United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 11, 2007 Decided August 7, 2007
No. 05-3196
UNITED STATES OF AMERICA,
APPELLEE
v.
JEFFREY EDWARDS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 03cr00156-01)
Ketanji B. Jackson, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A.J.
Kramer, Federal Public Defender. Neil H. Jaffee and Tony W.
Miles, Assistant Federal Public Defenders, entered appearances.
Bryan G. Seeley, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Jeffrey A. Taylor, U.S.
Attorney, and Roy W. McLeese, III, Lisa H. Schertler, and James
W. Cooper, Assistant U.S. Attorneys.
Before: SENTELLE, GARLAND, and KAVANAUGH, Circuit
Judges.
2
Opinion for the court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Jeffrey Edwards was a District
of Columbia asbestos inspector who issued a permit to a
contracting company that allowed the company to conduct an
asbestos abatement project. He told the company that he
thought a more costly abatement procedure was required by the
applicable regulations, but that he would permit it to use a less
costly procedure if it paid him $10,000. Unfortunately for
Edwards, the FBI videotaped the transaction, and he was
arrested and then convicted for bribery and extortion. The
district court sentenced Edwards to 33 months in prison.
Edwards now appeals, contending that the court erred in its
application of the United States Sentencing Guidelines. Finding
no error, we affirm the judgment of the district court.
I
Jeffrey Edwards was a senior inspector in the Air Quality
Division of the District of Columbia Department of Health. His
duties included reviewing permit applications submitted by
contractors who intended to demolish structures containing
asbestos. Federal regulations govern this type of demolition
project. See 40 C.F.R. § 61.140 et seq. The regulations
differentiate between asbestos-containing materials that are
“friable” -- meaning “that, when dry, [they] can be crumbled,
pulverized, or reduced to powder by hand pressure” -- and
materials that are “nonfriable.” Id. § 61.141. If a structure
contains a sufficient amount of asbestos-containing material that
is friable (or that could become friable), the regulations require
contractors to follow a specific set of abatement procedures
before they can demolish it. See id. §§ 61.141, 61.145.
Edwards’ job was to inspect structures and to ensure that
contractors’ abatement plans complied with the pertinent
regulations.
3
In 2002, the District of Columbia Department of Public
Works requested bid proposals for the demolition of six
structures at a waste transfer facility. It ultimately awarded the
contract to Keystone Plus Construction. Edwards was
responsible for monitoring the project and approving Keystone’s
demolition plan. Keystone hired Carlos Elizondo, an
environmental consultant, to help prepare the plan. Elizondo’s
services to Keystone included meeting with Edwards to try to
convince him that the asbestos-containing materials in the
structures were nonfriable. This was important to Keystone,
because a friable abatement is more expensive to conduct than
a nonfriable abatement.
On January 27, 2003, Elizondo drove to Edwards’ office for
the meeting. According to Elizondo’s trial testimony, Edwards
insisted on meeting in Elizondo’s car rather than in the office.
The men began discussing the waste facility project, and
Edwards said that he thought the asbestos-containing material at
the site was friable rather than nonfriable. He observed that
“[i]t’s going to be a pretty expensive project if Keystone plans
to do it as a friable project,” predicting that “a full [friable]
containment would . . . cost them a lot of money, about a
hundred thousand dollars” more than a nonfriable containment.
Trial Tr. 34 (Apr. 29, 2004 (AM)). He said, however, that in
exchange for “special considerations,” he could help Keystone
obtain a “waiver” that would allow the company to treat the
material as nonfriable. Id. at 37-38. When Elizondo asked,
“[W]hat type of special considerations are you talking about?,”
Edwards responded “ten,” which Elizondo took to mean
$10,000. Id. at 38.
After the meeting, Elizondo contacted the FBI. Edwards
and Elizondo had another meeting on February 13, 2003, this
time at Elizondo’s office and within view of FBI surveillance
cameras. During the meeting, Elizondo produced $10,000 in
4
pre-recorded FBI funds. Edwards then wrote the word
“approved” on Keystone’s proposal to treat the asbestos-
containing materials at the waste facility as nonfriable, and
Elizondo handed him the money. Edwards also gave Elizondo
a signed asbestos permit, allowing the company to begin
implementing its nonfriable abatement plan. Edwards was
arrested immediately upon leaving Elizondo’s office. After his
arrest, the District permitted Keystone to implement the same
nonfriable abatement plan that Edwards had approved.
On April 10, 2003, a grand jury indicted Edwards on one
count of soliciting and accepting a bribe, in violation of 18
U.S.C. § 201(b)(2), and one count of extortion, in violation of 18
U.S.C. § 1951. A jury found Edwards guilty on both counts on
May 4, 2004.
The district court sentenced Edwards on October 25, 2005.
The parties agreed that the relevant provision of the United
States Sentencing Guidelines was § 2C1.1, entitled “Offering,
Giving, Soliciting, or Receiving a Bribe; Extortion Under Color
of Official Right,” and that under that guideline, Edwards’ base
offense level was 10. See U.S. SENTENCING GUIDELINES
MANUAL § 2C1.1(a) (2003) [U.S.S.G.]. The parties disagreed,
however, on how much the court should increase that offense
level pursuant to § 2C1.1(b)(2)(A), which instructs:
If the value of the payment, the benefit received or to
be received in return for the payment, or the loss to the
government from the offense, whichever is greatest . .
. exceeded $5,000, increase [the defendant’s offense
level] by the number of levels from the table in §2B1.1
. . . corresponding to that amount.
Id. § 2C1.1(b)(2)(A); see § 2B1.1 (table of offense level
increases corresponding to specified dollar losses).
5
The government argued that, in applying § 2C1.1(b)(2)(A),
the court should focus on the value of the benefit to be received
by Keystone in exchange for the $10,000 bribe solicited by
Edwards. In the government’s view, this equaled the difference
between the cost to Keystone of conducting a friable abatement
at the waste facility and the cost of conducting a nonfriable
abatement. It put this difference at $200,000, based on the trial
testimony of another contractor, P.J. Goel, who estimated that
“the difference between doing [the abatement] friable versus
non-friable . . . was roughly $200,000.” Trial Tr. 86 (Apr. 28,
2004 (PM)). This amount corresponded to a 10-level increase
in Edwards’ offense level. See U.S.S.G. § 2B1.1(b)(1).
Edwards countered that the court should only consider the
$10,000 value of the bribe, which would have corresponded to
a 2-level increase. See id.
After hearing argument, the district court noted that “the
defendant himself said that the cost differential would be
roughly $100,000,” and that Goel estimated that the differential
would be more than twice that amount. Sentencing Hr’g Tr. 9-
10 (Oct. 25, 2005). The court concluded that “the
preponderance of the evidence does support at least a $100,000
valuation of the benefit,” id. at 10, which corresponded to an 8-
level increase in Edwards’ offense level, see U.S.S.G. §
2B1.1(b)(1). This yielded a total offense level of 18 and an
advisory Guidelines range (in light of a prior conviction) of 30
to 37 months’ incarceration. See U.S.S.G. ch. 5, pt. A
(sentencing table).1 The court sentenced Edwards to a prison
term of 33 months on each count, to be served concurrently.
1
The district court sentenced Edwards after the Supreme Court’s
decision in United States v. Booker, and followed Booker’s instruction
to treat the Sentencing Guidelines as advisory. See 543 U.S. 220, 245-
46 (2005).
6
II
Edwards raises two challenges to his sentence, one legal and
one factual. First, he argues that the district court erred by
treating the “value of . . . the benefit . . . to be received in return
for the payment,” U.S.S.G. § 2C1.1(b)(2)(A), as the cost
differential between conducting a friable and a nonfriable
abatement. Edwards maintains that, as a matter of law,
Keystone did not benefit by that amount because it would not
have been “legally required to spend that extra sum to conduct
a friable abatement . . . if there had been no bribery solicitation
at all.” Appellant’s Reply Br. 6. Second, he argues that the
district court made a clear factual error when it found that the
cost differential was $100,000.
We review sentencing decisions under a “‘reasonableness’
standard.” United States v. Booker, 543 U.S. 220, 262 (2005);
see also Rita v. United States, 127 S. Ct. 2456, 2459 (2007).
Although Booker rendered the Sentencing Guidelines
“effectively advisory” rather than mandatory, 543 U.S. at 245,
the Sentencing Reform Act “nonetheless requires judges to take
account of the Guidelines together with other sentencing goals”
listed in the statute, id. at 259 (citing 18 U.S.C. § 3553(a)). “A
sentencing court acts unreasonably if it commits legal error in
the process of taking the Guidelines or other factors into
account, or if it fails to consider them at all.” United States v.
Bras, 483 F.3d 103, 106 (D.C. Cir. 2007) (citing United States
v. Simpson, 430 F.3d 1177, 1185-87 (D.C. Cir. 2005); United
States v. Price, 409 F.3d 436, 442-43 (D.C. Cir. 2005)). A
sentencing court also acts unreasonably if the sentence rests on
a finding of fact that is clearly erroneous. See United States v.
Grier, 475 F.3d 556, 570 (3d Cir. 2007); cf. United States v.
Olivares, 473 F.3d 1224, 1229 (D.C. Cir. 2006). With this
standard of review in mind, we consider each of Edwards’
challenges.
7
A
Edwards’ legal challenge turns on the meaning of “value of
. . . the benefit . . . to be received in return for the [bribe].”
U.S.S.G. § 2C1.1(b)(2)(A). He notes that, after his arrest,
“Keystone proceeded to demolish the [structures] using
substantially the same non-friable abatement plan that it had
submitted to Mr. Edwards for review.” Appellant’s Br. 26.
Edwards argues that, because the District eventually permitted
Keystone to implement the less expensive abatement plan that
Edwards had approved in exchange for the bribe, the bribe
“would [not] have resulted in any meaningful ‘benefit’ within
the meaning of § 2C1.1.” Id. And since “there was no ‘benefit’
to Keystone,” id. at 22, Edwards believes that the district court
should have increased his offense level based only on the value
of the $10,000 payment, see id. at 25; see also U.S.S.G. §
2C1.1(b)(2)(A) (providing that the increase in the offense level
is based upon “the value of the payment, the benefit received or
to be received in return for the payment, or the loss to the
government from the offense, whichever is greatest”).
The government does not dispute that Keystone was
lawfully entitled to implement the less-expensive, nonfriable
abatement plan. Indeed, it is part of the outrage of Edwards’
extortionate conduct that he coerced a contractor into paying
him $10,000 for the privilege of doing that which the contractor
could lawfully have done for free. But this does not mean that
Keystone did not receive a “benefit” in exchange for the
payment. In fact, it did: Keystone received the benefit of being
allowed to demolish the structures at substantially less expense
than if it had not made the payment -- because without the bribe,
Edwards would not have approved the cheaper, nonfriable
abatement plan.
8
Edwards concedes that, if the contractor had paid $10,000
for approval of an abatement plan to which it was not lawfully
entitled, the benefit to the contractor would have been the cost
differential between that plan and the more expensive, legally
required plan. See Appellant’s Br. 28 n.9; Appellant’s Reply Br.
2, 6. But he maintains that, because Keystone paid $10,000 to
obtain approval for a less expensive abatement to which it was
lawfully entitled, the value to the contractor was zero. See
Appellant’s Br. 26; Appellant’s Reply Br. 7-8. There is nothing
in the phrase “benefit . . . to be received” that suggests this
difference in treatment. Moreover, nothing explains why a
contractor would pay $10,000 to receive no benefit at all. To the
contrary, Keystone’s $10,000 bribe purchased the benefit of
foregoing the expensive measures associated with a friable
abatement. The fact that Edwards’ bribery scheme was
ultimately unsuccessful, and that Keystone was later permitted
to implement a less expensive, nonfriable abatement plan
without paying $10,000, are of no moment. See United States
v. Chmielewski, 196 F.3d 893, 894-95 (7th Cir. 1999) (holding
that a company that paid an OSHA inspector $2,000 to “wipe
away” a $35,000 fine received a “benefit” of $35,000, even
though the fine was later reduced to $6,000 through a lawfully
negotiated settlement); United States v. Muhammad, 120 F.3d
688, 701 (7th Cir. 1997) (“The mere fact that [a] bribe was not
successful does not prevent [the court] from using the
ascertainable benefit that the bribe intended to influence in order
to enhance [the defendant’s] sentence.”).
Moreover, Edwards’ theory would have an illogical
consequence: it would lead to identical Guidelines offense levels
for extortion schemes of vastly different proportions. On his
theory, a government procurement officer who demanded
$10,000 before permitting an eligible contractor to receive a
contract worth $100,000 in profits would have the same offense
level as an officer who insisted on the same payoff for
9
approving a contract worth $100,000,000 in profits. In each
case, Edwards would rate the “benefit to be received” as zero
and increase the base offense level by the value of the (identical)
bribe. See Oral Arg. Recording at 14:00. But this cannot be.
“[T]he purpose of § 2C1.1 . . . is to measure the true harm from
the crime,” Muhammad, 120 F.3d at 701, and to assign harsher
sentences to defendants who participate in more harmful crimes,
see U.S.S.G. § 2C1.1 cmt. background (“[F]or deterrence
purposes, the punishment should be commensurate with the gain
to the payer or the recipient of the bribe, whichever is higher.”).
It would defy this purpose to assign identical Guidelines ranges
in the two extortion schemes outlined above, notwithstanding
that the threatened loss in one is 1,000-times greater than in the
other.
Although no defendant has previously advanced Edwards’
theory in this circuit, a defendant did make a similar argument
in the Eighth Circuit. The defendant in United States v. Hang
was a public housing official who told people on a waiting list
for public housing “that they would have to pay him money in
order to obtain federally subsidized housing.” 75 F.3d 1275,
1278 (8th Cir. 1996). The district court found that “the benefit
received by [the] victims in return for their payments” to the
official was the difference between the “fair rental value” of the
housing they received and the rent they actually paid under the
federal subsidy program. Id. at 1284. The defendant objected
(as Edwards objects here) on the ground that “each of the
victims was otherwise eligible for public housing.” Id. But the
court of appeals rejected that argument, noting that the official
had told the victims that they would not get the housing if they
did not pay him the bribes. See id.
Finally, Edwards argues that, “even if the government’s
analysis [of the meaning of “benefit”] is proper, its argument
clearly rests on a factual assumption that the record does not
10
support” -- that “Edwards was the final authority on the
abatement matter,” and that Keystone could not have appealed
his corrupt friability determination to his supervisor.
Appellant’s Reply Br. 9. In truth, there are two assumptions
here: the government’s “factual assumption” and Edwards’ own
legal assumption that it matters whether he actually had -- as he
suggested to Keystone -- final authority to require the more
costly containment. See Government’s Supplemental Mem. in
Aid of Sentencing at 4 (citing a tape-recorded conversation
between Elizondo and Edwards, in which, after Elizondo said
that he might appeal Edwards’ friability determination, Edwards
said, “I issue the waiver” (emphasis added)).
We are not so sure that Edwards’ legal assumption is
correct. Why, after all, should a good bluffer receive a lower
sentence simply because he does not actually hold all the cards?
We need not ponder that cosmic question, however, because the
only evidence in this case is that Edwards did indeed hold all the
cards -- thus validating the government’s “factual assumption.”
Edwards’ supervisor, Leela Sreenivas, testified that she relied
“completely” on her inspectors’ recommendations regarding
asbestos abatements and had never overruled an inspector’s
technical review. Trial Tr. 42 (Apr. 27, 2004). She also said
that “[a]ll the responsibility” for the abatement project at the
waste facility “was assigned to Jeffrey Edwards.” Id. at 62.
This evidence is more than sufficient for a finding that Edwards
had the ultimate authority to determine whether a friable
abatement was necessary.
In sum, the district court committed no error, legal or
otherwise, in concluding that Keystone received a valuable
“benefit,” within the meaning of Guideline § 2C1.1(b)(2)(A),
from the bribe extorted by Edwards. We therefore reject the
defendant’s first challenge to his sentence.
11
B
Edwards’ second challenge targets the district court’s
factual finding that a friable abatement would have cost at least
$100,000 more than a nonfriable abatement. We review this
finding only for clear error. The relevant commentary to the
loss table referenced in § 2C1.1(b)(2)(A) instructs that “[t]he
court need only make a reasonable estimate of the loss,” and
that, because “[t]he sentencing judge is in a unique position to
assess the evidence and estimate the loss based upon that
evidence[,] . . . the court’s loss determination is entitled to
appropriate deference.” U.S.S.G. § 2B1.1 cmt. n.3(C).
In making its finding, the district court considered the only
two pieces of evidence in the record: Elizondo’s testimony, at
trial, that Edwards had told him the additional cost of a friable
abatement would be about $100,000, see Trial Tr. 34 (Apr. 29,
2004 (AM)); and the trial testimony of P.J. Goel, another
contractor who had bid on the job at the waste transfer facility,
that “the difference between doing [the abatement] friable versus
non-friable . . . was roughly $200,000,” Trial Tr. 86 (Apr. 28,
2004 (PM)). After noting that there were reasons to discount
Goel’s estimate somewhat, the court concluded that “the
preponderance of the evidence does support at least a $100,000
valuation of the benefit.” Sentencing Hr’g Tr. 10; see U.S.S.G.
§ 6A1.3 cmt. (providing that the “use of a preponderance of the
evidence standard is appropriate . . . in resolving disputes
regarding application of the guidelines to the facts of a case”);
Bras, 483 F.3d at 107-08 (confirming that the preponderance of
the evidence standard remains applicable post-Booker). Indeed,
the $100,000 and $200,000 figures represented not just the
“preponderance” of the evidence, but the only evidence before
the court.
12
Edwards raises two challenges to the district court’s
consideration of this evidence. First, he suggests that the court
should not have relied on the $100,000 figure as a basis for
valuing the benefit because it represented “an alleged
extortionist’s less-than-credible effort to encourage payment.”
Appellant’s Br. 29. It is hard to sympathize with this
suggestion, since the extortionist referred to is Edwards himself.
Notwithstanding Edwards’ attack on his own credibility, we do
not think it was error for the district court to consider the
defendant’s own estimate of the cost differential. Cf. FED. R.
EVID. 801(d)(2) (providing that an out-of-court admission by a
party is not hearsay).
Second, Edwards contends that the court should not have
relied on either of the two cost figures because “it is clear
beyond cavil that neither was admitted for the truth.”
Appellant’s Br. 32. The trial transcript, however, does not
indicate that the testimony was admitted on a limited basis. In
any event, there is no need either to cavil or to quibble, since a
sentencing judge “may appropriately conduct an inquiry . . .
largely unlimited either to the kind of information he may
consider, or the source from which it may come.” Bras, 483
F.3d at 108 (internal quotation marks omitted); see U.S.S.G. §
6A1.3. (“[T]he court may consider relevant information without
regard to its admissibility under the rules of evidence applicable
at trial, provided that the information has sufficient indicia of
reliability to support its probable accuracy.”).
Edwards is certainly correct in suggesting that he had little
incentive to challenge the veracity of the two estimates at trial,
since the cost of the abatement was not relevant to his
culpability. But he is wrong in maintaining that he “was
deprived of a fair opportunity to test the reliability of the friable-
abatement cost figures upon which the court’s guideline analysis
was based.” Appellant’s Reply Br. 2. Edwards does not
13
contend that the district court barred him from presenting his
own cost evidence (or from calling the government’s trial
witnesses for cross-examination) at the sentencing hearing.
Although a footnote in Edwards’ sentencing memorandum did
request an evidentiary hearing, see Def.’s Mem. in Aid of
Sentencing 14 n.10, Edwards did not renew that request or offer
any such evidence when the court expressly invited him to do so
at the sentencing hearing, see Sentencing Hr’g Tr. 4-5.
Edwards’ appellate brief quotes the prior footnote (without
elaboration) in a footnote of its own. Appellant’s Br. 32 n.12.
But if that footnote-in-a-footnote was intended to raise the issue
on appeal, it is plainly insufficient to do so. See Covad
Commc’ns Co. v. FCC, 450 F.3d 528, 546 (D.C. Cir. 2006)
(citing Sugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d
89, 93 n.3 (D.C. Cir. 2002); Hutchins v. District of Columbia,
188 F.3d 531, 539 n.3 (D.C. Cir. 1999)).
III
For the foregoing reasons, the judgment of the district court
is
Affirmed.