           Case: 16-15064   Date Filed: 03/07/2017   Page: 1 of 7


                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-15064
                        Non-Argument Calendar
                      ________________________

              D.C. Docket No. 4:15-cr-00203-WTM-GRS-1

UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                 versus

CHADWICK L. REESE,

                                                         Defendant-Appellant.
                      ________________________

                            No. 16-15066
                        Non-Argument Calendar
                      ________________________

              D.C. Docket No. 4:15-cr-00203-WTM-GRS-2

UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                 versus

JOEL T. MORRIS,

                                                         Defendant-Appellant.
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                           ________________________

                   Appeals from the United States District Court
                       for the Southern District of Georgia
                          ________________________

                                  (March 7, 2017)

Before HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Chadwick Reese and Joel Morris appeal their respective 84- and 20-month

sentences, both imposed below the guideline range, after they each pleaded guilty

to one count of honest services mail fraud, in violation of 18 U.S.C. § 1341. On

appeal, both Reese and Morris argue that the district court erred in using U.S.S.G.

§ 2C1.1(a) to calculate their guideline ranges, and that even if that was the correct

Guidelines section to use, that they were not “public officials” as that term is used

in § 2C1.1(b)(3). After thorough review, we affirm.

      “We review a district court’s interpretation and application of the Sentencing

Guidelines de novo but accept the court’s factual findings unless they are clearly

erroneous.” United States v. Ford, 784 F.3d 1386, 1396 (11th Cir. 2015). In order

to be clearly erroneous, the finding of the district court must leave us with “a

definite and firm conviction that a mistake has been made.” Id.

      The Sentencing Guidelines provide that a district court should refer to the

“Statutory Index (Appendix A) [of the Guidelines] to determine the . . . offense


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guideline, referenced in the Statutory Index for the offense of conviction.”

U.S.S.G. § 1B1.2(a). The Statutory Index provides that the appropriate offense

guideline for an offense under 18 U.S.C. § 1341 is either § 2B1.1 or § 2C1.1.

Where the Statutory Index gives a choice between multiple Guidelines sections,

the district court must “determine which of the referenced guideline sections is

most appropriate for the offense conduct charged in the count of which the

defendant was convicted.” U.S.S.G. § 1B1.2, cmt. n.1.

      Section 2C1.1 of the United States Sentencing Guidelines addresses offenses

that involve, among other things, fraud involving the deprivation of the intangible

right to honest services of public officials. U.S.S.G. § 2C1.1. The base offense

level under § 2C1.1 is 12, unless the defendant was a public official, in which case

it is 14. U.S.S.G. § 2C1.1(a). An additional 4 levels shall be added where the

offense involved an elected public official or any public official in a high-level

decision-making position. U.S.S.G. § 2C1.1(b)(3). The application notes state that

“public official” “shall be construed broadly,” and that the term includes:

      (A)    “Public official” as defined in 18 U.S.C. § 201(a)(1).

      (B)    A member of a state or local legislature. . . .

      (C)    An officer or employee or person acting for or on behalf of a state or
             local government, or any department, agency, or branch of
             government thereof, in any official function, under or by authority of
             such department, agency, or branch of government, or a juror in a
             state or local trial.


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       (D)   Any person who has been selected to be a person described in
             subdivisions (A), (B), or (C), either before or after such person has
             qualified.

       (E)   An individual who, although not otherwise covered by subdivisions
             (A) through (D): (i) is in a position of public trust with official
             responsibility for carrying out a government program or policy; (ii)
             acts under color of law or official right; or (iii) participates so
             substantially in government operations as to possess de facto authority
             to make governmental decisions (e.g., which may include a leader of a
             state or local political party who acts in a manner described in this
             subdivision).

U.S.S.G. § 2C1.1 cmt. n.1. The commentary for § 2C1.1 provides that the section

will apply to convictions under 18 U.S.C. § 1341 “if the scheme or artifice to

defraud was to deprive another of the intangible right of honest services of a public

official.”   U.S.S.G. § 2C1.1 cmt.      The section’s commentary also provides

background information regarding § 2C1.1, explaining that the section applies to

offenses prosecuted under 18 U.S.C. § 1341, and that “[s]uch fraud offenses

typically involve an improper use of government influence that harms the

operation of government in a manner similar to bribery offenses.” U.S.S.G. §

2C1.1 cmt. background.

       Section 2B1.1 also addresses offenses of fraud and deceit, among other

things. U.S.S.G. § 2B1.1. The § 2B1.1 commentary indicates that it may apply to

convictions under 18 U.S.C. § 1341. U.S.S.G. § 2B1.1 cmt. But it elaborates that

“a state employee who improperly influenced the award of a contract and used the

mails to commit the offense may be prosecuted under 18 U.S.C. § 1341 for fraud
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involving the deprivation of the intangible right of honest services[,]” and that

“[s]uch a case would be more aptly sentenced pursuant to § 2C1.1.” U.S.S.G. §

2B1.1 cmt. n.16.

       Here, the district court did not err in applying § 2C1.1, rather than § 2B1.1 .

The indictment charged Reese and Morris with “devis[ing] and intend[ing] to

devise a scheme and artifice to defraud and deprive the citizens of Chatham

County and the Chatham Area Transit Authority of their right to honest and

faithful services through bribery, kickbacks and the concealment of material

information,” in violation of 18 U.S.C § 1341. The plea agreements provided that

Reese and Morris intended to “defraud and deprive the citizens of Chatham County

and the Chatham Area Transit Authority of their right to honest and faithful

services.”     (emphasis added). And, after hearing argument from both sides

regarding whether the Transit Authority was a public entity, the district court

overruled the defendants’ objection and adopted the findings in the PSI, which

stated that the Transit Authority was “a public transportation entity.” Given the

support in the record for this determination, we cannot say that this finding was

clear error.

       As we’ve said, the Guidelines’ Statutory Index gave the district court a

choice between § 2C1.1 and § 2B1.1. In addition, the background to § 2C1.1

specifically states that it applies to the kind of “fraud offenses [that] typically


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involve an improper use of government influence that harms the operation of

government in a manner similar to bribery offenses.” U.S.S.G. § 2C1.1 cmt.

background. Further, the commentary to U.S.S.G. § 2B1.1 explains that “a state

employee who improperly influenced the award of a contract and used the mails to

commit the offense may be prosecuted under 18 U.S.C. § 1341 for fraud involving

the deprivation of the intangible right of honest services[,]” but that “[s]uch a case

would be more aptly sentenced pursuant to § 2C1.1.” U.S.S.G. § 2B1.1 cmt. n.16.

Having found that the Transit Authority was a public entity, the district court did

not err in applying § 2C1.1 instead of § 2B1.1 to the defendants’ sentences.

      As for the defendants’ claim that, as employees for the Transit Authority,

they were not “public officials” for purposes of § 2C1.1(a), we disagree. As

discussed above, the district court found that the Transit Authority is a government

entity. And the definition of “public official” found in the Guidelines’ application

notes provides that the term “public official” “shall be construed broadly,” and

includes any “officer or employee or person acting for or on behalf of a state or

local government, or any department, agency, or branch of government thereof, in

any official function, under or by authority of such department, agency, or branch

of government.” U.S.S.G. § 2C1.1 cmt. n.1.

      The indictment in this case explained that the Transit Authority was created

by an act of state legislation, to operate a public transit system in Chatham County,


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and that its yearly revenues included millions of dollars in passenger fares, local

taxes, and federal grants. It detailed that Reese was the Executive Director of the

Transit Authority, and that Morris was the Director of Maintenance.               The

indictment and the plea agreements also all provided that Reese and Morris used

their “official positions to enrich themselves by soliciting and accepting cash and

other payments in exchange for rigging the award of [Transit Authority] contracts

to selected individuals and companies.” Similarly, the FBI agent who testified at

both the defendants’ sentencing hearings said that they had used their positions at

the Transit Authority to ensure that a company they selected received a bus

cleaning contract with the Transit Authority, in exchange for monthly payments.

Thus, the defendants admitted, the record supports, and the court found that the

defendants used their “official positions” to enrich themselves.

      In light of this record, and the Guidelines’ instruction to construe the

definition of “public official” broadly, the district court did not err in determining

that both Reese and Morris were “public officials” for purposes of § 2C1.1(a). See

U.S.S.G. § 2C1.1 cmt. n.1. Moreover, on the record as a whole, we cannot say that

the district court erred in concluding that § 2C1.1 was the most appropriate

Guidelines section to apply to the defendants’ convictions under 18 U.S.C. § 1341.

      AFFIRMED.




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