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U.S. v. Edwards, No. 08-30055 (2-16-10) ( Pregerson joined by M. Smith; dissent by Bea). The defendant reached a bankruptcy settlement, and then was convicted of bankruptcy fraud. The district court sentenced him to probation, despite a prior fraud in Arizona, lots of loss, and a guideline range between 27 and 33 months. The court went through the 3553 factors, discussed each, and thought that the guidelines over-represented loss because of "intent" rather than actual. This case had gone up and down to the 9th because of Booker and then Ameline. Now, the 9th affirms the sentence, holding that the sentence was reasonable because the district court had exercised its discretion, explained its reasoning, and grounded it on the relevant facts. Bea dissents on this, arguing that white collar defendants are getting too many breaks, and that the sentence is unreasonable because of the defendant's past. Bea comes close to arguing that the guidelines take into account the 3553 factors, and so a non-guideline sentence seems to need greater justification, which would run counter to Gall. The whole panel agreed that the restitution order, imposed in this latest sentence, was not collaterally estopped by the bankruptcy settlement because different issues were litigated.

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