F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A ME R I C A , Plaintiff-Appellant ,

v

. S T E V E N D W I G H T H AMM ON D , Defendant-Appellee

. N o. 12-30337

D.C. No. 6:10-cr-60066- H O-1

U N I T E D S T A T E S O F A ME R I C A , Plaintiff-Appellant ,

v

.
D W I G H T L I N C O L N H AMM ON D , J R ., Defendant-Appellee

. N o. 12-30339

D.C. No. 6:10-cr-60066- H O-2

OPI NI ON

Appeal from the United States District Court for the District of Oreg on Michael R. Hog an, District J u d g e, Presiding
Submitted December 3, 2013 * Seattle, W a shing ton

* T h e p an el un a n i m o u sl y co n clu d es th is case is su itab le f o r d ecisio n w ith o ut o ral arg u

m en t. S ee Fed . R. App . P . 3 4 (a)(2 ).U N I T E D S T A T E S V

. H AM M ON D 2

F iled F ebruary 7, 2014

B efore: Richard C. Tallman and Carlos T. B ea, Circuit J udg es, and Stephen J . Murphy , I I I , District J udg e * *

Opinion by

J u dg e Murphy

SUMMARY * * *

Crim inal Law

O n ap peals by the g overnment, the panel vacated sentences f

o r maliciously damag ing the real property of the United States by fire, in vio l ation of 18 U.S.C. § 844(f)(1), and r e m a n d ed for r esentencing , in cases in which the defendants set fires on t h e i r ranch land that spread to public land.

The p a nel rejected the d efendants’ contention that the g overnment waived its rig ht to appeal the sentences i n the plea agreements or otherwise failed to preserve its objection to the sentences. The panel ex plained that the p r i n c i p les g overning the formation a nd i nt e r p r etation of plea ag reements leave no room for implied waivers.

** T h e Ho n o ra b le Step h en J

. Murp h y , III, Un ited States District J u dg e f o r th e EasternDistrict o f

Mich ig an , sittin g b y

d esig n atio n

.

*** T h is su

m m ary co n stitu

tes n o p art o f

th e o p in io n

o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. H AM M ON D 3

T h e panel held that the district c ourt illeg ally sentence d the def e n d an t s to terms of imprisonment less than the statutory minimum. The panel observed that alt h o u gh the district cou rt attempted to justify lesser sentences on Eig hth Amendment g r ounds, sentencing the defendants to five y ears of imprisonment would not have been unconstitutional.

COUNSEL Kelly A. Z usman, A ssistant U nited States Attorney ; S. Amanda Marshall, United States A ttorney , Dist r i c t o f Oreg on, Portland, Oreg on, for Plaintiff-Appellant.

L awrence H. Matasar, L awre n ce Matasar, P.C., Portland, Oreg on, for Defendant-Appellee Steven Dwig ht Hammond.

Marc D. B lackman a

nd Kendra M. Matthews, Ra n som & B lackman, L L P, for Defendant-Appellee Dwig ht L incoln Hammond, J r.

OP INION
MURPHY, District J udg e:
The g overnment appeals the sentences of Steven a nd Dwig ht Hammond, whom a jury convicted of maliciously damag ing the real p roperty o f t h e United States by fire, in violation of 18 U.S.C. § 8 44(f)(1). The convictions carried minimum sentences of five y ears of imprisonment, but citing Eig hth Amend m e n t concerns, the district court sentenced Steven to only twelve months and one day o f imprisonment and D wig ht to only three months o f imprison m e n t

. B ecauseU N I T E D S T A T E S V

. H AM M ON D 4

the sentences were illeg al and the g overnment did not waive its rig h t to appeal them, we vacate the sentences and remand for resentencing

.
I. Background

The H ammonds have long ranched private and pu b l ic land in E astern O reg on. Althoug h they lease public land for g raz ing , the Hammonds are not permitted to burn i t wi thout p r i or authoriz ation from the B ureau of L and Manag eme n t

. Government employ ees reminded Steven of this restriction in 1999 after he started a fire that escaped onto public land.

B u t in September 2001, the Hammonds ag ain set a f ire on their property that spread to nearby public land. Althoug h the Hammonds claimed that the f i r e was desig ned to burn off invasive species on their property , a teenag e r elative of theirs testified that Steven had instructed him to drop lit matches on the g round so as to “lig ht up the whole c ountry on fire.” A nd the teenag er d id just that. T he resulting flames, which were eig ht to ten feet hig h, spread quickly and forced the teenag er to shelter in a creek. The fire ultimately consumed 139 acres of public land and took the acreag e out of production for two g rowingseasons.

I n A ug ust 2006, a lig h tning storm kindled several fires
near where the Hammonds g r ew their winter f eed. S t e v en responded by attempting back burns near the boundary of his land. Althoug h a burn ban was in effect, Steven did not seek a waiver. His fires burned about an acre of public land.

The g overnment ultimately prosecuted the Hammonds on charg es related to these and other fires. Afte r t r i al, the jury deliberate d s e veral hours and returned a partial verdict. TheU N I T E D S T A T E S V

. H AM M ON D 5 jury convicted Steven of two counts and Dwig ht of one count of malicious l y damag ing the real property o f 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 Aug ust 2006 fires. T he jury also acquitted the Hammonds of some charg e s and f ailed to reach a v er d i c t on others, including conspiracy charg es broug ht ag ainst St even a nd Dwig ht. The judg e then instructed the jury

to continue deliberating

. W h ile the jury

deliberated on the r emaining charg es, the parties reached a

n oral ag reem e nt and presented it to the court. 1 The g overnment told the court that the Hammonds h ad
a gr e e d to “ waive their appeal rig hts”

— ex cept with respect to ineffective assistance of counsel claims — “and a ccept the verdicts as they ’ve b een returned thus far by the jury .” I n return, the g overnment promised to “ recommend” that Steven’s sentences r

un concurren t l y and ag reed that the H a m m onds “should remain r eleased pending the court’s sentencingdecision.”

The Hammonds ag reed with the g overnment’s summary of the plea a g reement. Their attorne y s a l s o added that the Hammonds wanted the “case to b e over” and hoped to “bring th[ e] matter to a close.” A ccording to the defense, the “idea” of the plea a g reement was that the case w ould “be done with at the sentencing ” and that the “parties would accept . . . the sentence that’s imposed.” T he d istrict court then accepted the plea agreement and dismissed the remaining charg es.

1 A l th o u g h th e Ham

m o n ds d id n o t en t er g u i lty p leas, th e Ham m o n d s ag reed n o t to co n test th e j ury v erd i c t s i n e x ch an g e f o r th e g o v ern m en t
m o v in g to d ism iss o th er ch arg es. T h e resu ltin g po stu re is th e sam e as th at f o llo w in g a p lea ag reem en t. W e thu s w i ll ref er to th e o ral ag reem en t h ere as a p lea ag reem ent an d ap p ly to it th e law

g o v ern in g p l ea ag reem en ts.U N I T E D S T A T E S V

. H AM M ON D 6

At sentencing , the court found that the gu i d e lines r ang e for Steven was 8 to 14 months and f o r Dwig ht was 0 to 6 months. Yet their convictions carried five-year minimum terms of imprisonment. S e e 18 U.S.C. § 844(f)(1). The g overnment according ly r e c o mmended five-y ear sentences o f imprisonment and argued — both in its sentencing memorandum and at sentencing — that t h e court lacked discretion to impose lesser sentences.

Th e court, however, concluded that the Eig hth Amendment required deviation from the statutory minimum. Observing that Cong ress p robabl y had not intended f o r the sentence to cover fires in “the wilderness,” the court reasoned that five-ye ar sentences would be g rossly disproportionate to the severity o f the Hammonds’ offenses. The court then sentenced Steven to two concurrent t e r m s of twelve months and one day of imprisonment and Dwig ht to three months o f imprisonment.

II. Standard of

Review

W e r e v i e w both a w aiver of appeal and the leg ality of a sentence d e novo. S

ee U nited States v. Bibler , 495 F .3d 621, 623 (9th Cir. 2007) (waiver of a ppeal); United States v. D unn , 946 F .2d 615, 619 (9th Cir. 1991) (leg ality of a sentence).

III. Discussion

A. Waiver

A threshold issue is wh e t h e r the g overnment waived its rig ht to appeal the Hammonds’ sentences i n t he plea
a g reement or otherwise f ailed to preserve its objection. W e find no g rounds for dismissing the appeal.U N I T E D S T A T E S V

. H AM M ON D 7

The H ammonds first argue that the g overnment waived its rig ht t o ap p eal in the plea ag r eement. B ecause a plea ag reement is p artly contractual in nature, we interpret it from the perspective of a reasonable defendant. See United States

v

. D e la Fuente , 8 F .3d 1 333, 1337–38 (9th Cir. 1993)

. Bu t there is no ambig uity here to interpret. A r easonable defendant would ex pect that the absence of any statements on the g o vernment’s rig ht to appeal simply means that no w aiver
was contemplated. See U nited States v. Anderson , 921 F .2d 335, 337–38 (1st Cir. 1990).

The Hammonds respond by arguing that the statements o f d e f e nse counsel show that an all-around waiver of appellate rig hts was the sine qua non of the plea ag reement. The record, however, belies that assertion. The statements made by defense counsel just before the judg e accepted the plea ag reement underscore that all parties soug ht to r e s o l v e the case swiftly , but finality was not the only benefit supporting t h e plea ag reement. Other benefits included favorable recommendations from the g overnment and the dismissal o f charg es. W e thus c annot reasonably r ead d efense counsels’ references to finality as meaning t h a t n o party could take an appeal. Assuming then that the plea ag r eement is silent o n the g overnment’ s rig ht of a

ppeal, the Hammonds urg e us to imply a waiver into the plea ag r eement. W e have never before don e so. B ut relying on United States v. Guevara , 941 F .2d 1 2 99 (4th Cir. 1991), the Hammonds argue that construing the g overnment’s silence a s an implied waiver will promote fairness and finality . W e reject that position.

The principles g overning the f ormation and interpretation of plea ag reements leave no ro o m for implied waivers.U N I T E D S T A T E S V

. H AM M ON D 8

F ederal Rule of Criminal Procedure 11, not the common law of contracts, g overns the making o f plea ag r e e ments. 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). Althoug h Rule 11 g ives courts discretion to accept o r reject a plea ag reement, it does not authoriz e courts to remake
a plea ag reement or i m p l y terms into one. See United States v. Benchimol , 471 U.S. 453, 455 (1985) (per curiam) (“Rule 11[ ]

. . . speaks in term s o f what the p arties in f act ag ree to, and does not sug g e st that such implied-in-law terms as were read into this ag reement by th e C o u r t of Appeals have any plac e u n d er the rule.”); United States v. Stevens , 548 F .2d 1360, 1362 (9th Cir. 1977) (observing that Cong ress rejected
a version o f Rule 1 1 t h a t w ould have allowed a court to modify a p lea ag ree m ent in f avor of the defendant). W e ac c o r d i ng ly “enforce the literal terms” of a plea ag r eement, construing only ambig uous lang u ag e in the defendant’s favor. United States v. Franco-Lopez , 3 12 F .3d 9 8 4 , 9 8 9 (9th Cir. 2002); see also United S tates v. Johnso n , 187 F .3d 1129, 1134–35 (9th Cir. 1999). These princip l e s preclude us from imply ing a waiver where none ex ists.

M o r eover, nothing in the nature of plea ag reeme n t s requires that each promise must b e “matched ag ainst a mutual and ‘similar’ promise by the othe r s i d e .” U nited States v

. Hare , 2 69 F .3d 859, 8 61 (7th Cir. 2001). To be sure, the idea behind a plea ag reement is that e a ch side waives certain rig hts to obtain some b e n ef

i t. S ee Partida-Parra , 859 F .2d at 633. B ut there are ample r easons that a defendant mig h t enter a plea ag reement short of e x ting uishing the g o vernment’s rig ht to appeal, including the possibility of a lower s entence a nd the dismissal of other cha r g es. Hare , 2 69 F .3d at 861; c f. B r ady v. United States , 397 U.S. 7 42, 752 (1970) (li s t i n g possibl e r e a s ons for entering a p lea). F or ex ample, theU N I T E D S T A T E S V

. H AM M ON D 9 Hammonds neg otiated for favorable recommendations from t h e g overnment and the dismissal of c h a rg es. Such benefi t s are consideration enou gh to support a plea ag reement. See Hare , 269 F .3d at 861–62.

F inally , contrary to the Hammonds’ assertion, the record leaves no doubt that the g overnment preserved the objection to the sentences that it r aises on appeal. Nowhere d i d the g overnment make a “straig htforw a rd” concession. United States v. B e ntson , 947 F .2d 1353, 1356 (9th Cir. 1991). Nor did the g overnment fail to g ive the d i s t r i ct court an opportunity to address t he argument it raises on appeal. See United States v. Gris s o m , 525 F .3d 691, 694–95 (9th Cir. 2008). I n its sentencingmemorandum and at sentencing , the g overnment argued that the trial judg e lacked discreti o n to deviate from the statutory m i n i mum. The g overnment thus preserved its objection, and we may hear its appeal.

B. Sentences Turning now to the merits, we hold that the district court illeg ally sentenced the H ammonds to terms of imprisonment less than the statutory m i n imum. A minimum sentence mandated by statute is not a sug g estion that courts ha v e discretion to dis r e g ard. See U nited States v. W

ipf , 620 F .3d 1168 , 1169–70 (9th Cir. 2010). T h e c ourt below was bound to sentence the Hammo n d s t o five-y ear terms o f imprisonment. See 18 U.S.C. 844(f)(1). Althoug h the district court attempted to justify lesser sent e n c e s on Eig hth Amendment g rounds, sentencing the Hammonds to five y ears of imprisonment would not have been unconstitutional.

Ra t h er than categ orically challeng e five-year sentences f o r arson, the Hammonds argue that the sentences woul d b eU N I T E D S T A T E S V

. H AM M ON D 10 constitutionally disproportionate “under the unique facts a nd
c i r c umstances of this case.” We a ssess this ty pe of Eig h t h Amendment challeng e by “compar[ ing ] the g ra v i t y of the offense to the severity of the sentence.” United State s v

. W illiams , 636 F .3d 1229, 1232 ( 9th C ir. 2011) (citing Graham v. Florida , 560 U.S. 48, 60 (2010)). Only in the “rare
case in which this threshold c omparison leads to an inference of g ross disproportionality ,” d o we then “compare the defendant’s sentence w ith th e s e ntences received by other offenders in the same jurisdi ction and with the sentences imposed for the same crime in other jurisdictions.” Graham , 560 U.S. at 60 ( internal citations and quotation mar ks omitted).
Here, we need not prog ress bey ond t h e fi rst step. Cong r ess has “broad authority ” to determine the appropriate sentence for a crime and may just i fi ab l y consider arson, reg ardless of where it occurs, to be a serious crime. Solem v

. Helm , 4 63 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 endang er the firefighters called to battle the blaz e. The September 2001 fire h ere, w h ich nearly burned a teenag e r and damag ed g r az ing l an d , illustrates this very point.

Given the seriousness of arson, a five-year sentence is not g rossly disproportionate to the o ffense. The Supreme Court ha s up h e l d far toug h er sentences for less serious o r, at the very least, c o m p a rable o ffenses. See Lockyer v. A n drade , 538 U.S. 6 3 (2003) (upholding a sentence of f ifty y ears to life under California’s thre e
- s t rikes law for stealing n ine videotapes); Ewing v. California , 538 U.S. 11 (200 3 ) (upholding a sentence o f t w en t y -five y ears to life under California’s three-strikes law f or the theft of three g olf clubs);U N I T E D S T A T E S V

. H AM M ON D 11

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

- y e ar sentence for possession o f n ine ounces o f marijua n a w i t h the intent to distribute); Rummel v. Estelle , 445 U.S. 263 (1980) (upholding a life sentence under Tex as’s recidivist statute for obtaini n g $120.75 by false pretenses). And w e and o ther courts h ave 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 o f a felony

) ; Uni t e d States v. Major , 676 F .3d 803, 812 ( 9 th Cir. 2012) (upholding a 750-y e ar sentence for offenses under 18 U.S.C. § 924(c)), cert. denied , 1 33 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. 2 000) (upholding a five-y e ar sentence for arson of a building).

B e cause the district c o u rt e rred by sentencing the Hammonds to terms of imprisonment less than the statutory minimum, we vacate t h e sentences and remand for resentencing

in compliance with the law.

VACATED AND REMANDED

.