United States v. Sarault

• Court: Court of Appeals for the First Circuit
• Decided: September 15, 1992
• Docket: 92-1180
• Status: Published

Opinion

USCA1 Opinion

September 15, 1992

_________________________

No. 92-1180

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                  BRIAN J. SARAULT,

                                Defendant, Appellant.

                              _________________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

                     [Hon. Ernest C. Torres, U.S. District Judge]
                                             ___________________

                              ____________________

                         Torruella and Selya, Circuit Judges,
                                              ______________

                             and Zobel,* District Judge.
                                         ______________

                              ____________________

               Kevin J. O'Dea for appellant.
               ______________
               Edwin J.  Gale, Assistant United States  Attorney, with whom
               ______________
          Lincoln  C. Almond, United States Attorney, was on brief, for the
          __________________
          United States.

____________________

____________________

____________________
          *Of the District of Massachusetts, sitting by designation.

SELYA, Circuit Judge.  In a postscript to a sordid tale
                    SELYA, Circuit Judge.
                           _____________

          of greed  and corruption,  defendant-appellant Brian  J. Sarault,

          the  former Mayor of Rhode Island's  fourth largest city, assails

          the  district  court's imposition  of  a  sentence exceeding  the

          guideline  sentencing range (GSR).   Finding, as we  do, that the

          upward  departure was  fully  justified, we  affirm the  judgment

          below.

                                          I
                                          I
                                          _

                                      Background
                                      Background
                                      __________

                    On November  14, 1991,  the former mayor  of Pawtucket,

          Rhode  Island, pleaded  guilty  to a  criminal information  which

          charged  him with heading an  enterprise engaged in  a pattern of

          racketeering  activity,  in violation  of  the  RICO statute,  18

          U.S.C.   1962(c) (1988).  The predicate offenses described in the

          information consisted  of fifteen acts of  extortion committed in

          connection  with  the  award  of  municipal  contracts,  each  in

          violation of  the Hobbs Act, 18 U.S.C.   1951 (1988).  On January

          31,  1992,  appellant  was   sentenced  to  sixty-six  months  in

          prison.1   The  court  used the  November,  1991 version  of  the

          sentencing guidelines.  See United States v. Harotunian, 920 F.2d
                                  ___ _____________    __________

          1040, 1041-42 (1st Cir.  1990) ("Barring any ex facto  problem, a
                                                       __ _____

          defendant is to be punished according to the guidelines in effect

          at the time of sentencing.").

                    We trace the architecture of the sentence step by step.
                              
          ____________________

               1Sarault  was also  sentenced to  three years  of supervised
          release,  fined  $20,000, directed  to  make  restitution in  the
          amount of $80,829, and ordered to pay a $50 special assessment.

                                          2

The  court  began to  design  the sentence    by   referring   to

          U.S.S.G.

            2E1.1 which, in respect  to a RICO conviction, provides a  base

          offense  level of  nineteen or,  if greater,  "the  offense level

          applicable  to  the  underlying  racketeering  activity."     The

          application notes indicate that, in order to determine which base

          offense level results  in the  greater offense  level, the  court

          should make the  appropriate adjustments under Parts A  through D

          of  Chapter Three of the  guidelines, using the  two base offense

          levels  in  turn, and  compare the  results.   U.S.S.G.    2E1.1,

          comment. (n.1).   Following  this protocol, the  court determined

          that the level nineteen floor would produce the  greater adjusted

          offense level  (twenty-five) when  all  referenced Chapter  Three

          adjustments  were  implemented.2   Hence,  the  court used  level

          nineteen  as  the  starting  point  in  constructing  appellant's

          sentence. 

                    The court then  increased the offense level by  four to

          reflect appellant's role as  the organizer/leader of an extensive

          criminal activity,  U.S.S.G.   3B1.1(a); elevated  it another two

          levels  to reflect  appellant's  abuse of  a  position of  public

          trust, U.S.S.G.    3B1.3; and,  finally, deducted  two levels  to

          acknowledge  appellant's acceptance of responsibility, U.S.S.G.  

          3E1.1(a).   The  court thus  arrived  at a  net offense  level of

____________________

               2The base offense  level for  the Hobbs  Act violations  was
          ten.  See  U.S.S.G.    2C1.1,  2E1.5.  After  making the  interim
                ___
          adjustments  described  in  the  Application  Note,  the adjusted
          offense level would have been twenty-four.

                                          3

twenty-three.    Inasmuch  as  appellant had  no  prior  criminal

          history, the court's calculations produced  a GSR of forty-six to

          fifty-seven months.    See  U.S.S.G.  Ch. 5,  Pt.  A  (Sentencing
                                 ___

          Table).

This  brings  us to  the heart  of  the matter.   After

          settling upon the GSR, the district  judge departed therefrom and

          sentenced Sarault to a prison term  that exceeded the high end of

          the GSR by nine months.  The judge linked the upward departure to

          the  significant  disruption   of  governmental  functions   that

          attended appellant's antics.

                    On   appeal,  Sarault   challenges   only  the   upward

          departure.  He  does not  contest any of  the sentencing  court's

          interim calculations.

                                          II
                                          II
                                          __

                                  Standard of Review
                                  Standard of Review
                                  __________________

                    Our review of sentencing  departures is governed by the

          tripartite  methodology  set  forth  in United  States  v.  Diaz-
                                                  ______________      _____

          Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, 493 U.S. 862
          _________                              _____ ______

          (1989).  We have summarized the methodology as follows:

                    First, we evaluate  the circumstances  relied
                    on by the district court in  determining that
                    the case is sufficiently "unusual" to warrant
                    departure.  If  the stated circumstances pass
                    muster,  we  proceed  to the  next  rung  and
                    determine  whether  those circumstances  were
                    adequately documented.   After the  first two
                    levels are  climbed,  the departure  must  be
                    measured by a standard of reasonableness.  On
                    the third  tier, the district  court's leeway
                    is substantial.

4

United  States v. Aguilar-Pena, 887 F.2d 347, 350 (1st Cir. 1989)
          ______________    ____________

          (citation omitted).  

                    At  the  first step  of  departure  analysis, appellate

          review  of the district court's determination is plenary.  At the

          second step, appellate  review is for clear error.   At the final

          step, we review the  extent of the departure for  reasonableness.

          See  Diaz-Villafane,  874  F.2d at  49.    Throughout, we  remain
          ___  ______________

          mindful that a  departure is appropriate only when  "there exists

          an  aggravating or  mitigating circumstance  of a  kind, or  to a

          degree, not adequately taken into consideration by the Sentencing

          Commission in formulating the guidelines  that should result in a

          sentence different  from that described."   18  U.S.C.    3553(b)

          (1988).

                                         III
                                         III
                                         ___

                                       Analysis
                                       Analysis
                                       ________

                                          A.
                                          A.
                                          __

                    The  sentencing  court based  its  upward  departure on

          U.S.S.G.   5K2.7, which provides:

                    If  the defendant's  conduct  resulted  in  a
                    significant  disruption   of  a  governmental
                    function, the court may increase the sentence
                    above  the  authorized  guideline   range  to
                    reflect   the  nature   and  extent   of  the
                    disruption   and   the   importance  of   the
                    governmental  function  affected.   Departure
                    from the  guidelines ordinarily would  not be
                    justified  when the offense  of conviction is
                    an  offense such as bribery or obstruction of
                    justice;  in such  cases interference  with a
                    governmental  function  is  inherent  in  the
                    offense,  and  unless  the circumstances  are
                    unusual  the  guidelines  will   reflect  the
                    appropriate punishment for such interference.

5

U.S.S.G.   5K2.7.   Sarault  argues that the  second sentence  of

          section  5K2.7 is  applicable  here, and  that the  circumstances

          attendant to his malefactions are  not sufficiently extraordinary

          to  overcome the  strong presumption  that the  GSR  reflects the

          appropriate range of punishment.  We disagree with this analysis.

As  the  guideline  implies,  if  appellant  had  been

          charged  with, and  sentenced on  the  basis of,  the substantive

          crime  of  extortion in  violation of  the  Hobbs Act,  an upward

          departure would  not be sustainable unless the  disruption was so

          atypically great as to exceed  the level of interference inherent

          in the offense.   Compare,  e.g., United States  v. Riviere,  924
                            _______   ____  _____________     _______

          F.2d  1289, 1308-09  (3d Cir.  1991) (reversing  upward departure

          under    5K2.7 where  disruption of governmental  function was no

          greater than that normally associated with the underlying offense

          of  assault on a federal marshal); United States v. Goodrich, 919
                                             _____________    ________

          F.2d 1365, 1369 (9th Cir. 1990) (reversing upward departure under

            5K2.7  where governmental disruption  was no greater  than that

          which  normally accompanied  the  crime of  perjury); and  United
                                                                ___  ______

          States  v.  Barone, 913  F.2d 46,  51  (2d Cir.  1990) (reversing
          ______      ______

          upward departure under   5K2.7 because disruption of governmental

          function was inherent  in the offenses  of conviction, viz.,  tax

          evasion  and perjury) with,  e.g., United  States v.  Kramer, 943
                                ____   ____  ______________     ______

          F.2d  1543, 1550  (11th Cir.  1991) (upholding    5K2.7 departure

          where defendant's attempted jailbreak resulted in  the crash of a

          helicopter in the prison  yard, disrupting the normal functioning

6

of the  prison "far beyond the  level of . .  . a run-of-the-mill

          escape  attempt"), petition  for  cert. filed,  60 U.S.L.W.  3816
                             __________________________

          (U.S.  Apr. 30, 1992) (No.  91-1848); United States  v. Roth, 934
                                                _____________     ____

          F.2d 248, 251  (10th Cir. 1991) (upholding upward departure under

             5K2.7  where  defendant's  theft of  government  property  was

          unusually extensive); and United  States v. Garcia, 900 F.2d  45,
                                ___ ______________    ______

          49  (5th  Cir. 1990)  (upholding upward  departure under    5K2.7

          where defendant's  mail theft was  on so  grand a scale  that the

          resulting  disruption of  service was  well beyond  that normally

          associated with the crime).  In  this case, however, we need  not

          undertake  the  qualitative  scrutiny  demanded  by   the  second

          sentence of section 5K2.7.3 

                    U.S.S.G.   5K2.7 must be applied to charged crimes on a

          categorical  basis.  Sarault  was not  charged directly  with the

          predicate  Hobbs Act  offenses.   Rather,  he  was charged  with,

          convicted  of, and sentenced on  the basis of,  racketeering.  In

          categorical terms, racketeering  is not a crime that  fits within

          the second sentence of section 5K2.7.  Although a RICO enterprise

          can,  as here, be conducted so as  to impair the functioning of a

          governmental unit, that element  is by no means "inherent  in the

          offense" of racketeering.  To the contrary, RICO  violations come

          in many  different shapes,  sizes, and  manifestations   most  of

          which  do  not  involve  direct  impedance  of  any  governmental

____________________

               3We express no opinion  on whether the squalid circumstances
          of  this case  were  sufficiently unusual  to permit  a departure
          under the  more restrictive  standard contemplated by  the second
          sentence of section 5K2.7.

                                          7

operations.

                    Nor does it assist Sarault's cause that the RICO charge

          in this case rests on a  series of Hobbs Act violations.  Section

          5K2.7 requires us  to take  a categorical approach.   We  cannot,

          therefore,  overlook the  forest (the  offense of  conviction, on

          which the sentence was  based) to focus on individual  trees (the

          predicate acts described in the charging papers).  Moreover, this

          court has held, squarely  and recently, that RICO, as  an offense

          of conviction  on which a sentence is  based, does not bring with

          it the inherent characteristics  of the underlying predicate acts

          described in the charging papers.  See United States v. Butt, 955
                                             ___ _____________    ____

          F.2d 77, 89 (1st Cir. 1992) (  2E1.1(a)(1) establishes "a generic
                                                                    _______

          base offense  level  for  RICO crimes,  one  that  'includes'  no

          particular offense characteristic or special skill").  

                    In  sum, the  first sentence  of section  5K2.7, rather

          than  the second  sentence, controls  in this  case.   Under that

          rubric,  a district court  may depart upwardly  if it supportably

          finds that the defendant's criminal conduct caused "a significant

          disruption  of  a  governmental  function."   U.S.S.G.     5K2.7.

          Hence, the initial prong of  the Diaz-Villafane test is satisfied
                                           ______________

          in this instance.

                                          B.
                                          B.
                                          __

                    As  we  have  already  mentioned,  the  district  court

          premised its departure from the GSR  on what it perceived to be a

          significant  disarticulation  of   Pawtucket's  city   government

          resulting  from   appellant's  extortion  scheme.     The   court

8

enumerated  several  ways  in which  this  disruption  manifested

          itself.  It would  serve no useful purpose to repeat the district

          court's mantra.  For present purposes, it suffices that the court

          excoriated, among other things,  the wholesale derangement of the

          city's bid  processes caused  by the mayor's  prodigious appetite

          for  extortionate  payments.    This factor  alone  supports  the

          court's  finding  that a  significant  disruption  occurred.   We

          explain briefly.4

                    A city must purchase supplies  and services in order to

          fulfill its rudimentary obligations to its inhabitants.  In  this

          case,  it is clear that  appellant conspired with  his chief aide

          and  the  city's  acting director  of  public  works  to prey  on

          municipal vendors, extorting  payments from businesses  that were

          interested  in  obtaining  municipal  contracts   and  extracting

          kickbacks  from  businesses  that   had  succeeded  in  obtaining

          municipal contracts.   Sarault  and his cohorts  instructed those

          who agreed  to play along  how bids and  change orders  should be

          prepared.  On occasion,  they suggested that bids be  inflated to

          cover the  cost of the illegal payments.  One general contractor,

          for example,  was told "not to bid on any [City of Pawtucket] job

          without first . . . adding '10% for the mayor.'"

                    The   charging  papers   allude  to   fifteen  separate
                              
          ____________________

               4Because  this case was resolved  on a guilty  plea, we draw
          the facts from  appellant's admissions, the uncontested  portions
          of  the presentence  investigation report  (PSI Report),  and the
          transcripts of the hearings  below.  See, e.g., United  States v.
                                               ___  ____  ______________
          Garcia, 954 F.2d 12, 14 (1st Cir. 1992); United States  v. Dietz,
          ______                                   _____________     _____
          950 F.2d 50, 51 (1st Cir. 1991).

9

incidents  in   which  city   contractors  were  asked   to  make

          extortionate payments.  The  PSI Report affords detailed accounts

          of these meretricious encounters.  The record makes  it painfully

          plain that the web of corruption was much more widespread; in the

          sentencing  court's words,  appellant "systematically  shook down

          vendors on  a regular basis  for a period  spanning at  least two

          years,  and for an amount that was  at least $250,000."  Based on

          the  tawdry  record   in  this  case,  the  court's   finding  is

          unimpugnable.  

We  will not  paint  the lily.    Sarault's scheme  was

          suffusive; it  engulfed city government.   As the  district court

          accurately observed, appellant's  actions "distorted the  process

          of  awarding bids  for Public  Works projects  from one  which is

          supposed  to see that the lowest responsible bidder gets the job,

          to  one that resulted in the bidder  who was most willing to play

          ball  getting the job."  It follows from this supportable finding

          that appellant  was responsible  for a significant  disruption of

          the City's governmental functions.  Put bluntly, he threw a large

          monkey  wrench into a vital  cog in the  machinery of Pawtucket's

          operations.  His   brazen  conduct  constituted   an  aggravating

          circumstance  not adequately  taken into  account in  framing the

          sentencing  guidelines  for  RICO  cases    a  circumstance  that

          distinguished his case from  the mine-run of RICO violations  and

10

validated an upward departure.5

                                          C.
                                          C.
                                          __

                    We  turn next to the  third part of  the required Diaz-
                                                                      _____

          Villafane  analysis.  The  nine-month upward departure represents
          _________

          an increase  of approximately fifteen percent  in the appellant's

          sentence.  Although this court has not previously had occasion to

          assess  the reasonableness  of a  section 5K2.7  departure, other

          courts  have upheld departures  of a far  greater magnitude where

          U.S.S.G.   5K2.7 is in play.   See, e.g., United States v. Hatch,
                                         ___  ____  _____________    _____

          926 F.2d 387, 397-98  (5th Cir.) (upholding   5K2.7  departure of

          ten  months where  defendant's  fraud deprived  the  parish of  a

          significant portion  of its  budget and undermined  confidence in

          law  enforcement; high  end of  GSR was  fourteen  months), cert.
                                                                      _____

          denied, 111 S.  Ct. 2239  (1991); United States  v. Murillo,  902
          ______                            _____________     _______

          F.2d  1169,  1171,  1174  (5th  Cir.  1990)  (upholding     5K2.7

          departure  of  twenty-seven  months  where  defendant's  sale  of

          illegal immigration papers disrupted government  amnesty program;

          high end of GSR was twenty-one months); cf. Roth, 934 F.2d at 252
                                                  ___ ____

____________________

               5Although we need not  discuss the other dislocations caused
          by  Sarault's behavior, we detour briefly in order to mention the
          district court's comment that  appellant's inability to  function
          effectively as mayor during the period between his arrest and his
          eventual  resignation  contributed  to  the  disruption  of  city
          government.   In  the  clear light  of hindsight,  it is  easy to
          criticize the appellant for causing further pain to his community
          by continuing in office.  But, we question whether his failure to
          resign  at an earlier date can provide  a legitimate basis for an
          upward  departure.   One of  the most  fundamental tenets  of our
          system  of  justice  is  the  presumption  of  innocence.    This
          presumption   would    be   substantially   undermined    if   an
          officeholder's  failure  to resign  when  he  was first  arrested
          could, in and of itself, support an upward departure.

                                          11

(remanding    5K2.7 departure of eighty-three  months for further

          explanation of degree of  departure; high end of GSR  was thirty-

          seven months).  In light of the extensive and pervasive nature of

          appellant's  scheme, its  ubiquity, its  duration, the  amount of

          booty involved, and the havoc occasioned in Pawtucket, we believe

          that a nine-month upward  departure was well within the  realm of

          reasonableness.

                                          IV
                                          IV
                                          __

                                      Conclusion
                                      Conclusion
                                      __________

                    We  need go no further.   It is  difficult to overstate

          the gravity of Sarault's  offense.  He betrayed the trust  of the

          citizens of Pawtucket,  abused the  high office to  which he  had

          been  elected,  pressured  municipal  vendors,  and  relentlessly

          pursued  emoluments  to  which  he  was  not  entitled.    Beyond

          question,  Sarault's course  of conduct  seriously disrupted  the

          normal functioning of  a vital arm of city government.   In these

          sorry  circumstances,  the  sentencing   court  did  not  err  in

          formulating and imposing a modest upward departure.

Affirmed.
          Affirmed.
          ________

12