F I L E D
United States Court of Appeals
Tenth Circuit
AUG 5 1998
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-5139
(D.C. No. 96-CR-84-H)
JAMES EDWARD WALKER, (N.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BALDOCK , EBEL , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant-appellant James Edward Walker, a former sheriff of Ottowa
County, Oklahoma, was charged by a federal grand jury in a twelve-count
indictment with extortion affecting interstate commerce, aiding and abetting
illegal gambling operations, and obstruction of justice. After a trial presided over
by the Honorable H. Dale Cook, a jury found Walker not guilty on eight counts
but was unable to agree on the four remaining counts. The court declared a
mistrial on the four unresolved counts and transferred the case to the Honorable
Sven Erik Holmes.
After the first trial, a federal grand jury returned a superseding indictment
against Walker, re-alleging the original four unresolved counts and adding three
additional counts. The United States later filed an information charging Walker
with a single count of aiding and abetting an illegal gambling business. In
anticipation of his client’s guilty plea to the information and subsequent
sentencing, Walker’s attorney filed a motion in the district court requesting that
the case be retransferred to Judge Cook on the ground that Judge Cook had heard
the evidence that constituted relevant conduct.
At the sentencing hearing, Judge Holmes asked defense counsel whether he
would agree that there was no basis for the retransfer motion “if the sole basis of
the sentencing today was on this Information and the plea of this individual to this
Information and his allocution in support of that plea[.]” R. Vol. IV at 9.
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Defense counsel agreed that, if the scope of the sentencing was in fact so limited,
there would be no basis for the motion to retransfer.
In arriving at a sentence, the court enhanced the original offense level of
twelve by three levels to reflect Walker’s role as a manager/supervisor pursuant to
§ 3B1.3(b) of the United States Sentencing Guidelines (Guidelines). The
resultant combination of a criminal history category of I plus an offense level of
fifteen dictated a sentencing range of eighteen to twenty-four months. The
district court also departed upward by two levels from the guideline range to
reflect Walker’s role in the disruption of government function pursuant to
§ 5K2.7, which yielded a sentencing range of twenty-four to thirty months. After
accepting Walker’s guilty plea, the district court sentenced him to twenty-four
months’ imprisonment and three years of supervised release. On appeal, Walker
challenges only the court’s enhancement for manager/supervisor status and for
disruption of government function. We exercise jurisdiction pursuant to
28 U.S.C. § 1291 and affirm.
Ordinarily, we use a three-step analysis when reviewing the decision of a
sentencing court to depart upward from the Guidelines. See United States v. Big
Medicine , 73 F.3d 994, 996 (10th Cir. 1995).
First, we examine the record de novo to determine whether the
circumstances cited by the district court justify departure. Second,
we assess under the clearly erroneous standard whether the record
contains a factual basis to support the circumstances relied upon by
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the district court. Finally, we determine whether the degree of
departure was reasonable.
Id. (citations omitted). On appeal, however, Walker argues only that there were
no facts upon which the court could have based its upward departures.
We review for clear error the district court’s determination that Walker was
a manager/supervisor of the gambling business, thus justifying an upward
departure pursuant to § 3B1.3(b). Cf. United States v. Cruz Camacho , 137 F.3d
1220, 1223-24 (10th Cir. 1998) (holding finding of organizer/leader status under
§ 3B1.3(a) subject to clearly erroneous review). Thus, “we will not reverse the
district court’s finding[] unless [it is] without factual support in the record, or
unless after reviewing all the evidence, we are left with the definite and firm
conviction that a mistake has been made.” United States v. Valdez-Arieta , 127
F.3d 1267, 1270 (10th Cir. 1997) (quotation omitted).
The information to which Walker pled guilty stated in its entirety:
From in or about March 1994 to on or about September 14,
1995, in the Northern District of Oklahoma and elsewhere, the
defendant, JAMES EDWARD WALKER, acting together and aiding
and abetting Michael A. O’Brien and others, knowingly, willfully,
and unlawfully did conduct, finance, manage , supervise , direct, and
own, or did cause to be conducted, financed, managed, supervised,
directed, and owned, all or part of an illegal gambling business, the
illegal gambling business having involved willfully conducting
commercial gambling by setting up for use and/or collecting the
proceeds of gambling devices, in violation of Title 21, Oklahoma
Statutes, Sections 982.5 and 981.3, of the laws of the State of
Oklahoma, in which the illegal gambling business was conducted;
and which illegal gambling business involved, during the period
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states above, five or more persons who conducted, financed,
managed, supervised, directed, and owned all or part thereof; and
which illegal gambling business remained in substantially continuous
operation for a period in excess of thirty days.
R. Vol. I, doc. 110 (emphasis added).
An information is not evidence that a charged offense has been committed.
Cf. United States v. Hagedorn , 38 F.3d 520, 522 (10th Cir. 1994) (holding same
regarding indictment). When a defendant voluntarily pleads guilty to the charge
in an information, however, he not only admits all the material facts alleged in the
charge, see United States v. Kelsey , 15 F.3d 152, 153 (10th Cir. 1994), he further
admits guilt of a substantive crime, see United States v. Broce , 488 U.S. 563, 570
(1989). After pleading guilty to managing and supervising an illegal commercial
gambling enterprise, Walker cannot now argue that his role was only that of a
minor participant. See Martin v. United States , 364 F.2d 894, 896 (10th Cir.
1966).
Walker’s second contention on appeal is that there were no facts upon
which to base an upward departure for disruption of government function
pursuant to § 5K2.7. Section 5K2.7 provides in pertinent part: “If the
defendant’s conduct resulted in a significant disruption of a governmental
function, the court may increase the sentence above the authorized guideline
range to reflect the nature and extent of the disruption and the importance of the
governmental function affected.”
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In his change of plea hearing, Walker admitted that he called Dee Baker,
owner of a bar within the jurisdiction of Ottowa County, to set up a meeting
between Baker and Walker’s friend, Mike O’Brien, for the purpose of facilitating
the placement of O’Brien’s illegal gambling machines in Baker’s bar. R. Vol. I,
19-20. In enhancing defendant’s sentence on the basis of § 5K2.7, the district
court quoted the allocution made by Walker at his change of plea hearing:
“The Court: So basically based on your friendship, you were
prepared to make a telephone call to cause somebody to break the
law, knowing in making that call and seeking that they install this
illegal gambling device, that you were breaking the law; right?
“The Defendant: Yes, sir.
“The Court: Did you consider at the time, your oath as a
sheriff, law enforcement official in Ottowa County, that by virtue of
your friendship with Michael O’Brien, breaking the law yourself and
causing others to break the law, might be inconsistent with that
oath?”
“The Defendant: No, sir, I didn’t consider it at the time. I
didn’t even think about it at the time.
“The Court: You didn’t think about it at the time?”
“The Defendant: No, sir.
“The Court: So when somebody raises breaking the law, it’s
not something that comes to mind, your obligation as the sheriff, is
that your response”
“The defendant: It just didn’t cross my mind at that time, sir.”
R. Vol. IV at 13.
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The Guidelines allow a sentencing court to rely on uncharged conduct to
support an upward departure. See Big Medicine , 73 F.3d at 997; see also United
States v. Saucedo , 950 F.2d 1508, 1513 n.8 (10th Cir. 1991), overruled on other
grounds by Stinson v. United States , 508 U.S. 36 (1993) (noting that conduct
other than that to which a defendant has pled guilty may be considered in arriving
at role adjustments pursuant to § 3B1.1). Here, while the district court indicated
that it would confine the basis of sentencing to the information, the plea, and the
allocution in support of that plea, see R. Vol. IV at 9, that concession did not
prevent the court from considering the presentence report in arriving at a
sentence. The parties were clearly aware that the presentence report was part of
the record before the court. See id. at 10.
Walker does not challenge the accuracy of the facts contained in the
presentence report. The court, therefore, could properly rely on the facts in the
report to support a decision to depart from the Guidelines. See United States v.
Flinn , 987 F.2d 1497, 1501 (10th Cir. 1993) (relying on presentence report to
support a criminal history departure).
The presentence report indicates that, after O’Brien’s largely unsuccessful
attempts to locate his machines in local bars and clubs, other distributors of
illegal gambling equipment informed their customers that “Sheriff Walker had
contacted them and threatened to shut down the illegal gambling unless he was
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provided with ten percent of the gambling proceeds for protection from
prosecution and to circumvent the enforcement of gambling laws in Ottawa
County.” Presentence Investigation Report at 8. The failure to enforce the law in
return for kickbacks certainly interferes with the government function of law
enforcement.
The district court was further concerned with the effect on the public’s
perception of government as a result of Walker’s conduct. It observed:
[c]onfidence in our legal system is undermined when those who are
charged with enforcing the law choose to break the law instead.
If a public official’s action[s] cause the people of Ottawa County,
and elsewhere, to doubt the commitment to evenhanded law
enforcement by the sheriff’s office, then that public official has
significantly disrupted a governmental function.
R. Vol. IV at 14. This public relations impact, when combined with the outright
failure to enforce the gambling laws, disrupted the usual government function of
law enforcement and justified the two level enhancement under § 5K2.7. See
United States v. Roth , 934 F.2d 248, 248, 250 (10th Cir. 1991) (finding that threat
to national security combined with effect on the morale and pride of the military
because of theft of military property by Air Force security guard warranted
enhancement under § 5K2.7); United States v. Gunby , 112 F.3d 1493, 1502-03
(11th Cir. 1997) (rejecting defendant’s argument that “disruption” cannot mean
diminished respect for the legal system); United States v. Khan , 53 F.3d 507, 518
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(2d Cir. 1995) (affirming § 5K2.7 departure where fraud disrupted efficient
administration of Medicaid and “undermined the public’s confidence in
government”).
The judgment of the United States District Court for the Northern District
of Oklahoma is AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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