United States v. Christopher Follette

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 24, 2022
• Docket: 21-30148
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 24 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-30148

Plaintiff-Appellee, D.C. Nos. 4:20-cr-00083-BMM-1 v. 4:20-cr-00083-BMM

CHRISTOPHER GEORGE FOLLETTE, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding

Argued and Submitted March 10, 2022 Seattle, Washington

Before: NGUYEN, MILLER, and BUMATAY, Circuit Judges.

Christopher George Follette appeals his 60-month sentence for sexual abuse

of a minor. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

1. Follette argues that the district court upwardly departed from the

applicable Sentencing Guidelines range without giving him notice under Federal

Rule of Criminal Procedure 32(h). However, as the transcript of the sentencing

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. hearing and the district court’s subsequent statement of reasons make clear, the

court imposed a variance from the Guidelines range under 18 U.S.C. § 3553(a),

not a departure. See United States v. Cruz-Perez, 567 F.3d 1142, 1146 (9th Cir.

2009) (explaining the difference between a departure and a variance).

The district court specifically stated that it “considered . . . all of the factors

in [§ 3553(a)],” including “Mr. Follette’s history and characteristics” and “the

seriousness of this offense.” It explained that it was “deeply troubled” by the

conduct and circumstances of the case, specifically that Follette was the victim’s

stepfather, the victim was a 13-year-old child, and the abuse was systematic and

prolonged. It also considered the goal of avoiding disparate sentences with other

similarly situated defendants. These considerations fall squarely within the §

3553(a) factors.

In its subsequent written statement of reasons, the district court was explicit

that the sentence reflected a variance and not a departure. On this record, the

district court’s one-time use of the term “departure” during the hearing does not

alter our conclusion. Accordingly, Rule 32(h) notice was not required. See United

States v. Rangel, 697 F.3d 795, 801 (9th Cir. 2012) (“[The Rule 32(h)] notice

requirement does not apply, however, to a ‘variance’ under § 3553(a).”).

2. Follette also challenges the district court’s consideration of sentences

imposed in two of its prior cases involving sexual crimes. While Follette does not

2 dispute that the district court can and should consider sentence disparities amongst

similarly situated defendants under § 3553(a)(6), he contends that the lack of

advance notice in the present case violated the court’s obligation to “allow the

parties’ attorneys to comment on . . . matters relating to an appropriate sentence.”

Fed. R. Crim. P. 32(i)(1)(C). Because Follette did not specifically object to the

lack of notice before the district court, see United States v. Jackson, 697 F.3d 1141,

1144 (9th Cir. 2012), we review for plain error, see United States v. Warr, 530

F.3d 1152, 1162 (9th Cir. 2008).

To succeed on plain error review, the alleged error must be clear or obvious

and Follette must show that the error affected his substantial rights. United States

v. Olano, 507 U.S. 725, 734–35 (1993). Neither requirement is satisfied. While

we have required notice when the district court relies on new factual information in

sentencing a defendant, Warr, 530 F.3d at 1162–63, Follette cites to no case

requiring notice when the district court relies on its judicial experience of

comparable cases in weighing the § 3553(a) sentencing factors.

Nor does Follette demonstrate that the alleged error affected his substantial

rights. See United States v. Depue, 912 F.3d 1227, 1234 (9th Cir. 2019) (en banc)

(noting that an error affects substantial rights if the defendant can “demonstrate a

reasonable probability that [he] would have received a different sentence if the

district court had not erred” (alteration in original)). The district court emphasized

3 that the defendants in the two prior cases received substantial sentences yet

engaged in either a single instance of indirect physical contact with the victim or

no physical contact with the victim at all. Follette’s conduct was comparatively

more serious; he engaged in intercourse with the minor victim on 15 to 20

occasions, ultimately resulting in her impregnation.

Follette provides no grounds for distinguishing those cases that would have

been material to the district court’s analysis. Follette argues that his counsel would

have distinguished the first case raised by the court based on the government’s

divergent charging decisions. But, as explained above, the district court’s primary

concern was the relative seriousness of the conduct underlying the charges.

Moreover, counsel did in fact raise, and the district court considered, the impact of

prosecutorial discretion. As for the second case raised by the district court, Follette

does not contend that his counsel was unable to provide meaningful comment;

indeed, his counsel represented that defendant and was thus familiar with the

facts.1

The district court’s thorough consideration of the § 3553(a) factors,

particularly the nature and circumstances of the offense, the seriousness of the

offense, and Follette’s history and characteristics, further undermines Follette’s

1 Follette’s argument that the district court relied on a third case raised by the government at the sentencing hearing lacks record support.

4 assertion that any error was prejudicial. See Warr, 530 F.3d at 1163.

AFFIRMED.