                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                         F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                              November 21, 2006

                                                                   Charles R. Fulbruge III
                                                                           Clerk
                               No. 05-40140


                     UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                     versus

                             ISRAEL SAGREDO,

                                                        Defendant-Appellant.



          Appeals from the United States District Court
                for the Southern District of Texas
                          (7:04-CR-243-1)


Before BARKSDALE, BENAVIDES, and OWEN, Circuit Judges.

PER CURIAM:*

     At issue is whether the district court erred in denying Israel

Sagredo’s:     motions   for   judgment        of   acquittal    (JOA)    on   his

extortion and bribery charges; constitutional challenge to the

bribery statute as applied to his conduct; objections to sentence

enhancements both for being a public official in a high-level

decision-making   position     and    for     obstruction   of   justice;      and

challenge to the district court’s promptly sua sponte resentencing

him after the issuance of United States v. Booker, 543 U.S. 220



     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
(2005)   (holding   Sentencing   Guidelines    advisory   rather   than

mandatory), including imposing an increased fine after claimed

partial payment of the original fine.     AFFIRMED.

                                  I.

     The City of Alton, Texas, participates in the Hidalgo County

Urban County Program, established to receive funding from the

Department of Housing and Urban Development (HUD). As part of this

program, the City received financing through a HUD loan for the

construction of a recreation center.          Sagredo was the City’s

manager, and this project, along with oversight of the City’s daily

activities, fell under his authority.

     While construction of the recreation center was underway, an

undercover FBI Agent, presenting himself as a businessman seeking

to supply furniture and equipment for local government projects,

began investigating possible corruption in Hidalgo County’s process

for awarding government contracts.     Through his investigation, the

Agent learned that Sagredo, in exchange for a bribe, would ensure

the Agent would be awarded the contract to supply furnishings for

the recreation center.    After several meetings with Sagredo, at

which negotiations over the size of the bid to submit and the

accompanying bribe were discussed, the Agent made two $5,000

payments to Sagredo ($10,000 payment), which were captured on video

inside the Agent’s vehicle.




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     At his trial for extortion, in violation of 18 U.S.C. §§ 1951

and 2, and bribery, in violation of 18 U.S.C. § 666(a)(1)(B) and 2,

Sagredo   moved   for   JOA    on   both   counts   at   the    close    of   the

Government’s case.      The motion was denied and was not renewed at

the close of all the evidence.           The jury found Sagredo guilty on

each charge.

     Approximately      four    months     post-verdict,       Sagredo   filed:

motions to have the district court reconsider his JOA motions on

the extortion and bribery counts; a motion challenging the bribery

statute as unconstitutional as applied to his conduct; and, under

Blakely v. Washington, 542 U.S. 296 (2004) (holding, pre-Booker,

any fact that increases penalty for a crime beyond prescribed

statutory maximum must be submitted to jury and proved beyond

reasonable doubt), objections to the presentence investigation

report (PSR).      His objections to the PSR were to recommended

enhancements for obstruction of justice and for his role as a

public official.

     Sagredo was sentenced on 11 January 2005, to, inter alia, 41

months imprisonment and a $75,000 fine.             Booker was issued the

following day.     Therefore, acting under Federal Rule of Criminal

Procedure 35(a), the district court promptly sua sponte vacated the

sentence and resentenced Sagredo on 20 January 2005 to, inter alia,

72 months imprisonment and a $250,000 fine.




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                                 II.

                                  A.

     Because Sagredo failed to renew his JOA motion at the close of

all the evidence, our standard of review is restricted to whether

there has been a “manifest miscarriage of justice”.    E.g., United

States v. Shannon, 21 F.3d 77, 83 (5th Cir.) (quoting United States

v. Knezek, 964 F.2d 394, 400 (5th Cir. 1992)), cert. denied, 513

U.S. 901 (1994).    Under that standard, Sagredo’s conviction may be

reversed only if the record is “devoid of evidence of guilt or the

evidence [is] so tenuous that a conviction is shocking”.     United

States v. Avants, 367 F.3d 433, 449 (5th Cir. 2004).   Sagredo fails

to satisfy this strict standard.       Moreover, the district court

properly held it lacked jurisdiction to review Sagredo’s belated

post-verdict JOA motion.     See FED. R. CRIM. P. 29(c)(1) (allowing

defendant to move for JOA within seven days after guilty verdict).

                                  B.

     Sagredo’s belated as-applied challenge to the bribery statute,

based on a claimed insufficient showing of a nexus with federal

funds, is reviewed de novo.     See United States v. Phillips, 219

F.3d 404, 409 (5th Cir. 2000).     Even assuming this challenge had

been timely, a sufficient nexus exists because Sagredo accepted the

$10,000 payment in exchange for his influence over the distribution

of federal funds.   See United States v. Lipscomb, 299 F.3d 303, 312

(5th Cir. 2002).

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                                    C.

                                    1.

     Concerning the public-official enhancement, whether a person

is an official holding a high-level decision-making position is

reviewed de novo; questions of how much discretion or supervisory

authority was possessed, for clear error.             United States v. Snell,

152 F.3d 345, 346 (5th Cir. 1998).         Evidence was presented at trial

that Sagredo was the City’s highest ranking non-elected employee,

orchestrated the pre-bidding process, and used his influence over

the city council to ensure the undercover Agent’s bid was accepted.

The district court’s finding that Sagredo possessed “substantial

influence    over   the   decision-making       process”   was   not   clearly

erroneous.     See U.S.S.G. § 2C1.1 cmt. n.4(A) (2005).

                                    2.

     Factual     findings   relating       to   the   obstruction-of-justice

enhancement are reviewed for clear error.              E.g., United States v.

Harms, 442 F.3d 367, 378 (5th Cir. 2006). This enhancement applies

where a defendant “willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice during the course

of the ... prosecution” and the obstruction relates to the offense

of conviction.      U.S.S.G. § 3C1.1.           The non-exhaustive list of

examples in the application notes includes perjury.              Id. cmt. n.4.

The district court must make independent findings establishing a

willful obstruction of justice in order to apply this enhancement.


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United States v. Creech, 408 F.3d 264, 270-71 (5th Cir.), cert.

denied, 126 S. Ct. 777 (2005).

     At both the sentencing and resentencing, the district court

found Sagredo had made a material misstatement under oath when he

claimed the $10,000 payment was for a campaign contribution.                     At

the initial sentencing, the court also noted the jury had likewise

concluded    the   payment   was   a     bribe,     rather     than    a   campaign

contribution.      The district court’s findings were not clearly

erroneous.

                                         D.

                                         1.

     Whether the district court had jurisdiction to resentence

Sagredo after the issuance of Booker is reviewed de novo.                    United

States v. Bridges, 116 F.3d 1110, 1112 (5th Cir. 1997).                       Under

Federal Rule of Criminal Procedure 35(a), a court “may correct a

sentence that resulted from arithmetical, technical, or other clear

error” within seven days after sentencing.                   Sagredo’s initial

sentence was erroneous because it was based on then-mandatory

guidelines which were overturned by Booker the day after their

application at Sagredo’s 11 January 2005 sentencing.                  Post-Booker,

Sagredo’s    sentence   under      the        then-mandatory    Guidelines      was

obviously subject to challenge.

     Therefore, citing Rule 35(a), the district court vacated the

sentence and resentenced Sagredo on 20 January 2006.                  The court’s


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correction of its erroneous sentence by resentencing Sagredo within

seven days of the initial sentencing was permissible under Rule

35(a).    See FED. R. CRIM. P. 45(a) (computing time).

                                  2.

     Sagredo claims the district court’s resentencing him to a more

severe sentence after he had partially paid the fine initially

imposed constituted double jeopardy and violated the Ex Post Facto

Clause.    This claim is reviewed de novo.     See United States v.

Gonzales, 40 F.3d 735, 737 (5th Cir. 1994), cert. denied, 514 U.S.

1074 (1995).    The parties dispute whether Sagredo partially paid

the fine.      Even if he did, however, discretion under Booker

justifies the imposition of a longer or more severe sentence upon

resentencing due to pre-Booker error in applying the then-mandatory

Guidelines.    United States v. Reinhart, 442 F.3d 857, 860-61 (5th

Cir.), cert. denied, No. 05-11431, 2006 WL 1591904 (2 Oct. 2006);

see also United States v. Charon, 442 F.3d 881, 892 (5th Cir.)

(application of Booker upon resentencing does not violate Ex Post

Facto Clause), cert. denied, __ S. Ct. __, 2006 WL 2066690 (2 Oct.

2006).

                                 III.

     For the foregoing reasons, the judgment is

                                                         AFFIRMED.




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