Collins "Collie" Christensen Sr. probably feels like he got a bad deal, like he got ripped off.
We suppose that's how his victims felt. The former Sacramento socialite pled guilty in 2011 to ripping off investors and collecting $2.39 million in funds -- $985,994 of which were misappropriated and $507,805 of which were used on personal expenses, such as his $13,000-per-month mortgage, his daughter's college tuition, and gambling in Biloxi, Mississippi.
The U.S. Attorney recommended a sentence of 33 months. The guidelines called for 41 months, which factored in the total amount of losses and his acceptance of responsibility. The court sentenced him to 60 months, noting a 28-year-old felony conviction and the long list of victims.
Christensen, of course, appealed.
The most intriguing of his arguments, which was nonetheless quickly dismissed by the court, was an argument that the court's upward variance, which relied greatly upon the amount of the loss, the number of victims, and the harm to the victims.
Unfortunately for him, while United States v. Booker was hailed by many for its rejection of mandatory sentencing guidelines, which often resulted in draconian sentences, it also gave judges the right to move upward, above the guidelines. The Ninth Circuit quoted, with approval, the Fifth Circuit's take on the issue:
"The Supreme Court's decision in [Booker] implicitly rejected the position that no additional weight could be given to factors included in calculating the applicable advisory Guidelines range, since to do otherwise would essentially render the Guidelines mandatory ... This necessarily means that the sentencing court is free to conclude that the applicable Guidelines range gives too much or too little weight to one or more factors, either as applied in a particular case or as a matter of policy."
Christensen made a number of other arguments, but none came anywhere close to swaying the majority. The dissent, however, was a different story.
The majority addressed the double-counting issue, but what about factoring in losses not attributable to the criminal conduct at all? Christensen was both a businessman and a thief, but not all of the money lost was due to misconduct -- some of it was simply a casualty of the recession. Indeed, a large part of his motive for theft seemed to have been to cover his losses.
Judge Tashima notes that the presentencing report cites $985,994 as the loss attributable to the crime. The district court accepted that amount -- yet when it described the impact on the victims, it cited a number of "victims" of bad business, not of criminal conduct. The impact on their lives was used as justification for the upward variance, yet their losses were not included in the near-million figure for a reason: They may have resulted from noncriminal mismanagement of the investments, or the economy, or both.
It's hard to feel too bad for a guy who bilked nearly a million dollars for things like an extravagant house and a gambling trip. But if Tashima is correct, Christensen himself was also the victim of a bad deal.
- United States v. Christensen (FindLaw's Caselaw)
- Ninth Circuit Upholds Fraud Sentence for Sacramento Businessman (Metropolitan News-Enterprise)
- AZ's 'Unintelligible' Immigrant Harboring Statute Voided (FindLaw's U.S. Ninth Circuit Blog)