In an important decision that has real-world impact for our clients, Judge Fisher (left) emphasizes the discretion of a district court to fashion a sentence that avoids full custodial confinement. See United States v. Ruff, 2008 WL 2940535(9th Cir. Aug. 1, 2008), decision available here. The opinion sparks a vigorous dissent from Judge Gould, however, who articulates a worrisome skepticism about white collar sentences. See id.
Players: Interesting split: authored by Judge Fisher, joined Judge by Ikuta (W. Bush appointee), dissent by Judge Gould (Clinton appointee).
Facts: Ruff stole stuff. A hospital employee, he took over $640k worth of supplies and sold it on eBay. Id. at *1. When caught he confessed, and ultimately pled guilty to health care fraud, theft, and money laundering. Id. at *1. The PSR’s range was 30-37 months. Id.
At sentencing the judge worked through the § 3553(a) factors, noting Ruff’s employment history, his cooperation and remorse, his support from his siblings, the absence of risk to the public and the appropriateness of restitution, and Ruff’s mental health problems – including pathological compulsive gambling. Id. at *1. The court sentenced Ruff to a year and a day at a particular residential confinement facility, so Ruff could get work release, visit his son, and get counseling. Id. at *1.
When the judge discovered that this jail could only house Ruff if it was a condition of supervised release, he flipped the sentence to one day of BOP custody and three years supervised release – with a condition of a year and a day in the same facility. Id. at *2. The government appealed.
Issue(s): “The government insists that this modification overstepped the bounds of the district court’s sentencing authority.” Id. at *1.
Held: “We disagree. Applying the requisite deferential standard of review, we conclude that the district court did not abuse its discretion and that the sentence it imposed is reasonable.” Id. at *1.
Of Note: Judge Gould isn’t happy. Id. at *4 (Gould, J., dissenting) (“Ruff’s sentence with only one day of imprisonment is not reasonable and we should say so in no uncertain terms.”) The gist of his dissent is that Ruff is a white collar criminal, the whole sentence had been manipulated so Ruff could go to a residential confinement center, and that courts are too soft on white collar crime. Id. at *5-*6. “It seems inescapable that we as a court need to spend more time thinking about the appropriate punishment for white collar crime.” Id. at *6.
In response, Judge Fisher counters with a great collection of low sentences given in a range of crimes. See id. at *3 & n.1. He concedes that “more time thinking about the appropriate punishment for white collar crime” may be appropriate, but counters that Ruff’s case wasn’t treated any differently than other crimes. Id.
Judge Gould’s dissent is worrisome. There are plenty of “liberal” judges who are tired of meting out decades of mandatory-minimum sentences to minority drug defendants, and probation to white, white collar criminals. Of course, unfair and unjust sentences for drug crimes do not require the same unfair and unjust sentences for all crimes. With mortgage fraud cases exploding, however, Gould’s trend bodes ill for our future white collar clients.
How to Use: The important Ruff rule? With the proper § 3553(a) showing, a district court can craft a sentence to control the conditions of confinement and to provide alternatives to incarceration. One of these questions that we had as Apprendi law developed was whether this new sentencing power would let a judge get into the nitty-gritty of custodial conditions.
Turns out, after Gall and Ruff, it does – and with the right § 3553(a) showing, these sentences are safe on appeal. Use Ruff to push for split sentences, home confinement, and intermittent confinement. As in Ruff, use “conditions of supervised release” as the stick to make the mulish BOP actually follow the district court’s orders.
For Further Reading: By happy coincidence, our fellow blogger Steve Sady has just finished his magnum opus “The Sentencing Commission, The Bureau of Prisons, And The Need For Full Implementation Of Existing Ameliorative Statutes To Address Unwarranted And Unauthorized Over-Incarceration.” See blog posting here.
It is excellent.
Sady’s article and Ruff are the keys out of hard custodial time for many of our clients: use both in your next sentencing memo.
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org