United States of America v. Christopher George Follette

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTOPHER GEORGE FOLLETTE,
Defendant-Appellant.
No. 21-30148
D.C. Nos.
4:20-cr-00083-BMM-1
4:20-cr-00083-BMM
MEMORANDUM*
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.
FILED
MAR 24 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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

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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

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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.

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

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