FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 03-30381 Plaintiff-Appellee,

D.C. No.

v.  CR-02-00220-ALH

CLEBURNE JR BRIGHAM,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Oregon

Ancer L. Haggerty, District Judge, Presiding

Argued and Submitted

November 2, 2004—Portland, Oregon

Filed May 5, 2006

Before: Warren J. Ferguson, Stephen S. Trott, and

Andrew J. Kleinfeld, Circuit Judges.

Opinion by Judge Kleinfeld;

Concurrence by Judge Ferguson

5069
COUNSEL

Brian Peterson (argued) and Jeffrey Schwartz, Attorneys at

Law, San Francisco, California, for Defendant-Appellant Cleburne JR Brigham. 

Michael K. Atkinson (argued), United States Department of

Justice, Criminal Division, Fraud Section, Washington, D.C.,

and Karen J. Immergut, and Allan M. Garten, Office of the

United States Attorney, District of Oregon, for PlaintiffAppellee United States of America.

UNITED STATES v. BRIGHAM 5071
OPINION

KLEINFELD, Circuit Judge: 

This is a sentence appeal. We affirm because Brigham did

not object to the claimed errors and because the errors do not

qualify as “plain.” 

I.

FACTS

Brigham and others bought a successful restaurant in Portland. He looted it, and it failed. He also applied for a number

of loans totaling more than $1 million dollars, lied on his loan

applications, and got some of them. Hundreds of thousands of

dollars went into the restaurant and out to Brigham for various

improper purposes, including $88,520 for vehicle expenses

and $162,342 for personal expenses. Brigham even delayed

turning over tips to the restaurant employees for weeks after

they had earned them. Eventually, the restaurant went into

bankruptcy and the United States Trustee discovered what had

been going on. 

Brigham’s indictment included three counts of making

false statements on a loan application,1 one count of making

false statements to the Small Business Administration,2 and

two counts of misusing a Social Security number.3 He had

lied in his loan applications about what his Social Security

number was, whether he had ever been charged with a crime,

whether he had been involved in bankruptcies, and what his

liabilities were. The loan applications in the indictment added

up to $1,232,570. The presentence report says he was refused

a $697,000 loan, but that he and his associates got $168,995

1

18 U.S.C. § 1014. 

2

18 U.S.C. § 1001. 

3

42 U.S.C. § 408(a)(7)(B). 

5072 UNITED STATES v. BRIGHAM
to purchase and $30,000 to capitalize the restaurant, then

another $169,500 for the restaurant, and then Brigham got

$196,875 to buy a house. He and his associates pledged stock

to get the $168,995 loan. The lenders got some payments, but

wound up losing $308,732 on the fraudulently obtained loans.

He entered into a plea agreement and pleaded guilty to a six

count indictment, largely in return for the three-point early

acceptance of responsibility deduction4 and the government’s

agreement not to charge his wife. Brigham’s sentence was

higher than he or the government expected — 37 months

instead of 24 months — because his criminal history turned

out to be at level III instead of level I on the guidelines table.5

Brigham had previously been jailed for 60 days for criminal

contempt in state court. The contempt was for violating an

injunction against selling securities and was imposed after

Brigham fraudulently sold unregistered securities. He was still

on probation for that offense when he misused a Social Security number in his indictment on the $196,875 loan application.

His total sentence in this case was 37 months in custody, 5

years of supervised release, $308,732 in restitution, and $600

in special assessments. 

II.

ANALYSIS

Brigham appeals the district judge’s participation in a “sentencing council,” use of the pledged stock to generate a two

point upward adjustment for violating a court order, and the

sentencing judge’s calculation of the loss. 

4

See U.S.S.G. § 3E1.1 (1997). 

5

See U.S.S.G. § 4A1.1 (1997); see also Sentencing Table, U.S.S.G. Ch.

5, Pt. A (1997). 

UNITED STATES v. BRIGHAM 5073
A. The Sentencing Council

Oregon has a procedure — unusual to us but evidently long

established there — of regular sentencing council meetings

for the district judges. According to a 1981 Federal Judicial

Center study, sentencing councils of this sort were a reform

implemented in four districts, intended to reduce sentencing

disparity in that pre-guidelines period.6 But the study’s findings showed that the councils increased disparity in about as

many categories as they reduced it, and mostly did not affect

disparity at all.7

Evidently sentencing councils are still used, or at least were

when Brigham was sentenced. They were no secret. At Brigham’s sentencing hearing, the judge referred to the discussions that he had participated in regarding Brigham’s case at

the sentencing council. For example, when Brigham’s lawyer

made a point regarding calculation of loss, the district judge

described the discussion he had participated in at the sentencing council regarding the cases that bore on the issue:

Well, I appreciate that. And this matter was discussed at sentencing council this morning, and it

would appear to a number of us that the case cited

by Mr. Ungar, the Shaw case, would lead one to this

finding and not the McCormick case that the government relies upon, and it only slightly changes the

ultimate sentencing range. And, in fact, it probably

did not end up making a substantial difference in the

actual sentence that the court imposes. 

Brigham did not object to the judge’s participation in the

sentencing council before the sentencing, nor did he object

during sentencing, even after the judge expressly described

6

See The Effects of Sentencing Councils on Sentencing Disparity at v,

(Federal Judicial Center 1981). 

7

See id. at 1. 

5074 UNITED STATES v. BRIGHAM
the council’s participation in his case. It was only after Brigham had been sentenced to a disappointing 37 months that he

raised any issue regarding the sentencing council. During a

motion for release pending appeal, Brigham argued that his

appeal was likely to succeed because the sentencing judge had

participated in a sentencing council. The judge expressed his

concern that Brigham had not previously objected and

described how the Oregon sentencing council works:

Well, as noted by the government at the time of the

sentencing, there was no objection to the fact that

this district still has what we still call a sentencing

council. And, had there been objection, the court

could easily have called witnesses to detail exactly

how the sentencing council operates. It’s just a matter of having the benefit of other judicial interpretations of the sentencing guidelines that aids the

sentencing court insofar as the appropriate sentence.

Sentencing council recommendations are not

binding upon the sentencing judge in any respect,

and oftentimes I’ve read the newspaper following a

sentencing council and said gees, did we discuss that

case or not, because the sentencing judge has total

discretion to totally ignore or follow the recommendations. It just depends on what he or she believes is

the appropriate sentence to impose. Oftentimes the

guidelines issues are such that other judges over the

course of their experience have dealt with that particular guideline before and could give a newer judge

assistance in making the appropriate disposition. 

On appeal, Brigham argues that the sentencing council is a

prohibited ex parte communication and that its use amounts

to plain error under a Seventh Circuit case, United States v.

Spudic.8

8United States v. Spudic, 795 F.2d 1334 (7th Cir. 1986). 

UNITED STATES v. BRIGHAM 5075
None of the authorities discussed by Brigham or by the

concurrence establish whether it is error to use the sort of sentencing councils used in Oregon. The same phrase, “sentencing council,” meant something altogether different in Spudic.

There, it was a meeting of the judge with “a number of probation officers,”

9

 and the Seventh Circuit disapproved of the practice.10 Some of the reasons the Spudic court disapproved of

the sentencing council in that case would be relevant to the

Oregon sentencing council. Spudic says that the sentencing

judge might be tempted to abide by the institutional consensus

rather than his own judgment, and that the impact of the incourt presentations might be unduly minimized.11 But other

reasons undergirding Spudic are irrelevant, such as a concern

that a probation officer who did not prepare the presentence

report might tell the judge something adverse about the defendant that the defendant would never get a chance to challenge.12

Probation officers do not participate in the Oregon sentencing

council. Spudic does not even establish that a sentencing

council consisting of district judges would be error in the Seventh Circuit. It is true that the views of other judges might

carry more weight than those of probation officers. On the

other hand, a judge might have a concern with staff morale if

he disregarded the views of a large group of probation officers, but not if he disregarded the views of other judges. 

[1] The Fourth Circuit held in United States v. Johnson13

that an ex parte meeting of the sentencing judge with the two

probation officers who prepared the presentence report was

unobjectionable. We have also had some related cases. In

United States v. Davis, we held that it was “entirely proper”

for a judge to discuss the presentence report and sentence with

9

Id. at 1336. 

10See id. at 1343-44. 

11See id. at 1343. 

12See id. 

13United States v. Johnson, 935 F.2d 47, 51-52 (4th Cir. 1991). 

5076 UNITED STATES v. BRIGHAM
the probation officer who prepared the report outside the

defendant’s presence.14 In United States v. Gonzales, the most

relevant of the cases cited by the parties, the defendant

brought a Due Process challenge against the use of the Oregon sentencing council and a discussion between the sentencing judge and the probation officer who prepared the

presentence report.15 The defendant in Gonzales sought an

evidentiary hearing to find out what was said about his case

at the sentencing council and what was said between the judge

and the probation officer.16 We held that the defendant was

not entitled to the evidentiary hearing and accepted the sentencing judge’s record statement that the probation officer had

disclosed no new facts to him in the ex parte conversation.17

[2] In the face of these authorities, there is no way that the

use of a sentencing council could fairly be called “plain

error,” regardless of whether its use is error. Plain error is “(1)

error, (2) that is plain, and (3) that affects substantial rights.”

18

For error to qualify as “plain,” it must be “so clear-cut, so

obvious, [that] a competent district judge should be able to

avoid it without benefit of objection.”

19 If an error is not

“clear” or “obvious” from the record, the defendant’s failure

to object is fatal.20 Brigham’s failure to object is important

because, if he had objected, the sentencing judge could have

developed a record as he explained in the post sentencing discussion. Or the sentencing judge could have decided not to

participate in a sentencing council in Brigham’s case. Or he

could have reconsidered the sentence without regard to what

14United States v. Davis, 527 F.2d 1110, 1112 (9th Cir. 1975). 

15United States v. Gonzales, 765 F.2d 1393, 1396 (9th Cir. 1985). 

16See id. at 1398. 

17See id. at 1396. 

18United States v. Cotton, 535 U.S. 625, 631 (2002); see also United

States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en banc). 

19United States v. Smith, 424 F.3d 992, 1002 (9th Cir. 2005). 

20United States v. Olano, 507 U.S. 725, 734 (1993). 

UNITED STATES v. BRIGHAM 5077
the other judges had said at the council. A canny defendant

facing a tough sentencing judge might purposely withhold

objections for tactical reasons in the hope that the sentencing

council would hold the harsh judge down, saving his objection for later in case the sentencing turned out worse than

expected. 

[3] None of the cases we have been directed to suggests

that using a sentencing council like the one used in this case

is error. Because the error in using the Oregon sentencing

council was not “plain,” we do not have occasion in this case

to decide whether it was error at all. This is where we part

ways with Judge Ferguson’s concurrence. We do not hold that

the Oregon sentencing council procedure is error, and we do

not hold that it is not error. We only hold that it is not “plain”

error. 

B. The Pledge of Stock and Calculation of Loss

[4] Brigham next argues that the district court erred in finding that Brigham violated a judicial order and imposing the

consequent two-level enhancement under Sentencing Guidelines § 2F1.1(b)(3)(B).21 He claims that the order he violated

only prohibited “selling or offering to sell” stocks, not pledging them as collateral. The state court injunction he was held

in criminal contempt for violating prohibited him from

directly or indirectly selling or offering to sell any security in

Oregon. The evidence at sentencing demonstrated that he

directed another to pledge stock as collateral and argues that

pledging stock as collateral does not amount to “selling or

offering to sell.” We have rejected the argument that pledging

stock is not a sale. Following the Supreme Court’s decision

in Rubin v. United States,

22 we held that a pledge of stock is

a sale in United States v. Kendrick.

23

21See U.S.S.G. § 2F1.1(b)(3)(B) (1997). 

22See Rubin v. United States, 449 U.S. 424, 431 (1981) (Holding that

a pledge of stock is an offer or sale). 

23See United States v. Kendrick, 692 F.2d 1262, 1265 (9th Cir. 1982)

(Pledge of stock is a sale). 

5078 UNITED STATES v. BRIGHAM
[5] Brigham also argues that there was not enough evidence

for the district court’s calculation of the amount of loss. The

calculation of loss relied heavily on the probation officer’s

analysis in the presentence report and the United States Trustee’s report, a seven page, single-spaced, detailed analysis

accompanied by 13 pages of attachments. These documents

are sufficiently detailed to provide an ample basis for the calculation the district court made. Brigham has identified no

particular error, but argues that he “would need to comb

through hundreds of boxes of documents in order to refute it.”

He does not claim lack of access to the documents, by which

he evidently means the records from his own restaurant.

Rather, he is not inclined to search them in the hope that an

error might be found. Neither are we. 

[6] We AFFIRM, except that we grant a limited

REMAND to allow the district court to answer the question

whether it would have imposed a different sentence had the

Guidelines been viewed as advisory.24

FERGUSON, Circuit Judge, concurring in the judgment: 

I concur in the majority’s remand in light of United States

v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc). I write

separately, however, to disagree with the majority’s acceptance of the use of a sentencing council in determining Brigham’s sentence. Brigham entered into a plea agreement with

the Government for a sentence of twenty-four months. After

meeting with a sentencing council, the District Judge

increased Brigham’s sentence to thirty-seven months. Neither

Brigham nor the public will ever know what impact the council had on Brigham’s increased sentence because neither party

in the case was allowed to attend the sentencing council meet24See United States v. Ameline, 409 F.3d 1073, 1079 (9th Cir. 2005) (en

banc). 

UNITED STATES v. BRIGHAM 5079
ing, and a record of the exchange was not disclosed. Brigham’s mere knowledge that a sentencing council was used in

his case does not remedy this harm. 

The majority underestimates the “potential for abuse,” the

“doubtful appearance, and the possible misunderstanding” of

sentencing council proceedings that take place outside the

defendant’s presence. United States v. Spudic, 795 F.2d 1334,

1344 (7th Cir. 1986). In Spudic, for example, the Seventh Circuit held that, while a judge may confer with his particular

probation officer, the use of a sentencing council made up of

several probation officers could not be sanctioned regardless

of its supposed benefits. Id. Even though Spudic dealt with a

sentencing council made up of probation officers, and this

case deals with a sentencing council consisting of judges, the

same principle prohibiting ex parte communications between

the sentencing judge and outside parties applies to either form

of sentencing council. See id. at 1343-44 (describing probation officer sentencing council as an ex parte conference).

Canon 3 of the Judicial Code of Conduct, which dictates protocol for federal judges, explicitly requires that a bench officer “neither initiate [n]or consider ex parte or other

communications concerning a pending or impending proceeding.” See FED. R. DECISIONS, CANON 3(4). When a judge relies

on secret discussions with other judges to make a decision in

his case, the judge necessarily initiates ex parte communications. 

In this case, the Government contends that Brigham was

not harmed by these ex parte communications because the

District Judge only discussed case law that was favorable to

the defendant with the council. Even if that is true, “we are

concerned with the institutionalized use of this sentencing

council procedure because of the concern and doubts which

it can understandably foster in the minds of defendants, their

counsel, and the public.” Spudic, 795 F.2d at 1343. Because

the council meets ex parte, the full extent of any possible

harm caused by the sentencing council will never be known

5080 UNITED STATES v. BRIGHAM
by either party unless the District Court chooses to disclose it.

Faith in the integrity of sentencing judges leads me to agree

that a judge should normally not need to defend or explain

every element he relies on in his sentencing decision. See id.

at 1344. Such integrity, however, must be bolstered by transparent procedural safeguards, such as public hearings that do

not require the parties and the public “to accept the sentencing

council deliberations on faith.” Id. Secret sentencing councils,

rather than being justified by a judge’s integrity, may call it

into question. This is the harm caused by ex parte communications. 

The majority notes that United States v. Gonzales, 765 F.2d

1393, 1398-99 (9th Cir. 1985), does not disapprove of Oregon’s sentencing councils. However, Gonzales also does not

expressly approve of such councils; this Court’s analysis was

directed at whether communications between the sentencing

judge and the probation officer during the sentencing process

were improper. Id. (rejecting defendant’s claim that probation

officer acted improperly by engaging in “ex parte advocacy”).

This Court previously established in United States v. Davis,

527 F.2d 1110, 1112 (9th Cir. 1975), cert. denied, 425 U.S.

953 (1976), that a judge can discuss the presentence report

and sentence with the probation officer outside the defendant’s presence. Gonzalez adopted the Davis holding. 765

F.2d at 1398. This Court has not yet directed its analysis at

sentencing councils, such as Brigham’s, that are comprised

exclusively of judges. Yet, the reasoning of Spudic demonstrates use of such a council, consisting of either probation

officers or judges, is an error. 

In addition to constituting a troubling ex parte communication, the use of a sentencing council erodes the wellestablished principle that federal judges should be independent and insulated from group pressures. Article III of the

Constitution provides life tenure and undiminished due compensation to federal judges to preserve their autonomy.

UNITED STATES v. BRIGHAM 5081
Indeed, early constitutional debates in this country underscore

the importance of judicial independence and insulation: 

[The] independence of . . . judges is equally requisite

to guard the Constitution and the rights of individuals from the effects of those ill humors, which . . .

the influence of particular conjunctures . . . sometimes disseminate among the people themselves, and

. . . have a tendency, in the meantime, to occasion

dangerous innovations in the government, and serious oppressions of the minor party in the community. 

The Federalist No. 78 (Alexander Hamilton). Sentencing

councils require judges to be privately inter-dependent, which

makes the judicial process dangerously susceptible to

improper communal pressure. 

A judge, of course, is not prohibited from consulting other

judges. See FED. R. DECISIONS, CANON 3(4) Commentary. But

when proceedings are carried out in secret, it is not possible

to determine whether a decision was the result of permissible

consultation or impermissible pressure. One of the original

purposes of sentencing councils was to reduce sentencing disparity by placing “group pressure [on judges] to conform.”

FEDERAL JUDICIAL CENTER, THE EFFECTS OF SENTENCING COUNCILS ON SENTENCING DISPARITY 1 (1981). In Spudic, the Seventh

Circuit described this potential for group pressure and misunderstanding: 

The sentencing council may have an unrecognized

influence on the sentencing judge causing the judge

to abide by the council consensus. That could lead to

the further concern that the impact of what is subsequently presented in open court at sentencing will be

minimized, that the sentence will be largely foreordained, and that the judge therefore enters the actual

sentencing hearing without an open mind. 

5082 UNITED STATES v. BRIGHAM
795 F.2d at 1343 (emphasis added). Because the sentencing

council met in secret and may have had “an unrecognized

influence on the sentencing judge,” it is not possible to know

if the increase in Brigham’s sentence was the result of impermissible group pressure. Id. We lack basic proof—a record.

The fact that the sentencing council in Spudic consisted of

probation officers and Brigham’s council consisted of judges

makes little difference to this analysis. The peer pressure

exerted by fellow judges, with whom the sentencing judge

must interact on a regular basis both formally and informally,

is likely to have a greater impact than any concern for the

staff morale of probation officers. Judges are also just as

likely to share “additional pertinent adverse information about

the defendant” with the sentencing judge as are probation

officers who did not participate in the preparation of the presentence report. See id. Therefore, a sentencing council consisting of judges, as opposed to probation officers, is as much

if not more damaging to the interest of the defendant in being

sentenced in an individualized, transparent manner. 

Apart from the injustice that results from ex parte communications, sentencing councils should be abolished because

they are unnecessary. To the extent that the Sentencing

Guidelines still play a role in a judge’s determination of a sentence, sentencing councils frustrate any transparency provided

by the advisory use of the Sentencing Guidelines. United

States v. Booker, 543 U.S. 220, 259 (2005) (finding that

“[w]ithout the ‘mandatory’ provision, the [Sentencing Reform

Act] nonetheless requires judges to take account of the Guidelines together with other sentencing goals”). The Sentencing

Reform Act of 1984 and the United States Sentencing Commission both operate to reduce sentencing disparities, supplanting the original purpose of sentencing councils.

S. REP. NO. 98-225, at 52 (1983), reprinted in U.S.C.C.A.N.

3182, 3236 (explaining how a primary goal of sentencing

reform is the elimination of unwarranted sentencing disparity). In fact, when Congress created the Sentencing GuideUNITED STATES v. BRIGHAM 5083
lines, only presentence reports, not sentencing councils, were

meant to supplement the Guidelines. Id. at 53. Congress’s

ultimate goal was to allow “each participant in the system . . .

[knowledge as to] what purpose [was being] achieved by the

sentence in each . . . case.” Id. at 59. Each time a secret sentencing council convenes to assist a judge in rendering a decision, this goal is frustrated. 

The use of sentencing councils is even more troubling in

light of the new, advisory nature of the Sentencing Guidelines. Booker, 543 U.S. at 226. Judges now have greater discretion to impose sentences based on specific facts not

enumerated in the Guidelines. What now protects a defendant

from having outside, undisclosed information influence the

deliberations of the council and, subsequently, the judge’s discretionary sentence? 

Sentencing councils promulgate decisions that are susceptible to impermissible group pressure. An informed judge,

when conducting sentencing, need only use the Sentencing

Guidelines, the presentence report, and arguments and evidence produced in open court to arrive at a decision grounded

in law. We should no longer tolerate these secret ex parte proceedings.

5084 UNITED STATES v. BRIGHAM