FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

COLLINS MAX CHRISTENSEN, AKA

Collie Christensen,

Defendant-Appellant.

No. 11-10562

D.C. No.

2:11-cr-00070-

JAM-1

OPINION

Appeal from the United States District Court

for the Eastern District of California

John A. Mendez, District Judge, Presiding

Argued and Submitted

June 10, 2013—San Francisco, California

Filed October 11, 2013

Before: A. Wallace Tashima and Jay S. Bybee, Circuit

Judges, and William H. Stafford, Senior District Judge.*

Opinion by Judge Stafford;

Dissent by Judge Tashima

 

*

 The Honorable William H. Stafford, Jr., Senior District Judge for the

United States District Court for the Northern District of Florida, sitting by

designation.
2 UNITED STATES V. CHRISTENSEN

SUMMARY**

Criminal Law

The panel affirmed a sentence imposed following the

defendant’s guilty plea to wire fraud in connection with a real

estate investment scheme.

The panel held that the record supports the district court’s

conclusion that the Sentencing Guidelines did not properly

take into account the harm caused by the egregiousness of the

defendant’s conduct, and that this conclusion did not

constitute impermissible double-counting.

Regarding the defendant’s contention that the district

court improperly discounted the defendant’s acceptance of

responsibility, the panel held that the fact that the defendant

received a three-level Guidelines reduction for acceptance of

responsibility but ended up with an above-Guidelines

sentence is insufficient to leave the panel with a definite and

firm conviction that the district court erred.

Reviewing for plain error, the panel deemed unavailing

unpreserved contentions that the district court committed

procedural error by among other things (1) failing to resolve

factual conflicts in the presentence report regarding victim

impact and loss amounts; (2) failing to provide advance

notice of the precise grounds for an upward variance; and

(3) improperly relying on clearly erroneous facts, speculative

evidence, and unreliable victim statements.

** 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. CHRISTENSEN 3

Dissenting, Judge Tashima wrote that the district court

committed prejudicial, significant procedural error in

imposing an upward variance on the basis of investor losses

that were not attributable to the defendant’s criminal conduct.

COUNSEL

Courtney J. Linn (argued) and McGregor W. Scott, Orrick

Herrington & Sutcliffe LLP, Sacramento, California, for

Defendant-Appellant.

Camil A. Skipper (argued), Assistant United States Attorney,

Benjamin B. Wagner, United States Attorney, Russell L.

Carlberg, Assistant United States Attorney, Sacramento,

California, for Plaintiff-Appellee.

OPINION

STAFFORD, Senior District Judge:

Collins MaxChristensen appeals the sentence imposed by

the district court following his pre-indictment guilty plea to

one count of wire fraud in violation of 18 U.S.C. § 1343. 

Christensen’s sentence—60 months in prison—was 19

months above the high end of the applicable advisory

guideline range and 27 months above the recommended

sentence set out in the plea agreement. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.
4 UNITED STATES V. CHRISTENSEN

I.

Christensen waived indictment by a grand jury and

pleaded guilty to a one-count information charging wire

fraud. The plea agreement revealed that, between 2006 and

2008, Christensen managed the operations of at least six land

development companies, which—in turn—managed multiple

real estate projects spearheaded byChristensen. By soliciting

individual investors, Christensen received a total of

approximately $2,385,959 from fourteen individuals who

agreed to invest in one or more of Christensen’s projects. 

Over time, Christensen diverted a significant amount of the

investors’ funds, using the diverted funds for undisclosed

purposes. Indeed, Christensen admitted that he

misappropriated approximately $985,994 of investors’ funds

using the interstate wires to further his criminal scheme. 

Christensen further admitted that he diverted investors’ funds

not only for use on undisclosed real estate projects but also

for his own personal use.

In the Presentence Investigation Report (“PSR”), the

probation officer summarized the losses sustained by the

various “victims” of Christensen’s offense of conviction. 

Only those persons who had some or all of their investment

funds unlawfully diverted by Christensen were listed as

“victims” of Christensen’s offense. Consistent with the plea

agreement, the total “victim” loss reported by the probation

officer was $985,994.

Given the loss amount reported in the PSR and admitted

by Christensen, the probation officer calculated a total

offense level of 20, including a three-level reduction for

acceptance of responsibility. With a criminal history

category of I, the recommended sentencing range under the
UNITED STATES V. CHRISTENSEN 5

Guidelines was 33 to 41 months. Christensen agreed with the

probation officer’s Guidelines calculations.

The probation officer included in the PSR a sampling of

the written statements that Christensen’s “victims” submitted

to the court. In his informal objections to the PSR, which

were submitted to the probation officer before sentencing,

Christensen complained that one of the victim impact

statements was “misleading.” He did not provide specifics,

and he did not otherwise object to the content of any of the

victim impact statements quoted in the PSR. After the

probation officer amended the PSR in response to

Christensen’s informal objections, Christensen did not again

complain about the victim impact statements.

One day before sentencing was scheduled to begin, the

district court advised counsel that—for “a number of

reasons”—it was considering an upward variance to

Christensen’s sentence. To that end, the district judge

requested that the government provide information

concerning the amount of investor monies that Christensen

diverted to his own personal use. Given the last-minute

notice concerning a possible upward variance, Christensen’s

counsel requested and obtained a continuance of the

sentencing hearing.

As directed by the district court, the government filed a

spreadsheet itemizing Christensen’s use of $507,805 for

personal expenses. Among other things, the spreadsheet

revealed that Christensen used investor monies for personal

investment properties held in his wife’s name, to pay his

more-than-$13,000-per-month home mortgage, to make

payments to his ex-wife, to make a car payment for his

daughter, to pay his daughter’s college tuition, and to gamble
6 UNITED STATES V. CHRISTENSEN

at a casino in Biloxi, Mississippi. According to the FBI,

$507,805 was a “conservative figure” for the amount of

diverted funds used for Christensen’s personal expenses.

Christensen did not contest the accuracy of the personaluse transactions listed in the government’s spreadsheet.

Christensen instead argued—both in a written sentencing

memorandum and in open court at sentencing—that an

upward variance based on his personal use of diverted funds

would constitute improper double-counting because the total

loss amount—$985,994—had already resulted in a 14-level

increase in Christensen’s offense level pursuant to U.S.S.G.

§ 2B1.1(b)(1)(H). The district court was unpersuaded by

Christensen’s double-counting argument.

At the first of two sentencing hearings, the district court

overruled Christensen’s informal objections to the PSR and,

on the record, adopted the findings in the amended PSR,

determining them to be “true and correct as modified.” 

Included in the findings adopted by the district court was the

total loss—$985,994—resulting from Christensen’s criminal

offense. Although a number of Christensen’s victims spoke

at that first hearing, Christensen failed to call the district

court’s attention to any false or misleading information

provided by those victims.1Indeed, Christensen offered no

objection at all to the victims’ statements.

1 Christensen did object to the government’s reading of a “victim impact

statement” from W.H. Mehr. Christensen noted for the record that Mehr

was not, in fact, listed as a “victim.” The district court responded to the

objection by stating: “So noted.” Mehr’s investment—$128,571.42—was

not included in the $985,994 loss attributed to Christensen’s criminal

conduct.
UNITED STATES V. CHRISTENSEN 7

At the second sentencing hearing, after hearing from both

counsel and Christensen himself, the district court explained

its reasons for an upward variance as follows:

The sentencing factors require the Court to

impose a sentence that is sufficient, but not

greater than necessary to comply with the

purposes set forth in 18 U.S.C. Section

3553(a)(2). And if the Court is going to vary,

the Court has to state its reasons for varying

upward.

And focusing on the nature and

circumstances of the offense, and the nature

and characteristics of the defendant, . . . it

concerns the Court . . . that in effect

[Christensen] used his positions to influence

innocent victims to invest at a time when he

knew that he was not going to use the money

for those purposes, without disclosing that to

them. He diverted $985,994, which has been

the agreed upon sum in terms of loss in this

case.

After adding that (1) Christensen apparently learned

nothing from a 28-year-old felony conviction for obtaining

money by false pretenses and (2) Christensen’s numerous

victims included “vulnerable, retirement age victims, victims

that trusted Mr. Christensen,” the district court continued:

Mr. Christensen indicated that he did not set

out to bilk his investors. I accept that. But,

again, that’s only half the story. At some

point he did consciously and intentionally
8 UNITED STATES V. CHRISTENSEN

decide to bilk his investors, and that conduct

continued for a period of years, and it

involved a number of different investors in the

same type of conduct.

And I found interesting Mr. Christensen’s

statement to the Court in which he explained,

at least attempted to explain why he did what

he did. And he wrote in there that he’s the

type of person in which he believes that

failure is not an option. I’ve heard that phrase

over and over again by many people. And in

this case, it clearly was an option. It’s clearly

what you should have done. You should have

accepted failure. Sometimes you learn more

from your failures than you do from your

successes. But it certainly would have saved

not only your family, but all of these victims

who have made statements, submitted loss

statements to the Court, from having to

postpone their retirement, have their

marriages destroyed, lose their jobs or lose

their homes.

The Court believes, therefore, for those

reasons, and specifically given the – as in

Schlueter, the fact that I don’t think the

sentencing guideline range adequately

accounts for the harm that Mr. Christensen’s

fraud caused his victims, I believe that given

the egregiousness of his conduct, including

lying, covering up, using funds for personal

purposes, destroying the victims’ lives,

cheating victims out of significant sums of
UNITED STATES V. CHRISTENSEN 9

money that they needed, and taking advantage

of personal relationships, that the guideline

range doesn’t adequately account for the harm

that his conduct has caused. There is a need –

despite the fact that there has been almost 28

years between his last conviction, there still is

a need I believe in this case to protect the

public from further crimes.

For all these reasons, the Court believes

an upward variance is appropriate and, given

the loss in this case, that a sentence of 60

months is appropriate and sufficient, but not

greater than necessary to satisfy the

sentencing requirements imposed by the

Court.

At the conclusion of the sentencing hearing, Christensen

offered only two objections to the sentence imposed. 

Christensen first objected to the purported lack of notice

regarding the basis for an upward variance. Specifically,

Christensen asserted that he had not been given notice that the

court might base an upward variance on the victims’

statements. He did not assert that the district court committed

procedural error by relying on clearly erroneous facts,

speculative evidence, and unreliable victim statements. 

Second, Christensen objected to the district court’s alleged

“discounting” of his acceptance of responsibility. He offered

no other objections to the sentence imposed.
10 UNITED STATES V. CHRISTENSEN

II.

A.

Christensen raises a number of issues, only two of which

were properly preserved for appeal—namely, whether the

district court committed procedural error by imposing a nonGuidelines sentence based on factors already incorporated

into the Guidelines and whether the district court improperly

“discounted” Christensen’s acceptance of responsibility. We

find no merit to either issue.

We review a sentence for reasonableness; “only a

procedurally erroneous or substantively unreasonable

sentence will be set aside.” United States v. Carty, 520 F.3d

984, 993 (9th Cir. 2008) (en banc). “Procedural errors

include, but are not limited to, incorrectly calculating the

Guidelines range, treating the Guidelines as mandatory,

failing to properly consider the [18 U.S.C.] § 3553(a) factors,

using clearly erroneous facts when calculating the Guidelines

range or determining the sentence, and failing to provide an

adequate explanation for the sentence imposed.” United

States v. Armstead, 552 F.3d 769, 776 (9th Cir. 2008). 

Christensen has only challenged the procedural

reasonableness of his sentence.

We review the district court’s construction and

interpretation of the Guidelines de novo, United States v.

Nielsen, 694 F.3d 1032, 1034 (9th Cir. 2012), and the district

court’s application of the Guidelines for abuse of discretion,

United States v. Holt, 510 F.3d 1007, 1010 (9th Cir. 2007). 

We review the district court’s factual determinations for clear

error. United States v. Tulaner, 512 F.3d 576, 578 (9th Cir.

2008).
UNITED STATES V. CHRISTENSEN 11

We review the first of Christensen’s preserved

issues—whether the district court engaged in impermissible

double-counting—for abuse of discretion. See Holt, 510 F.3d

at 1010. As the Fifth Circuit correctly noted in United States

v. Williams, 517 F.3d 801 (5th Cir. 2008), “[t]he Supreme

Court’s decision in [United States v. Booker, 543 U.S. 220

(2005),] implicitly rejected the position that no additional

weight could be given to factors included in calculating the

applicable advisory Guidelines range, since to do otherwise

would essentially render the Guidelines mandatory.” Id. at

809 (internal footnote omitted). “This necessarilymeans that

the sentencing court is free to conclude that the applicable

Guidelines range gives too much or too little weight to one or

more factors, either as applied in a particular case or as a

matter of policy.” Id. Here, when selecting an above

Guidelines sentence for Christensen, the district court was not

prohibited from considering the extent to which the

Guidelines did not sufficiently account for the nature and

circumstances of Christensen’s offense, including the amount

of the loss, the number of victims, or the harm to the victims,

even though the Guidelines account for these factors either

implicitly or explicitly, to some extent. The district court did

not err by concluding that the Guidelines did not properly

take into account the harm caused by “the egregiousness of

[Christensen’s] conduct, including lying, covering up, using

funds for personal purposes, destroying the victims’ lives,

cheating victims out of significant sums of money that they

needed, and taking advantage of personal relationships.” The

district court’s conclusion is supported by the record and did

not constitute impermissible double-counting.

We review Christensen’s second preserved issue—

whether the district improperly discounted his acceptance of

responsibility—for clear error. United States v. Cortes,
12 UNITED STATES V. CHRISTENSEN

299 F.3d 1030, 1037 (9th Cir. 2002). Christensen was, in

fact, awarded a 3-level reduction for acceptance of

responsibility; the district court expressly denied that it

discounted “in any way the fact that [Christensen] accepted

responsibility;” and the record otherwise belies Christensen’s

suggestion that the district court “turned his acceptance of

responsibility on its head by using it as a justification for the

upward variance.” To determine that the district court clearly

erred, we must be “left with the definite and firm conviction

that a mistake has been committed.” Easley v. Cromartie,

532 U.S. 234, 242 (2001). Mere evidence that Christensen

received a 3-level reduction, but ended up with an above

Guidelines sentence is insufficient, in this case, to leave us

with a “definite and firm conviction” that the district court

erred. Rather, the district court acknowledged that

Christensen was entitled to an acceptance of responsibility

reduction and based the upward variance on Christensen’s

behavior wholly independent of his acts constituting

acceptance of responsibility. We have no basis for

questioning whether the district court did, both in word and

in fact, award Christensen a 3-level reduction for acceptance

of responsibility.

B.

Christensen contends that the district court committed

procedural error by, among other things, (1) failing to resolve

factual conflicts in the PSR regarding victim impact and loss

amounts as required by Federal Rule of Criminal Procedure

32(i)(3)(B); (2) failing to provide advance notice of the

precise grounds for the 19-month upward variance in his

sentence in violation of the Due Process Clause; and (3)

improperly relying on clearly erroneous facts, speculative

evidence, and unreliable victim statements, also in violation
UNITED STATES V. CHRISTENSEN 13

of the Due Process Clause. Because Christensen failed to

raise these alleged procedural errors before the district court,

we review for plain error. United States v. Burgum, 633 F.3d

810, 812 (9th Cir. 2011).

To secure reversal under the plain error standard,

Christensen must show that: (1) there was error; (2) the error

was plain; and (3) the error affected Christensen’s substantial

rights. United States v. Joseph, 716 F.3d 1273, 1277 (9th Cir.

2013). “If these three conditions [are satisfied], [we] may

exercise [our] discretion to notice a forfeited error that . . .

seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. (internal quotation marks omitted)

(quoting United States v. Ameline, 409 F.3d 1073, 1078 (9th

Cir. 2005) (en banc)). A sentencing error prejudices the

substantial rights of a defendant when there is a reasonable

probability that he would have received a different sentence

had the district court not erred. Id. at 1280. The defendant

bears the burden of showing a reasonable probability that he

would have received a different sentence absent the error. Id.

When a defendant fails to make specific allegations of

factual inaccuracy in a PSR, a district court has no obligation

under Rule 32(i)(3)(B). United States v. Petri, No. 11-30337,

2013 WL 1490604, at *7 (9th Cir. Apr. 12, 2013). Because

Christensen never made specific factual objections to the PSR

regarding victim impact and loss amounts, Rule 32 was never

triggered. Id. We find that the district court committed no

error, much less plain error, under Rule 32(i)(3)(B).

We likewise find that the district court committed no

error, much less plain error, by failing to provide advance

notice of the precise grounds upon which the the 19-month

upward variance to Christensen’s sentence was based. A
14 UNITED STATES V. CHRISTENSEN

district court is not required—either by the Federal Rules of

Criminal Procedure or by the Due Process Clause—to give

advance notice of its intent to impose a sentence outside the

advisory Guidelines range. Irizarry v. United States,

553 U.S. 708, 713–16 (2008). It follows that, if a district

court is not required to give advance notice of its intent to

vary upward, it is also not required to give advance notice of

the precise grounds upon which it might base an upward

variance.

To the extent Christensen complains, in general, that the

district court erred by taking into account the

“uncorroborated,” “unsworn,” and “untested” statements of

victims, his claim of error is without merit. The Federal

Rules of Evidence do not apply at a sentencing hearing. Fed.

R. Evid. 1101(d)(3). Indeed, “a sentencing judge may

appropriately conduct an inquiry broad in scope, largely

unlimited either as to the kind of information he may

consider, or the source from which it may come.” Nichols v.

United States, 511 U.S. 738, 747 (1994) (internal quotation

marks omitted). By statute, there is “[n]o limitation . . . on

the information concerning the background, character, and

conduct of a person convicted of an offense which a court of

the United States may receive and consider for the purpose of

imposing an appropriate sentence.” 18 U.S.C. § 3661. The

Federal Rules of Criminal Procedure, moreover, provide that

the presentence report must contain “information that

assesses any financial, social, psychological, and medical

impact on any victim.” Fed. R. Crim. P. 32(d)(2)(B). As a

general matter, then, a district court may consider victim

impact statements, whether sworn or not, at sentencing. 

United States v. Santana, 908 F.2d 506, 507 (9th Cir. 1990)

(per curiam).
UNITED STATES V. CHRISTENSEN 15

To the extent Christensen complains that the district court

procedurally erred and his due process rights were violated by

the district court’s purported reliance on “erroneous facts”

provided by the victims, we are presented with a closer

question. Specifically, Christensen points to statements made

by the district court at sentencing regarding victim losses and

impacts. The district court referred, for example, to the

statement of one victim (Jennifer R.) who said she invested

her entire life savings ($330,000) in one of Christensen’s

projects, only to lose it all and her 19-year marriage to boot. 

In the PSR, that particular victim’s loss—or, more precisely,

the portion of her overall investment that was attributed to

Christensen’s diversion of investor funds ($90,000) that was

lost—was reported to be only $23,017. The district court

noted that another investor had been unable to retire as

planned, although the PSR stated that the portion of that

victim’s overall investment that was subject to

misappropriation ($20,000) only resulted in a loss of $5,496. 

The district court also referred to the statement of another

individual (W.H. Mehr), who said that he would not have

invested his “$128,000 plus dollars” had Christensen been

truthful with him. Mehr was not listed as a “victim” in the

PSR at all, and his losses were not included in the $985,994

loss figure reported in the PSR, apparently because his

investment dollars were not diverted byChristensen. Finally,

the district court repeated the claims of various victims

regarding the impacts they suffered—foregone vacations,

delayed retirement, a ruined marriage, sale of the family

homes, lost savings—without separating (perhaps an

impossible task) the impacts attributable to Christensen’s

criminal behavior from the impacts attributable to noncriminal investment losses.
16 UNITED STATES V. CHRISTENSEN

Christensen bears the burden of showing that the district

court relied on clearly erroneous facts, affecting his

substantial rights, when either (1) calculating the Guidelines

range or (2) determining his sentence. See Armstead,

552 F.3d at 776. Christensen does not argue that the district

court relied on any clearly erroneous fact in calculating the

Guidelines range. In fact, Christensen agreed with the

calculated Guidelines range, including the loss amount that

the district court accepted, and reiterated numerous times as

the basis for the loss calculation in the case, in arriving at that

calculation—$985,994. Thus, the only question is whether

the district court relied on any clearly erroneous fact in

determining the sentence. Again, to find clear error, we must

be “left with the definite and firm conviction that a mistake

has been committed.” Easley, 532 U.S. at 242. We are left

with no such conviction that a mistake has been committed in

this case.

It is clear that, at sentencing, the district court expressly

adopted the findings reported in the PSR, including the

$985,994 loss suffered byChristensen’s “victims.” During its

recitation of reasons for varying upward, moreover, the

district court expressly stated that (1) Christensen “diverted

$985,994, which has been the agreed upon sum in terms of

loss in this case;” (2) “this case . . . involved almost a million

dollars;” and (3) “the Court believes an upward variance is

appropriate . . . given the loss in this case.” It thus seems

clear that the district court based its variance on “the agreed

upon sum in terms of loss in this case,” a sum—

$985,994—that included only victim losses attributable to

Christensen’s criminal conduct.

In addition to explaining that the upward variance was

based on “the agreed upon sum in terms of loss in this case,”
UNITED STATES V. CHRISTENSEN 17

the district court iterated the following additional reasons for

its upward variance: (1) Christensen took advantage of

personal relationships to solicit large sums of investment

monies from people who trusted him; (2) Christensen used

over $500,000 of investor monies to enrich himself—to

invest in properties held in his wife’s name, to pay his home

mortgage, to make payments to his ex-wife, to pay his

daughter’s college tuition, and to gamble at a casino in Biloxi,

Mississippi; (3) Christensen repeatedly and continually lied

to his victims, not only about the true state of project affairs

but also about the uses to which he was putting their

investment dollars, enabling him to keep his unlawful scheme

going for a period of years; (4) Christensen’s unlawful

scheme caused his victims to lose sums of money they could

ill afford to lose; and (5) Christensen apparently learned

nothing from a 28-year-old unscored conviction for obtaining

money by false pretenses. Christensen did not and does not

dispute the factual basis for the above reasons iterated by the

district court. Each of those reasons, moreover, constitutes a

proper sentencing factor under 18 U.S.C. § 3553(a), and

together they provide sufficient support for the district court’s

decision to vary upward.

The district court included another reason for the upward

variance when it referred to the “life-destroying impacts”

described by Christensen’s victims. As noted by the district

court, these victim-reported impacts included loss of homes,

a failed marriage, postponement of retirement, foregone

vacations, loss of life-savings, and loss of the ability to pay

for children’s private schooling. The victims reported the

impacts they suffered from having lost all of their investment

dollars, without differentiating losses that were solely

attributable to Christensen’s diversion of investor funds. 

These “life-destroying impacts” undoubtedlywent beyond the
18 UNITED STATES V. CHRISTENSEN

stipulated losses to investors based on Christensen’s diversion

of funds.

These “life-destroying impacts,” however, were proper

for the district court to consider even if not tied to the loss

Christensen caused by misappropriating investor funds. 

There is “[n]o limitation . . . on the information concerning

the background, character, and conduct of a person convicted

of an offense which a court . . . may receive and consider for

the purpose of imposing an appropriate sentence.”218 U.S.C.

§ 3661; see also Pepper v. United States, 131 S. Ct. 1229,

1240 (2011) (“Permitting sentencing courts to consider the

widest possible breadth of information about a defendant

2 Despite this plain and capacious language, the dissent insists that

information considered under 18 U.S.C. § 3661 must be criminal in

nature. See Dis. Op. at 31–34. We disagree. The Supreme Court “[has]

recognized that ‘the broad language of § 3661’ does not provide ‘any

basis for the courts to invent a blanket prohibition against considering

certain types of evidence at sentencing.’” Pepper v. United States,

131 S. Ct. 1229, 1241 (2011) (quoting United States v. Watts, 519 U.S.

148, 152 (1997)). Therefore, subject to constitutional constraints, see id.

at 1240 n.8, we take Congress at its word: a sentencing court may rely on

any evidence relating to a defendant’s background, character, and conduct

when considering the sentencing factors found in 18 U.S.C. § 3553(a). 

See Pepper, 131 S. Ct. at 1236 (holding that a sentencing court may

consider post-sentencing rehabilitation).

Our decision in United States v. Mercado, 474 F.3d 654 (9th Cir.

2007), cited by the dissent, does not alter this conclusion. See Dis. Op. at

34 n.5. In Mercado, the district court considered the criminal activity

charged in several acquitted counts when it sentenced the defendant on the

counts for which he was convicted. 474 F.3d at 655–56. We affirmed,

holding that “the district court could constitutionally consider the

acquitted conduct.” Id. at 657. Thus, although Mercado establishes that

a district court may consider acquitted conduct, it does not suggest that

information considered under § 3661 must be criminal in nature.
UNITED STATES V. CHRISTENSEN 19

‘ensures that the punishment will suit not merely the offense

but the individual defendant.’”) (quoting Wasman v. United

States, 468 U.S. 559, 564 (1984)). These “life-destroying

impacts,” supported by victim statements, provide greater

insight into Christensen’s “background, character, and

conduct” that the district court was entitled to rely on in

determining that for a specified loss resulting from criminal

conduct, the Guidelines did not adequately account for the

seriousness of Christensen’s offense, provide adequate

deterrence, or sufficiently protect the public and innocent

investors from the infliction of further harm at the hands of

Christensen.3See 18 U.S.C. § 3553(a)(2). Moreover, it was

not the dollar amount of these victims’ losses that the district

court relied on in imposing this upward variance; rather, it

was the intangible nature of Christensen’s conduct. As the

district court stated:

I believe that given the egregiousness of his

conduct, including lying, covering up, using

funds for personal purposes, destroying the

victims’ lives, cheating victims out of

significant sums of money that they needed,

and taking advantage of personal

relationships, that the guideline range doesn’t

adequately account for the harm that his

conduct has caused. There is a need—despite

the fact that there has been almost 28 years

 

3 The dissent worries that our holding might allow sentencing courts to

vary upward based on “the tradition or school of yoga [a defendant]

favors.” Dis. Op. at 34. Of course, this fanciful scenario is not before us. 

The question presented here is much easier: Does 18 U.S.C. § 3661

authorize a sentencing court to consider life-destroying impacts that flow

directly from a substantially criminal scheme? As explained above, the

answer is “yes.”
20 UNITED STATES V. CHRISTENSEN

between his last conviction, there still is a

need I believe in this case to protect the public

from further crimes.

In addition, we note that many of the “life destroying

impacts” were indivisible. For example, Jennifer R.

attributed the dissolution of her 19-year marriage to

Christensen’s conduct. The dissent argues that it was

inappropriate for the district court to consider this divorce

because the PSR indicates that Jennifer R. lost only $23,017

due to Christensen’s fraud. Dis. Op. at 27–29. In so doing,

the dissent assumes Jennifer R.’s divorce was a matter of

simple arithmetic: it resulted from the loss of a certain sum of

money, and that sum must have been greater than $23,017;

therefore, because Jennifer R. lost only $23,017, the district

court was required to ignore her claim that Christensen’s

conduct had caused her divorce. This argument ignores the

indivisible nature of the harm. The fact of the matter is that

we do not know how much financial stress Jennifer R.’s

marriage could have withstood. What we do know is that

Jennifer R. and her husband entrusted their life savings to

Christensen, that he fraudulently diverted a portion of it, that

their marriage never recovered from the stress, and that

neither the causes nor the impacts of a divorce break down

neatly into dollars and cents. This is precisely the type of

situation in which the Guidelines do not adequately account

for the seriousness of the offense. As a result, it was proper

for the district court to consider Jennifer R.’s divorce,

together with the other “life destroying impacts” described by

Christensen’s victims.

If the district court had used non-offense “losses” to

erroneously calculate the Guidelines range, this would be a

much different case. But, where as here, the district court
UNITED STATES V. CHRISTENSEN 21

used the correct loss calculation to arrive at the correct

Guidelines range, and appears to have only relied on extrinsic

evidence as support for the Guidelines inadequate accounting

for the harm caused by Christensen, we cannot say that the

district court clearly erred in any manner. Therefore, we

conclude that the district court committed no error in this

regard.

Even assuming that the district court did err, Christensen

has fallen short of establishing that his substantial rights were

affected by any such error. Indeed, while the record provides

ample support for the district court’s 19-month upward

variance, the record provides no basis for concluding that

there is a reasonable probability Christensen would have

received a more lenient sentence absent the asserted error.

At the conclusion of the sentencing hearing, the district

court expressly stated that it was “imposing a sentence that

was less than what I think the Court could have imposed

given the egregiousness of the conduct in this case,” conduct

which—in effect—amounted to stealing over a long period of

time from people whose trust Christensen maintained through

lies. The district court also stated that “[t]his could have been

a sentence that was far greater than 60 months.” The district

court said nothing to suggest that it would have imposed a

lesser sentence if the overstated impacts of Christensen’s

egregious criminal conduct had not been considered. At best,

it is highly uncertain whether Christensen would have

received a lesser sentence if the district court had not

considered those impacts, and such a high degree of

uncertainty precludes a finding that any alleged error affected

his substantial rights. See Jones v. United States, 527 U.S.

373, 394–95 (1999) (“Where the effect of an alleged error is

so uncertain, a defendant cannot meet his burden of showing
22 UNITED STATES V. CHRISTENSEN

that the error actually affected his substantial rights.”); see

also United States v. Gonzalez-Aguilar, 718 F.3d 1185, 1189

(9th Cir. 2013) (explaining that a defendant cannot meet the

third prong of the plain error test by demonstrating a mere

“possibility” that he could have obtained a lesser sentence

absent the alleged error); United States v. Rodriguez,

627 F.3d 1372, 1382 (11th Cir. 2010) (explaining that “where

the effect of an error on the result in the district court is

uncertain or indeterminate—where we would have to

speculate—the appellant has not met his burden of showing

a reasonable probability of a different result” (internal

quotation marks omitted)); United States v. Lorenzo, 995 F.2d

1448, 1457 n.4 (9th Cir. 1993) (noting that “if plain error

analysis applies, it appears that the appellants . . . pay the

price for the inadequacy of the record”). Thus, even

assuming error, it did not affect Christensen’s substantial

rights.

Likewise, Christensen’s due process argument is

unavailing. The Due Process Clause requires that a defendant

not be sentenced on the basis of “misinformation of

constitutional magnitude.” United States v. Tucker, 404 U.S.

443, 447 (1972). To establish that his due process rights were

violated, Christensen must show that materially false or

unreliable information was demonstrably made the basis for

the sentence imposed by the district court. United States v.

McGowan, 668 F.3d 601, 606 (9th Cir. 2012). Here, because

Christensen failed to raise his “erroneous facts” issue before

the district court, Christensen must show not only that the

district court committed error under the Due Process Clause

but also that the error affected his substantial rights. As we

have shown, Christensen cannot satisfy this burden.
UNITED STATES V. CHRISTENSEN 23

III.

Having found no merit to any of the issues raised by

Christensen, we AFFIRM.

TASHIMA, Circuit Judge, dissenting:

We review a district court’s sentencing decisions for

abuse of discretion, thus affording district courts a substantial

degree of deference. But, as we recently observed en banc,

“[t]he abuse of discretion standard is deferential, but it does

not mean anything goes.” United States v. Ressam, 679 F.3d

1069, 1087 (9th Cir. 2012) (en banc). And, as the Supreme

Court has observed in a related context, we should “not

indulge [in] post hoc rationalization” of the sentencing

court’s “decisionmaking that contradicts the available

evidence . . . .” Harrington v. Richter, 131 S. Ct. 770, 790

(2011). In short, “[t]he abuse of discretion standard of review

is not a rubber stamp of all sentencing decisions made by a

district court, United States v. Ruff, 535 F.3d 999, 1005 (9th

Cir. 2008) (Gould, J., dissenting), and we should not turn a

blind eye when a district court distorts the sentencing process. 

Because that is precisely what the majority does, I

respectfully dissent.

In affirming the sentence in the present case, the majority

obfuscates a fact that is apparent from any fair reading of the

record: the district court based its above-guidelines sentence

on investor losses not caused by Christensen’s criminal

conduct.
24 UNITED STATES V. CHRISTENSEN

This was “significant procedural error.” United States v.

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

district court either mistakenly believed that the losses in

question did result from Christensen’s criminal conduct, in

which case the sentence was predicated on “clearly erroneous

facts,” id. (internal quotation marks omitted), or it knowingly

increased the sentence based on the impact of non-criminal

conduct, a proposition that not even the government contends

would be justified. Because victim impact formed the central

basis for the upward variance, there is a “reasonable

probability” that the district court’s error affected the

outcome of the proceedings. United States v. Whitney,

673 F.3d 965, 972 (9th Cir. 2012) (internal quotation marks

omitted). For these reasons, I believe Christensen has

demonstrated plain error entitling him to relief.

I.

As an initial matter, it is necessary to clarify the nature of

the victims and their losses in this case. The presentence

investigation report (“PSR”) identified fourteen victims of

Christensen’s criminal conduct. The PSR explained the basis

on which this determination was made:

The victims of this offense are the numerous

individuals who invested money into the

various projects the defendant managed and

who had their investment funds diverted for

other uses which they did not authorize. It is

noted victim statements were received from

other individuals who lost investment funds

due to the failure of all of Christensen’s

projects. As their funds were properly

invested into the projects they designated and
UNITED STATES V. CHRISTENSEN 25

were not diverted, they are not victims for the

purposes of this criminal matter.

Consistent with this approach, for each of the fourteen

victims, the PSR separately listed the amount of money

invested with Christensen, and the portion of that investment

fraudulently diverted and lost as a result of the criminal

conduct. Across the fourteen victims, the total amount of

money lost due to Christensen’s fraud was $985,994,

representing less than half of the more than $2.1 million

invested by these individuals.

The district court accepted the PSR’s calculation of

$985,994 as “the agreed upon sum in terms of loss in this

case.” Indeed, this was the figure employed in calculating

Christensen’s advisory guidelines sentencing range and was

the amount of restitution that Christensen was eventually

ordered to pay. As described below, however, the district

court disregarded the PSR’s methodology in assessing the

impact of Christensen’s conduct on individual victims,

conflating losses suffered due to the fraud and losses suffered

from legitimate (i.e., non-criminal), but failed investments.

II.

Although one would never know it from the majority

opinion, the district court based its upward variance on the

impact of Christensen’s conduct on individual investors,

specifically five victims identified in the PSR and one

investor who was not a victim at all. This is abundantly clear

from the record.

At the outset of explaining the basis for its sentence, the

district court stated that it had “researched a number of cases”
26 UNITED STATES V. CHRISTENSEN

in which sentencing courts had varied upward “under similar

circumstances.” The district court then described in detail

three out-of-circuit cases that it considered particularly

analogous, all involving defendants convicted of financial

fraud who received above-guidelines sentences on the basis

of victim impact. The district court characterized the final

case it discussed, United States v. Schlueter, 634 F.3d 965

(7th Cir. 2011), as the “most instructive.”1 According to the

district court, the upward variance in Schlueter was imposed

(and affirmed) because “the guideline range failed to

adequately account for the harm that [the defendant’s] fraud

had caused his victims or for the egregiousness of his

conduct.” The victims in Schlueter were friends of the

defendant, many of retirement age, and, in the district court’s

words, the defendant “[took] advantage of personal

relationships to cheat them out of significant sums that they

needed at critical stages of their lives,” including “one victim

[who] was unable to purchase a home because of the fraud.”

After recounting the details of Schlueter, the district court

explained that it “went back to the victim impact statements

and the presentence report to compare, in effect, Mr.

Christensen to the defendant in Schlueter.” It was at this

point that the district court described the alleged impact of

Christensen’s conduct on six specific investors. The district

court prefaced this discussion by stating that it was “looking

at the victims’ losses [and] statements.”

1 The other two cases were United States v. Siman, 419 F. App’x 979

(11th Cir. 2011), and United States v. Scherrer, 444 F.3d 91 (1st Cir.

2006). The district court characterized Siman as a case where the

sentencing court varied upward “relying on the impact experienced by the

victims and who the victims were.” Similarly, the district court described

Scherrer as a case where the sentencing court “focus[ed] on the victims”

in imposing a variance.
UNITED STATES V. CHRISTENSEN 27

For at least three of the six investors, however, the district

court considered the impact of losses well beyond those

caused by Christensen’s criminal conduct. For instance, the

district court described Robert G. as a victim who “has been

unable to retire . . . as planned; he’s had to continue to work.” 

Yet, according to the PSR, Robert G. only lost $5,496 due to

the fraud. It is unlikely that this narrow loss was the cause of

Robert G.’s inability to retire, especially given that

Christensen repaid all but $192 of that loss more than two

years prior to the sentencing hearing.

The district court also discussed an investor named Mehr,

who apparently lost $128,000 through investing in one of

Christensen’s projects. The district court noted Mehr’s

statement that “if he had known and been told the truth, he

obviously would not have invested in the project.” But Mehr

is not listed in the PSR as a victim. Rather, as the

government concedes, he is one of the investors not included

in the PSR because his funds were properly invested and not

diverted.

Finally, and most importantly, is Jennifer R., whom the

district court described as “the victim that concerns me the

most.” Jennifer R. submitted a letter to the probation officer

indicating that she lost $330,000 of her life savings from

investing with Christensen, which led to the disintegration of

her marriage. The PSR, however, lists Jennifer R. as having

lost only $23,017 due to Christensen’s fraud.2 Nevertheless,

2 The PSR lists Jennifer R. as having invested a total $90,000 with

Christensen. It is not entirely clear why there is a discrepancy between

this amount and the $330,000 described in her letter to the probation

officer, although it may be that the additional funds were invested in

projects fromwhichChristensen did not fraudulently divert any funds (and
28 UNITED STATES V. CHRISTENSEN

in weighing the impact of Christensen’s conduct, the district

court described Jennifer R.’s experience as follows:

She invested $330,000 of her life savings, her

and her husband’s, which they had saved for

17 years. This was going to be their

retirement. They were invited to Mr.

Christensen’s home. He befriended them, he

talked them into investing and, as a result,

they lost the entire amount of their life

savings. And her marriage, as she writes,

could not handle the loss. So not only did she

lose her entire life savings, her 19-year

marriage has ended as a result of the

defendant’s criminal behavior.

(Emphasis added.)

For all three of these investors (and likely two more of the

remaining three),3it is evident that the district court based its

analysis on losses unrelated to Christensen’s criminal

conduct. These losses may have been caused by

therefore were not included the PSR’s calculations). In any event, the

relevant comparison is the $23,017 loss established by the PSR and the

$330,000 figure on which the district court expressly relied.

3 For two of the other three victims discussed, William K. and James D.,

there was also a sizeable gap between the amount invested and the amount

lost due to the fraud (an over $90,000 difference for William K. and a

$51,000 difference for James D.). The district court did not mention

specific dollar amounts lost by these two investors, but its discussion

again suggested that it was considering total investment loss, not loss

caused by the fraud. For only one of the six investors, Twila K., was the

amount invested the same as the amount lost as a result of the criminal

conduct.
UNITED STATES V. CHRISTENSEN 29

Christensen’s poor, but non-criminal, management, the

victims’ poor judgment in investing with him, the

deterioration of the economy, or some combination thereof. 

None of these are reasons why Christensen was convicted of

a crime.

The district court’s consideration of these losses can be

explained in only one of two ways: (1) it mistakenly believed

that the full investment losses were attributable to the fraud;

or (2) it realized that just a portion of the losses resulted from

the fraud, but it nonetheless knowingly based its upward

variance on the impact of non-criminal conduct. For reasons

described below, the record supports the former

interpretation, but under either scenario, the district court

committed significant procedural error.

III.

If the district court operated under the erroneous belief

that the full losses of Robert G., Mehr, and Jennifer R. were

attributable to Christensen’s crimes, there can be little dispute

that the sentence was predicated on “clearly erroneous facts.” 

Carty, 520 F.3d at 993 (quoting Gall v. United States,

552 U.S. 38, 51 (2007)). Indeed, the government has never

contested the accuracy of the PSR’s loss calculations for

these investors. The district court’s statements at sentencing

make plain that it did proceed under this incorrect

assumption.

As described, the district court immediately led into its

discussion of the six investors by stating that it was “looking

at the victims’ losses.” Then, with regard to Jennifer R., the

most important victim in the district court’s calculus, the

district court stated that she lost her entire life savings of
30 UNITED STATES V. CHRISTENSEN

$330,000, as well as her 19-year marriage, “as a result of the

defendant’s criminal behavior.” (Emphasis added.) The

district court could not have made a more direct statement

indicating that it was treating and relying on full investment

losses (including non-criminal losses) as attributable to

Christensen’s criminal activities.

Nearly as compelling an indication is the district court’s

reference to Mehr, who was not a victim at all. The district

court’s discussion of the six investors, including Mehr,

followed its long description of the purportedly analogous

cases in which sentencing courts had varied upward on the

basis of victim impact. In fact, the district court used the

word “victim” ten times in the three pages of the sentencing

transcript preceding its discussion of these investors. It is

inconceivable that the district court deemed it relevant to

discuss Mehr’s losses in this context while fully cognizant

that Mehr was not a victim.

The majority offers no refutation of this evidence in

holding that the district court did not premise its sentence on

clearly erroneous facts. Instead, the majority attempts to

elide the factual basis underlying the upward variance by

pointing to two passing references that the district court

made, later in the sentencing hearing, to the PSR’s aggregate

loss calculation of $985,994. Maj. Op. at 16. From these

references, the majority reasons that the district court surely

predicated its variance only on losses caused by the fraud. Id.

at 16–17. This analysis ignores the reality that the district

court’s variance was based not on aggregate losses, but on the

impact on individual victims. The district court emphasized

as much over and over at sentencing. In evaluating those

individual victims, the district court relied on clearly
UNITED STATES V. CHRISTENSEN 31

erroneous facts, and it thereby committed significant

procedural error.

IV.

If, on the other hand, the district court appreciated that the

referenced investor losses were not attributable to

Christensen’s crimes, this would necessarily mean that the

district court intentionally rested its sentence, in part, on the

impact of non-criminal conduct. Otherwise, the district

court’s extended discussion of the full investor losses would

have been without purpose. At oral argument, however, the

government expressly disclaimed reliance on any notion that

the district court could permissibly base its upward variance

on non-criminal conduct. Hence, if the majority is correct

that the district court did not rely on erroneous facts in

misperceiving the nature of the losses, the only remaining

possibility depends on an argument that the government

wisely has elected not to pursue, and that we should not

advance in its stead. See United States v. Anekwu, 695 F.3d

967, 985 (9th Cir. 2012) (arguments not raised by parties are

waived).

Yet, because the majority has not clearly disavowed the

possibility that the district court may have varied upward

based on the impact of non-criminal conduct, reluctantly, I

find it necessary to address that question. I believe it must be

answered in the negative. In the analogous context of

“relevant conduct” under U.S.S.G. § 1B1.3, used in

calculating a defendant’s guidelines offense level, the Courts

of Appeals are unanimous in holding that the provision is

limited to conduct that is criminal. See United States v.

Catchings, 708 F.3d 710, 712, 720 (6th Cir. 2013); United

States v. Griffith, 584 F.3d 1004, 1013 (10th Cir. 2009);
32 UNITED STATES V. CHRISTENSEN

United States v. Schaefer, 291 F.3d 932, 940–41 (7th Cir.

2002); United States v. Dove, 247 F.3d 152, 155 (4th Cir.

2001); United States v. Jain, 93 F.3d 436, 443 (8th Cir.

1996); United States v. Peterson, 101 F.3d 375, 385 (5th Cir.

1996); United States v. Dickler, 64 F.3d 818, 830–31 (3d Cir.

1995). The reasoning behind this limitation applies equally

here, i.e., to the basis for a variance. To allow for an upward

variance based on non-criminal conduct “would allow

individuals to be punished by having their [sentence]

increased for activity which is not prohibited by law but

merely morally distasteful or viewed as simply wrong by the

sentencing court.” Peterson, 101 F.3d at 385.

The sentencing factors of 18 U.S.C. § 3553(a)(2) confirm

this conclusion. With the exception of the rehabilitative goals

of clause (D), all of the factors focus on the unlawful nature

of the defendant’s past or future behavior. The factors speak

of the seriousness of “the offense,” the need to provide just

punishment for “the offense,” the need to deter “criminal

conduct,” and the need to protect the public from “further

crimes.” See 18 U.S.C. § 3553(a)(2). The impact of a

defendant’s completed, non-criminal activities – in this case,

losses caused by poor investment decisions – is not relevant

to any of these inquiries. And given that sentencing courts

must impose a sentence that is “sufficient, but not greater

than necessary to comply with the purposes” of the

§ 3553(a)(2) factors, there is no place for increasing a

defendant’s sentence on the basis of this consideration. Id.

§ 3553(a) (emphasis added).

The majority’s response on this point is perplexing. The

majority seems to concede that it would have been improper

for the district court to vary upward based on the magnitude

of the losses caused by Christensen’s non-criminal conduct. 
UNITED STATES V. CHRISTENSEN 33

In other words, the majority seems to concede that the district

court would have erred in stating, “I am varying upward

because Christensen caused over $2.1 million in investor

losses, including over $1.1 million in losses not related to the

fraud.” But the majority nonetheless contends that it was

appropriate to vary upward based on the “life-destroying

impacts” of those same losses. Maj. Op 18–19. This is a

classic distinction without a difference.4

In its limited explanation, the majority vaguely references

18 U.S.C. § 3661, which allows sentencing courts to receive

any information concerning a defendant’s “background,

character, and conduct.” Maj. Op. 19. However, this

provision, which “remov[es] typical ‘jury trial’ evidentiary

limitations” on the information that may be presented and

considered at sentencing, United States v. Booker, 543 U.S.

220, 249 (2005), says nothing of the grounds upon which a

 

4

 The majority charges that

the dissent assumes Jennifer R.’s divorce was a matter

of simple arithmetic: it resulted from the loss of a

certain sum of money, and that sum must have been

greater than $23,017; therefore, because Jennifer R. lost

only $23,017, the district court was required to ignore

her claim that Christensen’s conduct had caused her

divorce.

Maj. Op. 20. But I make no such assumption; instead, I take the district

court at its word. It stated: “So not only did she [Jennifer R.] lose her

entire life savings, her 19-year marriage has ended as a result of the

defendant’s criminal behavior.” (Emphasis added.) Evenmore disturbing

than the majority’s refusal to confront the facts is its assertion that because

“many of the ‘life destroying impacts’ were indivisible,” id., we need not

and should not even attempt to parse out what harm was caused by a

defendant’s criminal conduct.
34 UNITED STATES V. CHRISTENSEN

district court may grant an upward variance. To the extent

the majority implies that all information countenanced under

§ 3661 may serve as the basis for a variance, such is patently

absurd. For then, a sentencing court could vary upward based

on a defendant’s eating or dressing habits, the tradition or

school of yoga he favors, or the regularity with which he

recycles, all of which “provide greater insight into [the

defendant’s] ‘background, character, and conduct.’”5 Maj.

Op. 18–19.

For these reasons, I would hold that it is significant

procedural error to rest an upward variance on the impact of

a defendant’s lawful activities and conduct.

V.

Christensen must also establish prejudice, and to do so, he

must demonstrate that there is a “reasonable probability” that

the district court’s error affected the outcome of the

sentencing. Whitney, 673 F.3d at 972 (quoting United States

v. Marcus, 130 S. Ct. 2159, 2164 (2010)). Ordinarily, this

would be a difficult task given the inherent challenges in

identifying “the effect of any discrete set of errors on a

district court’s multifaceted sentencing determination.” Id.

5 Our decision in United States v. Mercado, 474 F.3d 654 (9th Cir.

2007), provides an example of when information received under § 3661

can be pertinent to a defendant’s criminal activities. There, we cited

§ 3661 in holding that sentencing courts may consider criminal conduct

charged in the indictment, but of which the defendant was acquitted, in

calculating the defendant’s guidelines range. See id. at 656–57. This

scenario centers on the conduct at issue being criminal, requiring that the

sentencing court find by a preponderance of the evidence that the

defendant is culpable for the charged, but acquitted conduct. See id. at

655–56.
UNITED STATES V. CHRISTENSEN 35

Here, however, Christensen is presented with no such

difficulties given that the district court made clear that the

issue on which it committed error provided the central basis

for its upward variance.

In seeking to minimize the import of this error, the

majority paints a grossly distorted picture of the district

court’s decisionmaking process. Rather than informing the

reader of the district court’s unambiguous emphasis on victim

impact, the majority relays every snippet of the sentencing

hearing it can locate that would suggest other considerations

played a role in the sentencing decision. See Maj. Op. 7–9,

16.

The majority alternatively holds that, even if the district

court did err in overstating the impact of Christensen’s

criminal conduct, Christensen cannot demonstrate prejudice

because it is “uncertain” whether the outcome would have

been different if not for the error. Maj. Op. 21–22. The

majority’s analysis in this regard places an incorrect, and

virtually impossible to meet, burden on a defendant under

plain error review. To demonstrate prejudice, Christensen

need not show with absolute certainty that he would have

received a lesser sentence in the absence of the error, he need

only show a “reasonable probability” of such. See Whitney,

673 F.3d at 972; see also United States v. Gonzalez-Aguilar,

718 F.3d 1185, 1189 (9th Cir. 2013). Given the overriding

role that victim impact played at sentencing, I have little

difficulty finding a reasonable probability that the district

court would not have varied to the degree that it did –

nineteen months above the high end of the guidelines range

and almost double the low end of the guidelines range – had

it not erred.
36 UNITED STATES V. CHRISTENSEN

Indeed, to not find a reasonable probability of prejudice

when a district court’s error undermines the primary

justification for its sentence makes a mockery of the

requirement that the sentencing court adequately explain its

decision, a requirement that is of particular importance in the

context of a variance. See Gall, 552 U.S. at 46. It is true that,

in the present case, the district court evidenced a desire to

reach its eventual outcome regardless of the reasons. Prior to

the second sentencing hearing, the district court indicated to

the parties that it was considering varying on the basis of

Christensen’s personal use of the funds diverted. It was only

after Christensen submitted briefing as to why it would be

inappropriate to vary on this basis that the district court

suddenly shifted gears and changed its justification at the

second hearing, without advance notice, to victim impact. 

However, it would be perverse to find a lack of prejudice

because we suspect that a district court was bent on reaching

a particular outcome. The integrity of the sentencing process

requires that we take a district court at its word as to the

reasons for the sentence imposed. See id. at 50 (“[A district

court] must adequately explain the chosen sentence to allow

for meaningful appellate review and to promote the

perception of fair sentencing.”). Here, those reasons were

fundamentally flawed.

VI.

The district court committed “significant procedural

error” in imposing an upward variance on the basis of

investor losses that were not attributable to Christensen’s

criminal conduct. This was prejudicial error, and Christensen

is entitled to resentencing. Accordingly, I would vacate the

sentence and remand for resentencing. I respectfully dissent.