                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 12a1085n.06

                                            No. 11-3670

                           UNITED STATES COURT OF APPEALS                               FILED
                                FOR THE SIXTH CIRCUIT                               Oct 17, 2012
                                                                              DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                            )
                                                     )
        Plaintiff-Appellee,                          )
                                                     ) ON APPEAL FROM THE UNITED
v.                                                   ) STATES DISTRICT COURT FOR THE
                                                     ) NORTHERN DISTRICT OF OHIO
RONALD A. ROMANINI,                                  )
                                                     )
        Defendant-Appellant.                         )



Before: GIBBONS and SUTTON, Circuit Judges; DUGGAN,* District Judge.

       JULIA SMITH GIBBONS, CIRCUIT JUDGE. Ronald Romanini pled guilty to one count

of bribery concerning programs receiving federal funds, in violation of 18 U.S.C. § 666(a)(2). The

district court sentenced Romanini to forty-one months’ imprisonment and three years of supervised

release and required him to pay a $100,000 fine, $30,000 in restitution, and a special assessment of

$100. On appeal, Romanini argues that the district court erred by (1) considering Romanini’s

personal wealth and the government’s charging decisions in determining his sentence, (2) declining

to adjust Romanini’s sentence downward because he accepted responsibility for his offense, and (3)

adjusting Romanini’s sentence downward by only two levels, instead of the four levels agreed to by




        *
       The Honorable Patrick J. Duggan, United States District Judge for the Eastern District of
Michigan, sitting by designation.

                                                 1
No. 11-3670
United States v. Romanini


the government, because he rendered substantial assistance to authorities. For the reasons that follow,

we vacate Romanini’s sentence and remand this case to the district court for resentencing.

                                                  I.

       From approximately 1996 to 2008, Romanini paid a series of bribes to Cuyahoga County

Auditor Frank Russo, an elected official, in order to secure jobs and raises for Romanini’s family and

friends. This case arises from a bribe that Romanini paid in 2007 to secure a raise for a relative.

       Romanini is the founder of Willoughby Supply Company, which he owned until he sold the

business to his sons in 2005. In April 2007, Russo asked Romanini to inspect the roof of his home.

Romanini informed Russo that his roof needed to be replaced, and Romanini assisted Russo by

coordinating the work and paying for the materials and labor, valued at approximately $25,000.

Russo told Romanini that he would pay for the project, but he never gave Romanini any money.

Romanini sold scrap copper from Russo’s roof for $10,000 and applied its value toward his costs, but

he made no attempt to collect payment from Russo after submitting the initial invoices to him in

summer 2007.

       In April 2007, Russo, who had authority over personnel decisions within the Auditor’s Office,

gave a raise to one of his employees, Romanini’s relative. He gave the employee another raise in

February 2008. In March 2008, Romanini asked Russo if he had “take[n] care” of his relative, and

Russo assured him that he had, clarifying the amount of the raise by saying that “we have him twelve

fifty now, and twelve fifty in a few months we’re gonna give him . . . .”




                                                  2
No. 11-3670
United States v. Romanini


       Government agents, who were investigating Russo for corruption, interviewed Romanini in

January and August 2009. During the interviews, they asked Romanini if he had any relatives who

worked for Russo, other than the relative who received the raise in 2007, and whether Romanini had

engaged in any financial transactions with Russo, other than replacing his roof and paying for a trip

that the Russo family took years earlier. Romanini falsely answered both questions in the negative.

       On September 23, 2010, Romanini was charged in a one-count information with bribery

concerning programs receiving federal funds, in violation of 18 U.S.C. § 666(a)(2). On October 20,

2010, Romanini pled guilty pursuant to a plea agreement.

       In December 2010, representatives of the U.S. Attorney’s Office contacted Romanini’s lawyer

and told him that they had received information about dealings between Russo and Romanini that

Romanini had not disclosed previously. Romanini admitted during a February 2011 proffer interview

that from approximately 1996 to 2008, he asked Russo to provide employment for eight of

Romanini’s friends and relatives. Russo’s office hired six of them, and two were referred to the

Maple Heights City Schools, where they were hired. In exchange for each hire, Romanini paid Russo

between $1,000 and $3,000 in cash, giving Russo between $10,000 and $30,000 total. During the

proffer interview, Romanini also provided other new information to the investigating agents.

       In March 2011, Romanini entered into a new plea agreement with the government for his 2007

bribe. He was not charged with additional misconduct, but the Superseding Plea Agreement took into

consideration the new information about Romanini’s dealings with Russo and the lies that he told

investigators. Under the Superseding Plea Agreement, the parties agreed that Romanini’s base


                                                 3
 No. 11-3670
 United States v. Romanini


offense level under the United States Sentencing Guidelines was twelve. The parties also agreed that

the offense level would increase as follows: two levels because Romanini engaged in multiple bribes,

four levels because of the value of the bribes, four levels because the bribes involved an elected public

official, and two levels because Romanini obstructed justice, bringing the adjusted offense level to

twenty-four. The U.S. Attorney’s Office agreed to recommend a three-level reduction pursuant to

U.S.S.G. §§ 3E1.1(a) and (b) because Romanini accepted responsibility for his criminal conduct. It

also agreed to make a motion before the district court to depart downward up to four levels under

U.S.S.G. § 5K1.1 because Romanini provided substantial assistance to investigators.

        On May 25, 2011, the district court held a sentencing hearing. The district court calculated

Romanini’s base offense level to be twelve, and, after factoring in upward adjustments, the district

court concluded that Romanini’s adjusted offense level was twenty-four. The district court declined

to apply a three-level adjustment for acceptance of responsibility and granted only a two-level

reduction for substantial assistance. The district court calculated Romanini’s Guidelines range to be

forty-one to fifty-one months’ imprisonment. The district court sentenced Romanini to forty-one

months’ imprisonment and three years of supervised release and required him to pay a $100,000 fine,

$30,000 in restitution, and a special assessment of $100.

        When the district court asked for objections pursuant to United States v. Bostic, 371 F.3d 865

(6th Cir. 2004), Romanini argued that his sentence was procedurally unreasonable due to the district

court’s refusal to grant the adjustment for acceptance of responsibility and the full four-level

adjustment for substantial assistance. Romanini also challenged the $100,000 fine as excessive and


                                                   4
No. 11-3670
United States v. Romanini


contested the substantive reasonableness of his sentence, arguing that it exceeded what is necessary

under the § 3553(a) factors.

                                                   II.

                                                   A.

       Romanini argues that the sentence he received is unreasonable because it was based on

impermissible sentencing factors. First, he contends that the district court impermissibly considered

his socioeconomic status in crafting his sentence. Second, he contends that the district court

impermissibly considered conduct that the government agreed not to charge and that the district court

punished Romanini based on its view that the government had given him preferential treatment.

       During the sentencing hearing, the district court made several comments about Romanini’s

personal wealth and the government’s decision not to pursue additional charges against him. The

district court compared Romanini’s case with the cases of others who were charged in connection

with the Cuyahoga County corruption investigation:

       I’ve sentenced ten other defendants. Most of them much lower level involvement than
       this defendant, at least in my view, small contractors, individuals not of great wealth,
       struggling to make a living, playing the game, so to speak, the corrupt game in
       Cuyahoga County just trying to make a living, just trying to get by.
               This defendant has great wealth. According to the PSI, he has $13 million of
       net worth. If there is individuals that need jobs, need help, he has the ability to do that.

The district court continued:

                And I must tell you, with all due respect, I have great doubt about the fairness
       of this agreement compared and contrasted with the way, at least the ten I’ve seen, and
       some others that I’ve seen, the way this case has been pursued, the consequence you’re
       asking for a defendant in this particular case compared to others.


                                                    5
 No. 11-3670
 United States v. Romanini


The government explained its decision not to charge Romanini for making false statements to

investigators and for additional bribes, and the district court responded:

       [T]here has been others that you’ve charged, others that have been pursued for making
       false statements to agents, and I don’t, quite frankly, understand still—I won’t repeat
       myself—this appears to me, I don’t know how or why, but the benefit to this
       defendant compared and contrasted with others, again, far lower, with far less
       resources.
                Socioeconomic background is not part of the guidelines, but one must wonder
       when individuals with great wealth, great community support, how it is that their plea
       agreement and their consequence for this kind of conduct is what I have before me.
                ....
                But as I look at all these other defendants, I’ve got a chart here, all these other
       defendants, their plea agreements, the government’s recommendations and their
       consequences, these lower-level defendants compared and contrasted with this one,
       I can’t help but wonder. I can’t help but wonder, having sentenced all these other
       defendants, how and why they ended up with those consequences, with those lower
       level defendants with no money or limited resources, struggling to get by, compared
       and contrasted with what I see here. It is very troubling to me.

       The district court considered the sentencing factors in 18 U.S.C. § 3553(a), noting that “[i]t

is somewhat relevant” that Romanini “has been extremely successful” and “has total assets of over

$13 million, nearly 13 and a quarter million dollars in real estate and other holdings.” The district

court remarked that Romanini’s conduct was “more serious in some respects than that of these other

low-level contractors who were facing guideline sentences.” It also observed that “[t]he public, of

course, at least in my view, is extremely skeptical, skeptical from time to time of the courts, and

wonder whether or not individuals with either great wealth, power, or privilege receive greater

benefits than that of others.”

       Romanini argued that his misconduct was motivated by his desire to help others, but the

district court rejected this argument:

                                                    6
No. 11-3670
United States v. Romanini


              With all due respect, Mr. Romanini, you have achieved great success. You
       have your own company. You have great wealth. If there is individuals who need
       help, need jobs, certainly Mr. Romanini had the ability through his own, his own
       wealth and through other business connections to assist others lawfully in obtaining
       employment. Bribes, kickbacks, speaks volumes. And that’s why the sentence is
       deserved in this particular matter, and the other reasons as I’ve already stated.

       In United States v. Booker, 543 U.S. 220, 245 (2005), the Supreme Court held that the United

States Sentencing Guidelines are advisory. Post-Booker, this court reviews a district court’s

sentencing determination “‘under a deferential abuse-of-discretion standard,’ for reasonableness.”

United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007) (quoting Gall v. United States, 552 U.S. 38,

41 (2007)). A sentence that falls within the Guidelines range triggers a rebuttable presumption of

reasonableness. United States v. Cousins, 469 F.3d 572, 576 (6th Cir. 2006), abrogated on other

grounds by Irizarry v. United States, 553 U.S. 708, 715-16 (2008). However, this court has

recognized that:

       [T]he presumption [of reasonableness] does not excuse a sentencing court’s failure to
       adhere to the procedural requirements of a reasonable sentence and indeed applies
       only to sentences that generally have satisfied these numerous requirements. In the
       Sixth Circuit, as in many other circuits, we distinguish between the substantive and
       procedural components of reasonableness review, and nothing about the presumption
       permits a sentencing court to ignore the procedural requirements of a reasonable
       sentence.

Id. (quoting United States v. Buchanan, 449 F.3d 731, 738 (6th Cir. 2006) (Sutton, J., concurring)

(internal quotation marks omitted)).

       Romanini contends that the district court’s consideration of impermissible factors at

sentencing renders his sentence substantively unreasonable. This court has not clearly distinguished

the procedural and substantive components of the reasonableness inquiry, sometimes finding that the

                                                  7
No. 11-3670
United States v. Romanini


same factors are relevant to each component. United States v. Herrera-Zuniga, 571 F.3d 568, 579

(6th Cir. 2009); United States v. Bailey, 488 F.3d 363, 368 n.1 (6th Cir. 2007). In United States v.

Webb, 403 F.3d 373, 385 (6th Cir. 2005), we concluded that a sentence may be unreasonable if it is

based on impermissible factors, but Webb did not distinguish between procedural and substantive

reasonableness. In United States v. Ferguson, 456 F.3d 660, 664 (6th Cir. 2006), abrogated on other

grounds by Kimbrough v. United States, 552 U.S. 85, 110 (2007), we found that the consideration of

impermissible factors is relevant to a sentence’s substantive reasonableness. This court has cited

Webb and Ferguson for the proposition that a district court’s consideration of impermissible factors

at sentencing renders a sentence substantively unreasonable. See, e.g., United States v. Tolbert, 668

F.3d 798, 803 (6th Cir. 2012) (citing Webb); United States v. Tate, 516 F.3d 459, 469 (6th Cir. 2008)

(citing Ferguson). In United States v. Malone, 503 F.3d 481, 484 (6th Cir. 2007), however, we

recognized that, although many cases classify the consideration of an impermissible factor at

sentencing as an aspect of substantive reasonableness, this concern is really more relevant to

procedural reasonableness. After all, “the challenge is more to the process by which the district court

arrived at the given sentence than to the substantive aspect of the sentence (i.e., the relationship

between the length of the sentence and the strength of the reasoning under § 3553(a)).” Id. We

review Romanini’s sentence for procedural reasonableness.

       The government argues that this court should review Romanini’s claim for plain error because

Romanini did not properly preserve a procedural reasonableness challenge by objecting on this

ground when the district court asked for objections pursuant to United States v. Bostic, 371 F.3d 865


                                                  8
No. 11-3670
United States v. Romanini


(6th Cir. 2004). “Substantive-reasonableness claims do not need to be raised before the district court

to be preserved for appeal.” United States v. Freeman, 640 F.3d 180, 185-86 (6th Cir. 2011) (citing

United States v. Penson, 526 F.3d 331, 337 (6th Cir. 2008)). However,

       ‘if a sentencing judge asks . . . whether there are any objections not previously raised,
       in compliance with the procedural rule set forth in United States v. Bostic, 371 F.3d
       865 (6th Cir.2004)[,] and if the relevant party does not object, then plain-error review
       applies on appeal’ to those procedural-reasonableness arguments that were not
       preserved in the district court.

Id. at 186 (citing Penson, 526 F.3d at 337 (alterations and internal quotation marks omitted)).

       Nonetheless, “neither the defense nor the government, in response to the Bostic question, has

any obligation to raise objections already made.” United States v. Vonner, 516 F.3d 382, 390 (6th

Cir. 2008) (en banc). The point of the Bostic question “is simply to give counsel one last chance to

preserve objections for appeal that counsel has not yet seen fit to raise or has not yet had an

opportunity to raise.” Id. During the sentencing hearing, both Romanini’s counsel and the

government disputed the district court’s assertion that the Superseding Plea Agreement was unduly

favorable to Romanini based on his wealth, and they defended the government’s decision not to

charge Romanini with additional offenses. Romanini was not required to object to the district court’s

impermissible consideration of his socioeconomic status or the government’s charging decisions in

response to the Bostic question because he had already made his disagreement known.

       First, Romanini argues that the district court impermissibly considered his socioeconomic

status in crafting his sentence. Booker established that the Guidelines are advisory, but “[d]istrict

courts are still obliged to consider the [United States Sentencing] Commission’s policy statements


                                                  9
No. 11-3670
United States v. Romanini


after Booker.” Ferguson, 456 F.3d at 666. Under U.S.S.G. § 5H1.10, socioeconomic status is “not

relevant in the determination of a sentence.” This policy statement “precludes a district court from

determining that a defendant’s prominence, or lack thereof, weighs in favor of, or against, a

departure.” Ferguson, 456 F.3d at 665 (quoting United States v. Holz, 118 F. App’x 928, 935 (6th

Cir. 2004)). In United States v. Ferguson, we held that the district court did not impermissibly

consider the defendant’s socioeconomic status when it remarked during sentencing that imposing a

lenient sentence based on the defendant’s education and professional success would not promote

respect for the law, a factor that the court was required to consider under § 3553(a)(2)(A). Ferguson,

456 F.3d at 666. The district court said that a lenient sentence would “simply tend to set in concrete

the public perception that the higher you are, the less you have to fear from the law; and that if a

person can afford it, the system, such as it is, can be beaten.” Id. at 664. This comment, taken in

context, did not demonstrate that the defendant’s “prominence, or lack thereof, weigh[ed] in favor”

of or against a longer term of imprisonment. Id. at 666 (quoting Holz, 118 F. App’x at 935).

       While the district court in Ferguson made an isolated statement about the defendant’s status

during its discussion of a § 3553(a) factor, the district court in this case repeatedly mentioned

Romanini’s wealth throughout the sentencing hearing. The district court acknowledged that

“[s]ocioeconomic background is not part of the guidelines,” but it nonetheless appeared to consider

Romanini’s status in determining his sentence. Some of the district court’s comments contrasting

Romanini’s plea agreement with the plea agreements of less wealthy defendants who were charged

as a result of the corruption investigation may have reflected a desire to avoid unwarranted sentencing


                                                  10
No. 11-3670
United States v. Romanini


disparities, consistent with § 3553(a)(6). But the district court’s comments were not limited to its

discussion of the § 3553(a) factors. The district court implied that the bribes that Romanini paid to

Russo to secure jobs for his friends and family were more blameworthy because Romanini, a wealthy

businessman, could simply have employed those individuals himself. The district court commented:

              With all due respect, Mr. Romanini, you have achieved great success. You
       have your own company. You have great wealth. If there is individuals who need
       help, need jobs, certainly Mr. Romanini had the ability through his own, his own
       wealth and through other business connections to assist others lawfully in obtaining
       employment. Bribes, kickbacks, speaks volumes. And that’s why the sentence is
       deserved in this particular matter, and the other reasons as I’ve already stated.

These remarks demonstrate that the district court impermissibly considered Romanini’s

socioeconomic status in determining his sentence.

       Romanini also argues that the district court impermissibly considered Romanini’s wealth

when it imposed a $100,000 fine. Pursuant to 18 U.S.C. § 3572(a)(1),when a district court determines

the amount of a fine, it may consider “the defendant’s income, earning capacity, and financial

resources.” However, this court has vacated sentences as procedurally unreasonable where a district

court fails to reference the defendant’s applicable Guidelines range or state specific reasons for

imposing an upward departure or variance. United States v. Blackie, 548 F.3d 395, 400-01 (6th Cir.

2008); see also Cousins, 469 F.3d at 578 (finding that the district court’s sentence was procedurally

unreasonable where the court failed to provide its reasoning for a variance).

       The district court calculated Romanini’s offense level to be twenty four and then granted a

two-level reduction because Romanini provided authorities with substantial assistance.          The

Guidelines provide that a defendant with an offense level of twenty-two may be fined from $7,500

                                                 11
 No. 11-3670
 United States v. Romanini


to $75,000. U.S.S.G. § 5E1.2. At the sentencing hearing, the district court commented on

Romanini’s “great success” before imposing the $100,000 fine, noting only that there “certainly

should not be an issue” as to whether Romanini could pay the fine immediately. The district court

did not explain its reasoning for departing from the Guidelines range, and its comments indicate that

the court was not even aware that the fine was a variance. In response to Romanini’s objection, the

court responded, “The fine, if it exceeds that of the advisory guidelines, in my view it is a—I will treat

it as a variance if need be. It is warranted based on the facts and circumstances of this case. The

defendant has the ability to pay the fine.” Because the district court failed to discuss Romanini’s

Guidelines range or explain its specific reasons for imposing a higher fine, the court’s determination

is procedurally unreasonable.

        Finally, Romanini argues that the district court impermissibly considered Romanini’s false

statements to investigators and additional bribes when determining his sentence. In the parties’

Superseding Plea Agreement, which was accepted by the court, the government agreed not to pursue

additional charges against Romanini. Romanini argues that the district court, which expressed its

displeasure with the government’s charging decision, “double-counted” Romanini’s uncharged

conduct by factoring it into the Guidelines calculation and then using it as a basis to reject Romanini’s

arguments for offense level reductions.

        Pursuant to U.S.S.G. § 6B1.2(a):

        [A] plea agreement that includes the dismissal of a charge or a plea agreement not to
        pursue a potential charge shall not preclude the conduct underlying such charge from
        being considered under the provisions of § 1B1.3 (Relevant Conduct) in connection
        with the count(s) of which the defendant is convicted.

                                                   12
 No. 11-3670
 United States v. Romanini


       Thus, uncharged conduct may factor into a court’s determination of the applicable Guidelines

range. “[I]mpermissible ‘double counting’ occurs when precisely the same aspect of a defendant’s

conduct factors into his sentence in two separate ways.” United States v. Farrow, 198 F.3d 179, 193

(6th Cir. 1999) (citing United States v. Perkins, 89 F.3d 303, 310 (6th Cir. 1996)). For example,

“where ‘a single aspect of the defendant’s conduct both determines his offense level and triggers an

enhancement,’ double counting may occur.” United States v. Eversole, 487 F.3d 1024, 1030 (6th Cir.

2007) (quoting Farrow, 198 F.3d at 193).

       At the sentencing hearing, the district court challenged the government’s decision not to

charge Romanini with additional wrongdoing. It also refused to grant Romanini a downward

departure for acceptance of responsibility and gave Romanini a two-level reduction, instead of the

requested four levels, for rendering substantial assistance to authorities. Romanini speculates that the

district court’s refusal to grant the downward adjustments was based on its belief that Romanini

should have been charged with additional wrongdoing. First, the district court’s comments about the

government’s charging decision were directed at the government, not Romanini, indicating that the

district court merely sought to rebuke the government, not punish Romanini. Second, Romanini cites

no authority for the proposition that impermissible double counting occurs when a district court

considers the defendant’s conduct in determining his offense level and also when it refuses to grant

a downward adjustment. For these reasons, the district court did not impermissibly double count

Romanini’s uncharged conduct. Romanini’s sentence is not procedurally unreasonable on this basis.




                                                  13
No. 11-3670
United States v. Romanini


       In sum, while the district court did not impermissibly consider Romanini’s uncharged conduct,

the district court erred when it impermissibly considered Romanini’s socioeconomic status in

determining his sentence and when it failed to explain its reasons for imposing a fine higher than

recommended by the Guidelines.          These errors render Romanini’s sentence procedurally

unreasonable. For this reason, we vacate Romanini’s sentence and remand to district court for

resentencing.

                                                    B.

       Romanini next argues that the district court erred in declining to adjust Romanini’s sentence

downward because he accepted responsibility for his offense, pursuant to U.S.S.G. § 3E1.1. The

government contends that Romanini was not entitled to a reduction in his offense level for acceptance

of responsibility because he obstructed justice.

       U.S.S.G. § 3E1.1 provides for an offense level reduction of up to three points when a

defendant accepts responsibility for his actions:

               (a) If the defendant clearly demonstrates acceptance of responsibility for his
       offense, decrease the offense level by 2 levels.
               (b) If the defendant qualifies for a decrease under subsection (a), the offense
       level determined prior to the operation of subsection (a) is level 16 or greater, and
       upon motion of the government stating that the defendant has assisted authorities in
       the investigation or prosecution of his own misconduct by timely notifying authorities
       of his intention to enter a plea of guilty, thereby permitting the government to avoid
       preparing for trial and permitting the government and the court to allocate their
       resources efficiently, decrease the offense level by 1 additional level.

Conduct that results in an enhancement under § 3C1.1 for obstruction of justice “ordinarily indicates

that the defendant has not accepted responsibility for his criminal conduct.” U.S.S.G. § 3E.1.1 cmt.4.


                                                    14
 No. 11-3670
 United States v. Romanini


However, there may “be extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1

may apply.” Id.

        “[W]hether undisputed facts constitute an ‘extraordinary’ case that warrants an adjustment

for acceptance of responsibility despite charges of obstruction of justice under § 3E1.1” is a question

of law that we review de novo. United States v. Harper, 246 F.3d 520, 525 (6th Cir. 2001), overruled

on other grounds by United States v. Leachman, 309 F.3d 377, 384 n.7 (6th Cir. 2002).

        “Appropriate considerations for determining whether a reduction is warranted include the

defendant’s truthful admission of the offense conduct, the defendant’s voluntary assistance to

authorities in resolving the offense, and the timeliness of the defendant’s conduct in affirmatively

accepting responsibility for his actions.” United States v. Gregory, 315 F.3d 637, 640 (6th Cir. 2003).

“The defendant has the burden of proving the extraordinary nature of his or her case where

obstruction of justice has occurred.” United States v. Jeross, 521 F.3d 562, 582 (6th Cir. 2008).

        Romanini has not demonstrated that the “extraordinary nature” of his case entitles him to an

offense level reduction. First, Romanini did not timely accept responsibility for all of his criminal

conduct. Romanini compares his case to United States v. Gregory, in which we reversed the district

court’s ruling that the defendant was not entitled to an offense level reduction for acceptance of

responsibility. 315 F.3d at 641. In Gregory, the defendant admitted to his criminal conduct,

attempting to smuggle contraband into prison and agreed to cooperate in an interview with

investigators the week after the crime took place. Id. at 640. Gregory subsequently sent a letter to

his sister, who was involved in the crime, instructing her not to talk with authorities, but the next day,


                                                   15
 No. 11-3670
 United States v. Romanini


he “undid” his obstructionist conduct by calling his sister and urging her to cooperate. Id. at 639-40.

We determined that Gregory’s case was extraordinary, observing that Gregory’s obstructive conduct

predated his indictment, he never denied his own responsibility and guilt, and he cooperated with

officials long before he was charged with an offense. Id. at 641. Like the defendant in Gregory,

Romanini lied to investigators before he was charged by information with bribery, but Romanini’s

efforts to “undo” his obstructive conduct took place much later. Romanini did not disclose the full

extent of his dealings with Russo until February 2011, a year and a half after his August 2009

interview, the second interview in which he lied to authorities.

        Moreover, we have recognized that a defendant’s case is not extraordinary when he continues

to obstruct justice after purporting to cooperate with government officials. See United States v.

Adams, 321 F. App’x 449, 460-61 (6th Cir. 2009). We concluded that the defendant in Adams was

not entitled to a downward adjustment for acceptance of responsibility, in part, because he

“continually lied to the government long after he purportedly began ‘cooperating’ with the

investigation.” Id. at 461. Romanini entered into a plea agreement in October 2010, in which he

agreed to “cooperate fully” with the government. While Romanini did not affirmatively obstruct the

investigation by lying to authorities after he pled guilty, he failed to disclose the full extent of his

dealings with Russo, even after he promised to provide officials with complete and truthful

information.

       Finally, Romanini’s disclosure cannot be considered truly voluntary. Romanini’s case is

analogous to United States v. Jeross, 521 F.3d 562, 581-82 (6th Cir. 2008), in which we held that the


                                                  16
 No. 11-3670
 United States v. Romanini


defendant was not entitled to a reduction for acceptance of responsibility after he admitted to

threatening a witness. We observed that, not only did Jeross’s obstructive conduct take place at or

after his indictment, but Jeross did not begin to cooperate with the government until after the total

offense level recommended in his pre-sentence report was revised upward as a result of his threats.

Id. at 582. Similarly, Romanini admitted that he gave Russo additional bribes after representatives

of the U.S. Attorney’s Office contacted Romanini’s lawyer and told him that they had information

about his dealings with Russo. Romanini told the truth only after he was caught in a lie.

        In sum, because Romanini did not timely accept responsibility for his actions, continued to

conceal the extent of his criminal conduct after entering into a plea agreement that required him to

do so, and only revealed additional bribes after they were discovered by investigators, Romanini’s

case is not an “extraordinary” one entitling him to a downward departure. The district court did not

err when it declined to adjust Romanini’s sentence downward because he accepted responsibility for

his offense.

                                                   C.

        Romanini contends that the district court erred when it adjusted Romanini’s sentence

downward by only two levels, instead of the four levels agreed to by the government, because he

rendered substantial assistance to authorities under U.S.S.G. § 5K1.1. “When ‘the district court

grants a downward departure for substantial assistance and the defendant’s claim on appeal goes only

to the extent of the departure, this Court has no jurisdiction over the appeal.’” United States v. Curry,

536 F.3d 571, 573 (6th Cir. 2008) (quoting United States v. Jones, 417 F.3d 547, 551 (6th Cir. 2005)


                                                   17
 No. 11-3670
 United States v. Romanini


(citations omitted)). For this reason, we cannot consider whether the district court should have

granted Romanini a four-level downward departure instead of the two-level departure that he received

for substantially assisting authorities.

                                                  D.

        Finally, Romanini asks us to exercise our authority under 28 U.S.C. § 2106 to remand this

case to a different district judge.

        “[R]eassignment is an ‘extraordinary power and should rarely be invoked . . . .

[R]eassignments should be made infrequently and with the greatest reluctance.’” Sagan v. United

States, 342 F.3d 493, 501 (6th Cir. 2003) (quoting Armco, Inc. v. United Steelworkers of America,

AFL-CIO, Local 169, 280 F.3d 669, 683 (6th Cir. 2002)).

        To determine whether reassignment is necessary, we consider the factors outlined in Bercheny

v. Johnson:

        (T)he principal factors considered . . . in determining whether further proceedings
        should be conducted before a different judge are 1) whether the original judge would
        reasonably be expected . . . to have substantial difficulty in putting out of his mind
        previously-expressed views or findings . . . 2) whether reassignment is advisable to
        preserve the appearance of justice, and 3) whether reassignment would entail waste
        and duplication out of proportion to any gain in preserving the appearance of fairness.

633 F.2d 473, 476-77 (6th Cir. 1980) (quoting United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977)).

        Although the district court erred in considering Romanini’s socioeconomic status during his

sentencing, the extraordinary measure of reassignment is not necessary to ensure that Romanini

receives a fair sentence on remand. Where “we are satisfied that [the judge] will re-visit the matter

with a completely open mind at the de novo resentencing,” reassignment is not required. United

                                                  18
No. 11-3670
United States v. Romanini


States v. Garcia-Robles, 640 F.3d 159, 168 (6th Cir. 2011) (quoting United States v. Faulks, 201 F.3d

208, 209 (3d Cir. 2000)).

                                                IV.

       For the foregoing reasons, we vacate Romanini’s sentence and remand this case to the district

court for resentencing in accord with this opinion.




                                                 19
