United States v. Cleburne Jr Brigham

This is a sentence appeal. We affirm because Brigham did not object to the claimed errors and because the errors do not qualify as “plain.”

I.

FACTS

Brigham and others bought a successful restaurant in Portland. He looted it, and it failed. He also applied for a number of loans totaling more than $1 million dollars, lied on his loan applications, and got some of them. Hundreds of thousands of dollars went into the restaurant and out to Brigham for various improper purposes, including $88,520 for vehicle expenses and $162,342 for personal expenses. Brigham even delayed turning over tips to the restaurant employees for weeks after they had earned them. Eventually, the restaurant went into bankruptcy and the United States Trustee discovered what had been going on.

Brigham’s indictment included three counts of making false statements on a loan application, 1 one count of making false statements to the Small Business Adminis *667 tration, 2 and two counts of misusing a Social Security number. 3 He had lied in his loan applications about what his Social Security number was, whether he had ever been charged with a crime, whether he had been involved in bankruptcies, and what his…

concurring in the judgment:

I concur in the majority’s remand in light of United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc). I write separately, however, to disagree with the majority’s acceptance of the use of a sentencing council in determining Brigham’s sentence. Brigham entered into a plea agreement with the Government for a sen *671 tence of twenty-four months. After meeting with a sentencing council, the District Judge increased Brigham’s sentence to thirty-seven months. Neither Brigham nor the public will ever know what impact the council had on Brigham’s increased sentence because neither party in the case was allowed to attend the sentencing council meeting, and a record of the exchange was not disclosed. Brigham’s mere knowledge that a sentencing council was used in his case does not remedy this harm.

The majority underestimates the “potential for abuse,” the “doubtful appearance, and the possible misunderstanding” of sentencing council proceedings that take place outside the defendant’s presence. United States v. Spudic, 795 F.2d 1334, 1344 (7th Cir.1986). In Spudic , for example, the Seventh Circuit held that, while a judge may confer with his…

447 F.3d 665 UNITED STATES of America, Plaintiff-Appellee, v. Cleburne Jr BRIGHAM, Defendant-Appellant. No. 03-30381. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 2, 2004. Filed May 5, 2006. Brian J. Petersen (argued) and Jeffrey Schwartz, Attorneys at Law, San Francisco, CA, for Defendant-Appellant Cleburne Jr Brigham. Michael K. Atkinson (argued), United States Department of Justice, Criminal Division, Fraud Section, Washington, D.C., and Karen J. Immergut, and Allan M. Garten, Office of the United States Attorney, District of Oregon, for Plaintiff-Appellee United States of America. Appeal from the United States District Court for the District of Oregon; Ancer L. Haggerty, District Judge, Presiding. D.C. No. CR-02-00220-ALH. Before FERGUSON, TROTT, and KLEINFELD, Circuit Judges. KLEINFELD, Circuit Judge. 1 This is a sentence appeal. We affirm because Brigham did not object to the claimed errors and because the errors do not qualify as "plain." I. FACTS 2 Brigham and others bought a successful restaurant in Portland. He looted it, and it failed. He also applied for a number of loans totaling more than $1 million dollars, lied on his loan…