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          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                     FILED
                                                                   August 14, 2012

                                  No. 11-60509                     Lyle W. Cayce
                                                                        Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff - Appellee
v.

WALTER W. TEEL; PAUL S. MINOR; JOHN H. WHITFIELD,

                                            Defendants - Appellants



                 Appeals from the United States District Court
                    for the Southern District of Mississippi


Before KING, PRADO, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
        Appellants Walter W. Teel (“Teel”), Paul S. Minor (“Minor”), and John H.
Whitfield (“Whitfield”) (collectively, “Appellants”) raise several appellate issues
arising from their final amended judgments of convictions and sentences entered
by the district court after this court remanded the case for resentencing in
United States v. Whitfield, 590 F.3d 325 (5th Cir. 2009). Specifically, Appellants
challenge: (1) the jury instructions for erroneously defining honest-services
fraud; (2) the indictment for failure to state an offense; and (3) whether the
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district court committed various errors in sentencing Minor and Whitfield.1 We
AFFIRM.
                                   I. Original Appeal
       Because the complete factual history is extensively set out in Whitfield, we
only summarize the relevant procedural history.
       In 2007, a jury found Appellants guilty on all charges. Minor received 132
months of imprisonment to be followed by three years of supervised release, was
fined $2.75 million ($250,000 for each of his eleven counts of conviction), and,
along with Teel, was ordered to pay $1.5 million as restitution to United States
Fidelity and Guaranty (“USF&G”), the victim of the Minor/Teel bribery scheme.
In addition to the restitution order, Teel received seventy months of
imprisonment and two years of supervised release. Whitfield received 110
months of imprisonment, three years of supervised release, and a $125,000 fine.
       In Whitfield, however, we concluded that the district court committed
plain error when it denied Appellants’ motions for judgment of acquittal under
Federal Rule of Criminal Procedure 29 on the 18 U.S.C. § 666 counts of the
indictment. Accordingly, we reversed all of the convictions related to federal
program bribery in violation of § 666, including Minor and Teel’s convictions for
conspiracy to commit federal program bribery. However, we affirmed each
remaining count of conviction, specifically, Appellants’ convictions for honest-
services mail and wire fraud in violation of 18 U.S.C. §§ 1341, 1343, and 1346,2

       1
         As stated in their opening and reply briefs, Whitfield and Teel join Minor in the
challenges to the indictment and the jury instructions, and adopt the relevant portions from
Minor’s opening and reply briefs accordingly. However, while Minor and Whitfield also raise
various appellate issues stemming from their resentencings, Teel, who has completed his
imprisonment term, does not.
       2
          18 U.S.C. §§ 1341 and 1343 criminalize the use of the mails or wires, respectively, in
furtherance of “any scheme or artifice to defraud, or for obtaining money or property by means
of false or fraudulent pretenses, representations, or promises.” 18 U.S.C. § 1346 defines the
term “scheme or artifice to defraud” to include “a scheme or artifice to deprive another of the
intangible right of honest services.”

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Minor and Whitfield’s convictions for conspiracy in violation of 18 U.S.C. § 371,
and Minor’s conviction for racketeering in violation of 18 U.S.C. § 1962(c).
       In light of the foregoing, we vacated each Appellant’s sentence and
remanded the case for resentencing. Thereafter, Minor unsuccessfully petitioned
this court for rehearing, and each Appellant unsuccessfully petitioned the
Supreme Court for a writ of certiorari.
       On remand for resentencing, Minor, joined by Whitfield and Teel, filed in
the district court a motion to vacate their convictions in light of the Supreme
Court’s decision in Skilling v. United States, 130 S. Ct. 2896 (2010). Appellants
argued that Skilling was an intervening change of law by a controlling authority
that rendered the indictment and jury instructions erroneous. After receiving
supplemental briefing and hearing argument, the district court denied
Appellants’ motion.
       The district court then resentenced Appellants.                 Whitfield received
seventy-five months of imprisonment and two years of supervised release. Teel
received fifty-one months of imprisonment and two years of supervised release.
Minor received ninety-six months imprisonment3 to be followed by three years
of supervised release, and was fined $2 million ($250,000 for each of his eight
remaining counts of conviction). Also, as before, Minor and Teel were ordered
jointly and severally to pay restitution to USF&G. This timely appeal followed.
           II. Current Appeal: Convictions and Law of the Case
       Between the original appeal and the current appeal, the Supreme Court
decided Skilling. In that case, Defendant Jeffrey Skilling (“Skilling”) was
charged with and convicted of, inter alia, conspiracy to commit securities and
wire fraud. See id. at 2908. Specifically, according to the indictment, “Skilling


       3
         Whitfield’s second imprisonment sentence was, in total, thirty-five months lower than
his original sentence, Teel’s imprisonment sentence was nineteen months lower, and Minor’s
imprisonment sentence was thirty-six months lower.

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had sought to ‘depriv[e] Enron and its shareholders of the intangible right of
[his] honest services.’” Id. (alterations in original). The Supreme Court granted
certiorari to address whether Skilling’s conviction for conspiracy to commit
honest-services wire fraud was improper: “We . . . consider whether Skilling’s
conspiracy conviction was premised on an improper theory of honest-services
wire fraud.       The honest-services statute, § 1346, Skilling maintains, is
unconstitutionally vague. Alternatively, he contends that his conduct does not
fall within the statute’s compass.” Id. at 2925-26. The Court determined that
§ 1346 is not unconstitutionally vague, but that its reach is limited to bribery
and kickback schemes, not other conduct, such as conflict-of-interest schemes.
Id. at 2930-34.
      Appellants argue that Skilling changed the law of honest-services fraud
to render both the jury instructions and the indictment in this case erroneous.
Specifically, Appellants allege that the jury instructions were erroneous because
they incorporated the Mississippi-state-law definition of bribery. In addition,
Appellants allege that the indictment failed to state an offense under § 1346
because instead of charging bribery under federal law, the relevant counts
charged that “honest services” are those “performed free from deceit, bias, self-
dealing, and concealment.” In this way, Appellants continue, the indictment
charged a conflict-of-interest scheme, which Skilling specifically excludes from
§ 1346’s compass. According to Appellants, each of these errors independently
requires reversal of their convictions.
      These arguments implicate the law-of-the-case doctrine. Under that
doctrine, the district court on remand, or the appellate court on a subsequent
appeal, abstains from reexamining an issue of fact or law that has already been
decided on appeal. See, e.g., United States v. Carales-Villalta, 617 F.3d 342, 344
(5th Cir. 2010). A facet or corollary of the law-of-the-case doctrine is the
mandate rule. See United States v. Becerra, 155 F.3d 740, 753 (5th Cir. 1998),

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abrogated on other grounds by United States v. Booker, 543 U.S. 220 (2005).
Under the mandate rule, “[a] district court on remand ‘must implement both the
letter and the spirit of the appellate court’s mandate and may not disregard the
explicit directives of that court.’” United States v. McCrimmon, 443 F.3d 454,
459 (5th Cir. 2006) (quoting United States v. Matthews, 312 F.3d 652, 657 (5th
Cir. 2002)).
      Accordingly, the mandate rule “prohibits a district court on remand from
reexamining an issue of law or fact previously decided on appeal and not
resubmitted to the trial court on remand. This prohibition covers issues decided
both expressly and by necessary implication . . . .” United States v. Pineiro, 470
F.3d 200, 205 (5th Cir. 2006) (per curiam). “Additionally, pursuant to the
‘waiver approach’ to the mandate rule,” McCrimmon, 443 F.3d at 459, “‘[a]ll
other issues not arising out of this court’s ruling and not raised before the
appeals court, which could have been brought in the original appeal, are not
proper for reconsideration by the district court below,’” Pineiro, 470 F.3d at 205
(citation omitted). See also United States v. Lee, 358 F.3d 315, 321 (5th Cir.
2004) (“Absent exceptional circumstances, the mandate rule compels compliance
on remand with the dictates of a superior court and forecloses relitigation of
issues expressly or impliedly decided by the appellate court. Moreover, the rule
bars litigation of issues decided by the district court but foregone on appeal or
otherwise waived, for example because they were not raised in the district
court.”). “We review de novo a district court’s application of the remand order,
including whether the law-of-the-case doctrine or mandate rule forecloses the
district court’s actions on remand.” Carales-Villalta, 617 F.3d at 344.
      Both the law-of-the-case doctrine and the mandate rule are discretionary
practices, not jurisdictional rules, and they are subject to an exception
Appellants urge here: that “there has been an intervening change of law by a
controlling authority.” Matthews, 312 F.3d at 657. Appellants contend that

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their challenges to the jury instructions and the indictment were properly before
the district court on remand for resentencing because Skilling satisfies the
intervening-change-of-law exception. We disagree.
       Appellants argue that, after Skilling, § 1346 criminalizes only bribery and
kickbacks under federal law, thereby specifically excluding bribery and
kickbacks under state law. According to Appellants, by the Skilling Court’s
stating that its “construction of § 1346 ‘establish[es] a uniform national
standard,” 130 S. Ct. at 2933 (alteration in original), the Court could only have
meant federal law. A fair reading of Skilling, however, reveals that the Court
was establishing a uniform national standard by construing § 1346 to clearly
exclude conduct outside of bribery and kickbacks, such as conflict-of-interest
schemes, not to establish federal law as the uniform national standard for the
elements of bribery and kickbacks in § 1346 prosecutions.4 Moreover, the
Skilling Court further asserted that “[o]verlap with other federal statutes does
not render § 1346 superfluous. The principal federal bribery statute, [18 U.S.C.]
§ 201, for example, generally applies only to federal public officials, so § 1346’s
application to state and local corruption and to private sector fraud reaches
misconduct that might otherwise go unpunished.” Id. at 2934 n.45 (emphasis
added). Accordingly, we read Skilling as recognizing that § 1346 prosecutions
may involve misconduct that is also a violation of state law.
       In Whitfield, we recognized that “the district court based its definition of
bribery in the jury charge on the Mississippi offense of bribery,” and that the
“jury charge was also consistent with the language of the Fifth Circuit Pattern


       4
         Additionally, it is notable that in Black v. United States, 130 S. Ct. 2963 (2010), a
companion case to Skilling decided the same day, the Supreme Court stated that it had
“decided in Skilling that § 1346, properly confined, criminalizes only schemes to defraud that
involve bribes or kickbacks.” Id. at 2968. If Skilling had indeed held that § 1346 criminalizes
only schemes to defraud that involve bribes or kickbacks under federal law, it is only
reasonable that the Court would have said as much in Black.

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Jury Instructions on ‘Bribery of a Public Official’ under 18 U.S.C. § 201(b)(1) and
‘Receiving Bribe by Public Official’ under 18 U.S.C. § 201(b)(2).” 590 F.3d at 348.
Moreover, we made clear that “in order to constitute a federal crime, the state
statute must concern ‘something close to bribery’ and . . . ‘the mere violation of
a gratuity statute . . . will not suffice.’” Id. (citing United States v. Brumley, 116
F.3d 728, 734 (5th Cir. 1997) (en banc)). Accordingly, Whitfield was fully
consonant with Skilling, and nothing in the Skilling opinion suggests that our
analysis of the jury instructions in Whitfield was incorrect. To the contrary,
Skilling cites approvingly to Whitfield for our analysis of the district court’s jury
instructions regarding bribery. 130 S. Ct. at 2934.
       Furthermore, although Skilling changed the law of honest-services fraud
to exclude the conflict-of-interest category of cases from § 1346’s scope, see id. at
2931-32, this is not an intervening change of law as applied to the facts of this
case because Appellants were charged with bribery schemes. Indeed, as we
observed in Whitfield, this case involved “two prolonged bribery schemes
spanning nearly four years each.”5 590 F.3d at 352. The mere inclusion of the
“performed free from deceit, bias, self-dealing, and concealment” language did
not transform the bribery schemes charged in the indictment into conflict-of-
interest schemes.
       Based on the foregoing, the intervening-change-of-law exception is
inapplicable to this case. Accordingly, the mandate rule bars litigation of these
arguments.6 See Pineiro, 470 F.3d at 205; McCrimmon, 443 F.3d at 459. We

       5
          In the instant appeal, Appellants attempt to re-litigate whether they were guilty of
any wrongdoing. In fact, they even re-urge that Minor’s transactions with Whitfield and Teel
were constitutionally protected political campaign contributions that qualified for First
Amendment protection. We decline Appellants’ invitation to entertain this attempted “second
bite at the apple.” See, e.g., Carales-Villalta, 617 F.3d at 344-45; United States v. Slanina, 359
F.3d 356, 358 (5th Cir. 2004) (per curiam).
       6
         Even if the mandate rule did not foreclose Appellants’ arguments, we need not
address them here because they were never raised at trial or in the initial appeal. Moreover,

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decline the invitation to revisit Appellants’ convictions that were affirmed in
Whitfield.
                           III. Current Appeal: Sentences
A.      Standard of Review
        Minor and Whitfield also contend that the district court committed various
sentencing errors on remand that require this court to vacate their sentences
and remand for resentencing.               In particular, Minor and Whitfield raise
arguments specific to their individual resentencings. In addition, both argue
that the district court erred in calculating the benefit received from the
Minor/Whitfield bribery scheme.7
        “In reviewing a sentencing decision, we first must consider whether the
district court committed a significant procedural error, such as improperly
calculating the [Sentencing] Guidelines range, treating the Guidelines as
mandatory, or selecting a sentence based on clearly erroneous facts. If the
sentence is procedurally sound, we then consider the ‘substantive reasonableness


we note that even though Skilling was decided while Appellants’ certiorari petitions were still
pending in the Supreme Court, Appellants did not ask the Court to vacate their convictions
in light of Skilling. See, e.g., FED. R. APP. P. 28; Lofton v. McNeil Consumer & Specialty
Pharm., 672 F.3d 372, 381 (5th Cir. 2012) (“‘[A]rguments not raised before the district court
are waived and will not be considered on appeal unless the party can demonstrate
extraordinary circumstances.’ The Fifth Circuit has a ‘virtually universal practice of refusing
to address matters raised for the first time on appeal.’” (alteration in original) (citations
omitted)); United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000) (per curiam) (“It has
long been the rule in this circuit that any issues not briefed on appeal are waived.”).
       7
         Minor also alleges that the district court erred in calculating the benefit received from
the Minor/Teel bribery scheme. In that scheme, Minor arranged and paid off a bank loan for
Teel in exchange for Teel’s rendering a favorable disposition in Peoples Bank v. United States
Fidelity & Guaranty, resulting in a $1.5 million settlement in favor of Minor’s client, Peoples
Bank. See Whitfield, 590 F.3d at 339-41. The crux of Minor’s challenge to the district court’s
calculation in regard to the Minor/Teel scheme is that even without Teel’s actions, USF&G
would not have been spared the need to settle Peoples Bank at a substantial price. This
argument is foreclosed, however, by the law of the case—as stated in Whitfield, “USF&G
would have had no need to settle the case” for $1.5 million had it not been for Teel’s actions.
Id. at 368. Accordingly, we do not disturb the district court’s calculation of the benefit received
from the Minor/Teel bribery scheme as $1.5 million.

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of the sentence imposed under an abuse-of-discretion standard.’” United States
v. Delgado-Martinez, 564 F.3d 750, 751 (5th Cir. 2009); see also United States v.
Simmons, 649 F.3d 301, 303 (5th Cir.) (per curiam), cert. denied, 132 S. Ct. 857
(2011) (“We ordinarily review sentences for procedural error and for substantive
reasonableness, applying an abuse of discretion standard.”).
        In addition, “[i]n exercising this bifurcated review process, we continue to
review the district court’s application of the Guidelines de novo and its factual
findings for clear error.” Delgado-Martinez, 564 F.3d at 751; see also United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). “There is no clear
error if the district court’s finding is plausible in light of the record as a whole.”
Cisneros-Gutierrez, 517 F.3d at 764 (citation and internal quotation marks
omitted). “‘However, a finding will be deemed clearly erroneous if, based on the
record as a whole, we are left with the definite and firm conviction that a
mistake has been committed.’” United States v. Miller, 607 F.3d 144, 148 (5th
Cir. 2010) (citation omitted); see also United States v. Campbell, 106 F.3d 64, 66
(5th Cir. 1997) (“[A] district court retains wide discretion in sentencing, and the
sentencing decision is entitled to considerable deference.”).
B.      Whitfield’s Prison Sentence
        In Whitfield, we reversed Whitfield’s conviction for federal program
bribery, but affirmed his convictions on all other counts, specifically, counts one,
four, five, six, and seven (conspiracy and mail fraud/honest-services fraud). For
the affirmed counts of conviction, the district court had originally sentenced
Whitfield to an imprisonment term of sixty months. On remand, however, the
district court imposed a different sentence for count seven alone, specifically,
imposing seventy-five months imprisonment instead of the sixty-month-term
imposed for the other counts. Thus, with all sentences running concurrently,
Whitfield received a total imprisonment term of seventy-five months. Whitfield
objected to the increase in the sentence for count seven in the absence of

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                                        No. 11-60509

intervening aggravating factors, but the district court overruled the objection:
“If I had not had Count 11 [federal program bribery] available at the first
sentence, then my address of Count 7 [mail fraud/honest-services fraud] would
have been different. So your objection is on record, but my motive for doing so
was because I had at that time Count 11 for the Court’s consideration.”
       Here, Whitfield claims that the district court on remand imposed a
presumptively vindictive sentence upon him in violation of North Carolina v.
Pearce, 395 U.S. 711 (1969), overruled on other grounds by Alabama v. Smith,
490 U.S. 794 (1989). Specifically, he alleges that the imposed imprisonment
term of seventy-five months as to count seven, which was fifteen months longer
than the imprisonment term for count seven imposed in 2007, was
presumptively vindictive even though his total sentence was actually reduced.
       “We review the question of whether a sentence is vindictive, and thus
unconstitutional, de novo.” Campbell, 106 F.3d at 66. For the purpose of
reviewing this question, we expressly adopted in Campbell the aggregate
approach, under which “courts compare the total original sentence to the total
sentence after resentencing. If the new sentence is greater than the original
sentence, the new sentence is considered more severe.”8 Id. at 68.
       Whitfield alleges that the holding of Campbell does not foreclose his
argument because his case falls into Campbell’s recognized exceptions to its
holdings, claiming that the counts were not related and the original sentences
were not imposed as part of a “sentencing package.” See id. at 68 n.4. However,
as in Campbell, none of these facts are present here. Specifically, the counts


       8
         Whitfield urges this court to re-examine its adoption of the aggregate approach, and
adopt instead the “remainder aggregate” or “count-by-count” approach. This argument,
however, is foreclosed by the rule of orderliness. See Jacobs v. Nat’l Drug Intelligence Ctr., 548
F. 3d 375, 378 (5th Cir. 2008) (“It is a well-settled Fifth Circuit rule of orderliness that one
panel of our court may not overturn another panel’s decisions, absent an intervening change
in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court.”).

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were related because they all involved bribery. In addition, despite never using
the phrase “sentencing package,” the district court clearly used the package
approach as demonstrated by its explanation: had it not been for the availability
of the lengthier sentence under count eleven, it would have imposed a different
sentence for count seven. Cf. United States v. Bass, 104 F. App’x 997, 1000 (5th
Cir. 2004) (per curiam) (unpublished) (“When a defendant is convicted of more
than one count of a multicount indictment, the district court is likely to fashion
a sentencing package in which sentences on individual counts are
interdependent.”). Furthermore, nothing in the district court’s explanation
suggests that the reason for its decision was anything other than clearly
objective, let alone vindictive or plainly unreasonable. Finally, the district court
also commented that it had no obligation to reduce Whitfield’s sentence given
the guideline range, but that it would do so because Whitfield had accepted
responsibility, and that it would further vary downward from the guideline
range because of Whitfield’s medical issues and his positive post-offense conduct.
Accordingly, it appears that the district court was actually being quite lenient.
Thus, under Campbell’s aggregate approach, Whitfield’s claim of vindictiveness
fails.9
C.        Minor’s Prison Sentence
          Minor argues that while addressing the sentencing factors under 18 U.S.C.
§ 3553(a), the district court erred by giving him a longer sentence to promote his
alcohol rehabilitation. The government concedes that under Tapia v. United
States, 131 S. Ct. 2382 (2011), the district court erred if it lengthened Minor’s

          9
         Whitfield also makes two unsupported arguments—that his sentence was based upon
racial discrimination such that it was disproportionately greater than his fellow defendants,
and that the application of the obstruction-of-justice enhancement was inappropriate.
However, he fails to cite any authority for these arguments, so we deem them waived. See
FED. R. APP. P. 28(a)(9)(A); Lofton, 672 F.3d at 381; Procter & Gamble Co. v. Amway Corp., 376
F.3d 496, 499 n.1 (5th Cir. 2004) (“Failure adequately to brief an issue on appeal constitutes
waiver of that argument.”).

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prison sentence to allow for alcohol rehabilitation as arguably suggested by the
written statement of reasons.10 See id. at 2393 (“[A] court may not impose or
lengthen a prison sentence to enable an offender to complete a treatment
program or otherwise to promote rehabilitation.”); see also 18 U.S.C. § 3582(a)
(“[I]mprisonment is not an appropriate means of promoting correction and
rehabilitation.”). The parties, however, do not agree on the standard of review
applicable here.
       It is unnecessary to determine the standard of review for this issue,
however, because even if the district court impermissibly addressed Minor’s need
for alcohol treatment, this consideration is harmless error in this case. When
the term of imprisonment is not lengthened by a district court’s consideration of
an impermissible factor, such as the need for rehabilitation, reversal is not
required. See United States. v. Tolbert, 668 F.3d 798, 803 (6th Cir. 2012)
(holding that the defendant’s sentence was substantively reasonable because
“the district court did not impermissibly impose or lengthen [his] sentence to
enable him to complete a treatment program or promote his rehabilitation”);
United States v. Cardenas-Mireles, 446 F. App’x 991, 994-95 (10th Cir. 2011)
(unpublished), cert. denied, 80 U.S.L.W. 3596 (U.S. Apr. 23, 2012) (No. 11-9539)
(“[T]he question is not merely whether the district court had Cardenas-Mireles’s
medical needs on its mind when it issued his sentence, but whether the court’s
assessment of his medical needs actually changed the sentence the court would
otherwise have imposed.”).
       At the resentencing hearing, the district court made clear that although
the same Guidelines range of 121 to 151 months was applicable, it was choosing


       10
          The written statement of reasons—filed three days before the Supreme Court’s
decision in Tapia—stated as follows: “As to the need to provide the defendant with needed
education or vocational training, medical care, or other correctional treatment in the most
effective manner - Mr. Minor has a serious history of alcohol abuse, and he needs a sufficient
amount of time in prison to fully benefit from alcohol treatment.”

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to vary downward to ninety-six months, a total downward deviation of twenty-
five months from the minimum of the Guidelines range. The district court
explained that although it could have imposed the same sentence as before, since
the last sentencing, Minor had “earned the reduction” based on his rehabilitative
conduct, which largely focused on his alcohol abuse. Moreover, the district court
recollected that it had been necessary to send Minor to a rehab center
previously, but that it was encouraged to know that Minor had conquered his
problems and would continue to do so.
      Furthermore, in the written statement of reasons, the district court
referenced Minor’s participation in bribery schemes with two separate trial court
judges under three separate § 3553(a) factors, rendering it likely to have been
the most salient fact for the district court in determining the length of Minor’s
sentence.    In addition, whereas the district court mentioned the alcohol
treatment program that had already occurred, nowhere did it reference any
specific treatment program in the future that would require lengthening Minor’s
sentence. See Tapia 131 S. Ct. at 2392-93 (noting that a court does not commit
error simply by discussing the opportunities for rehabilitation within prison, but
in the case at bar, the court had committed error by “select[ing] the length of the
sentence to ensure that [the defendant] could complete the 500 Hour Drug
Program”).
      Thus, nothing in the record suggests that the district court actually
lengthened Minor’s sentence based on its consideration of his need for alcohol
rehabilitation. To the contrary, it appears that the consideration of alcohol
treatment was based upon events in the past, not anticipated “rehabilitation” in
prison in the future. Accordingly, we reject this argument.
D.    Minor and Whitfield’s Sentences: Loss Enhancement
      In exchange for Minor’s arranging of bank loans for Whitfield in the total
amount of $140,000, Whitfield arranged to preside over Marks v. Diamond

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Offshore Management Co., and to render a decision in favor of Archie Marks
(“Marks”), Minor’s client. See Whitfield, 590 F.3d at 337-38. After conducting
the bench trial, Whitfield ruled in favor of Marks and awarded him $3.75 million
in damages, but subsequently reduced the award to $3.64 million in response to
post-trial motions. Id. $3 million of the $3.64 million award “was attributable
to noneconomic ‘soft’ damages.” Id. at 338. The defendant in Marks “later
appealed to the Mississippi Supreme Court, which, sitting en banc, affirmed the
finding of liability” but reduced the total award to $1.64 million. Id. In light of
Minor and Whitfield’s criminal convictions, however, the Mississippi Supreme
Court withdrew its original opinion, vacated Whitfield’s judgment, and
remanded the Marks case for a new trial on all issues. See id. at 338 n.5. The
new trial resulted in a damages award of only $383,000.
      In the first appeal, Minor and Whitfield challenged their enhanced
sentences on the grounds that “the district court erred in including the full
amount of the original award in Marks ($3.75 million) in their respective loss
calculations.” Id. at 367. There, we determined that the Guideline regarding
bribery-related offenses, U.S.S.G. § 2C1.1, was applicable to the case “because
the jury found appellants guilty on a theory of bribery.” Id. Having done so, we
also observed that “U.S.S.G. § 2C1.1(b)(2) provides for an enhanced sentence if
the ‘value of the payment’ or ‘the benefit received or to be received in return for
the payment’ exceeds $5,000. The level of enhancement is dictated by the table
in U.S.S.G. § 2B1.1.” Id. We also recognized that “Application Note 2 of
U.S.S.G. § 2B1.1 provides that the loss should be determined by the greater of
the actual loss or intended loss, which is defined in relevant part as ‘the
pecuniary harm that was intended to result from the offense.’” Id.
      In light of the remand for resentencing, however, we declined to address
whether the district court clearly erred in determining the amount of the benefit
received, except to “suggest that the district court might more properly rely on

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                                  No. 11-60509

the actual amount awarded by Whitfield in the Marks case ($3.64 million)
adjusted by taking into account a reasonable estimate of whatever intrinsic
value that case may have had if litigated before an impartial judge.” Id. at 368.
      Here, Whitfield and Minor argue that on remand, the district court again
erroneously enhanced their respective sentences. Specifically, they contend that
the district court should not have used the $383,000 award from the new trial
of Marks as the intrinsic value that Marks may have had if it had been litigated
before an impartial judge. They allege that the $383,000 award was reached a
decade later with different evidence of the plaintiff’s medical condition, which
had substantially improved by the time of retrial. Accordingly, they maintain
that the district court erred by basing its loss calculation for enhancement
purposes on the difference between the $3.64 million Whitfield actually awarded
in Marks and the $383,000 award from the new trial.
      We review the district court’s finding of fact regarding the amount of the
benefit received for clear error. See, e.g., United States v. Griffin, 324 F.3d 330,
365 (5th Cir. 2003) (“The amount of the benefit to be received is a fact finding
issue that is reviewed for clear error.”). With respect to Minor, even if we used
the $1.64 million figure from the Mississippi Supreme Court’s opinion as the
“intrinsic value” of Marks, he would still qualify for the eighteen-level
enhancement that he received on remand because his loss calculations for
enhancement     purposes    include    the   benefit   received   from   both   the
Minor/Whitfield scheme and the Minor/Teel scheme. In other words, using the
$2 million difference instead of the number actually used would still not qualify
Minor for a smaller enhancement. See U.S.S.G. § 2B1.1(b)(1)(J) (any loss
amount between $2.5 million and $7 million increases the offense level by
eighteen).
      With respect to Whitfield, using the higher “intrinsic value” number and,
therefore, calculating a lower “loss” amount would yield a smaller enhancement,

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                                       No. 11-60509

taking the enhancement from eighteen levels to sixteen.11 See id. § 2B1.1(b)(1)(I)
(any loss amount between $1 million and $2.5 million increases the offense level
by sixteen). Thus, with a criminal history category of I and a base offense level
of ten, Whitfield’s total offense level would become twenty-six, with an advisory
guideline range for imprisonment of sixty-three to seventy-eight months, instead
of twenty-eight, with an advisory guideline range of seventy-eight to ninety-
seven months. Accordingly, we must consider whether the district court “clearly
erred” in using the $383,000 figure.
       Whitfield argues that the $383,000 figure reflects a different time
period—ten years after the original trial—with more information about the
underlying litigant’s damages and improved condition. While that may be so, we
cannot conclude that the passage of time and ensuing additional information
renders the use of this figure “clearly erroneous.” Calculating the “intrinsic
value” of the Marks case is an imprecise endeavor, and we require only that the
district court make a reasonable estimate. See United States v. Goss, 549 F.3d
1013, 1019 (5th Cir. 2008) (“[T]he district court cannot achieve absolute certainty
in determining the . . . losses. Instead, ‘[t]he court need only make a reasonable
estimate of the loss.’” (quoting United States v. Holbrook, 499 F.3d 466, 468 (5th
Cir. 2007))); see also Griffin, 324 F.3d at 366 (“The district court need not
determine the value of the benefit with precision.”). Moreover, “[t]he sentencing
judge is in a unique position to assess the evidence and estimate the loss based
upon that evidence. For this reason, the court’s loss determination is entitled to

       11
          Here, and in connection with Whitfield’s challenge to the obstruction-of-justice
enhancement discussed above, the government argues, as it did during the first appeal, that
“any error in sentencing was harmless because the district court incorrectly applied the more
lenient United States Sentencing Guidelines from 2001 rather than the Guidelines as
amended in 2006.” Whitfield, 590 F.3d at 366. We declined to address this argument in
Whitfield because it was not dispositive. Id. (“The fact that [the] district court used the 2001
Guidelines instead of the 2006 Guidelines does not necessarily mean that appellants were not
prejudiced by any alleged errors in their sentencing.”). For the same reason, we likewise
decline to consider the government’s argument here.

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                                   No. 11-60509

appropriate deference.”      Holbrook, 499 F.3d at 468 (citation and internal
quotation marks omitted). Because the $383,000 award was a reasonable
estimate of the “intrinsic value” of Marks, we conclude that the district court did
not clearly err.
        Even if the calculation was in error, we conclude such error was harmless.
See FED. R. CRIM. P. 52(a) (“Any error, defect, irregularity, or variance that does
not affect substantial rights must be disregarded.”); Williams v. United States,
503 U.S. 193, 203 (1992) (“[O]nce the court of appeals has decided that the
district court misapplied the Guidelines, a remand is appropriate unless the
reviewing court concludes, on the record as a whole, that the error was harmless,
i.e., that the error did not affect the district court’s selection of the sentence
imposed.”); Delgado-Martinez, 564 F.3d at 752-53 (“[C]ertain ‘harmless’ errors
do not warrant reversal.”). Whitfield received an imprisonment sentence of
seventy-five months, which falls well within the range for the putative revised
total offense level of twenty-six. The record as a whole suggests that the
calculation of Whitfield’s sentence was not influenced by this alleged error.
Accordingly, we conclude no reversible error was committed in the loss
enhancement.
E.      Minor’s Sentence: Fines
        According to the district court’s written statement of reasons for
resentencing, the district court imposed on Minor the maximum fine of $250,000
on each count, see U.S.S.G. § 5H1.10, resulting in a total fine of $2 million
dollars:
              The Court finds [Minor] has the ability to pay a fine in
        addition to restitution. In ordering a fine, the Court has considered
        the advisory guidelines range of $17,500 to $175,000, in addition to
        the sentencing factors in 18 U.S.C. § 3553(a). The Court has
        determined there are aggravating circumstances relating to this
        defendant’s conduct and other facts specific to the case at hand
        which leads the Court to conclude that a variance from the advisory

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                                      No. 11-60509

       guideline fine range is fair and reasonable. The Court has been
       made aware that the defendant failed during the presentence
       investigation to disclose the existence of an asset valued at
       approximately $5,000,000, which was transferred by him by way of
       quit claim deed to his wife and subsequently to a limited liability
       company controlled by his wife within days of the indictment and
       his arrest in this case. Additionally, the Court recognizes the need
       for the amount of the fine to be sufficient to ensure that the fine,
       taken together with other sanctions imposed, is punitive to this
       defendant, who has substantial assets and income; and will provide
       deterrence to other criminal activity. It is therefore the order of the
       Court that the defendant pay a fine of $250,000 per count, for a total
       fine of $2,000,000.00.
       Minor contends that the district court abused its discretion in setting his
fine.12 Specifically, citing United States v. Painter, 375 F.3d 336 (5th Cir. 2004)
and United States v. Graham, 946 F.2d 19 (4th Cir. 1991), Minor argues that the
district court relied on his financial status when it varied from the Guidelines
range and that this was an impermissible use of his socio-economic status. In
addition, Minor contends that the district court erred by taking into account his
failure to disclose the transfer of the property to his late wife as an aggravating
circumstance.
       Minor’s challenge is without merit. First, his reliance on Painter and
Graham is misplaced. Those cases deal with challenges to upward departures,
not variances.      See Irizarry v. United States, 553 U.S. 708, 714 (2008)
(“‘Departure’ is a term of art under the Guidelines and refers only to
non-Guidelines sentences imposed under the framework set out in the
Guidelines.”). The pertinent question in a departure case is whether “there
exists an aggravating or mitigating circumstance of a kind . . . not adequately


       12
         In Whitfield, because we remanded the case for resentencing, we declined to decide
whether the district court took Minor’s socio-economic status into account when imposing its
fine. See 590 F.3d at 368. We did, however, conclude that there should be some level of
reduction from the previously ordered fine of $2.75 million, as three counts upon which the
fine was based were reversed. See id.

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                                        No. 11-60509

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). Basing a departure on financial resources is an erroneous use
of discretion because “the Sentencing Commission adequately considered a
defendant’s ability to pay in formulating the fine guideline.” Graham, 946 F.2d
at 21.
         The district court, however, did not consider Minor’s ability to pay in
“departing” from the Guidelines; rather, the court properly utilized its discretion
to vary from the Guidelines by taking into account Minor’s financial resources
when determining the appropriately punitive fine in the first instance. The
district court’s reliance on Minor’s assets was not in reference to his socio-
economic status. Instead, it was with regard to his ability to pay the fine and
the need for the fine to be sufficiently punitive. See 18 U.S.C. § 3572(a)(1) (“In
determining whether to impose a fine, and the amount, time for payment, and
method of payment of a fine, the court shall consider . . . the defendant’s income,
earning capacity, and financial resources.” (emphasis added)); see also U.S.S.G.
§ 5E1.2(d) (stating that a fine should be sufficiently punitive and take into
consideration the defendant’s ability to pay in light of earning capacity and
financial resources).13
         For the foregoing reasons, the district court’s judgment on remand is
AFFIRMED.


         13
          Minor also argues that the district court erred by taking into account his failure to
disclose the transfer of the property to his late-wife as an aggravating circumstance. However,
even assuming arguendo that Minor is correct that the district court abused its discretion in
this manner, he cannot show how the district court’s consideration of the non-disclosure
affected the fine imposed. Both the government and Minor agree that in imposing Minor’s
original sentence, the district court did not take the non-disclosure into consideration in
setting the fine. Nevertheless, the original sentence still imposed a fine of $250,000 per count,
the same amount imposed at resentencing. Accordingly, even if the district court’s
consideration of the non-disclosure as an aggravating circumstance was erroneous, it was
harmless since it did not impact the amount of the fine.

                                               19
