Unpublished Disposition, 852 F.2d 1290 (9th Cir. 1987)

MEMORANDUM^* 

Appeal from the United States District Court for the Central District of California; James M. Ideman, District Judge, Presiding.

Appellant Clyde Hamblin appeals from the district court's imposition of sentence following his plea of guilty to 21 counts of bank fraud, one count of tax evasion, and one count of failure to file a tax return. We affirm.

FACTS

Hamblin became the president of PAX Insurance Agency in 1978. In 1983, he formed the Interstate Transport Insurance Agency. Hamblin has served primarily as a broker of long-haul trucking insurance, obtaining insurance for clients and helping them acquire bank financing for the premiums. Insurance premiums in long-haul trucking are calculated as a percentage of gross receipts, and a deposit of the estimated annual premium must be paid before coverage begins for the year. This advance is often large enough that insureds borrow to make the payment.

To help clients obtain loans, Hamblin would present to a bank a document entitled "Insurance Premium Financing Agreement," which gave the names of the insured and the carrier, the policy number, the type of insurance, the gross premium to be financed, and other information. The bank ordinarily would not see the actual insurance policy, but would disburse the agreed-upon percentage of the premiums directly to Hamblin. The disbursement was supposed to be placed in a trust account from which premium amounts would be paid to the insurance companies as they fell due.

In 1982, Hamblin devised a plan for submitting fraudulent insurance premium loan applications to banks to obtain loans. From 1982 to 1984, Hamblin submitted fraudulent Insurance Premium Finance Agreements to three banks in California, and acquired loans from two of them. He made some payments on the loans, but since there were no insurance policies purchased, Hamblin made no premium payments with the money.

In all, Hamblin obtained $24 million in fraudulent loans through his scheme, some of which he used to support failing trucking companies, the rest of which he used for investments and personal purposes. In addition, he underreported his income for 1983, alleging a loss of $121,796, when in fact the joint taxable income of Hamblin and his wife was $791,233. Hamblin filed no tax return at all in 1984, despite having a gross income of $952,050.

Although Hamblin repaid some of the loans, the victims of his plan suffered total losses of $10.5 million. The Federal Deposit Insurance Corporation (FDIC) suffered the lion's share of the loss, $8.2 million, while Queen City Bank of Long Beach lost $2.3 million. The FDIC bore more than $6 million of its loss in its capacity as receiver for the West Valley Bank of Encino, which was driven into involuntary closure as a result of losses on Hamblin's loans.

Hamblin was indicted on February 6, 1987 on 21 counts of bank fraud in violation of 18 U.S.C. § 1014, one count of tax evasion under 26 U.S.C. § 7201, and failure to file a tax return pursuant to 26 U.S.C. § 7203. He was arraigned and pled guilty to all counts on February 17 of that year.

Before being sentenced, Hamblin filed a sentencing memorandum to support his claim that mitigating circumstances should reduce his sentence. He pointed out that just before committing the fraud he had discovered that his daughter was a cocaine addict and was stealing from members of the family to support her addiction, a revelation that drove Hamblin into a deep depression and to abusing alcohol and prescription diet pills. He also emphasized his clean prior record and the fact that since being caught, he had made available more than $5 million in restitution, and had been cooperating with the FDIC and other government agencies.

On July 20, 1987, the district court sentenced Hamblin to the statutory maximum of two years in prison on each of the first ten bank fraud counts, to be served consecutively for a total of 20 years. Since the court imposed the sentence pursuant to 18 U.S.C. § 4205(A), Hamblin must serve a minimum of 80 months in prison. The court sentenced Hamblin to five years' probation on the other counts. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

DISCUSSION

Hamblin contends that the district court sentenced him mechanically, based on the court's own view of general deterrence rather than on an individualized assessment of the specific characteristics of Hamblin and his offenses. Trial courts are afforded "virtually unfettered discretion" in sentencing, Dorszynski v. United States, 418 U.S. 424, 437 (1974), and a sentence within statutory limits is generally not subject to appellate review. United States v. Stewart, 820 F.2d 1107, 1108 (9th Cir. 1987), cert. denied, 108 S. Ct. 192 (1987). We recognize a limited exception to this rule to ensure that the trial court "has not exceeded the bounds of its discretion by failing to individualize sentences." Id.

Hamblin claims that the court failed to take into account the mitigating circumstances in his case, and instead simply characterized Hamblin as a "typical white-collar criminal." Reporter's Transcript of Sentencing Proceeding at 33. Though he concedes that the district court had all the mitigating evidence before it, Hamblin maintains that the court's comments, particularly those relating to deterrence of white-collar crime, demonstrate that the court did not, in fact, consider the evidence.

We disagree. The record reflects that the district court adequately considered all the circumstances before sentencing Hamblin. Far from ignoring Hamblin's mitigating evidence, the court responded to much of it specifically. As to Hamblin's discussion of his daughter's drug addiction, for example, the court remarked in part: "I don't buy the excuse of the daughter having her problems as causing Mr. Hamblin to do what he did. If he was here charged with a drunk driving offense or if he--if he were to say, 'I was depressed about my daughter and I drank too much to forget about that,' yes, I would accept that as the cause." ER 15 at 20; see also id. at 27.

The court also agreed that Hamblin was a relatively sympathetic defendant, but noted in that context that white-collar criminals frequently present a favorable picture. Id. at 19. It further stated that such offenders were particularly susceptible to deterrence, and that general deterrence was its "main concern." The court added, however, that it sought also to punish Hamblin for the "serious damage" he had done, especially to the "many, many small investors who have lost their life savings in these banks that folded because of Mr. Hamblin's activities." Id. at 38-39. The court concluded, "my task was to fashion a sentence that would not only be adequate to punish Mr. Hamblin but, frankly, would get the attention of other people out there who may be tempted to do the same thing." Id. at 39.

Since the court considered Hamblin's circumstances and did not rely on general deterrence as its sole aim, we find that the court adequately individualized the sentence.¹ 

Hamblin attacks his sentence as an abuse of discretion because it deviates dramatically from the penalty that would be imposed were he being sentenced today under the Sentencing Reform Act of 1984. He concedes, as he must, that the guidelines did not apply to his sentencing, but argues that they now provide an objective standard against which we can measure the length of his sentence.

This claim is meritless. "The Act does not apply to conduct committed prior to November 1, 1987." United States v. Rewald, 835 F.2d 215, 216 (9th Cir. 1987). Sentences imposed before the Act took effect, so long as they were authorized by statute, are not reversible for length alone absent a violation of the eighth amendment.

Hamblin further argues that his sentence should be vacated because the district court based it on a mistaken belief that Hamblin had stolen $24 million. We must uphold a district court's choice of sentence unless the court abused its discretion by relying on information it should not have considered. United States v. Chiago, 699 F.2d 1012, 1014 (9th Cir. 1983). A sentence will be vacated on appeal "if the challenged information is (1) false or unreliable, and (2) demonstrably made the basis for the sentence." Farrow v. United States, 580 F.2d 1339, 1359 (9th Cir. 1978) (en banc).

Hamblin directs our attention to numerous places in the sentencing hearing at which the district court referred either to his "theft" or his "stealing" of $24 million. The court began its colloquy with counsel by referring to Hamblin as "someone who has stolen $24 million." ER 15 at 8. In discussing some of Hamblin's mitigation evidence, the court said: "It's a $24 million theft. There was a lot of mitigation as to the part that was repaid to the banks, but it is still $24 million was taken illegally." Id. at 30. This, Hamblin asserts, demonstrates that the court incorrectly believed he had pled guilty to theft of $24 million, when in fact he had pled only to bank fraud of $10.5 million.

This reading is not persuasive in light of other remarks by the court that demonstrate that it was aware of the true nature of Hamblin's offenses. After the opening characterization of Hamblin as having stolen $24 million, the court corrected itself: "I know that the net theft was--after he paid off certain loans, the net proceeds or the net loss was $10.6 million...." Id. at 8. The Government also notes that the court stated on the record that Hamblin had pled to bank fraud, tax evasion and failure to file.

It cannot be concluded from this record that a misunderstanding was "demonstrably" made the basis for the sentence.

Hamblin further contests his sentence as being so severe relative to his offense as to constitute cruel and unusual punishment. The eighth amendment proscribes punishments that are disproportionate to the crime committed, Solem v. Helm, 463 U.S. 277, 284 (1983), but the Supreme Court has cautioned that our review of sentences against constitutional attack is strictly limited by the "substantial deference" to be accorded to sentencing courts. Id. at 290 n. 16.

Our proportionality analysis is guided in part by three objective factors: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. Id. at 292; United States v. Terrovona, 785 F.2d 767, 771 (9th Cir. 1986).

Hamblin maintains that as a nonviolent property offense, his crime did not merit a 20-year sentence. He notes that 20 years is the maximum allowable federal penalty for such violent crimes as arson of a dwelling (18 U.S.C. § 81) and assault with intent to commit rape or murder (18 U.S.C. § 113(a)). This comparison overlooks the fact that Hamblin was found guilty of not one but 23 counts of property offenses. While none individually would have merited a sentence of the length imposed, together his crimes resulted in more than $10 million in losses and the closing of a bank. His sentence, while long, is less than half of the 48 years the district court could have imposed on the basis of the counts to which Hamblin pled guilty.

In addition, the absolute magnitude of a crime--not just its characterization as one of persons or property--is of legitimate relevance in determining punishment. Helm, 463 U.S. at 293. In this case, neither the cumulation of sentences nor their aggregate length is unjustified by the magnitude of Hamblin's wrongdoing.

As to Helm's second criterion, Hamblin cites figures in the presentence report demonstrating that of those sentenced for bank fraud in the year ending June 30, 1986, only 31 percent were sentenced to incarceration, and the average sentence imposed on them was slightly less than four years. Hamblin has not shown, however, what the average sentence was for those sentenced on multiple counts of bank fraud. Hamblin's offense, of course, was in no way "average." The Government has offered statistics of its own showing that of the more than 10,000 defendants convicted of federal "white-collar" crimes in 1985, only 64--about one half of one percent--were charged with offenses valued at more than $10 million. The presentence report described Hamblin's scheme as the third largest bank fraud in Southern California history.

Taking the federal system as one jurisdiction, Hamblin's consecutive sentences do not seem disproportionate by comparison to the penalty for similar offenses within the jurisdiction.

To meet Helm's third criterion, Hamblin cites state laws on bank fraud as examples of how other jurisdictions punish his offense. He stresses that 29 states do not even regard bank fraud as a felony. Yet, 21 states do classify it as a felony, and in 20 states, sentences of up to 18 months for a single count of fraud are authorized--a period roughly comparable to the two years permitted by 18 U.S.C. § 1014.²  Hamblin has offered no evidence suggesting that a person convicted on 10 separate counts would not be subject to 10 consecutive sentences in most of these states. If anything, his comparison of state laws demonstrates that the federal sentence allowed for bank fraud lies somewhere near the median of comparable state provisions. It is not, therefore, unconstitutionally "unusual," and we accordingly reject Hamblin's eighth amendment claim.

AFFIRMED.