                                                                 [DO NOT PUBLISH]



                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT          FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                                                      APRIL 24, 2012
                                       No. 10-13376
                                                                       JOHN LEY
                                 ________________________
                                                                        CLERK

                             D.C. Docket No. 0:09-cr-60316-JIC-1



UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                    Plaintiff-Appellee,


                                            versus


FITZROY DANIEL SALESMAN,

lllllllllllllllllllll                                              Defendant-Appellant.

                                ________________________

                          Appeal from the United States District Court
                              for the Southern District of Florida
                                ________________________

                                       (April 24, 2012)
Before HULL and FAY, Circuit Judges, and BOWEN,* District Judge.

PER CURIAM:

       Defendant Fitzroy Salesman, a former city commissioner in Florida, appeals

his convictions and 51-month total sentence for two counts of accepting bribes in

programs receiving federal funds, in violation of 18 U.S.C. § 666(a)(1)(B), and two

counts of attempted extortion under color of official right, in violation of 18 U.S.C.

§ 1951. After review and oral argument, we affirm.

                                   I. BACKGROUND

       Defendant Salesman was elected as a Miramar, Florida, city commissioner

in 2001, and four years later, he was reelected. A few months after his reelection,

Salesman was suspended from his official duties for matters unrelated to this case.

Specifically, Salesman was suspended from June 30, 2005, until March 27, 2007,

and then again beginning December 11, 2007.

       Around March 2005, the Federal Bureau of Investigation (“FBI”) began a

public corruption investigation in south Florida, including the City of Miramar.

Salesman became a subject of that investigation in late March 2005. Salesman was

ultimately charged with bribery and extortion in connection with two cash



       *
         The Honorable Dudley H. Bowen, Jr., United States District Judge for the Southern
District of Georgia, sitting by designation.

                                               2
payments of $340 and $3,000 he received in July 2007.

A.    The FBI’s Initial Contacts with Salesman

      The FBI’s first contact with Salesman occurred at a strip club on March 25,

2005, when a cooperating witness introduced undercover FBI Agent Anthony

Velazquez (a.k.a. “Tony Lopez”) to Salesman. Salesman informed Agent

Velazquez that he was a Miramar city commissioner and showed him his ID badge.

For his part, Agent Velazquez told Salesman of his involvement in money

laundering and need for opportunities to “clean” $1-to-$2 million. Salesman

indicated his ability to assist Agent Velazquez in doing so by identifying potential

real estate opportunities in Miramar.

      Over the next several months, Agent Velazquez and Salesman met to discuss

the Miramar investment opportunities and to meet other “associates” of Agent

Velazquez. Although Salesman was suspended on June 30, 2005, the FBI

continued to contact Salesman. Agent Velazquez arranged a meeting for August

24, 2005, where Salesman was to meet some of Velazquez’s other associates.

Salesman told Agent Velazquez before the meeting that he did not “even want to

know where [his associates] get their money from.” Striking a theme that he would

continue for the next few years, Salesman stated he had a consulting business and

his fee rate was between 1-2% for any real estate opportunities he presented, but


                                          3
only if the deal was completed.

       At the August 2005 meeting, Agent Velazquez introduced Salesman to the

undercover agents who would primarily run the investigation of Salesman for the

next several years: Agent Dave Billitier (a.k.a. “Dave Bianchi”) and Agent Michael

McGowan (a.k.a. “Mike Moretti” or the “Old Man”). Agents Billitier and

McGowan represented themselves as businessmen involved in construction

through their company Target Construction (“Target”).1 They wanted real estate

construction work in south Florida. Salesman offered assistance, indicating that he

could provide introductions to local government officials, who would help Target

obtain the desired construction jobs. After being told that Agent Velazquez and

Agent McGowan had perpetrated insurance fraud together, Salesman was unfazed,

suggesting at one point that he receive money in exchange for helping Agent

McGowan obtain a construction deal.

B.     Salesman’s Efforts for Target During His Suspension

       Salesman continued his involvement with the undercover agents throughout

the period of his first suspension. In September 2005, Salesman met with Agents

Velazquez and Billitier to discuss real estate opportunities. The men discussed



       1
         Target Construction was an actual company run by Stephen Scacco. Scacco agreed to
assist the FBI in this investigation.

                                             4
Agent McGowan’s method of business, which was “greasing palms” to obtain the

desired work. Salesman expressed unease with this “old school” method, noting

the possibility of jail. Instead, Salesman offered a purportedly safer way of

obtaining work by brokering introductions and opportunities, through his position

as a “consultant.” Salesman, however, demurred from being present when the

actual deals were made.

      Salesman met two other “associates” of Agent McGowan’s in January 2006,

undercover FBI Agent Patrick Wren (a.k.a. “Pat Foster”) and Patrick Lochrie, a

cooperating witness. They discussed real estate opportunities in Broward County,

and Salesman offered to introduce Agent Wren and Lochrie to local politicians.

The three men met again in February 2006, where Agent Wren and Lochrie

advised Salesman that Agent McGowan was willing to pay to obtain construction

work. At a meeting a week later, Agent Wren offered an envelope containing

$1,500 cash to Salesman for providing introductions to local politicians. Salesman

accepted the envelope.

      On February 27, 2006, Salesman introduced Vice Mayor Josephus

Eggelletion to Agent Wren and Lochrie, describing them as representatives of a

construction company interested in work in Broward County. Agent Wren

explained that they would provide any appropriate financial compensation to assist


                                          5
the award of the construction contracts. Vice Mayor Eggelletion observed he knew

of a suitable project that had been recently awarded, but could be “blow[n] . . . up”:

an affordable housing project in Lauderhill, Florida. After the meeting, Salesman

told Agent Wren and Lochrie that if he did not deliver on the job, they did not owe

him anything.

       Salesman and Agent Wren met with Dale Holness, a Lauderhill city

commissioner, to discuss the affordable housing project on April 11, 2006.

Salesman explained that “the old man was willing to do anything he needed to to

get contracts.” Holness then called a city employee on his cellular telephone.

Later that same day, Agent Wren gave Salesman an envelope containing $1,000

cash, which Salesman accepted. Subsequently, at Agent Billitier’s request, Target

submitted bids for major projects in Lauderhill, but was not awarded them.

       Also in April 2006, Salesman discussed with Agent Wren and Lochrie the

possibility of obtaining no-bid contracts2 for Target. Salesman mentioned a

potential gazebo project in Miramar, and then called Miramar City Manager Robert

Payton to arrange a meeting to discuss the no-bid contracts. Salesman told Payton

he was providing consulting work for Target. At the meeting with Payton,



       2
        “No-bid” construction contracts were those under $50,000 in value. Construction
contracts worth more than $50,000 were required to go through a public bidding process.

                                              6
Salesman inquired whether Payton had any no-bid contracts to give Target. Payton

eventually agreed to give Target the gazebo construction project.

      To follow up on his agreement, Payton called Lowell Borges, the chief

operations officer for Miramar. Borges had the ultimate power to award the no-bid

construction jobs. Payton suggested the gazebo project be given to Target.

Salesman also called Borges to recommend Target for the job.

      Borges, however, delayed award of the project due to budget issues. While

the project was on hold, Salesman repeatedly called Borges for status updates and

inquiries about whether Target was kept busy. Salesman also met another

undercover FBI Agent, John Osa. Agent Osa and Salesman arranged a boat day-

trip with some elected officials, Salesman, and Agents Wren and McGowan for

February 24, 2007.

      Months after the gazebo project was first discussed, funds finally became

available. On March 16, 2007, Target submitted a quotation for the gazebo of

$34,366 and was awarded the project. Salesman was reinstated as commissioner

effective March 27, 2007, before the project was completed.

C.    Salesman’s Efforts for Target While an Active Commissioner

      Target completed the gazebo project in about five weeks. Eric Berry, the

Assistant Director of the Miramar Parks Department, signed off on the project on


                                         7
April 20, 2007, and a week later, mailed a check for $34,366 to Target.

      On April 30, 2007, Agent Osa called Salesman letting him know that he was

now overseeing Agent McGowan’s construction contracts. Salesman responded

that he would see if any construction projects were available for Target. Agent

Osa commented that he would allow Salesman time to settle back in office.

      Following Target’s receipt of payment for the gazebo, Agent Osa and

Salesman met on May 10, 2007, to discuss how Salesman was to be paid.

Salesman expressed concern about the possibility of jail if taxpayers’ money was

misused. Salesman noted that he had refused a suggestion by Agent Wren to sign a

contract because he only took money when he delivered on a deal, and only then

would he name his fee. Eventually, Agent Osa and Salesman reached a fee

agreement, whereby Salesman would receive 1% of the contract price. Salesman

noted his belief that as long as the contractor performed the work it was hired to

do, then no kickback was involved.

      Additionally, Salesman reiterated to Agent Osa that he was acting as a

consultant and gave Agent Osa his business card for “FDS Funding and

Consulting.” The company was registered in Tallahassee as a sole proprietorship.

At trial, however, the government introduced Salesman’s personal income tax

returns for the years 2005–2007, which showed Salesman had not reported any


                                          8
income from FDS Funding and Consulting, despite receiving several thousand

dollars from undercover FBI agents in 2006 and 2007. As a sole proprietor of a

business, Salesman was required to report any income from the business on his

personal income tax return.

      Salesman continued to contact Miramar officials about further construction

opportunities for Target, including another gazebo project. At one meeting with

Agent Osa in May 2007, Salesman told him that there was a future gazebo project

available. Agent Osa stated that Agent McGowan would be in town at the end of

the month to “settle up.”

      On July 11, 2007, Salesman met with Agent Osa and Agent Billetier to

discuss upcoming projects and to receive payment for the gazebo project.

Salesman promised to confirm a potential renovation project—the construction of a

sprung wood floor for a recreation center—and the second gazebo project. Agent

Osa handed Salesman an envelope containing $340 cash, representing Salesman’s

approximately 1% fee, as determined by the $34,366 contract price of the first

gazebo project. Agent Osa told Salesman his “bonus” depended on him obtaining

confirmation about future projects.

      Agent Osa contacted Salesman on July 28, 2007, letting him know that

Agent McGowan was in town and “had a present for him.” That afternoon,


                                         9
Salesman met Agents Osa, Wren, and McGowan at a hotel. After chatting about

upcoming construction projects, Salesman met with Agent McGowan alone in his

room. They discussed Target’s past work in Miramar, as well as future projects,

including the potential renovation project. Agent McGowan noted Salesman’s

reinstatement as a commissioner was good for his business. Salesman agreed that

his return to office augured growth for Target, emphasizing his positive

relationship with the other city officials, and taking credit for Target’s ability to

receive the projects. After continued inquiry about Salesman’s efforts for Target,

Agent McGowan asked Salesman why he deserved a bonus. Salesman emphasized

his role in having Target obtain small projects and build city officials’ trust, which

would then lead to the award of larger projects.

      The conversation topic turned to Salesman’s compensation. Salesman

reiterated that he did not ask for money until he delivered on his promises. Agent

McGowan asked whether Salesman had a problem with a good faith payment, and

Salesman assured him he did not. Agent McGowan then counted out $3,000 and

placed the cash into an envelope on the hotel room’s table, characterizing it as a

“bonus.” After pocketing the envelope, Salesman left the room.

      In the hotel lobby, Salesman confirmed to Agent Osa that he had received

$3,000 from Agent McGowan. They discussed the potential renovation project


                                           10
again. Salesman directed Agent Osa to keep up with the project, as Agent

McGowan knew about it.

      In August 2007, following encouragement from city officials Berry and

Borges, Target submitted a quotation for the renovation project and was awarded

the job. Target completed the construction on September 19, 2007, and on October

13, 2007, received a check for $28,475.

      Agents Wren and Osa met with Salesman on September 18, 2007, to discuss

future projects for Target. Salesman noted that budget cuts had impeded the

availability of new construction projects. Salesman further advised that he needed

to be cautious in his activities because he was no longer suspended; under Florida’s

Sunshine Law, if he accepted any compensation from them, it would be considered

a kickback. Nevertheless, Salesman agreed to continue their relationship, and in

fact called Borges during the meeting to tell him to keep Target busy.

D.    Conclusion of the Investigation

      Salesman had two final meetings with FBI agents, on December 4, 2007,

and February 12, 2008, to discuss potential construction work. Salesman stated

that the contracts had been cut back due to the bad economy and that he would not

accept any more money until he delivered. No other projects materialized.

      On November 12, 2009, Salesman was indicted. The superseding


                                          11
indictment charged Salesman, as a Miramar city commissioner, with accepting

bribes (the $340 and $3,000 payments) in programs receiving federal funds, in

violation of 18 U.S.C. § 666(a)(1)(B) (Counts 1 and 2); extortion and attempted

extortion under color of official right, in violation of 18 U.S.C. § 1951 (Counts 3

and 4); deprivation-of-honest-services mail fraud, in violation of 18 U.S.C.

§§ 1341 and 1346 (Count 5); and deprivation-of-honest-services wire fraud, in

violation of 18 U.S.C. §§ 1343 and 1346 (Count 6).

      Salesman pled not guilty and proceeded to a jury trial. The jury found

Salesman guilty of Counts 1 through 4, and acquitted him on Counts 5 and 6.

E.    The PSI and Pre-Sentence Objections

      The Presentence Investigation Report (“PSI”) determined Salesman’s base

offense level was 14, pursuant to U.S.S.G. § 2C1.1(a)(1). The PSI then increased

the level by 16, as follows: 2 levels because the offense involved more than one

bribe, pursuant to U.S.S.G. § 2C1.1(b)(1); 10 levels because the benefit received in

return for the bribe was between $120,000 and $200,000, pursuant to U.S.S.G.

§ 2C1.1(b)(2); and 4 levels because Salesman was an elected public official,

pursuant to U.S.S.G. § 2C1.1(b)(3). Salesman’s total adjusted offense level was

30. With 1 criminal history point, his criminal history category was I. The

resulting advisory guidelines range was 97 to 121 months’ imprisonment as to each


                                         12
count. The statutory maximum term was 10 years for Counts 1 and 2, and 20 years

for Counts 3 and 4.

      Prior to the sentencing hearing, Salesman filed several objections, of which

only one is relevant on appeal. Salesman argued the PSI incorrectly calculated the

benefit received as a result of his offenses because it was based on (1) Target’s

30% profit on completed projects, when there was no evidence at trial that Target

actually received that percentage, and (2) two projects that, based on the evidence

at trial, had never been awarded to Target.

F.    Sentencing Hearing

      At sentencing, the district court partially granted Salesman’s objection

regarding the calculation of the amount of the benefit received. Specifically, the

district court found that the government had established only a benefit amount of

more than $10,000 but less than $30,000, for the two completed projects of the first

gazebo job and the renovation flooring project. The court based the benefit amount

on testimony from Target’s Stephen Scacco, who testified he realized a 30% profit

on both of the finished projects, or a total of $22,000, and on work quotes that the

government introduced into evidence. Salesman’s total adjusted offense level

became 24, reflecting a 4-level enhancement under U.S.S.G. § 2C1.1(b)(2), and the

advisory range of imprisonment became 51 to 63 months.


                                         13
      Salesman argued for a sentence at the low end of the advisory guidelines

range, or for a downward variance. The district court questioned Salesman’s

counsel regarding another defendant’s sentence, as that defendant had been

convicted of similar bribery offenses. Salesman’s counsel admitted that he was

unfamiliar with the precise facts of that case. Nonetheless, he argued that the other

defendant had taken more money than Salesman had and that the facts of

Salesman’s case weighed in favor of a lesser sentence than the 37 months’

imprisonment the other defendant had received. The district court observed that

the other defendant had benefitted from a 3-level reduction for accepting

responsibility and pleading guilty, and that but for the reduction, she and Salesman

had the same adjusted offense level of 24.

      After Salesman spoke in allocution, the district court stated that it had

considered the parties’ arguments, the PSI, and the 18 U.S.C. § 3553(a) sentencing

factors. The court opined that Salesman was “every . . . bit as guilty” as the other

defendant and that the court recognized the need to avoid sentencing disparities

between defendants with similar records. The district court imposed a 51-month

sentence as to each count, to be served concurrently. The sentence, the court

observed, was justified by the other defendant’s “sentence imposed by this Court,

Mr. Salesman’s similar conduct, a category one criminal history, and Mr.


                                         14
Salesman’s failure to accept responsibility.” Further, the sentence “affords just

punishment, adequate deterrence, and meets the standard of reasonableness.”

Salesman reasserted his previous objections at the close of the sentencing hearing,

which the court overruled.

      The district court sentenced Salesman to concurrent terms of 51 months’

imprisonment and 36 months’ supervised release. Salesman then appealed.

                                 II. DISCUSSION

A.    Sufficiency of the Evidence

      Salesman challenges the sufficiency of the evidence to support his

convictions on all counts. This Court reviews de novo the sufficiency of the

evidence. United States v. McNair, 605 F.3d 1152, 1195 n.54 (11th Cir. 2010). In

our review, this Court “look[s] at the record in the light most favorable to the

verdict and draw[s] all reasonable inferences and resolve[s] all questions of

credibility in its favor.” United States v. White, 663 F.3d 1207, 1213 (11th Cir.

2011) (internal quotation mark omitted). To support a conviction, “[i]t is not

necessary that the evidence exclude every reasonable hypothesis of innocence or

be wholly inconsistent with every conclusion except that of guilt. A jury is free to

choose among reasonable constructions of the evidence.” United States v. Ospina,

823 F.2d 429, 433 (11th Cir. 1987).


                                          15
       1. Convictions for Bribery

       Salesman contends the evidence was insufficient to support his two

convictions for bribery under 18 U.S.C. § 666(a)(1)(B). This statute makes it a

crime for a state official to corruptly accept anything of value from another person

“intending to be influenced or rewarded” for official actions in that person’s favor.

Salesman argues he was not an agent of Miramar when he helped Target obtain the

first gazebo project, and he did not act corruptly in receiving the two cash

payments because he was not involved in the gazebo contract after reinstatement as

commissioner. See 18 U.S.C. § 666(d)(1) (defining “agent” as one who is

“authorized to act on behalf of another person or a government”).

       To the extent Salesman’s arguments rest on his assertion that there must be a

“quid pro quo,” they are without merit. In United States v. McNair, we squarely

rejected the proposition that a bribery conviction under § 666(a)(1)(B) requires

such proof. 605 F.3d at 1188; see also White, 663 F.3d at 1214 (reaffirming

McNair’s conclusion in the wake of Skilling v. United States, 130 S. Ct. 2896

(2010)).3

       3
        Salesman points to language in United States v. Siegelman, 640 F.3d 1159 (11th Cir.
2011), that arguably suggests there must be a quid pro quo. However, the jury instructions in
Siegelman contained a quid pro quo instruction, and this Court expressly stated it was not
deciding whether § 666 required a quid pro quo instruction. Regardless, we are obligated to
follow McNair under the prior panel precedent rule. See United States v. Fulford, 662 F.3d
1174, 1178-79 (11th Cir. 2011).

                                               16
      While it is unclear whether Salesman makes a sufficiency claim beyond his

misplaced quid pro quo argument, regardless, we conclude that there is sufficient

evidence to support the jury’s findings. As to Salesman’s suggestion that he could

not be convicted for actions taken while suspended, that much is true. Indeed, the

jury was instructed on this point, and the government acknowledged at trial that it

made “no contention that the defendant may be convicted of bribery based on

actions taken prior to March 26, 2007.” But Salesman took numerous actions

while not suspended that support his convictions. These continual efforts included

contacting city personnel such as Borges about Target, meeting with the

undercover FBI agents to discuss future city projects for Target, and telling Agent

McGowan when he accepted the July 28 payment that he would continue to deliver

future contracts for Target. Under § 666(a)(1)(B), “the government is not required

to tie or directly link a benefit or payment to a specific official act” by Salesman.

McNair, 605 F.3d at 1188. The jury could have reasonably inferred that Salesman

accepted the two cash payments not as a reward for his prior efforts in securing the

first gazebo project, but as a reward for his efforts on behalf of Target to find more

Miramar projects. See Ospina, 823 F.2d at 433.

      The evidence was also sufficient to support the jury’s conclusion that

Salesman “corruptly” accepted the two payments. The district court instructed the


                                          17
jury that “corruptly” meant acting “voluntarily, deliberately and dishonestly for the

purpose of either accomplishing an unlawful end or result or of accomplishing

some otherwise lawful end or lawful result by any unlawful method or means.”

Salesman argues that he was paid for his work as a “consultant” for Target only

during the period of his suspension. However, Salesman presented that argument

to the jury, and the jury rejected that theory.

      The jury’s finding as to that element is supported by the evidence showing

Salesman was aware that his behavior after he was reinstated was potentially illicit.

In a September 2007 meeting with the agents, for example, Salesman told them

that he had to be “very careful” in helping Target obtain Miramar construction

contracts because of state law prohibiting “kickback[s].” The jury also heard

evidence refuting Salesman’s claim that he acted as a consultant, such as refusing

to sign a contract and failing to declare any of the payments he accepted from the

agents on his income tax returns for 2005–2007. From all of this, a reasonable jury

could conclude that Salesman was guilty of both bribery counts.

      2.     Convictions for Attempted Extortion Under Color of Official Right

      Salesman’s second contention is that the evidence was insufficient to

support his convictions for attempted extortion under color of official right, in




                                           18
violation of 18 U.S.C. § 1951 (the Hobbs Act).4 The statute defines “extortion” as

“the obtaining of property from another, with his consent, induced by wrongful use

of actual or threatened force, violence, or fear, or under color of official right.” Id.

at § 1951(b)(2). In Evans v. United States, the Supreme Court held that the quid

pro quo requirement of the offense does not require fulfillment of the quid pro quo,

but only that “the public official receive[] a payment in return for his agreement to

perform specific official acts.” 504 U.S. 255, 268, 112 S. Ct. 1881, 1889 (1992).

In other words, “the Government need only show that a public official has obtained

a payment to which he was not entitled, knowing that the payment was made in

return for official acts.” Id. Salesman argues only that his acceptance of the two

payments was not “wrongful” because they were for his “consulting” services

performed while suspended as a commissioner, and thus there was no quid pro quo

for an official act.

       We reject Salesman’s argument and conclude sufficient evidence exists to



       4
        This section states:
       Interference with commerce by threats or violence
       (a) Whoever in any way or degree obstructs, delays, or affects commerce or the
       movement of any article or commodity in commerce, by robbery or extortion or
       attempts or conspires to do so, or commits or threatens physical violence to any
       person or property in furtherance of a plan or purpose to do anything in violation of
       this section shall be fined under this title or imprisoned not more than twenty years,
       or both.
18 U.S.C. § 1951(a).

                                                 19
support his attempted extortion conviction. A reasonable construction of the

evidence shows that Salesman accepted the payments and contemporaneously

agreed, in response to inquiry by the undercover agents, to try to help Target obtain

more city construction projects. Before accepting the $340 payment, Salesman

told Agents Osa and Billitier that he would contact city officials to obtain

information about the renovation project and then provide confirmation to them. A

couple weeks later, Salesman, before accepting the $3,000 payment, told Agent

McGowan that he had more projects to deliver, including the renovation project.

Salesman contends the payments were a “1% fee” and “bonus” for the original

gazebo project, but “[a] jury is free to choose among reasonable constructions of

the evidence.” Ospina, 823 F.2d at 433. We cannot say the jury’s construction and

verdict were unreasonable.

      3.     Entrapment

      Salesman argues the evidence was insufficient to establish that he was

predisposed to commit the bribery and extortion offenses. An entrapment defense

has two elements: (1) government inducement of the crime, and (2) the defendant’s

lack of predisposition. United States v. Brown, 43 F.3d 618, 623 (11th Cir. 1995).

The defendant bears the initial burden of showing government inducement. Id.

The burden then shifts to the government to prove beyond a reasonable doubt the


                                          20
defendant’s predisposition to commit the crime. Id. Salesman contends the

government failed to meet its burden because it offered no proof of similar conduct

before the FBI investigation began.

      This argument is meritless. Our inquiry on the second element focuses not

on “the defendant’s ability to engage in criminal acts,” but rather on whether the

defendant “prompt[ly] commi[tted] . . . the crime at the first opportunity,” which

“is enough to show predisposition.” Id. at 624. “The government need not

produce evidence of predisposition prior to its investigation.” Id. at 625. Here, the

evidence demonstrated that Salesman was ready and willing to commit the charged

crimes. At the initial meeting with Agent Velazquez, Salesman was informed that

his new companion had engaged in insurance fraud and money laundering.

Nonetheless, Salesman was not dissuaded from continuing his relationship with

Agent Velazquez and his associates. Salesman himself recognized that his

activities on their behalf were fraud with potential criminal repercussions,

observing at one point in May 2007 that there was a possibility of jail if problems

arose with Target’s construction projects. Further, before offering the $3,000 cash

to Salesman, Agent McGowan gave Salesman the opportunity to leave if

McGowan’s methods bothered him. Salesman nonetheless stayed and pocketed the

money. We also note that throughout the agents’ interactions with Salesman, they


                                         21
did not beguile him into committing the crimes by assuring him that his actions

would be lawful. Cf. Jacobson v. United States, 503 U.S. 540, 553, 112 S. Ct.

1535, 1543 (1992) (“The evidence that petitioner was ready and willing to commit

the offense came only after the Government had devoted 2 1/2 years to convincing

him that he had or should have the right to engage in the very behavior proscribed

by law.”). Thus, after reviewing the evidence, we conclude the government

presented sufficient evidence for a reasonable jury to find that Salesman was

predisposed to commit the bribery and extortion offenses.

B.     Right to a Fair Trial

       Salesman claims numerous errors in his trial, which together allegedly

deprived him of a fair trial.5 We review de novo a claim of cumulative error.

United States v. Hoffman-Vaile, 568 F.3d 1335, 1340 (11th Cir. 2009). But where

there is no error or only a single error, there cannot be cumulative error. United

States v. Waldon, 363 F.3d 1103, 1110 (11th Cir. 2004).

       1.      Jury Instructions

       Salesman raises four objections to the jury instructions, none of which were


       5
         We address only the errors on which Salesman presents argument. Salesman asserts in
passing several errors, but fails to present argument about them in his opening brief. Salesman’s
failure to present argument about these errors precludes this Court’s review. United States v.
Gupta, 463 F.3d 1182, 1195 (11th Cir. 2006); see also United States v. Magluta, 418 F.3d 1166,
1185 (11th Cir. 2005) (“[A]n appellant may not raise an issue for the first time in a reply brief.”).

                                                 22
raised below. Jury instructions that are challenged for the first time on appeal are

reviewed for plain error.6 United States v. Felts, 579 F.3d 1341, 1343-44 (11th Cir.

2009). Under the plain error standard, the defendant must show that an error

occurred, it was plain, and it affected substantial rights. United States v.

Barrington, 648 F.3d 1178, 1190 (11th Cir. 2011). If that showing is met, we have

discretion to correct the forfeited error if it seriously affected “the fairness,

integrity, or public reputation” of the district court proceedings. Id.

       There was no error, much less plain error, in the district court’s jury

instructions. Salesman first asserts the district court erred by not defining

“attempt” in its instructions. But the district court was under no obligation to do

so. See United States v. Gonzalez, 940 F.2d 1413, 1427 (11th Cir. 1991)

(“[T]erms [that] are within the common understanding of the jury need not be

defined in the jury instructions. ‘Attempt’ is not an overly technical or ambiguous


       6
         Salesman argues that review should be de novo because the district court failed to
present the opportunity to timely object to the jury instructions. As our above review of the
record shows, however, the district court presented Salesman with multiple opportunities to
object. And indeed, he did object—just not to the now-challenged instructions. We therefore
reject his request for de novo review.
        We also reject the government’s argument that Salesman invited any alleged error as to
the jury instructions. In response to the district court inquiry whether there were any objections
to the court’s draft jury charges, Salesman stated, “Just other than what was contained in our
pleadings that we filed in response to the government’s brief,” and other language to that effect.
He did not affirmatively state that the instructions were “acceptable,” nor did Salesman introduce
the proposed instructions. These facts distinguish Salesman’s case from the invited error case
cited by the government, United States v. Silvestri, 409 F.3d 1311, 1325-27 (11th Cir. 2005).

                                               23
term, nor is it beyond the common understanding of the jury.”). Accordingly, the

district court did not err in not defining “attempt.”

      Next, Salesman argues the district court erred by not instructing the jury on

the law applicable to receipt of payment by a state agent for work performed prior

to becoming a state agent. We are unpersuaded by this argument, for the district

court clearly instructed the jury that acts taken by Salesman while he was

suspended were not “official acts.”

      Salesman asserts it was error to charge the jury on the “reward” rather than

“influence” element of the statute. The statute, however, is framed in the

disjunctive, and the indictment tracked that language. The district court’s

instructions omitted the “influence” element and charged only on the “reward”

element, which actually narrowed the possible grounds for conviction. See United

States v. Castro, 89 F.3d 1443, 1452-53 (11th Cir. 1996) (“A constructive

amendment occurs when the essential elements of the offense contained in the

indictment are altered to broaden the possible bases for conviction beyond what is

contained in the indictment.”). We thus reject this argument, too. See United

States v. Simpson, 228 F.3d 1294, 1300 (11th Cir. 2000) (“[T]he law is well

established that where an indictment charges in the conjunctive several means of

violating a statute, a conviction may be obtained on proof of only one of the


                                           24
means, and accordingly the jury instruction may properly be framed in the

disjunctive.”).

        Salesman finally argues that the district court erred by not instructing the

jury that a quid pro quo was necessary for conviction on the bribery counts. As we

explained above, our precedent precludes this argument. See McNair, 605 F.3d at

1188.

        Accordingly, there was no error in the jury instructions.

        2.    Government Comments

        Salesman argues that the government’s closing argument impermissibly

vouched for the strength of the government’s case and disparaged defense counsel

and the defendant. Salesman points to several statements: (1) “Since the evidence

is so strong, since the defendant has been caught red-handed on tape recordings

eagerly taking his bribe money, there’s only one way he could be found not guilty,

if there was some confusion, if you had some difficulty applying the facts and the

law that [the district court] gave you and how that connects with the indictment.”;

(2) “[W]e just heard from defense counsel. And he gave his version of events. He

was able to speak out of, as attorneys sometimes do, both sides of his mouth.”; and

(3) “And while the defendant through his counsel is speaking out of both sides of

his mouth, so has the defendant as you have heard through the course of this trial.”


                                           25
Because Salesman failed to object below to these statements, we review for plain

error. United States v. Eyster, 948 F.2d 1196, 1206 n.14 (11th Cir. 1991). The

plain error rule is invoked in this circumstance only when a review of the entire

record persuades this Court that “a miscarriage of justice would otherwise result.”

United States v. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 1046 (1985).

      The prosecutor’s statements were not improper. The first two statements

were permissible comments on the quantum of evidence against Salesman and the

failure of the defense to address or counter the evidence. United States v. Chirinos,

112 F.3d 1089, 1100 (11th Cir. 1997) (“[I]t is not improper to comment on the

failure of the defense, as opposed to the defendant, to counter or explain the

evidence . . . .”). Salesman contends the third statement could be interpreted as a

reference to the jury’s having heard no testimony from him at trial. In context,

however, the statement clearly refers to the extensive recordings played during trial

of Salesman’s interactions with the undercover FBI agents.

      We also note that, even assuming any possible impropriety, the plain error

standard is not met for two reasons: The district court issued a curative instruction,

and the government’s evidence was strong. See United States v. Rodriguez, 765

F.2d 1546, 1560 (11th Cir. 1985). As to the first, the district court instructed the

jury that arguments of counsel were not evidence and that the government had the


                                          26
burden of proving guilt beyond a reasonable doubt. And second, as the evidence

recounted above demonstrates, the government had a convincing case against

Salesman. For these reasons, we conclude there was no error in the prosecutor’s

comments.

C.    Motion for New Trial

      Salesman argues the district court erred in denying his motion for new trial

based upon “new evidence.” This “new evidence” is a juror’s post-trial comment

to a newspaper that “a lot of the jurors agreed with the defense that there had been

some entrapment of Salesman by FBI agents who befriended him,” but the jurors

“had to follow the wording of the law.” This Court reviews for abuse of discretion

a district court’s denial of a motion for new trial. United States v. Vallejo, 297

F.3d 1154, 1163 (11th Cir. 2002).

      Here, the district court did not abuse its discretion in denying Salesman’s

motion for new trial. In its reasoning, the court observed that there was no

evidence of outside influence or extrinsic evidence having affected the jury’s

verdict; the juror’s comment in the newspaper article included the caveat that the

jury was bound to follow “the wording of the law”; the court’s entrapment

instruction had stated that entrapment could be found if a defendant was ready to

commit the charged offenses and the government “did no more than offer an


                                          27
opportunity”; and the jury had performed its assigned task by following the court’s

instructions. We agree with the district court’s well-reasoned order and thus affirm

the denial of the motion.

D.    Sentencing

      Salesman argues that his 51-month total sentence is procedurally and

substantively unreasonable. As to procedural error, Salesman argues the district

court improperly calculated his advisory guidelines range because the court based

its finding of the “benefit received or to be received” on speculation and erroneous

findings of fact. As to substantive error, Salesman argues his sentence is

disproportionate to the sentences received by the other targets of the FBI

investigation because they received shorter sentences for “more culpable

behavior.”

      This Court reviews the reasonableness of a sentence under a “deferential

abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41, 128 S. Ct.

586, 591 (2007). The party challenging the sentence carries the burden of

establishing unreasonableness. United States v. Talley, 431 F.3d 784, 788 (11th

Cir. 2005). This Court utilizes a “two-step process” in reviewing the

reasonableness of a sentence. United States v. Turner, 626 F.3d 566, 573 (11th

Cir. 2010). First, this Court determines whether the sentence is procedurally


                                         28
sound, and second, whether the sentence is substantively reasonable. United States

v. Gonzalez, 550 F.3d 1319, 1323-24 (11th Cir. 2008). The application of the

guidelines is reviewed “for clear error as to factual findings and de novo as to

questions of law.” United States v. Knight, 562 F.3d 1314, 1322 (11th Cir. 2009).

        1.    Procedural Reasonableness

        A sentence may be procedurally unreasonable if the district court, among

other things, improperly calculates the guidelines range. Gonzalez, 550 F.3d at

1323. At sentencing, the government must prove by a preponderance of the

evidence any fact to be considered by the district court, including the applicability

of any guidelines enhancements. United States v. Polar, 369 F.3d 1248, 1255

(11th Cir. 2004). This burden must be satisfied with “reliable and specific

evidence.” United States v. Sepulveda, 115 F.3d 882, 890 (11th Cir. 1997)

(internal quotation marks omitted). The findings of fact made by the sentencing

court may be based on “evidence heard during trial, undisputed statements in the

PSI, or evidence presented during the sentencing hearing.” Polar, 369 F.3d at

1255.

        Section 2C1.1(b)(2) of the guidelines, read in conjunction with the table in

§ 2B1.1(b)(1), provides for a 4-level enhancement “[i]f the value of the payment,

the benefit received or to be received in return for the payment, the value of


                                          29
anything obtained or to be obtained by a public official or others acting with a

public official, or the loss to the government from the offense, whichever is

greatest,” exceeded $10,000. U.S.S.G. §§ 2C1.1(b)(2), 2B1.1(b)(1)(C); United

States v. Huff, 609 F.3d 1240, 1245 (11th Cir. 2010). In this case, the value of the

bribes paid ($3,340) would be used in the calculation only if it exceeded the value

of the benefit or if the value of the benefit could not be determined with reasonable

certainty. Huff, 609 F.3d at 1245-46. The value of the improper benefit need only

be estimated. United States v. DeVegter, 439 F.3d 1299, 1303-04 (11th Cir. 2006).

      Here, the district court did not commit clear error in determining that the

“value of . . . the benefit received or to be received in return for the payment” was

more than $10,000 and less than $30,000. The district court based its findings on

testimony presented at the sentencing hearing that Target earned approximately

$22,000 in profit as a result of the bribes paid to Salesman. Because the

government presented “reliable and specific evidence” in support of this benefit

amount, the district court properly disregarded Salesman’s suggestion that the

amount of the bribes should be used to set the benefit amount for sentencing

purposes. Sepulveda, 115 F.3d at 890; see Huff, 609 F.3d 1245-46. Based on this

$22,000 benefit amount, the district court did not err in applying a 4-level

enhancement to Salesman’s sentence under § 2C1.1(b)(2). Accordingly,


                                          30
Salesman’s 51-month total sentence is procedurally sound.

      2.     Substantive Reasonableness

      We review Salesman’s sentence for substantive reasonableness in light of

the record and the § 3553(a) factors. Talley, 431 F.3d at 786, 788. The sentence

imposed must be “sufficient, but not greater than necessary” to achieve the

purposes of sentencing outlined in § 3553(a)(2). 18 U.S.C. § 3553(a). The weight

given to any § 3553(a) factor is within the sound discretion of the district court,

and this Court will not substitute its judgment in weighing the relevant factors.

United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007). Although this Court

does not automatically presume reasonableness for a sentence within the guidelines

range, it ordinarily expects such a sentence to be reasonable. United States v.

Hunt, 526 F.3d 739, 746 (11th Cir. 2008).

      Salesman has not demonstrated that his sentence was substantively

unreasonable in light of the record and the § 3553(a) factors. The district court’s

sentence of 51 months for each count represented the lowest end of the applicable

advisory guideline range, and this Court ordinarily expects sentences within the

guideline range to be reasonable. Hunt, 526 F.3d at 746. Salesman’s sentence was

also well below the statutory maximum penalty for each count, a further indicator

of reasonableness. See Gonzalez, 550 F.3d at 1324. And as to Salesman’s


                                          31
argument about the disparity between his sentence and that of other defendants in

the investigation, it is without merit for the reasons discussed by the district court.

See also United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009) (holding

that a cooperating defendant who signs a plea agreement and one who provides no

assistance to the government and proceeds to trial are not similarly situated for

sentencing purposes); United States v. Regueiro, 240 F.3d 1321, 1325-26 (11th

Cir. 2001) (“[A] [d]isparity between the sentences imposed on codefendants is

generally not an appropriate basis for relief on appeal.”).

      Prior to announcing its sentencing decision, the district court stated that it

had taken into consideration the § 3553(a) factors, and was particularly mindful “of

the statutory mandate which expresses a need to avoid unwarranted sentence

disparities among defendants with similar records who are found guilty of similar

conduct.” The district court sentenced Salesman “in light of the [other

defendant’s] sentence imposed by this Court, Mr. Salesman’s similar conduct, a

category one criminal history, and Mr. Salesman’s failure to accept responsibility.”

The district court did not abuse its discretion by emphasizing only some of the

sentencing factors because the weight to be accorded any given § 3553(a) factor is

within the discretion of the district court. Amedeo, 487 F.3d at 832. Salesman’s

51-month total sentence is substantively reasonable.


                                           32
For all of these reasons, we affirm Salesman’s convictions and sentences.

AFFIRMED.




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