Unpublished Disposition, 874 F.2d 816 (9th Cir. 1989)

Stephen A. Sarault, a federal prisoner, appeals pro se¹  the denial of his 28 U.S.C. § 2255 motion to vacate his sentence. He was convicted of making false statements in a document required to be kept by the Employee Retirement Income Security Act (ERISA), in violation of 18 U.S.C. § 1027, and of conspiracy to defraud an ERISA pension of $126,000, in violation of 18 U.S.C. § 371.²  He was sentenced to two concurrent three-year terms. He contends that his sentence was not individualized, and is grossly disproportionate in violation of the eighth amendment. He asserts also that the district court erred in denying his motion without an evidentiary hearing. We review de novo, United States v. Quan, 789 F.2d 711, 713 (9th Cir.), cert. denied, 478 U.S. 1033 (1986), and affirm.

* Individualized Sentence

A criminal sentence "must reflect an individualized assessment of a particular defendant's culpability rather than a mechanistic application of a given sentence to a given category of crime." United States v. Barker, 771 F.2d 1362, 1365 (9th Cir. 1985). However, a claim of mechanical sentencing must fail if the sentences imposed on codefendants are not uniform when compared with respect to the same offense, in the aggregate, and with respect to the parole terms for each defendant. See United States v. Allen, 675 F.2d 1373, 1385-86 (9th Cir. 1980), cert. denied, 454 U.S. 833 (1981).

Sarault's sentences differ from those of his codefendant, Seymour Pollack, in all respects. First, Sarault received two three-year sentences. For violating the same statutes, Pollack received two five-year sentences, the maximum penalty allowed. See 18 U.S.C. §§ 371, 1027. Second, Pollack was also convicted of mail fraud in violation of 18 U.S.C. § 1341, theft from an employee benefit plan in violation of 18 U.S.C. § 664, and transportation of money taken by fraud in interstate commerce in violation of 18 U.S.C. § 2314. Pollack received a nine-year sentence for the latter violation, and five years for each of the remaining offenses, all concurrent, and was also ordered to make restitution of $126,000. Third, Sarault will be eligible for parole after he serves two years, 17 days of his sentence; Pollack after three years, 80 days. The court clearly used individualized sentencing. See Allen, 675 F.2d at 1385-86.

II

Disproportionate Sentence

When a sentence is challenged as disproportionate in violation of the eighth amendment, this court must consider these criteria: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed for other offenses in the federal system; and (3) the sentences imposed for the same or similar offenses in other jurisdictions. See United States v. Busher, 817 F.2d 1409, 1415 (9th Cir. 1987) (citing Solem v. Helm, 463 U.S. 277, 287 (1983)). Applying these criteria, Sarault's three-year sentences were not grossly disproportionate.

First, his offenses were by no means minimal. In a letter written to the trustees of a union pension trust fund, he stated that he was general counsel for the American Casualty and Indemnity Corporation ("AC & I"), and advised the Fund trustees that AC & I had monetary reserves in excess of $20 million. In fact, AC & I had no assets at all. In reliance on the assertions in this letter, the Fund paid AC & I a $126,000 premium for a fiduciary liability policy. See United States v. Sarault, 840 F.2d 1479, 1480-81 (9th Cir. 1988). Thus, Sarault's conduct resulted in significant monetary loss for the victims, and this loss would not have occurred but for his participation. The punishment assessed was not excessively harsh relative to the gravity of his offenses. See Busher, 817 F.2d at 1415 & n. 10.

Second, his punishment was not excessive relative to other offenders in this jurisdiction. See Alford v. Rolfs, 867 F.2d 1216, 1222-23 (9th Cir. 1989). Several federal statutes proscribe the making of false statements and allow the imposition of penalties equal to or greater than those he received. See, e.g., 18 U.S.C. §§ 1001, 1002, 1015, and 1020. Moreover, contrary to Sarault's assertions, the district court need not have reconciled his sentence with those imposed on other federal defendants. See United States v. Meyer, 802 F.2d 348, 353 (9th Cir. 1986), cert. denied, 108 S. Ct. 71 (1987).

Third, Sarault has not been punished more severely than are similar offenders in other jurisdictions. See Solem, 463 U.S. at 300. Several states in this circuit impose similar penalties for analogous offenses. See, e.g., Alaska Stat. Secs. 11.46.600, 12.55.125(d); Ariz.Rev.Stat.Ann. Secs. 133-2310, 13-701(c) (1); Mont.Code Ann. Sec. 45-6-317; and Nev.Rev.Stat. Sec. 205.380.

Sarault's sentence is within the constitutional boundaries set by Solem. The district court did not err in denying his Sec. 2255 motion. See Alford, 867 F.2d at 1223.

III

Evidentiary Hearing

Under Sec. 2255, the district court must hold an evidentiary hearing " [u]nless the motions and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255; see also Rule 4(b), Rules Governing Section 2255 Proceedings, 28 U.S.C. foll. Sec. 2255. The court may deny a Sec. 2255 motion without an evidentiary hearing if the movant's allegations, viewed against the record, either do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal. Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985); Baumann v. United States, 692 F.2d 565, 570-71 (9th Cir. 1982). Because Sarault's allegations do not state a claim for relief, the district court did not err in denying his Sec. 2255 motion without an evidentiary hearing.

AFFIRMED.