FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 07-30213 Plaintiff-Appellant,

D.C. No.

v.  CR-06-00132-1-FVS

KEVIN LEE RUFF,

OPINION Defendant-Appellee. 

Appeal from the United States District Court

for the Eastern District of Washington

Fred L. Van Sickle, Chief District Judge, Presiding

Argued and Submitted

February 5, 2008—Seattle, Washington

Filed August 1, 2008

Before: Raymond C. Fisher, Ronald M. Gould and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Fisher;

Dissent by Judge Gould

9861
COUNSEL

James A. McDevitt, United States Attorney; Joseph H. Harrington (argued), Assistant United States Attorney, Eastern

District of Washington, for the plaintiff-appellant. 

David R. Hearrean, Spokane, Washington, for the defendantappellee. 

UNITED STATES v. RUFF 9863
OPINION

FISHER, Circuit Judge: 

Kevin Lee Ruff (“Ruff”) pled guilty to several counts of

health care fraud, embezzlement and money laundering. The

district court originally sentenced Ruff to a prison term of 12

months and one day and three years supervised release, recommending that he serve his sentence at Geiger Corrections

Center (“Geiger”) to allow him to work, pay restitution and

visit with his then 11-year-old son. Discovering that Geiger

would not house prisoners, the district court amended Ruff’s

sentence to one day of imprisonment and three years of supervised release, with the condition that he serve 12 months and

one day of his supervised release at Geiger. The government

insists that this modification overstepped the bounds of the

district court’s sentencing authority. We disagree. Applying

the requisite deferential standard of review, we conclude that

the district court did not abuse its discretion and that the sentence it imposed is reasonable. We have jurisdiction under 28

U.S.C. § 1291, and we affirm. 

BACKGROUND

Ruff worked as a Materials Supervisor at Sacred Heart

Medical Center (“SHMC”) between January 2002 and October 2005. In this capacity, he “had access and authority to

record receipt of inventory, to make adjustments to the inventory account, and to modify purchase orders to include additional items for inventory.” Ruff took advantage of this

authority to steal $644,866 worth of SHMC inventory and sell

it over eBay. When confronted by his employer, Ruff readily

admitted his illegal conduct and cooperated with federal

investigators. In December 2006, he pled guilty to one count

of health care fraud, in violation of 18 U.S.C. § 1347, four

counts of theft, embezzlement and conversion of property and

assets of a health care benefit program, in violation of 18

U.S.C. § 669, and four counts of money laundering, in viola9864 UNITED STATES v. RUFF
tion of 18 U.S.C. § 1956(a)(1). The Presentencing Report calculated Ruff’s guideline range as 30-37 months. 

At a May 1, 2007 sentencing hearing, the district judge

began his analysis by accepting the guideline range as accurate and noting its advisory nature. Acknowledging that he

was “required to impose a sentence that’s sufficient, but not

greater than necessary to comply with the provisions of the

law,” the judge then considered the sentencing factors

embodied in 18 U.S.C. § 3553(a). With respect to aggravating

factors, he noted the crime was “serious” given the manner in

which it was committed and the amount of property it

involved. He went on to emphasize a host of mitigating factors, including: (1) Ruff’s history of strong employment; (2)

his cooperation and “clear[ ] remorse[ ]”; (3) his support from

his siblings; (4) the absence of potential risk to the public and

the appropriateness of restitution; and (5) his mental health

issues and gambling addiction. With respect to this final factor, Ruff admitted that he had lost approximately $200,000 to

compulsive gambling, and that he had participated in counseling for pathological gambling and depression between

November 2005 and March 2006. The judge observed that

Ruff would clearly benefit from continued mental health treatment for his illness and, considering all of the factors, committed Ruff to the custody of the United States Board of

Prisons (“BOP”) for 12 months and one day, recommending

that he serve his sentence at Geiger to allow him to participate

in work release, get counseling and attend off-site visits with

his son. He also placed Ruff on three years of supervised

release. 

Less than one week later, the judge learned that Geiger

could house Ruff only if his confinement was as a condition

of supervised release. Reconvening a hearing on May 7, the

judge “amend[ed] the judgment” by committing Ruff to the

custody of BOP for one day and placing him on three years

supervised release. As a condition of his supervised release,

Ruff was required to serve a term of confinement of one year

UNITED STATES v. RUFF 9865
and one day in a confinement facility. The judge again recommended that Ruff spend this period at Geiger to facilitate his

work release, treatment and child visitation. 

STANDARD OF REVIEW

The abuse of discretion standard applies to all sentencing

decisions, both those within and outside of the guidelines. See

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

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

We first must ensure that the district court did not commit a

significant procedural error and then consider the sentence’s

substantive reasonableness. See Gall, 128 S. Ct. at 597;

United States v. Rising Sun, 522 F.3d 989, 993 (9th Cir.

2008). Although we “consider the totality of the circumstances, including the degree of variance for a sentence

imposed outside the [g]uidelines range,” extraordinary circumstances are not needed to justify a sentence outside the

guidelines range and we must give due deference to the district court’s decision that the sentencing factors warrant a particular variance. Carty, 520 F.3d at 993; see also Gall, 128

S. Ct. at 595-97. This standard reflects the common theme

throughout the Supreme Court’s recent sentencing decisions

— to “breathe life into the authority of district court judges

to engage in individualized sentencing.” United States v.

Whitehead, ___ F.3d ___, No. 05-50458, 2008 WL 2718867,

*1 (9th Cir. July 14, 2008) (per curiam) (internal quotation

marks omitted).

I.

The government first contends that the district court committed a procedural error by failing to address any of the sentencing factors during the May 7, 2007 hearing. Because we

cannot reasonably consider this second hearing in isolation

from the May 1 hearing, when the court analyzed the sentencing factors in detail, the district judge’s failure to reiterate his

9866 UNITED STATES v. RUFF
previous analysis from the week before does not constitute

procedural error. 

[1] The district court is statutorily required “at the time of

sentencing, [to] state in open court the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). “It is

most helpful for this to come from the bench, but adequate

explanation in some cases may also be inferred from . . . the

record as a whole.” Carty, 520 F.3d at 992. The district court

“articulated its reasoning to the degree required for meaningful appellate review” during the May 1 hearing. United States

v. Perez-Perez, 512 F.3d 514, 517 (9th Cir. 2008). Discovering that the intended sentence was not feasible in its original

structure, the judge convened the May 7 hearing to modify the

sentence specifically to allow the BOP to effectuate the sentence the judge had initially proposed. It is plain that the judge

considered this second hearing a mere continuation of the

first. It would elevate form over substance to require the judge

to reiterate the sentencing factors at the second hearing, as the

only alteration was the terminology he used: both before and

after the second hearing, Ruff was required to spend 12

months and one day of confinement in a residential center,

where he could receive counseling for his gambling addiction,

participate in work release to help pay restitution and have

periodic visitations with his son as BOP might approve.

Applying the judge’s reasoning from the May 1 hearing to the

substantively identical sentence imposed at the May 7 hearing, we conclude that there was no procedural error. Cf.

United States v. Crisp, 454 F.3d 1285, 1290 (11th Cir. 2006)

(holding that the reasoning for the probationary sentence “carried over” to the five hour prison sentence that was imposed

after the district court learned that the criminal statute

required some incarceration).

II.

[2] For similar reasons, we are not persuaded by the government’s argument that Ruff’s sentence is substantively

UNITED STATES v. RUFF 9867
unreasonable. The original below-guideline sentence was reasonable in light of the mitigating factors the judge discussed

in detail during the May 1 hearing. Cf. Gall, 128 S. Ct. at 592-

93, 598-602 (holding that a sentence of 36 months probation

when the applicable guideline range recommended 30 to 37

months imprisonment was reasonable based on district court’s

reasoning); Whitehead, 2008 WL 2718867 at *1 (affirming

below-guideline sentence post-Gall based on district court’s

reasoning). The dissent emphasizes that certain factors discussed in Gall are not present here. Dissent at 9871-73. The

clear message in Gall, however, is that we must defer “to the

District Court’s reasoned and reasonable decision that the

§ 3553(a) factors, on the whole, justified the sentence.” 128

S.Ct. at 602. Gall happened to discuss post-crime maturation

and self-rehabilitation because they were the basis of the district court’s reasoned decision in that case, but it is the reasoned decision itself, not the specific reasons that are cited,

that triggers our duty to defer. Here, the district judge plainly

satisfied this requirement, relying on factors such as treatment, cooperation and familial support to arrive at his chosen

sentence. “[I]ntimately familiar with the nature of the crime

and [the] defendant’s role in it, as we are not” and able to

appraise Ruff’s sincerity, as we cannot, “the district court was

‘in a superior position’ to find the relevant facts and to ‘judge

their import.’ ” Whitehead, 2008 WL 2718867 at *1 (quoting

Gall, 128 S. Ct. at 597).1

1With respect to the dissent’s discussion of sentencing decisions involving white collar crime, we note that courts have affirmed low or below

guidelines sentences for crimes ranging from the distribution of controlled

substances to the unlawful possession of child pornography or a firearm.

See, e.g., Gall, 128 S. Ct. at 602 (affirming below guidelines sentence for

conspiracy to distribute ecstasy); United States v. Martin, 520 F.3d 87 (1st

Cir. 2008) (affirming below guidelines sentence for conspiracy to distribute cocaine base); United States v. Grossman, 513 F.3d 592 (6th Cir.

2008) (affirming below guidelines sentence for possession of child pornography); United States v. Lehmann, 513 F.3d 805 (8th Cir. 2008)

(affirming below guidelines sentence for unlawful possession of a firearm); United States v. McGhee, 512 F.3d 1050 (8th Cir. 2008) (affirming

9868 UNITED STATES v. RUFF
[3] These same factors also justify the amended sentence as

reasonable, because the only difference between the two sentences is one of meaningless semantics. Repeatedly referring

to Ruff’s sentence as imposing only one day in jail, the government entirely ignores that a condition of the modified sentence is a 12 month and one day period of confinement in a

residential facility. The dissent similarly downplays the severity of Ruff’s sentence, describing it as “a mere slap on the

wrist.” Dissent at 9873. These characterizations directly flout

the Supreme Court’s instruction that courts should not quantify variances from the guidelines “as a certain percentage of

the maximum, minimum, or median prison sentence recommended by the [g]uidelines” because this “gives no weight to

the ‘substantial restriction of freedom’ involved in a term of

supervised release or probation.” Gall, 128 S. Ct. at 595. Noting that custodial sentences (such as the one at issue here) are

“qualitatively more severe than probationary sentences,” the

Supreme Court went on to emphasize that even the latter are

quite oppressive given that probationers are “subject to several standard conditions that substantially restrict their liberty.” Id. Following this lead, we recently affirmed a sentence

of probation, community service and restitution, where the

guidelines range recommended 41-51 months, emphasizing

“the district court was ‘in a superior position’ to find the relevant facts and to ‘judge their import.’ ” Whitehead, 2008 WL

2718867 at *1 (quoting Gall, 128 S. Ct. at 597). Ruff’s sentence is even more arduous than Gall’s or Whitehead’s, given

that Ruff is being confined in the very facility the district

below guidelines sentence for possession with intent to distribute cocaine

base); United States v. Pauley, 511 F.3d 468 (4th Cir. 2007) (affirming

below guidelines sentence for possession of child pornography); United

States v. McBride, 511 F.3d 1293 (11th Cir. 2007) (affirming below guidelines sentence for distribution of child pornography). Although “more time

thinking about the appropriate punishment for white collar crime,” Dissent

at 9874, may be necessary as a general matter, neither we nor the district

court, as the record shows, are purporting to treat white collar crimes differently from other crimes. 

UNITED STATES v. RUFF 9869
court had originally recommended for his imprisonment, subject to the identical conditions relating to work, visitation and

counseling. Moreover, Ruff’s subsequent probation is subject

to several special conditions that drastically curtail his financial autonomy. See Gall, 128 S. Ct. at 596 (citing special conditions during probationary period as evidence of its severity).

Given these circumstances, it is illogical and inappropriate to

treat the modified sentence as anything other than functionally

identical to Ruff’s original, substantively reasonable sentence.

[4] Even assuming we were to disagree with the district

judge’s assessment of Ruff’s merits and demerits, “[t]hat we

might reasonably have concluded that a different sentence

was appropriate is insufficient to justify reversal of the district

court.” United States v. Stoterau, 524 F.3d 988, 999 (9th Cir.

2008) (internal quotation marks omitted); see also Whitehead,

2008 WL 2718867 at *1 (“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.”). Following

the Supreme Court’s clear mandate, we defer to the district

court’s “reasoned and reasonable decision that the § 3553(a)

factors, on the whole, justified the sentence.” Gall, 128 S. Ct.

at 602. 

AFFIRMED. 

GOULD, Circuit Judge, dissenting: 

Kevin Lee Ruff will serve just one day in prison for using

his position as materials supervisor at Sacred Heart Medical

Center (“SHMC”) to steal $644,866 of supplies, selling the

stolen materials on eBay, and covering his tracks by entering

more than one thousand false downward inventory adjustments to SHMC’s computerized inventory log. His extensive

course of dishonest conduct was neither short-lived nor sporadic. Instead, he extended his embezzlement scheme for sev9870 UNITED STATES v. RUFF
eral years during which he grew progressively bolder, and

stole an increasing number of supplies. Ruff’s sentence with

only one day of imprisonment is not reasonable and we

should say so in no uncertain terms. 

I agree with the majority that, under Gall and Rita, sentencing is a discretionary decision made by a district court after

engaging in an individualized evaluation of the facts of a case

and applying the § 3553(a) factors to the particular offender

before it. Where I part ways with the majority, however, is in

the scope of our duty, as an appellate court, to review a district court’s sentencing decision for abuse of discretion. As

Chief Justice John Marshall long ago stated, discretionary

choices are not left to the district court’s “inclination, but to

its judgment; and its judgment is to be guided by sound legal

principles.” United States v. Burr, 25 F. Cas. 30, 35 (No.

14,692d) (CC Va. 1807).1 The abuse of discretion standard of

review is not a rubber stamp of all sentencing decisions made

by a district court. Instead, it requires us to vacate a sentence

when it is substantively unreasonable. Where “we have a definite and firm conviction that the district court committed a

clear error of judgement” in imposing a particular sentence,

it is our duty to vacate the sentence as unreasonable. See SEC

v. Coldicutt, 258 F.3d 939, 914 (9th Cir. 2001). Here, the reasons given by the district court to support its sentence do not

warrant a one-day prison term, even given the condition of

supervised release that Ruff spend twelve months and a day

in a residential confinement facility. This sentence is a substantively unreasonable punishment for Ruff’s theft of more

than a half-million dollars in inventory supplies from his nonprofit employer. 

The majority asserts that the Supreme Court’s decision in

Gall supports the conclusion that the district court did not

1This statement was made by Chief Justice Marshall when he sat on the

Circuit Court of the District of Virginia in the celebrated case involving

Aaron Burr’s trial for treason. 

UNITED STATES v. RUFF 9871
abuse its discretion in sentencing Ruff to a one-day prison

term followed by three years of supervised release, twelve

months and a day of which will be served in a residential confinement facility. I cannot agree. In Gall, the Supreme Court

identified two factors that allowed it to conclude that the district court did not abuse its discretion by deciding not to sentence Gall to prison: Gall’s post-crime maturation and selfrehabilitation. 128 S. Ct. at 600-02. The Supreme Court concluded that the district court “quite reasonably attached great

weight to Gall’s self-motivated rehabilitation,” determining

that it provided the district court with “greater justification”

than if the “rehabilitation [had] occurred after he was charged

with the crime,” and that Gall’s self-rehabilitation “lend[ed]

strong support to the conclusion that imprisonment was not

necessary to deter Gall from engaging in future criminal conduct or to protect the public from his future criminal acts.” Id.

The Supreme Court also concluded that the district court reasonably justified the Guidelines departure by pointing to

Gall’s young age and immaturity at the time of his crime, and

his subsequent maturity thereafter demonstrated by withdrawing from the conspiracy, ending all drug use, and starting his

own business, all before being prosecuted. Id. at 601. These

two key factors—post-crime maturation and selfrehabilitation—are not present in Ruff’s case. Unlike Gall,

Ruff was not immature when he began his criminal conduct

at the age of 38. He had a son and had been lawfully

employed for several years. Nor did Ruff self-rehabilitate; he

continued his criminal conduct until he was caught, stealing

more than a half-million dollars in supplies from a non-profit

hospital over a three-and-a-half-year period, with the pace and

severity of his theft increasing year by year until he was

caught. 

This latter distinction is important. The Supreme Court in

Gall concluded that the district court’s sentence of probation

was reasonable because Gall’s rehabilitation before he was

contacted by authorities for his involvement in the drug conspiracy supported the conclusion that imprisonment was not

9872 UNITED STATES v. RUFF
necessary to prevent future criminal conduct. 128 S. Ct. at

602. In this case, the district court identified Ruff’s remorsefulness and willingness to cooperate with authorities as support for his one-day sentence, but these factors, which Ruff

only exhibited once he was caught, do not support a conclusion that imprisonment is unnecessary to prevent Ruff from

engaging in future criminal conduct. The district court cited

other factors to support his sentence: (1) Ruff’s age as a firsttime offender; (2) his mental, financial and gambling problems; (3) his earlier history of “strong employment;” and (4)

his need to pay restitution. Although these factors support

some departure from the 30 to 37 months of imprisonment

recommended by the Guidelines, they do not provide sufficient justification under Gall for a one-day prison term for a

crime of this magnitude. Id. at 597 (“[A] major departure

should be supported by a more significant justification than a

minor one.” (emphasis added)). The district court committed

a clear error of judgment in the conclusion it reached upon

weighing the § 3553(a) factors. 

The majority’s opinion suggests that the condition of Ruff’s

supervised release which requires that he live for twelve

months and a day in a residential confinement facility is sufficiently similar to imprisonment to make Ruff’s one-day

prison sentence substantively reasonable. I disagree. As a resident of Geiger Corrections Center, Ruff will be permitted to

participate in release programs for work, treatment, counseling, and child visitations. This is a far cry from imprisonment,

where prisoners are confined twenty-four hours per day and

sleep in prison cells at night. Precisely because of these differences, the district court had to resentence Ruff to place him

in Geiger: the non-prison facility does not house prisoners,

but instead provides a residence for convicts on supervised

release. 

To provide for a mere slap on the wrist of those convicted

of serious economic crimes, with no or virtually no time

imprisoned as punishment, strikes a blow to the integrity of

UNITED STATES v. RUFF 9873
our criminal justice system. In the end, if not corrected, the

majority’s approach will be dangerous to respect for our legal

system. Can it be seriously maintained that wilful offenders

who commit white collar crime, who steal intentionally hundreds of thousands or even millions of dollars, should receive

no forced incarceration, while those poor and powerless criminal defendants who commit common larceny or theft often

serve extensive hard time? I respectfully dissent because I do

not believe it prudent for us as an appellate court to hold as

reasonable sentences that in their laxity to white collar crime

are patently unreasonable, and that indeed will likely be considered offensively unreasonable to the vast majority of law

abiding citizens who may become aware of these proceedings.

Members of the public with respect for the law, even if they

have less learning than appellate judges on our standards for

abuse of discretion review and on the principle of deference

to trial court sentencing, will doubtless consider it almost

inconceivable that a man who steals more than a half-million

dollars in a calculated and prolonged course of deception and

embezzlement over several years will suffer only a single day

in prison. I respectfully dissent because I have a firm and definite conviction that we err in holding Ruff’s sentence here to

be reasonable. 

This is not the first case in which a panel of our court has

upheld as reasonable a lax sentence for a white collar criminal. United States v. Whitehead, __ F.3d __, No. 05-50458,

2008 WL 2718867 (9th Cir. July 14, 2008) (per curiam). In

Whitehead, Judge Bybee wrote a vigorous dissent with which

I substantially agree. It seems inescapable that we as a court

need to spend more time thinking about the appropriate punishment for white collar crime. 

We perhaps also ought to consider why it is that such light

sentences are all too frequently handed out by district courts

for white collar crimes. Cf. Peter Fridirici, Does Economic

Crime Pay in Pennsylvania? The Perception of Leniency in

Pennsylvania Economic Offender Sentencing, 45 Vill. L. Rev.

9874 UNITED STATES v. RUFF
793, 809-18 (2000) (explaining the United States Sentencing

Commission’s policy objective to rectify the perceived

leniency toward white collar offenders by providing in the

Guidelines short but certain terms of imprisonment for economic crimes that would have likely resulted in only probation prior to the Guidelines). 

There is no doubt that prisons filled with dangerous

inmates are dangerous places and some district courts may

hesitate to confine white collar criminals in such dangerous

facilities. However, the ordinary convict is subjected to these

risks and forced to run a gauntlet of varied threats with

imprisonment, so it is hard for me to see how we can favor

the class of offenders who commit white collar crimes. It may

be that district courts sentencing white collar criminals can

more often identify with the criminal who may ostensibly

have a slot in society. But, socioeconomic comfort with a

criminal convict is not a sufficient reason to show such

extreme leniency that economic crimes will not be deterred.

It may also be that a non-incarcerated convict will be in a

superior position to make restitution to the victims of his

crimes. And possibly for that reason we see cases where the

corporate victim favors either no prison time or early release

to get a better and earlier chance for restitution. But, absent

sufficient penalty for such serious crimes, society runs the risk

that the convict may offend again, and, for all we know, make

restitution with the fruits of a future crime. A victim’s desire

for restitution or for conditions facilitating restitution cannot

be given primacy over protecting society from the white collar criminal or deterring others from attempting similar

crimes. 

Ruff stole $644,866 of supplies from the non-profit hospital

that employed him. He assiduously pursued his path of deception by entering false data in the hospital inventory logs,

showing the calculated and intentional manner of his dishonesty for years, and sold his ill-gotten loot on eBay. Ruff did

not end his three-and-a-half-year crime spree until he was

UNITED STATES v. RUFF 9875
questioned by hospital staff. The Guidelines recommended 30

to 37 months of imprisonment, but the district court sentenced

Ruff to just one day in prison followed by three years of

supervised release, twelve months and a day of which is to be

served in the Geiger residential confinement facility. This

trivial imprisonment for this major crime is substantively

unreasonable. Hence, with respect but a firm conviction that

the majority is wrong, I dissent. 

9876 UNITED STATES v. RUFF