United States v. Christensen

When calculating a sentence under 18 U.S.C. § 3553(a)(2), a judge is free to give more or less weight to different factors and can provide an upward variance beyond what a probation officer has already suggested; such an upward variance beyond the sentencing range is not considered impermissible double counting if the variance is reasonable based on the facts.

Collins Christensen pled guilty to wire-fraud in relation to a scam involving misappropriating funds for personal use that were originally invested in land development projects managed by his company. As part of the pre-indictment procedure, a probation officer collected a Presentence Investigation Report (“PSR”) that provided a narrative of the various losses by Christensen’s victims. The district court, after receiving the PSR, elected to increase Christensen's sentence beyond the officer’s recommendation because Christensen used a significant amount of the investments for personal use. The district court relied on the PSR, which Christensen, after minor revisions, accepted as true and accurate. The district court reasoned that because Christensen swindled the elderly, had a previous conviction for obtaining money under false pretenses, and intended to use the money for himself while soliciting the investments, an upward variance in the sentence beyond the three levels already included by the probation officer was reasonable. Christensen appealed his sentence, claiming that the district court made a procedural error by levying a sentence higher than the guidelines. Reviewing de novo, the Ninth Circuit concluded that the district court was free to determine the weight of factors within the sentencing guidelines and that “double-counting” based on the reevaluation of those factors was permissible. The panel reviewed the district court’s evaluation of Christensen “taking responsibility” for his actions and concluded that the court did not err in its sentence calculation. Additionally, the panel found that Christensen did not preserve his right to appeal the accuracy of the PSR because he did not raise them as an issue during his sentencing hearing, and there was no evidence that the district court relied upon clearly erroneous facts. Furthermore, the panel concluded that the district court may rely upon “life destroying impacts” apart from monetary damages when deciding sentences. AFFIRMED.