United States v. Walter Teel

Case: 11-60509 Document: 00511956680 Page: 1 Date Filed: 08/14/2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

August 14, 2012

No. 11-60509 Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

WALTER W. TEEL; PAUL S. MINOR; JOHN H. WHITFIELD,

Defendants - Appellants

Appeals from the United States District Court

for the Southern District of Mississippi

Before KING, PRADO, and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

Appellants Walter W. Teel (“Teel”), Paul S. Minor (“Minor”), and John H.

Whitfield (“Whitfield”) (collectively, “Appellants”) raise several appellate issues

arising from their final amended judgments of convictions and sentences entered

by the district court after this court remanded the case for resentencing in

United States v. Whitfield, 590 F.3d 325 (5th Cir. 2009). Specifically, Appellants

challenge: (1) the jury instructions for erroneously defining honest-services

fraud; (2) the indictment for failure to state an offense; and (3) whether the

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district court committed various errors in sentencing Minor and Whitfield.1 We

AFFIRM.

I. Original Appeal

Because the complete factual history is extensively set out in Whitfield, we

only summarize the relevant procedural history.

In 2007, a jury found Appellants guilty on all charges. Minor received 132

months of imprisonment to be followed by three years of supervised release, was

fined $2.75 million ($250,000 for each of his eleven counts of conviction), and,

along with Teel, was ordered to pay $1.5 million as restitution to United States

Fidelity and Guaranty (“USF&G”), the victim of the Minor/Teel bribery scheme.

In addition to the restitution order, Teel received seventy months of

imprisonment and two years of supervised release. Whitfield received 110

months of imprisonment, three years of supervised release, and a $125,000 fine.

In Whitfield, however, we concluded that the district court committed

plain error when it denied Appellants’ motions for judgment of acquittal under

Federal Rule of Criminal Procedure 29 on the 18 U.S.C. § 666 counts of the

indictment. Accordingly, we reversed all of the convictions related to federal

program bribery in violation of § 666, including Minor and Teel’s convictions for

conspiracy to commit federal program bribery. However, we affirmed each

remaining count of conviction, specifically, Appellants’ convictions for honest-

services mail and wire fraud in violation of 18 U.S.C. §§ 1341, 1343, and 1346,2

1

As stated in their opening and reply briefs, Whitfield and Teel join Minor in the

challenges to the indictment and the jury instructions, and adopt the relevant portions from

Minor’s opening and reply briefs accordingly. However, while Minor and Whitfield also raise

various appellate issues stemming from their resentencings, Teel, who has completed his

imprisonment term, does not.

2

18 U.S.C. §§ 1341 and 1343 criminalize the use of the mails or wires, respectively, in

furtherance of “any scheme or artifice to defraud, or for obtaining money or property by means

of false or fraudulent pretenses, representations, or promises.” 18 U.S.C. § 1346 defines the

term “scheme or artifice to defraud” to include “a scheme or artifice to deprive another of the

intangible right of honest services.”

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Minor and Whitfield’s convictions for conspiracy in violation of 18 U.S.C. § 371,

and Minor’s conviction for racketeering in violation of 18 U.S.C. § 1962(c).

In light of the foregoing, we vacated each Appellant’s sentence and

remanded the case for resentencing. Thereafter, Minor unsuccessfully petitioned

this court for rehearing, and each Appellant unsuccessfully petitioned the

Supreme Court for a writ of certiorari.

On remand for resentencing, Minor, joined by Whitfield and Teel, filed in

the district court a motion to vacate their convictions in light of the Supreme

Court’s decision in Skilling v. United States, 130 S. Ct. 2896 (2010). Appellants

argued that Skilling was an intervening change of law by a controlling authority

that rendered the indictment and jury instructions erroneous. After receiving

supplemental briefing and hearing argument, the district court denied

Appellants’ motion.

The district court then resentenced Appellants. Whitfield received

seventy-five months of imprisonment and two years of supervised release. Teel

received fifty-one months of imprisonment and two years of supervised release.

Minor received ninety-six months imprisonment3 to be followed by three years

of supervised release, and was fined $2 million ($250,000 for each of his eight

remaining counts of conviction). Also, as before, Minor and Teel were ordered

jointly and severally to pay restitution to USF&G. This timely appeal followed.

II. Current Appeal: Convictions and Law of the Case

Between the original appeal and the current appeal, the Supreme Court

decided Skilling. In that case, Defendant Jeffrey Skilling (“Skilling”) was

charged with and convicted of, inter alia, conspiracy to commit securities and

wire fraud. See id. at 2908. Specifically, according to the indictment, “Skilling

3

Whitfield’s second imprisonment sentence was, in total, thirty-five months lower than

his original sentence, Teel’s imprisonment sentence was nineteen months lower, and Minor’s

imprisonment sentence was thirty-six months lower.

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had sought to ‘depriv[e] Enron and its shareholders of the intangible right of

[his] honest services.’” Id. (alterations in original). The Supreme Court granted

certiorari to address whether Skilling’s conviction for conspiracy to commit

honest-services wire fraud was improper: “We . . . consider whether Skilling’s

conspiracy conviction was premised on an improper theory of honest-services

wire fraud. The honest-services statute, § 1346, Skilling maintains, is

unconstitutionally vague. Alternatively, he contends that his conduct does not

fall within the statute’s compass.” Id. at 2925-26. The Court determined that

§ 1346 is not unconstitutionally vague, but that its reach is limited to bribery

and kickback schemes, not other conduct, such as conflict-of-interest schemes.

Id. at 2930-34.

Appellants argue that Skilling changed the law of honest-services fraud

to render both the jury instructions and the indictment in this case erroneous.

Specifically, Appellants allege that the jury instructions were erroneous because

they incorporated the Mississippi-state-law definition of bribery. In addition,

Appellants allege that the indictment failed to state an offense under § 1346

because instead of charging bribery under federal law, the relevant counts

charged that “honest services” are those “performed free from deceit, bias, self-

dealing, and concealment.” In this way, Appellants continue, the indictment

charged a conflict-of-interest scheme, which Skilling specifically excludes from

§ 1346’s compass. According to Appellants, each of these errors independently

requires reversal of their convictions.

These arguments implicate the law-of-the-case doctrine. Under that

doctrine, the district court on remand, or the appellate court on a subsequent

appeal, abstains from reexamining an issue of fact or law that has already been

decided on appeal. See, e.g., United States v. Carales-Villalta, 617 F.3d 342, 344

(5th Cir. 2010). A facet or corollary of the law-of-the-case doctrine is the

mandate rule. See United States v. Becerra, 155 F.3d 740, 753 (5th Cir. 1998),

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abrogated on other grounds by United States v. Booker, 543 U.S. 220 (2005).

Under the mandate rule, “[a] district court on remand ‘must implement both the

letter and the spirit of the appellate court’s mandate and may not disregard the

explicit directives of that court.’” United States v. McCrimmon, 443 F.3d 454,

459 (5th Cir. 2006) (quoting United States v. Matthews, 312 F.3d 652, 657 (5th

Cir. 2002)).

Accordingly, the mandate rule “prohibits a district court on remand from

reexamining an issue of law or fact previously decided on appeal and not

resubmitted to the trial court on remand. This prohibition covers issues decided

both expressly and by necessary implication . . . .” United States v. Pineiro, 470

F.3d 200, 205 (5th Cir. 2006) (per curiam). “Additionally, pursuant to the

‘waiver approach’ to the mandate rule,” McCrimmon, 443 F.3d at 459, “‘[a]ll

other issues not arising out of this court’s ruling and not raised before the

appeals court, which could have been brought in the original appeal, are not

proper for reconsideration by the district court below,’” Pineiro, 470 F.3d at 205

(citation omitted). See also United States v. Lee, 358 F.3d 315, 321 (5th Cir.

2004) (“Absent exceptional circumstances, the mandate rule compels compliance

on remand with the dictates of a superior court and forecloses relitigation of

issues expressly or impliedly decided by the appellate court. Moreover, the rule

bars litigation of issues decided by the district court but foregone on appeal or

otherwise waived, for example because they were not raised in the district

court.”). “We review de novo a district court’s application of the remand order,

including whether the law-of-the-case doctrine or mandate rule forecloses the

district court’s actions on remand.” Carales-Villalta, 617 F.3d at 344.

Both the law-of-the-case doctrine and the mandate rule are discretionary

practices, not jurisdictional rules, and they are subject to an exception

Appellants urge here: that “there has been an intervening change of law by a

controlling authority.” Matthews, 312 F.3d at 657. Appellants contend that

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their challenges to the jury instructions and the indictment were properly before

the district court on remand for resentencing because Skilling satisfies the

intervening-change-of-law exception. We disagree.

Appellants argue that, after Skilling, § 1346 criminalizes only bribery and

kickbacks under federal law, thereby specifically excluding bribery and

kickbacks under state law. According to Appellants, by the Skilling Court’s

stating that its “construction of § 1346 ‘establish[es] a uniform national

standard,” 130 S. Ct. at 2933 (alteration in original), the Court could only have

meant federal law. A fair reading of Skilling, however, reveals that the Court

was establishing a uniform national standard by construing § 1346 to clearly

exclude conduct outside of bribery and kickbacks, such as conflict-of-interest

schemes, not to establish federal law as the uniform national standard for the

elements of bribery and kickbacks in § 1346 prosecutions.4 Moreover, the

Skilling Court further asserted that “[o]verlap with other federal statutes does

not render § 1346 superfluous. The principal federal bribery statute, [18 U.S.C.]

§ 201, for example, generally applies only to federal public officials, so § 1346’s

application to state and local corruption and to private sector fraud reaches

misconduct that might otherwise go unpunished.” Id. at 2934 n.45 (emphasis

added). Accordingly, we read Skilling as recognizing that § 1346 prosecutions

may involve misconduct that is also a violation of state law.

In Whitfield, we recognized that “the district court based its definition of

bribery in the jury charge on the Mississippi offense of bribery,” and that the

“jury charge was also consistent with the language of the Fifth Circuit Pattern

4

Additionally, it is notable that in Black v. United States, 130 S. Ct. 2963 (2010), a

companion case to Skilling decided the same day, the Supreme Court stated that it had

“decided in Skilling that § 1346, properly confined, criminalizes only schemes to defraud that

involve bribes or kickbacks.” Id. at 2968. If Skilling had indeed held that § 1346 criminalizes

only schemes to defraud that involve bribes or kickbacks under federal law, it is only

reasonable that the Court would have said as much in Black.

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Jury Instructions on ‘Bribery of a Public Official’ under 18 U.S.C. § 201(b)(1) and

‘Receiving Bribe by Public Official’ under 18 U.S.C. § 201(b)(2).” 590 F.3d at 348.

Moreover, we made clear that “in order to constitute a federal crime, the state

statute must concern ‘something close to bribery’ and . . . ‘the mere violation of

a gratuity statute . . . will not suffice.’” Id. (citing United States v. Brumley, 116

F.3d 728, 734 (5th Cir. 1997) (en banc)). Accordingly, Whitfield was fully

consonant with Skilling, and nothing in the Skilling opinion suggests that our

analysis of the jury instructions in Whitfield was incorrect. To the contrary,

Skilling cites approvingly to Whitfield for our analysis of the district court’s jury

instructions regarding bribery. 130 S. Ct. at 2934.

Furthermore, although Skilling changed the law of honest-services fraud

to exclude the conflict-of-interest category of cases from § 1346’s scope, see id. at

2931-32, this is not an intervening change of law as applied to the facts of this

case because Appellants were charged with bribery schemes. Indeed, as we

observed in Whitfield, this case involved “two prolonged bribery schemes

spanning nearly four years each.”5 590 F.3d at 352. The mere inclusion of the

“performed free from deceit, bias, self-dealing, and concealment” language did

not transform the bribery schemes charged in the indictment into conflict-of-

interest schemes.

Based on the foregoing, the intervening-change-of-law exception is

inapplicable to this case. Accordingly, the mandate rule bars litigation of these

arguments.6 See Pineiro, 470 F.3d at 205; McCrimmon, 443 F.3d at 459. We

5

In the instant appeal, Appellants attempt to re-litigate whether they were guilty of

any wrongdoing. In fact, they even re-urge that Minor’s transactions with Whitfield and Teel

were constitutionally protected political campaign contributions that qualified for First

Amendment protection. We decline Appellants’ invitation to entertain this attempted “second

bite at the apple.” See, e.g., Carales-Villalta, 617 F.3d at 344-45; United States v. Slanina, 359

F.3d 356, 358 (5th Cir. 2004) (per curiam).

6

Even if the mandate rule did not foreclose Appellants’ arguments, we need not

address them here because they were never raised at trial or in the initial appeal. Moreover,

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decline the invitation to revisit Appellants’ convictions that were affirmed in

Whitfield.

III. Current Appeal: Sentences

A. Standard of Review

Minor and Whitfield also contend that the district court committed various

sentencing errors on remand that require this court to vacate their sentences

and remand for resentencing. In particular, Minor and Whitfield raise

arguments specific to their individual resentencings. In addition, both argue

that the district court erred in calculating the benefit received from the

Minor/Whitfield bribery scheme.7

“In reviewing a sentencing decision, we first must consider whether the

district court committed a significant procedural error, such as improperly

calculating the [Sentencing] Guidelines range, treating the Guidelines as

mandatory, or selecting a sentence based on clearly erroneous facts. If the

sentence is procedurally sound, we then consider the ‘substantive reasonableness

we note that even though Skilling was decided while Appellants’ certiorari petitions were still

pending in the Supreme Court, Appellants did not ask the Court to vacate their convictions

in light of Skilling. See, e.g., FED. R. APP. P. 28; Lofton v. McNeil Consumer & Specialty

Pharm., 672 F.3d 372, 381 (5th Cir. 2012) (“‘[A]rguments not raised before the district court

are waived and will not be considered on appeal unless the party can demonstrate

extraordinary circumstances.’ The Fifth Circuit has a ‘virtually universal practice of refusing

to address matters raised for the first time on appeal.’” (alteration in original) (citations

omitted)); United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000) (per curiam) (“It has

long been the rule in this circuit that any issues not briefed on appeal are waived.”).

7

Minor also alleges that the district court erred in calculating the benefit received from

the Minor/Teel bribery scheme. In that scheme, Minor arranged and paid off a bank loan for

Teel in exchange for Teel’s rendering a favorable disposition in Peoples Bank v. United States

Fidelity & Guaranty, resulting in a $1.5 million settlement in favor of Minor’s client, Peoples

Bank. See Whitfield, 590 F.3d at 339-41. The crux of Minor’s challenge to the district court’s

calculation in regard to the Minor/Teel scheme is that even without Teel’s actions, USF&G

would not have been spared the need to settle Peoples Bank at a substantial price. This

argument is foreclosed, however, by the law of the case—as stated in Whitfield, “USF&G

would have had no need to settle the case” for $1.5 million had it not been for Teel’s actions.

Id. at 368. Accordingly, we do not disturb the district court’s calculation of the benefit received

from the Minor/Teel bribery scheme as $1.5 million.

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of the sentence imposed under an abuse-of-discretion standard.’” United States

v. Delgado-Martinez, 564 F.3d 750, 751 (5th Cir. 2009); see also United States v.

Simmons, 649 F.3d 301, 303 (5th Cir.) (per curiam), cert. denied, 132 S. Ct. 857

(2011) (“We ordinarily review sentences for procedural error and for substantive

reasonableness, applying an abuse of discretion standard.”).

In addition, “[i]n exercising this bifurcated review process, we continue to

review the district court’s application of the Guidelines de novo and its factual

findings for clear error.” Delgado-Martinez, 564 F.3d at 751; see also United

States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). “There is no clear

error if the district court’s finding is plausible in light of the record as a whole.”

Cisneros-Gutierrez, 517 F.3d at 764 (citation and internal quotation marks

omitted). “‘However, a finding will be deemed clearly erroneous if, based on the

record as a whole, we are left with the definite and firm conviction that a

mistake has been committed.’” United States v. Miller, 607 F.3d 144, 148 (5th

Cir. 2010) (citation omitted); see also United States v. Campbell, 106 F.3d 64, 66

(5th Cir. 1997) (“[A] district court retains wide discretion in sentencing, and the

sentencing decision is entitled to considerable deference.”).

B. Whitfield’s Prison Sentence

In Whitfield, we reversed Whitfield’s conviction for federal program

bribery, but affirmed his convictions on all other counts, specifically, counts one,

four, five, six, and seven (conspiracy and mail fraud/honest-services fraud). For

the affirmed counts of conviction, the district court had originally sentenced

Whitfield to an imprisonment term of sixty months. On remand, however, the

district court imposed a different sentence for count seven alone, specifically,

imposing seventy-five months imprisonment instead of the sixty-month-term

imposed for the other counts. Thus, with all sentences running concurrently,

Whitfield received a total imprisonment term of seventy-five months. Whitfield

objected to the increase in the sentence for count seven in the absence of

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intervening aggravating factors, but the district court overruled the objection:

“If I had not had Count 11 [federal program bribery] available at the first

sentence, then my address of Count 7 [mail fraud/honest-services fraud] would

have been different. So your objection is on record, but my motive for doing so

was because I had at that time Count 11 for the Court’s consideration.”

Here, Whitfield claims that the district court on remand imposed a

presumptively vindictive sentence upon him in violation of North Carolina v.

Pearce, 395 U.S. 711 (1969), overruled on other grounds by Alabama v. Smith,

490 U.S. 794 (1989). Specifically, he alleges that the imposed imprisonment

term of seventy-five months as to count seven, which was fifteen months longer

than the imprisonment term for count seven imposed in 2007, was

presumptively vindictive even though his total sentence was actually reduced.

“We review the question of whether a sentence is vindictive, and thus

unconstitutional, de novo.” Campbell, 106 F.3d at 66. For the purpose of

reviewing this question, we expressly adopted in Campbell the aggregate

approach, under which “courts compare the total original sentence to the total

sentence after resentencing. If the new sentence is greater than the original

sentence, the new sentence is considered more severe.”8 Id. at 68.

Whitfield alleges that the holding of Campbell does not foreclose his

argument because his case falls into Campbell’s recognized exceptions to its

holdings, claiming that the counts were not related and the original sentences

were not imposed as part of a “sentencing package.” See id. at 68 n.4. However,

as in Campbell, none of these facts are present here. Specifically, the counts

8

Whitfield urges this court to re-examine its adoption of the aggregate approach, and

adopt instead the “remainder aggregate” or “count-by-count” approach. This argument,

however, is foreclosed by the rule of orderliness. See Jacobs v. Nat’l Drug Intelligence Ctr., 548

F. 3d 375, 378 (5th Cir. 2008) (“It is a well-settled Fifth Circuit rule of orderliness that one

panel of our court may not overturn another panel’s decisions, absent an intervening change

in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court.”).

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were related because they all involved bribery. In addition, despite never using

the phrase “sentencing package,” the district court clearly used the package

approach as demonstrated by its explanation: had it not been for the availability

of the lengthier sentence under count eleven, it would have imposed a different

sentence for count seven. Cf. United States v. Bass, 104 F. App’x 997, 1000 (5th

Cir. 2004) (per curiam) (unpublished) (“When a defendant is convicted of more

than one count of a multicount indictment, the district court is likely to fashion

a sentencing package in which sentences on individual counts are

interdependent.”). Furthermore, nothing in the district court’s explanation

suggests that the reason for its decision was anything other than clearly

objective, let alone vindictive or plainly unreasonable. Finally, the district court

also commented that it had no obligation to reduce Whitfield’s sentence given

the guideline range, but that it would do so because Whitfield had accepted

responsibility, and that it would further vary downward from the guideline

range because of Whitfield’s medical issues and his positive post-offense conduct.

Accordingly, it appears that the district court was actually being quite lenient.

Thus, under Campbell’s aggregate approach, Whitfield’s claim of vindictiveness

fails.9

C. Minor’s Prison Sentence

Minor argues that while addressing the sentencing factors under 18 U.S.C.

§ 3553(a), the district court erred by giving him a longer sentence to promote his

alcohol rehabilitation. The government concedes that under Tapia v. United

States, 131 S. Ct. 2382 (2011), the district court erred if it lengthened Minor’s

9

Whitfield also makes two unsupported arguments—that his sentence was based upon

racial discrimination such that it was disproportionately greater than his fellow defendants,

and that the application of the obstruction-of-justice enhancement was inappropriate.

However, he fails to cite any authority for these arguments, so we deem them waived. See

FED. R. APP. P. 28(a)(9)(A); Lofton, 672 F.3d at 381; Procter & Gamble Co. v. Amway Corp., 376

F.3d 496, 499 n.1 (5th Cir. 2004) (“Failure adequately to brief an issue on appeal constitutes

waiver of that argument.”).

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prison sentence to allow for alcohol rehabilitation as arguably suggested by the

written statement of reasons.10 See id. at 2393 (“[A] court may not impose or

lengthen a prison sentence to enable an offender to complete a treatment

program or otherwise to promote rehabilitation.”); see also 18 U.S.C. § 3582(a)

(“[I]mprisonment is not an appropriate means of promoting correction and

rehabilitation.”). The parties, however, do not agree on the standard of review

applicable here.

It is unnecessary to determine the standard of review for this issue,

however, because even if the district court impermissibly addressed Minor’s need

for alcohol treatment, this consideration is harmless error in this case. When

the term of imprisonment is not lengthened by a district court’s consideration of

an impermissible factor, such as the need for rehabilitation, reversal is not

required. See United States. v. Tolbert, 668 F.3d 798, 803 (6th Cir. 2012)

(holding that the defendant’s sentence was substantively reasonable because

“the district court did not impermissibly impose or lengthen [his] sentence to

enable him to complete a treatment program or promote his rehabilitation”);

United States v. Cardenas-Mireles, 446 F. App’x 991, 994-95 (10th Cir. 2011)

(unpublished), cert. denied, 80 U.S.L.W. 3596 (U.S. Apr. 23, 2012) (No. 11-9539)

(“[T]he question is not merely whether the district court had Cardenas-Mireles’s

medical needs on its mind when it issued his sentence, but whether the court’s

assessment of his medical needs actually changed the sentence the court would

otherwise have imposed.”).

At the resentencing hearing, the district court made clear that although

the same Guidelines range of 121 to 151 months was applicable, it was choosing

10

The written statement of reasons—filed three days before the Supreme Court’s

decision in Tapia—stated as follows: “As to the need to provide the defendant with needed

education or vocational training, medical care, or other correctional treatment in the most

effective manner - Mr. Minor has a serious history of alcohol abuse, and he needs a sufficient

amount of time in prison to fully benefit from alcohol treatment.”

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to vary downward to ninety-six months, a total downward deviation of twenty-

five months from the minimum of the Guidelines range. The district court

explained that although it could have imposed the same sentence as before, since

the last sentencing, Minor had “earned the reduction” based on his rehabilitative

conduct, which largely focused on his alcohol abuse. Moreover, the district court

recollected that it had been necessary to send Minor to a rehab center

previously, but that it was encouraged to know that Minor had conquered his

problems and would continue to do so.

Furthermore, in the written statement of reasons, the district court

referenced Minor’s participation in bribery schemes with two separate trial court

judges under three separate § 3553(a) factors, rendering it likely to have been

the most salient fact for the district court in determining the length of Minor’s

sentence. In addition, whereas the district court mentioned the alcohol

treatment program that had already occurred, nowhere did it reference any

specific treatment program in the future that would require lengthening Minor’s

sentence. See Tapia 131 S. Ct. at 2392-93 (noting that a court does not commit

error simply by discussing the opportunities for rehabilitation within prison, but

in the case at bar, the court had committed error by “select[ing] the length of the

sentence to ensure that [the defendant] could complete the 500 Hour Drug

Program”).

Thus, nothing in the record suggests that the district court actually

lengthened Minor’s sentence based on its consideration of his need for alcohol

rehabilitation. To the contrary, it appears that the consideration of alcohol

treatment was based upon events in the past, not anticipated “rehabilitation” in

prison in the future. Accordingly, we reject this argument.

D. Minor and Whitfield’s Sentences: Loss Enhancement

In exchange for Minor’s arranging of bank loans for Whitfield in the total

amount of $140,000, Whitfield arranged to preside over Marks v. Diamond

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Offshore Management Co., and to render a decision in favor of Archie Marks

(“Marks”), Minor’s client. See Whitfield, 590 F.3d at 337-38. After conducting

the bench trial, Whitfield ruled in favor of Marks and awarded him $3.75 million

in damages, but subsequently reduced the award to $3.64 million in response to

post-trial motions. Id. $3 million of the $3.64 million award “was attributable

to noneconomic ‘soft’ damages.” Id. at 338. The defendant in Marks “later

appealed to the Mississippi Supreme Court, which, sitting en banc, affirmed the

finding of liability” but reduced the total award to $1.64 million. Id. In light of

Minor and Whitfield’s criminal convictions, however, the Mississippi Supreme

Court withdrew its original opinion, vacated Whitfield’s judgment, and

remanded the Marks case for a new trial on all issues. See id. at 338 n.5. The

new trial resulted in a damages award of only $383,000.

In the first appeal, Minor and Whitfield challenged their enhanced

sentences on the grounds that “the district court erred in including the full

amount of the original award in Marks ($3.75 million) in their respective loss

calculations.” Id. at 367. There, we determined that the Guideline regarding

bribery-related offenses, U.S.S.G. § 2C1.1, was applicable to the case “because

the jury found appellants guilty on a theory of bribery.” Id. Having done so, we

also observed that “U.S.S.G. § 2C1.1(b)(2) provides for an enhanced sentence if

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

the payment’ exceeds $5,000. The level of enhancement is dictated by the table

in U.S.S.G. § 2B1.1.” Id. We also recognized that “Application Note 2 of

U.S.S.G. § 2B1.1 provides that the loss should be determined by the greater of

the actual loss or intended loss, which is defined in relevant part as ‘the

pecuniary harm that was intended to result from the offense.’” Id.

In light of the remand for resentencing, however, we declined to address

whether the district court clearly erred in determining the amount of the benefit

received, except to “suggest that the district court might more properly rely on

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the actual amount awarded by Whitfield in the Marks case ($3.64 million)

adjusted by taking into account a reasonable estimate of whatever intrinsic

value that case may have had if litigated before an impartial judge.” Id. at 368.

Here, Whitfield and Minor argue that on remand, the district court again

erroneously enhanced their respective sentences. Specifically, they contend that

the district court should not have used the $383,000 award from the new trial

of Marks as the intrinsic value that Marks may have had if it had been litigated

before an impartial judge. They allege that the $383,000 award was reached a

decade later with different evidence of the plaintiff’s medical condition, which

had substantially improved by the time of retrial. Accordingly, they maintain

that the district court erred by basing its loss calculation for enhancement

purposes on the difference between the $3.64 million Whitfield actually awarded

in Marks and the $383,000 award from the new trial.

We review the district court’s finding of fact regarding the amount of the

benefit received for clear error. See, e.g., United States v. Griffin, 324 F.3d 330,

365 (5th Cir. 2003) (“The amount of the benefit to be received is a fact finding

issue that is reviewed for clear error.”). With respect to Minor, even if we used

the $1.64 million figure from the Mississippi Supreme Court’s opinion as the

“intrinsic value” of Marks, he would still qualify for the eighteen-level

enhancement that he received on remand because his loss calculations for

enhancement purposes include the benefit received from both the

Minor/Whitfield scheme and the Minor/Teel scheme. In other words, using the

$2 million difference instead of the number actually used would still not qualify

Minor for a smaller enhancement. See U.S.S.G. § 2B1.1(b)(1)(J) (any loss

amount between $2.5 million and $7 million increases the offense level by

eighteen).

With respect to Whitfield, using the higher “intrinsic value” number and,

therefore, calculating a lower “loss” amount would yield a smaller enhancement,

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taking the enhancement from eighteen levels to sixteen.11 See id. § 2B1.1(b)(1)(I)

(any loss amount between $1 million and $2.5 million increases the offense level

by sixteen). Thus, with a criminal history category of I and a base offense level

of ten, Whitfield’s total offense level would become twenty-six, with an advisory

guideline range for imprisonment of sixty-three to seventy-eight months, instead

of twenty-eight, with an advisory guideline range of seventy-eight to ninety-

seven months. Accordingly, we must consider whether the district court “clearly

erred” in using the $383,000 figure.

Whitfield argues that the $383,000 figure reflects a different time

period—ten years after the original trial—with more information about the

underlying litigant’s damages and improved condition. While that may be so, we

cannot conclude that the passage of time and ensuing additional information

renders the use of this figure “clearly erroneous.” Calculating the “intrinsic

value” of the Marks case is an imprecise endeavor, and we require only that the

district court make a reasonable estimate. See United States v. Goss, 549 F.3d

1013, 1019 (5th Cir. 2008) (“[T]he district court cannot achieve absolute certainty

in determining the . . . losses. Instead, ‘[t]he court need only make a reasonable

estimate of the loss.’” (quoting United States v. Holbrook, 499 F.3d 466, 468 (5th

Cir. 2007))); see also Griffin, 324 F.3d at 366 (“The district court need not

determine the value of the benefit with precision.”). Moreover, “[t]he sentencing

judge is in a unique position to assess the evidence and estimate the loss based

upon that evidence. For this reason, the court’s loss determination is entitled to

11

Here, and in connection with Whitfield’s challenge to the obstruction-of-justice

enhancement discussed above, the government argues, as it did during the first appeal, that

“any error in sentencing was harmless because the district court incorrectly applied the more

lenient United States Sentencing Guidelines from 2001 rather than the Guidelines as

amended in 2006.” Whitfield, 590 F.3d at 366. We declined to address this argument in

Whitfield because it was not dispositive. Id. (“The fact that [the] district court used the 2001

Guidelines instead of the 2006 Guidelines does not necessarily mean that appellants were not

prejudiced by any alleged errors in their sentencing.”). For the same reason, we likewise

decline to consider the government’s argument here.

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appropriate deference.” Holbrook, 499 F.3d at 468 (citation and internal

quotation marks omitted). Because the $383,000 award was a reasonable

estimate of the “intrinsic value” of Marks, we conclude that the district court did

not clearly err.

Even if the calculation was in error, we conclude such error was harmless.

See FED. R. CRIM. P. 52(a) (“Any error, defect, irregularity, or variance that does

not affect substantial rights must be disregarded.”); Williams v. United States,

503 U.S. 193, 203 (1992) (“[O]nce the court of appeals has decided that the

district court misapplied the Guidelines, a remand is appropriate unless the

reviewing court concludes, on the record as a whole, that the error was harmless,

i.e., that the error did not affect the district court’s selection of the sentence

imposed.”); Delgado-Martinez, 564 F.3d at 752-53 (“[C]ertain ‘harmless’ errors

do not warrant reversal.”). Whitfield received an imprisonment sentence of

seventy-five months, which falls well within the range for the putative revised

total offense level of twenty-six. The record as a whole suggests that the

calculation of Whitfield’s sentence was not influenced by this alleged error.

Accordingly, we conclude no reversible error was committed in the loss

enhancement.

E. Minor’s Sentence: Fines

According to the district court’s written statement of reasons for

resentencing, the district court imposed on Minor the maximum fine of $250,000

on each count, see U.S.S.G. § 5H1.10, resulting in a total fine of $2 million

dollars:

The Court finds [Minor] has the ability to pay a fine in

addition to restitution. In ordering a fine, the Court has considered

the advisory guidelines range of $17,500 to $175,000, in addition to

the sentencing factors in 18 U.S.C. § 3553(a). The Court has

determined there are aggravating circumstances relating to this

defendant’s conduct and other facts specific to the case at hand

which leads the Court to conclude that a variance from the advisory

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guideline fine range is fair and reasonable. The Court has been

made aware that the defendant failed during the presentence

investigation to disclose the existence of an asset valued at

approximately $5,000,000, which was transferred by him by way of

quit claim deed to his wife and subsequently to a limited liability

company controlled by his wife within days of the indictment and

his arrest in this case. Additionally, the Court recognizes the need

for the amount of the fine to be sufficient to ensure that the fine,

taken together with other sanctions imposed, is punitive to this

defendant, who has substantial assets and income; and will provide

deterrence to other criminal activity. It is therefore the order of the

Court that the defendant pay a fine of $250,000 per count, for a total

fine of $2,000,000.00.

Minor contends that the district court abused its discretion in setting his

fine.12 Specifically, citing United States v. Painter, 375 F.3d 336 (5th Cir. 2004)

and United States v. Graham, 946 F.2d 19 (4th Cir. 1991), Minor argues that the

district court relied on his financial status when it varied from the Guidelines

range and that this was an impermissible use of his socio-economic status. In

addition, Minor contends that the district court erred by taking into account his

failure to disclose the transfer of the property to his late wife as an aggravating

circumstance.

Minor’s challenge is without merit. First, his reliance on Painter and

Graham is misplaced. Those cases deal with challenges to upward departures,

not variances. See Irizarry v. United States, 553 U.S. 708, 714 (2008)

(“‘Departure’ is a term of art under the Guidelines and refers only to

non-Guidelines sentences imposed under the framework set out in the

Guidelines.”). The pertinent question in a departure case is whether “there

exists an aggravating or mitigating circumstance of a kind . . . not adequately

12

In Whitfield, because we remanded the case for resentencing, we declined to decide

whether the district court took Minor’s socio-economic status into account when imposing its

fine. See 590 F.3d at 368. We did, however, conclude that there should be some level of

reduction from the previously ordered fine of $2.75 million, as three counts upon which the

fine was based were reversed. See id.

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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). Basing a departure on financial resources is an erroneous use

of discretion because “the Sentencing Commission adequately considered a

defendant’s ability to pay in formulating the fine guideline.” Graham, 946 F.2d

at 21.

The district court, however, did not consider Minor’s ability to pay in

“departing” from the Guidelines; rather, the court properly utilized its discretion

to vary from the Guidelines by taking into account Minor’s financial resources

when determining the appropriately punitive fine in the first instance. The

district court’s reliance on Minor’s assets was not in reference to his socio-

economic status. Instead, it was with regard to his ability to pay the fine and

the need for the fine to be sufficiently punitive. See 18 U.S.C. § 3572(a)(1) (“In

determining whether to impose a fine, and the amount, time for payment, and

method of payment of a fine, the court shall consider . . . the defendant’s income,

earning capacity, and financial resources.” (emphasis added)); see also U.S.S.G.

§ 5E1.2(d) (stating that a fine should be sufficiently punitive and take into

consideration the defendant’s ability to pay in light of earning capacity and

financial resources).13

For the foregoing reasons, the district court’s judgment on remand is

AFFIRMED.

13

Minor also argues that the district court erred by taking into account his failure to

disclose the transfer of the property to his late-wife as an aggravating circumstance. However,

even assuming arguendo that Minor is correct that the district court abused its discretion in

this manner, he cannot show how the district court’s consideration of the non-disclosure

affected the fine imposed. Both the government and Minor agree that in imposing Minor’s

original sentence, the district court did not take the non-disclosure into consideration in

setting the fine. Nevertheless, the original sentence still imposed a fine of $250,000 per count,

the same amount imposed at resentencing. Accordingly, even if the district court’s

consideration of the non-disclosure as an aggravating circumstance was erroneous, it was

harmless since it did not impact the amount of the fine.

19