
USCA1 Opinion

	




          September 15, 1992                              _________________________          No. 92-1180                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  BRIAN J. SARAULT,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                              ____________________                         Torruella and Selya, Circuit Judges,                                              ______________                             and Zobel,* District Judge.                                         ______________                              ____________________               Kevin J. O'Dea for appellant.               ______________               Edwin J.  Gale, Assistant United States  Attorney, with whom               ______________          Lincoln  C. Almond, United States Attorney, was on brief, for the          __________________          United States.                              ____________________                              ____________________          ____________________          *Of the District of Massachusetts, sitting by designation.                    SELYA, Circuit Judge.  In a postscript to a sordid tale                    SELYA, Circuit Judge.                           _____________          of greed  and corruption,  defendant-appellant Brian  J. Sarault,          the  former Mayor of Rhode Island's  fourth largest city, assails          the  district  court's imposition  of  a  sentence exceeding  the          guideline  sentencing range (GSR).   Finding, as we  do, that the          upward  departure was  fully  justified, we  affirm the  judgment          below.                                          I                                          I                                          _                                      Background                                      Background                                      __________                    On November  14, 1991,  the former mayor  of Pawtucket,          Rhode  Island, pleaded  guilty  to a  criminal information  which          charged  him with heading an  enterprise engaged in  a pattern of          racketeering  activity,  in violation  of  the  RICO statute,  18          U.S.C.   1962(c) (1988).  The predicate offenses described in the          information consisted  of fifteen acts of  extortion committed in          connection  with  the  award  of  municipal  contracts,  each  in          violation of  the Hobbs Act, 18 U.S.C.   1951 (1988).  On January          31,  1992,  appellant  was   sentenced  to  sixty-six  months  in          prison.1   The  court  used the  November,  1991 version  of  the          sentencing guidelines.  See United States v. Harotunian, 920 F.2d                                  ___ _____________    __________          1040, 1041-42 (1st Cir.  1990) ("Barring any ex facto  problem, a                                                       __ _____          defendant is to be punished according to the guidelines in effect          at the time of sentencing.").                    We trace the architecture of the sentence step by step.                                        ____________________               1Sarault  was also  sentenced to  three years  of supervised          release,  fined  $20,000, directed  to  make  restitution in  the          amount of $80,829, and ordered to pay a $50 special assessment.                                          2          The  court  began to  design  the sentence    by   referring   to          U.S.S.G.            2E1.1 which, in respect  to a RICO conviction, provides a  base          offense  level of  nineteen or,  if greater,  "the  offense level          applicable  to  the  underlying  racketeering  activity."     The          application notes indicate that, in order to determine which base          offense level results  in the  greater offense  level, the  court          should make the  appropriate adjustments under Parts A  through D          of  Chapter Three of the  guidelines, using the  two base offense          levels  in  turn, and  compare the  results.   U.S.S.G.    2E1.1,          comment. (n.1).   Following  this protocol, the  court determined          that the level nineteen floor would produce the  greater adjusted          offense level  (twenty-five) when  all  referenced Chapter  Three          adjustments  were  implemented.2   Hence,  the  court used  level          nineteen  as  the  starting  point  in  constructing  appellant's          sentence.                     The court then  increased the offense level by  four to          reflect appellant's role as  the organizer/leader of an extensive          criminal activity,  U.S.S.G.   3B1.1(a); elevated  it another two          levels  to reflect  appellant's  abuse of  a  position of  public          trust, U.S.S.G.    3B1.3; and,  finally, deducted  two levels  to          acknowledge  appellant's acceptance of responsibility, U.S.S.G.            3E1.1(a).   The  court thus  arrived  at a  net offense  level of                                        ____________________               2The base offense  level for  the Hobbs  Act violations  was          ten.  See  U.S.S.G.    2C1.1,  2E1.5.  After  making the  interim                ___          adjustments  described  in  the  Application  Note,  the adjusted          offense level would have been twenty-four.                                          3          twenty-three.    Inasmuch  as  appellant had  no  prior  criminal          history, the court's calculations produced  a GSR of forty-six to          fifty-seven months.    See  U.S.S.G.  Ch. 5,  Pt.  A  (Sentencing                                 ___          Table).                    This  brings  us to  the heart  of  the matter.   After          settling upon the GSR, the district  judge departed therefrom and          sentenced Sarault to a prison term  that exceeded the high end of          the GSR by nine months.  The judge linked the upward departure to          the  significant  disruption   of  governmental  functions   that          attended appellant's antics.                    On   appeal,  Sarault   challenges   only  the   upward          departure.  He  does not  contest any of  the sentencing  court's          interim calculations.                                          II                                          II                                          __                                  Standard of Review                                  Standard of Review                                  __________________                    Our review of sentencing  departures is governed by the          tripartite  methodology  set  forth  in United  States  v.  Diaz-                                                  ______________      _____          Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, 493 U.S. 862          _________                              _____ ______          (1989).  We have summarized the methodology as follows:                    First, we evaluate  the circumstances  relied                    on by the district court in  determining that                    the case is sufficiently "unusual" to warrant                    departure.  If  the stated circumstances pass                    muster,  we  proceed  to the  next  rung  and                    determine  whether  those circumstances  were                    adequately documented.   After the  first two                    levels are  climbed,  the departure  must  be                    measured by a standard of reasonableness.  On                    the third  tier, the district  court's leeway                    is substantial.                                          4          United  States v. Aguilar-Pena, 887 F.2d 347, 350 (1st Cir. 1989)          ______________    ____________          (citation omitted).                      At  the  first step  of  departure  analysis, appellate          review  of the district court's determination is plenary.  At the          second step, appellate  review is for clear error.   At the final          step, we review the  extent of the departure for  reasonableness.          See  Diaz-Villafane,  874  F.2d at  49.    Throughout, we  remain          ___  ______________          mindful that a  departure is appropriate only when  "there exists          an  aggravating or  mitigating circumstance  of a  kind, or  to a          degree, not adequately taken into consideration by the Sentencing          Commission in formulating the guidelines  that should result in a          sentence different  from that described."   18  U.S.C.    3553(b)          (1988).                                         III                                         III                                         ___                                       Analysis                                       Analysis                                       ________                                          A.                                          A.                                          __                    The  sentencing  court based  its  upward  departure on          U.S.S.G.   5K2.7, which provides:                    If  the defendant's  conduct  resulted  in  a                    significant  disruption   of  a  governmental                    function, the court may increase the sentence                    above  the  authorized  guideline   range  to                    reflect   the  nature   and  extent   of  the                    disruption   and   the   importance  of   the                    governmental  function  affected.   Departure                    from the  guidelines ordinarily would  not be                    justified  when the offense  of conviction is                    an  offense such as bribery or obstruction of                    justice;  in such  cases interference  with a                    governmental  function  is  inherent  in  the                    offense,  and  unless  the circumstances  are                    unusual  the  guidelines  will   reflect  the                    appropriate punishment for such interference.                                          5          U.S.S.G.   5K2.7.   Sarault  argues that the  second sentence  of          section  5K2.7 is  applicable  here, and  that the  circumstances          attendant to his malefactions are  not sufficiently extraordinary          to  overcome the  strong presumption  that the  GSR  reflects the          appropriate range of punishment.  We disagree with this analysis.                     As  the  guideline  implies,  if  appellant  had  been          charged  with, and  sentenced on  the  basis of,  the substantive          crime  of  extortion in  violation of  the  Hobbs Act,  an upward          departure would  not be sustainable unless the  disruption was so          atypically great as to exceed  the level of interference inherent          in the offense.   Compare,  e.g., United States  v. Riviere,  924                            _______   ____  _____________     _______          F.2d  1289, 1308-09  (3d Cir.  1991) (reversing  upward departure          under    5K2.7 where  disruption of governmental  function was no          greater than that normally associated with the underlying offense          of  assault on a federal marshal); United States v. Goodrich, 919                                             _____________    ________          F.2d 1365, 1369 (9th Cir. 1990) (reversing upward departure under            5K2.7  where governmental disruption  was no greater  than that          which  normally accompanied  the  crime of  perjury); and  United                                                                ___  ______          States  v.  Barone, 913  F.2d 46,  51  (2d Cir.  1990) (reversing          ______      ______          upward departure under   5K2.7 because disruption of governmental          function was inherent  in the offenses  of conviction, viz.,  tax          evasion  and perjury) with,  e.g., United  States v.  Kramer, 943                                ____   ____  ______________     ______          F.2d  1543, 1550  (11th Cir.  1991) (upholding    5K2.7 departure          where defendant's attempted jailbreak resulted in  the crash of a          helicopter in the prison  yard, disrupting the normal functioning                                          6          of the  prison "far beyond the  level of . .  . a run-of-the-mill          escape  attempt"), petition  for  cert. filed,  60 U.S.L.W.  3816                             __________________________          (U.S.  Apr. 30, 1992) (No.  91-1848); United States  v. Roth, 934                                                _____________     ____          F.2d 248, 251  (10th Cir. 1991) (upholding upward departure under             5K2.7  where  defendant's  theft of  government  property  was          unusually extensive); and United  States v. Garcia, 900 F.2d  45,                                ___ ______________    ______          49  (5th  Cir. 1990)  (upholding upward  departure under    5K2.7          where defendant's  mail theft was  on so  grand a scale  that the          resulting  disruption of  service was  well beyond  that normally          associated with the crime).  In  this case, however, we need  not          undertake  the  qualitative  scrutiny  demanded  by   the  second          sentence of section 5K2.7.3                     U.S.S.G.   5K2.7 must be applied to charged crimes on a          categorical  basis.  Sarault  was not  charged directly  with the          predicate  Hobbs Act  offenses.   Rather,  he  was charged  with,          convicted  of, and sentenced on  the basis of,  racketeering.  In          categorical terms, racketeering  is not a crime that  fits within          the second sentence of section 5K2.7.  Although a RICO enterprise          can,  as here, be conducted so as  to impair the functioning of a          governmental unit, that element  is by no means "inherent  in the          offense" of racketeering.  To the contrary, RICO  violations come          in many  different shapes,  sizes, and  manifestations   most  of          which  do  not  involve  direct  impedance  of  any  governmental                                        ____________________               3We express no opinion  on whether the squalid circumstances          of  this case  were  sufficiently unusual  to permit  a departure          under the  more restrictive  standard contemplated by  the second          sentence of section 5K2.7.                                          7          operations.                    Nor does it assist Sarault's cause that the RICO charge          in this case rests on a  series of Hobbs Act violations.  Section          5K2.7 requires us  to take  a categorical approach.   We  cannot,          therefore,  overlook the  forest (the  offense of  conviction, on          which the sentence was  based) to focus on individual  trees (the          predicate acts described in the charging papers).  Moreover, this          court has held, squarely  and recently, that RICO, as  an offense          of conviction  on which a sentence is  based, does not bring with          it the inherent characteristics  of the underlying predicate acts          described in the charging papers.  See United States v. Butt, 955                                             ___ _____________    ____          F.2d 77, 89 (1st Cir. 1992) (  2E1.1(a)(1) establishes "a generic                                                                    _______          base offense  level  for  RICO crimes,  one  that  'includes'  no          particular offense characteristic or special skill").                      In  sum, the  first sentence  of section  5K2.7, rather          than  the second  sentence, controls  in this  case.   Under that          rubric,  a district court  may depart upwardly  if it supportably          finds that the defendant's criminal conduct caused "a significant          disruption  of  a  governmental  function."   U.S.S.G.     5K2.7.          Hence, the initial prong of  the Diaz-Villafane test is satisfied                                           ______________          in this instance.                                          B.                                          B.                                          __                    As  we  have  already  mentioned,  the  district  court          premised its departure from the GSR  on what it perceived to be a          significant  disarticulation  of   Pawtucket's  city   government          resulting  from   appellant's  extortion  scheme.     The   court                                          8          enumerated  several  ways  in which  this  disruption  manifested          itself.  It would  serve no useful purpose to repeat the district          court's mantra.  For present purposes, it suffices that the court          excoriated, among other things,  the wholesale derangement of the          city's bid  processes caused  by the mayor's  prodigious appetite          for  extortionate  payments.    This factor  alone  supports  the          court's  finding  that a  significant  disruption  occurred.   We          explain briefly.4                    A city must purchase supplies  and services in order to          fulfill its rudimentary obligations to its inhabitants.  In  this          case,  it is clear that  appellant conspired with  his chief aide          and  the  city's  acting director  of  public  works  to prey  on          municipal vendors, extorting  payments from businesses  that were          interested  in  obtaining  municipal  contracts   and  extracting          kickbacks  from  businesses  that   had  succeeded  in  obtaining          municipal contracts.   Sarault  and his cohorts  instructed those          who agreed  to play along  how bids and  change orders  should be          prepared.  On occasion,  they suggested that bids be  inflated to          cover the  cost of the illegal payments.  One general contractor,          for example,  was told "not to bid on any [City of Pawtucket] job          without first . . . adding '10% for the mayor.'"                    The   charging  papers   allude  to   fifteen  separate                                        ____________________               4Because  this case was resolved  on a guilty  plea, we draw          the facts from  appellant's admissions, the uncontested  portions          of  the presentence  investigation report  (PSI Report),  and the          transcripts of the hearings  below.  See, e.g., United  States v.                                               ___  ____  ______________          Garcia, 954 F.2d 12, 14 (1st Cir. 1992); United States  v. Dietz,          ______                                   _____________     _____          950 F.2d 50, 51 (1st Cir. 1991).                                          9          incidents  in   which  city   contractors  were  asked   to  make          extortionate payments.  The  PSI Report affords detailed accounts          of these meretricious encounters.  The record makes  it painfully          plain that the web of corruption was much more widespread; in the          sentencing  court's words,  appellant "systematically  shook down          vendors on  a regular basis  for a period  spanning at  least two          years,  and for an amount that was  at least $250,000."  Based on          the  tawdry  record   in  this  case,  the  court's   finding  is          unimpugnable.                      We  will not  paint  the lily.    Sarault's scheme  was          suffusive; it  engulfed city government.   As the  district court          accurately observed, appellant's  actions "distorted the  process          of  awarding bids  for Public  Works projects  from one  which is          supposed  to see that the lowest responsible bidder gets the job,          to  one that resulted in the bidder  who was most willing to play          ball  getting the job."  It follows from this supportable finding          that appellant  was responsible  for a significant  disruption of          the City's governmental functions.  Put bluntly, he threw a large          monkey  wrench into a vital  cog in the  machinery of Pawtucket's          operations.  His   brazen  conduct  constituted   an  aggravating          circumstance  not adequately  taken into  account in  framing the          sentencing  guidelines  for  RICO  cases    a  circumstance  that          distinguished his case from  the mine-run of RICO violations  and                                          10          validated an upward departure.5                                          C.                                          C.                                          __                    We  turn next to the  third part of  the required Diaz-                                                                      _____          Villafane  analysis.  The  nine-month upward departure represents          _________          an increase  of approximately fifteen percent  in the appellant's          sentence.  Although this court has not previously had occasion to          assess  the reasonableness  of a  section 5K2.7  departure, other          courts  have upheld departures  of a far  greater magnitude where          U.S.S.G.   5K2.7 is in play.   See, e.g., United States v. Hatch,                                         ___  ____  _____________    _____          926 F.2d 387, 397-98  (5th Cir.) (upholding   5K2.7  departure of          ten  months where  defendant's  fraud deprived  the  parish of  a          significant portion  of its  budget and undermined  confidence in          law  enforcement; high  end of  GSR was  fourteen  months), cert.                                                                      _____          denied, 111 S.  Ct. 2239  (1991); United States  v. Murillo,  902          ______                            _____________     _______          F.2d  1169,  1171,  1174  (5th  Cir.  1990)  (upholding     5K2.7          departure  of  twenty-seven  months  where  defendant's  sale  of          illegal immigration papers disrupted government  amnesty program;          high end of GSR was twenty-one months); cf. Roth, 934 F.2d at 252                                                  ___ ____                                        ____________________               5Although we need not  discuss the other dislocations caused          by  Sarault's behavior, we detour briefly in order to mention the          district court's comment that  appellant's inability to  function          effectively as mayor during the period between his arrest and his          eventual  resignation  contributed  to  the  disruption  of  city          government.   In  the  clear light  of hindsight,  it is  easy to          criticize the appellant for causing further pain to his community          by continuing in office.  But, we question whether his failure to          resign  at an earlier date can provide  a legitimate basis for an          upward  departure.   One of  the most  fundamental tenets  of our          system  of  justice  is  the  presumption  of  innocence.    This          presumption   would    be   substantially   undermined    if   an          officeholder's  failure  to resign  when  he  was first  arrested          could, in and of itself, support an upward departure.                                          11          (remanding    5K2.7 departure of eighty-three  months for further          explanation of degree of  departure; high end of GSR  was thirty-          seven months).  In light of the extensive and pervasive nature of          appellant's  scheme, its  ubiquity, its  duration, the  amount of          booty involved, and the havoc occasioned in Pawtucket, we believe          that a nine-month upward  departure was well within the  realm of          reasonableness.                                          IV                                          IV                                          __                                      Conclusion                                      Conclusion                                      __________                    We  need go no further.   It is  difficult to overstate          the gravity of Sarault's  offense.  He betrayed the trust  of the          citizens of Pawtucket,  abused the  high office to  which he  had          been  elected,  pressured  municipal  vendors,  and  relentlessly          pursued  emoluments  to  which  he  was  not  entitled.    Beyond          question,  Sarault's course  of conduct  seriously disrupted  the          normal functioning of  a vital arm of city government.   In these          sorry  circumstances,  the  sentencing   court  did  not  err  in          formulating and imposing a modest upward departure.          Affirmed.          Affirmed.          ________                                          12
