U.S. v. Bragg, No. 08-10221 (9-23-09). Is a remand for "making a better record" a form of reasonableness determination light? It sure looks that way in this case. The defendant had tax problems in the year 2000. Okay, a bit more severe than just tax problems because he ran a business that was supposed to take care of employment taxes for businesses that subscribed. He paid state employment taxes of 8 million and zero for the feds. That certainly got the attention of the IRS. The defendant plead guilty to tax fraud. The PSR showed that he had two sex misdemeanors, four DUIs, and an obstruction of mail. He explained, though, that he had alcohol problems, but was now sober; that the tax problem was for one year; that he was Marine wounded in a classified incident (verified); that he did charitable work; that he worked for his father's company (employing 700), and that the company might fold if he was not there; and that he could pay back sizable chunks of restitution. The government wanted imprisonment for two years to send a message. The court observed that messages are worth about as much as the postage to deliver, and that he did not set great store by it. He was impressed with the defendant's efforts, and payments, and so put him on probation. The 9th had problems with the court's reasoning. The panel (Noonan joined by Berzon) thought that the court had to explain more, and it took issue with some of the court's reasoning. The panel said that the staleness of the offense was out of the defendant's control; that he did work for "Dad" and that the comments of "deterrence" had to be more than a "hunch" that it did not work. The panel cited the Commission as believing that deterrence in tax cases did work (ed note: questionable on that one). The sense is that the panel did not like the result, and wanted more explanation. Dissenting, N. Smith calls them on it. Under Whitehead, 532 F.3d 991 (9th Cir. 2008) (en banc), the district court is given great discretion. To Smith, the court examined the 3553 factors, weighed and balanced, discussed what was important to the court, and why the sentence served the ends of the statute. This was good enough.

U.S. v. Watson, No. 08-10385 (9-23-09). When you go to San Francisco, be sure to get the permission of your probation officer. A condition of SR here was that the defendant not return to San Francisco without the okay of his p.o. Why? Well, the defendant, convicted of carjacking, ran with a bad crowd, had little adult support, and made questionable friends. The court said that he should meet some nice people instead in Oakland or San Jose when he got out. Defense counsel objected, and after heated argument, the court said "take an appeal" and maybe it won't be waived. The 9th upheld the condition by dismissing the appeal. The panel (Clifton joined by Silverman and M. Smith) first held that there was not error in lack of notice. Sure, this condition was sprung upon defendant at sentencing but the court had advised of the penalties (could be severe) at the change of plea, and there was spirited discussion. A delay would not have changed much. As for the condition, well, it gave them pause; after all, one could leave one's heart in SF, especially if one's family was there (defendant's mother had been hospitalized). However, the p.o. could approve it, and the court had upheld geographical restrictions in the past if it comported with rehabilitation goals. The conditions here, as to the city, was to keep the defendant away from his prior unsavory friends, and for him to start a new life elsewhere, or at least for SR. With that, the panel also found that the condition was therefore not illegal, and the waiver of appeal acted as a bar. The comment by the court -- take an appeal -- was ambiguous(?) as to providing a right, and was not clear because the court had said that there was a waiver.