United States v. Hammond, No. 12-30337 (2-7-14)(Murphy, D.J., with Tallman and Bea). 

The 9th reversed sentences as being below the statutory minimum, and found no implied waiver of appeal by the government in the plea agreement.  The defendants were convicted of maliciously damaging real property (wildfires) in violation of 18 USC 844(f)(1).  The defendants had started various fires on their private land. The fires supposedly were started to possibly kill off invasive species, or back burn a natural fire.  They however did spread onto public land and got out of control.  There had been other instances too.  The convictions carried a stat minimum of five years.  At trial, the jury came back with some verdicts, and hung on others.  An oral plea agreement was reached where the defendants took the verdicts as rendered, waived appeal rights (except for IAC claims), and the sentences would run concurrent.   At sentencing, the district court sentenced to far below the 5 year minimum, citing 8th amendment concerns.  The 9th found the sentences of 5 years not grossly disproportionate to the dangers of arson.  Congress was within its rights and power to enact a 5 year minimum for such an offense.  Moreover, there was no implied waiver of government appeal rights in the plea.  The sentence is vacated and the case is remanded.