FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

STEVEN DWIGHT HAMMOND,

Defendant-Appellee.

No. 12-30337

D.C. No.

6:10-cr-60066-

HO-1

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

DWIGHT LINCOLN HAMMOND, JR.,

Defendant-Appellee.

No. 12-30339

D.C. No.

6:10-cr-60066-

HO-2

OPINION

Appeal from the United States District Court

for the District of Oregon

Michael R. Hogan, District Judge, Presiding

Submitted December 3, 2013*

Seattle, Washington

* The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. HAMMOND

Filed February 7, 2014

Before: Richard C. Tallman and Carlos T. Bea, Circuit

Judges, and Stephen J. Murphy, III, District Judge

**

Opinion by Judge Murphy

SUMMARY***

Criminal Law

On appeals by the government, the panel vacated

sentences for maliciously damaging the real property of the

United States by fire, in violation of 18 U.S.C. § 844(f)(1),

and remanded for resentencing, in cases in which the

defendants set fires on their ranch land that spread to public

land.

The panel rejected the defendants’ contention that the

government waived its right to appeal the sentences in the

plea agreements or otherwise failed to preserve its objection

to the sentences. The panel explained that the principles

governing the formation and interpretation of plea agreements

leave no room for implied waivers.

** The Honorable Stephen J. Murphy, III, United States District Judge

for the Eastern District of Michigan, sitting by designation.

 

*** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. HAMMOND 3

The panel held that the district court illegally sentenced

the defendants to terms of imprisonment less than the

statutory minimum. The panel observed that although the

district court attempted to justify lesser sentences on Eighth

Amendment grounds, sentencing the defendants to five years

of imprisonment would not have been unconstitutional.

COUNSEL

Kelly A. Zusman, Assistant United States Attorney; S.

Amanda Marshall, United States Attorney, District of

Oregon, Portland, Oregon, for Plaintiff-Appellant.

Lawrence H. Matasar, Lawrence Matasar, P.C., Portland,

Oregon, for Defendant-Appellee Steven Dwight Hammond.

Marc D. Blackman and Kendra M. Matthews, Ransom &

Blackman, LLP, for Defendant-Appellee Dwight Lincoln

Hammond, Jr.

OPINION

MURPHY, District Judge:

The government appeals the sentences of Steven and

Dwight Hammond, whom a jury convicted of maliciously

damaging the real property of the United States by fire, in

violation of 18 U.S.C. § 844(f)(1). The convictions carried

minimum sentences of five years of imprisonment, but citing

Eighth Amendment concerns, the district court sentenced

Steven to only twelve months and one day of imprisonment

and Dwight to only three months of imprisonment. Because
4 UNITED STATES V. HAMMOND

the sentences were illegal and the government did not waive

its right to appeal them, we vacate the sentences and remand

for resentencing.

I. Background

The Hammonds have long ranched private and public

land in Eastern Oregon. Although they lease public land for

grazing, the Hammonds are not permitted to burn it without

prior authorization from the Bureau of Land Management.

Government employees reminded Steven of this restriction in

1999 after he started a fire that escaped onto public land.

But in September 2001, the Hammonds again set a fire on

their property that spread to nearby public land. Although the

Hammonds claimed that the fire was designed to burn off

invasive species on their property, a teenage relative of theirs

testified that Steven had instructed him to drop lit matches on

the ground so as to “light up the whole country on fire.” And

the teenager did just that. The resulting flames, which were

eight to ten feet high, spread quickly and forced the teenager

to shelter in a creek. The fire ultimately consumed 139 acres

of public land and took the acreage out of production for two

growing seasons.

In August 2006, a lightning storm kindled several fires

near where the Hammonds grew their winter feed. Steven

responded by attempting back burns near the boundary of his

land. Although a burn ban was in effect, Steven did not seek

a waiver. His fires burned about an acre of public land.

The government ultimately prosecuted the Hammonds on

charges related to these and other fires. After trial, the jury

deliberated several hours and returned a partial verdict. The
UNITED STATES V. HAMMOND 5

jury convicted Steven of two counts and Dwight of one count

of maliciously damaging the real property of the United

States by fire, in violation of 18 U.S.C. § 844(f)(1), based on

their respective roles in the September 2001 and August 2006

fires. The jury also acquitted the Hammonds of some charges

and failed to reach a verdict on others, including conspiracy

charges brought against Steven and Dwight. The judge then

instructed the jury to continue deliberating.

While the jury deliberated on the remaining charges, the

parties reached an oral agreement and presented it to the

court.1 The government told the court that the Hammonds had

agreed to “waive their appeal rights” — except with respect

to ineffective assistance of counsel claims — “and accept the

verdicts as they’ve been returned thus far by the jury.” In

return, the government promised to “recommend” that

Steven’s sentences run concurrently and agreed that the

Hammonds “should remain released pending the court’s

sentencing decision.”

The Hammonds agreed with the government’s summary

of the plea agreement. Their attorneys also added that the

Hammonds wanted the “case to be over” and hoped to “bring

th[e] matter to a close.” According to the defense, the “idea”

of the plea agreement was that the case would “be done with

at the sentencing” and that the “parties would accept . . . the

sentence that’s imposed.” The district court then accepted the

plea agreement and dismissed the remaining charges.

1 Although the Hammonds did not enter guilty pleas, the Hammonds

agreed not to contest the jury verdicts in exchange for the government

moving to dismiss other charges. The resulting posture is the same as that

following a plea agreement. We thus will refer to the oral agreement here

as a plea agreement and apply to it the law governing plea agreements.
6 UNITED STATES V. HAMMOND

At sentencing, the court found that the guidelines range

for Steven was 8 to 14 months and for Dwight was 0 to 6

months. Yet their convictions carried five-year minimum

terms of imprisonment. See 18 U.S.C. § 844(f)(1). The

government accordinglyrecommended five-year sentences of

imprisonment and argued — both in its sentencing

memorandum and at sentencing — that the court lacked

discretion to impose lesser sentences.

The court, however, concluded that the Eighth

Amendment required deviation from the statutory minimum.

Observing that Congress probably had not intended for the

sentence to cover fires in “the wilderness,” the court reasoned

that five-year sentences would be grossly disproportionate to

the severity of the Hammonds’ offenses. The court then

sentenced Steven to two concurrent terms of twelve months

and one day of imprisonment and Dwight to three months of

imprisonment.

II. Standard of Review

We review both a waiver of appeal and the legality of a

sentence de novo. See United States v. Bibler, 495 F.3d 621,

623 (9th Cir. 2007) (waiver of appeal); United States v. Dunn,

946 F.2d 615, 619 (9th Cir. 1991) (legality of a sentence).

III. Discussion

A. Waiver

A threshold issue is whether the government waived its

right to appeal the Hammonds’ sentences in the plea

agreement or otherwise failed to preserve its objection. We

find no grounds for dismissing the appeal.
UNITED STATES V. HAMMOND 7

The Hammonds first argue that the government waived its

right to appeal in the plea agreement. Because a plea

agreement is partly contractual in nature, we interpret it from

the perspective of a reasonable defendant. See United States

v. De la Fuente, 8 F.3d 1333, 1337–38 (9th Cir. 1993). But

there is no ambiguity here to interpret. A reasonable

defendant would expect that the absence of any statements on

the government’s right to appeal simplymeans that no waiver

was contemplated. See United States v. Anderson, 921 F.2d

335, 337–38 (1st Cir. 1990).

The Hammonds respond by arguing that the statements of

defense counsel show that an all-around waiver of appellate

rights was the sine qua non of the plea agreement. The

record, however, belies that assertion. The statements made

by defense counsel just before the judge accepted the plea

agreement underscore that all parties sought to resolve the

case swiftly, but finality was not the only benefit supporting

the plea agreement. Other benefits included favorable

recommendations from the government and the dismissal of

charges. We thus cannot reasonably read defense counsels’

references to finality as meaning that no party could take an

appeal.

Assuming then that the plea agreement is silent on the

government’s right of appeal, the Hammonds urge us to

imply a waiver into the plea agreement. We have never

before done so. But relying on United States v. Guevara,

941 F.2d 1299 (4th Cir. 1991), the Hammonds argue that

construing the government’s silence as an implied waiver will

promote fairness and finality. We reject that position.

The principles governing the formation and interpretation

of plea agreements leave no room for implied waivers.
8 UNITED STATES V. HAMMOND

Federal Rule of Criminal Procedure 11, not the common law

of contracts, governs the making of plea agreements. See

United States v. Escamilla, 975 F.2d 568, 571 n.3 (9th Cir.

1992); United States v. Partida-Parra, 859 F.2d 629, 634 (9th

1988). Although Rule 11 gives courts discretion to accept or

reject a plea agreement, it does not authorize courts to remake

a plea agreement or imply terms into one. See United States

v. Benchimol, 471 U.S. 453, 455 (1985) (per curiam) (“Rule

11[] . . . speaks in terms of what the parties in fact agree to,

and does not suggest that such implied-in-law terms as were

read into this agreement by the Court of Appeals have any

place under the rule.”); United States v. Stevens, 548 F.2d

1360, 1362 (9th Cir. 1977) (observing that Congress rejected

a version of Rule 11 that would have allowed a court to

modify a plea agreement in favor of the defendant). We

accordingly “enforce the literal terms” of a plea agreement,

construing only ambiguous language in the defendant’s favor.

United States v. Franco-Lopez, 312 F.3d 984, 989 (9th Cir.

2002); see also United States v. Johnson, 187 F.3d 1129,

1134–35 (9th Cir. 1999). These principles preclude us from

implying a waiver where none exists.

Moreover, nothing in the nature of plea agreements

requires that each promise must be “matched against a mutual

and ‘similar’ promise by the other side.” United States v.

Hare, 269 F.3d 859, 861 (7th Cir. 2001). To be sure, the idea

behind a plea agreement is that each side waives certain rights

to obtain some benefit. See Partida-Parra, 859 F.2d at 633.

But there are ample reasons that a defendant might enter a

plea agreement short of extinguishing the government’s right

to appeal, including the possibility of a lower sentence and

the dismissal of other charges. Hare, 269 F.3d at 861; cf.

Brady v. United States, 397 U.S. 742, 752 (1970) (listing

possible reasons for entering a plea). For example, the
UNITED STATES V. HAMMOND 9

Hammonds negotiated for favorable recommendations from

the government and the dismissal of charges. Such benefits

are consideration enough to support a plea agreement. See

Hare, 269 F.3d at 861–62.

Finally, contrary to the Hammonds’ assertion, the record

leaves no doubt that the government preserved the objection

to the sentences that it raises on appeal. Nowhere did the

government make a “straightforward” concession. United

States v. Bentson, 947 F.2d 1353, 1356 (9th Cir. 1991). Nor

did the government fail to give the district court an

opportunity to address the argument it raises on appeal. See

United States v. Grissom, 525 F.3d 691, 694–95 (9th Cir.

2008). In its sentencing memorandum and at sentencing, the

government argued that the trial judge lacked discretion to

deviate from the statutory minimum. The government thus

preserved its objection, and we may hear its appeal.

B. Sentences

Turning now to the merits, we hold that the district court

illegally sentenced the Hammonds to terms of imprisonment

less than the statutory minimum. A minimum sentence

mandated by statute is not a suggestion that courts have

discretion to disregard. See United States v. Wipf, 620 F.3d

1168, 1169–70 (9th Cir. 2010). The court below was bound

to sentence the Hammonds to five-year terms of

imprisonment. See 18 U.S.C. 844(f)(1). Although the district

court attempted to justify lesser sentences on Eighth

Amendment grounds, sentencing the Hammonds to five years

of imprisonment would not have been unconstitutional.

Rather than categorically challenge five-year sentences

for arson, the Hammonds argue that the sentences would be
10 UNITED STATES V. HAMMOND

constitutionally disproportionate “under the unique facts and

circumstances of this case.” We assess this type of Eighth

Amendment challenge by “compar[ing] the gravity of the

offense to the severity of the sentence.” United States v.

Williams, 636 F.3d 1229, 1232 (9th Cir. 2011) (citing

Graham v. Florida, 560 U.S. 48, 60 (2010)). Only in the “rare

case in which this threshold comparison leads to an inference

of gross disproportionality,” do we then “compare the

defendant’s sentence with the sentences received by other

offenders in the same jurisdiction and with the sentences

imposed for the same crime in other jurisdictions.” Graham,

560 U.S. at 60 (internal citations and quotation marks

omitted).

Here, we need not progress beyond the first step.

Congress has “broad authority” to determine the appropriate

sentence for a crime and may justifiably consider arson,

regardless of where it occurs, to be a serious crime. Solem v.

Helm, 463 U.S. 277, 290 (1983). Even a fire in a remote area

has the potential to spread to more populated areas, threaten

local property and residents, or endanger the firefighters

called to battle the blaze. The September 2001 fire here,

which nearly burned a teenager and damaged grazing land,

illustrates this very point.

Given the seriousness of arson, a five-year sentence is not

grossly disproportionate to the offense. The Supreme Court

has upheld far tougher sentences for less serious or, at the

very least, comparable offenses. See Lockyer v. Andrade,

538 U.S. 63 (2003) (upholding a sentence of fifty years to life

under California’s three-strikes law for stealing nine

videotapes); Ewing v. California, 538 U.S. 11 (2003)

(upholding a sentence of twenty-five years to life under

California’s three-strikes law for the theft of three golf clubs);
UNITED STATES V. HAMMOND 11

Hutto v. Davis, 454 U.S. 370 (1982) (per curiam) (upholding

a forty-year sentence for possession of nine ounces of

marijuana with the intent to distribute); Rummel v. Estelle,

445 U.S. 263 (1980) (upholding a life sentence under Texas’s

recidivist statute for obtaining $120.75 by false pretenses).

And we and other courts have done the same. See, e.g.,

United States v. Tolliver, 730 F.3d 1216, 1230–32 (10th Cir.

2013) (upholding a 430-month sentence for using arson in the

commission of a felony); United States v. Major, 676 F.3d

803, 812 (9th Cir. 2012) (upholding a 750-year sentence for

offenses under 18 U.S.C. § 924(c)), cert. denied, 133 S. Ct.

280; United States v. Meiners, 485 F.3d 1211, 1212–13 (9th

Cir. 2007) (per curiam) (upholding a fifteen-year sentence for

advertising child pornography); United States v. Uphoff,

232 F.3d 624, 625–26 (8th Cir. 2000) (upholding a five-year

sentence for arson of a building).

Because the district court erred by sentencing the

Hammonds to terms of imprisonment less than the statutory

minimum, we vacate the sentences and remand for

resentencing in compliance with the law.

VACATED AND REMANDED.