                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT



                                No. 01-60426

                             Summary Calendar


UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                                    versus

STANLEY BUTLER

                                                Defendant-Appellant.



            Appeal from the United States District Court
              for the Southern District of Mississippi
                             (00-CR-167)

                             December 6, 2001


Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

      Stanley   Butler    appeals    his   conviction    and   sentence    for

extortion in violation of the Hobbs Act, 18 U.S.C. § 1951(a).               We

reject all of his arguments and affirm both his conviction and

sentence.




      *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                 I

     A police informant, Russell Davis, approached the FBI in

Jackson, Mississippi with information about corrupt police

officers.   Davis began undercover work for the FBI posing as a

drug dealer looking for police protection for his criminal

operations.   He began paying police officer Ronald Youngblood to

provide such protection.   Youngblood, when confronted by the FBI

with the evidence against him, agreed to cooperate with the

investigation.

     Youngblood led the FBI to another police officer, Stanley

Butler.   Youngblood had previously had discussions with Butler

about providing protection for Davis.   Now cooperating with the

FBI, Youngblood had further discussions with Butler during which

Butler agreed to provide protection for Davis' drug operation.

Youngblood gave Butler $200 on two separate occasions in exchange

for this commitment.   Youngblood wore an audio recording device

for some of these conversations and was able to record five of

them.   After recording these conversations, Youngblood reviewed

the tapes and transcripts and signed and dated them.

     Butler was convicted after a jury trial of extortion under

color of official right in violation of 18 U.S.C. § 1951(a).    He

was sentenced to 12 months of imprisonment.




                                 2
                                        II

                                        A

      Butler first argues that the trial court's failure to

instruct the jury that it must find the quid pro quo element of

extortion beyond a reasonable doubt is reversible error.1                 Since

Butler did not challenge the instructions at trial, our review is

for plain error only.2        "The Court of Appeals should correct a

plain forfeited error affecting substantial rights if the error

seriously affect[s] the fairness, integrity or public reputation

of judicial proceedings."3

      The trial court used the Fifth Circuit Pattern Jury

Instruction on Hobbs Act extortion.4           The jury was instructed

that in order to convict, they must find that the government

proved "the following three essential elements beyond a

reasonable doubt: First: That the defendant wrongfully obtained

property from another with that person's consent; Second: That

the defendant did so under color of official right; and Third:


      1
        We have not held, and the Government does not concede, that quid pro quo
is an element of an offense under § 1951 when the offense does not involve
campaign contributions to elected officials. Under those circumstances, the
Supreme Court has found that quid pro quo is an element of the offense. See
McCormick v. United States, 500 U.S. 257, 273, 274 (1991). However, proof of a
quid pro quo is especially necessary in the campaign contribution context,
because otherwise all campaign contributions could conceivably violate the Hobbs
Act. Id. We assume, without deciding, that quid pro quo is an element of the
offense charged here.

      2
          United States v. Lankford, 196 F.3d 563, 575 (5th Cir. 1999).

      3
          United States v. Olano, 507 U.S. 725, 736 (1993).
      4
          Fifth Circuit Pattern Jury Instruction 2.74 (1998).

                                        3
That the defendant's conduct interfered with interstate

commerce."      While the court did not explicitly provide that quid

pro quo was an element of the offense, the court went on to

further define each of these "three essential elements,"

including this instruction:

      Wrongfully obtaining property under color of official
      right is the taking or attempted taking by a public
      officer of property not due to him or his office,
      whether or not the public official employed force,
      threats, or fear. In other words, the wrongful use of
      otherwise valid official power may convert dutiful
      action into extortion.

      If a public official accepts or demands property in
      return for promised performance or nonperformance of an
      official act, the official is guilty of extortion
      (emphasis added).


      We have previously upheld the use of this instruction

against a challenge that it failed to distinguish between lawful

payments and Hobbs Act extortion and seriously impaired the

ability of the accused to present their defense.5              We find no

error, plain or otherwise, in this instruction, which

sufficiently conveyed the quid pro quo requirement.6




      5
          United States v. Box, 50 F.3d 345, 355 (5th Cir. 1995).

      6
        See United States v. Tomblin, 46 F.3d 1368, 1380 & n.16 (5th Cir. 1995)
(finding similar jury instruction adequate to convey quid pro quo requirement in
bribery case).

                                        4
                                        B

      Butler next claims that the audio tapes were inadmissible as

not properly authenticated because a chain of custody was not

established for the time period between the taping and

authentication of the tapes by Youngblood.             Butler objected to

the admission of the tapes at trial, and we review the district

court's decision to admit the audio tapes for abuse of

discretion.7

      There is no chain of custody requirement for the admission

of audio tapes in this circuit and under the Federal Rules of

Evidence authentication is satisfactory when there is "evidence

sufficient to support a finding that the matter in question is

what the proponent claims."8         Participants to the conversation

can authenticate tapes if they testify that the tapes are

accurate representations of the conversations recorded.9

      In this case Youngblood testified as to the means of

recording, the accuracy of the recording, and the identity of the

participants of the conversation (himself and Butler).10                Butler



      7
          United States v. DeLeon, 247 F.3d 593, 597 (5th Cir. 2001).
      8
          Fed R. Evid. 901(a).

      9
        United States v. Lance, 853 F.2d 1177, 1181-82 (5th   Cir. 1988) (holding
tapes properly authenticated where "law enforcement agents    who participated in
the taped conversations testified that, according to their    memories, the audio
and video tapes contained accurate recordings of the          conversations that
occurred").
      10
         Youngblood did admit, however, that he did not control the activation
and deactivation of the recording device.

                                        5
 testified that the tapes were not fully accurate reproductions

of the conversations.        However, "[w]e do not require district

courts to find that authenticity is conclusively established

before allowing the admission of disputed evidence."11              We

therefore find no abuse of discretion in the admission of the

audio tapes.



                                        C

     Finally Butler challenges his sentence, arguing that the

trial court erred in punishing him for exercising his right to

trial by sentencing him to the maximum term of imprisonment

within the range specified by the guidelines.             "Review of

sentences imposed under the guidelines is limited to a

determination whether the sentence was imposed in violation of

law, as a result of an incorrect application of the sentencing

guidelines, or was outside of the applicable guideline range and

was unreasonable."12       As Butler's sentence was within the

guideline range and the application of the guidelines is not here

in dispute, we need ask only whether the sentence imposed was in

violation of law.

     At sentencing Butler objected to his apparent unfair

sentencing when compared to another police officer, Nathan


     11
        Baulch v. Johns, 70 F.3d 813, 816 (5th Cir. 1995) (citing Lance, 853
F.3d at 1181).
     12
          United States v. Matovsky, 935 F.2d 719, 721 (5th Cir. 1991).

                                        6
Thomas, who had committed similar offenses but had plead guilty

and argued that he should not be penalized for exercising his

right to a trial.       The Government argues that since Butler did

not object to the actual sentence our review is for plain error.

     Assuming arguendo that the imposition of the maximum

allowable sentence because of a lack of cooperation and refusal

to accept responsibility is in violation of law, we would

nevertheless affirm Butler's sentence.            The trial court gave

ample reasons for the sentence wholly apart from Butler's refusal

to accept responsibility (which was discussed only as one

distinction between Butler and Thomas).13            The guidelines provide

that the trial court can "consider, without limitation, any

information concerning the background, character and conduct of

the defendant, unless otherwise prohibited by law."14

Furthermore, "when the spread of an applicable Guideline range is

less than 24 months, the district court is not required to state

     13
          The trial court stated, upon sentencing, that:

             It's outrageous for any police officer to sully the record of the
             police department in his town. The very basis of our society are
             laws, and the enforcers of those laws ought to be diligent in obeying
             those laws. You have not been and you are suffering the
             consequences.

                                       ****

             You have let yourself down. You have let your family down. You
             have let your parents down who raised you to be the kind of man
             that you were before you engaged in this. But most importantly
             you have let your city down. I can't do anything under these
             circumstances other than sentence you to the maximum available
             under the guidelines (emphasis added).

     14
          U.S.S.G. § 1B1.4.

                                        7
its reasons for imposing a sentence at a particular point within

the applicable range."15       Accordingly we find no error, plain or

otherwise.



                                      III

      For the foregoing reasons, Butler's conviction and sentence

are AFFIRMED.




      15
         Matovsky, 935 F.2d at 721 (quoting United States v. Richardson, 925 F.2d
112, 117 (5th Cir. 1991)).

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