pay restitution as one of the aggravating factors on which its
sentence calculation was based, the error affected Burgum’s
substantial rights.
[5] Finally, we hold that the district court’s reliance on
Burgum’s inability to pay “seriously affect[ed] the fairness,
integrity or public reputation of judicial proceedings.” Olano,
507 U.S. at 736 (citation and internal quotation marks omitted). We recognize that the district court, in its sentencing colloquy, strongly emphasized several other aggravating factors,
particularly the nature of Burgum’s offense conduct and its
likely effect on bank employees. But we have made clear that
“class and wealth distinctions . . . have no place in criminal
sentencing” under these circumstances. United States v.
Bragg, 582 F.3d 965, 970 (9th Cir. 2009); see also Parks, 89
F.3d at 572 (holding that imposition of a longer term of
imprisonment due to poverty is unconstitutional). By invoking Burgum’s inability to pay as an “aggravating factor” and
emphasizing that its sentencing decision was based in part on
aggravating factors, the court improperly injected socioeconomic status into the sentencing calculus. Because we cannot be sure the district court did not weigh this factor in the
balance, its inclusion compromised the fairness and integrity
of the sentencing proceeding.

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[6] We therefore conclude that the district court’s treatment of Burgum’s inability to pay restitution as an aggravating factor constituted plain error.
VI.
We hold that the district court did not improperly base its
sentencing analysis on the statutory maximum, and that the
sentence imposed was not substantively unreasonable. Nonetheless, because the district court’s treatment of Burgum’s
inability to pay was plain error affecting substantial rights that
compromised the fairness and integrity of the sentencing hearing, we vacate and remand for resentencing without consideration of Burgum’s inability to pay.
VACATED AND REMANDED.

O’SCANNLAIN, Circuit Judge, dissenting:
Joseph Case Burgum pled guilty to two counts of bank robbery. As noted, in both robberies Burgum approached the
bank manager and identified himself as an FBI agent. Burgum
handcuffed both managers to a black box which Burgum
claimed was a bomb. Burgum then displayed a remote control
and said something to the effect of: “I’ve activated the bomb.
This device is a remote control. If I press this button, it will
blow you and half this building up.”
At sentencing, the district court calculated a Guidelines
range of 108-135 months, but, ultimately, departed upward to
a sentence of 180 months. During a lengthy sentencing hearing, the district court noted that one aggravating factor,
among many, was that Burgum was unlikely to repay the
money that he stole from the banks. The majority concludes
that such mention of Burgum’s unlikeliness to pay restitution

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mandates that we vacate Burgum’s sentence and remand for
resentencing.
I agree that Ninth Circuit precedent prohibits the sentencing
judge from treating Burgum’s financial situation as an aggravating factor. But, as the majority concedes, because Burgum
did not object to the district court’s considering his inability
to make restitution, our review is for plain error. We may
vacate and remand only if there is “plain forfeited error affecting substantial rights that seriously affect the fairness, integrity or public reputation of judicial proceedings.” United
States v. Olano, 507 U.S. 725, 736 (1993). For an error to
affect a defendant’s “substantial rights,” the defendant typically must show that the error “affected the outcome of the
district court proceedings.” Id. at 734. A review of the record
here demonstrates that Burgum’s sentence was driven by the
violent method by which he accomplished the robberies and
that Burgum’s inability to make restitution for his crimes did
not affect his sentence. Therefore, I respectfully dissent.
After calculating the Guidelines range and noting some
mitigating factors, the sentencing judge said that he “found
some very troubling, aggravating factors here, too.” “The
problem and issue that I am struggling with in this case,” the
judge continued, “and what was so upsetting to me was the
nature of these bank robberies that [Burgum] did. First and
foremost I just find the infliction of emotional distress on the
bank manager and the tellers to be incomprehensible. I can’t
imagine the terror that they must have fe[lt] and . . . will continue to feel.” The judge indicated that Burgum’s robberies
were “more terrifying” than most “because of the use of the
hoax bomb,” calling the robberies “cold and calculated,” as
well as “very cruel and tormenting to the victims.” “And
that’s what troubles me the most about this case,” he added.
After noting some other aggravating factors, the judge
moved to his standard discussion of factors he considers at
sentencing (drawn, of course, from 18 U.S.C. § 3553(a)).

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When the judge reached the need to provide restitution, section 3553(a)(7), he was reminded of another aggravating factor: “One additional aggravating factor that I didn’t mention,”
the judge noted, is that “the chances of restitution in this case
are probably slim, maybe even null,” given that Burgum
appeared unlikely to pay back the $258,280 he owed to the
banks.
The judge revealed that he intended to depart upward to a
sentence of fifteen years. He then noted that “what is . . . driving me on the sentence is the nature of this offense. This is
about as bad a bank robbery as I can imagine.”
The sentencing judge echoed this statement several more
times throughout the lengthy proceeding:
•

“[A]gain, what is upsetting to me is the nature of
the offense.”

•

“These offenses were two very, very serious robberies with hoax bombs; letting people [believe]
that, at any moment, they could be blown to
smithereens . . . . I have never seen anything like
that. And, I’m actually surprised that everyone
was saying [that a] seven and a half year[ ]” sentence was appropriate.

•

“I can get past the criminal history . . . . But I just
can’t get over the cruel and unusual, violent
nature of the robberies, to say that a seven-and-ahalf year sentence is appropriate. I just can’t do
that.”

•

A seven-and-a-half year sentence “does not
reflect the seriousness of what happened here.”

•

“[W]hen I look at this offense, it was terrifying
to me. It was absolutely terrifying. . . . I would

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rather [have] a gun pointed at me than someone
attaching” a bomb to my wrist. “I haven’t seen
. . . anything as cruel as that.”
•

“There is a part of me that has compassion and
mercy for Mr. Burgum. . . . But the thing that is
upsetting to me, even as I speak, is I’m just envisioning handcuffs, attached to my wrist and telling me . . . I could be blown up. That’s just
frightening. It’s an act of terror. I can’t get by the
seriousness of the offense.”

Viewed in the context of the sentencing as a whole, it is
abundantly clear to me that the district judge upwardly
departed because of the violent nature of the robberies, and
that the judge’s reference to unlikely restitution was an incidental observation that did not affect the sentence.
I respectfully dissent.