United States v. Thomas Nelson, Jr. ( 2013 )

Case: 12-30101 Document: 00512407432 Page: 1 Date Filed: 10/15/2013
REVISED October 15, 2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 12-30101 October 14, 2013
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff – Appellee
v.
THOMAS A. NELSON, JR.,
Defendant – Appellant
Appeal from the United States District Court
for the Middle District of Louisiana
Before JONES, DENNIS, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
Thomas A. Nelson, Jr., the former mayor of New Roads, Louisiana, appeals
his conviction for corruption-related offenses, along with the district court’s
calculation of his sentencing range. For the reasons articulated below, we
AFFIRM Nelson’s conviction, VACATE his sentence, and REMAND for
resentencing consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
A. Facts
The government’s interest in Nelson arose from its undercover
investigation of another Louisiana mayor, George Grace. As part of that
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investigation, Federal Bureau of Investigation (“FBI”) agents and paid
cooperating witness William Myles posed as representatives of a waste container
cleaning system business known as the Cifer 5000 (“Cifer”). The FBI instructed
Myles, a businessman with a real estate development background, to be “very
overt” about his willingness to participate in corrupt activity to obtain
government contracts.
Through his conversations with Grace, Myles discovered that Grace
considered Nelson, along with four other mayors, to be part of a close-knit group
that Grace was “training.” Although Myles may have been the first to use the
term “A-Team” to describe this group, Grace picked up on the moniker. Grace
identified Nelson as likely willing to accept cash, rather than stock options, in
exchange for helping Cifer. Grace also singled out another member of this group
of five as a “clean” politician who would want to do things “straight up,” which
Myles understood to imply that the others would not.
Myles, at Grace’s suggestion, invited Grace, Nelson, and Lewis, another
member of Grace’s A-Team, to dinner at a steak house in Baton Rouge in August
2008. Myles paid for dinner and made it “absolutely” clear that he was trying
to get contracts for Cifer’s services in the mayors’ towns. On October 1, 2008,
Myles and Grace met privately to discuss the A-Team mayors further; Grace told
Myles that the other mayors would “listen and do what I tell them.” After Myles
mentioned “tak[ing] care of” the mayors in return for Cifer contracts in their
towns, Grace said, “Well, I know Nelson, from New Roads. He ready to go.”
Grace also instructed Myles that he would act as a middleman between Myles
and the other mayors. According to Grace, the mayors trusted Grace enough to
believe that he would take the fall if the group got into trouble.
Myles and FBI special agents, in their undercover capacity as Cifer
representatives, met with Grace, Nelson, and two other A-Team mayors at
Myles’s New Orleans condo on October 6, 2008. Myles had asked Grace not to
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invite the mayor whom Grace identified as “clean.” Cifer paid for the mayors’
hotel rooms for the night and provided them with tickets to a Saints game. At
the meeting, Myles explained to the mayors the legal bidding process for
securing public contracts, but also told the group: “I might not even talk to you
outside of this room but this is the group that helping us and since y’all guys
willing to help us, we willing to help you guys.” After Nelson expressed
particular enthusiasm for Cifer, one of the agents asked whether Nelson could
secure the contract himself or whether it would need to be put to a city council
vote. Nelson responded: “[Y]ou’re talking about RFPs [a step in the formal
bidding process] and all those thing[s], but you could—I could probably look at
it almost as a professional service.” He continued: “So if it’s a professional
service, then I make the call . . . . The Council doesn’t make the call on that.”
Myles understood Nelson to mean that he was willing to circumvent the RFP
bidding process.
At some point during the evening, Grace and an FBI agent, Johnson, went
into another room and Johnson gave Grace $2,000 in cash. Later that night,
Grace came to Nelson’s hotel room and gave Nelson $300 in cash, telling him the
money was from Johnson. Grace told Nelson that he could “do whatever he
wanted” with the money, but Nelson later characterized the $300 payment as a
quid pro quo: “If I’m going to accept, I mean I couldn’t, you know, I’m going to
perform.” Nelson and one of the other mayors agreed that they would not speak
about the payments again.
Nelson met with Cifer “businessmen,” including Myles and Johnson, again
on October 30, 2008. At that meeting, Nelson accepted $400 in cash from
Johnson and a ticket to a Hornets game from Myles. The group discussed
having Nelson write an official “letter of support” to give to investors. The next
day, October 31, 2008, Nelson told Myles: “Y’all tell me when the time is right
to make the move on, we can do it. And the sooner we get this knocked out, then
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we can get the other little deal I was telling you about.” Myles testified that the
“other little deal” referred to Nelson seeking financial backing for his own
business venture, a “video bingo” project.
On November 11, 2008, Nelson sent a letter to a “private investment
group,” Quorum Venture Group, which had also been set up by the FBI, in
support of Cifer. In the letter, Nelson noted that New Roads was “committed to
working towards a contract with” Cifer. Nelson also drafted a proposed city
ordinance requiring the cleanliness of garbage cans in order to benefit Cifer. He
published an article in support of the ordinance in the local paper.
On January 27, 2009, Nelson replied to Johnson’s offer of a silent
partnership in Cifer by saying: “That sounds good . . . . I’m with that.” A few
days later, Nelson told Myles that Johnson had “told me some stuff that made
me—I’m even more ready to roll than y’all.” During this time, Nelson also
sought Cifer representatives’ financial backing for several business ventures of
his own.
In February 2009, Nelson instructed a city employee to send a request to
the Louisiana Department of Environmental Quality, seeking support for
legislation favorable to Cifer. On March 4, 2009, Johnson offered Nelson $20,000
in stock in an electronic medical records business in exchange for Nelson’s
support of Cifer; Nelson agreed. Johnson told Nelson they could delay the
decision, but Nelson said that he was “ready right now.” In April 2009, Nelson
solicited football playoff tickets from FBI undercover agent Mike King while
rejecting a similar offer from a representative of another company. Nelson told
King that he trusted Cifer.
King offered Nelson $20,000 in cash, instead of stock, on May 20, 2009.
Nelson refused, saying he preferred the stock because it could “bring so much
more in the future.” But in July, Nelson changed his mind about preferring
stock to cash after hearing of an undercover FBI operation involving public
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officials in New Jersey. King reassured Nelson that he could decline the bribe
altogether, saying: “If you’re comfortable [helping Cifer] for the right reasons,
let’s do it for the right reasons.” Nelson continued to request the cash. On
September 16, 2009, Nelson told King he wanted to be paid in a week. Nelson
accepted $5,000 on September 24, 2009, and another $5,000 on October 8, 2009.
King told Nelson he would get the remaining $10,000 when Cifer was set up in
New Roads.
In October 2009, Nelson used New Roads’s “robo call” system to
disseminate a pre-recorded message to the town’s residents, from him as mayor.
The message described the Cifer system and stated that “we are not advocating
that the Cifer 5000 alone will cure the H1N1 outbreak, what we are saying is
that your risk of contracting this virus or any other will be significantly
minimized.” The message ended by asking the recipient to press a button on
their keypad if he or she is “interested in the Cifer 5000 performing this service
in our community for a short period of time free of charge.”
In April 2010, Nelson was interviewed by an FBI agent about a report by
the City of New Roads that city offices might have been bugged by a disgruntled
employee; when asked if he had been bribed, Nelson failed to mention his
involvement with Cifer.
Nelson contacted Myles on April 26, 2010, to say that he was running for
re-election and he needed Cifer trucks “on the ground” in New Roads, as well as
money for campaign funds. Nelson told Myles that Johnson should “empty his
pockets” and give Nelson the remaining $10,000. Nelson later told Myles that
if he did not receive the money within a week, he would impose interest “so high
where y’all can’t make it up.” Myles promised to give Nelson the money, but
only if Nelson would award Myles a city contract for Cifer’s services in the fall.
Nelson agreed and also agreed to provide an official letter to the Environmental
Protection Agency (“EPA”) in support of Cifer’s grant request.
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Nelson sent a letter on Cifer’s behalf to the EPA Administrator, signed and
printed on mayoral letterhead, on May 3, 2010. The letter was written mainly
by undercover agents but edited by Nelson; it read in part:
Recently, I met with other mayors from Pointe Coupee Parish,
Louisiana, and there was an overwhelming interest from the mayors
in a technology like the Cifer 5000. A municipal joint venture was
discussed wherein any federal financial assistance from the EPA
would be shared parish-wide in order to afford many cities the
opportunity to implement a regimented sanitation container
cleaning system in compliance with the EPA rules and regulations.
At trial, the government introduced evidence that the meeting between Nelson
and the other mayors never took place. The letter concluded by requesting the
EPA to “tak[e] a leadership role in promoting the development and
implementation of standards for the sanitation of waste containers—perhaps
under the auspices of federal grants allowing municipalities to invest in
technologies such as the Cifer 5000.” In return for the letter and a verbal
guarantee of a city contract with Cifer in the fall, Myles paid Nelson the
remaining $10,000 in two installments.
Nelson asked Myles to hire him to promote Cifer to other public officials
in exchange for ten percent of profits from contracts secured. Nelson said that
his “money goal” for the scheme was to “stack a few mill[ion].” Nelson
anticipated that Cifer might be bought out and told Myles that he did not want
its owners to “walk away with $300 million and leave [Nelson] with some chump
change.” Nelson also reassured Myles that his wife would not be suspicious
about any influx of money because she “had to know what she was getting into
before she got into it . . . . She knew my family was political from the gitty-up.”
During the course of the investigation, Nelson told Myles that he had
cultivated relationships with other companies in addition to Cifer. For example,
he told Myles that “he threw in the extra lagniappe”—referring to $444,000—to
PEC, an engineering firm that had been awarded a contract worth several
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million, as part of a quid pro quo. Myles understood Nelson to mean, “I do
something for them, they do something for me.” When Myles asked what Nelson
would do if another firm offered to do the same work for 30% less than PEC,
Nelson responded that the other firm could talk “to the next mayor coming in.”
Nelson also told an FBI agent that at the same time he was dealing with Cifer,
he was “taking care of” a New Roads company called Wildgame Innovations: “I
. . . gave them $100,000 to set up . . . they’ll tell you . . . the mayor took care of
us . . . But everything they needed to set up, from the Capitol, I’ve been working
with them on legislation.”
The undercover investigation of Nelson ended on May 20, 2010, when FBI
agents identified themselves to Nelson as he was leaving a meeting with Myles,
and Nelson admitted to soliciting and receiving bribes.
B. Procedural History
Nelson originally agreed to plead guilty to a bill of information charging
him with bribery involving an entity receiving federal funds in violation of 18
U.S.C. § 666(a)(1)(B). The plea agreement was signed by Nelson, his attorneys,
and the prosecution. Included in the agreement was a stipulated factual basis
stating in part that “[f]rom on or about October 6, 2008”— the date of the first
condo meeting—“through on or about May 20, 2010, Nelson used his position as
Mayor to promote the Cifer 5000 in the City and elsewhere in exchange for cash
and other things of value totaling $22,053.” The agreement contained a waiver
clause providing that if Nelson failed to plead guilty, “any information provided
by the defendant,” including “but not limited to[] the factual stipulation
contained in this Plea Agreement,” “may be used against [Nelson] in this or any
other prosecution.”
After signing the plea agreement, Nelson switched attorneys and informed
the United States that he no longer wished to plead guilty. The government
sought to admit statements made by Nelson in the plea agreement, including in
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the stipulated factual basis. Over the defense’s objection, the district court ruled
that the stipulated factual basis was admissible but that the plea agreement
itself was not.
At trial, the government called Mary Olive Pierson, Nelson’s attorney
during the plea-bargaining stage, to testify about the circumstances surrounding
Nelson’s signing of the stipulated factual basis. The district court allowed the
testimony over the defense’s objection, and the government introduced the
factual stipulation into evidence through Pierson’s testimony. The defense also
objected to the government’s motion to admit video excerpts of a recorded
conversation between Myles and Grace. The district court admitted the evidence
under the co-conspirator hearsay exclusion.
The district court denied the defense’s request for a jury instruction on
entrapment, finding that Nelson had not established a prima facie case of
entrapment. The district court found that Nelson accepted the $300 in cash, the
hotel room, and the Saints ticket as bribes in October 2008 and that those
transactions were sufficient to indicate predisposition. The district court
instructed the jury that “entrapment is not an issue and should not be
considered by you.”
The jury found Nelson guilty on all counts. At sentencing, the district
court determined the applicable guidelines range to be between 235 and 293
months. However, noting Nelson’s young family and lack of criminal history,
and describing his gain from the scheme as “minimal,” at least compared to the
intended loss amount, the district court varied downward under 18 U.S.C. §
3553(a) and imposed concurrent sentences of 132 months and 60 months, as well
as two years of supervised release.
DISCUSSION
Nelson argues that the district court erred at trial by refusing to instruct
the jury on the affirmative defense of entrapment; by admitting statements
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made by Grace about Nelson’s propensity towards corruption; by admitting the
stipulated factual basis for the plea agreement into evidence; and by allowing
Nelson’s former attorney to testify about the circumstances surrounding Nelson’s
signing of the factual basis. Nelson also asserts that the district court erred at
sentencing in its calculation of the intended loss amount resulting from the
fraudulent grants and contracts Nelson attempted to help secure. We address
these claims in order.
A. Entrapment Instruction
We review the district court’s decision not to grant an entrapment
instruction de novo, looking at the evidence in the light most favorable to the
defendant. United States v. Theagene, 565 F.3d 911, 918 (5th Cir. 2009); United
States v. Bradfield, 113 F.3d 515, 521 (5th Cir. 1997). Entrapment is an
affirmative defense that “operates through a burden shifting regime.” Theagene,
565 F.3d at 918. Generally, entrapment is a question for the jury, not for the
court. Mathews v. United States, 485 U.S. 58, 63 (1988). But in order for an
entrapment instruction to be put to the jury, a defendant must make a prima
facie showing of two elements: (1) lack of predisposition to commit the offense
and (2) “some governmental involvement and inducement more substantial than
simply providing an opportunity or facilities to commit the offense.” Theagene,
565 F.3d at 918. Both elements pose the same ultimate question: “whether
criminal intent originated with the defendant or with government agents.”
Bradfield, 113 F.3d at 521.
The “principal element in the defense of entrapment” is predisposition.
Mathews, 485 U.S. at 63 (internal quotation marks omitted). To determine
whether the defendant lacked predisposition, we consider whether he “intended,
was predisposed, or was willing to commit the offense before first being
approached by government agents.” Theagene, 565 F.3d at 919 (internal
quotation marks omitted). A defendant lacks predisposition where he had no
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prior interest or experience related to the crime, displayed “significant hesitation
or unwillingness, or attempt[ed] to return discussion to lawful conduct.” Id. at
920; see, e.g., Bradfield, 113 F.3d at 521 (holding no predisposition when
government informant propositioned defendant approximately eighteen times
before the defendant agreed to participate in a drug deal).
By contrast, if the evidence suggests that the defendant was an “‘unwary
criminal’ who readily availed himself of the opportunity to perpetrate the crime,”
then predisposition is present. Theagene, 565 F.3d at 919 (quoting Mathews, 485
U.S. at 63). Evidence to show predisposition may include “active, enthusiastic
participation” or “demonstrated expertise in the criminal endeavor.” Id. If a
defendant displays such expertise or enthusiasm yet fails to show “any hint of
hesitation or unwillingness,” we will find predisposition. See id. at 919–20.
Nelson argues that he made a prima facie showing of lack of
predisposition. Specifically, he contends that his acceptance of the first $5,000
cash payment in 2009 followed an “intense campaign of solicitation” that had
begun on October 6, 2008, when the mayors attended their first meeting at
Myles’s condo. The district court found that the hotel room, Saints ticket, and
$300 in cash that Nelson accepted on October 6, 2008 were not part of a “wining
and dining” campaign or mesh to entrap but were themselves bribes, taken by
Nelson “with the agreement to perform official acts.” Nelson argues that, viewed
in the light most favorable to the defendant, the events of October 6, 2008, were
“no more indicative of criminality than innocence.”
Nelson cites Theagene, a case in which this court remanded for an
entrapment instruction when the evidence could support a lack of predisposition.
565 F.3d at 920–21. In that case, the defendant sent $500 to an Internal
Revenue Service (“IRS”) agent with a note describing the cash as “a token.” Id.
at 921 (internal quotation marks omitted). The defendant testified that he
meant the cash to count towards the repayment of his overdue taxes as a signal
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of good faith in case his check bounced and that he included the “token” note to
signify that he recognized the $500 was only a nominal step towards repaying
his debts. Id. at 920–21. We explained also that it was “highly relevant to
predisposition” that even the IRS agent testified that at some point he doubted
whether the defendant intended bribery. Id. at 921. Thus, we determined that
the defendant presented a “plausible enough” story such “that the jury deserved
a chance to evaluate” whether bribery was on the defendant’s mind before the
IRS agent suggested it. Id. at 922.
Nelson, by contrast, has not presented a plausible innocent explanation for
accepting the money and other gifts offered to him on October 6, 2008. Before
taking the cash, Nelson suggested to Myles that he could circumvent the formal
process for awarding city contracts; some time after the meeting, he himself
described the hotel room, Saints ticket, and cash as offers that he felt he needed
to repay with political favors. Nelson said he “felt like it was . . . if you gonna do
this, if I’m going to accept . . . I’m going to perform . . . I’m not just gonna sit in
there and say . . . this is really nice, now I mean, who just does that?” In
addition, the signed factual basis for the plea agreement, which we conclude was
properly admitted at trial, see infra, stated that the bribes began on October 8,
2008.
“[I]ndependently motivated behavior that occurs after government
solicitation begins” may constitute evidence of predisposition. United States v.
Brace, 145 F.3d 247, 262 (5th Cir. 1998) (quoting United States v. Byrd, 31 F.3d
1329, 1336 (5th Cir. 1994)) (internal quotation marks omitted). The government
presented evidence that Nelson discussed with undercover agents his corrupt
dealings with other companies unrelated to Cifer. For example, Nelson said that
he was “taking care of” a company called Wildgame Innovations, had given them
$100,000 of public funds, and was “working with them on legislation.” Further,
“a defendant’s ready and willing participation in government-solicited criminal
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activity, standing alone, is sufficient to prove predisposition.” United States v.
Reyes, 239 F.3d 722, 739 (5th Cir. 2001). By accepting bribes, and doing so
without reluctance, Nelson was an “active, enthusiastic participa[nt] in the
crim[e].” Theagene, 565 F.3d at 919 (internal quotation marks omitted). In fact,
Nelson’s request for $10,000 from Cifer came after undercover agents suggested
that they forget the bribe and move forward with the contract “for the right
reasons.” See United States v. Cavazos, 162 F.3d 1160 (5th Cir. 1998) (“Many
factors indicate a defendant’s predisposition, including a showing of defendant’s
desire for profit, his eagerness to participate in the transaction, his ready
response to the government’s inducement offer, or his demonstrated knowledge
or experience in the criminal activity under investigation.”) (internal quotation
marks omitted).1
Because we conclude that Nelson made no plausible showing of lack of
predisposition, we affirm the district court’s decision not to give an entrapment
instruction.
B. Evidentiary Rulings
1. Co-conspirator Hearsay Statements
Nelson challenges the district court’s admission of Grace’s recorded
statements, made on October 1, 2008, about Nelson’s inclinations towards
corrupt activity. The district court admitted the statements under the co-
conspirator hearsay exclusion. Under Federal Rule of Evidence 801(d)(2)(E), an
opposing party’s statement is not considered hearsay if it was “made by the
party’s coconspirator during and in furtherance of the conspiracy.” We will
“review the admission of hearsay evidence under the non-hearsay definition of
1
Nelson notes that he declined certain offers from the government, including Myles’s
offer to take him on a hunting trip, but the record does not support that he did so out of
concern for their potential illegality nor that he displayed “significant hesitation or
unwillingness” in entering into a criminal scheme.
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Rule 801(d)(2)(E) for abuse of discretion.” United States v. Robinson, 367 F.3d
278, 291 (5th Cir. 2004) (internal quotation marks omitted).
To establish a foundation for admission of evidence under this exclusion,
the government show “(1) the existence of a conspiracy, (2) [that] the statement
was made by a co-conspirator of a party, (3) the statement was made during the
course of the conspiracy, and (4) the statement was made in furtherance of the
conspiracy.” Id. (internal quotation marks omitted). The statement itself must
be considered but cannot by itself establish “the existence of the conspiracy or
participation in it.” Federal Rule of Evidence 801(d)(2). There must be
“independent evidence” establishing the conspiracy. United States v. El-Mezain,
664 F.3d 467, 502 (5th Cir. 2011).
Nelson argues that the government failed to show the existence of a
conspiracy between Nelson and Grace. A conspiracy for the purpose of the
hearsay exclusion need not be unlawful; the statement may be made in
furtherance of a “lawful joint undertaking.” Id. A conspiracy may be shown
“merely by engaging in a joint plan[] . . . that was non-criminal in nature.” Id.
Thus, “a statement is not hearsay if it was made during the course and in
furtherance of a common plan or endeavor with a party.” Id (internal quotation
marks omitted). For example, this court has admitted a ship’s logbook under the
co-conspirator exclusion because the ship’s crew were engaged in the voyage of
the ship, which was “a joint venture in and of itself apart from the illegality of
its purpose, and the logbook was created in furtherance of the voyage.” Id.
(quoting United States v. Postal, 589 F.2d 862, 886 n.41 (5th Cir. 1979)) (internal
quotation marks omitted).
Nelson argued that there was no evidence that he and Grace shared a
common purpose—for example, to share profits from a corrupt venture with each
other. But Nelson cites cases relating to the requirements for conspiracy as a
crime, not as a hearsay exclusion. Before Grace made the challenged statements
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on October 1, Nelson, Grace, and another mayor attended a dinner with Myles,
during which Myles discussed the potential benefits of Cifer for the mayors’
communities. Nelson told FBI agents that he understood Grace was the one who
was “putting the whole Cifer deal together.” The district court did not abuse its
discretion in finding that Grace and Nelson were, at the least, engaged in a
common scheme to recruit Cifer’s business to their towns.2 At the dinner it was
“clear that [Myles was] trying to get a contract in the towns of the different
mayors that were there.”
2. Admission of Factual Basis
Federal Rule of Evidence 410 prohibits the use of “a guilty plea that was
later withdrawn” or a “statement made during a proceeding on” that plea under
Rule 11. Nelson argues that the admission of his signed factual basis violates
this Rule. The government responds that the plea agreement contained an
enforceable waiver provision stating that even if Nelson decided not to plead
guilty, the factual basis could be used against him in a future prosecution.
A district court’s admission of evidence, if objected to, is reviewed for abuse
of discretion. United States v. Sylvester, 583 F.3d 285, 288 n.4 (5th Cir. 2009).
“[D]e novo review of attendant legal issues “is a component part of that abuse of
discretion review.” Id. The Supreme Court has held that “absent some
affirmative indication that the agreement was entered into unknowingly or
involuntarily, an agreement to waive the exclusionary provisions of the plea-
statement Rules is valid and enforceable.” United States v. Mezzanatto, 513 U.S.
196, 210 (1995). This court in Sylvester allowed the government to use the
defendant’s statements, made during plea negotiations, in its case-in-chief,
2
Nelson also asserts that Grace’s statements violated the Confrontation Clause.
Nelson does not point to a Confrontation Clause objection preserved at trial and he has failed
to fully brief the issue on appeal. Moreover, Nelson describes Grace’s statements as “non-
testimonial,” but the Confrontation Clause extends only to testimonial statements. See Brown
v. Epps, 686 F.3d 281, 286 (5th Cir. 2012).
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provided that “the defendant, as a condition to engaging in negotiations with the
government, knowingly and voluntarily waived all rights to object to such use.”
583 F.3d at 288; see also United States v. Mitchell, 633 F.3d 997, 1006 (10th Cir.
2011) (collecting cases). But cf. United States v. Newbert, 504 F.3d 180, 186–87
(1st Cir. 2007) (declining to find a breach of the agreement sufficient to enforce
a waiver of rights where the waiver provision did not define breach and where
the defendant possessed newly-discovered evidence “that he could not . . . have
discovered” before pleading guilty and that “establish[ed] a plausible basis for
concluding that the defendant was not guilty”).
Nelson argues that this case is distinguishable from Sylvester because the
government in Sylvester detrimentally relied on the plea agreement by offering
the defendant life imprisonment rather than the death penalty and by using the
factual statements in debriefing sessions. Although “[a] plea agreement is
interpreted in accordance with general principles of contract law,” United States
v. Harper, 643 F.3d 135, 139 (5th Cir. 2011), the Sylvester court did not base its
conclusion on the government’s reliance on the agreement. Instead, the court
adhered to the Supreme Court’s rationale in Mezzanatto that admitting factual
bases will aid the truth-finding process. See Sylvester, 583 F.3d at 290 (citing
Mezzanatto, 513 U.S. at 204). While Nelson argued at trial, and references on
appeal, that the factual stipulation was composed with “no real input [from] the
defendant whatsoever,” as we noted in Sylvester, “[w]hile in theory an innocent
defendant might execute such a waiver . . . the benefit of evaluating as much
relevant evidence as possible outweighs the mere possibility of such danger, and
will, on balance, enhance the reliability of a fact-finder’s conclusions.” Id. at 294.
The statements made in Sylvester were arguably less reliable than those at issue
here: there was no threat of the death penalty to potentially induce Nelson to
incriminate himself; unlike the oral statements at issue in Sylvester, the
stipulation here was reduced to writing and signed by Nelson, and the plea
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agreement explicitly provided that the government could admit the factual basis
if Nelson failed to plead guilty to the Bill of Information. Cf. Sylvester, 583 F.3d
at 289. Importantly, in both cases, counsel was involved in the waiver of Rule
410. We conclude that Nelson, with counsel, validly waived the exclusionary
provisions of the plea-statement rules and that the district court did not abuse
its discretion in allowing the stipulated factual basis into evidence.
3. Former Defense Attorney Testimony
Nelson argues that in testifying about the circumstances surrounding his
signing the factual basis, his former attorney violated the attorney-client
privilege and Nelson’s Sixth Amendment right to counsel.3 “The application of
the attorney-client privilege is a question of fact, to be determined in the light
of the purpose of the privilege and guided by judicial precedents. The clearly
erroneous standard of review applies to the district court’s factual findings. We
review the application of the controlling law de novo.” United States v. Neal, 27
F.3d 1035, 1048 (5th Cir. 1994) (citation omitted) (internal quotation marks
omitted). To assert the privilege, a party must show: (1) a confidential
communication; (2) to a lawyer or subordinate; (3) for the primary purpose of
securing a legal opinion, legal services, or assistance in the legal proceeding.
United States v. Robinson, 121 F.3d 971, 974 (5th Cir. 1997). The privilege does
not protect “everything that arises out of the existence of an attorney-client
relationship,” United States v. Pipkins, 528 F.2d 559, 563 (5th Cir. 1976). An
attorney-client communication is also protected under the Sixth Amendment “if
it is intended to remain confidential and was made under such circumstances
that it was reasonably expected and understood to be confidential.” United
States v. Melvin, 650 F.2d 641, 645 (5th Cir. Unit B July 1981).
3
Nelson does not reiterate on appeal his separate objection at trial to this testimony
under Federal Rule of Evidence 403. Cf. Old Chief v. United States, 519 U.S. 172 (1997).
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The government called Nelson’s former attorney, Mary Pierson, to testify
regarding the circumstances surrounding Nelson’s signing his plea agreement.
The prosecutor told the district court that the purpose of the testimony was “to
establish that the statement was voluntary[] . . . so that the jury doesn’t get the
wrong idea. . . . This is the only way that we can establish the voluntariness of
the statement.” Noting that it was the government’s burden to show
voluntariness, the court allowed “limited inquiry of” Pierson.
The government admitted the factual basis into evidence through Pierson’s
testimony, and she read it aloud to the jury. Pierson confirmed the authenticity
of the document and of Nelson’s signature. She stated that Nelson’s signature
on the document indicated that she and Nelson had “read [the document]
together, and he had read it, and he understood it and agreed with it.” She
testified that before Nelson signed the document, they had a “lengthy
discussion.” She did not discuss the details of the conversation. Pierson
confirmed that Nelson came to her office of his own free will to sign the
document and there were no government officials present. She stated that she
was not aware of any coercion or threats made against Nelson and, when asked
if Nelson signed the document “knowingly and voluntarily,” Pierson responded,
“I believe so.” The government attempted to ask about specific facts referenced
in the document, but the court sustained an objection by Nelson that “the
document speaks for itself.”4 The government argues that Pierson’s testimony
regarding the contents of the factual basis itself was not confidential and
4
We take this opportunity to observe that the opinion testimony of a witness with
personal or expert knowledge, helpful and pertaining to a document, is not objectionable on
the ground that the document “speaks for itself.” See Fed. R. Evid. 701, 702. Properly made,
such an objection may pertain to the character and scope of testimony under Rules 403 and
611. The original writings rule, Rule 1002, however, should not be misunderstood as a “best
evidence” device to exclude otherwise admissible opinion testimony interpreting a writing after
it has been introduced into evidence. See Christopher B. Mueller & Laird C. Kirkpatrick,
Evidence § 10.6, at 1158 (4th ed. 2009).
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therefore not privileged. See Robinson, 121 F.3d at 976. Nelson, however,
primarily challenges Pierson’s testimony regarding the circumstances of his
signing the agreement.
We have noted that “[t]he mere appearance of an attorney testifying
against a former client[] . . . is distasteful and should only be used in rare
instances.” United States v. Cochran, 546 F.2d 27, 29 n.5 (5th Cir. 1977). We
have, nonetheless, allowed attorneys, in narrow circumstances, to testify about
their former clients’ mental competence. See Clanton v. United States, 488 F.2d
1069, 1071 (5th Cir. 1974). We concluded that an attorney’s evaluation of his
client’s mental competency during plea bargaining did not constitute private,
confidential communications because the attorney was as “qualified as a layman
to express a view as to his client’s mental competency.” Id. “Excluded from the
privilege[] . . . are the physical characteristics of the client, such as his . . .
demeanor, his bearing, his sobriety . . . . Such things are observable by anyone
who talked with the client.” Id. (quoting United States v. Kendrick, 331 F.2d
110, 113–14 (4th Cir. 1964)) (internal quotation marks omitted); see also
Malinauskas v. United States, 505 F.2d 649, 655 (5th Cir. 1974) (attorney-client
privilege was not violated when a defendant’s former attorney testified that,
“from his observations and discussions with [the defendant] he could find no
indication that he was incompetent or under the influence of drugs”).
Pierson’s testimony, however, was not confined to observations about
Nelson’s demeanor that could have easily been made by a layperson; nor was it
offered outside the presence of a trial jury on a narrow issue like competency or
voluntariness.5 Instead, it was trial testimony that described a meeting held “for
5
See Fed. R. Evid. 104(a) (“The court must decide any preliminary question about
whether a witness is qualified, a privilege exists, or evidence is admissible.”); see also Fed. R.
Evid. 104(c) (“The court must conduct any hearing on a preliminary question so that the jury
cannot hear it if: (1) the hearing involves the admissibility of a confession[] . . . .”).
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the primary purpose of securing . . . a legal opinion” on whether to sign the
agreement. See Robinson, 121 F.3d at 974. Called by the government, defense
counsel Pierson testified that her former client in this case, Nelson, read the plea
agreement admitting to federal criminal offense conduct with her, that he
“understood” and “agreed with” it, and that he signed it only after a “lengthy
discussion” with his experienced attorney. Such information reveals more than
the plain fact of the voluntariness of Nelson’s signature on a guilty plea
attestation and document inclusive of the offense’s factual basis, and we
conclude that it is protected by the attorney-client privilege. See Fed. R. Evid.
501; see also Fed. R. Evid. 104(a), (c).
Although Pierson’s testimony falls under the attorney-client privilege, we
nonetheless conclude that its admission in this case was harmless error. See
Robinson, 121 F.3d at 977; United States v. Jiminez-Lopez, 873 F.2d 769, 771
(5th Cir. 1989);. “Where objected to testimony is cumulative of other testimony
that has not been objected to, the error that occurred is harmless.” United States
v. Griffin, 324 F.3d 330, 348 (5th Cir. 2003). The prosecutor had Pierson read
the stipulation aloud, but the district court already had ruled that the
stipulation was admissible due to Nelson’s Rule 410 waiver. In fact, Nelson
objected to the testimony in part because it was “cumulative and unnecessary,”
considering the content of the stipulation would go before the jury either way.
Pierson testified that Nelson signed the document knowingly and voluntarily,
but Nelson explicitly abandoned his arguments on those issues at trial. The
overriding content of Pierson’s testimony indicated that Nelson considered the
contents of the factual basis and did not sign it unknowingly or involuntarily.
Notably, Pierson herself, and then also the district court in rulings limiting
government inquiry, restricted testimony to avoid conversation going to matters
other than the knowing and voluntary signing of the factual basis. Viewing the
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record “in its entirety,” we conclude that any error in admitting Pierson’s
testimony was harmless. See Griffin, 324 F.3d at 348.
C. Sentencing Loss Calculation
Nelson argues that the district court arrived at the wrong guidelines
sentencing range by miscalculating the value of his bribery activity. Although
we review the district court’s loss calculations for clear error, United States v.
Scher, 601 F.3d 408, 412 (5th Cir. 2010), we review the district court’s method
of determining the amount of loss, as well as its interpretations of the meaning
of a sentencing guideline, de novo. United States v. Harris, 597 F.3d 242, 251
(5th Cir. 2010); United States v. Roussel, 705 F.3d 184, 197 (5th Cir. 2013).
The sentencing guidelines provide that the offense level for bribery-related
offenses is to be increased as follows:
If the value of the payment, the benefit received or to be received in
return for the payment, the value of anything obtained or to be
obtained by a public official or others acting with a public official, or
the loss to the government from the offense, whichever is greatest,
exceeded $5,000, increase by the number of levels from the table in
§ 2B1.1 . . . corresponding to that amount.
U.S.S.G. § 2C1.1(b)(2). The application notes to § 2B1.1 state that for the
purpose of this calculation, “loss is the greater of actual loss or intended loss.”
U.S.S.G. § 2B1.1 cmt. n.3(A). Intended loss “means the pecuniary harm that was
intended to result from the offense” and “includes intended pecuniary harm that
would have been impossible or unlikely to occur (e.g., as in a government sting
operation, or an insurance fraud in which the claim exceeded the insured
value).” Id. cmt. n.3(A)(ii).
Intended loss need not be limited to the amount the defendant is “capable
of inflicting.” United States v. Edwards, 303 F.3d 606, 645 n.27 (5th Cir. 2002).
Nonetheless, the calculation of intended loss cannot be “purely speculative.”
Roussel, 705 F.3d at 201. There must be a “reasonable estimate of the ‘intended
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loss that the defendant was attempting to inflict.’” Id. We use a “fact-specific,
case-by-case inquiry into the defendant’s intent in determining ‘intended loss.’”
United States v. Isiwele, 635 F.3d 196, 203 (5th Cir. 2011). “Although it may be
theoretically possible to intend a loss that is greater than the potential actual
loss, our case law requires the government [to] prove by a preponderance of the
evidence that the defendant had the subjective intent to cause the loss that is
used to calculate his offense level.” Id. (quoting United States v. Sanders, 343
F.3d 511, 527 (5th Cir. 2003)) (internal quotation marks omitted).
The district court increased Nelson’s offense level by 18 corresponding to
its valuation of the bribery amount at $6,382,000. See U.S.S.G. § 2B1.1(b)(1).
Nelson suggests a 10–level increase corresponding to his suggested loss
calculation of $152,000.6 Nelson challenges the district court’s calculations
relating to three aspects of the bribery activity: first, the letter to the EPA;
second, the letter to private investors; and third, the kickback scheme for public
contracts. The district court valued the EPA letter at $4 million; the private
investor letter at $2 million; and the kickback scheme at $250,000.
1. EPA Letter
Although not cited by the parties or the district court, the application notes
to the sentencing guidelines establish a special framework, “notwithstanding”
the general provisions of § 2B1.1 cmt. 3(A), for “cases involving government
benefits,” including “grants.” U.S.S.G. § 2B1.1 cmt. 3(F)(ii); see United States v.
Miller, 607 F.3d 144, 148 n.2 (5th Cir. 2010) (“Commentary contained in
U.S.S.G. application notes is ‘authoritative unless it violates the Constitution or
a federal statute, or is inconsistent with, or a plainly erroneous reading of, that
6
Nelson does not challenge the $132,000 loss amount remaining, after subtracting the
EPA and investor letter and kickback scheme valuations. Presumably, the $152,000 amount
results from adding the $20,000 in cash bribes Nelson received, which Nelson argues should
be considered as an alternative to the district court’s assessment of potential gain for Cifer
from the EPA and investor letters.
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guideline.’”) (quoting Stinson v. United States, 508 U.S. 36, 38 (1993)) (internal
quotation marks omitted).
For cases involving government benefits, “loss shall be considered to be not
less than the value of the benefits obtained by unintended recipients or diverted
to unintended uses, as the case may be.” Id. The application note provides an
example: “[I]f the defendant was the intended recipient of food stamps having
a value of $100 but fraudulently received food stamps having a value of $150,
loss is $50.” Id. The intended loss analysis applies to such cases: “The intention
to divert funds from the Government for unintended uses qualifies the . . .
amounts as ‘intended losses.’” United States v. Dowl, 619 F.3d 494, 502 (5th Cir.
2010).
The government benefits rule was instituted to clarify that even if benefits
“flowed through an unauthorized intermediary, as long as they went to intended
recipients or intended uses, the amount of those benefits should not be included
in loss.” United States v. Harms, 442 F.3d 367, 380 (5th Cir. 2006) (quoting
U.S.S.G. app. C vol. II, at 180 (2010)) (internal quotation marks omitted). We
have clarified that a defendant should not be held accountable for the total
amount of benefits obtained, when some portion of that benefit would have been
obtained absent the fraudulent conduct. Id. Instead, the correct loss calculation
is “the difference between the amount the defendant actually received and the
amount he would have received absent the fraud”—in other words, “the amount
of loss based on the amount of excess benefits received as a result of fraud.” Id.
(emphasis added).
Generally, it is the government’s burden to show by a preponderance of the
evidence the amount of loss attributable to fraudulent conduct. United States
v. Hebron, 684 F.3d 554, 563 (5th Cir. 2012). The government’s only evidence of
Nelson’s intended loss in this case—Nelson’s understanding that the letter
would “assist Cifer folks with obtaining a three to four million dollar grant from
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the EPA”—is insufficient to hold Nelson accountable for an intended loss amount
of $4 million.7 Nelson’s expectation that Cifer might be eligible for a multi-
million dollar grant does not constitute a reasonable estimation of the amount
of government funds Nelson intended to divert using his letter of support. See
Hebron, 684 F.3d at 563. The letter itself did not identify a requested grant
amount, nor did it constitute a grant application. Instead, the letter merely
suggested that the EPA “consider taking a leadership role in promoting the
development and implementation of standards for the sanitation of waste
containers—perhaps under the auspices of federal grants allowing municipalities
to invest in technologies such as the Cifer 5000.” (emphasis added). Nelson
acknowledged he believed the letter would “assist Cifer folks . . . ,” not that the
letter would secure $4 million in grant money. The wording of Nelson’s
acknowledgment makes sense, because Cifer necessarily would have to complete
various further steps on its own initiative and merit before receiving millions in
federal funds. The record establishes that Nelson believed Cifer was a
legitimate company with the ability to achieve its stated goals and put trucks on
the ground in New Roads in a matter of months.
There is insufficient evidence to adequately differentiate between
legitimate funding Cifer could have received from the EPA, and any benefits that
Nelson intended to stem from this false statement in his letter that he had met
with other mayors regarding Cifer and similar projects. A defendant’s false
statement in seeking government benefits is insufficient to render him
accountable for all benefits received or intended to be received. See, e.g., United
States v. Parsons, 109 F.3d 1002, 1005 (4th Cir. 1997) (“Just as in [a previous
7
After Nelson signed the letter, Myles told him it was worth “$4 million for your town.”
Myles testified: “I had let him know that because of his letter that we could get federal
assistance . . . if a municipality [said] that they were behind us, it is easy to raise the capital.”
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case] where the FDA's approval was not automatically revoked on the basis of
a false statement, here an entire travel reimbursement claim was not
automatically forfeited because it was partially fraudulent.”).
Where a defendant has “defraud[ed] the government to such an extent that
an accurate loss calculation is not possible,” we have held that “the burden shifts
to the defendant” to identify which benefits are legitimate. Hebron, 684 F.3d at
563 (noting that if the defendant fails to make such a showing, the district court
may treat the entire claim as intended loss). Here, we cannot find such
“extensive and pervasive” fraud, at least with regard to the EPA grant. See id.
Nelson’s activity was limited to providing a letter of support, that, as noted
above, was introductory in nature and did not specify a requested grant amount.
We therefore conclude that this case, although close, is one in which the
amount of loss cannot reasonably be determined, and it may therefore be more
appropriate to use “the gain that resulted from the offense as an alternative
measure of loss.” § 2B1.1, comment. (n.3(B)). The district court noted at
sentencing, in response to Nelson’s argument that he was “not sure [whether
Cifer or New Roads would be] the intended beneficiary” of the grant money, that
the EPA was part of an overall “scheme . . . with the expectation that [Nelson]
himself would receive a substantial sum of money as a result of it.” We have
held, however, that the expectation of receiving a “substantial” amount of money
is insufficiently specific to base a calculation of intended loss. Roussel, 705 F.3d
at 201 (“‘Substantial sums’ . . . cannot constitute an estimate of an intended
benefit for the purpose of the sentencing guidelines enhancement.”). The record
in this case indicates that government agents requested the EPA letter in return
for a $10,000 cash bribe. The FBI viewed the letter as Nelson’s
repayment—along with the promised Cifer contract with New Roads—for the
$10,000 amount. As Myles testified, the letter was designed to add “realism” to
the operation: “I don’t look like a bank . . . I’m trying to advance my project. So
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I will give you that money if you do this for me. That would be normal in any
normal businessman transaction.” Thus, the most appropriate valuation of the
EPA letter may be the amount Nelson received for writing it, i.e., $10,000.
2. Private Investor Letter
Second, Nelson challenges the valuation of the letter he wrote to private
investors as $2 million in intended benefit for Cifer. The district court found “by
a preponderance of the evidence [that] the defendant believed the investor letter
would be used to generate at least two million dollars . . . if not three million
dollars . . . and maybe [just] as a starting point.”
The guideline commentary defines the value of “the benefit received or to
be received” as “the net value of such benefit.” U.S.S.G. § 2C1.1(b)(2)(A), cmt.
n.2. The commentary provides two examples:
(1) A government employee, in return for a $500 bribe, reduces the
price of a piece of surplus property offered for sale by the
government from $10,000 to $2,000; the value of the benefit received
is $8,000. (2) A $150,000 contract on which $20,000 profit was made
was awarded in return for a bribe; the value of the benefit received
is $20,000. Do not deduct the value of the bribe itself in computing
the value of the benefit received or to be received. In the above
examples, therefore, the value of the benefit received would be the
same regardless of the value of the bribe.
U.S.S.G. § 2C1.1, cmt. n.2; see United States v. Griffin, 324 F.3d 330, 366 (5th
Cir. 2003).
Nelson gave Cifer a letter expressing his official support for the Cifer
project to Quorum Venture Group, which had been set up by the FBI. The
original letter, drafted by undercover agents, suggested the New Roads City
Council supported the contract, but Nelson edited it to state that while New
Roads was “committed to working towards a contract” to use Cifer, it was
contingent on the approval of the City Council and public input. Id. The letter
concluded: “Be assured that the appropriate steps will be taken to ensure that
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the city makes a good faith effort to reach a final agreement with [Cifer] that is
both fair and reasonable.” Id. Nelson told the FBI after the investigation had
ended that the letter “was to be used to obtain two to three million dollars in
private investment money for the Cifer 5000.”
As with the EPA letter, while Nelson may have expected the letter to
contribute to Cifer’s ability to obtain private investments, the letter itself was
not a funding application, nor did it explicitly request any funds. The record
indicates that Nelson expected Cifer to use its investment funds to launch a
legitimate waste receptacle cleaning business. See United States v. Sublett, 124
F.3d 693, 695 (5th Cir. 1997) (where a defendant “uses fraud to procure a
contract but intends to provide the contracted for services,” the defendant
“should not be characterized as causing as much loss as one who intends to
totally cheat the victim, giving nothing in return.”).
In overruling Nelson’s objection to the $2 million valuation, the district
court found that Nelson “not only knew that there would be large profits
generated as a result in part from this letter, but also that . . . the letter was yet
one step perhaps in a series of steps of activities, the ultimate goal of which
would result in a large sum of money to [Nelson] personally.” In making that
finding, the district court referenced Nelson’s stated concern that Cifer would
walk away with millions and leave Nelson with “some chump change.”That
statement, however, was made in connection with the kickback scheme, see
infra, and not in connection with the private investor letter. As noted above,
furthermore, we have held that the expectation of receiving a large or
“substantial” amount of money is insufficiently specific to base a calculation of
intended loss. Roussel, 705 F.3d at 201 (“‘Substantial sums’ . . . cannot
constitute an estimate of an intended benefit for the purpose of the sentencing
guidelines enhancement.”).
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Because we have concluded that a loss recalculation for the EPA letter is
appropriate on remand, and because the district court’s reasoning with regard
to the private investor letter relied in part on Nelson’s general expectation to
generate “a large sum of money,” we deem that closer scrutiny is advisable
regarding the valuation of the private investor letter.8
3. Kickback Scheme
Finally, Nelson challenges the district court’s $250,000 valuation of his
expected benefit from the kickback scheme. This valuation was based on
Nelson’s proposal to help obtain other government contracts for Cifer, in
exchange for 10% of Cifer’s profits from the resulting contracts. Myles and
Nelson agreed that if Nelson helped Cifer obtain a $10-million contract resulting
8
Because we remand on these issues, we need not address Nelson’s argument that the
district court erred in calculating the full rather than net benefit from the EPA and private
investor letters. We nonetheless note that this argument is inconsistent with our precedent.
Nelson asserts that the benefit figures should be reduced by the costs Cifer would incur by
moving into New Roads, such as purchasing equipment and hiring employees. The
application note to § 2C1.1 provides that“[t]he value of ‘the benefit received or to be received’
means the net value of such benefit.” U.S.S.G. § 2C1.1 cmt. n.3. We have held that the
guidelines’ use of the phrase “net value” does not mean “net profits.” United States v. Landers,
68 F.3d 882, 885 (5th Cir. 1995). Instead, we have distinguished between direct costs—which
are properly deducted from the benefits calculation—and indirect or fixed costs, which are not.
Id. at 885–86.
As further guidance on remand, we observe that Nelson also argues the $2 million and
$4 million values were “set by the government operatives, arguably as a way of enhancing Mr.
Nelson’s sentence or encouraging a plea.” Nelson did not raise this objection below, and does
not expand on it on appeal. We have not “expressly determined whether we have accepted the
concept of ‘sentencing factor manipulation.’” United States v. Termelling, 43 F.3d 148, 151 (5th
Cir. 1995). We note, nonetheless, that this court considered a similar argument in United
States v. Richardson, 925 F.2d 112, 117–18 (5th Cir. 1991). In that case, the defendant
claimed that the government brought more money to the table in a money-laundering sting
operation in order to raise the eventual sentence. Id. This court affirmed the sentence
because the defendant had “knowledge and acceptance of the amount of funds involved,” since
he “demonstrated an affirmative desire to launder the money presented to him” and “urged
agents to invest greater sums of money, suggested additional laundering scenarios to enlarge
the operation, and initiated calls to expedite the receipt of funds.” Id. at 118. Here, on plain
error review there is sufficient evidence that Nelson demonstrated an affirmative desire to
earn millions from working with Cifer; that Grace, not the government, first suggested the
idea of obtaining federal grant money; and that Nelson suggested the kickback scheme
himself.
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in $2.5 million in profit for Cifer, Nelson would retain $250,000. Nelson argues
that basing the calculation on a hypothetical contract is overly speculative
because “Myles could have picked any amount” for the hypothetical contract.
We conclude, however, that the record supports the district court’s
determination that Nelson expected to receive at least $250,000 for his role in
the kickback scheme. Nelson stated that his “money goal” for the project was to
“stack a few mill.” He told Myles, in discussing the scheme, that he did not want
Cifer to be bought out, “walk away with $300 million and leave [Nelson] with
some chump change.” Although the $250,000 figure was mentioned as part of
a hypothetical scenario, as the application notes to the sentencing guidelines
caution, a sentencing court “need only make a reasonable estimate of the loss.”
U.S.S.G. § 2B1.1 cmt. n.3(C). With regard to the kickback scheme, the
government presented sufficient evidence that Nelson intended to secure
benefits for himself of at least that amount, if not significantly more, and
$250,000 is thus a reasonable—indeed, generous—estimate of the intended loss
amount.9
CONCLUSION
For the above reasons, we AFFIRM Nelson’s conviction, VACATE his
sentence, and REMAND for resentencing consistent with the above opinion.
9
In this case, the district court’s downward departure from the sentencing range “does
not render harmless the court’s starting from an incorrect sentencing guidelines range.”
Roussel, 705 F.3d at 202. We “cannot assume,” absent evidence in the record, that the district
court “would not have granted a variance from the correct range” for reasons similar to those
originally contemplated, including Nelson’s young family and lack of criminal history. Id.; see
also Williams v. United States, 503 U.S. 193, 203 (1992)).
28