United States v. Ford

344 F. App'x 167
Court of Appeals for the Sixth Circuit·Decided August 26, 2009·No. No. 07-6087·Published·Cited by 1 cases

Opinion

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 § 2Cl.l(b)(l). 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 v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (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 proeedurally 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, — U.S. —, 129 S.Ct. 68, 172 L.Ed.2d 26 (2008) (acknowledging that Rita v. United States, 551 U.S. 338, 345-47, 354-55, 127 S.Ct. 2456, 2462, 2467, 168 L.Ed.2d 203 (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 com[169]*169merce by threat or violence in violation of 18 U.S.C. § 666. Counts three, four, and five of the 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 párt 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 § 2Cl.l(b)(l), 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 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.

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United States v. Ford, 344 F. App'x 167 (6th Cir. 2009).

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