United States v. Anderson, Gerald E. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2205
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GERALD E. ANDERSON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 789—Ruben Castillo, Judge.
____________
ARGUED SEPTEMBER 13, 2007—DECIDED FEBRUARY 28, 2008
____________
Before EASTERBROOK, Chief Judge, and CUDAHY and SYKES,
Circuit Judges.
CUDAHY, Circuit Judge. Gerald Anderson and John
Meisch have been friends since 1967. Anderson was a
successful real estate developer who owned a lot of
valuable property around Aurora, Illinois. John Meisch
was an Alderman for the City of Aurora and served as its
Mayor Pro Tem. In December 2004, Anderson and Meisch
were indicted on charges of bribery and wire and honest
services fraud. The two men had been caught offering
a $10,000 bribe to the Aurora Director of Public Works
2 No. 06-2205
in order to smooth the way for Anderson’s latest develop-
ment project. Meisch pleaded guilty and testified against
Anderson at trial. Anderson was ultimately convicted
on two counts. He now appeals, arguing mainly that his
six-year sentence should be reduced. Many of his argu-
ments are without merit but he does have one sub-
stantial challenge to his sentence. He argues that the
district judge improperly calculated his sentencing
range under the U.S. Sentencing Guidelines by overesti-
mating the net benefit he received from his wrongdo-
ing. We agree that the district court improperly calculated
the Guidelines range but we find that the error was harm-
less. We AFFIRM.
I. BACKGROUND
Gerald Anderson owned a number of real estate proper-
ties around Aurora, including parcels now known as
Grand Pointe Homes and Misty Creek. In late 1997,
Anderson was introduced to Jeff Pelock, who was inter-
ested in developing homes on Anderson’s land. The two
men became partners in a venture called Aurora LLC.
Anderson put nearly $6,000,000 of property into Aurora
LLC, including Grand Pointe Homes and Misty Creek. In
return, he received preferred payments for the value of
his property as well as 30% of the profits of the business.
The two men immediately began developing Misty Creek.
In Aurora, developers typically begin by providing the
City’s staff engineers with a copy of their preliminary plan.
The staff engineers review the plan and pass their recom-
mendation on to the Aurora City Council. If the prelimi-
nary plan is approved by the City Council, the developer
can submit a final plan to the City for approval. In order to
No. 06-2205 3
be approved, a plan must comply with numerous City
ordinances and regulations, so developing a plan often
involves ongoing negotiations with City officials from
various departments.
While Misty Creek was well underway by early 2000,
Anderson and Meisch’s second project, Grand Pointe
Homes, was still in the initial planning stages. Rick Zirk, an
employee of Aurora LLC, presented the plan for Grand
Pointe Homes to the City’s staff engineers but the plan was
rejected. Zirk believed that he had gotten an undeservedly
hostile reception from the engineers and so went directly
to the City Council’s Planning and Development Commit-
tee. But, on May 31, 2000, the Committee also rejected the
plan. The Committee objected, among other things, to the
planned density of the project. Anderson decided to take “a
more proactive role” with the City. The first thing he did
was call his old friend, John Meisch, who was then the
Chairman of the Planning and Development Committee.
Pelock and Anderson met with Meisch in early 2001 to
complain about the reception their plan had received.
Anderson asked Meisch to support his development plans
for Misty Creek and Grand Pointe Homes and to garner
support from other aldermen. On January 30, 2001, Meisch
made a motion before the City Council to have the City
annex a portion of Anderson’s development (he also voted
in favor of the motion). Anderson and Meisch met again in
early 2001 to discuss the plan. In September 2001, Ander-
son had a third meeting with Meisch. During this meeting,
Anderson asked Meisch to set up a meeting with the
Oswego Park District regarding a bike trail that ran
through Grand Point Homes. The Park District was going
to take over the trail once the property was developed and
it had concerns about its design and location. At the end of
4 No. 06-2205
the meeting, Anderson handed Meisch an envelope
containing $2500 in cash.
Meisch later met with city officials and officials of the
Oswego Park District. Meisch was able to resolve the issues
with the Park District and Anderson was able to move
forward with his project. On September 10, 2002, Meisch,
acting as Mayor Pro Tem, signed a resolution approving a
plan for Grand Pointe Homes. On February 27, 2003,
Meisch supported before the Planning and Development
Committee the resolution approving the final plan for
Grand Pointe Homes. The plan passed even though the
density of the project was greater than it had originally
been. In March 2003, Anderson gave Meisch an envelope
containing another $2500 in cash.
After Meisch left office, he had a final meeting with
Anderson. They discussed a new project at Eola Road,
which Anderson owned with another partner, Don
Hamman (Aurora LLC was not involved). Anderson hoped
that Meisch would assist him as he had in the past. Meisch
advised Anderson that he would need to win the approval
of Bob Rieser, Aurora’s Director of Public Works. Anderson
gave Meisch an envelope containing $1000 in cash.
In late 2003, Anderson approached Ken Schroth, a civil
engineer for the City of Aurora, to discuss whether Eola
Road could be developed without an onsite pond to collect
storm water runoff. Anderson believed that an offsite pond
was sufficient to comply with Aurora’s storm water
ordinance but Schroth determined that the offsite pond
could not hold all of Eola Road’s storm water. Schroth
told Anderson that he would need to set aside 15% of
the property for an onsite pond. Anderson met with
Schroth again several weeks later, and Schroth again
insisted that Anderson needed a set-aside.
No. 06-2205 5
Rieser was also aware of the set-aside problem. In
January 2004, just before Rieser was expected at a meeting
of staff engineers regarding the Eola Road project, Meisch
appeared in his office and closed the door. Meisch told
Rieser, “Gerry Anderson has been very good to me in the
past, and . . . he can be very good to you [if you help him
with Eola Road].” Meisch said that “there is $10,000 cash
that no one would know about” if he supported the project.
After Meisch left, Rieser called the Federal Bureau of
Investigations, which advised Rieser to play ball with
Meisch. At the meeting of staff engineers, Rieser was asked
about the sufficiency of the offsite water storage at Eola
Road and responded that it was “do-able.”
On February 9, 2004, Rieser spoke with Anderson on the
phone and asked if he was still “okay” with the $10,000.
Anderson assured Rieser that he was. He also told Rieser
that he would keep everything confidential. Anderson,
Meisch and Rieser arranged a meeting on February 17,
2004. Anderson informed Rieser that he would seek
approval for the project only after he had bought out the
other owners and wanted to make sure that Rieser
would work with his timetable. He also directed Rieser to
talk only with Meisch so as to not raise suspicions.
The FBI arrested Anderson on September 22, 2004. He
waived his Miranda rights and made a number of admis-
sions regarding the bribe offered to Rieser and the pay-
ments made to Meisch for Grand Point Homes and
earlier projects. On December 14, 2004, Anderson and
Meisch were charged with three counts of wire and honest
services fraud pursuant to 18 U.S.C §§ 1343, 1346 (Counts
I, II, and III) and one count of bribery pursuant to 18 U.S.C.
§ 666 (Count IV). Meisch pleaded guilty and Anderson
proceeded to trial. On September 30, 2005, a jury convicted
Anderson of Counts III and IV and acquitted him on
6 No. 06-2205
Counts I and II. On April 20, 2006, the District Court
sentenced Anderson to seventy-two months in prison, a
$100,000 fine and two years of supervised release. This
appeal followed.
II. ANDERSON’S CONVICTION
Anderson raises only one challenge to his conviction.
This is not surprising for the evidence presented against
him at trial was overwhelming; it included extensive
testimony from Meisch and the damaging admissions
Anderson made shortly after his arrest. He does make
an argument, however, that his conviction should be
overturned because the jury rendered inconsistent ver-
dicts when it acquitted him on Counts I and II but con-
victed him on Count III. At issue are the three counts
of wire and honest services fraud. Counts I and II were
based on unrecorded telephone calls between Meisch and
Anderson; the jury knew about the existence of the calls
because they appeared in telephone records but never
actually heard the conversations or learned of their con-
tents. The jury was apparently asked to infer from suspi-
cious timing alone that the calls were related to the scheme
to bribe Rieser. Count III was based on a recorded telephone
conversation in which Anderson and Rieser clearly dis-
cussed the bribe. This call was played aloud for the jury in
open court. Shortly before returning its verdict, the jury
sent a note to the judge regarding Counts I and II, asking
whether it could infer that those calls were made “in
furtherance of” the scheme simply from their existence.
The jury acquitted on those counts shortly thereafter.
Apparently, the jury was not persuaded that the calls
actually contained conversations about the alleged scheme.
No. 06-2205 7
This does not create an unexplained inconsistency. See
United States v. Young, 316 F.3d 649, 662 (7th Cir. 2002).
Even if the verdicts were inconsistent, this would not
warrant reversal. See United States v. Powell, 469 U.S. 57, 69,
106 S. Ct. 471, 83 L.Ed.2d 461 (1984). United States v. Bevins,
430 F.2d 601 (6th Cir. 1970), on which Anderson relies,
actually illustrates that inconsistency is not grounds for
reversal. Id. at 602-03. This is also the rule in this circuit. See
United States v. Muthana, 60 F.3d 1217, 1223 (7th Cir. 1995).
III. ANDERSON’S SENTENCE
Anderson’s appeal focuses largely on sentencing issues.
Specifically, he attacks various aspects of the district court’s
calculation of his sentencing range. We begin with the
Sentencing Guidelines. Using the 2003 version of the
Guidelines,1 the district court started with a base offense
level of ten. See U.S. SENTENCING GUIDELINES MANUAL
§ 2C1.1(a) (2003). A two-point enhancement was added
for multiple bribes. See U.S.S.G. § 2C1.1(b)(1) (2003). A
fourteen-point enhancement was added because the
“benefit received” from the bribe was more than $400,000
but less than $1,000,000. See U.S.S.G. § 2B1.1(b)(1)(H)
(2003). All of this amounted to a total offense level of
twenty-six. When the total offense level was combined
with Anderson’s criminal history category of I, the Guide-
1
The district court sentenced Anderson in April 2006, four
months before our decision in United States v. Demaree, 459 F.3d
791 (7th Cir. 2006). Demaree held that district courts should apply
the Guidelines in force at the time of sentencing, not the
Guidelines in force at the time the crime was committed. See
id. at 795.
8 No. 06-2205
lines yielded a sentencing range of sixty-three to seventy-
eight months. The district court then sentenced Anderson
to seventy-two months in prison.
Anderson raises three basic challenges to his sentence:
First, he argues that the district court failed to calculate the
proper base offense level because, according to Anderson,
his offense conduct involved a gratuity, not a bribe.
Second, Anderson argues that the district court over-
estimated the “benefit received” and thus erred in its
calculation of his total offense level. In particular, he
complains that the court did not adequately explain the
methodology it used to calculate the benefit figure. Finally,
Anderson argues that his sentence is unreasonable in
light of § 3553. We review these questions for abuse of
discretion. See Gall v. United States, 552 U.S. ___, 128 S. Ct.
586, ___ L.Ed.2d ___(2007).
A. The Application of the Bribery Provisions to Ander-
son’s Conduct
We begin with the calculation of the base offense level.
The district court applied the bribery provisions of § 2C1.1
to Anderson’s conduct; Anderson believes that it should
have applied the gratuity provisions of § 2C1.2. Con-
victions under § 666 and § 1343 call for the application of
either § 2C1.1 or § 2C1.2, whichever is most appropriate or
most specifically covers the offense conduct. See United
States v. Agostino, 132 F.3d 1183, 1195 (7th Cir. 1997);
U.S.S.G. § 2C1.7(c)(4) (2003). The question here is
simply whether Anderson’s conduct was “more akin” to a
gratuity or to a bribe. See Agostino, 132 F.3d at 1195. Unlike
a gratuity, a bribe is a payment made with “a corrupt
purpose, such as inducing a public official to participate in
No. 06-2205 9
a fraud or to influence his official action.” See U.S.S.G.
§ 2C1.1 cmt. background. Thus, we have distinguished
bribes from gratuities as follows: “If the payer’s intent is to
influence or affect future actions, then the payment is a
bribe. If, on the other hand, the payer intends the money as
a reward for actions the payee has already taken, or is
already committed to take, then the payment is a gratuity.”
Agostino, 132 F.3d at 1195. In this case, it is clear that
Anderson was attempting to influence the future actions of
a public official.
Anderson concedes that he passed money to Meisch but
claims that the payments were simply rewards for past
actions and thus gratuities. They were old friends, he
argues; Meisch did not do anything he would not have
done absent the payment. Anderson’s argument, however,
suffers from a serious flaw: He focuses exclusively on the
payments made to Meisch. Conspicuous by its absence is
any reference to the bribe that Anderson and Meisch
offered to Rieser. There is no shortage of evidence that
the intent of this payment was to influence future action; it
formed the basis of his § 666 conviction. Meisch
approached Rieser immediately before Rieser was set to
appear at an important meeting and asked him to vouch for
the sufficiency of the offsite detention pond. It makes no
difference that the money was not delivered before the
action was taken; the intent was to influence Rieser’s
action. See United States v. Griffin, 324 F.3d 330, 366 (5th
Cir. 2003). The § 1343 conviction, which involved a tele-
phone call in which this bribe was discussed, was in
furtherance of the bribe and shares its corrupt purpose. In
short, both convictions involved an attempt to influence
official action.
Anderson’s argument fails even if we focus on the
payments made to Meisch. The sentencing judge found that
10 No. 06-2205
these payments were also bribes. Meisch took a series of
actions, and he received a series of payments. It is unclear
whether the payments were rewards for actions he had
already taken or bribes for actions he had not yet taken. But
the evidence was even more muddled in Agostino, and yet
we upheld the district court’s factual finding that the
conduct at issue involved an attempt to influence future
action and was therefore a bribe. See Agostino, 132 F.3d at
1195. Anderson conceded at oral argument that a case
could be made either for a bribe or for a gratuity. Contrary
to what he suggests, this militates against a finding of clear
error. Id.This brings us to the rule of lenity. The rule of lenity
applies when there are serious ambiguities in the text
of a criminal statute. See, e.g., Moskal v. United States, 498
U.S. 103, 108, 111 S. Ct. 461, 112 L.Ed.2d 449 (1990). Ander-
son claims that the rule applies here because an argument
could be made for the application of either § 2C1.1 or §
2C1.2. But the rule does not apply when ambiguity is a
result of an application of the Guidelines to a particular set
of facts; that is, the rule does not apply to factual ambigu-
ities. See United States v. McEntire, 153 F.3d 424, 438 & n.16
(7th Cir. 1998). There is nothing ambiguous about § 2C1.1.
See Agostino, 132 F.3d at 1195; United States v. Cruzado-
Laureano, 440 F.3d 44, 47 n.8 (1st Cir. 2006). So the rule does
not apply here.
B. The Calculation of the Benefit Received Under
§ 2C1.1
We now turn to the most hotly contested issue in this
case, which is the proper calculation of the “benefit
received” in return for the bribe. See U.S.S.G. § 2C1.1(b)(2)
No. 06-2205 11
(2003). The bribery provisions base the severity of punish-
ment on the value of the bribe—the more valuable the
bribe, the heavier the sentence imposed. See United States v.
Sapoznick, 161 F.3d 1117, 1118 (7th Cir. 1998). But the value
of the bribe is not always the sum offered by the defendant
(in this case, $10,000). Instead, § 2C1.1(b)(2) instructs the
sentencing judge to use “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.”
U.S.S.G. § 2C1.1(b)(2) (2003). Both parties agree that the
value of the “benefit received or to be received” is the
proper measure in this case, but they disagree on how it
should be calculated.
Anderson fixes the value of the benefit received at
$41,131, while the Government fixes it somewhere between
$1,000,000 and $2,500,000. Needless to say, these two
calculations would have very different ramifications for
Anderson’s sentence. So what explains the discrepancy?
Basically, the dispute in this case is over whether Ander-
son’s offense conduct should include convicted conduct,
relevant conduct or both. Anderson believes that his
offense conduct involves only the conduct that formed the
basis of his conviction—that is, the bribe to Rieser. If
Anderson is correct, the only profits included in the benefit
calculation would be the profits from Eola Road, because
only Eola Road was affected by the bribe to Rieser. The
Government, however, does not believe that the bribe of
Rieser was a one-time incident; it believes that bribery was
Anderson’s modus operandi. Thus, it argues that Ander-
son’s offense conduct should include not only the bribe to
Rieser but also the payments made by Anderson to Meisch,
12 No. 06-2205
which could be found to be bribes for sentencing purposes.
These payments affected other properties, such as Grand
Pointe Homes and (at least arguably) Misty Creek. Thus,
their inclusion would significantly increase the benefit
figure.
The Government is correct here, at least in theory. It
is well settled that the sentencing judge may consider not
only the conduct that formed the basis of the conviction but
also “relevant conduct.” See U.S.S.G. § 1B1.3(a)(2) (2003).
Relevant conduct may include “uncharged conduct and
even conduct that formed the basis of an acquittal,” as long
as the judge makes factual findings based on the prepon-
derance of the evidence. United States v. Schaefer, 291 F.3d
932, 938 (7th Cir. 2002) (citations omitted). The judge,
however, must make sure that the conduct forms a part of
the “same course of conduct” or “ongoing series of of-
fenses.” U.S.S.G. § 1B1.3 cmt. n.9(B) (2003). Further, we
have cautioned that when the benefit calculation is based
largely on conduct for which the defendant was not
convicted, the district court must be careful to explain
exactly how the conduct factors into the benefit calculus.
See Schaefer, 291 F.3d at 939. We are aware that benefit
calculations cannot always be precise, and so we accept
reasonable estimates based on the information available in
the record. See U.S.S.G. 2B1.1(b)(1), cmt. n.3(c) (2003). To be
rejected, a district court’s calculation must not only be
“inaccurate but outside the realm of permissible computa-
tions.” United States v. Peterson-Knox, 471 F.3d 816, 822 (7th
Cir. 2006).
Our analysis will thus proceed in three steps. First, we
must determine which properties were affected by
illegal bribes; only then can we determine which profits
should be included in the benefit calculus. See Sapoznick,
No. 06-2205 13
161 F.3d at 1119 (discussing the “question of causation”).
Second, we must determine whether the benefits derived
from each of those properties can be reliably calculated
and, if so, what those calculations are. Id. (discussing
the “question of quantification”). Ultimately, we conclude
that only Eola Road and Grand Pointe Homes can be
included in the benefit calculus; Misty Creek must be
excluded. Because the profits from Grand Pointe Homes
are impossible to quantify on this record, however, we
include only the profits attributable to Eola Road and
thus arrive at a benefit figure of only $82,362. We therefore
agree with Anderson that the district court erred in
its benefit calculation. This raises a third and final question:
Was the error harmless? As we will explain, we believe that
it was.
1. What Properties May Be Considered in the Benefit Calcula-
tion?
Both parties agree that Eola Road must be included in the
benefit calculus because the bribe for which Anderson was
convicted involved Eola Road. It goes without saying that
a sentencing court may consider benefits that flow directly
from the counts of conviction. This is undisputed; it is the
“relevant conduct” that has created the controversy.
The district court found that the payments made to
Meisch for his help with Grand Pointe Homes were acts
of bribery that related to the bribe of Rieser. While Ander-
son insists that the payments were innocent, the record
is replete with evidence that suggests otherwise. Anderson,
Meisch and Zirk all testified that Anderson had paid
Meisch money for his assistance with the Grand Pointe
Homes project. Meisch would apply influence on behalf
14 No. 06-2205
of Anderson, and Anderson’s problems would conve-
niently disappear. The district court knew that Anderson
was highly sophisticated; this was evident from his deal-
ings with Rieser. It was thus reasonable for the district
court to conclude that Anderson either had bribed Meisch
or had given Meisch money so that he could bribe the
apropriate officials (as had been done with Rieser). It is also
clear that Grand Pointe Homes benefitted from these
bribes. Anderson turned to Meisch just as the project
stalled in the City Council. Without Meisch’s intervention,
the project may never have been approved. With Meisch’s
help, it was not only approved, but approved with an
even greater density than the original plan. Thus, the
profits attributable to the project can be included in the
benefit calculation.
But even if the payments Anderson made to Meisch can
be considered as relevant conduct, they cannot be con-
nected to Misty Creek. Indeed, we could find only two
pieces of evidence in the entire record that linked Misty
Creek to these bribes: Misty Creek was mentioned at
the first breakfast meeting between Meisch and Anderson
in 2001, and Anderson admitted to the FBI that he had
given Meisch a flatbed truck in the early 1990s for his
assistance with Misty Creek. Neither of these facts
was relied upon, or even mentioned, by the district court.
There was no evidence to show that the Misty Creek project
had encountered obstacles that would have required
Meisch’s assistance; thus, we have no way to know what
Meisch could have done to assist the project. Misty Creek
was basically completed by the time of the earliest alleged
bribes; the construction of homes was already
well underway at that point. Even the district court
judge seemed to accept Anderson’s arguments on this
No. 06-2205 15
point. Sentencing H’rg Tr.167. Misty Creek must be ex-
cluded.
2. What is the Proper Net Benefit Calculation?
We have made our preliminary determination: Eola
Road and Grand Pointe Homes are to be included in the
benefit calculus; Misty Creek is out. We must now calculate
the benefit Anderson derived from these two properties.
Because more than 90% of the district court’s net benefit
figure reflects benefits derived from relevant conduct, we
will scrutinize the numbers more closely. See Schaefer, 291
F.3d at 939.
The intended benefit from the Eola Road bribe is clear: It
is the market value of the land Anderson saved from
the set-aside. Anderson argued that, because the property
was eventually developed with a 9.45% set-aside, the
intended benefit was 9.45% of the value of his share of
the property. Anderson placed this value at $41,181 and the
district court agreed. Anderson, however, made a simple
mathematical mistake. Even if we accept Anderson’s
methodology, the net benefit figure is at least $82,362, or
twice the amount he claims. Anderson owned an undi-
vided half-interest in Eola Road and his share of the prop-
erty sold for $871,564. This figure should have been
multiplied by 0.0945 but, instead, Anderson suggested that
it be multiplied by 0.04725 to reflect his half-interest in the
property. Sentencing H’rg Tr.167. Dividing the set-aside
percentage in half was the equivalent of discounting
Anderson’s ownership interest twice. The net benefit from
Eola Road should have been at least $82,362.
In the end, however, Eola Road accounted for only a
small fraction of the total benefit calculation. The vast
16 No. 06-2205
majority of the calculated benefit figure was composed of
profits that Anderson made from Grand Pointe Homes. The
Government estimated that Anderson had earned nearly
$1.1 million from Aurora LLC, the company created by
Anderson and Pelock to develop Grand Pointe Homes and
Misty Creek.2 We have concluded, however, that
Misty Creek should be excluded from the calculus. This
creates a serious dilemma because neither the Govern-
ment nor Anderson submitted any evidence establishing
the amount of profit that Misty Creek generated in contrast
to Grand Pointe Homes. Apparently, in a crude effort to
separate the profit on one project from the profit on the
other, the district court said that it would “discount[ ]
some aspects of Misty Creek.” Sentencing H’rg Tr.164-165.
But there has been no reasonable basis presented for
calculating the value of Misty Creek on the basis of a
discount. One might assume that the profits contributed by
Grand Pointe Homes and Misty Creek were roughly equal
but Misty Creek may have been more profitable than
Grand Pointe Homes. Grand Pointe Homes may even have
lost money. On this record, we do not know. See Sapoznick,
161 F.3d at 1119 (“[T]here is nothing in the record to fill the
void in our knowledge.”). This is a rare occasion in which
the district court’s calculation is “outside the realm of
permissible calculations.” Peterson-Knox, 471 F.3d at 822;
accord Gall, 128 S. Ct. at 597-98; United States v. Rodriguez-
2
The Government estimated that Anderson had received
approximately $7.1 million from Aurora LLC. This included
cash distributions, future profits, and interest paid on Ander-
son’s behalf. The Government subtracted from these proceeds
the $6 million in real estate that Anderson had invested in
Aurora LLC and concluded that the benefit received from the
two projects was $1.1 million.
No. 06-2205 17
Alvarez, 425 F.3d 1041, 1045-46 (7th Cir. 2005); United States
v. Skoczen, 405 F.3d 537, 549 (7th Cir. 2005). So we cannot
determine a benefit attributable to Grand Pointe Homes
and the total determinable benefit is limited to Eola Road.
3. Was the District Court’s Error Harmless?
We have found that the district court erred in its cal-
culation of the benefit received. Before we remand the case,
however, we must determine whether the error was
harmless. See e.g., United States v. Saunders, 129 F.3d 925,
932-33 (7th Cir. 1997). An error is harmless if it “did not
affect the district court’s selection of the sentence im-
posed.” Williams v. United States, 503 U.S. 193, 203, 112 S.
Ct. 1112, 117 L.Ed.2d 341 (1992). So, knowing what we now
know, would the district court have selected the same
sentence? There is no need for speculation here. The district
court stated explicitly at the sentencing hearing that it
believed that seventy-two months was the reasonable
sentence under § 3553(a), even if its benefit calculations
were incorrect: “I will say for purposes of any appeal, the
rulings I have made in applying the sentencing guide-
lines—and I think I have made a good faith basis [sic] to do
that—in the alternative I would reach the conclusion that
the six-year sentence is the reasonable sentence under 18
U.S.C. 3553, if another judge determines that my sentencing
guidelines calculations were in any way made in error.”
Sentencing H’rg Tr.184. Such “blanket” sentences may
create problems in certain circumstances, but alternative
holdings can prevent needless remands when district
judges are faced with technical Guidelines calculations but
where there are other Guidelines justifications. See United
States v. Williams, 431 F.3d 767, 773-76 (11th Cir. 2005)
(Carnes, J., concurring). Here, as we shall see, the district
18 No. 06-2205
court would be justified for other reasons in imposing the
same sentence in this case.
On remand, the district court would be required to
apply the current version of the Guidelines. See Demaree,
459 F.3d at 795. The original sentencing took place in April
2006 but the court used the November 2003 version of the
Guidelines. The sections of the Guidelines at issue in this
case were subject to important amendments in November
2004 that made the penalties much more severe. As dis-
cussed above, the benefit received in this case was at least
$82,362. This figure, which may have seemed much less
significant under the 2003 Guidelines, creates a much
stiffer sentencing range under the amended Guidelines.
The calculation under the new Guidelines would be as
follows: Anderson’s base offense level would be twelve. See
U.S.S.G. § 2C1.1(a)(2) (2007). Two levels would be added
for multiple bribes under § 2C1.1(b)(1). Four levels would
be added because Rieser was a “public official.” See
U.S.S.G. § 2C1.1(b)(3) (2007). Finally, using our adjusted net
benefit of $82,362, eight levels would be added for a net
benefit of more than $70,000. Anderson’s total offense level
would be twenty-six, which would yield a range of sixty-
three to seventy-eight months. This is the same range the
district court originally used, so the district court would be
free to impose the same sentence on remand. Because it has
clearly stated its intention to do so, any error in the calcula-
tion of the sentencing range was harmless.3
3
Although the Government believes that the district court
underestimated the benefit received, it did not cross-appeal the
sentence.
No. 06-2205 19
C. The Reasonableness of the Sentence Under Section
3553(a)
Because the district judge would apply the same sen-
tence, we now ask only whether it is a reasonable one.
When the sentence falls within the Guidelines range, it
is presumed reasonable. See United States v. Mykytiuk, 415
F.3d 606, 608 (7th Cir. 2005). Ultimately, however,
the reasonableness of a sentence is determined in light
of the § 3553(a) factors. See Gall, 128 S. Ct. at 596-97. Of
course, the judge does not have to “write a comprehensive
essay applying the full panoply of penological theories
and considerations.” United States v. Dean, 414 F.3d 725, 729
(7th Cir. 2005). We find the sentence in this case to
be reasonable.
The district court referred to a number of recent public
corruption scandals, both in Illinois and elsewhere. See 18
U.S.C. § 3553(a)(2)(A) (2007). The judge stressed the
corrosive effect that corruption has on the public trust
and expressed his belief that the scandals will not end
unless they are treated “appropriately hard.” Anderson
believes that the judge put too much weight on the
public corruption scandals, but the judge was simply
emphasizing the seriousness of the nature of the crime
and discussing the need for general deterrence. See 18
U.S.C. § 3553(a)(2)(B) (2007). The district court also be-
lieved that Anderson had engaged in bribery before; thus,
there was also a need for specific deterrence. See 18 U.S.C.
§ 3553(a)(2)(C) (2007). The judge did acknowledge the
defendant’s advanced age but this factor also may have
worked against Anderson. The judge noted that Anderson
was well off financially and could have relaxed and
enjoyed his golden years. While many criminals commit
crimes from lack of opportunity and desperation, Ander-
20 No. 06-2205
son had acted out of greed. Nevertheless, the judge refused
to give a sentence in the higher end of the Guidelines range
because Anderson is seventy-three years old and suffers
from a serious kidney disease. See 18 U.S.C. § 3553(a)(1)
(2007). Given this explanation, we believe the sentence is
reasonable and we will not disturb it on appeal.
IV. CONCLUSION
Because we find that the sentence was reasonable and
that any error in the calculation of Anderson’s Guidelines
range was harmless, the decision of the district court is
AFFIRMED.
USCA-02-C-0072—2-28-08