II. Convictions. On June 17, 2010, the government charged the Hammonds in a 19-count indictment with conspiracy, arson and other charges involving numerous range fires occurring in a 24-year period from August 1982 to August 2006. ER-1273. On May 17, 2012, less than 30 days before trial, the government filed a 9-count superseding indictment focusing on four separate fires. SER-137. Steven Hammond had acknowledged starting two of the fires, and those were the fires upon which
the jury returned guilty verdicts. Both petitioners were convicted of violating 18 U.S.C. § 844(f)(1) in connection with a 2001 range fire known as the Hardie-Hammond Fire. Steven Hammond was also convicted of violating § 844(f)(1) because he started a back burn during the 2006 Krumbo Butte Fire. The jury found that neither fire had caused more than $1,000 in damages. ER-35, 41. The Ninth Circuit described the 2006 fire as follows: In August 2006, a lightning storm kindled several fires near where the Hammonds grew their winter feed. Steven responded by attempting back burns near the boundary of his land. Although a burn ban was in effect, Steven did not seek a waiver. His fires burned about an acre of public land. App. 3. As for the 2001 fire, there were several facts petitioners had acknowledged at trial: Petitioners had been warned after a 1999 prescribed burn on their private land had spread to public land that they would face serious consequences should a similar event occur again. Id. On September 30, 2001, after the Hammonds and their invited guests finished a day of hunting on their private land, Steven Hammond called the BLM to see if burning was per- mitted. After being told there was no burn ban in effect, he informed the BLM that the Hammonds would be setting a fire on a section of their private
land. ER-234; ER-306. The Hammonds then set a fire intended to burn off invasive species; the fire spread to approximately 139 acres of adjacent public land on the Hardie-Hammond Allotment. ER-287; ER-243; ER-54-64. Some of the circumstances of the 2001 fire were disputed at trial. The government’s main witness on the 2001 fire was Dwight Hammond’s grandson, Dusty Hammond, who asserted that the fire had placed him in physical danger. App. 3. The defense presented substantial evidence contradicting Dusty Hammond’s version of the events. See SER-11-22. At sentencing, the trial judge rejected Dusty’s version of what had happened, based on his age and bias. App. 14. The trial judge found that the 2001 fire had, at most, temporarily damaged sagebrush and that, while those damages might have technically been greater than $100, “mother nature” had remedied any harm. App. 14. The judge’s conclusion was supported by the BLM, which had determined that the 2001 fire improved that portion of the federal land to which the fire spread. ER-305. Having listened to all of the evidence and testimony at trial, the trial court succinctly summarized the basis for the convictions as follows: With regard to the sufficiency of the jury verdicts, they were sufficient. And what happened here, if you analyze this situation, if you listened to the trial as I did and looked
at the pretrial matters, there was a – there were statements that Mr. Steven Hammond had given that indicated he set some fires [after he had been warned about the consequences if they spread], and the jury accepted that for what it was. App. 13. III. District Court’s Sentences. The trial court’s advisory guidelines calculations were undisputed on appeal. The advisory range for Dwight Hammond was 0 to 6 months imprisonment, App. 15; the advisory range for Steven Hammond was 8 to 14 months imprisonment, App. 16. Prior to sentencing, petitioners filed a memorandum seeking less than the five-year mandatory minimum provided for under 18 U.S.C. § 844(f)(1) on the grounds that such sentences would be disproportionate to their criminal conduct and, thus, would violate the Eighth Amendment. ECF-205. At sentencing, the prosecutor addressed petitioners’ Eighth Amendment argument as follows: Perhaps the best argument, Judge, the defendants have in this case is the proportionality of what they did to what their sentence is. Perhaps that’s the most troubling for the court. It is for the prosecutor who tried the case. . . . * * *
The proportionality issue is one, however, that I think our constitution gives to our courts. Congress has told you what they think the mandatory sentence should be. I have done my job as the prosecutor trying the case and presenting the evidence the best way I could, and now it’s the judiciary’s job to impose a sentence that it thinks just. We have made our recommendation of five years as the statute says. ER-9-10. The court responded to the prosecutor’s comments: [T]he argument [the prosecutor] made on proportionality was highly moral. I appreciate that. ER-18. The trial court concluded that petitioners’ offense conduct was not that contemplated by Congress when it added a five-year mandatory minimum sentence to 18 U.S.C. § 844 under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132 (1996). App. 17. Considering the nature of the arson statute, the purpose of the penalty provision added to that statute, the nature of the conduct underlying the petitioners’ convictions, their personal characteristics, and the advisory guidelines, the trial court indicated that it would not impose the five-year mandatory minimum sentence because “to do so under the Eighth Amendment would result in a sentence which is grossly disproportionate to the severity of the offenses here.” App. 17.
