United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT November 21, 2006
Charles R. Fulbruge III
Clerk
No. 05-40140
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISRAEL SAGREDO,
Defendant-Appellant.
Appeals from the United States District Court
for the Southern District of Texas
(7:04-CR-243-1)
Before BARKSDALE, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM:*
At issue is whether the district court erred in denying Israel
Sagredo’s: motions for judgment of acquittal (JOA) on his
extortion and bribery charges; constitutional challenge to the
bribery statute as applied to his conduct; objections to sentence
enhancements both for being a public official in a high-level
decision-making position and for obstruction of justice; and
challenge to the district court’s promptly sua sponte resentencing
him after the issuance of United States v. Booker, 543 U.S. 220
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
(2005) (holding Sentencing Guidelines advisory rather than
mandatory), including imposing an increased fine after claimed
partial payment of the original fine. AFFIRMED.
I.
The City of Alton, Texas, participates in the Hidalgo County
Urban County Program, established to receive funding from the
Department of Housing and Urban Development (HUD). As part of this
program, the City received financing through a HUD loan for the
construction of a recreation center. Sagredo was the City’s
manager, and this project, along with oversight of the City’s daily
activities, fell under his authority.
While construction of the recreation center was underway, an
undercover FBI Agent, presenting himself as a businessman seeking
to supply furniture and equipment for local government projects,
began investigating possible corruption in Hidalgo County’s process
for awarding government contracts. Through his investigation, the
Agent learned that Sagredo, in exchange for a bribe, would ensure
the Agent would be awarded the contract to supply furnishings for
the recreation center. After several meetings with Sagredo, at
which negotiations over the size of the bid to submit and the
accompanying bribe were discussed, the Agent made two $5,000
payments to Sagredo ($10,000 payment), which were captured on video
inside the Agent’s vehicle.
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At his trial for extortion, in violation of 18 U.S.C. §§ 1951
and 2, and bribery, in violation of 18 U.S.C. § 666(a)(1)(B) and 2,
Sagredo moved for JOA on both counts at the close of the
Government’s case. The motion was denied and was not renewed at
the close of all the evidence. The jury found Sagredo guilty on
each charge.
Approximately four months post-verdict, Sagredo filed:
motions to have the district court reconsider his JOA motions on
the extortion and bribery counts; a motion challenging the bribery
statute as unconstitutional as applied to his conduct; and, under
Blakely v. Washington, 542 U.S. 296 (2004) (holding, pre-Booker,
any fact that increases penalty for a crime beyond prescribed
statutory maximum must be submitted to jury and proved beyond
reasonable doubt), objections to the presentence investigation
report (PSR). His objections to the PSR were to recommended
enhancements for obstruction of justice and for his role as a
public official.
Sagredo was sentenced on 11 January 2005, to, inter alia, 41
months imprisonment and a $75,000 fine. Booker was issued the
following day. Therefore, acting under Federal Rule of Criminal
Procedure 35(a), the district court promptly sua sponte vacated the
sentence and resentenced Sagredo on 20 January 2005 to, inter alia,
72 months imprisonment and a $250,000 fine.
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II.
A.
Because Sagredo failed to renew his JOA motion at the close of
all the evidence, our standard of review is restricted to whether
there has been a “manifest miscarriage of justice”. E.g., United
States v. Shannon, 21 F.3d 77, 83 (5th Cir.) (quoting United States
v. Knezek, 964 F.2d 394, 400 (5th Cir. 1992)), cert. denied, 513
U.S. 901 (1994). Under that standard, Sagredo’s conviction may be
reversed only if the record is “devoid of evidence of guilt or the
evidence [is] so tenuous that a conviction is shocking”. United
States v. Avants, 367 F.3d 433, 449 (5th Cir. 2004). Sagredo fails
to satisfy this strict standard. Moreover, the district court
properly held it lacked jurisdiction to review Sagredo’s belated
post-verdict JOA motion. See FED. R. CRIM. P. 29(c)(1) (allowing
defendant to move for JOA within seven days after guilty verdict).
B.
Sagredo’s belated as-applied challenge to the bribery statute,
based on a claimed insufficient showing of a nexus with federal
funds, is reviewed de novo. See United States v. Phillips, 219
F.3d 404, 409 (5th Cir. 2000). Even assuming this challenge had
been timely, a sufficient nexus exists because Sagredo accepted the
$10,000 payment in exchange for his influence over the distribution
of federal funds. See United States v. Lipscomb, 299 F.3d 303, 312
(5th Cir. 2002).
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C.
1.
Concerning the public-official enhancement, whether a person
is an official holding a high-level decision-making position is
reviewed de novo; questions of how much discretion or supervisory
authority was possessed, for clear error. United States v. Snell,
152 F.3d 345, 346 (5th Cir. 1998). Evidence was presented at trial
that Sagredo was the City’s highest ranking non-elected employee,
orchestrated the pre-bidding process, and used his influence over
the city council to ensure the undercover Agent’s bid was accepted.
The district court’s finding that Sagredo possessed “substantial
influence over the decision-making process” was not clearly
erroneous. See U.S.S.G. § 2C1.1 cmt. n.4(A) (2005).
2.
Factual findings relating to the obstruction-of-justice
enhancement are reviewed for clear error. E.g., United States v.
Harms, 442 F.3d 367, 378 (5th Cir. 2006). This enhancement applies
where a defendant “willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the course
of the ... prosecution” and the obstruction relates to the offense
of conviction. U.S.S.G. § 3C1.1. The non-exhaustive list of
examples in the application notes includes perjury. Id. cmt. n.4.
The district court must make independent findings establishing a
willful obstruction of justice in order to apply this enhancement.
5
United States v. Creech, 408 F.3d 264, 270-71 (5th Cir.), cert.
denied, 126 S. Ct. 777 (2005).
At both the sentencing and resentencing, the district court
found Sagredo had made a material misstatement under oath when he
claimed the $10,000 payment was for a campaign contribution. At
the initial sentencing, the court also noted the jury had likewise
concluded the payment was a bribe, rather than a campaign
contribution. The district court’s findings were not clearly
erroneous.
D.
1.
Whether the district court had jurisdiction to resentence
Sagredo after the issuance of Booker is reviewed de novo. United
States v. Bridges, 116 F.3d 1110, 1112 (5th Cir. 1997). Under
Federal Rule of Criminal Procedure 35(a), a court “may correct a
sentence that resulted from arithmetical, technical, or other clear
error” within seven days after sentencing. Sagredo’s initial
sentence was erroneous because it was based on then-mandatory
guidelines which were overturned by Booker the day after their
application at Sagredo’s 11 January 2005 sentencing. Post-Booker,
Sagredo’s sentence under the then-mandatory Guidelines was
obviously subject to challenge.
Therefore, citing Rule 35(a), the district court vacated the
sentence and resentenced Sagredo on 20 January 2006. The court’s
6
correction of its erroneous sentence by resentencing Sagredo within
seven days of the initial sentencing was permissible under Rule
35(a). See FED. R. CRIM. P. 45(a) (computing time).
2.
Sagredo claims the district court’s resentencing him to a more
severe sentence after he had partially paid the fine initially
imposed constituted double jeopardy and violated the Ex Post Facto
Clause. This claim is reviewed de novo. See United States v.
Gonzales, 40 F.3d 735, 737 (5th Cir. 1994), cert. denied, 514 U.S.
1074 (1995). The parties dispute whether Sagredo partially paid
the fine. Even if he did, however, discretion under Booker
justifies the imposition of a longer or more severe sentence upon
resentencing due to pre-Booker error in applying the then-mandatory
Guidelines. United States v. Reinhart, 442 F.3d 857, 860-61 (5th
Cir.), cert. denied, No. 05-11431, 2006 WL 1591904 (2 Oct. 2006);
see also United States v. Charon, 442 F.3d 881, 892 (5th Cir.)
(application of Booker upon resentencing does not violate Ex Post
Facto Clause), cert. denied, __ S. Ct. __, 2006 WL 2066690 (2 Oct.
2006).
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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