                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0603n.06

                                           No. 07-6087
                                                                                      FILED
                             UNITED STATES COURT OF APPEALS                       Aug 26, 2009
                                  FOR THE SIXTH CIRCUIT                     LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )
                                                     )        ON APPEAL FROM THE UNITED
v.                                                   )        STATES DISTRICT COURT FOR
                                                     )        THE WESTERN DISTRICT OF
JOHN FORD,                                           )        TENNESSEE
                                                     )
       Defendant-Appellant.                          )



Before: MARTIN, NORRIS, and GILMAN, Circuit Judges.

       PER CURIAM. John Ford, a federal prisoner represented by counsel, appeals a district court

judgment sentencing him to sixty-six months of imprisonment and three years of supervised release

for violating 18 U.S.C. § 666. Finding no error, we affirm.

       On April 27, 2007, a jury convicted Ford of “Bribery Involving Federal Programs” in

violation of § 666. Ford’s advisory sentencing guideline range was seventy-eight to ninety-seven

months. Ford objected to his presentence report, arguing that he should not receive a two-level

enhancement for multiple bribes under USSG § 2C1.1(b)(1). Ford also objected to a two level

enhancement for obstruction of justice pursuant to USSG § 3C1.1. The district court overruled

Ford’s objections.

       In his timely appeal, Ford continues to challenge the two enhancements. The case has been

held in abeyance until we issued our en banc decision of United States v. White, 551 F.3d 381 (6th

Cir. 2008), petition for cert. filed (U.S. Mar. 24, 2009) (No. 08-9523).

       We review sentences imposed by the district court for reasonableness. United States v.

Smith, 474 F.3d 888, 892 (6th Cir. 2007) (citing United States v. Collington, 461 F.3d 805, 807 (6th

Cir. 2006)). Reasonableness review has both a procedural and a substantive component. See Gall
United States v. Ford
No. 07-6087
Page 2

v. United States, 128 S. Ct. 586, 597 (2007); United States v. Thomas, 498 F.3d 336, 339 (6th Cir.

2007). Thus, when reviewing a district court’s sentencing determination, we “first ensure that the

district court committed no significant procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence.” Gall, 128 S. Ct. at 597.

       “Assuming that the district court’s sentencing decision is procedurally sound, [we] should

then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion

standard.” Id. District courts are charged with imposing “a sentence sufficient, but not greater than

necessary” to fulfill the purposes of sentencing in § 3553(a)(2). United States v. Foreman, 436 F.3d

638, 644 (6th Cir. 2006) (internal quotation marks omitted). “The fact that the appellate court might

reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal

of the district court.” Gall, 128 S. Ct. at 597. In this circuit, we apply a rebuttable appellate

presumption of reasonableness to a sentence that falls within a properly calculated Guidelines range.

United States v. Vonner, 516 F.3d 382, 389 (6th Cir.), cert. denied, 129 S. Ct. 68 (2008)

(acknowledging that Rita v. United States, 551 U.S. 338, ___, 127 S. Ct. 2456, 2462, 2467 (2007),

gives courts of appeals the option of applying a presumption to within-Guidelines sentences). That

does not mean, however, that a sentence outside of the Guidelines range – either higher or lower –

is presumptively unreasonable. Rita, 127 S. Ct. at 2467 (“The fact that we permit courts of appeals

to adopt a presumption of reasonableness does not mean that courts may adopt a presumption of

unreasonableness.”). Rather, such a sentence carries no legal presumption. Id.

       Ford was indicted by a federal grand jury on May 25, 2005. Count one of the indictment

charged Ford with attempting to obstruct, delay, and affect commerce by means of extortion in

violation of 18 U.S.C. § 1951; count two of the indictment charged Ford with interference with

commerce by threat or violence in violation of 18 U.S.C. § 666. Counts three, four, and five of the
United States v. Ford
No. 07-6087
Page 3

indictment charged Ford with intimidation or force against witnesses in violation of 18 U.S.C.

§ 1512(b)(3).

        The evidence at trial showed that the FBI created a sting operation called “Operation

Tennessee Waltz” to investigate corruption in the Tennessee legislature. Ford, at the time a member

of the Tennessee Senate, accepted one $10,000 and numerous $5,000 bribes to support legislation

in favor of a fictitious company set up by the FBI called E-Cycle Management. The evidence also

showed that Ford made threats against an undercover FBI agent and a private party recruited by the

FBI to be part of the operation.

        A jury found Ford guilty of the bribery charge. A mistrial was declared on the obstruction

charge of the indictment, and was subsequently dismissed upon motion of the United States. The

jury found Ford not guilty on the remaining counts of the indictment.

        Prior to sentencing, Ford filed objections to the two-level enhancement contained in Ford’s

presentence report. The enhancement, made pursuant to § 2C1.1(b)(1), was added because Ford

received multiple bribes.

        After hearing arguments on the matter, the district court determined that the payments made

to Ford on behalf of E-Cycle constituted multiple bribes to Ford. The court found that the payments

made to Ford were not installments towards the payment of a larger, previously agreed upon amount.

The court noted that the payments were made on a monthly basis, and sometimes more frequently.

Further, the court found that the payments were generally made in connection with a specific action

by Ford, such as redrafting or amending a bill, or withdrawing the bill for consideration by the state

legislature. The court disagreed with Ford’s argument that the payments constituted a single bribe

because they were all made for a single benefit, that benefit being the introduction of specific

legislation.

        The district court ruled that the agreement in which Ford would receive benefits from the

public stock offering by E-Cycle, if the legislation passed, would qualify as a payment separate from
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No. 07-6087
Page 4

the monthly payments. This payment also established a basis for the enhancement under

§ 2C1.1(b)(1).

       The court also ruled on Ford’s objections regarding the two-level enhancement for

obstruction of justice contained in the presentence report pursuant to § 3C1.1. The presentence

report relied on the threats contained in the recorded conversations between Ford, the private party,

and the undercover agent, as well as the testimony regarding the threats.

       The United States played portions of the audio recordings introduced during the trial. The

first recording concerned the threats made to the private party during a meeting in Ford’s office on

February 3, 2005. The United States also played a recording that concerned the threat to the

undercover agent made by Ford.

       Ford argued that this conduct was the basis for the charges that Ford had been acquitted of

during trial, counts three through five of the indictment. Therefore, these actions should not be used

to enhance Ford’s guidelines calculations.

       The district court noted that the standard that was to be applied at sentencing was the

preponderance-of-the-evidence standard. The court stated that the provisions for an enhancement

under § 3C1.1 indicated that obstructive behavior can be varied. The court described the differences

between the enhancement provision of § 3C1.1 and the obstruction statute under which Ford was

acquitted. The court ruled that the evidence presented at trial established the threats by a

preponderance of the evidence and, therefore, the enhancement was applicable.

       Section 2C1.1(b)(1) imposes a two-level sentence enhancement for receipt of “more than one

bribe or extortion.” The Sentencing Commission’s commentary provides that “[r]elated payments

that, in essence, constitute a single incident of bribery or extortion (e.g., a number of installment

payments for a single action) are to be treated as a single bribe or extortion, even if charged in

separate counts.” USSG § 2C1.1 cmt. n.2.
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No. 07-6087
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       In making its determination, the district court relied first on United States v. Canestraro, 282

F.3d 427 (6th Cir. 2002), a Sixth Circuit case involving multiple gratuities under an analogous

Sentencing Guidelines provision. USSG § 2C1.2(b)(1). There the court held that the multiple

payments did constitute multiple gratuities that justified the imposition of the enhancement. Id. at

431-32.

       Second, the district court relied on the Second Circuit’s interpretation of § 2C1.1 in United

States v. Arshad, 239 F.3d 276 (2d Cir. 2001). The Arshad court identified several factors

commonly applied to determine if a payment, or payments, constitute multiple bribes, including:

1) whether “the payments were made to influence a ‘single action’,” id. at 280 (citing United States

v. Middlemiss, 217 F.3d 112, 124 (2d Cir. 2000); United States v. Martinez, 76 F.3d 1145, 1153-54

(10th Cir. 1996)); 2) “whether the pattern and amount of payments bear the hallmarks of installment

payments, such as a regular schedule of payments over a finite period of time toward a fixed final

sum, rather than a series of intermittent and varied bribes,” Arshad, 239 F.3d at 281-82 (citing

Middlemiss, 217 F.3d at 124; Martinez, 76 F.3d at 1153; United States v. Morales, 11 F.3d 915, 917

(9th Cir. 1993)); and 3) “whether the method for making each payment remains the same.” Arshad,

239 F.3d at 282 (citing Morales, 11 F.3d at 917).

       The district court’s enhancement of Ford’s sentence using § 2C1.1(b)(1) was not erroneous.

As the district court noted, the evidence presented at trial showed that the undercover agent and Ford

had not established a fixed sum that Ford would receive for the legislation. The payments made to

Ford were made in a manner to clearly influence more than one event. The evidence establishes that

each payment was accomplished by another action by Ford in his authority as a state senator. The

payments were made to Ford for 1) drafting the legislation; 2) placing the legislation before the

committee; 3) amending the legislation; 4) withdrawing the legislation; and 5) delaying the

legislation, all for the purpose of benefitting a fictitious, corrupt corporation. In addition to the

periodic payments, which establish that there was no regular schedule of payments and that there was
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No. 07-6087
Page 6

no agreed final fixed amount, Ford was given access to the corporation’s initial public stock options

once the legislation was passed. This second method of receiving payment, under Arshad, further

establishes that Ford received multiple bribes. Arshad, 239 F.3d at 282; see also Canestraro, 282

F.3d at 432 (holding that a “success fee” also constitutes a separate gratuity). As the district court’s

application of § 2C1.1(b)(1) is procedurally and substantively reasonable, Gall, 128 S. Ct. at 597,

the argument does not warrant the reversal of the district court’s sentence.

        Ford next contends that the district court erred by granting a two-level increase under § 3C1.1

for threatening and intimidating the private party and the undercover FBI agent because the jury had

found Ford not guilty of the obstruction charges. The district court noted at sentencing that even

though Ford was not convicted by the jury of the intimidation charges, the preponderance of the

evidence standard applies in sentencing proceedings. Based upon the evidence at trial, the court

concluded that Ford had engaged in obstruction and that the enhancement of § 3C1.1 applied. Ford

conceded in his brief that our decision in White would resolve this issue. In White, we held that so

long as the defendant receives a sentence that is at or below the statutory limit established by the

jury’s verdict, the district court does not violate a defendant’s right to a jury trial by examining other

facts, including acquitted conduct, when determining a sentence. White, 551 F.3d at 385. The

statutory maximum that Ford faced was ten years of imprisonment, three years of supervised release,

a $250,000 fine, and a $100 special assessment. Because Ford’s sentence was well below the

statutory maximum, under White, the district court’s implementation of § 3C1.1 does not render

Ford’s sentence procedurally or substantively unreasonable.

        Accordingly, we affirm.
