204 F.3d 761 (7th Cir. 2000)
UNITED STATES of America,    Plaintiff-Appellee,v.John J. MONTANI,    Defendant-Appellant.
No. 99-1692
In the United States Court of Appeals  For the Seventh Circuit
Argued October 26, 1999Decided February 11, 2000

Appeal from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 98 CR 63--Ann Claire Williams, Judge. [Copyrighted Material Omitted]
Before Harlington Wood, Jr., Kanne and Diane P. Wood,  Circuit Judges.
Kanne, Circuit Judge.


1
John J. Montani challenges  his conviction and sentence for mail fraud under  18 U.S.C. sec. 1341. A jury convicted Montani in  March 1999 of defrauding his employer, Sears,  Roebuck & Co. (Sears), of the proceeds from the  liquidation sale of furniture and also defrauding  Sears of the benefit of his honest services, as  that term is incorporated into 18 U.S.C. sec.  1346. Then-District Judge Ann Claire Williams  calculated Montani's offense level for a crime  involving more than $500,000 and sentenced  Montani to forty-one months in prison. We affirm  Montani's conviction and sentence.

I.  History

2
John J. Montani began working for Sears in the  1960s while still in college and held a variety  of positions with the company over the next  twenty-five years. As part of a standard company  practice, Montani agreed to abide by the  company's code of business ethics, which  prohibited, among other things, self-dealing  transactions. In 1990, he moved from Florida to  the Chicago area and became the company's  national manager of finance for home fashions.  Later that year, he became national manager of  logistics at an annual salary of $125,000 and was  told to reduce the company's furniture overstock.  In this position, he was responsible for selling  off, at the best possible price, furniture that  Sears could not or did not want to sell in its  own stores or through its catalog. Typically, the  furniture to be liquidated had been damaged in  some way, had been returned by customers or was  simply outdated.


3
A variety of factors made the liquidated  furniture difficult to sell. Sears required that  its trade name be removed from the merchandise,  that it not be resold close to a Sears store and  that liquidators buy loads of the furniture sight  unseen and without warranty. The company tried  other ways to get rid of the furniture, including  markdowns at its retail stores and through outlet  stores, but these failed to reduce sufficiently  the inventory. In the early 1990s, Sears had a  furniture surplus valued at $100 million stacked  in forty-five to fifty warehouses around the  country. Montani was in charge of furniture  valued at about $2.7 million.


4
At the direction of Donald Shaffer, the  company's national merchandise manager for  furniture, Montani surveyed the furniture  industry, sought advice from Sears's buyers and  contacted a number of liquidators. Montani  concluded that the best Sears could do would be  to sell the surplus at between 7 cents and 10  cents on the dollar of the original cost to  Sears. Montani reported this information to  Shaffer and received Shaffer's approval to sell  the furniture at 10 cents. However, Montani had  difficulty finding buyers even at that price.  Buyers naturally wanted to "preselect" the  furniture, taking only the merchandise that could  be sold and leaving Sears with the junk. Sears,  understandably, wanted to push its junk off on  the liquidators along with the salable  merchandise.


5
A few years before moving to Chicago, Montani  met Mark Israel, and the two discussed going into  business together. Israel partly owned Diebolt  Manufacturing, Inc., and Fort Dearborn Screw and  Bolt, Inc., and had been involved in a similar  liquidation transaction with Jack Knippel, a man  who would eventually become the purchaser of the  Sears furniture. Sometime in late 1991, Israel  and Montani met and began to talk about Montani's  liquidation problem. At this point, Israel's and  Montani's versions of the story diverge. Israel,  who agreed to testify against Montani in exchange  for a plea agreement, said that Montani suggested  that Israel purchase the furniture from Sears at  10 cents on the dollar, and if Israel could find  a buyer at a higher price, the two would split  the proceeds. Montani testified at trial that he  did not have any idea until after the first  transaction had been completed that Israel would  share the profits with him. Israel formed a  company called D&M Sales in 1991, and in December  1991, the company entered its first deal with  Sears to buy liquidated furniture at 10 percent  of cost.


6
D&M Sales reached a deal to resell the  furniture to the Brutus Company, run by Knippel,  for 50 cents on the dollar. (Montani contends  that Israel told him that Knippel was paying 30  cents on the dollar, proving, once again, the  adage about honor among thieves.) To pay Montani  his share and avoid detection by Sears, Montani  opened a bank account in the name of Retail  Logistics Consulting, for whom Montani would be  paid as a "consultant." This "salary" was in  reality Montani's share of the 20 cent per dollar  profit earned on the sale to Knippel. Montani  asserted that Israel did not offer to split the  profits with him until after the first  transaction had been completed. When presented  with the offer, however, Montani readily accepted  and had Israel write a check for $14,500 to  Retail Logistics Consulting, which was in fact  Montani. Montani said he did not consider the  payment a kickback and insists it had no effect  on his decision to continue selling to D&M.  Instead, he considered it a "gift" from Israel.  Sears never knew that Montani was receiving  payments connected to the furniture sales nor  that Montani had found, directly or indirectly,  a purchaser who would pay 50 cents on the dollar  for the merchandise.


7
The last shipment to D&M, and its last shipment  to Brutus, arrived in late 1992. In that time,  Knippel had received between 150 and 200 tractor-  trailers full of furniture and had paid Israel  $821,955. Knippel resold the furniture for about  $750,000. Israel had paid Sears $196,304.41, or  about 7 cents on the dollar, and given Montani  more than $306,632.10. Israel apparently  attempted to keep for himself the extra 20 cents  on the dollar that Knippel paid him, but it is  unclear from the record how much Israel received  in total, although it was at least as much as  Montani received. At the same time, the two also  had been running a separate scheme to dispose of  Sears's used mattresses through a company called  CDG Co. A Sears subsidiary, Sears Logistics  Services, paid liquidators to take the used  mattresses, and CDG entered into an agreement  with the subsidiary to take the mattresses for a  $2.50 per unit fee. In fact, CDG was run by  Israel under the false name Robert Allyn and  managed by Diane Montani, the defendant's wife.  Sears's checks to CDG actually went to Montani's  post office box. The CDG transactions were not  included in the indictment in this case, but  evidence of the scheme was admitted at trial as  evidence of other wrongs under Rules 404(b) and  608(b) of the Federal Rules of Evidence.


8
In October 1992, an internal audit showed  Montani's unit had been losing more money than  expected and that most of the losses were related  to Montani's sales. Montani told the auditor,  James Terrell, that D&M Sales was a liquidator  and that 10 cents was better than Sears could  expect anywhere else. In March 1993, Sears  officials questioned Montani again, and Montani  told them that he had received more than $300,000  from Israel as a consultant on deals unrelated to  the furniture liquidation. After that meeting,  Montani and Israel attempted to falsify some  documents to prove Montani really was doing  consulting work for D&M. Montani also falsified  federal tax returns for 1991, 1992 and 1993 in an  effort to convince Sears that he had legitimately  earned the income as a consultant through Retail  Logistics. Montani met again with Sears officials  about two weeks after the first meeting, and now  accompanied by an attorney, he stuck to his story  about consulting for D&M. Sears fired Montani at  this second meeting.


9
In January 1998, Montani and Israel were  indicted on a one-count indictment charging them  with using the mails to defraud Sears in  violation of 18 U.S.C. sec.sec. 2 (aiding and  abetting), 1341 (mail fraud) and 1346 (right to  honest services). Israel accepted a plea  agreement and testified against Montani. The jury  convicted Montani on October 29, 1998, and he was  sentenced by Judge Williams on March 12, 1999.  Section 2B4.1 of the United States Sentencing  Guidelines mandated a base offense level of  eight, and directed the district judge to follow  the table in sec. 2F1.1 to enhance the  defendant's sentence depending on the amount of  the "improper benefit to be conferred" by the  fraud. U.S.S.G. sec. 2B4.1(b)(1). Judge Williams  calculated that benefit as $625,651, which  represents the difference between the amount  Knippel paid D&M and the amount D&M paid Sears.  At that amount, sec. 2F1.1 requires a ten-level  increase. In addition, Judge Williams added four  levels for abusing a position of trust and  obstructing justice for a total score of twenty-  two points, which translates into a forty-one to  fifty-one month sentencing range. Judge Williams  sentenced Montani to forty-one months in prison.

II.  Analysis

10
Montani raises four issues on appeal. First, he  challenges the district court's decision to admit  at trial evidence of Israel's guilty plea.  Second, he challenges the court's decision to  allow evidence regarding the CDG enterprise under  Rule 404(b). Third, Montani challenges the  sufficiency of the evidence against him, and  finally, he contends the district court committed  error by enhancing his sentence ten levels under  sec. 2F1.1.

A.  Co-defendant's Plea

11
Montani contends that the district court  improperly allowed evidence of Israel's plea  agreement to be admitted at trial. This Court  reviews for abuse of discretion a trial judge's  decision to admit or exclude evidence. See United  States v. Gibson, 170 F.3d 673, 680 (7th Cir.  1999); United States v. Mealy, 851 F.2d 890, 898  (7th Cir. 1988).


12
The well-settled rule in this Circuit allows  the government to take the sting out of a  defendant's cross-examination by introducing  evidence of a co-defendant's plea agreement as  part of its case in chief. See Mealy, 851 F.2d at  898; United States v. LeFevour, 798 F.2d 977,  983-84 (7th Cir. 1986). A party may not "bolster  the credibility" of a witness on direct  examination, but we have held repeatedly that  introducing evidence of a witness's guilty plea  or immunity deal serves the "truth-seeking"  function of the trial by presenting all relevant  aspects of a witness's testimony at one time. See  LeFevour, 798 F.2d at 983; see also United States  v. Hedman, 630 F.2d 1184, 1198 (7th Cir. 1980);  United States v. Craig, 573 F.2d 513, 519 (7th  Cir. 1978).


13
Montani does not dispute this settled point of  law. Rather, he argues that because he offered to  stipulate before trial that he would not use  evidence of Israel's guilty plea to impeach  Israel's testimony, the reasoning of LeFevour  does not apply. Since he agreed not to impeach  Israel with the guilty plea, Montani believes the  government's only purpose in introducing Israel's  guilty plea was to convince the jury that the  scheme to resell the furniture was not an  innocent business transaction. Montani's argument  is not without force. In most criminal trials, no  one disputes whether a crime was committed;  rather, the focus is on who committed it or under  what circumstances. Here, the key issue was  whether the transactions were innocent business  deals or criminal frauds. Israel's guilty plea  would understandably persuade the jury that the  deals were crooked.


14
However, Montani relies too heavily on only one  aspect of the reasoning in LeFevour, in which we  articulated one reason for allowing the  government to introduce a co-defendant's guilty  plea. LeFevour, 798 F.2d at 984. In LeFevour, we  also explained that immunity agreements were  "relevant to putting the essential circumstances  of these witnesses' testimony before the jury  even if there was no expectation of  cross-examination." Id. (emphasis added); see  also United States v. McNeal, 77 F.3d 938, 945  (7th Cir. 1996). The point is to present all  relevant evidence at once, rather than in  piecemeal fashion. As in LeFevour, when the jury  would naturally and unavoidably wonder why the  witnesses were testifying about crimes in which  they were participants, impeachment is presumed,  and the government is not required to leave these  doubts floating in the jurors' minds. In such a  case where the witness's guilt in the acts about  which he has testified unavoidably would be  raised in the jurors' minds, the government's  introduction of the guilty plea does not  "bolster" the witness's credibility at all.  Instead, it merely allows the government to  provide the impeaching fact on its own terms, as  permitted by LeFevour and its progeny.


15
In this case, the district court held that  "[a]llowing the government to elicit this  testimony from Israel during his direct  examination does not amount to bolstering . . .  Moreover the court can give limiting instructions  that will cure any potential prejudice to  Montani." We think this is correct. The evidence  adduced at trial implicated Israel in a scheme to  bribe a Sears employee to procure a favorable  deal in violation of sec. 1341. The jury could  not help but wonder why Israel was testifying for  the government and whether he had been charged in  the crime. His credibility was impeached by his  own testimony. No case in this Circuit holds that  the government must wait for the defense to  impeach a witness with evidence of a guilty plea  before the government may answer with its own  evidence of that plea.


16
Montani points to a Third Circuit case for the  proposition that a court may not allow evidence  of a witness's guilty plea on direct examination  if the defense agrees not to elicit any  information regarding the pleas during cross-  examination. United States v. Thomas, 998 F.2d  1202, 1205-07 (3d Cir. 1993). We do not read  Thomas this broadly and note that it does not  address the heart of LeFevour's reasoning. Thomas  correctly held that the district court may not  allow evidence of a witness's guilty plea without  some proper purpose that outweighs the  prejudicial effect of the testimony. Id. at 1205  ("[T]he reasons of the district court for  admitting the evidence of [the] guilty pleas are  inadequate to support the risk of jury prejudice under the facts of this case."). The court in  Thomas examined the reasons given by the district  judge and found that on the particular facts of  that case, the reasons were insufficient. Id. at  1203-07. The district court in Thomas allowed  testimony about the co-defendants' guilty pleas  so that the government could blunt the defense's  impeachment of its witnesses and prevent the  inference that the defendant had been singled out  among the conspirators. Because the defense had  promised not to raise either of those inferences,  the circuit court found that the district court  had not relied on any proper purpose for allowing  the evidence.


17
We agree with the logic of Thomas, but disagree  with the defendant's assertion that this Third  Circuit case, rather than LeFevour, controls this  case. The district court here expressly relied on  a proper purpose in admitting the evidence:  Israel's credibility was impeached by his own  testimony, and the government has a right to  bring out evidence explaining to the jury the  reasons for and extent of Israel's bias. The  Third Circuit did not address the purpose we  endorsed in LeFevour, which is to allow the  government to present all relevant aspects of its  case at one time, including the circumstances  surrounding the testimony of an obvious co-  conspirator. As we said in LeFevour, 798 F.2d at  983, and the district court noted in its order  allowing Israel's testimony, this does not amount  to "bolstering." By virtue of Israel's testimony,  the jury could not help but wonder why a criminal  such as Israel was a friendly witness to the  government. His integrity and character for  truthfulness would be questioned, and the  government had a right to explain the  circumstances regardless of whether Montani  intended to impeach Israel. We cannot say that  this was an abuse of discretion. In fact, it was  probably harmless in that it showed Israel to be  less trustworthy as a witness for the government.  There certainly would be some prejudice in  showing that Israel was engaged in a criminal act  purportedly with the defendant, but this could be  cured, as it was in this case, through the usual  method of instructing the jury to consider the  evidence only for credibility.

B.  The CDG Scheme

18
Montani next challenges the district court's  decision to allow evidence of the CDG scheme  under Rule 404(b) of the Federal Rules of  Evidence. Rule 404 prohibits the use of character  evidence for the purpose of proving that a  defendant acted in conformity with his character  on a particular occasion. Fed. R. Evid. 404.  Montani admits that under Rule 404(b), evidence  of "other crimes, wrongs, or acts" may be  admitted for purposes other than to prove the  defendant's bad character, such as to prove the  defendant's motive, intent or knowledge or a  common scheme or plan. Fed. R. Evid. 404(b).  However, Montani contends that the facts of the  CDG and D&M plans were too dissimilar to be  relevant to guilt and therefore were merely  prejudicial.


19
As a preliminary matter, the parties dispute  whether Montani waived or forfeited his objection  to the use of the similar acts evidence by  broaching the topic before the government did. We  resolved this issue in Wilson v. Williams, 182  F.3d 562, 566 (7th Cir. 1999), in which we held  that a "preemptive use of evidence does not waive  an established objection." In Wilson, the  plaintiff lost a pretrial effort to exclude  evidence of his conviction but then introduced  the topic in his opening statement. In the same  vein, Montani questioned Israel about the CDG  enterprise on cross-examination in the  government's case, even though the government,  which had sought before trial the right to bring  the evidence in, had not used it. However, the  trial court's ruling on the matter was  definitive, and Montani was entitled to the  anticipatory use of the evidence. We held in  Wilson that a party is not required to object at  trial to a definitive pretrial ruling. See id. at  565-66. Montani adequately preserved the issue  for appeal, but this victory is a hollow one.


20
In United States v. Shackleford, 738 F.2d 776,  779 (7th Cir. 1984) (modified on other grounds by  Huddleston v. United States, 485 U.S. 681, 685  (1988)), we recognized a four-part test for  admissibility of Rule 404(b) evidence requiring,  among other things, that the prior act be similar  enough to the matter at issue to be relevant. In  United States v. Lloyd, 71 F.3d 1256, 1264-65  (7th Cir. 1995), we held that the test "need not  be unduly rigid" and the prior and instant acts  need only be "sufficiently alike to support an  inference of criminal intent." The two acts must  share common characteristics relevant to the  purpose for which they are introduced. See United  States v. Long, 86 F.3d 81, 84 (7th Cir. 1996)  (citing United States v. Torres, 977 F.2d 321,  326 (7th Cir. 1992)). Thus, the term "similarity"  has been loosely interpreted and loosely applied.  See, e.g., Lloyd, 71 F.3d at 1263-66 (holding  that evidence of the defendant's gang  affiliations and activities were relevant to the  defendant's possession of a firearm); Torres, 977  F.2d at 327-28 (allowing evidence of the  defendant's involvement in two unrelated, violent  retaliatory incidents in prosecution for  retaliation against a federal witness).


21
The facts of CDG require much less of a  comparative leap to establish relevance to the  D&M scheme. In CDG, the defendant used his  position of trust and influence as a Sears  employee to rig a self-dealing arrangement that  funneled company resources to an entity in which  he had a secret interest. Montani created the  alias Robert Allyn for Israel to conceal Israel's  involvement and used a post office box to hide  where the checks were going. Montani needed to  avoid detection for violating the company's  ethical code, which prohibited an employee from  having "any personal financial dealings with any  individual or business organization . . . which  is a supplier to Sears of merchandise, supplies,  property, or services." Montani contends that the  CDG scam--like the D&M scam--did not actually  harm Sears because Sears got the best price the  market would bear. However, he fundamentally  misunderstands why his actions constituted an  illegal bribery scheme: Sears was entitled to the  best efforts of its employee without paying a  premium in the form of secret profits. The  district court held that the CDG deal was  sufficiently similar to the charged crime and not  unduly prejudicial. Based on the overwhelming  similarity, we cannot call the court's ruling an  abuse of discretion.


22
Montani also contends that the district court  erred in permitting testimony regarding the CDG  venture under Rule 608(b), which permits inquiry  on cross-examination into specific instances of  a witness's conduct only to impeach a witness's  character for truthfulness. Fed. R. Evid. 608(b);  see United States v. Smith, 80 F.3d 1188, 1192  (7th Cir. 1996). Montani again contends that  because Sears benefitted from the CDG deal, the  deal could not be fraud and therefore could not  be probative of his character for truthfulness.  Considering Montani's extensive efforts to hide  the involvement of his wife, Israel and himself,  it is difficult to understand his argument that  the CDG issue is not probative of his character  for truthfulness. Moreover, we point again to the  underlying rationale behind commercial bribery  laws: Sears paid Montani a salary which entitled  it to his best efforts without being undermined  by kickbacks, side payments or bribes. The fact  that he would participate in the secret CDG  scheme is highly probative of his lack of  character for truthfulness.

C.  Sufficiency of the Evidence

23
Montani next undertakes the daunting task of a  wholesale attack on the sufficiency of the  evidence supporting the jury's verdict. Montani  contends that the evidence failed to show that he  formed the specific intent to defraud Sears, and  failed to show that Sears suffered any losses  from the deal with D&M. We consider the evidence  in the light most favorable to the jury's verdict  and will overturn "[o]nly when the record  contains no evidence, regardless of how it is  weighed, from which the jury could find guilt  beyond a reasonable doubt." United States v.  Hickok, 77 F.3d 992, 1002 (7th Cir. 1996)  (citations and internal quotations omitted).


24
To sustain a conviction for mail fraud under  sec. 1341, the government must prove three  elements: (1) the defendant participated in a  scheme to defraud; (2) the defendant intended to  defraud; and (3) the defendant used the mails in  furtherance of the scheme. See United States v.  Walker, 9 F.3d 1245, 1249 (7th Cir. 1993). The  evidence presented at trial clearly established  that Montani intended to deprive Sears of the  benefit of his honest services, in violation of  sec. 1346. Further, despite his protestations  that the transactions were legitimate business  deals, we believe there is sufficient evidence to  prove Montani knew he was defrauding Sears of the  premium he received by selling the furniture to  Knippel. Montani represented to Shaffer, his  superior, that the best price he could get for  the furniture under the terms specified by Sears  was 10 cents on the dollar. He then arranged with  his confederate, Israel, to sell the furniture,  on the same terms dictated by Sears, to a buyer  who would pay at least three times that amount.  To avoid detection, Montani and his confederate  constructed a front operation that would provide  cover for him to pocket half the extra profits.  Whether the payments are termed a bribe or theft  matters little. The transaction was fraudulent in  that it deprived Sears of both property--the 20  cents on the dollar it lost--and the honest  services of its employee. Even assuming Montani  had no intent to defraud Sears in the first  transaction, he continued to accept payments for  subsequent transactions knowing the scheme was  fraudulent.


25
Montani argues that he actually defrauded  Knippel and not Sears. This is a peculiar  defense, and it is also unavailing. Montani's  reasoning goes something like this: The furniture  deal was a "legitimate transaction in the  marketplace" as to Sears, but was fraudulent as  to Knippel. Montani would have the government  prosecute him for defrauding Knippel, but  exonerate him for defrauding Sears. This logic  rewards form over substance. Montani believes  that using Israel and constructing a sham  middleman (D&M) somehow insulates one fraud from  the other. If Montani had sold the furniture  directly to Knippel for 30 percent of cost, given  a third of that to Sears and secretly pocketed  the other two-thirds (or split it with a  confederate), the fraud would be apparent. Using  a sham middleman to create an appearance of  legitimacy is a transparent ruse which did not  fool the government, did not fool twelve citizens  on the jury and will not carry the day on appeal.

D.  Sentencing Enhancement

26
Montani continues this line of reasoning in his  final point, contending that the district court  erred in enhancing his sentence based on a  $625,651 fraud. Although Montani was convicted of  mail fraud, the government, Montani, the  probation officer and the district court agreed  that he should be sentenced under the bribery  guideline because his offense conduct more  closely resembled a fraud achieved through  bribery than a straight fraud. See United States  Sentencing Guidelines Manual sec. 1B1.2(a)  (allowing the sentencing court to apply the  guideline "most applicable to the offense of  conviction."). Section 2B4.1 of the Sentencing  Guidelines directs the court to increase the  offender's sentence by a number of levels  specified in sec. 2F1.1 "[i]f the greater of the  value of the bribe or the improper benefit to be  conferred exceeded $2,000." U.S.S.G. sec. 2B4.1  (emphasis added). A fraud of more than $500,000  but less than $800,000 earns the defendant a ten-  level increase in his sentence. See U.S.S.G. sec.  2F1.1.


27
The district court calculated the improper  benefit to Israel and Montani as the difference  between the price Knippel paid and the amount  Sears received, or roughly $625,000. We review de  novo a sentencing court's conclusions of law, see  United States v. McClanahan, 136 F.3d 1146, 1149  (7th Cir. 1998), and review for clear error its  factual findings in applying the Guidelines. See  United States v. Gwiazdzinski, 141 F.3d 784, 789  (7th Cir. 1998).


28
Montani insists the proper measure is the value  of the harm to Sears, which he calculates at zero  because Sears got as much as it expected from the  deal and the D&M-Knippel deal was a separate  legitimate transaction. Since we, and the jury,  have already dealt with the legitimate business  transaction argument once, we need not do so  again. We note only that Sears--not Montani--was  entitled to the $821,955 that a buyer was willing  to pay, a fact that the D&M front operation does  not change.


29
Montani cites to United States v. Andersen, 45  F.3d 217, 221 (7th Cir. 1995), and United States  v. Schneider, 930 F.2d 555 (7th Cir. 1991), for  the proposition that an enhancement under sec.  2F1.1 should not be applied if there is no proof  of an actual loss to the victim. These cases,  however, are inapplicable because they involve  defendants sentenced for fraud under sec.sec.  2B1.1 or 2F1.1. Montani was sentenced under sec.  2B4.1, the commercial bribery guideline, which  merely references the table in sec. 2F1.1 and  does not incorporate that section's substantive  standard for sentencing. The difference is  dispositive to this case: sec.sec. 2B1.1 and  2F1.1 direct the judge to measure only the  "loss," while sec. 2B4.1 directs the judge to  measure the "greater of the value of the bribe or  the improper benefit to be conferred." The  guideline then is quite clear. The improper  benefit to be conferred on D&M Sales was  $625,651, which earns an enhancement of ten  levels.


30
On a related point, we note that the court must  count the improper benefit accruing to D&M Sales,  rather than to Israel or Montani individually.  The Guidelines specifically instruct that the  value is determined by the "value of the action  to be taken or effected in return for the bribe."  U.S.S.G. sec. 2B4.1 application note 2. This  suggests (with no evidence of a contrary  suggestion found elsewhere) that the value should  be considered as a whole, not as individual  shares to each co-conspirator. See United States  v. Cohen, 171 F.3d 796, 803 (3d Cir. 1999)  (holding that improper benefit refers to the "net  value accruing to the entity on whose behalf the  individual paid the bribe."); United States v.  Fitzhugh, 78 F.3d 1326, 1331 (8th Cir. 1996)  (reasoning that the improper benefit may be  greater than the resulting loss to the victim);  United States v. Landers, 68 F.3d 882, 886 (5th  Cir. 1995) (calculating the improper benefit as  net value made by the entity on whose behalf  bribes were paid). In this case, Sears sold the  furniture to D&M Sales, which then sold it to  Knippel. D&M Sales, as we stated above, was a  front for the joint efforts of Montani and Israel  to defraud Sears. Whether one considers D&M a  real company created to defraud Sears and pass  along profits to Montani and Israel, or merely a  convenient disguise for the conspiracy operated  by Montani and Israel, the "entity" must be D&M  Sales rather than Israel alone. Therefore, the  net value is $625,651.


31
Montani's final argument, for which he devotes  two sentences and cites no authority, suggests  that only his share of the loot--roughly  $306,000--should be counted for sentencing  purposes. That interpretation would result in a  two-level decrease in his sentence. Montani's  point centers on how the court should view his  substantive offense conduct in relation to the  Guidelines instructions on fraud and bribery. As  a fraud, Montani's offense involved $625,000,  earning a ten-level increase on top of a base  offense level of six. Montani, however, was  sentenced under the bribery guideline, which  carries a base offense level of eight, on the  theory that Israel offered Montani a bribe to  award the fraudulent contract to D&M Sales. The  bribe came in the form of a split of the profits  from the fraud, resulting in a bribe of $306,000.  The question then is whether the "improper  benefit conferred" should include only the after-  bribe value to D&M Sales, or in other words,  whether the bribe amount should be deducted from  the "improper benefit."


32
This appears to be a question of first  impression for this Court, although other  circuits have had occasion to answer it already.  Section 2B4.1 offers conflicting advice. First,  it instructs the sentencing court to increase the  offense level "if the greater of the value of the  bribe or the improper benefit conferred exceeded  $2,000." U.S.S.G. sec. 2B4.1(b)(1) (emphasis  added). This language seems to instruct the court  to look at one but not both of the value of the  bribe or the improper benefit. However,  Application Note 2 defines "improper benefit" as  the "value of the action to be taken or effected  in return for the bribe." U.S.S.G. sec. 2B4.1  application note 2. It then incorporates by  reference the commentary to sec. 2C1.1, the  official bribery guideline, which expressly  instructs "[d]o not deduct the value of the bribe  itself in computing the value of the benefit  received or to be received." U.S.S.G. sec. 2C1.1  application note 2. In the background to sec.  2C1.1, the Sentencing Commission explained "[i]n  determining the net value of the benefit received  or to be received, the value of the bribe is not  deducted from the gross value of such benefit;  the harm is the same regardless of the value of  the bribe paid to receive the benefit." U.S.S.G.  sec. 2C1.1 background para. 3. If it is so clear  that the court should deduct the value of the  bribe, why then the "or" in sec. 2B4.1(b)(1)?


33
The answer lies in the purpose of sec.  2B4.1(b)(1). Section 2B4.1(b)(1) serves to  trigger an enhancement to a bribery conviction  based on the size of the crime, but allows for  situations where small bribes may cause great  harm or large bribes unexpectedly may result in  small improper benefits. In this way, it prevents  a defendant from arguing that a small bribe or a  small improper benefit should result in a shorter  sentence. Consider, for example, if the guideline  mentioned only the value of the improper benefit,  a defendant who had accepted a large bribe would  get a short sentence if the bribery scheme  unexpectedly resulted in a small profit, say  because the property taken turned out to be  worthless. The Guidelines take this potential  into account by instructing the judge to look at  both components of the bribery scheme--the bribe  and the benefit--to determine the magnitude of  the crime.


34
This does not mean that the court should deduct  the bribe from the "improper benefit." To the  contrary, Application Note 2 defines the improper  benefit as the "value of the action to be taken  . . . in return for the bribe." It envisions the  simple case where a person pays an official  $10,000 and gets rewarded with a $100,000  contract. Following sec. 2C1.1, the improper  benefit would be $100,000, not $90,000, because  $100,000 reflects the true magnitude of the  crime. In Montani's case, the bribe was not a  flat fee, but a share of the profits obtained by  D&M Sales. D&M received a $625,000 benefit from  which it paid a $306,000 bribe. The principle  remains, however, that the improper benefit is  $625,000, not $319,000.


35
The other circuits who have looked at this  issue concur. In United States v. Landers, 68  F.3d 882, 885 (5th Cir. 1995), the Fifth Circuit  expressly recognized that the value of the bribe  should not be deducted from the net value of the  improper benefit. In United States v. Schweitzer,  5 F.3d 44, 47 (3d Cir. 1993), the Third Circuit  also held that the amount of the bribe should not  be deducted from the "net value" of the improper  benefit. See also United States v. Leon, 2  F.Supp.2d 592 (D. N.J. 1998) (holding that "the  amount ofany bribe paid . . . would not be  deductible."). This rule comports with the  purpose of the sentencing guideline to measure  the true magnitude of the crime for which the  defendant was convicted. Allowing the defendant  to deduct the amount of the bribe would grant a  reprieve to those who received larger bribes  without regard to the amount of the "improper  benefit." To hold the contrary would grant  Montani a reduced sentence because his bribe was  $312,000 rather than $50,000. That cannot be the  outcome intended by the Commission.

III.  Conclusion

36
For the foregoing reasons, we find no error in  Montani's trial and uphold the sentence imposed  by the district court. The judgment and sentence  are AFFIRMED.

