FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, No. 08-30055

v.  D.C. No.

DUNCAN WILLIAM EDWARDS, CR-03-00058-DWM

Defendant-Appellee. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, No. 08-30056

v.  D.C. No.

DUNCAN WILLIAM EDWARDS, CR-04-00009-DWM

Defendant-Appellee. 

UNITED STATES OF AMERICA,  No. 08-30059

Plaintiff-Appellee, D.C. Nos.

9:04-cr-00009- v.  DWM-1

DUNCAN WILLIAM EDWARDS, 9:03-cr-00058-

Defendant-Appellant. DWM-1

OPINION 

Appeal from the United States District Court

for the District of Montana

Donald W. Molloy, District Judge, Presiding

Argued and Submitted

August 4, 2009—Seattle, Washington

Filed February 16, 2010

2447
Before: Harry Pregerson, Carlos T. Bea and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Pregerson;

Partial Concurrence and Partial Dissent by Judge Bea

2448 UNITED STATES v. EDWARDS
COUNSEL

William Mercer, United States Attorney, Billings, Montana,

for the appellant-cross-appellee.

John Rhodes, Assistant Federal Defender, Missoula, Montana,

for the appellee-cross-appellant.

OPINION

PREGERSON, Circuit Judge:

In 2004, Duncan W. Edwards pleaded guilty to one count

of bankruptcy fraud in violation of 18 U.S.C. § 152(9) and

one count of making a false statement to a bank in violation

of 18 U.S.C. § 1014. Although the advisory Sentencing

Guidelines range called for twenty-seven to thirty-three

months’ incarceration, the district court sentenced Edwards to

five years’ probation (the maximum term of probation), seven

months of which was to be served under house arrest, a

$5,000 fine, and a special assessment of $100 on each count

of conviction. After the Government appealed and the case

was remanded to the district court, the district court imposed

the same sentence. After a second appeal and a second

remand to the district court, the district court imposed the

same sentence of probation but added a restitution order in the

amount of $102,696.07. For the third time, the Government

challenges the district court’s sentence as substantively unreaUNITED STATES v. EDWARDS 2451
sonable. Edwards cross-appeals from the district court’s order

of restitution.

I. BACKGROUND

Duncan W. Edwards is no stranger to the criminal justice

system. In the early 1980s, Edwards made misrepresentations

to banks in Arizona that allowed him to obtain hundreds of

thousands of dollars worth of loans. Edwards admitted that he

made misrepresentations to obtain the loans and pleaded no

contest to felony theft charges in Arizona state court on October 21, 1991. The state court ordered Edwards to pay restitution of $3,057,916.01 to the FDIC, and to serve five years’

probation. The state court later extended probation until July

of 2000. 

After his Arizona conviction, Edwards relocated to Montana. In early 1998, while still on probation for his Arizona

felony, he filled out a loan application in Montana and indicated that he had significant assets. He did not disclose the $3

million FDIC obligation arising from his Arizona conviction.

On December 15, 1998, Edwards filed for bankruptcy personally and for his company, Adventure Motorsports. Subsequently, a Chapter 7 bankruptcy trustee was appointed.

Contrary to Chapter 7 disclosure requirements, Edwards did

not disclose all his assets and liabilities, including the $3 million obligation to the FDIC arising out of his Arizona state

conviction, an expected tax return of $28,000, and other assets

together worth nearly $14,000.1

1Edwards initially filed for Chapter 13 bankruptcy, but the matter was

converted from a Chapter 13 to a Chapter 7 bankruptcy. A Chapter 13

bankruptcy leaves the individual debtor in control of its assets but the

debtor must use income earned during Chapter 13 to pay off creditors. 1

Collier on Bankruptcy ¶ 1.03[6] (Alan N. Resnik & Henry J. Sommer eds.,

15th ed. rev.). In a Chapter 7 bankruptcy, the debtor’s assets are liquidated

and distributed to creditors. There is no repayment plan. In re Coleman,

560 F.3d 1000, 1003 n.2 (9th Cir. 2009). 

2452 UNITED STATES v. EDWARDS
In addition to failing to list these assets and liabilities,

Edwards also initially did not list certain stock options owned

by a corporation of which he owned 100% of the shares.

Edwards amended his Chapter 7 bankruptcy filings to show

that the corporation owned the stock options. Although he

earlier had valued those stock options at $189,000 on his loan

application, he valued the options at $0 in his bankruptcy filings.

During bankruptcy proceedings, the Chapter 7 Trustee

noticed that the stock’s price had jumped. By the time the

Trustee was able to intervene, Edwards had exercised the bulk

of the stock options, receiving net proceeds of $445,000. The

Trustee was able to recover approximately $417,000 of the

proceeds. 

On December 20, 2000, a Bankruptcy Judge approved a

Settlement and Release Agreement between Edwards, the

Bankruptcy Trustee, and several of Edwards’s victims.

Among other provisions, the Settlement Agreement provided

that “[t]his Consent shall not be used or construed as an

admission of liability by any party hereto for any purpose,

except as otherwise expressly provided herein.” Each party to

the Settlement Agreement agreed to release its claims against

Edwards.

Edwards was criminally indicted in December 2003. In

May 2004, he pleaded guilty to one count of bankruptcy fraud

in violation of 18 U.S.C. § 152(9) and one count of making

a false statement to a bank in violation of 18 U.S.C. § 1014.

On September 10, 2004, the district court sentenced

Edwards to concurrent sentences of probation for five years,

seven months to be served under house arrest, a $5,000 fine,

and a $100 special assessment on each count of conviction.

The Government appealed. While the case was pending

before our court, the United States Supreme Court decided

United States v. Booker, 543 U.S. 220 (2005), and this court

UNITED STATES v. EDWARDS 2453
decided United States v. Ameline, 409 F.3d 1073 (9th Cir.

2005) (en banc) (“Ameline II”).

In accordance with Ameline II, a divided panel of this court

reversed and remanded Edwards’s case “for the district court

to determine whether it would have imposed a different sentence had it understood that the Guidelines were advisory.”

United States v. Edwards, 158 F. App’x 930, 931-32 (9th Cir.

2005) (unpublished) (citing Ameline II, 409 F.3d 1073). 

On February 9, 2006, in a short order, the district court concluded that it would not have imposed a different sentence

had it known the Sentencing Guidelines were advisory, and

reimposed the same sentence as it had previously. The district

court did not request the views of the parties in writing or

convene a hearing. The Government again appealed and challenged the reasonableness of the sentence. This court again

reversed and remanded in a memorandum disposition because

it was unable to assess the reasonableness of Edwards’s sentence based on the record before it. United States v. Edwards,

Nos. 06-30163, 06-30165, 2007 U.S. App. LEXIS 20335, (9th

Cir. Aug. 22, 2007) (unpublished). The Edwards II court

vacated Edwards’s sentence and remanded for “full resentencing on an open record.” Id. at *2 (citing United States v. Matthews, 278 F.3d 880, 885-86 (9th Cir. 2002) (en banc)). 

On remand, the United States Probation Office prepared a

new pre-sentence report, and the parties filed new sentencing

memoranda. On January 17, 2007, the district judge held a

sentencing hearing. 

The district court first began by observing that the applicable advisory Sentencing Guidelines range called for a period

of incarceration between twenty-seven to thirty-three months.

The court then turned to each of the factors in 18 U.S.C.

§ 3553(a).

In accordance with § 3553(a)(1), considering the “nature

and circumstances of the offense and the history of the char2454 UNITED STATES v. EDWARDS
acteristics of [Edwards],” the district judge observed that

Edwards appeared to be a much changed individual “than the

person who was somehow engaged in illegal conduct in Arizona.” The district judge noted that the advisory sentencing

range had been calculated based on the loss intended by

Edwards rather than the actual loss. The district judge was of

the view that the Guidelines range, which was calculated

using the intended loss, overstated the circumstances of

Edwards’s case. While acknowledging Edwards’s felony conviction in Arizona, the district court was of the opinion that

Edwards would not engage in similar conduct in the future

and took special note of Edwards’s sincerity during allocution. 

The district court found that a probationary sentence and a

requirement that Edwards make restitution payments satisfied

the statutory requirement that the court “impose a sentence

sufficient, but not greater than necessary.” 18 U.S.C.

§ 3553(a). 

The district court also considered the testimony regarding

Edwards’s conduct over the five years prior to the resentencing hearing, and was of the opinion that “there’s nothing to be

gained based on the circumstances of the offense and his history and characteristics by incarcerating him.”

Considering the need for the sentence “to reflect the seriousness of the offense, to promote respect for the law, and to

provide just punishment for the offense,” 18 U.S.C.

§ 3553(a)(2)(A), the district court acknowledged that

Edwards’s crimes were “extremely serious,” but observed that

Edwards’s “changes in his life prior to any kind of indictment

indicate a respect for the law.”

With regard to providing “adequate deterrence to criminal

conduct,” 18 U.S.C. § 3553(a)(2)(B), the district judge concluded that “general deterrence” was not a significant factor

in this case, although he conceded that general deterrence was

UNITED STATES v. EDWARDS 2455
important in white collar crime cases. The district court judge

reasoned that the fact of Edwards’s felony conviction and the

conditions of probation constituted sufficient specific deterrence to prevent Edwards from engaging in similar conduct in

the future. In addition, the district judge recognized that restitution serves as a deterrent, and that “[t]he term of probation

imposed will enable [Edwards] to continue working in order

to pay the significant amount of restitution he ow[e]s.” 

The district court next considered whether the sentence

would “protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(C). The district judge stated

that “look[ing] at the record with [Edwards] . . . I’m satisfied

that somebody who committed these offenses . . . roughly

nine years ago, and has lived the life that he has lived in the

interim despite all the things that have gone on, I don’t think

there’s a very good likelihood that he would engage in this

kind of business in the future . . . .”

The district court evaluated the need for the sentence

imposed to “provide the defendant with needed educational or

vocational training, medical care, or other correctional treatment in the most effective manner.” 18 U.S.C.

§ 3553(a)(2)(D). At the time of resentencing, Edwards was

sixty-three years old and living with diabetes and related medical complications. Considering the diabetes and related medical complications, the district court reasoned that imprisoning

Edwards would simply pass the cost of medical care on to

taxpayers. While the district court agreed with the Government that the Bureau of Prisons was capable of providing for

Edwards’s medical care, it found that a sentence of probation

would satisfy the requirement of providing needed care in the

most effective manner. 18 U.S.C. § 3553(a)(2)(D).

The district court sentenced Edwards to five years’ probation on both counts, to be served concurrently.2

 Unlike its pre2

In addition to the standard conditions of probation, Edwards’s probation contained special conditions of supervision. Among other things, the

2456 UNITED STATES v. EDWARDS
vious two sentences, however, the district court ordered

Edwards to pay $102,696.07 in restitution. Edwards appeals

from the district court’s order of restitution. The Government

once again challenges the substantive reasonableness of the

sentence. We have jurisdiction under 18 U.S.C. § 3742(b)(3)

and 28 U.S.C. § 1291.

II. DISCUSSION

A. The District Court’s Criminal Restitution Order

We first address Edwards’s argument that the district court

was collaterally estopped from imposing restitution in the

amount of $102,696.07. Edwards contends that the district

court could not impose a restitution order because compensation to Edwards’s victims had already been determined

through the bankruptcy settlement agreement. We review the

legality of an order of restitution de novo. United States v.

Stoddard, 150 F.3d 1140, 1147 (9th Cir. 1998) (citing United

States v. Rutgard, 116 F.3d 1270, 1294 (9th Cir. 1997)). We

also review de novo the application of collateral estoppel.

McQuillion v. Schwarzenegger, 369 F.3d 1091, 1096 (9th Cir.

2004) (citing United States v. Real Prop. Located at 22 Santa

Barbara Drive, 264 F.3d 860, 868 (9th Cir. 2001)). 

[1] We have explained that:

special conditions required Edwards to obtain his probation officer’s

approval before: incurring new lines of credit; filing any bankruptcy petitions; engaging in any type of self-employment or acting as a consultant,

whether paid or not, for any business, corporation, or trust; engaging in

any type of employment involving land development or construction;

opening or obtaining signature authority over any checking, savings, or

credit accounts; and any employment that “would give him access to

money, bank or investment accounts, real or personal property, or inventory of any person or business entity.” The special conditions additionally

required Edwards to provide the probation officer with any requested

financial information. 

UNITED STATES v. EDWARDS 2457
collateral estoppel applies only where it is established that (1) the issue necessarily decided at the

previous proceeding is identical to the one which is

sought to be relitigated; (2) the first proceeding

ended with a final judgment on the merits; and (3)

the party against whom collateral estoppel is asserted

was a party or in privity with a party at the first proceeding.

Hydranautics v. FilmTec Corp., 204 F.3d 880, 885 (9th Cir.

2000) (internal quotations omitted). We have also stated that

“[t]he party asserting preclusion bears the burden of showing

with clarity and certainty what was determined by the prior

judgment.” Offshore Sportswear, Inc. v. Vuarnet Int’l, B.V.,

114 F.3d 848, 850 (9th Cir. 1997) (internal citation omitted).

Edwards’s argument that collateral estoppel applies to prevent

the district court from ordering restitution fails on the first

factor, which considers whether the issue necessarily decided

at the previous proceeding is identical to the one sought to be

relitigated. 

Edwards argues that the bankruptcy settlement resolved the

issue of compensation to his victims and thus precludes relitigation of that issue in the subsequent criminal proceedings. 

[2] Although compensation to Edwards’s victims was the

general issue in the bankruptcy settlement, the issue is not

identical to the issue in the criminal proceedings. The legal

principles underlying the bankruptcy settlement and the later

criminal restitution order differ greatly.

[3] “The purpose of a compromise agreement is to allow

the trustee and the creditors to avoid the expenses and burdens

associated with litigating sharply contested and dubious

claims.” In re A&C Props., 784 F.2d 1377, 1380-81 (9th Cir.

1986). Before approving a settlement agreement, the bankruptcy court is charged with considering the “fairness, reasonableness, and adequacy” of the agreement. Id. at 1381. The

2458 UNITED STATES v. EDWARDS
bankruptcy court must consider a number of factors in making

this determination:

(a) The probability of success in the litigation; (b)

the difficulties, if any, to be encountered in the matter of collection; (c) the complexity of the litigation

involved, and the expense, inconvenience and delay

necessarily attending it; (d) the paramount interest of

the creditors and a proper deference to their reasonable views in the premises.

Id. (quoting In re Flight Transp. Corp. Sec. Litig., 730 F.2d

1128, 1135 (8th Cir. 1984)). In this case, the Settlement

Agreement expressly states that the parties entered into the

agreement “for the purpose of terminating the disputes

between them” and could not be used as an admission of liability by any party. 

The principles guiding the bankruptcy court’s assessment

and approval of the voluntary Settlement Agreement contrasts

sharply with the district court’s duty to impose restitution

under the Mandatory Victims Restitution Act (“MVRA”),

codified at 18 U.S.C. §§ 3663A, 3664. The MVRA requires

the district court, in sentencing a defendant convicted of certain crimes,3

 to order restitution to the defendant’s victims. 18

U.S.C. § 3663A(a)(1). Further, the district court “shall order

restitution to each victim in the full amount of each victim’s

losses . . . without consideration of the economic circumstances of the defendant.” 18 U.S.C. § 3664(f)(1)(A). “In no

case shall the fact that a victim has received or is entitled to

receive compensation with respect to a loss from insurance or

any other source be considered in determining the amount of

restitution.” 18 U.S.C. § 3664(f)(1)(B) (emphasis added).4

3The MVRA requires restitution to victims of “an offense of property

under this title . . . including any offense committed by fraud or deceit.”

18 U.S.C. § 3663A(c)(1)(A)(ii). 

4The settlement did not compensate Edwards’s victims in the full

amount they lost at his hands, and Edwards does not argue that the restituUNITED STATES v. EDWARDS 2459
Victims “may at any time assign the victim’s interest in restitution payments to the Crime Victims Fund . . . without in any

way impairing the obligation of the defendant to make such

payments.” 18 U.S.C. § 3664(g)(2). Finally, the amount of

restitution is offset by any other amounts the victim later

recovers for the same loss in civil proceedings. 18 U.S.C.

§ 3664(j)(2).

Where the bankruptcy court is required to consider the

competing interests of multiple creditors and the strength of

their respective claims to the debtor’s assets in order to

achieve a fair and equitable agreement, the district court’s discretion under the MVRA is much more constrained. See

United States v. Bright, 353 F.3d 1114, 1121 (9th Cir. 2004)

(“In passing the MVRA in 1996, Congress . . . significantly

limited the court’s discretion in setting the amount of . . . restitution.”); United States v. Gordon, 393 F.3d 1044, 1048 (9th

Cir. 2004) (“The primary and overarching goal of the MVRA

is to make victims of crime whole.”).

Because the issue litigated in bankruptcy court was not the

same issue that was litigated in Edwards’s criminal proceedings, we hold that collateral estoppel does not apply and that

the district court was not barred from ordering restitution to

Edwards’s victims.5

[4] Furthermore, the district court correctly relied upon

United States v. Cloud, 872 F.2d 846 (9th Cir. 1989), to conclude that the existence of a prior bankruptcy settlement does

not preclude a subsequent criminal restitution order. Cloud

considered the federal restitution scheme under the Victim

tion order results in double recovery to them. The issue of double recovery

is, therefore, not before us, and we express no opinion as to the permissibility of double recovery under the MVRA. 

5Because Edwards’s claim fails on the first factor, we need not address

the other factors in detail. 

2460 UNITED STATES v. EDWARDS
and Witness Protection Act (“VWPA”). Id. at 848. In Cloud,

the defendant was convicted of multiple counts of bank fraud

and ordered to pay $7.5 million in restitution. Id. Prior to sentencing, the defendant entered into settlement agreements

with the defrauded banks. Id. at 853. As part of the settlement

agreements, the banks agreed to waive “all direct rights or

causes of action” against the defendant. Id. The defendant in

Cloud argued that the terms of the settlement agreement prevented the district court from ordering restitution in favor of

the banks. Id.

[5] We affirmed the restitution order, reasoning that the

banks did not have “a pre-existing ‘right’ to receive restitution

under the VWPA that it could assert or waive.” Id. at 854. We

further looked to Supreme Court precedent holding that

“criminal restitution is not ordered because victims have an

independent legal entitlement to it but, rather, as a means of

achieving penal objectives such as deterrence, rehabilitation,

or retribution[.]” Id. at 854 (discussing Kelly v. Robinson, 479

U.S. 36, 52 (1986)). 

[6] We have held that, other than making restitution mandatory and precluding the sentencing court from considering

the defendant’s economic circumstances when ordering restitution, the VWPA and the MVRA “are identical in all important respects, and courts interpreting the MVRA may look to

and rely on cases interpreting the VWPA as precedent.” Gordon, 393 F.3d at 1048. Contrary to Edwards’s argument, mandatory restitution under the MVRA does not alter Cloud.

6

Criminal victims do not possess an “independently enforceable right to receive restitution” under the MVRA any more

than they did under the VWPA. Cloud, 872 F.2d at 854

6Our holding is consistent with the Sixth Circuit’s opinion in United

States v. Bearden, 247 F.3d 1031, 1040-41 (6th Cir. 2001) (relying on

Cloud and holding that a settlement agreement that releases a victim’s

claims against a criminal defendant does not bar the district court from

ordering the defendant to pay restitution to the victim under the MVRA).

UNITED STATES v. EDWARDS 2461
(emphasis added). Criminal restitution is mandatory under the

MVRA and cannot be waived by a prior civil settlement. The

district court correctly ordered restitution.

B. Reasonableness of the District Court’s Sentence

We next consider the Government’s challenge on appeal

that the district court’s sentence was substantively unreasonable. Our review of the reasonableness of a sentence proceeds

in two steps. “[W]e first consider whether the district court

committed significant procedural error, then we consider the

substantive reasonableness of the sentence.” United States v.

Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc) (citing

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

Neither party challenges the procedural soundness of the

district court’s sentence. Furthermore, considering the factors

laid out by our decision in Carty when reviewing a sentence

for procedural error, we hold that the district court did not

commit procedural error.7 The district court explicitly considered each of the § 3553(a) factors and provided a detailed

explanation for its sentence and its variance from the Guidelines range. See Gall, 128 S. Ct. at 597 (listing factors to consider in evaluating procedural reasonableness). Because the

district court’s sentence was procedurally sound, we proceed

to “consider the substantive reasonableness of the sentence

. . . .” United States v. Cherer, 513 F.3d 1150, 1159 (9th Cir.

2008) (quoting Gall, 128 S. Ct. at 597).

7We explained in Carty: 

It would be procedural error for a district court to calculate—or

to calculate incorrectly—the Guidelines range; to treat the Guidelines as mandatory instead of advisory; to fail to consider the

§ 3553(a) factors; to choose a sentence based on clearly erroneous facts; or to fail adequately to explain the sentence selected,

including any deviation from the Guidelines range. 

520 F.3d at 993(citing Gall, 128 S.Ct. at 597). 

2462 UNITED STATES v. EDWARDS
1. Substantive Unreasonableness

In evaluating whether a sentence is substantively unreasonable, “the appellate court must review the sentence under an

abuse-of-discretion standard.” Gall, 128 S. Ct. at 597; United

States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009). This standard applies to all sentencing decisions, “whether the sentence

is inside the Guidelines range or outside of it.” Carty, 520

F.3d at 993 (citing Gall, 128 S. Ct. at 596-97). If, as is the

case here, the sentencing court imposes a sentence outside the

Guidelines range, the appellate court may not apply a presumption of unreasonableness. Gall, 128 S. Ct. at 597. In

reviewing any such variance, the appellate court:

take[s] into account the totality of the circumstances,

including the extent of any variance from the Guidelines range . . . . It may consider the extent of the

deviation, but must give due deference to the district

court’s decision that the § 3553(a) factors, on a

whole, justify the extent of the variance. The fact

that the appellate court might reasonably have concluded that a different sentence was appropriate is

insufficient to justify reversal of the district court.

Id. We give due deference to the district court because “[t]he

sentencing judge is in a superior position to find facts and

judge their import under § 3553(a) in the individual case.” Id.

Furthermore, when reviewing a sentence that falls outside of

the Guidelines range, “appellate courts must ‘give due deference to the district court’s decision that the § 3553(a) factors,

on a whole, justify the extent of the variance.’ ” Autery, 555

F.3d at 872 (quoting Gall, 128 S. Ct. at 597). “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.” United States v. Whitehead, 532 F.3d 991, 993 (9th

Cir. 2008) (citing Gall, 128 S. Ct. at 597). We may reverse,

however, “if, upon reviewing the record, we have a definite

and firm conviction that the district court committed a clear

UNITED STATES v. EDWARDS 2463
error of judgment in the conclusion it reached upon weighing

the relevant factors.” United States v. Amezcua-Vasquez, 567

F.3d 1050, 1055 (9th Cir. 2009).

Under this abuse of discretion standard of review, the Government urges us to hold that the district court erred in its

application of the § 3553(a) factors in reaching its sentence.

We consider each of the Government’s challenges in turn.

2. History and Characteristics of Edwards

[7] Section 3553(a)(1) of Title 18 requires the district court

to consider “the nature and circumstances of the offense and

the history and characteristics of the defendant[.]” The Government contends that the district court gave short shrift to the

similarity between Edwards’s previous theft crime in Arizona

and the crimes he committed in Montana. A review of the

record, however, shows that the district court did not abuse its

discretion in weighing Edwards’s history and characteristics.

The district court acknowledged several times that the Arizona felony Edwards committed was a very serious offense.

The district court found that Edwards appeared in district

court “a totally different person” than “the person who was

somehow engaged in illegal conduct in Arizona” and was

“convinced that Mr. Edwards has changed.” The district court

focused on Edwards’s demeanor and mannerisms during allocution, observing that “I’ve been doing this long enough that

I can tell, I think, when people are genuine . . . . I find . . .

his statement, his allocution, to be very credible. I don’t think

there’s a chance in hell that he’s going to engage in this again

in the future.”

[8] In short, the district court was aware of and weighed

Edwards’s criminal history when fashioning the sentence. In

its view, however, based on Edwards’s history and characteristics, the district court did not feel a sentence of incarceration

was appropriate. The district court did not abuse its discretion

when it considered Edwards’s history and circumstances,

2464 UNITED STATES v. EDWARDS
relying on its “ ‘superior position’ to find the relevant facts

and to ‘judge their import.’ ” Whitehead, 532 F.3d at 993.8

3. Specific and General Deterrence

[9] Section 3553(a)(2)(B) of Title 18 requires district

courts to consider whether the sentence imposed “afford[s]

adequate deterrence to criminal conduct[.]” The Government

next argues that the district court improperly weighed the

deterrent effect of its sentence.

The district court concluded that the sentence of probation

and the fact of a felony conviction would serve to deter

Edwards from future wrongdoing. With respect to general

deterrence, the district court agreed with the Government that

general deterrence is more likely to occur in white collar

crime cases, but found that general deterrence was not a significant factor “in a case like this.” The district court

expressed doubt as to whether the goals of general deterrence

would be served through a prison sentence for Edwards, and

rejected that idea. Finally, the district court reasoned that its

order of restitution would satisfy the requirement that

Edwards’s sentence have general deterrent value, and a probationary sentence would best accomplish the goals of the restitution order because it would enable Edwards to earn the

money he is required to pay. 

8The Government’s citation to our decision in United States v. Cherer,

513 F.3d 1150 (9th Cir. 2008) is not persuasive. The defendant in Cherer

committed a crime while on probation for a prior, similar crime. Id. at

1160. Because the defendant did not take advantage of the first court’s

leniency, the district court determined that a lengthy prison sentence was

necessary to protect the public. Id. Our holding in Cherer that the district

court did not abuse its discretion by sentencing the defendant to a lengthy

prison term does not require district courts to provide lengthy sentences

to all defendants who commit crimes while on probation. To hold otherwise would rob criminal defendants of the “individualized assessment

based on the facts presented” to which they are entitled. Gall, 128 S. Ct.

at 597. 

UNITED STATES v. EDWARDS 2465
The Government argues that district court abused its discretion by finding that it could meet the goal of deterrence as

expressed in § 3553(a)(2)(B) with probation and restitution

but not incarceration. For support, the Government points to

commentary in the legislative history of the Sentencing

Reform Act. The portion of the legislative history submitted

by the Government indeed expresses the opinion that many

cases involving white collar crime were disposed of with probation, “without due consideration being given to the fact that

the heightened deterrent effect of incarceration and the readily

perceivable receipt of just punishment accorded by incarceration were of critical importance.” S. Rep. No. 98-225, at 91-

92 (1983) as reprinted in 1984 U.S.C.C.A.N. 3182, 3274-75.

Because of the increased importance of general deterrence in

white collar crime cases, particularly where, as here, the

defendant had previously committed a similar crime, the Government argues that not imposing a sentence of incarceration

was reversible error. 

[10] We cannot find as a matter of law, however, that the

failure to impose a sentence that includes a period of incarceration is a violation of § 3553(a) or inconsistent with the Sentencing Reform Act. We find no support for such a rule.

Section 3553(a), for instance, does not require the goal of

general deterrence be met through a period of incarceration.9

9Nor does the legislative history, which is the only source the Government provides in support of its argument, unequivocally support its position. After the statement in the legislative history quoted by the

Government, the legislative history continues by stating: 

This is not meant to imply that the Committee considers a sentence of imprisonment to be the only form of sentence that may

effectively carry deterrent or punitive weight. It may very often

be that release on probation under conditions designed to fit the

particular situation will adequately satisfy any appropriate deterrent or punitive purpose. 

S. Rep. No. 98-225, at 92 (footnote omitted). As noted, see supra note 2,

the district carefully crafted specific probationary terms designed to

2466 UNITED STATES v. EDWARDS
The district court explicitly considered, weighed and factored

into its sentence the important goal of deterrence. We hold

that its consideration of the deterrent effect of its sentence was

not an abuse of discretion.

4. Protection of the Public

18 U.S.C. § 3553(a)(2)(C) requires district courts to consider whether the sentence imposed “protect[s] the public

from further crimes of the defendant[.]” The Government

briefly argues that the district court’s sentence does not adequately protect the public from Edwards. The Government

contends that Edwards committed a major, comparable crime

prior to committing the Montana crimes, and that therefore

the public is in need of protection from Edwards’s future

crimes.

[11] The district court carefully weighed this factor before

coming to the conclusion that it did not think that it was

“likely to be a possibility, let alone a probability in the future”

that Edwards would re-offend. The district court judge considered the fact that by the time of the 2008 re-sentencing, the

offenses had been committed nine years previously and that

Edwards had left the stress of his earlier job in the construction business that led him to become involved in the financial

fraud scheme, and completed without incident three and one

half years of probation. The court also considered Edwards’s

poor physical condition, Edwards’s statements, the statements

of Edwards’s former step-son supporting Edwards’s rehabilitation after committing the crimes, and the fact that Edwards

would continue to be scrutinized by the probation department

address the particulars of Edwards’s offense. Moreover, the district court

considered probation to carry significant punitive weight. The judge

explained that “[t]he Probation Office . . . has a very short chain for people

like Mr. Edwards and his liberty is significantly restricted,” and he warned

that if Edwards did not comply with the terms of his probation, Edwards

would be sent to the federal penitentiary. Cf. Autery, 555 F.3d at 868, 876.

UNITED STATES v. EDWARDS 2467
when it concluded that its probationary sentence would adequately protect the public from Edwards. The Government’s

argument that the district court’s careful consideration of

whether the public needed to be protected from Edwards was

an abuse of discretion is not persuasive.

5. The Need to Avoid Unwarranted Sentencing 

Disparities

18 U.S.C. § 3553(a)(6) requires the district court to consider whether it is avoiding “unwarranted sentence disparities

among defendants with similar records who have been found

guilty of similar conduct[.]”

10 The Government challenges the

sentence because in the Government’s view it creates an

unwarranted disparity in the treatment of Edwards and other

federal fraud defendants. The district court considered and

explained why he felt a disparity was warranted and distinguished Edwards’s case from other federal fraud cases. 

[12] As we explained in United States v. Ruff, 535 F.3d

999, 1003 (9th Cir. 2008), “it is the [district court’s] reasoned

decision itself, not the specific reasons that are cited, that triggers our duty to defer.” Here, the district court’s decision

shows that it rested on a reasoned basis and relied upon factors within its discretion including its evaluation of Edwards’s

changed and reformed character and the court’s view of how

deterrence could best be achieved. The district court did not

abuse its discretion.

10The Government briefly argues that the district court’s sentence takes

no affirmative steps to rehabilitate Edwards. This assertion is contrary to

the record, which clearly shows that the district court considered how

Edwards’s needs for educational or vocational training, medical care, or

correctional treatment could be satisfied in the most effective manner. The

district court’s determination that Edwards’s medical care could most

effectively be taken care of by Edwards, and need not fall on taxpayers,

was not an abuse of discretion. 

2468 UNITED STATES v. EDWARDS
III. CONCLUSION

Collateral estoppel does not apply to prevent the district

court from ordering restitution, which it was required to do

under the MVRA. The district court’s sentence was not substantively unreasonable. The district court was clearly aware

of the factors at play in this difficult case, and did not abuse

its discretion when it sentenced Edwards. The district court’s

sentence is AFFIRMED. 

BEA, Circuit Judge, concurring in part and dissenting in part:

I agree with Judge Kleinfeld’s description of Edwards: he

“is a big time thief.” United States v. Edwards, 158 Fed.

App’x 930, 931 (9th Cir. 2005) (Kleinfeld, J., dissenting).1

Edwards was convicted of bank fraud in an Arizona state

court after he stole more than $3 million. While Edwards was

on probation imposed as part of his sentence for the Arizona

fraud conviction, he lied to another bank to obtain a new bank

loan—he did not tell the new bank he had been convicted of

defrauding the earlier bank. He then filed for bankruptcy to

avoid paying his new, fraudulently procured loan, but he

knowingly did not fully disclose all of his assets and liabilities

to the bankruptcy court, whose aid he had sought to avoid his

loan obligations. When the government finally caught up with

him and brought the fraud charges in this case, he pleaded

guilty to bank fraud and to bankruptcy fraud. The intended

and actual losses from Edwards’s bank fraud and bankruptcy

fraud totaled more than $500,000. The advisory Guidelines

sentencing range was twenty-seven to thirty-three months’

1On a prior appeal of Edwards’s sentence to this Court, Judge Kleinfeld

dissented from the majority’s decision to remand Edwards’s sentence to

the district court for possible resentencing in light of United States v.

Booker, 543 U.S. 220 (2005). Edwards, 158 Fed. App’x at 932 (Kleinfeld,

J., dissenting). Judge Kleinfeld would have vacated the sentence as substantively unreasonable and remanded for resentencing. Id.

UNITED STATES v. EDWARDS 2469
imprisonment, yet the sentence today approved by the majority will result in Edwards serving no time in prison. The district court sentenced Edwards to sixty months’ probation—

with seven months served under house arrest—and ordered

him to pay just over $100,000 in restitution. The majority

concludes this sentence is substantively reasonable. But like

Judge Kleinfeld, “I cannot see how a sentence anything like

the one imposed could be reasonable under 18 U.S.C.

§ 3553(a)(2).”2Id. Therefore, I respectfully dissent from the

majority’s holding that Edwards’s below-Guidelines sentence

is substantively reasonable.3

The majority’s holding that Edwards’s sentence is substantively reasonable evidences an ever-widening split between

our circuit’s analysis of below-Guidelines sentences in the

context of white collar crime and that of our sister circuits.

Unlike many of our sister circuits,4 our circuit has not held

2Section 3553(a)(2) lists factors a district court must consider when it

decides whether to impose a sentence outside the Guidelines range. Section 3553(a)(2) requires the district court to consider 

the need for the sentence imposed— 

(A) to reflect the seriousness of the offense, to promote respect

for the law, and to provide just punishment for the offense; 

(B) to afford adequate deterrence to criminal conduct; 

(C) to protect the public from further crimes of the defendant;

and 

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in

the most effective manner . . . . 

3

I agree with the majority that the district court did not err when it

ordered restitution. I also agree that the district court committed no procedural error—substantive unreasonability not being “procedural”—when it

sentenced Edwards. 

4

See, e.g., United States v. Livesay, 587 F.3d 1274, 1278-79 (11th Cir.

2009) (holding that a sentence of five years’ probation was unreasonably

lenient where the defendant played a key role in an accounting fraud

scheme that caused over $1 billion in losses to a company’s shareholders

2470 UNITED STATES v. EDWARDS
that a sentence imposed on a defendant who was convicted of

a white collar crime is unreasonably lenient since the

Supreme Court decided Gall v. United States, 552 U.S. 38

(2007).5 That is not for lack of opportunity. See, e.g., United

States v. Whitehead, 532 F.3d 991, 999-1000 (9th Cir. 2008)

(Bybee, J., dissenting) (explaining that a sentence of probation, restitution, and community service was unreasonably

lenient where the defendant stole over $1 million and the

Guidelines range was forty-one to fifty-one months’ imprisonment); United States v. Ruff, 535 F.3d 999, 1004-07 (9th

Cir. 2008) (Gould, J., dissenting) (explaining that a sentence

of one day’s imprisonment and three years of supervised

release was unreasonably lenient where the defendant stole

over $600,000 and the Guidelines range was thirty to thirtyseven months’ imprisonment). Edwards’s sentence presents

us with another such opportunity.

The majority’s holding also evidences an intra-Circuit conflict that continues to develop. In United States v. AmezcuaVasquez, 567 F.3d 1050 (9th Cir. 2009), we held that a

within-Guidelines sentence was unduly harsh, hence substantively unreasonable. But, with one exception,6

 we have conand the Guidelines range was seventy-eight to ninety-seven months’

imprisonment); United States v. Omole, 523 F.3d 691, 698-700 (7th Cir.

2008) (holding that a sentence of twelve months’ imprisonment was

unreasonably lenient where the defendant engaged in wire fraud and

caused $90,000 in losses and the Guidelines range was sixty-three to

seventy-eight months’ imprisonment). 

5Even outside the context of white collar crime, our circuit has only

once since Gall held that a sentence is unreasonably lenient. See United

States v. Ressam, No. 09-30000, 2010 WL 347962, at *33 (9th Cir. Feb.

2, 2010). 

6The one exception is our recent decision in Ressam, where we held

unreasonably lenient a twenty-two year sentence for a terrorist who “was

convicted by a jury on nine counts of criminal activity in connection with

his plot to carry out an attack against the United States by detonating

explosives at the Los Angeles International Airport (“LAX”) on the eve

of the new Millennium, December 31, 1999.” Ressam, 2010 WL 347962,

at *1. The advisory Guidelines range in that case was sixty-five years to

life in prison. Id.

UNITED STATES v. EDWARDS 2471
sistently refused to hold that sentences significantly below the

advisory Guidelines range are unduly lenient, hence substantively unreasonable. See Whitehead, 532 F.3d at 993; Ruff,

535 F.3d at 1003. It is difficult to reconcile the holding of

Amezcua-Vasquez with the holdings of Whitehead and Ruff,

unless we adopt a rule that what a panel considers to be a

harsh sentence can be substantively unreasonable, but not so

a lenient sentence; in other words, that “substantive unreasonability” in the Ninth Circuit is a one-way street that is

posted to lead sentences only downwards. But as Ressam

demonstrates, there is no such rule. 2010 WL 347962, at *33.

I agree with the majority that we must review the sentence

imposed by the district court “under a deferential abuse-ofdiscretion standard.” Gall, 552 U.S. at 41. However, nothing

in Gall “suggests that the Supreme Court has taken the courts

of appeals out of the business of reviewing sentences.” Whitehead, 532 F.3d at 995 (Bybee, J., dissenting); see also Rita v.

United States, 551 U.S. 338, 354 (2007) (“In sentencing, as

in other areas, district judges at times make mistakes that are

substantive. At times, they will impose sentences that are

unreasonable. Circuit courts exist to correct such mistakes

when they occur.”). We must review sentences for significant

procedural error and for substantive reasonableness. Gall, 552

U.S. at 51. And when we review the reasonableness of a

below-Guidelines sentence, we may consider the extent to

which the sentence imposed deviates from the Guidelines

range. Id. at 47. As the Supreme Court explained, “it [is]

uncontroversial that a major departure should be supported by

a more significant justification than a minor one.” Id. at 50.

The district court “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote

the perception of fair sentencing.” Id. Thus, even after Gall,

it is clear that “[t]he abuse of discretion standard of review is

not a rubber stamp of all sentencing decisions made by a district court.” Ruff, 535 F.3d at 1005 (Gould, J., dissenting).

We have recently clarified the abuse of discretion standard

in this circuit. See United States v. Hinkson, 585 F.3d 1247,

2472 UNITED STATES v. EDWARDS
1262 (9th Cir. 2009) (en banc). We now apply a two-part test

to determine whether the district court abused its discretion.

Id. Under the first step, we “determine de novo whether the

trial court identified the correct legal rule to apply to the relief

requested.” Id. “If the trial court identified the correct legal

rule, we move to the second step . . . to determine whether the

trial court’s application of the correct legal standard was (1)

illogical, (2) implausible, or (3) without support in inferences

that may be drawn from the facts in the record.” Id. (internal

quotation marks and citation omitted).

Here, the district court identified and applied the correct

legal rule. The district court correctly calculated the advisory

Guidelines range—twenty-seven to thirty-three months’

imprisonment—and then considered the 18 U.S.C. § 3553(a)

sentencing factors to determine whether to impose a sentence

outside the Guidelines range. See Gall, 552 U.S. at 49-50. But

the district court’s view that the purpose of general deterrence

is limited to the effect that deterrence could have only within

the defendant’s community—here, the community where

Edwards lived in Montana at the time he committed bank

fraud and bankruptcy fraud and the community where he now

lives in Oklahoma—is simply an incorrect application of 18

U.S.C. § 3553(a)(2)(B). In this day and age of internet and

broadband communications, the district court should have

considered how others, on a nationwide level, would have

been deterred, or not, by a conviction followed by only a probationary sentence.

Further, the district court’s imposition of a sentence of sixty

months’ probation and $100,000 in restitution that included

no incarceration was (1) illogical as to the effect a sentence

without incarceration would have on Edwards’s community,

and (2) without support in inferences that may be drawn from

the facts in the record. Thus, the district court abused its discretion.

The sentencing court must consider “the need for the sentence imposed . . . to afford adequate deterrence to criminal

UNITED STATES v. EDWARDS 2473
conduct.” 18 U.S.C. § 3553(a)(2)(B). Deterrence encompasses both general deterrence and specific deterrence. However, specific deterrence is also considered under

§ 3553(a)(2)(C), which requires the district court to consider

“the need for the sentence imposed . . . to protect the public

from further crimes of the defendant.” Id. § 3553(a)(2)(C).

Thus, when a district court considers § 3553(a)(2)(B), it

should focus on whether a sentence will provide general

deterrence. See United Staes v. Martin, 455 F.3d 1227, 1240

(11th Cir. 2006) (explaining that § 3553(a)(2)(B) speaks to

general deterrence while § 3553(a)(2)(C) speaks to specific

deterrence).

General deterrence is effective in the context of white collar crime such as Edwards’s bank fraud and bankruptcy fraud.

“Defendants in white collar crimes often calculate the financial gain and risk of loss, and white collar crime therefore can

be affected and reduced with serious punishment.” Martin,

455 F.3d at 1240 (holding that a sentence of seven days’

imprisonment was substantively unreasonable where the

defendant participated in a securities fraud conspiracy that

caused more than $1 billion in losses). White collar crime,

especially bank fraud, usually requires a well-schooled, intelligent criminal, capable of gauging the upside of how others

will be gulled by his well-honed fables. This ability to foresee

extends also to the possible downside of his fraud: apprehension, conviction, and punishment. Further, bank fraud, unlike

an assault in a tavern or even domestic abuse, tends to be a

planned, deliberate crime, which allows plenty of time for

reflection, calculation of the odds of success or failure, and

the ultimate decision.

It is precisely at this point—when the thief of aboveaverage education and wit is deciding whether to do the deed

—that reflection on probable prison time—general deterrence

—can have an effect. Like the taxpayer who decides not to

defraud the fisc for fear of wearing an orange jumpsuit for a

long time because he knows that the government goes after

2474 UNITED STATES v. EDWARDS
everyone—even Al Capone—for tax fraud, the contemplating

bank fraud thief should be forced to consider a message other

than: “Oh, if you get caught and you put on a repentant’s suit,

you’ll probably get probation and a restitution order of 20%

of what you stole. And about that restitution order, don’t

worry too much because, in America, there are no debtor’s

prisons. So if you don’t pay, you won’t do time.”

Here, the district court acknowledged that general deterrence is effective in the context of white collar crime but still

imposed a non-prison sentence. The district court stated:

General deterrence, I don’t think it has a significant

factor in a case like this, but I will agree with [the

government] that in white collar crime cases general

deterrence is more likely to occur than in something

like the kinds of drug cases or gun cases or pornography cases that we see frequently in this court.

This finding—that general deterrence was not a significant

factor in this case—is clearly erroneous and cannot justify

Edwards’s sentence.

The district court assumed the only general deterrence

effect would be in the communities where Edwards had lived

and that the people in those communities had already been

deterred based on their awareness of Edwards’s conviction.7

But that is an unnecessarily restrictive view of general deterrence. Why should general deterrence be considered only in

terms of the defendant’s community? Section 3553(a)(2)(B)

speaks to deterring “criminal conduct”; it does not suggest

such deterrence should be limited to the defendant’s own

community. For sure, Edwards’s present sentence will not

7

I agree that Edwards’s sentence had some deterrence effect in his communities: one hopes those in his communities have been deterred from

dealing with Edwards. But the thieves among them have not been deterred

from following in his footsteps. 

UNITED STATES v. EDWARDS 2475
deter criminal conduct. It will incentivize it. The sentence

sends the message that a reasonable sentence for white collar

criminals is probation and restitution. We risk allowing this

sentence to become “a baseline against which we measure

other sentences.” Whitehead, 532 F.3d at 999 (Bybee, J., dissenting).

The majority concludes that “[t]he district court explicitly

considered, weighed and factored into its sentence the important goal of deterrence.” Maj. Op. at 2467. The majority

points out that “[t]he district court concluded that the sentence

of probation and the fact of a felony conviction would serve

to deter Edwards from future wrongdoing.” Id. at 2465. Even

assuming the important goal of specific deterrence is reflected

in Edwards’s sentence, I fail to see how the equally important

goal of general deterrence is reflected in Edwards’s sentence

other than to claim people in Edwards’s communities would

be deterred by knowledge of his conviction. How does knowledge of Edwards’s conviction provide general deterrence?

Edwards’s sentence conveys the message that white collar

criminals can steal and not do time. The district court did not

explain why some term of imprisonment was not necessary.

It is not enough to state that general deterrence does not matter in this case.

I do not ignore the fact that Edwards was ordered to pay

more than $100,000 in restitution. I agree with both the district court and the majority that a restitution order does create

general deterrence. However, without some term of imprisonment, restitution is simply inadequate to deter the type of conduct in which Edwards engaged: he caused and intended to

cause losses totaling more than $500,000 while still on probation for a prior conviction of theft of six times as much! Sure,

Edwards was forced to repay some of his ill-gotten gains, but

he will not be subjected to the loss of liberty that accompanies

a term of imprisonment. I agree with the Eleventh Circuit:

some crimes require at least some time in prison—no proba2476 UNITED STATES v. EDWARDS
tionary sentence will be sufficient. See Livesay, 587 F.3d at

1279. Edwards’s crimes fall into that category.

Sooner or later our circuit must come to the final question:

how do we determine whether a sentence without incarceration is unreasonable? And if a sentence without incarceration

is unreasonable, what term of incarceration is unreasonable?

At times like this, one is tempted to reach for Justice Potter

Stewart’s definition of pornography and apply it to determine

whether a sentence is unreasonable: “I know it when I see it,”

Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). Such a personalized and subjective norm does not

sound like what an appellate court should be laying down as

a rule to the district courts.

But can we do any better by attempting to spell out what

constitutes “unreasonable” in the abstract? I think the Court,

in Gall, wants us to try. In fact, Gall itself provided some

guidance as to factors an appellate court should consider

when it reviews the substantive reasonableness of a sentence.

See 552 U.S. at 47-48. Additional factors to consider emerge

from the decisions of our sister circuits and the reasoned

opinions—both majority and dissenting—of our Court.

Although no list of factors will be exhaustive and not all factors will be relevant in every case, we must provide guidance

to the district courts so that we can minimize sentencing disparities even in the absence of mandatory guidelines.8

See

Whitehead, 532 F.3d at 999-1000 (Bybee, J., dissenting) (“As

a circuit, we have an obligation to ensure roughly equal sentences both among our judicial districts and within each judicial district.”).

8Trial courts are called on daily to determine what is “reasonable” in a

variety of contexts. Discovery orders, extensions of time, bench trials in

negligence cases, and review of damages awards—or determination of

criminal sentences—are just some of the many such contexts. Where precedent has produced a practice, the task is easier. A practice develops settled expectations. We must begin to do the same in the context of

reviewing sentences for substantive reasonableness. 

UNITED STATES v. EDWARDS 2477
First, we should consider the quantitative and qualitative

deviation of the sentence imposed from the sentence recommended by the now-advisory Guidelines. See Gall, 552 U.S.

at 47-48. The quantitative deviation refers to the extent to

which the sentence imposed is longer or shorter than the advisory Guidelines range. Id. at 41, 47 (“[T]he extent of the difference between a particular sentence and the recommended

Guidelines range is surely relevant.”). The qualitative deviation refers to whether the type of sentence imposed (e.g., probation) differs from the type of sentence recommended by the

Guidelines (e.g., incarceration). Id. at 48 (“We recognize that

custodial sentences are qualitatively more severe than probationary sentences of equivalent terms.”). Here, the sentence

imposed by the district court was a significant deviation—

both quantitatively and qualitatively—from the recommended

Guidelines sentence. The Guidelines range was twenty-seven

to thirty-three months’ incarceration, but the district court

imposed a probationary sentence of five years with no incarceration.

Second, we should consider whether the district court’s

deviation from the advisory Guidelines range was based on

circumstances already taken into account by the Guidelines.

See Whitehead, 532 F.3d at 998-99 (Bybee, J., dissenting)

(“The district court abused its discretion by completely reducing [the defendant’s] sentence based on a low likelihood of

recidivism where the Guidelines calculation itself had already

been reduced to reflect this factor.”). Here, the district court

explained that a probationary sentence “was sufficient to protect the public from further crimes by the defendant.” However, Edwards’s likelihood of recidivism had already been

considered in the calculation of his criminal history category.

Edwards was not assigned the lowest criminal history category because he had committed bank fraud while on probation for a similar crime in Arizona. Based on Edwards’s track

record, the Guidelines recommended a sentence of incarceration to protect the public from Edwards.

2478 UNITED STATES v. EDWARDS
The district court made a directly contrary finding on the

ground that there was not “a very good likelihood that

[Edwards] would engage in this kind of business in the

future.” The district court explained that the likelihood of

recidivism was low because Edwards had committed bank

fraud and bankruptcy fraud nine years earlier with no subsequent convictions; he had significant medical problems,

including diabetes and neuropathy; and he left the construction industry, which “is what got him into the trouble in the

first place.” Although we must give deference to the district

court’s finding that the likelihood of recidivism was low, that

finding cannot support the extent of the district court’s deviation from the sentence recommended by the Guidelines, particularly given that the Guidelines already took the likelihood

of recidivism into account by not assigning Edwards a higher

criminal history category.

Third, we should consider whether the mitigating factors

relied on by the district court to reduce the sentence were

unexceptional or “common to similarly situated offenders.”

Omole, 523 F.3d at 698 (explaining that the defendant’s

young age—twenty years old—was not a unique characteristic that would justify a sentence significantly below the

Guidelines range); see Whitehead, 532 F.3d at 997-98 (Bybee,

J., dissenting) (explaining that the fact the defendant had

shared custody of his daughter was not an exceptional circumstance because “the mere imposition of hardship on family

relationships . . . necessarily accompanies the order of any

prison sentence”). Here, the district court explained that a

below-Guidelines sentence was warranted because the Guidelines range was based on Edwards’s intended loss, not the

actual loss he caused. But it is unexceptional that the actual

losses were less than the intended losses. I expect the amount

the run-of-the-mill thief intends to steal is usually greater than

the amount he actually steals. The fact that the losses attributed to Edwards were intended rather than actual simply

reflects the fact that Edwards got caught. He should not benefit from that fact.

UNITED STATES v. EDWARDS 2479
Fourth, we should consider whether the district court

“base[d] the sentence on impermissible factors.” Hunt, 521

F.3d at 649 (holding that the district court abused its discretion when it imposed a below-Guidelines sentence, in part,

because it disagreed with the jury’s finding that the defendant

had the intent to defraud). Here, although the district court’s

sentence was based on the § 3553(a) factors, it was based on

an erroneous interpretation of § 3553(a)(2)(B). The district

court concluded general deterrence was not an important factor, based on the conclusion that general deterrence is limited

by the concept of the crook’s immediate community—a term

nowhere to be found in the statute.

Fifth, we should consider whether the district court gave

“too much weight” to a particular § 3553(a) factor. See Ressam, 2010 WL 347962, at *33 (“[I]t appears that the district

court abused its discretion in weighing the relevant factors by

giving too much weight to [the defendant’s] cooperation and

not enough weight to the other relevant § 3553(a) factors,

including the need to protect the public.”); United States v.

Givens, 443 F.3d 642, 646 (8th Cir. 2006) (vacating and

remanding a sentence as substantively unreasonable where the

district court gave “too much weight” to the defendant’s “history and characteristics and showed a great deal of sympathy

toward him” and gave “not enough [weight] to the other portions of section 3553(a)”). Here, the district court, like the district court in Givens, gave too much weight to Edwards’s

history and characteristics and gave too little weight to general deterrence.

Edwards’s sentence was based on the district court’s clearly

erroneous finding that general deterrence is not a significant

factor in this case and the conclusion that the sentencing factor of general deterrence is somehow restricted only to the

effect prison terms would have on Edwards’s community. If

we ignore the district court’s finding there was general deterrence by a probationary sentence because of the vagueness of

such finding, the district court’s application of § 3553(a)—

2480 UNITED STATES v. EDWARDS
and the imposition of a sentence that included no

incarceration—was illogical and without support in inferences

that may be drawn from the facts in the record. Although we

must give deference to the district court’s finding that

Edwards was not likely to commit a similar crime in the

future, that finding does not justify the significant deviation

from the Guidelines sentencing range. Because the district

court abused its discretion when it imposed this substantively

unreasonable sentence, I respectfully dissent.

UNITED STATES v. EDWARDS 2481