FILED

NOT FOR PUBLICATION DEC 20 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S . CO UR T OF AP PE A LS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 09-50456

Plaintiff - Appellee, D.C. No. 8:05-cr-00139-CJC-1

v.

MEMORANDUM *

GUY WILLIAM SAVAGE,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Argued and Submitted September 1, 2010 Pasadena, California

Before: O'SCANNLAIN, FISHER and GOULD, Circuit Judges.

Guy William Savage appeals the sentence imposed following his guilty plea

to three counts of armed banµ robbery, in violation of 18 U.S.C. y 2113(a) and (d),

and two counts of banµ robbery, in violation of y 2113(a). We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 1. Savage's appeal waiver bars our review of his argument that the

district court failed to comply with two procedural rules imposed by Rule 32(i) of

the Federal Rules of Criminal Procedure. Savage expressly waived his right to

appeal 'the manner in which [his] sentence [was] determined.' This language

plainly encompasses the district court's alleged errors under Rule 32(i)(1)(A) and

(i)(4)(A)(ii). See United States v. Baramdyµa, 95 F.3d 840, 843 (9th Cir. 1996)

('In reviewing a waiver of appeal, we . . . focus . . . upon the language of the

waiver to determine its scope.'). United States v. Petty, 80 F.3d 1384 (9th Cir.

1996), upon which Savage relies, is distinguishable. As Petty explains, the scope

of a plea agreement turns on the intent on the parties. See id. at 1387. Here, in

contrast to Petty, the language of the agreement refers to the manner in which the

sentence was determined. It thus expressly covers the errors that Savage seeµs to

raise on appeal. Furthermore, in contrast to Petty, nothing in the parties'

statements or conduct contradicts the language of the agreement.

2. The district court 'adequately explain[ed] the chosen sentence.' Gall

v. United States, 552 U.S. 38, 51 (2007). Before imposing a below-Guidelines

sentence, the court discussed in detail the seriousness of Savage's offenses,

including the number of banµ robberies, the use of hoax bombs, that the robberies

were 'committed in a cruel and calculated way that are surely to lead to the

2 intentional infliction of emotional distress on the banµ tellers' and Savage's

recruitment of a homeless man as an accomplice. The court also discussed several

mitigating factors, particularly the extreme pain and emotional distress Savage

suffered while in custody as a result of gunshot wounds he sustained at the time of

his arrest. Finally, the court explained how it balanced Savage's pain and suffering

against the 'other objectives of sentencing, such as just punishment for the offense,

deterrence, and maµing sure that the sentence reflects the seriousness of what he

did.'

3. The sentence is not substantively unreasonable. The district court

reasonably concluded that, absent mitigation, Savage's offenses were serious

enough to warrant a sentence in excess of the Guidelines range. The court then

reasonably determined that the extreme pain and suffering Savage suffered while

in custody warranted a five-year reduction in his sentence. This resulted in a

substantively reasonable, below-Guidelines term of 120 months in prison. See,

e.g., United States v. Blinµinsop, 606 F.3d 1110, 1116 (9th Cir. 2010) ('When a

district judge has considered the y 3553(a) factors and the totality of the

circumstances supports the sentence, we have held that the sentence is

substantively reasonable . . . .').

AFFIRMED.

3

FILED

United States v. Savage, 09-50456 DEC 20 2010

MOLLY C. DWYER, CLERK

GOULD, J., concurring in part and dissenting in part: U .S . CO UR T OF AP PE A LS

I respectfully dissent from the majority's determination that an appeal

waiver applies prospectively to a district court's unforeseeable post-waiver errors.

I would follow United States v. Petty, 80 F.3d 1384 (9th Cir. 1996), and remand

for resentencing because Savage's personal right of allocution under Rule 32 of the

Federal Rules of Criminal Procedure was not honored before sentence was

rendered. It does not matter that Savage had submitted a letter and that after the

sentence he thanµed the court. The right personally to allocute before issuance of

the sentence is a bedrocµ requirement of Rule 32, and is explicitly mandated by

Rule 32(i)(4). It may seem liµe a waste of time to resentence and permit the

defendant to be present and speaµ at his sentencing, when the sentencing judge

may be liµely to reimpose the same reasonable sentence. However, the principle of

permitting allocution is an important one and I would not disregard it. When the

defendant exercises a right to speaµ to the court, there is always the chance of a

judicial change of mind, and further when the court addresses the defendant the

court's words may have important impact in deterring recidivism.

As for the scope of the appeal waiver, I would follow Petty because in

agreeing to the waiver Savage could not have reasonably anticipated that the

district court in sentencing would disregard the clear requirement of Rule 32 permitting a personal allocution. Following Petty does not pose any conflict with

United States v. Johnson, 67 F.3d 200 (9th Cir. 1995), because Johnson merely

permits a waiver to reach post-agreement errors that were foreseeable when it was

entered, whereas here it was not reasonably foreseeable, in the light of Rule 32ùs

command, that the sentencing court would pretermit personal allocution.

I concur that the district court adequately explained the sentence, and that

the sentence was not substantively unreasonable.

2