In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14‐1278 and 14‐1100
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
GUSTAVO BUENROSTRO and AMBROSIO MEDRANO,
Defendants‐Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CR 00487 — John J. Tharp, Jr., Judge.
____________________
ARGUED SEPTEMBER 8, 2014 — DECIDED MARCH 26, 2015
____________________
Before WOOD, Chief Judge, and POSNER and HAMILTON,
Circuit Judges.
HAMILTON, Circuit Judge. Gustavo Buenrostro and Am‐
brosio Medrano were each convicted of conspiracy to com‐
mit bribery, and each now appeals his conviction. We affirm.
The convictions stem from a scheme to bribe a local official
in California to obtain a government contract. The local offi‐
2 Nos. 14‐1278 & 14‐1100
cial was fictional, however, invented by the FBI as part of an
undercover government sting operation. The sting operation
reached its denouement when a bribery check was handed
to an undercover agent, and Buenrostro and Medrano were
charged for their roles in the scheme.
A third defendant was also charged with conspiracy:
James Barta. Like Buenrostro and Medrano, Barta was tried
and convicted. Barta argued on appeal that he was en‐
trapped into the conspiracy. We resolved his appeal in a sep‐
arate opinion concluding that he had been entrapped as a
matter of law. See United States v. Barta, 776 F.3d 931 (7th Cir.
2015). Neither Buenrostro nor Medrano argued (or could
have argued) an entrapment defense, but each challenges his
conviction on other grounds. Both Buenrostro and Medrano
argue that there was not sufficient evidence of the financial
elements of the federal bribery statute to support treating
their conspiracy as a federal crime. Medrano also argues that
his sentence is substantively unreasonable.
I. Factual Background
This sting operation began, as many do, with a criminal
turned cooperating witness. One Michael DiFoggio worked
as a cooperating witness for the FBI in exchange for a prom‐
ise that the government would recommend a lesser sentence
in his tax evasion case. DiFoggio introduced Medrano to a
man purporting to be a health care consultant named George
Castro. Castro told Medrano that in return for payment of a
bribe to a corrupt official, he could obtain contract approval
from Los Angeles County for the purchase of medical band‐
ages for its hospital system. In reality “Castro” was an un‐
dercover FBI agent and there was no corrupt official.
Medrano did not know this, of course, so when the medical
Nos. 14‐1278 & 14‐1100 3
bandages deal was concluded, he approached Castro about
making another deal.
On that next deal—the one at issue here—Medrano
teamed up with his old friend Buenrostro. Buenrostro and
the undercover “Castro” eventually brought Barta into the
discussions. Over the course of several meetings, the deal
began to take shape. A bribe would be paid to the corrupt
official by way of Castro (who would also take a piece of the
bribe for himself). In exchange for the bribe, Castro and the
corrupt official would ensure that Los Angeles County
would award a contract for providing pharmaceutical dis‐
pensing services to Sav‐Rx, a prescription benefit manage‐
ment company founded by Barta. Sav‐Rx would service the
contract by partnering with a business started by Buenrostro
and Medrano specifically for that purpose.
At the last meeting in the course of the conspiracy, Barta
wrote a check for $6,500 to Castro. This constituted Barta’s 65
percent share of the $10,000 bribe demanded by Castro (and
the fictional corrupt official) to secure contract approval.
Buenrostro and Medrano were to pay their 35 percent share
to Castro sometime shortly after that last meeting. Before
that could happen, all three defendants were arrested. Fur‐
ther background on the bribery scheme can be found in the
Barta opinion, but any facts important to Buenrostro and
Medrano’s appeals are included in this opinion.
II. Analysis
Buenrostro and Medrano were convicted of violating 18
U.S.C. § 371, which prohibits conspiracies “to commit any
offense against the United States.” Defendants were charged
with conspiring to commit bribery under 18 U.S.C. § 666,
4 Nos. 14‐1278 & 14‐1100
which makes bribery a federal crime but only under certain
circumstances. Buenrostro and Medrano both contend that
the government failed to present evidence sufficient to prove
beyond a reasonable doubt that they conspired to commit
bribery under the circumstances required to qualify as a fed‐
eral crime under § 666. Assessing this claim requires us to
parse the ponderous language of § 666.
Section 666(a)(2) prescribes penalties for anyone who
“corruptly gives, offers, or agrees to give anything of value
to any person, with intent to influence or reward an agent of
an organization or of a State, local or Indian tribal govern‐
ment, or any agency thereof, in connection with any busi‐
ness, transaction, or series of transactions of such organiza‐
tion, government, or agency involving anything of value of
$5,000 or more.” Subsection 666(b) adds a further require‐
ment, that “the organization, government, or agency re‐
ceives, in any one year period, benefits in excess of $10,000
under a Federal program involving a grant, contract, subsi‐
dy, loan, guarantee, insurance, or other form of Federal assis‐
tance.”
Both Buenrostro and Medrano argue that the govern‐
ment failed to present sufficient evidence that the pharma‐
ceutical dispensing contract they aimed to win by bribing
the corrupt official should be valued at $5,000 or more. They
also attack the sufficiency of the evidence to show that the
corrupt official was an agent of an entity receiving over
$10,000 per year in federal benefits. Finally, Medrano argues
that the 30‐month prison sentence he received is substantive‐
ly unreasonable. (Buenrostro does not challenge his sen‐
tence.) We address these arguments in turn.
Nos. 14‐1278 & 14‐1100 5
A. Sufficiency of the Evidence
“We will overturn a verdict for insufficiency of the evi‐
dence only if, after viewing the evidence in the light most
favorable to the government, the record is devoid of evi‐
dence from which a rational trier of fact could find guilt be‐
yond a reasonable doubt.” United States v. Reed, 744 F.3d 519,
526 (7th Cir. 2014). A jury was instructed as to all the ele‐
ments of 18 U.S.C. § 666, and in convicting Buenrostro and
Medrano it found that the government proved each of these
elements beyond a reasonable doubt. We hold that the gov‐
ernment presented sufficient evidence to support the ver‐
dicts.
1. The $5,000 Element
The $5,000 element of § 666 pertains to “the subject matter
of the bribe,” which “must be valued at $5,000 or more.”
United States v. Robinson, 663 F.3d 265, 271 (7th Cir. 2011). In
other words, the “‘business’ or ‘transaction’ sought to be in‐
fluenced must have a value of $5,000 or more.” Id., quoting
18 U.S.C. § 666(a)(2). In this case the business or transaction
sought to be influenced—the subject matter of the bribe—
was the fictional pharmaceutical dispensing contract.
The simplest indicator that the object of the conspiracy
was a fictional contract with a value of at least $5,000 is that
the conspirators were willing to pay a $10,000 bribe to win it.
This common‐sense observation is based “on the theory that
the benefit is worth at least what the bribe‐giver was willing
to pay for it.” Id. at 275 (citing cases). Robinson endorsed this
theory in holding that “the amount of the bribe may suffice
as a proxy for value; at least it provides a floor for the valua‐
tion question.” Id.
6 Nos. 14‐1278 & 14‐1100
Buenrostro and Medrano counter this obvious point by
arguing that Barta gave the $6,500 check to Castro only as a
favor to his old friend Buenrostro, not because the contract
had a value of $5,000 or more. There are two problems with
this argument.
First, this is at best “an argument for the jury at trial, not
for us on appeal. We do not reweigh the evidence or make
our own credibility determinations.” United States v. Farmer,
717 F.3d 559, 563 (7th Cir. 2013). Even if we might be per‐
suaded by this improbable version of events, the jury was
not. An inquiry into the sufficiency of the evidence “does not
ask what we would have decided if we were on the jury. We
need not be convinced by the evidence ourselves. Our in‐
quiry is whether a reasonable jury considering the evidence
in the light most favorable to the government could have
found each element of the offense beyond a reasonable
doubt.” United States v. Jones, 713 F.3d 336, 340 (7th Cir. 2013).
Second, quite apart from the agreed amount of the bribe,
there was ample evidence to support the jury finding on the
$5,000 element. For example, Medrano repeatedly said he
was ready to move to Los Angeles if that was needed to win
and retain the contract. A reasonable jury could certainly in‐
fer that Medrano would not have even considered this pos‐
sibility if he had thought the contract was worth less than
$5,000.
Buenrostro and Medrano argue that the government
should not have relied on subjective evidence about the val‐
ue of the fictional contract to the conspirators to prove the
$5,000 element since the contract had a market value that
should be proved objectively. They cite no decision that has
endorsed this proposition, however, which is not surprising.
Nos. 14‐1278 & 14‐1100 7
The notion of objective evidence to substantiate the value of
a fictional deal where no contract was actually signed is elu‐
sive, to say the least. It is reminiscent of the philosophical
problems posed by asking whether the statement “The pre‐
sent King of France is bald” is true, false, or meaningless
when there is no present King of France. See Bertrand Rus‐
sell, On Denoting, 14 Mind 479 (1905).
Nevertheless, the evidence supports a finding that the
conspirators agreed to pay a bribe to win a contract that
would have been worth much, much more than $5,000. “An‐
other approach to valuing the subject matter of the bribe is
by looking to the value of the benefit the bribe‐giver will re‐
ceive if the bribe is successful.” United States v. Owens, 697
F.3d 657, 659 (7th Cir. 2012). Castro and the conspirators ex‐
pected the contract to call for dispensing a million or more
prescriptions per year for at least two or three years. The
benefit received by the defendants per prescription would
have needed to be astoundingly low for dispensing this vol‐
ume of prescriptions not to have proven quite beneficial.
Christy Piti, who is Barta’s daughter and the current head of
Sav‐Rx, testified that this hypothetical contract was highly
unrealistic and thus would have been of no benefit to the de‐
fendants. But the jury was not required to credit her testi‐
mony on this point, particularly because it would have ren‐
dered Buenrostro and Medrano’s dogged pursuit of the con‐
tract a complete mystery. In sum, sufficient evidence sup‐
ports the jury finding that the $5,000 element was satisfied
beyond a reasonable doubt.
2. The $10,000 Element
Subsection 666(b) requires the person being bribed to be
an agent of an organization, government, or agency that re‐
8 Nos. 14‐1278 & 14‐1100
ceives more than $10,000 in federal funds or other benefits in
one year. For purposes of this provision, an agent is defined
as “a person authorized to act on behalf of another person or
a government and, in the case of an organization or govern‐
ment, includes a servant or employee, and a partner, direc‐
tor, officer, manager, and representative.” 18
U.S.C. § 666(d)(1). At trial the parties stipulated that Los An‐
geles County received more than $10,000 in federal funds in
the relevant period. The issue we must decide is whether a
reasonable jury could have found beyond a reasonable
doubt that the fictional official was an agent of Los Angeles
County.
Since the official was fictional, the only evidence the jury
had to make this determination is how Castro and the con‐
spirators described the official during their conversations. At
one point Castro described his contact, the corrupt official,
as “a high ranking official at the county system.” This de‐
scription seems to favor the government. But Buenrostro ar‐
gues that at another point Castro made clear that “county
system” was shorthand for the Los Angeles County Depart‐
ment of Health Services.
Buenrostro and Medrano reason that if the corrupt offi‐
cial was an agent of the Los Angeles County Department of
Health Services, then the $10,000 element cannot be satisfied
because the government introduced no evidence specific to
that department’s receipt of federal funds or other benefits.
Evidence in the record that the fictional official was an agent
of the Los Angeles County Department of Health Services as
distinct from Los Angeles County is sparse, but so is evi‐
dence pointing the other way. In light of the government’s
burden of proof, this might seem to spell trouble for the gov‐
Nos. 14‐1278 & 14‐1100 9
ernment. Cf. United States v. Johnson, 592 F.3d 749, 755 (7th
Cir. 2010) (“In this situation, the evidence is essentially in
equipoise; the plausibility of each inference is about the
same, so the jury necessarily would have to entertain a rea‐
sonable doubt on the conspiracy charge.”).
But the problem for Buenrostro and Medrano is that their
argument depends on an unstated assumption: that if the
corrupt official was an agent of the Los Angeles County De‐
partment of Health Services, then he could not also have
been an agent of Los Angeles County. That assumption is
faulty. Neither common sense nor case law supports it.
Employees are included in the statutory definition of
agents in 18 U.S.C. § 666(d). A reasonable jury could infer
that people working for the Los Angeles County Department
of Health Services are also employees of Los Angeles Coun‐
ty. Prior cases have already held that the Oklahoma Deputy
State Treasurer was an agent not only of the Treasurer but
also of the State of Oklahoma itself, see United States v. Pretty,
98 F.3d 1213, 1218–19 (10th Cir. 1996), and that an employee
and agent of the Indiana Department of Transportation Toll
Road Division was also an employee and agent of the Indi‐
ana Department of Transportation, see United States v. Ago‐
stino, 132 F.3d 1183, 1193–94 (7th Cir. 1997). In a hierarchy of
governmental entities, a single person can be deemed an
employee and/or agent of entities at multiple levels.
The cases that Buenrostro and Medrano cite are easily
distinguishable because local law in those cases meant that
the defendant was not an employee (or otherwise an agent)
of the entity receiving more than $10,000 in federal funds (or
other benefits). See United States v. Phillips, 219 F.3d 404, 412
(5th Cir. 2000) (under Louisiana law, tax assessor was not an
10 Nos. 14‐1278 & 14‐1100
employee or agent of the local government body receiving
the requisite federal funds); United States v. Sunia, 643 F.
Supp. 2d 51, 68 (D.D.C. 2009) (defendants in the legislative
branch of the American Samoan government were not em‐
ployees or agents of the executive branch agencies receiving
the requisite federal funds).
There is also abundant evidence in the record that, re‐
gardless of which entity or entities employed the fictional
corrupt official, the conspirators reasonably believed Cas‐
tro’s claims that the official could act on behalf of Los Ange‐
les County. The allure of the deal and the reason for paying
the agreed bribe were precisely that this corrupt official
could guarantee approval for the sizeable contract by the
county’s Board of Supervisors. And by definition, a person
qualifies “as an agent of an entity” when he is “authorized to
act on behalf of that entity.” United States v. Keen, 676 F.3d
981, 990 (11th Cir. 2012). The jury heard sufficient evidence
to support its finding that the $10,000 element was satisfied
beyond a reasonable doubt.
B. Medrano’s Sentence
Medrano argues that the 30‐month prison sentence he re‐
ceived is substantively unreasonable. At the time of sentenc‐
ing in this case, Medrano had just been sentenced to a 126‐
month prison term in a separate case in the Northern District
of Illinois. Medrano urged the district judge here to make his
sentence in this case concurrent to the 126‐month sentence.
The district judge decided instead that a consecutive sen‐
tence of 30 months, which was well below the guideline
range for this offense, was needed to serve the purposes of
sentencing.
Nos. 14‐1278 & 14‐1100 11
As a general rule, a “sentencing court has discretion to
make a sentence consecutive or concurrent” to an earlier sen‐
tence. United States v. Collins, 640 F.3d 265, 270 (7th Cir. 2011).
Medrano acknowledges this point but asserts that the dis‐
trict judge abused his discretion in imposing a consecutive
sentence in this case. We find no abuse of discretion, but a
thoughtful and measured decision by Judge Tharp.
Medrano cites a case where a sentence was vacated be‐
cause a district court “failed to address the principal argu‐
ment” made by the defendant, which was an argument for a
concurrent sentence. United States v. Jackson, 546 F.3d 465, 472
(7th Cir. 2008). Despite his repeated insistence that a concur‐
rent sentence was appropriate in this case, Medrano con‐
tends, “the court barely addressed that argument, let alone
gave it any thoughtful consideration.” This is an unfortunate
distortion of what happened at sentencing.
Judge Tharp said that the “fundamental question in this
case” was “how much of the sentence should be served con‐
currently or how much of the sentence should be served
consecutively to the term of imprisonment that Mr. Medrano
is already facing.” Ultimately, the judge answered that ques‐
tion by deciding that there should be a “marginal increase in
the penalty imposed as a result of an entirely different
scheme for which he was convicted.”
The judge stated clear reasons for imposing a below‐
guideline but consecutive sentence. He found that Medrano
instigated the scheme and was therefore the most culpable of
the defendants. He also pointed out that Medrano had an
unusually long history of public corruption offenses: “as an
elected official, as a government employee, and now as a
member of the general public offering bribes to other elected
12 Nos. 14‐1278 & 14‐1100
officials.” And he found that a consecutive sentence would
promote general deterrence since it would send the message
that there is no “free pass” simply because you are already
facing another sentence for a separate crime. Cf. United States
v. Conley, 777 F.3d 910, 916 (7th Cir. 2015) (affirming consecu‐
tive sentence after observing that a defendant making a simi‐
lar argument was in effect arguing for a free pass for the of‐
fense of conviction).
To be sure, consecutive sentences are not required or
even appropriate in all cases. District judges are generally
entrusted with the discretion to decide this question on a
case‐by‐case basis in light of the multiple and sometimes
contradictory goals of federal sentencing. Here Judge Tharp
addressed the main arguments made by Medrano. He found
that Medrano would be unlikely to commit further crimes
upon release from prison, mitigating any need for specific
deterrence. He acknowledged that Medrano had health
problems but found that the Bureau of Prisons had adequate
treatment programs in place. He explained that Medrano re‐
ceived a longer sentence than Buenrostro and Barta based on
his greater culpability and his unusual history of multiple
corruption convictions. The transcript of the sentencing
hearing reflects the thought and care that Judge Tharp put
into crafting this sentence. When sentencing discretion is ex‐
ercised as carefully as it was in this case, there is no basis for
us to disturb the result.
Medrano mounts one last attack on his consecutive sen‐
tence. He argues that the district judge abused his discretion
by not addressing specifically or sufficiently each of the sen‐
tencing factors listed in 18 U.S.C. § 3553 and U.S.S.G.
§ 5G1.3(b). The 74‐page transcript of the sentencing hearing
Nos. 14‐1278 & 14‐1100 13
shows that Judge Tharp’s discussion of the sentencing fac‐
tors was much more thorough than Medrano portrays it to
be. Moreover, a sentencing judge simply is not required to
“tick off every possible sentencing factor or detail and dis‐
cuss, separately, every nuance of every argument raised … .”
Collins, 640 F.3d at 271. The district court committed no pro‐
cedural or substantive error in sentencing Medrano.
The district court’s judgments are AFFIRMED.