NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0603n.06
No. 07-6087
FILED
UNITED STATES COURT OF APPEALS Aug 26, 2009
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
JOHN FORD, ) TENNESSEE
)
Defendant-Appellant. )
Before: MARTIN, NORRIS, and GILMAN, Circuit Judges.
PER CURIAM. John Ford, a federal prisoner represented by counsel, appeals a district court
judgment sentencing him to sixty-six months of imprisonment and three years of supervised release
for violating 18 U.S.C. § 666. Finding no error, we affirm.
On April 27, 2007, a jury convicted Ford of “Bribery Involving Federal Programs” in
violation of § 666. Ford’s advisory sentencing guideline range was seventy-eight to ninety-seven
months. Ford objected to his presentence report, arguing that he should not receive a two-level
enhancement for multiple bribes under USSG § 2C1.1(b)(1). Ford also objected to a two level
enhancement for obstruction of justice pursuant to USSG § 3C1.1. The district court overruled
Ford’s objections.
In his timely appeal, Ford continues to challenge the two enhancements. The case has been
held in abeyance until we issued our en banc decision of United States v. White, 551 F.3d 381 (6th
Cir. 2008), petition for cert. filed (U.S. Mar. 24, 2009) (No. 08-9523).
We review sentences imposed by the district court for reasonableness. United States v.
Smith, 474 F.3d 888, 892 (6th Cir. 2007) (citing United States v. Collington, 461 F.3d 805, 807 (6th
Cir. 2006)). Reasonableness review has both a procedural and a substantive component. See Gall
United States v. Ford
No. 07-6087
Page 2
v. United States, 128 S. Ct. 586, 597 (2007); United States v. Thomas, 498 F.3d 336, 339 (6th Cir.
2007). Thus, when reviewing a district court’s sentencing determination, we “first ensure that the
district court committed no significant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” Gall, 128 S. Ct. at 597.
“Assuming that the district court’s sentencing decision is procedurally sound, [we] should
then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard.” Id. District courts are charged with imposing “a sentence sufficient, but not greater than
necessary” to fulfill the purposes of sentencing in § 3553(a)(2). United States v. Foreman, 436 F.3d
638, 644 (6th Cir. 2006) (internal quotation marks omitted). “The fact that the appellate court might
reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal
of the district court.” Gall, 128 S. Ct. at 597. In this circuit, we apply a rebuttable appellate
presumption of reasonableness to a sentence that falls within a properly calculated Guidelines range.
United States v. Vonner, 516 F.3d 382, 389 (6th Cir.), cert. denied, 129 S. Ct. 68 (2008)
(acknowledging that Rita v. United States, 551 U.S. 338, ___, 127 S. Ct. 2456, 2462, 2467 (2007),
gives courts of appeals the option of applying a presumption to within-Guidelines sentences). That
does not mean, however, that a sentence outside of the Guidelines range – either higher or lower –
is presumptively unreasonable. Rita, 127 S. Ct. at 2467 (“The fact that we permit courts of appeals
to adopt a presumption of reasonableness does not mean that courts may adopt a presumption of
unreasonableness.”). Rather, such a sentence carries no legal presumption. Id.
Ford was indicted by a federal grand jury on May 25, 2005. Count one of the indictment
charged Ford with attempting to obstruct, delay, and affect commerce by means of extortion in
violation of 18 U.S.C. § 1951; count two of the indictment charged Ford with interference with
commerce by threat or violence in violation of 18 U.S.C. § 666. Counts three, four, and five of the
United States v. Ford
No. 07-6087
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indictment charged Ford with intimidation or force against witnesses in violation of 18 U.S.C.
§ 1512(b)(3).
The evidence at trial showed that the FBI created a sting operation called “Operation
Tennessee Waltz” to investigate corruption in the Tennessee legislature. Ford, at the time a member
of the Tennessee Senate, accepted one $10,000 and numerous $5,000 bribes to support legislation
in favor of a fictitious company set up by the FBI called E-Cycle Management. The evidence also
showed that Ford made threats against an undercover FBI agent and a private party recruited by the
FBI to be part of the operation.
A jury found Ford guilty of the bribery charge. A mistrial was declared on the obstruction
charge of the indictment, and was subsequently dismissed upon motion of the United States. The
jury found Ford not guilty on the remaining counts of the indictment.
Prior to sentencing, Ford filed objections to the two-level enhancement contained in Ford’s
presentence report. The enhancement, made pursuant to § 2C1.1(b)(1), was added because Ford
received multiple bribes.
After hearing arguments on the matter, the district court determined that the payments made
to Ford on behalf of E-Cycle constituted multiple bribes to Ford. The court found that the payments
made to Ford were not installments towards the payment of a larger, previously agreed upon amount.
The court noted that the payments were made on a monthly basis, and sometimes more frequently.
Further, the court found that the payments were generally made in connection with a specific action
by Ford, such as redrafting or amending a bill, or withdrawing the bill for consideration by the state
legislature. The court disagreed with Ford’s argument that the payments constituted a single bribe
because they were all made for a single benefit, that benefit being the introduction of specific
legislation.
The district court ruled that the agreement in which Ford would receive benefits from the
public stock offering by E-Cycle, if the legislation passed, would qualify as a payment separate from
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No. 07-6087
Page 4
the monthly payments. This payment also established a basis for the enhancement under
§ 2C1.1(b)(1).
The court also ruled on Ford’s objections regarding the two-level enhancement for
obstruction of justice contained in the presentence report pursuant to § 3C1.1. The presentence
report relied on the threats contained in the recorded conversations between Ford, the private party,
and the undercover agent, as well as the testimony regarding the threats.
The United States played portions of the audio recordings introduced during the trial. The
first recording concerned the threats made to the private party during a meeting in Ford’s office on
February 3, 2005. The United States also played a recording that concerned the threat to the
undercover agent made by Ford.
Ford argued that this conduct was the basis for the charges that Ford had been acquitted of
during trial, counts three through five of the indictment. Therefore, these actions should not be used
to enhance Ford’s guidelines calculations.
The district court noted that the standard that was to be applied at sentencing was the
preponderance-of-the-evidence standard. The court stated that the provisions for an enhancement
under § 3C1.1 indicated that obstructive behavior can be varied. The court described the differences
between the enhancement provision of § 3C1.1 and the obstruction statute under which Ford was
acquitted. The court ruled that the evidence presented at trial established the threats by a
preponderance of the evidence and, therefore, the enhancement was applicable.
Section 2C1.1(b)(1) imposes a two-level sentence enhancement for receipt of “more than one
bribe or extortion.” The Sentencing Commission’s commentary provides that “[r]elated payments
that, in essence, constitute a single incident of bribery or extortion (e.g., a number of installment
payments for a single action) are to be treated as a single bribe or extortion, even if charged in
separate counts.” USSG § 2C1.1 cmt. n.2.
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No. 07-6087
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In making its determination, the district court relied first on United States v. Canestraro, 282
F.3d 427 (6th Cir. 2002), a Sixth Circuit case involving multiple gratuities under an analogous
Sentencing Guidelines provision. USSG § 2C1.2(b)(1). There the court held that the multiple
payments did constitute multiple gratuities that justified the imposition of the enhancement. Id. at
431-32.
Second, the district court relied on the Second Circuit’s interpretation of § 2C1.1 in United
States v. Arshad, 239 F.3d 276 (2d Cir. 2001). The Arshad court identified several factors
commonly applied to determine if a payment, or payments, constitute multiple bribes, including:
1) whether “the payments were made to influence a ‘single action’,” id. at 280 (citing United States
v. Middlemiss, 217 F.3d 112, 124 (2d Cir. 2000); United States v. Martinez, 76 F.3d 1145, 1153-54
(10th Cir. 1996)); 2) “whether the pattern and amount of payments bear the hallmarks of installment
payments, such as a regular schedule of payments over a finite period of time toward a fixed final
sum, rather than a series of intermittent and varied bribes,” Arshad, 239 F.3d at 281-82 (citing
Middlemiss, 217 F.3d at 124; Martinez, 76 F.3d at 1153; United States v. Morales, 11 F.3d 915, 917
(9th Cir. 1993)); and 3) “whether the method for making each payment remains the same.” Arshad,
239 F.3d at 282 (citing Morales, 11 F.3d at 917).
The district court’s enhancement of Ford’s sentence using § 2C1.1(b)(1) was not erroneous.
As the district court noted, the evidence presented at trial showed that the undercover agent and Ford
had not established a fixed sum that Ford would receive for the legislation. The payments made to
Ford were made in a manner to clearly influence more than one event. The evidence establishes that
each payment was accomplished by another action by Ford in his authority as a state senator. The
payments were made to Ford for 1) drafting the legislation; 2) placing the legislation before the
committee; 3) amending the legislation; 4) withdrawing the legislation; and 5) delaying the
legislation, all for the purpose of benefitting a fictitious, corrupt corporation. In addition to the
periodic payments, which establish that there was no regular schedule of payments and that there was
United States v. Ford
No. 07-6087
Page 6
no agreed final fixed amount, Ford was given access to the corporation’s initial public stock options
once the legislation was passed. This second method of receiving payment, under Arshad, further
establishes that Ford received multiple bribes. Arshad, 239 F.3d at 282; see also Canestraro, 282
F.3d at 432 (holding that a “success fee” also constitutes a separate gratuity). As the district court’s
application of § 2C1.1(b)(1) is procedurally and substantively reasonable, Gall, 128 S. Ct. at 597,
the argument does not warrant the reversal of the district court’s sentence.
Ford next contends that the district court erred by granting a two-level increase under § 3C1.1
for threatening and intimidating the private party and the undercover FBI agent because the jury had
found Ford not guilty of the obstruction charges. The district court noted at sentencing that even
though Ford was not convicted by the jury of the intimidation charges, the preponderance of the
evidence standard applies in sentencing proceedings. Based upon the evidence at trial, the court
concluded that Ford had engaged in obstruction and that the enhancement of § 3C1.1 applied. Ford
conceded in his brief that our decision in White would resolve this issue. In White, we held that so
long as the defendant receives a sentence that is at or below the statutory limit established by the
jury’s verdict, the district court does not violate a defendant’s right to a jury trial by examining other
facts, including acquitted conduct, when determining a sentence. White, 551 F.3d at 385. The
statutory maximum that Ford faced was ten years of imprisonment, three years of supervised release,
a $250,000 fine, and a $100 special assessment. Because Ford’s sentence was well below the
statutory maximum, under White, the district court’s implementation of § 3C1.1 does not render
Ford’s sentence procedurally or substantively unreasonable.
Accordingly, we affirm.