United States v. Reneslacis, Eduard ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3498
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDUARD S. RENESLACIS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 1091—James F. Holderman, Judge.
____________
ARGUED MAY 29, 2003—DECIDED NOVEMBER 12, 2003
____________
Before CUDAHY, EVANS, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Eduard Reneslacis was con-
victed after a jury trial for offering bribes to a public official
and for making materially false statements to a public
official. Reneslacis appeals, contending that the court
(1) improperly increased his offense level for offering money
to an official “holding a high-level decision-making or
sensitive position” and (2) incorrectly found that he had led
or organized the offense. We agree that the official whom
Reneslacis attempted to bribe—a district-adjudications
officer for the former Immigration and Naturalization
Service (INS)—held a sensitive position, but do not think
2 No. 02-3498
that Reneslacis led or organized a scheme to bribe him. We
therefore uphold the first adjustment but remand for
resentencing as to the second.
I. BACKGROUND
In 1998, federal officials started an investigation into the
illegal sale of resident-alien cards and other documents es-
tablishing the right of foreigners to reside permanently
in the United States. As part of the investigation, officials
opened “GS Golden Travel,” a store on the west side of
Chicago that was advertised as a travel agency but con-
ducted no legitimate business. The store was wired with
surveillance equipment, and Clarence Robinson, a bonafide
district-adjudications officer, posed there as a corrupt offi-
cial who for $5,000 would approve applications for lawful
permanent residency filed by immigrants who were inelig-
ible for that status.
To become a permanent resident, ordinarily applicants
must submit a sponsor’s petition along with medical rec-
ords, fingerprints, a $220 fee, and other paperwork. The
applicant must then appear for an interview before a
district-adjudications officer, who may grant or deny the
application based upon criteria established by the INS (now
a defunct agency, though we can ignore that detail). If the
application is granted, the officer will affix a temporary
stamp to the applicant’s passport. Valid for one year, the
stamp serves as proof of permanent-residency status until
the applicant receives a resident-alien card (better known
as a green card).
Reneslacis had overstayed his tourist visa, and in April
1999 he met with Gregory Sienkiewicz, a convicted felon
who worked for the government by promoting Golden
Travel to his former associates. Sienkiewicz told Reneslacis
No. 02-3498 3
that his immigration problems could be solved for $5,000
and that through the travel agency he could obtain work
permits and social security cards for his friends. After
returning to Golden Travel a few weeks later to meet with
Robinson—who pointedly explained, “you know this is
illegal, what we’re doing right now”—Reneslacis accepted
the proposal and that August paid $5,000 for a stamp in his
passport signifying that he had successfully applied to
become a permanent resident.
After his initial meeting at Golden Travel, Reneslacis also
began referring potential customers to Robinson and
Sienkiewicz. In July 1999, he went to the travel agency
with a man named Przemek, who was interested in pur-
chasing green cards and other paperwork for two of his
friends. A few months later Reneslacis arrived with another
man, Anguel, who wanted to buy permanent-residency
status for himself and his wife until he learned that
Robinson did not offer a “discount” for married couples and
would require full payment from them both. In March 2000,
Reneslacis took Yivgenia Korzun (and her translator) to see
Robinson because she allegedly needed help with an
application that had already been filed, and the following
November Reneslacis told Robinson that he knew someone
who would pay $25,000 to become a lawful permanent
resident. Reneslacis also sent two faxes to Golden Travel,
both of which were headed “2 New Clients” and contained
names, social security numbers, and dates of birth for
potential customers.
Of all these people, the government presented evidence
that only Natalia Pavlikova—one of the clients listed in the
faxes—actually paid money to Robinson. She supplied
$12,000 to become a lawful permanent resident—$3,500 of
which was kicked back to Reneslacis. The jury nevertheless
found Reneslacis guilty on three bribery charges, concluding
that he had offered money in connection with himself and
Pavlikova as well as the unidentified client who was willing
4 No. 02-3498
to pay $25,000 for Robinson’s services. The jury also found
that Reneslacis lied to customs officials about where he had
obtained the stamp in his passport.
At sentencing, the district court heard testimony only
from Marilyn Roraff, a supervisor of district-adjudications
officers, including Robinson, in Chicago. She explained that
each of her officers annually handled more than 2,000
applications to become permanent residents—more than
half of which were granted. Roraff testified that this case-
load allowed her to review only applications that were
denied (which in turn could be reviewed by an immigration
judge and the Board of Immigration Appeals). Applications
that were granted, she explained, crossed her desk “very
rarely.” She told the court that out of a hundred successful
applications at most one would be brought to her atten-
tion—and then only because of an allegation of fraud or
other misconduct warranting investigation.
Based on this testimony, and the Fourth Circuit’s decision
in United States v. Gary, No. 97-4718, 1998 WL 390855, at
*1 (4th Cir. June 22, 1998) (unpublished)— which held that
the lone district-adjudications officer in South Carolina
occupied “a high-level decision-making or sensitive position”
within the INS—the district court increased Reneslacis’s
offense level under U.S.S.G. § 2C1.1(b)(2)(B). The court also
adjusted upward after finding that Reneslacis had led a
scheme to bribe Robinson comprising of more than five
participants. Id. § 3B1.1(a). In a ruling that is not con-
tested, the court found that Reneslacis lied at his trial and
imposed an additional adjustment for obstruction of justice.
Id. § 3C1.1.
II. ANALYSIS
A. U.S.S.G. § 2C1.1(b)(2)(B)
On appeal, Reneslacis first contends that the district
court improperly adjusted his offense level under U.S.S.G.
No. 02-3498 5
§ 2C1.1(b)(2)(B)—a provision of the sentencing guidelines
that we have not yet considered. The guideline provides for
an upward adjustment for attempting to influence impor-
tant public officials: “If the offense involved a payment for
the purpose of influencing an elected official or any official
holding a high-level decision-making or sensitive position,
increase by 8 levels.” Covered officials include judges,
agency administrators, supervisory law enforcement offi-
cers, and anyone else with “similar levels of responsibility.”
Id., cmt. n.1.
The district court ruled that district-adjudications officers
like Robinson also deserve to be on this list, and the parties
at the outset contest what respect should be given to that
view. Because the adjustment requires “application of the
guidelines to the facts,” the district court’s conclusion is
entitled to “due deference.” 18 U.S.C. § 3742(e); Buford v.
United States, 532 U.S. 59, 63 (2001); United States v.
Gatling, 96 F.3d 1511, 1525-26 (D.C. Cir. 1996). The courts
of appeals have disagreed about how much deference (if
any) is “due,” taking a variety of approaches to the adjust-
ment. Compare United States v. Mack, 159 F.3d 208, 220
(6th Cir. 1998) (factual question reviewed for clear error);
United States v. Toothman, 137 F.3d 1393, 1398 n.10 (9th
Cir. 1998) (same), with United States v. Paradies, 98 F.3d
1266, 1292 (11th Cir. 1996) (legal question reviewed de
novo), and United States v. Bynum, 327 F.3d 986, 993 (9th
Cir. 2003) (“interpretation” of the sentencing guidelines
reviewed de novo); United States v. Snell, 152 F.3d 345, 346
(5th Cir. 1998) (same). We do not need to resolve the issue
here. The result would be the same regardless of the
standard of review. See United States v. Purifoy, 326 F.3d
879, 880 (7th Cir. 2003).
Reneslacis contends that the adjustment was improperly
imposed because Robinson’s position with the INS was
neither “high-level” nor entailed policymaking. He concedes
6 No. 02-3498
that Robinson had some discretionary responsibilities
within the agency but observes that this fact alone does not
justify the adjustment. See United States v. Stephenson, 895
F.2d 867, 878 (2d Cir. 1990). Positions to which the adjust-
ment has been applied, Reneslacis insists, have additional
hallmarks of authority. Covered officials, for example,
typically supervise other employees, e.g., Gatling, 96 F.3d
at 1526 (head of Section 8 housing); United States v.
Matzkin, 14 F.3d 1014, 1021 (4th Cir. 1994) (supervisory
naval engineer), make public policy, see United States v.
Sun-Diamond Growers of Cal., 138 F.3d 961, 975-76 (D.C.
Cir. 1998) (Secretary of Agriculture), stand in the shoes of
a policymaker, United States v. Tomblin, 46 F.3d 1369, 1391
(5th Cir. 1995) (top aide to a U.S. senator), or influence
policymakers, United States v. ReBrook, 58 F.3d 961, 970
(4th Cir. 1995) (attorney for the state’s lottery commission).
Reneslacis rightly observes that Robinson did not possess
any of these qualities. As a district-adjudications officer, he
occupied the first level of intake for applicants seeking to
change their immigration status. He did not supervise other
employees or establish immigration policy but instead made
decisions largely by checking applicants’ qualifications
against predetermined criteria. And although he was at
level 12 on the government’s pay scale, others in his
position started at level 5—the same level as office assis-
tants, records keepers, and other support staff within the
agency.
But by focusing on Robinson’s spot in the hierarchy of
INS officials, Reneslacis has neglected a second ground for
imposing the adjustment. Section 2C1.1(b)(2)(B) refers not
only to “high-level” officials but also to officials who hold
“sensitive” positions. The Fifth Circuit accordingly has held
that bribing a juror in a criminal case warrants a sen-
tencing bump. Snell, 152 F.3d at 346-48. Although jurors
serve for only brief periods and have no policymaking or
No. 02-3498 7
supervisory power, Snell explains that they nevertheless
have substantial influence over individual trials and “ex-
traordinary responsibility” for the health of the country’s
legal system. Id. at 348.
Likewise, although Robinson did not have a particularly
lofty position within the INS, he did hold a sensitive post.
Because only a handful of his decisions were ever reviewed,
he had near total control over who could become a perma-
nent resident and eventually a U.S. citizen. Several courts
have held that possessing unreviewed power over important
public decisions reflects a sensitive post—even if existing
rules dictate how those decisions should be made. E.g.,
Gatling, 96 F.3d at 1526; United States v. Lazarre, 14 F.3d
580, 582 (11th Cir. 1994). Given that Robinson also could
subpoena witnesses, take testimony, and perform other
quasi-judicial functions, see U.S.S.G. § 2C1.1(b)(2)(B), cmt.
n.1. (bribing a judge will support the adjustment), and that
one court has concluded in an unpublished opinion that
bribing a district-adjudications officer justifies a
§ 2C1.1(b)(2)(B) adjustment, Gary, 1998 WL 390855, at *1,1
we think that the district court acted properly here.
B. Aggravating Role
Reneslacis also challenges the district court’s adjustment
for his role in the offense. The sentencing guidelines au-
thorize a four-level increase “[i]f the defendant was an
organizer or leader of a criminal activity that involved five
or more participants or was otherwise extensive.” U.S.S.G.
§ 3B1.1(a). The government must establish that the ad-
1
The Fourth Circuit permits citation to unpublished opinions
when no other decision “would serve as well.” 4th Cir. R. App. P.
36(c).
8 No. 02-3498
justment is warranted by a preponderance of the evidence,
United States v. Noble, 246 F.3d 946, 953 (7th Cir. 2001),
and our review of the court’s ruling is only for clear error,
United States v. Souffront, 338 F.3d 809, 833 (7th Cir.
2003).
Like the parties, we begin with whether the bribery
operation at Golden Travel had five or more participants or
was “otherwise extensive.” All agree that Reneslacis and
Pavlikova participated because they both paid Robinson to
become permanent residents. See U.S.S.G. § 3B1.1, cmt. n.1
(“participants” include anyone criminally responsible for
committing the offense regardless of whether they were
convicted); see also United States v. Fleischli, 305 F.3d 643,
659 (7th Cir. 2002). But finding three other culpable parties
is not as easy. Robinson and Sienkiewicz were working
undercover for the government, so they do not count.
U.S.S.G. § 3B1.1, cmt. n.1; see also United States v.
Andreas, 216 F.3d 645, 679 (7th Cir. 2000). And there is no
evidence that Reneslacis referred anyone other than
Pavlikova to Golden Travel who actually gave Robinson
money.
Nevertheless, the district court could infer participation
by Przemek, Anguel, and the unidentified client who was
willing to pay $25,000. Although none of these people
handed over any cash, the record suggests that they ex-
pressed the ability and desire to pay, and no more is
required. United States v. Rasco, 853 F.2d 501, 505 (7th Cir.
1988). The recorded conversations of Przemek’s visit to
Golden Travel show that he wanted to know where to direct
“the moolah” for his friends—a sign that he was ready and
able to pay on their behalf. Anguel likewise was plainly
interested in bribing Robinson until he learned that he and
his wife would not receive a discount. See United States v.
Synowiec, 333 F.3d 786, 790 (7th Cir. 2003) (agreement over
the amount of a bribe is not essential); see also United
No. 02-3498 9
States v. Jacobs, 431 F.2d 754, 760 (2d Cir. 1970). And the
offer made by the unidentified client to pay $25,000 formed
one of the counts of conviction, which Reneslacis does not
challenge.
Still, we ultimately need not decide whether the nu-
merosity requirement has been satisfied because the gov-
ernment has not shown that Reneslacis led or organized
anyone in the offense. To see this problem, it is important
to recognize that “leaders” and “organizers” may play
different roles. As the First Circuit has explained, leaders
ordinarily exercise control over subordinates in a hierarchy;
organizers, on the other hand, do not necessarily control
anyone but nonetheless influence the criminal activity by
coordinating its members. United States v. Tejada-Beltran,
50 F.3d 105, 112 (1st Cir. 1995); see also United States v.
Barnes, 117 F.3d 328, 337 (7th Cir. 1997) (noting that
control over others or organizational responsibility is
required); United States v. Fones, 51 F.3d 663, 670 & n.5
(7th Cir. 1995) (same).
There is no evidence that Reneslacis acted as a leader.
Everyone whom he brought to Golden Travel was his
customer, not a subordinate under his control. See United
States v. Mustread, 42 F.3d 1097, 1104-05 (7th Cir. 1994);
United States v. McGuire, 957 F.2d 310, 316 (7th Cir. 1992)
(customers are not “employees” or “subordinates”). True,
Reneslacis in one recorded conversation conceded that
“most of the clients come through someone else” and
Przemek, at least, went to Golden Travel on behalf of two
other people. But these facts do not show that the “someone
else” or Przemek worked for Reneslacis, and without
evidence that he had authority over another person in-
volved in the offense, he cannot have been a leader.
That leaves the possibility that Reneslacis acted as an
organizer. This characterization would be plausible if the
10 No. 02-3498
government had demonstrated that Reneslacis was working
with others toward a common criminal objective. In Tejada-
Beltran, for example, the defendant smuggled immigrants
into the United States using a team of people who recruited
the clients, doctored their passports, and paid immigration
officials to look the other way when the clients passed
through customs. The First Circuit held that the adjust-
ment was warranted because the defendant had formed
“diverse elements into a whole consisting of interdependent,
coordinated parts, geared for concerted action.” 50 F.3d at
113.
Here, however, everyone whom Reneslacis worked with
had their own agenda. Each of his clients wanted immigra-
tion papers for themselves (or, in Przemek’s case, for two of
his friends), making it impossible to say that Reneslacis
was organizing them for concerted action. As Reneslacis
rightly observes, by referring immigrants who wanted to
become permanent residents to Golden Travel—with the
expectation that he would receive a portion of the bribes—
his role was the same as a broker in a drug case who is
compensated for referring an addict to a dealer. We have
held that narcotics brokers do not deserve a four-level ad-
justment under § 3B1.1(a). E.g., United States v. Schuh, 289
F.3d 968, 973 (7th Cir. 2002). There is no reason to treat
Reneslacis differently here.
III. CONCLUSION
For the foregoing reasons, the sentence is VACATED, and
the case is REMANDED for resentencing consistent with this
opinion.
No. 02-3498 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-12-03