FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 08-10221

Plaintiff-Appellant, D.C. No.

v.  2:07-cr-01213-

EHC-1 RANDY L. BRAGG,

Defendant-Appellee. OPINION 

Appeal from the United States District Court

for the District of Arizona

Earl H. Carroll, District Judge, Presiding

Argued February 9, 2009

Submitted September 17, 2009

San Francisco, California

Filed September 23, 2009

Before: John T. Noonan, Marsha S. Berzon and

N. Randy Smith, Circuit Judges.

Opinion by Judge Noonan;

Dissent by Judge N. Smith

13765
COUNSEL

Mark Determan, Washington, D.C., for the plaintiff-appellant.

Anthony E. Colombo, San Diego, California, for the

defendant-appellee.

UNITED STATES v. BRAGG 13767
OPINION

NOONAN, Circuit Judge:

The United States appeals the sentence imposed on Randy

L. Bragg after he pled guilty to two counts of filing false

quarterly employment tax returns in violation of 26 U.S.C.

§ 7206(1). We hold that the district judge failed to explain

adequately the sentence he imposed. Accordingly, we vacate

the sentence and remand with directions that the court explain

its sentence adequately.

FACTS

In 1999, Bragg formed Consolidated Human Resources

Az., Inc. (CHRAZ), an Arizona corporation providing payroll

and other services to clients, taking on the clients’ employees

as its own and leasing them back to the clients. Bragg became

the owner and president of CHRAZ. 

During 2000, CHRAZ had responsibility for the employment taxes of thousands of employees. The clients of CHRAZ

paid the company the employers’ share of employment taxes

and the amounts that the clients withheld to cover the employees’ share. These sums, amounting to $2,000,000, were to be

paid by CHRAZ to the Internal Revenue Service.

For the four quarters of 2000, Bragg, acting on behalf of

CHRAZ, filed federal employment tax returns showing zero

wages paid. For the same period, he filed state returns for

CHRAZ showing over $8,000,000 in wages paid. The federal

returns were false. 

In April 2004, agents of the Internal Revenue Service discovered that there was a discrepancy between the federal

returns and the state returns and that CHRAZ had not filed a

federal corporate income tax return for 2000. On November

6, 2007, Bragg entered into a plea agreement, pleading guilty

13768 UNITED STATES v. BRAGG
to filing false federal employment tax returns for the quarters

ending September 30, 2000 and December 31, 2000. He

agreed that the tax loss was $1,202,600 and that he would

make his best effort to pay this amount by the date of sentencing.

On March 14, 2008, a probation officer filed Bragg’s presentence report. It established that Bragg had been twice convicted of misdemeanor sex offenses, four times of driving

under the influence, and once of obstruction of the mail (for

diverting checks from the IRS from the rightful recipient to

his own post office box). Bragg was still on probation for the

mail offense when he committed the crime at issue here.

Bragg had enlisted in the Marines at the age of 16, served

seven years, had suffered a wound in “a classified incident,”

and had been honorably discharged as a sergeant. In 1992, he

graduated from college at Arizona State University. From

2003-2007, he obtained three master’s degrees from the Keller Graduate School of Business Management. He was currently working for a doctorate in Information Systems at

Cuapella University, Redlands, California. Since 2002, he has

managed Brownstone Corporation, a firm involved in information technology. He had assets of $700,000, debt of

$1,200,000 (the amount owed the IRS), and so a negative net

worth of $500,000. He was currently earning $8,500 per

month from Brownstone Corporation.

On April 11, 2008, the district court began a sentencing

hearing. After accepting Bragg’s plea of guilty, the court

invited him to tell the court about himself and his circumstances. Bragg stated that he had suffered from alcoholism but

in late 2000 had entered a rehabilitation program and

embarked on graduate education. He had started a charity providing scholarships for disabled veterans and underprivileged

persons. He had been current on his taxes since 2000 and he

intended to pay the full amount of tax now owed within

twelve months, borrowing the money “from the companies

UNITED STATES v. BRAGG 13769
my dad runs.” Counsel for Bragg elaborated on his rehabilitation and stated that he had a check for $302,000, ready to pay

as the first installment on the tax owed.

The government had recommended a sentence of two

years, three months, a sentence at the lower end of the Guidelines. The government argued in support of its recommendation. Bragg’s attorney requested home confinement rather

than custody. The court responded that it was inclined to

place Bragg on supervised release. 

On April 14, the sentencing hearing resumed. The court

was informed that Bragg had now at hand $602,000 toward

payment of the tax and had stipulated to pay $50,000 per

month to make up the balance. The court declared that it

would take the payment and the promise into consideration in

framing a sentence.

The government renewed its argument for a prison sentence. The court stated that it had “reviewed the Gall decision

and the circumstances there that the court can consider in

making sentencing determinations.” The court stated that it

had “considered and evaluated” 18 U.S.C § 3553(a) “and the

various factors there.” The court added: “One thing I’ve

learned, I suppose, and maybe it’s wrong to say that in these

sentencing procedures, but sending messages generally don’t

get much beyond the postage on the message. And that

doesn’t do anything for anybody. And that’s just some cliche

that keeps coming up about that. If that were true, given some

of the tax cases that have occurred over the years, why, people would be paying in advance.”

The court then noted that CHRAZ no longer existed; that

the offenses were “serious;” and that payment of the $600,000

plus the promise to pay in full were remarkable. As to “just

punishment,” the court declared,” certainly part of that is the

payment.” The court stated that the payment should include

interest and penalties. The court said it gave particular consid13770 UNITED STATES v. BRAGG
eration to “the viability” of Bragg’s “business activities,” and

to the fact that seven years had passed since the commission

of the crime.

The court then imposed a sentence of 36 months probation,

of which two years were to be served on supervised release;

payment of the $1,200,000 and a special assessment of $200.

The court described the sentence as “a variance.” The court

stated that it was not going to impose a fine.

On April 17, the court sua sponte continued the hearing by

telephone. The defendant was not on the line. The court stated

that it was going to modify the sentence to impose a fine. The

government said that the defendant had to be present. The

court stated, “I hesitate to have the defendant come back.”

The court accepted a waiver of his presence filed by his counsel. The court added a fine of $20,000 to the sentence.

The Amended Judgment reads as follows:

CRIMINAL MONETARY PENALTIES

SPECIAL ASSESSMENT: $200.00 FINE: $20,000. RESTITUTION: $1,202,660.58

This Court finds the defendant does not have the ability to pay

a fine and orders the fine waived.

The defendant shall pay restitution to the Internal Revenue

Service (IRS) in the amount of $1,202,660.58, including any

interest and penalties. The defendant shall make a restitution

payment of $602,660.58 today. The balance of the restitution

shall be pain [sic] in increments of $50,000.00 beginning on

May 1, 2008. The last payment is due on April 1, 2009.

The Court imposes a fine in the amount of $10,000.00 on

each count for a total of $20,000.00 to be paid not later than

ten days from this date.

UNITED STATES v. BRAGG 13771
The government appeals the sentence.

ANALYSIS

Deciding this appeal, we take our cue from the sage advice

of Justice Stevens speaking for the Court in Gall v. United

States, 128 S. Ct. 586 (2007). Each case of sentencing is a

unique case. Id. at 598. A human person is being subjected to

the force of the state. The sentence cannot be calibrated

mechanically by looking at a chart of possible penalties. The

district court has discretion to take into consideration all the

factors in the record. Our job as appellate judges is not to give

the sentence we would have given but to determine whether

the district judge abused the ample discretion vested in him.

Id.; see also United States v. Whitehead, 532 F.3d 991, 993

(9th Cir. 2008). At the same time the district judge “must adequately explain the chosen sentence to allow for meaningful

appellate review.” Gall, 128 S. Ct at 597.

The district judge was “intimately familiar with the nature

of the crime and the defendant’s role in it” and in a “superior

position” to find the relevant facts, to “judge their import,”

and to appraise the sincerity of those testifying at sentencing.

See Whitehead, 532 F.3d at 993. The district judge considered

the Guidelines, the 18 U.S.C. § 3553(a) factors, and the parties’ arguments. He then articulated the basis for exercising

his own decisionmaking authority and imposed sentence

based on the facts as he saw them. See United States v. Carty,

520 F.3d 991, 992, 996 (9th Cir. 2008) (citations omitted);

Whitehead, 532 F.3d at 597. Probation is not leniency. Gall,

128 S. Ct. at 593, 596. Therefore, the sentence should be

affirmed. Q.E.D..

[1] Four things, however, are questionable in the court’s

explanation of the sentence. First, there is the reference to

Bragg’s role in managing his father’s business, Brownstone

Corporation, a position which pays a yearly salary of

$100,000. Bragg’s father — an “accredited tax advisor” —

13772 UNITED STATES v. BRAGG
submitted that his son’s continued management of the business is vital to Brownstowne’s continued viability and success. The record, in fact, is far from clear as to Bragg’s

indispensability in any business. He himself spoke of “the

companies my Dad runs.” In the absence of any financial

records of the business, it is not clear that restitution would be

affected by Bragg’s incarceration.

Bragg relies on United States v. Milikowsky, 65 F.3d 4 (2d

Cir. 1996). The Second Circuit held that the district court in

sentencing a violator of the antitrust laws could take account

of the disastrous effect the defendant’s imprisonment would

have on the employees of the business. The court stated:

Before the court were unrebutted letters and testimony from family members, employees, business

associates, and Milikowsky’s chief trade creditor

attesting to his indispensability to Jordan and Prospect, Milikowsky’s two remaining businesses. This

record, undisputed by the government, allowed the

court to conclude that Milikowsky is the only individual with the knowledge, skill, experience, and

relationships to run Jordan, the steel trading concern,

on a daily basis: he is the sole buyer of all steel, the

only person with the requisite ability and contacts to

buy steel at competitive rates, the most successful

seller, and the person who deals with Jordan’s customers and suppliers. The record allowed the court

to conclude, additionally, that Milikowsky’s daily

involvement at Jordan is necessary to ensure the continuing viability of Prospect, the steel pail company.

Milikowsky is the sole buyer of all the steel Prospect

uses to make pails, and, according to testimony, the

cost advantage attributable to his steel-buying expertise is virtually the only reason that Prospect remains

a viable operation.

On the basis of this evidence, the appellate court concluded

that there was a mitigating factor not adequately taken into

UNITED STATES v. BRAGG 13773
account by the Guidelines, thereby permitting the district

court to exercise its discretion under 18 U.S.C. § 3553(b) and,

departing from the Guidelines, spare the defendant imprisonment. The appellate court noted its decision was in conflict

with the result reached in several other circuits, viz. United

States v. Reilly, 33 F.3d 1396, 1424 (3d Cir. 1994); United

States v. Sharapan, 13 F.3d 781, 785 (3d Cir. 1994); United

States v. Rutana, 932 F.2d 1155, 1158 (6th Cir. 1991), cert.

denied, 502 U.S. 907, 112 S.Ct. 300, 116 L.Ed.2d 243 (1991);

United States v. Mogel, 956 F.2d 1555, 1563-64 (11th Cir.),

cert. denied, 506 U.S. 857, 113 S.Ct. 167, 121 L.Ed.2d 115

(1992).

[2] We need not on this appeal choose between the circuits.

We hold only that the skimpy record before the district court

was inadequate to support or explain its decision and that a

record comparable to that made in Milikowsky may be needed.

On remand, the district court may hear further evidence on

this aspect of the case.

[3] Second, as to the seriousness of the crime, the district

court observed that it was “old.” It was old because of the

time it took to discover and prosecute, factors not in Bragg’s

favor. Although it was old, it had put in jeopardy the clients

who had relied on Bragg to pay the employment taxes. It was

a tax fraud accomplished by breach of trust.

[4] Third, the judge’s expression of doubt that deterrence

works in tax cases ignores, without explanation, a statutory

sentencing factor, “afford[ing] adequate deterrence to criminal conduct.” 18 U.S.C. § 3553(a)(2)(B). The very broad discretion of district judges in sentencing post-Booker does not

extend to ignoring sentencing factors mandated by statute. See

Gall v. United States, 128 S. Ct. 586, 596-97 & n.6 (2007);

id. at 607-08 & n.3 (Alito, J., dissenting); cf. United States v.

Taylor, 487 U.S. 326, 336-37. Of course the judge had seen

the cases where deterrence had not worked. He had no means

of knowing how often it did work. He apparently had a hunch

13774 UNITED STATES v. BRAGG
that it didn’t. The Sentencing Commission, however, has

taken the opposite view, emphasizing that “[b]ecause of the

limited number of criminal tax prosecutions relative to the

estimated incidence of such violations, deterring others from

violating the tax laws is a primary consideration underlying

these guidelines.” U.S. SENTENCING GUIDELINES MANUAL ch. 2,

pt. T, introductory cmt. Congress, in enacting the law, and the

Sentencing Commission, in prescribing prison for tax

offenses, set out a policy. The judge in a particular case may

for particular reasons decide that probation, not prison, will

effectively promote the statutory goal of deterrence. He cannot shrug off the entire policy because his hunch is otherwise.

It may be that the judge’s remark was meant as a by-theway comment and did not affect his sentencing decision.

Remand will provide a chance for him to explain it.

[5] Fourth, the court emphasized that Bragg was about to

pay half the tax he owed and would pay the rest within the

year. The court did not mention or calculate what the interest

and civil penalties amounted to. Interest on the $1.2 million

in underpayment was due for seven years. 26 U.S.C.

§ 6601(a). The interest was to be compounded daily. 26

U.S.C. § 6622. In addition, a mandatory penalty was to be

applied in a case of tax fraud. The penalty that “shall be added

to the tax” is “an amount equal to 75 percent of the portion

of the underpayment which is attributable to fraud.” U.S.C.

§ 6663(a). Here the entire tax loss of $1,200,000 was attributable to fraud. The penalty is $900,000. When this amount is

added to the compound interest owed by Bragg, his promise

to pay did not cover half of his obligations, and his own

resources were entirely inadequate to cover what he appears

to owe. 

[6] Bragg informs us that “he is required to pay interest and

penalties as assessed civilly by the IRS” and that this obligation is “required by both the plea agreement and the judgment.” These liabilities arose from Bragg’s tax fraud. But

UNITED STATES v. BRAGG 13775
Bragg’s payment of them is germane to his criminal sentence.

In considering whether he has done and is doing what he can

do to comply with the obligations arising from his fraud, the

district court should be informed as to these amounts and

what Bragg has done or is doing to pay them.

What was paid at the time of sentencing showed no virtue

in Bragg. He initiated payments only after he had been caught

by IRS investigators, convicted, and either knew that a restitution order was about to issue or was already subject to that

order. The payment of about one quarter of what was owed,

if we count civil interest and penalties, was seven years late.

Payment to the government is not like making restitutions

to a wronged individual. For the government as tax collector,

the amount was comparatively minor. The government’s

interest was in assuring obedience to the law, hence the need

for a message. As for “just punishment” — a factor focused

on by the court — it is not “just punishment” to be made to

do today what you should have done seven years ago.

Moreover, Bragg was able to pay over $1.2 million in restitution within twelve months of sentencing only because he

had ready access to family funds. Allowing a district court to

rely on prompt satisfaction of a substantial monetary sanction

to impose a non-custodial sentence is backwards as a matter

of policy, as the Eighth Circuit has noted: “If district courts

were free to reduce prison sentences as the amount of tax loss

rises, willful tax evaders would benefit as the amount of the

government’s tax loss rises, i.e., the lesson would be the more

you cheat, the more lenient your sentence.” United States v.

Ture, 450 F.3d 352, 359 (8th Cir. 2006). Rewarding defendants who are able to make restitution in large lump sums also

perpetuates class and wealth distinctions that have no place in

criminal sentencing. See U.S. SENTENCING GUIDELINES MANUAL

§ 5H1.10 (“[Race, sex, national origin, creed, religion, and

socio-economic status] are not relevant in the determination

of a sentence.”).

13776 UNITED STATES v. BRAGG
[7] The discretion enjoyed by the district judge does not

eliminate the court of appeals from review of the sentence he

has chosen. The district court had the duty to insure that the

justification for its decision was “sufficiently compelling to

support the degree of the variance.” Gall, 128 S. Ct. at 597.

The district court has committed procedural error. Id.

The parties agree that the text of the judgment is erroneous.

The judgment should be reformed to indicate that a fine was

not waived. The district court should so correct the record.

[8] The sentence imposed by the district court is

VACATED and the case REMANDED for proceedings in

accordance with this opinion.

N. RANDY SMITH, Circuit Judge, dissenting:

I respectfully dissent. The district judge adequately

explained the sentence, did not consider any inappropriate

factors, and did not abuse his discretion. 

As our en banc decision in United States v. Whitehead

instructs, recent Supreme Court’s decisions have “empowered

district courts, not appellate courts . . . [and] breathe[d] life

into the authority of district court judges to engage in individualized sentencing.” 532 F.3d 991, 993 (9th Cir. 2008) (en

banc ) (quoting United States v. Vonner, 516 F.3d 382, 392

(6th Cir. 2008)). “Even if we are certain that we would have

imposed a different sentence had we worn the district judge’s

robe, we can’t reverse on that basis.” Id. at 993 (citing Gall

v. United States, ___ U.S. ___, 128 S. Ct. 586, 597 (2007)).

In my view, the majority opinion vacates a sentence with

which it simply disagrees. Although the majority holds only

that the district judge failed to adequately explain the sentence, its reasoning shows that it has failed to follow the “sage

UNITED STATES v. BRAGG 13777
advice” of precedent that should bind our review. It has also

confused the traditional “role of an appellate court,” which is

not to “substitute its judgment for that of the sentencing court

as to the appropriateness of a particular sentence.” Koon v.

United States., 519 U.S. 81, 97 (9th Cir. 1996) (quoting Williams v. United States, 503 U.S. 193, 205 (1992) (internal

citations omitted)). 

I. The District Court Adequately Explained the 

Sentence.

The record sufficiently shows that the district judge considered the parties’ arguments and had a reasoned basis for the

sentence he imposed. Generally, “the judge must explain why

he imposes a sentence outside the Guidelines.” United States

v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (citing Rita v.

United States, 551 U.S. 338, 127 S. Ct. 2456, 2468 (2007);

Gall, 128 S. Ct. at 594 (indicating that a district judge “must

explain his conclusion that an unusually lenient or an unusually harsh sentence is appropriate in a particular case with sufficient justifications”)). However, “adequate explanation in

some cases may also be inferred from the PSR or the record

as a whole.” Carty, 520 F.3d at 992. Therefore, to determine

whether the judge adequately explained the sentence, we must

view the record as a whole. 

The record confirms that the district judge explicitly stated

why he gave Bragg a below the Guidelines sentence. The

judge specifically referenced consideration of (1) Bragg’s

honorable military service; (2) Bragg’s conduct since 2000

(including his community service, his clean record, his educational achievements, and his alcohol rehabilitation), (3) the

fact that the crime was a one-year problem; (4) that the tax

liability was for an Arizona corporation that no longer exists;

and (5) and the interests of justice in not putting Bragg in

prison for events that occurred many years earlier. He also

expressly considered Bragg’s vital role in continuing a business that employs over 700 individuals. The judge also cred13778 UNITED STATES v. BRAGG
ited Bragg’s restitution payments. Additionally, the judge

stated that he considered the parties’ sentencing memoranda,

reflected on Bragg’s circumstances, and considered the

§ 3553(a) factors and Gall.

The district court is not required to “tick off each of the

§ 3553(a) factors to show it has considered them.” Carty, 520

F.3d at 992. “Nor need the district court articulate in a vacuum how each § 3553(a) factor influences its determination of

an appropriate sentence.” Id. The record is sufficient, and we

can be “satisf[ied] . . . that [the sentencing judge] has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority. Rita, 127 S.

Ct. at 2468 (citing United States v. Taylor, 487 U.S. 326,

336-337 (1988)). Therefore, I would affirm the district court

as having sufficiently explained the sentence.

II. The District Court Did Not Consider Inadmissible

Sentencing Factors.

The majority concludes that the district judge committed

procedural error, because his explanation of the belowGuidelines variance included discussion of several “questionable” items. Majority Op. 13722. I disagree.

First, the opinion faults the district judge for considering

evidence that Bragg had a vital role in managing Brownstone.

“Significant procedural” error can include “selecting a sentence based on clearly erroneous facts.” Gall, 128 S. Ct. at

597 (emphasis added). However, to the extent the district

court selected a sentence on evidence of Bragg’s vital importance to Brownstone, such evidence is not clearly erroneous.

Our review under the clearly erroneous standard is significantly deferential, requiring a “definite and firm conviction

that a mistake has been committed.” See Easley v. Cromartie,

532 U.S. 234, 242 (2001). If the district court’s account of the

evidence is plausible in light of the entire record, we may not

UNITED STATES v. BRAGG 13779
reverse, even if we would have weighed the evidence differently. See Husain v. Olympic Airways, 316 F.3d 829, 835 (9th

Cir. 2002), aff’d, 540 U.S. 644 (2004). “Where there are two

permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.” United States v.

Elliott, 322 F.3d 710, 714 (9th Cir. 2003); see also Hayes v.

Woodford, 301 F.3d 1054, 1067 n.8 (9th Cir. 2002) (internal

quotation omitted) (“To be clearly erroneous, a decision must

strike us as more than just maybe or probably wrong; it must

. . . strike us as wrong with the force of a five-week-old unrefrigerated dead fish.”).

There is evidence in the record to support the district

court’s finding that Bragg was indispensable to his company.

The majority acknowledges the letter from Bragg’s father

(indicating Bragg’s indispensability), but then concludes that

“[t]he record, in fact, is far from clear as to Bragg’s indispensability in any business.” Majority Op. at 13773. Bragg also

testified about his role in the business, explaining that if he

were incarcerated, his father may have to sell the company.

This evidence was unrebutted by the Government. The majority suggests that more evidence (perhaps financial records) is

needed to prove Bragg’s indispensability. However, the standard for procedural error (based on erroneous facts) is not

whether the record is clear as to the asserted fact, but whether

the facts relied on by the district court are clearly erroneous.

See Gall, 128 S. Ct. at 597. Even though Bragg spoke about

“the companies [his] Dad runs,” he also told the court about

“[t]he current companies that my dad owns that I’m running.”

In addition to the letter from Bragg’s father, Bragg’s statements at sentencing and Bragg’s sentencing memorandum

also assert Bragg’s critical importance to his company’s continuing operations. Although we may question whether Bragg

was truly indispensable, the district court’s reliance on evidence (that Bragg ran and was indispensable to Brownstone)

is not procedural error. It is not clearly erroneous, and, therefore, not an “inadmissible” or improper factor.

13780 UNITED STATES v. BRAGG
Second, the majority faults the district court for considering

that the offense of conviction was “old.” The fact that Bragg’s

tax crime was an isolated incident (occurring many years ago)

is at least relevant and cannot be an improper factor for the

district court to consider in imposing a sentence.

Third, the majority makes too much of the district judge’s

statements about deterrence in tax cases. Contrary to the

majority’s assertion, the district judge’s comments do not

“shrug off the entire policy [of deterrence].” Majority Op. at

13775. Rather, in the context of the sentence Bragg received,

the district judge essentially expressed an opinion that a custodial sentence in a tax case does not necessarily serve the

interest of deterrence any greater than probation, fines and

restitution do. This does not mean that he discounted deterrence as a factor in selecting a sentence, but rather that deterrence can be sufficiently achieved with probation, fines, and

restitution. After all, fines, restitution, and probation (with its

attending conditions and consequences) may, in some cases,

be “sufficient, but not greater than necessary to reflect the

seriousness of the offense, promote respect for the law, and

provide just punishment; to afford adequate deterrence; to

protect the public; and to provide the defendant with needed

educational or vocational training, medical care, or other correctional treatment.” See Carty, 520 F.3d at 991 (9th Cir.

2008) (citing 18 U.S.C. § 3553(a) and (a)(2)) (internal quotation marks omitted). 

Depending on the circumstances, probation may be more

effective at balancing the competing objectives of sentencing.

Probation generally places significant restrictions on the liberty of probationers. With appropriate conditions, probation

empowers the court to ensure rehabilitation, full restitution to

victims, payment of fines, protection of the public, and compliance with the law. If the defendant falters or fails to comply, the violation of probation gives the judge power to mete

out greater punishment, including incarceration. As the majority notes, “Probation is not leniency.” Majority Op. at 13772.

UNITED STATES v. BRAGG 13781
It is a “substantial restriction of freedom” that “can have a

significant impact on both th[e] person and society.” Gall,

128 S. Ct. at 593-94, 596 & n.4 (citations omitted). Not only

can probation be sufficient punishment in some cases, but

“§ 3553(a)(3) directs the judge to consider sentences other

than imprisonment.” See Gall, 128 S. Ct. at 602. To the extent

that the district judge expressed a doubtful opinion on the efficacy of custodial sentences in deterring tax crimes, such an

expression does not mean he completely disregarded the interest of deterrence and does not amount to reversible error. The

record is sufficiently clear, and there is simply no need to

remand this case for the district judge to explain his expressions on deterrence in tax cases. 

Fourth, the majority faults the district judge for considering

Bragg’s payment of restitution as a reason for imposing a

non-custodial sentence. Yet, § 3553(a)(7) expressly directs

the district court to consider “the need to provide restitution

to any victims of the offense.” Therefore, the district judge’s

consideration of restitution cannot be procedural error.

The majority also appears to conclude that the district court

should not have considered Bragg’s restitution payment,

because it was insignificant in light of the possible civil penalties the IRS might impose under the Internal Revenue Code.

I do not challenge the majority’s computation of the potential

civil penalties Bragg may be required to pay. But the possibility or even probability that the IRS can or will impose future

civil penalties should not weigh in our analysis. Our review

should turn only on whether the district court violated the law

in considering restitution as a factor, when imposing the sentence, not on our own assessment of whether Bragg’s restitution was significant enough in comparison to the total civil

penalties the IRS could impose.

The majority also reweighs the restitutionary interest

against the government’s interest in “assuring obedience to

the law.” Majority Op. at 13776. It also concludes that

13782 UNITED STATES v. BRAGG
Bragg’s restitution payment was not “just punishment.”

Majority Op. at 13776. The majority discounts that Bragg was

also placed on probation and ordered to pay a fine in addition

to the criminal restitution. More importantly, however, the

majority forgets our role as an appellate court. While we may

disagree with the sentence, “it is not for [us] to decide de novo

whether the justification for a variance is sufficient or the sentence reasonable. On abuse-of-discretion review, [we] should

[give] due deference to the District Court’s reasoned and reasonable decision that the § 3553(a) factors, on the whole, justif[y] the sentence.” Gall, 128 S. Ct. at 602.

Although the parties agree that the judgment erroneously

states that the district court waived any fine, this error is

purely clerical and harmless. The record is clear that the district court ordered Bragg to pay a $20,000 fine, which Bragg

has already paid and which he does not challenge. I see no

reason to remand the judgement for reformation of an unchallenged clerical error.

UNITED STATES v. BRAGG 13783