Case: 16-15064 Date Filed: 03/07/2017 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15064
Non-Argument Calendar
________________________
D.C. Docket No. 4:15-cr-00203-WTM-GRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHADWICK L. REESE,
Defendant-Appellant.
________________________
No. 16-15066
Non-Argument Calendar
________________________
D.C. Docket No. 4:15-cr-00203-WTM-GRS-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOEL T. MORRIS,
Defendant-Appellant.
Case: 16-15064 Date Filed: 03/07/2017 Page: 2 of 7
________________________
Appeals from the United States District Court
for the Southern District of Georgia
________________________
(March 7, 2017)
Before HULL, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Chadwick Reese and Joel Morris appeal their respective 84- and 20-month
sentences, both imposed below the guideline range, after they each pleaded guilty
to one count of honest services mail fraud, in violation of 18 U.S.C. § 1341. On
appeal, both Reese and Morris argue that the district court erred in using U.S.S.G.
§ 2C1.1(a) to calculate their guideline ranges, and that even if that was the correct
Guidelines section to use, that they were not “public officials” as that term is used
in § 2C1.1(b)(3). After thorough review, we affirm.
“We review a district court’s interpretation and application of the Sentencing
Guidelines de novo but accept the court’s factual findings unless they are clearly
erroneous.” United States v. Ford, 784 F.3d 1386, 1396 (11th Cir. 2015). In order
to be clearly erroneous, the finding of the district court must leave us with “a
definite and firm conviction that a mistake has been made.” Id.
The Sentencing Guidelines provide that a district court should refer to the
“Statutory Index (Appendix A) [of the Guidelines] to determine the . . . offense
2
Case: 16-15064 Date Filed: 03/07/2017 Page: 3 of 7
guideline, referenced in the Statutory Index for the offense of conviction.”
U.S.S.G. § 1B1.2(a). The Statutory Index provides that the appropriate offense
guideline for an offense under 18 U.S.C. § 1341 is either § 2B1.1 or § 2C1.1.
Where the Statutory Index gives a choice between multiple Guidelines sections,
the district court must “determine which of the referenced guideline sections is
most appropriate for the offense conduct charged in the count of which the
defendant was convicted.” U.S.S.G. § 1B1.2, cmt. n.1.
Section 2C1.1 of the United States Sentencing Guidelines addresses offenses
that involve, among other things, fraud involving the deprivation of the intangible
right to honest services of public officials. U.S.S.G. § 2C1.1. The base offense
level under § 2C1.1 is 12, unless the defendant was a public official, in which case
it is 14. U.S.S.G. § 2C1.1(a). An additional 4 levels shall be added where the
offense involved an elected public official or any public official in a high-level
decision-making position. U.S.S.G. § 2C1.1(b)(3). The application notes state that
“public official” “shall be construed broadly,” and that the term includes:
(A) “Public official” as defined in 18 U.S.C. § 201(a)(1).
(B) A member of a state or local legislature. . . .
(C) An officer or employee or person acting for or on behalf of a state or
local government, or any department, agency, or branch of
government thereof, in any official function, under or by authority of
such department, agency, or branch of government, or a juror in a
state or local trial.
3
Case: 16-15064 Date Filed: 03/07/2017 Page: 4 of 7
(D) Any person who has been selected to be a person described in
subdivisions (A), (B), or (C), either before or after such person has
qualified.
(E) An individual who, although not otherwise covered by subdivisions
(A) through (D): (i) is in a position of public trust with official
responsibility for carrying out a government program or policy; (ii)
acts under color of law or official right; or (iii) participates so
substantially in government operations as to possess de facto authority
to make governmental decisions (e.g., which may include a leader of a
state or local political party who acts in a manner described in this
subdivision).
U.S.S.G. § 2C1.1 cmt. n.1. The commentary for § 2C1.1 provides that the section
will apply to convictions under 18 U.S.C. § 1341 “if the scheme or artifice to
defraud was to deprive another of the intangible right of honest services of a public
official.” U.S.S.G. § 2C1.1 cmt. The section’s commentary also provides
background information regarding § 2C1.1, explaining that the section applies to
offenses prosecuted under 18 U.S.C. § 1341, and that “[s]uch fraud offenses
typically involve an improper use of government influence that harms the
operation of government in a manner similar to bribery offenses.” U.S.S.G. §
2C1.1 cmt. background.
Section 2B1.1 also addresses offenses of fraud and deceit, among other
things. U.S.S.G. § 2B1.1. The § 2B1.1 commentary indicates that it may apply to
convictions under 18 U.S.C. § 1341. U.S.S.G. § 2B1.1 cmt. But it elaborates that
“a state employee who improperly influenced the award of a contract and used the
mails to commit the offense may be prosecuted under 18 U.S.C. § 1341 for fraud
4
Case: 16-15064 Date Filed: 03/07/2017 Page: 5 of 7
involving the deprivation of the intangible right of honest services[,]” and that
“[s]uch a case would be more aptly sentenced pursuant to § 2C1.1.” U.S.S.G. §
2B1.1 cmt. n.16.
Here, the district court did not err in applying § 2C1.1, rather than § 2B1.1 .
The indictment charged Reese and Morris with “devis[ing] and intend[ing] to
devise a scheme and artifice to defraud and deprive the citizens of Chatham
County and the Chatham Area Transit Authority of their right to honest and
faithful services through bribery, kickbacks and the concealment of material
information,” in violation of 18 U.S.C § 1341. The plea agreements provided that
Reese and Morris intended to “defraud and deprive the citizens of Chatham County
and the Chatham Area Transit Authority of their right to honest and faithful
services.” (emphasis added). And, after hearing argument from both sides
regarding whether the Transit Authority was a public entity, the district court
overruled the defendants’ objection and adopted the findings in the PSI, which
stated that the Transit Authority was “a public transportation entity.” Given the
support in the record for this determination, we cannot say that this finding was
clear error.
As we’ve said, the Guidelines’ Statutory Index gave the district court a
choice between § 2C1.1 and § 2B1.1. In addition, the background to § 2C1.1
specifically states that it applies to the kind of “fraud offenses [that] typically
5
Case: 16-15064 Date Filed: 03/07/2017 Page: 6 of 7
involve an improper use of government influence that harms the operation of
government in a manner similar to bribery offenses.” U.S.S.G. § 2C1.1 cmt.
background. Further, the commentary to U.S.S.G. § 2B1.1 explains that “a state
employee who improperly influenced the award of a contract and used the mails to
commit the offense may be prosecuted under 18 U.S.C. § 1341 for fraud involving
the deprivation of the intangible right of honest services[,]” but that “[s]uch a case
would be more aptly sentenced pursuant to § 2C1.1.” U.S.S.G. § 2B1.1 cmt. n.16.
Having found that the Transit Authority was a public entity, the district court did
not err in applying § 2C1.1 instead of § 2B1.1 to the defendants’ sentences.
As for the defendants’ claim that, as employees for the Transit Authority,
they were not “public officials” for purposes of § 2C1.1(a), we disagree. As
discussed above, the district court found that the Transit Authority is a government
entity. And the definition of “public official” found in the Guidelines’ application
notes provides that the term “public official” “shall be construed broadly,” and
includes any “officer or employee or person acting for or on behalf of a state or
local government, or any department, agency, or branch of government thereof, in
any official function, under or by authority of such department, agency, or branch
of government.” U.S.S.G. § 2C1.1 cmt. n.1.
The indictment in this case explained that the Transit Authority was created
by an act of state legislation, to operate a public transit system in Chatham County,
6
Case: 16-15064 Date Filed: 03/07/2017 Page: 7 of 7
and that its yearly revenues included millions of dollars in passenger fares, local
taxes, and federal grants. It detailed that Reese was the Executive Director of the
Transit Authority, and that Morris was the Director of Maintenance. The
indictment and the plea agreements also all provided that Reese and Morris used
their “official positions to enrich themselves by soliciting and accepting cash and
other payments in exchange for rigging the award of [Transit Authority] contracts
to selected individuals and companies.” Similarly, the FBI agent who testified at
both the defendants’ sentencing hearings said that they had used their positions at
the Transit Authority to ensure that a company they selected received a bus
cleaning contract with the Transit Authority, in exchange for monthly payments.
Thus, the defendants admitted, the record supports, and the court found that the
defendants used their “official positions” to enrich themselves.
In light of this record, and the Guidelines’ instruction to construe the
definition of “public official” broadly, the district court did not err in determining
that both Reese and Morris were “public officials” for purposes of § 2C1.1(a). See
U.S.S.G. § 2C1.1 cmt. n.1. Moreover, on the record as a whole, we cannot say that
the district court erred in concluding that § 2C1.1 was the most appropriate
Guidelines section to apply to the defendants’ convictions under 18 U.S.C. § 1341.
AFFIRMED.
7