United States v. Whitehead

PER CURIAM Opinion; Dissent by Judge BYBEE.

PER CURIAM.

Thomas Michael Whitehead sold over $1 million worth of counterfeit “access cards” that allowed his customers to access DirecTV’s digital satellite feed without paying for it. The jury convicted him of breaking various federal laws, including the Digital Millennium Copyright Act, which forbids the sale of devices that are designed to “circumvent [ ] a technological measure” that protects copyrighted works. 17 U.S.C. § 1201(a)(2)(A). The district court calculated a Guidelines range of 41 to 51 months, but imposed a more lenient sentence of probation, community service and restitution.

The government appeals, arguing that this below-Guidelines sentence was unreasonable, and Whitehead cross-appeals, claiming that the indictment and jury instructions omitted an element of the crime. Neither party disputes the district court’s Guidelines calculation. We deferred submission pending our en banc decision in United States v. Carty, 520 F.3d 984 (9th Cir.2008), and now affirm.

Analysis

1. “One theme” runs through the Supreme Court’s recent sentencing decisions: “[United States v.] Booker[, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005),] empowered district courts, not appellate courts .... [and] breathe[d] life into the authority of district court judges to engage in individualized sentencing....” United States v. Vonner, 516 F.3d 382, 392 (6th Cir.2008) (en banc) (Sutton, J.). We review sentences for abuse of discretion, and without presuming that outside-Guidelines sentences are unreasonable. United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). Even if we are certain that we would have imposed a different sentence had we worn the district judge’s robe, we can’t reverse on that basis. Gall v. United States, — U.S. -, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007).

We find no abuse of discretion in the district court’s conclusion that a substantial amount of community service (1000 hours), a hefty restitution order ($50,000) and five years of supervised release were more appropriate than prison. At the sentencing hearing, the court heard from Whitehead and his father, who told the court how Whitehead repented his crime; how he had, since his conviction, devoted himself to his house-painting business and to building an honorable life; how his eight-year-old daughter depended on him; and how he doted on her. In addition, the court took into account its finding that Whitehead’s crime “[di]d not pose the same danger to the community as many other crimes.” These are all considerations that the district court may properly take into account. See 18 U.S.C. § 3553(a)(l)-(2). The district court was intimately familiar with the nature of the crime and defendant’s role in it, as we are not. The district court could appraise Whitehead’s and his father’s sincerity firsthand, as we cannot. In short, the district court was “in a superior position” to find the relevant facts and to “judge their import.” Gall, 128 S.Ct. at 597. The district court didn’t abuse its discretion in so doing.

2. Whitehead argues that his conviction under 17 U.S.C. § 1201 must be reversed because the indictment and jury instructions omitted an element of the offense, namely, that the technological measures he circumvented were put in place “with the authority of the copyright owner.” See 17 U.S.C. § 1201(a)(3)(B) (defining when a technological measure “effectively controls access to a work”). But the indictment quoted and cited section 1201(a)(2)(A), and thereby “adequately apprised the defendant of the charge [ ]”; any mistake here was “minor or technical” and doesn’t require reversal. United States v. Severino, 316 F.3d 939, 943 (9th Cir.2003) (internal quotation marks and citation omitted). And the jury instructions defined “technological measure” using section 1201(a)(3)(B)’s exact language. Neither the indictment nor the instructions were erroneous.

AFFIRMED.