February 2, 1993 UNITED STATES COURT OF APPEALS For The First Circuit
No. 92-1491
UNITED STATES OF AMERICA, Appellee,
v.
ABEL A. MARIANO, JR., Defendant, Appellant.
No. 92-1630
BARRY BUTTERWORTH, Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
Richard J. Shea, with whom Edward C. Roy was on brief, for
appellant Abel A. Mariano, Jr. Richard A. Gonnella for appellant Barry Butterworth.
Edwin J. Gale, Assistant United States Attorney, with whom
Lincoln C. Almond, United States Attorney, and Margaret E.
Curran, Assistant United States Attorney, were on brief, for
appellee.
February 2, 1993
SELYA, Circuit Judge. These consolidated appeals SELYA, Circuit Judge.
challenge determinations made by the district court under the
federal sentencing guidelines. Concluding, as we do, that the
court misconstrued its authority to depart from a predetermined
sentencing range in consequence of a defendant's substantial
assistance, U.S.S.G. 5K1.1 (Nov. 1991), we remand for
resentencing.
I. BACKGROUND
The instant appeals find their genesis in the polluted
political purlieus of Pawtucket, Rhode Island. See, e.g., United
States v. Sarault, 975 F.2d 17 (1st Cir. 1992) (affirming
racketeering sentence with respect to Pawtucket's mayor). The
appellants, Abel A. Mariano, Jr. and Barry Butterworth, secured
lucrative municipal contracts and, in the course of performing
the jobs, lubricated the wheels of city government by paying
under-the-table cash stipends to insistent municipal officials.
Mariano made periodic payments (perhaps totalling as much as
$50,000) to forestall the reassignment of sewer-line repair work
to another contractor. Butterworth decided to play ball as part
of his effort to retain generous contracts for the renovation of
McCoy Stadium. In all, Butterworth made a series of payments to
the ringleaders in an aggregate amount exceeding $100,000.
Appellants' payments took place over a substantial span
of time. It was only after the authorities started to uncover
pervasive corruption in the Sarault administration that
appellants began cooperating with the U.S. Attorney. In the
aftermath of this cooperative effort, the government, rather than
seeking indictments, prepared informations charging the two men
with violating 18 U.S.C. 666(a)(2) (1988).1 The defendants
pled guilty pursuant to plea agreements providing in relevant
part that the government would pursue a reduction in the offense
level based on the defendants' assistance to law enforcement
agencies.
Mariano and Butterworth were charged and sentenced
separately. In each instance, the prosecution described the
defendant's cooperation and argued for a six-level downward
departure pursuant to U.S.S.G. 5K1.1. The district court
refused to depart and sentenced each defendant to a twenty-seven
month prison term an incarcerative sentence at the top end of
the guideline sentencing range (GSR). The government moved for
reconsideration. In explaining his refusal to reconsider, the
district judge, referring to and quoting from United States v.
Aguilar-Pena, 887 F.2d 347 (1st Cir. 1989), stated that he did
not have discretion to depart.
In these appeals,2 appellants claim in unison that the
1The statute of conviction criminalizes "corruptly giv[ing] . . . anything of value to any person, with intent to influence or reward an agent of . . . local . . . government, or any agency thereof, in connection with any business, transaction, or series of transactions . . . involving [$5000 or more]," so long as the governmental unit in question receives substantial federal subsidies. 18 U.S.C. 666(a)(2).
2Although the plea agreements contain provisions by virtue of which the defendants ostensibly waived their rights of appeal, the government has conceded that, in the circumstances of these cases, the waiver provisions are impuissant. We accept this concession uncritically. Hence, we take no view of either the
district court erred in establishing the base offense level (and,
hence, in fixing the GSR), that the court misapprehended the
legal standard governing departures under section 5K1.1, and that
their sentences were "plainly unreasonable" in derogation of 18
U.S.C. 3742(a)(4) (1988). In addition, Mariano contends that
the district court labored under fundamental factual
misconceptions and violated the Due Process Clause by focusing
exclusively on deterrence concerns to the detriment of an
individualized sentence. Not to be outdone, Butterworth contends
that the government breached the plea agreement by failing to
argue enthusiastically enough in support of a downward departure.
We concentrate initially on appellants' flagship claim
the assertion that the court below misapprehended the
controlling legal standard, thus mismeasuring the limits of the
discretion entrusted to it under section 5K1.1. We take this
tack because, if this claim pans out, most of appellants' other
asseverations need not be considered.
II. THE COURT'S AUTHORITY TO DEPART
We begin our discussion of the court's authority to
depart by pondering a jurisdictional quandary. That quandary
resolved, we then address the merits of appellants' claim.
A. Appellate Jurisdiction.
Ordinarily, an appeal will not lie from a district
court's refusal to depart from a properly calculated sentencing
enforceability vel non of such waivers or the safeguards which
must be employed in respect thereto.
range. See United States v. Tardiff, 969 F.2d 1283, 1290 (1st
Cir. 1992); United States v. Romolo, 937 F.2d 20, 22 (1st Cir.
1991) (collecting cases). However, appellate jurisdiction may
attach when it appears that the failure to depart stemmed from
the sentencing court's mistaken impression that it lacked the
legal authority to depart or, relatedly, from the court's
misapprehension of the rules governing departure. See United
States v. Amparo, 961 F.2d 288, 292 (1st Cir.), cert. denied, 113
S. Ct. 224 (1992); United States v. Lauzon, 938 F.2d 326, 330
(1st Cir.), cert. denied, 112 S. Ct. 450 (1991); Romolo, 937 F.2d
at 22. Although this paradigm is dictated by the Sentencing
Reform Act, see Romolo, 937 F.2d at 23 (discussing operation of
18 U.S.C. 3742(a)), it also works well from a practical
standpoint: in respect to declinations to depart, the limited
appellate review that is available serves to correct errors which
are essentially "legal" in nature, but does not brook
interference with a sentencing court's exercise of factfinding
functions or discretion. See Amparo, 961 F.2d at 292; see also
Romolo, 937 F.2d at 23.
These appeals fit snugly within the contours of the
exception permitting appellate review. The gravamen of
appellants' complaint is their colorable claim3 that the
3In what it terms "the rarest of all cases," the government, which has a duty to see that justice is done, Berger v. United
States, 295 U.S. 78, 88 (1935), argues that the defendants'
assignment of legal error is on the mark. While such unanimity of purpose might raise jurisdictional concerns in a civil case, see Muskrat v. United States, 219 U.S. 346, 361 (1911)
(explaining adversity requirement); see also Moore v. Charlotte-
district court confused the legal standard governing departures
under U.S.S.G. 5K1.1 with the legal standard governing
departures under a markedly different guideline, U.S.S.G.
5K2.0. This claim presents a question of law, not of fact,
comfortably within our assigned purview. We hold, therefore,
that we have jurisdiction over these appeals.
B. The Distinction Between Departure Modalities.
We turn next to the merits of the claim. Because the
assignment of error involves the parameters of a district judge's
departure authority, we afford plenary review. See Lauzon, 938
F.2d at 330; cf. United States v. Diaz-Villafane, 874 F.2d 43, 49
(1st Cir.) (holding that de novo review is warranted when the
court of appeals is called upon to determine "whether or not
circumstances are of a kind or degree that may appropriately be
relied upon to justify departure" under section 5K2.0), cert.
denied, 493 U.S. 862 (1989).
The district judge explicitly interpreted our decision
in United States v. Aguilar-Pena, 887 F.2d 347 (1st Cir. 1989),
as restricting his ability to depart downward in these cases.
Aguilar-Pena, however, involved a district court's decision to
Mecklenburg Bd. of Educ., 402 U.S. 47, 48 (1971) (per curiam)
(finding no case or controversy where "both litigants desire precisely the same result"), criminal cases are a breed apart. When the government confesses error in a criminal proceeding, appellate courts routinely continue to exercise previously acquired jurisdiction. See, e.g., Mariscal v. United States, 449
U.S. 405 (1981) (per curiam); Young v. United States, 315 U.S.
257, 258-59 (1942); see also United States v. Udo, 963 F.2d 1318,
1319 (9th Cir. 1992) (reviewing a failure to depart pursuant to 5K1.1 in circumstances analogous to those presented in this case).
depart under section 5K2.0.4 See id. at 349-53. Under section
5K2.0, a district court is empowered to depart from the GSR if
there "exists an aggravating or mitigating circumstance of a
kind, or to a degree, not adequately taken into consideration by
the Sentencing Commission." U.S.S.G. 5K2.0 (quoting 18 U.S.C.
3553(b)). Noting that "the birth of the Sentencing Commission
was to some extent reflective of Congress's ardent desire to
dispense with inequalities based on localized sentencing
responses," Aguilar-Pena, 887 F.2d at 352, we held that the
district court's authority to depart under section 5K2.0 was
restricted to those few instances where there is "something
'special' about a given offender, or the accouterments of the
crime committed, which distinguishes the case from the mine-run
for that offense." Id. at 350. In other words, Aguilar-Pena
reflected this court's staunch belief that section 5K2.0 operates
as a safety valve to be employed at the discretion of the
district judge on those infrequent occasions when some important,
atypical factor, not duly considered by the Sentencing
Commission, removes a particular case from "the heartland for a
given offense." Id. at 351.
U.S.S.G. 5K1.1 is a different provision with a
different raison d'etre. Congress specifically directed the
Sentencing Commission to
4Aguilar-Pena flowed naturally from, and relied upon, our
opinion in United States v. Diaz-Villafane. See, e.g., Aguilar-
Pena, 887 F.2d at 349-50 (citing and quoting Diaz-Villafane, 874
F.2d at 49-52). Like Aguilar-Pena, Diaz-Villafane involved a
departure under U.S.S.G. 5K2.0.
assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed . . . to take into account a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense. 28 U.S.C. 994(n) (1988). Section 5K1.1 sprouted from this
statutory seed. It provides, inter alia, that:
Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.
U.S.S.G. 5K1.1. This guideline serves a dual purpose. In
addition to permitting ex post tailoring of defendants' sentences
to reflect meaningful assistance rendered between the dates of
apprehension and sentencing, it provides defendants, ex ante,
with an incentive to cooperate in the administration of justice.
See, e.g., United States v. Damer, 910 F.2d 1239, 1241 (5th Cir.)
(per curiam), cert. denied, 111 S. Ct. 535 (1990).
The methodological contrast between the two departure
modalities is glaring. Because section 5K2.0 in a sense operates
to promote disparity, the Sentencing Commission strove to
minimize the number of times it would be invoked. But, because
section 5K1.1 operates in part as an incentive, promoting
cooperation with law enforcement agencies, the Sentencing
Commission strove to maximize the number of times it would be
invoked.5 These divergent purposes, coupled with the
5Available statistics reflect the Commission's success in achieving this differential. Of 31,785 dispositions reported in 1991, 11.9 percent involved substantial assistance departures
significant linguistic differences between the two guidelines,
clearly indicate that the legal standard for departures under
section 5K2.0 cannot be transplanted into the substantial
assistance sphere. The district court, therefore, erred in its
stated reliance on Aguilar-Pena.
C. The Standard for Substantial Assistance Departures.
In order to determine whether the court's error was
harmless, we must explore the dimensions of the legal standard
that the district court should have used. We have not yet had
occasion to discuss the way in which departure decisions ought to
be made under U.S.S.G. 5K1.1. We do so today.
1. Discretion. We begin with bedrock. 1. Discretion.
Notwithstanding that a government motion is a sine qua non to a
departure for a defendant's substantial assistance, see Wade v.
United States, 112 S. Ct. 1840, 1843 (1992), the decision whether
to depart after the government has made such a motion, like the
related decision as to the extent of any resultant departure,
falls squarely within the district court's domain. The district
court is not obligated to depart downward simply because a
grateful prosecutor prefers a lighter sentence. See United
States v. Spiropoulos, 976 F.2d 155, 162 (3d Cir. 1992); United
States v. Ah-Kai, 951 F.2d 490, 494 (2d Cir. 1991); United States
v. Munoz, 946 F.2d 729, 730 (10th Cir. 1991); United States v.
Carnes, 945 F.2d 1013, 1014 (8th Cir. 1991); United States v.
whereas only 7.5 percent involved all other departures combined. See 1991 United States Sentencing Commission Ann. Rep. at 133-35.
Richardson, 939 F.2d 135, 139 (4th Cir.), cert. denied, 112 S.
Ct. 599 (1991), 112 S. Ct. 942 (1992); United States v. Keene,
933 F.2d 711, 715 (9th Cir. 1991); Damer, 910 F.2d at 1241;
United States v. Pippin, 903 F.2d 1478, 1485 (11th Cir. 1990).
Put bluntly, while a government motion is a necessary
precondition to a downward departure based on a defendant's
substantial assistance, the docketing of such a motion does not
bind a sentencing court to abdicate its responsibility, stifle
its independent judgment, or comply blindly with the prosecutor's
wishes.
The government, seeking a more prominent role in the
decisionmaking process, points out the Commission's advice that
"[s]ubstantial weight should be given to the government's
evaluation of the extent of the defendant's assistance,
particularly where the extent and value of the assistance are
difficult to ascertain." U.S.S.G. 5K1.1, comment. (n.3). But,
this advice, although sound, was never intended to rein in the
district court's discretion concerning the need for, and extent
of, a downward departure once a government motion is on the
table. See United States v. Castellanos, 904 F.2d 1490, 1497
(11th Cir. 1990). Rather, Application Note 3 sets forth the
suggested degree of deference that should be afforded to the
prosecution's assessment of the facts surrounding a defendant's
assistance and intimates that, particularly in difficult cases,
the sentencing court ought not to "inquire too intrusively into
the government's file" on this delicate subject. Spiropoulos,
976 F.2d at 163 n.5; see also Keene, 933 F.2d at 714 (observing
that the "prosecutor is in the best position to know whether the
defendant's cooperation has been helpful"). When all is said and
done, it remains the district judge's decision not the
prosecutor's whether to depart, and if so, to what degree.
2. Relevant Factors. Although the district court's 2. Relevant Factors.
discretion in passing upon a section 5K1.1 motion is wide, it is
not unbridled. The guideline itself provides that:
The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following: (1) the court's evaluation of the significance and usefulness of the defendant's assistance, taking into consideration the government's evaluation of the assistance rendered; (2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant; (3) the nature and extent of the defendant's assistance; (4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance; (5) the timeliness of the defendant's assistance.
U.S.S.G. 5K1.1. While the Commission's list is representative
rather than exclusive, the five enumerated factors should be
considered the mother lode of substantial assistance inquiries.
A district court, faced with a section 5K1.1 motion, must at a
bare minimum indicate its cognizance of these factors. In the
typical case the court would also do well to make specific
findings regarding each item.
The open-ended nature of the statutory list does not
mean that a district court may consider any datum it pleases when
passing upon a section 5K1.1 motion. As a basis for departing, a
court may consider mitigating factors only to the extent that
they can fairly be said to touch upon the degree, efficacy,
timeliness, and circumstances of a defendant's cooperation.6
See United States v. Chestna, 962 F.2d 103, 106-07 (1st Cir.)
(per curiam), cert. denied, 113 S. Ct. 334 (1992); United States
v. Thomas, 930 F.2d 526, 528-29 (7th Cir.), cert. denied, 112 S.
Ct. 171 (1991). After all, the substantial assistance provision
is not to be used as a mechanism for short-circuiting other, more
restrictive provisions of the sentencing guidelines. See United
States v. Hall, 977 F.2d 861, 865 (4th Cir. 1992).7
A somewhat different situation obtains in respect to
the factors that a court may consider as a means to remain
within, or incrementally closer to, the GSR. Since the
sentencing range itself is an expression of Congress's will, a
district court retains broad discretion to exhume factors
unrelated to substantial assistance before burying the GSR. See,
e.g., United States v. Mittelstadt, 969 F.2d 335, 336-37 (7th
6The narrowing effect of this circumscription should not be exaggerated. The factors that legitimately relate to a defendant's cooperation may be many and varied. See U.S.S.G.
5K1.1, comment. (backg'd) ("The nature, extent, and significance of assistance can involve a broad spectrum of conduct that must be evaluated by the court on an individual basis.").
7As this logic makes clear, the government and the appellants are incorrect in suggesting here that a district court is obliged to consider factors such as proportionality when
deciding whether, or how much, to depart under section 5K1.1. See United States v. Kohl, 972 F.2d 294, 299 (9th Cir. 1992);
Richardson, 939 F.2d at 139.
Cir. 1992) (ruling that the district court did not abuse its
discretion in considering defendant's chronic alcoholism on a
section 5K1.1 motion); Carnes, 945 F.2d at 1014 (holding that the
benefit a defendant received from the prosecution's decision not
to press an additional charge was a permissible ground for
limiting the extent of a downward departure). Even if the five
factors enumerated in section 5K1.1 weigh in a defendant's favor,
the district court may, on the basis of other considerations, not
constitutionally proscribed, cf., e.g., Wade, 112 S. Ct. at 1843-
44; United States v. Drown, 942 F.2d 55, 60 (1st Cir. 1991),
decide to forgo or curtail a downward departure for substantial
assistance.
In sum, the limitations on the variety of
considerations that a court may mull in withholding or curtailing
a substantial assistance departure are not nearly so stringent as
those which pertain when a court in fact departs downward. This
seeming paradox is neither unusual nor unsettling; indeed, it is
this very quality of unequal centrifugal and centripetal forces
that helps distinguish discretionary departure provisions like
section 5K1.1 from the sentencing guidelines' array of mandatory
adjustment provisions like U.S.S.G. 3E1.1 (adjustment for
acceptance of responsibility) and U.S.S.G. 3B1.1, 3B1.2
(adjustment for aggravating or mitigating role in the offense).
3. Weighing the Factors. Once the government files a 3. Weighing the Factors.
section 5K1.1 motion, weighing the relevant factors in order to
decide whether to depart (and if so, by how much) is something
best done by the sentencing court. United States v. Atkinson,
F.2d , (7th Cir. 1992) [1992 U.S. App. LEXIS 30082 at
*22-25]; Thomas, 930 F.2d at 531. In the section 5K1.1 milieu,
as elsewhere, the court of appeals will, to the extent of its
jurisdiction, review discretionary decisions only for abuse of
discretion; and we will review the extent of a departure based on
an acceptable set of factors only to ensure reasonableness. See
Diaz-Villafane, 874 F.2d at 49.
D. Summing Up.
We rule today that the legal standard for departure is
materially different under U.S.S.G. 5K1.1 than under U.S.S.G.
5K2.0. A district court confronted with a government motion for
departure pursuant to section 5K1.1 must consider the factors
specifically enumerated in that guideline as well as other
factors which in the court's judgment bear on the decision. In
so doing, however, the court must recognize that mitigating
concerns are relevant only insofar as they relate to a
defendant's substantial assistance. In all events, the district
court retains wide discretion concerning whether to depart under
section 5K1.1; and, if it decides that a departure is warranted,
it also possesses appreciable discretion in fixing the extent of
the departure.
In these cases, the district court premised its
decision not to depart on a legal standard designed to hold
departures to a minimum a standard that has no relevance in
respect to substantial assistance departures. And, although many
of the integers that enter into the section 5K2.0 calculus can be
considered for certain purposes under section 5K1.1, we are
unable confidently to say on this record that the judge's error
was harmless. Thus, we remand to the district court with
instructions to vacate appellants' sentences and conduct new
sentencing hearings. We see no need to require that a different
judge preside over the resumed proceedings. Cf., e.g., United
States v. Diaz-Bastardo, 929 F.2d 798, 800-01 (1st Cir. 1991).
III. THE COURT'S CHOICE OF AN ANALOGOUS GUIDELINE
Given the fact that new sentencing hearings will be
held, we decline, with one exception, to address appellants'
other challenges to the proceedings below.8 The exception
relates to appellants' assertion that the district court,
confronted by a lacuna in the guidelines, failed properly to
select the most analogous guideline as a starting point for
computing the GSR. We treat with this assertion because we can
envision no circumstances in which a choice of this nature will
not face the district court on remand.
We set the stage. The Sentencing Commission has yet to
promulgate an offense guideline covering the offense of
conviction in these cases, i.e., the making of illicit payments
to a municipal official in violation of 18 U.S.C. 666(a)(2).
In such circumstances, U.S.S.G. 2X5.1 directs the district
8Because we do not reach appellants' "reasonableness" argument, we take no view of the suitability vel non of the
sentences originally imposed.
court to "apply the most analogous offense guideline" unless no
"sufficiently analogous guideline" can be found.9 Appellants
urged that U.S.S.G. 2C1.2 (dealing in part with the giving of a
gratuity to a public official) provided the best basis for a
comparison. The district court rejected this exhortation and
found U.S.S.G. 2C1.1 (dealing with bribery of, and extortion
by, public officials) to be the most analogous guideline.
We discern no error in this determination. Before
explaining our reasoning, however, we first address the
appropriate standard of appellate review.
A. Standard of Review.
An appellate tribunal must "give due deference to the
district court's application of the guidelines to the facts." 18
U.S.C. 3742(e) (1988). We have interpreted this statute as
requiring, in most instances, that the court of appeals review a
trial court's application of a sentencing guideline to the facts
only for clear error. See, e.g., United States v. Ruiz, 905 F.2d
499, 507 (1st Cir. 1990); United States v. Wright, 873 F.2d 437,
444 (1st Cir. 1989). The propriety of using the clearly
erroneous standard in scrutinizing a sentencing court's
9In the court below, appellants argued that a particular offense guideline, U.S.S.G. 2C1.2, was a better fit than U.S.S.G. 2C1.1 (the offense guideline deemed most comparable by the district judge). On appeal, Butterworth attempts for the first time to raise the different issue of whether any
sufficiently analogous guideline exists. This issue has not been properly preserved for appellate review. See United States v.
Slade, F.2d , (1st Cir. 1992) [No. 92-1176, slip op.
at 6] (reiterating the established rule that points not argued in the district court cannot be raised for the first time on appeal).
application of law to fact will depend largely on whether the
question presented is essentially factual or essentially legal;
the more fact-dominated the question, the more likely it is that
clear-error review will be appropriate. See United States v.
Ortiz, 878 F.2d 125, 126-27 (3d Cir. 1989); United States v.
Daughtrey, 874 F.2d 213, 217-18 (4th Cir. 1989); see also Roland
M. v. Concord School Comm., 910 F.2d 983, 990-91 (1st Cir. 1990)
(discussing desirability of clear-error review in instances where
a district court must find the facts and then make an evaluative
judgment, applying a defined legal standard to the facts), cert.
denied, 111 S. Ct. 1122 (1991).
In these cases, a series of factors suggests that the
contested issue lies closer to the fact-intensive end of the
continuum: there is no indication that the district court
misunderstood the choices presented under the guidelines; there
is no articulation of a dispute concerning the reach of the
provisions proffered as suitable analogs; and there is no
necessity for us, in resolving the controversy, to determine the
far broader (and essentially legal) question of whether a
particular offense guideline will always be most analogous to 18
U.S.C. 666(a)(2). Simply stated, the issue before the district
court was whether appellants' actions in "corruptly giv[ing]"
payoffs to municipal officials "with intent to influence or
reward" those officials in connection with city contracts, 18
U.S.C. 666(a)(2), were more akin to providing a gratuity,
U.S.S.G. 2C1.2, than to passing a bribe, U.S.S.G. 2C1.1.
This issue is essentially factual. It required the court, in
effect, to find the facts pertaining to the offenses of
conviction and make evaluative judgments concerning those facts
(including a judgment as to whether appellants' payments were
intended to "influence," rather than "reward," city officials).
Accordingly, we apply the clearly erroneous standard of
review.10
B. The Appropriate Analogy.
The essential difference between a bribe and an illegal
gratuity is the intention of the bribe-giver to effect a quid pro
quo. See United States v. Muldoon, 931 F.2d 282, 287 (4th Cir.
1991). Hence, a bribery guideline, section 2C1.1, applies when a
transfer of money has "a corrupt purpose, such as inducing a
public official to participate in a fraud or to influence his
official actions." U.S.S.G. 2C1.1, comment. (backg'd). The
gratuity provision, on the other hand, does not include a corrupt
purpose as an element of the offense. See U.S.S.G. 2C1.2,
comment. (backg'd).
10In the event no sufficiently analogous guideline exists, the sentencing court must resort to the general principles adumbrated in 18 U.S.C. 3553(b) (1988) (providing that, in the absence of an offense guideline, the court shall impose an "appropriate" sentence, having due regard for, inter alia, the
gravity of the offense; the need for punishment, deterrence, retraining, and the like; and "the relationship of the sentence imposed to sentences prescribed by [other] guidelines . . . and the applicable policy statements of the Sentencing Commission"). Because that scenario has no bearing here, see supra note 9, we
find inapposite the standard of review limned in United States v.
Gabay, 923 F.2d 1536, 1545 (11th Cir. 1991) (employing de novo
review where defendant contended that no sufficiently analogous guideline existed).
This distinction between the two offense guidelines is
brought into bold relief by the differences between the statutes
to which the guidelines relate. The bribery guideline applies,
for example, to the offense of "corruptly giv[ing] . . . anything
of value" to a federal official with the intent of "influenc[ing]
any official act" or "inducing" the official to violate his or
her lawful duty. 18 U.S.C. 201(b)(1) (1988). This seems
virtually to mirror the statute of conviction here, which, among
other things, criminalizes "corruptly giv[ing] . . . anything of
value to any person, with intent to influence" a decision of
state or local government. 18 U.S.C. 666(a)(2). The common
thread that runs through both statutes is the intent of the
payer, by the greasing of palms, to affect the future actions of
a public official. In contrast, the gratuity guideline refers to
crimes of a somewhat different genre. It applies, for example,
to persons who give things of value to federal officers "for or
because of any official act performed or to be performed by such
public official." 18 U.S.C. 201(c)(1)(A) (1988). Notably,
under the gratuity guideline, there is no requirement that the
gift be "corruptly" given with the intent to affect the payee's
mindset or actions. Phrased another way, the gratuity guideline
presumes a situation in which the offender gives the gift without
attaching any strings, intending it instead as a reward for
actions the public official has already taken or is already
committed to take.
With these distinctions in mind, appellants' contention
is easily dispelled. Here, Mariano admitted that he paid large
sums of money in order to forestall city officials from
reassigning the work. Butterworth likewise admitted that he
forked over $100,000 so that he could retain valuable contracts
which Pawtucket might otherwise have redirected to a competitor.
Since Mariano and Butterworth each sought to receive a quid pro
quo, in the form of future (favorable) treatment, and since the
offenses to which they pleaded guilty involved corrupt intent,
the district court's determination that their actions were more
akin to bribe-giving than to gift-giving was not clearly
erroneous.
To be sure, appellants protest that they were victims,
not perpetrators, of an extortionate scheme, and that they
received nothing extra in return for their magnanimity. We are
unmoved by these plaints. The fact that appellants, in some
sense, may have been the quarry of a pack of venal politicians,
and did not themselves initiate the forbidden transactions, does
not negate the district court's choice of a guideline analogy.
Bribery and extortion are not mutually exclusive concepts. See,
e.g., United States v. Hathaway, 534 F.2d 386, 395 (1st Cir.),
cert. denied, 429 U.S. 819 (1976). And the fact that appellants
had already received sewer-line and stadium repair contracts at
payoff time is also not outcome determinative. Despite the
chronology, the district court could supportably find that
Mariano and Butterworth corruptly intended their illicit payments
to influence the future actions of the late, unlamented Sarault
administration.
We need go no further. Having willingly sat down to
sup with the devil, appellants cannot now expect the courts to
swallow their tale uncritically. The guideline analogy chosen by
the district court was well within its purview. See United
States v. St. Cyr, 977 F.2d 698, 706 (1st Cir. 1992) (holding
that "when there are two plausible views of the record, the
sentencing court's adoption of one such view cannot be clearly
erroneous"); Ruiz, 905 F.2d at 508 (similar).
The defendants' sentences are vacated and the cases are
remanded for resentencing.