DocketNumber： 92-1180
Filed Date： 9/15/1992
Status： Precedential
Modified Date： 9/21/2015
September 15, 1992
_________________________
No. 92-1180
UNITED STATES OF AMERICA,
Appellee,
v.
BRIAN J. SARAULT,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
___________________
____________________
Torruella and Selya, Circuit Judges,
______________
and Zobel,* District Judge.
______________
____________________
Kevin J. O'Dea for appellant.
______________
Edwin J. Gale, Assistant United States Attorney, with whom
______________
Lincoln C. Almond, United States Attorney, was on brief, for the
__________________
United States.
____________________
____________________
____________________
*Of the District of Massachusetts, sitting by designation.
SELYA, Circuit Judge. In a postscript to a sordid tale
SELYA, Circuit Judge.
_____________
of greed and corruption, defendant-appellant Brian J. Sarault,
the former Mayor of Rhode Island's fourth largest city, assails
the district court's imposition of a sentence exceeding the
guideline sentencing range (GSR). Finding, as we do, that the
upward departure was fully justified, we affirm the judgment
below.
I
I
_
Background
Background
__________
On November 14, 1991, the former mayor of Pawtucket,
Rhode Island, pleaded guilty to a criminal information which
charged him with heading an enterprise engaged in a pattern of
racketeering activity, in violation of the RICO statute, 18
U.S.C. 1962(c) (1988). The predicate offenses described in the
information consisted of fifteen acts of extortion committed in
connection with the award of municipal contracts, each in
violation of the Hobbs Act, 18 U.S.C. 1951 (1988). On January
31, 1992, appellant was sentenced to sixty-six months in
prison.1 The court used the November, 1991 version of the
sentencing guidelines. See United States v. Harotunian, 920 F.2d
___ _____________ __________
1040, 1041-42 (1st Cir. 1990) ("Barring any ex facto problem, a
__ _____
defendant is to be punished according to the guidelines in effect
at the time of sentencing.").
We trace the architecture of the sentence step by step.
____________________
1Sarault was also sentenced to three years of supervised
release, fined $20,000, directed to make restitution in the
amount of $80,829, and ordered to pay a $50 special assessment.
2
The court began to design the sentence by referring to
U.S.S.G.
2E1.1 which, in respect to a RICO conviction, provides a base
offense level of nineteen or, if greater, "the offense level
applicable to the underlying racketeering activity." The
application notes indicate that, in order to determine which base
offense level results in the greater offense level, the court
should make the appropriate adjustments under Parts A through D
of Chapter Three of the guidelines, using the two base offense
levels in turn, and compare the results. U.S.S.G. 2E1.1,
comment. (n.1). Following this protocol, the court determined
that the level nineteen floor would produce the greater adjusted
offense level (twenty-five) when all referenced Chapter Three
adjustments were implemented.2 Hence, the court used level
nineteen as the starting point in constructing appellant's
sentence.
The court then increased the offense level by four to
reflect appellant's role as the organizer/leader of an extensive
criminal activity, U.S.S.G. 3B1.1(a); elevated it another two
levels to reflect appellant's abuse of a position of public
trust, U.S.S.G. 3B1.3; and, finally, deducted two levels to
acknowledge appellant's acceptance of responsibility, U.S.S.G.
3E1.1(a). The court thus arrived at a net offense level of
____________________
2The base offense level for the Hobbs Act violations was
ten. See U.S.S.G. 2C1.1, 2E1.5. After making the interim
___
adjustments described in the Application Note, the adjusted
offense level would have been twenty-four.
3
twenty-three. Inasmuch as appellant had no prior criminal
history, the court's calculations produced a GSR of forty-six to
fifty-seven months. See U.S.S.G. Ch. 5, Pt. A (Sentencing
___
Table).
This brings us to the heart of the matter. After
settling upon the GSR, the district judge departed therefrom and
sentenced Sarault to a prison term that exceeded the high end of
the GSR by nine months. The judge linked the upward departure to
the significant disruption of governmental functions that
attended appellant's antics.
On appeal, Sarault challenges only the upward
departure. He does not contest any of the sentencing court's
interim calculations.
II
II
__
Standard of Review
Standard of Review
__________________
Our review of sentencing departures is governed by the
tripartite methodology set forth in United States v. Diaz-
______________ _____
Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, 493 U.S. 862
_________ _____ ______
(1989). We have summarized the methodology as follows:
First, we evaluate the circumstances relied
on by the district court in determining that
the case is sufficiently "unusual" to warrant
departure. If the stated circumstances pass
muster, we proceed to the next rung and
determine whether those circumstances were
adequately documented. After the first two
levels are climbed, the departure must be
measured by a standard of reasonableness. On
the third tier, the district court's leeway
is substantial.
4
United States v. Aguilar-Pena, 887 F.2d 347, 350 (1st Cir. 1989)
______________ ____________
(citation omitted).
At the first step of departure analysis, appellate
review of the district court's determination is plenary. At the
second step, appellate review is for clear error. At the final
step, we review the extent of the departure for reasonableness.
See Diaz-Villafane, 874 F.2d at 49. Throughout, we remain
___ ______________
mindful that a departure is appropriate only when "there exists
an aggravating or mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that should result in a
sentence different from that described." 18 U.S.C. 3553(b)
(1988).
III
III
___
Analysis
Analysis
________
A.
A.
__
The sentencing court based its upward departure on
U.S.S.G. 5K2.7, which provides:
If the defendant's conduct resulted in a
significant disruption of a governmental
function, the court may increase the sentence
above the authorized guideline range to
reflect the nature and extent of the
disruption and the importance of the
governmental function affected. Departure
from the guidelines ordinarily would not be
justified when the offense of conviction is
an offense such as bribery or obstruction of
justice; in such cases interference with a
governmental function is inherent in the
offense, and unless the circumstances are
unusual the guidelines will reflect the
appropriate punishment for such interference.
5
U.S.S.G. 5K2.7. Sarault argues that the second sentence of
section 5K2.7 is applicable here, and that the circumstances
attendant to his malefactions are not sufficiently extraordinary
to overcome the strong presumption that the GSR reflects the
appropriate range of punishment. We disagree with this analysis.
As the guideline implies, if appellant had been
charged with, and sentenced on the basis of, the substantive
crime of extortion in violation of the Hobbs Act, an upward
departure would not be sustainable unless the disruption was so
atypically great as to exceed the level of interference inherent
in the offense. Compare, e.g., United States v. Riviere, 924
_______ ____ _____________ _______
F.2d 1289, 1308-09 (3d Cir. 1991) (reversing upward departure
under 5K2.7 where disruption of governmental function was no
greater than that normally associated with the underlying offense
of assault on a federal marshal); United States v. Goodrich, 919
_____________ ________
F.2d 1365, 1369 (9th Cir. 1990) (reversing upward departure under
5K2.7 where governmental disruption was no greater than that
which normally accompanied the crime of perjury); and United
___ ______
States v. Barone, 913 F.2d 46, 51 (2d Cir. 1990) (reversing
______ ______
upward departure under 5K2.7 because disruption of governmental
function was inherent in the offenses of conviction, viz., tax
evasion and perjury) with, e.g., United States v. Kramer, 943
____ ____ ______________ ______
F.2d 1543, 1550 (11th Cir. 1991) (upholding 5K2.7 departure
where defendant's attempted jailbreak resulted in the crash of a
helicopter in the prison yard, disrupting the normal functioning
6
of the prison "far beyond the level of . . . a run-of-the-mill
escape attempt"), petition for cert. filed, 60 U.S.L.W. 3816
__________________________
(U.S. Apr. 30, 1992) (No. 91-1848); United States v. Roth, 934
_____________ ____
F.2d 248, 251 (10th Cir. 1991) (upholding upward departure under
5K2.7 where defendant's theft of government property was
unusually extensive); and United States v. Garcia, 900 F.2d 45,
___ ______________ ______
49 (5th Cir. 1990) (upholding upward departure under 5K2.7
where defendant's mail theft was on so grand a scale that the
resulting disruption of service was well beyond that normally
associated with the crime). In this case, however, we need not
undertake the qualitative scrutiny demanded by the second
sentence of section 5K2.7.3
U.S.S.G. 5K2.7 must be applied to charged crimes on a
categorical basis. Sarault was not charged directly with the
predicate Hobbs Act offenses. Rather, he was charged with,
convicted of, and sentenced on the basis of, racketeering. In
categorical terms, racketeering is not a crime that fits within
the second sentence of section 5K2.7. Although a RICO enterprise
can, as here, be conducted so as to impair the functioning of a
governmental unit, that element is by no means "inherent in the
offense" of racketeering. To the contrary, RICO violations come
in many different shapes, sizes, and manifestations most of
which do not involve direct impedance of any governmental
____________________
3We express no opinion on whether the squalid circumstances
of this case were sufficiently unusual to permit a departure
under the more restrictive standard contemplated by the second
sentence of section 5K2.7.
7
operations.
Nor does it assist Sarault's cause that the RICO charge
in this case rests on a series of Hobbs Act violations. Section
5K2.7 requires us to take a categorical approach. We cannot,
therefore, overlook the forest (the offense of conviction, on
which the sentence was based) to focus on individual trees (the
predicate acts described in the charging papers). Moreover, this
court has held, squarely and recently, that RICO, as an offense
of conviction on which a sentence is based, does not bring with
it the inherent characteristics of the underlying predicate acts
described in the charging papers. See United States v. Butt, 955
___ _____________ ____
F.2d 77, 89 (1st Cir. 1992) ( 2E1.1(a)(1) establishes "a generic
_______
base offense level for RICO crimes, one that 'includes' no
particular offense characteristic or special skill").
In sum, the first sentence of section 5K2.7, rather
than the second sentence, controls in this case. Under that
rubric, a district court may depart upwardly if it supportably
finds that the defendant's criminal conduct caused "a significant
disruption of a governmental function." U.S.S.G. 5K2.7.
Hence, the initial prong of the Diaz-Villafane test is satisfied
______________
in this instance.
B.
B.
__
As we have already mentioned, the district court
premised its departure from the GSR on what it perceived to be a
significant disarticulation of Pawtucket's city government
resulting from appellant's extortion scheme. The court
8
enumerated several ways in which this disruption manifested
itself. It would serve no useful purpose to repeat the district
court's mantra. For present purposes, it suffices that the court
excoriated, among other things, the wholesale derangement of the
city's bid processes caused by the mayor's prodigious appetite
for extortionate payments. This factor alone supports the
court's finding that a significant disruption occurred. We
explain briefly.4
A city must purchase supplies and services in order to
fulfill its rudimentary obligations to its inhabitants. In this
case, it is clear that appellant conspired with his chief aide
and the city's acting director of public works to prey on
municipal vendors, extorting payments from businesses that were
interested in obtaining municipal contracts and extracting
kickbacks from businesses that had succeeded in obtaining
municipal contracts. Sarault and his cohorts instructed those
who agreed to play along how bids and change orders should be
prepared. On occasion, they suggested that bids be inflated to
cover the cost of the illegal payments. One general contractor,
for example, was told "not to bid on any [City of Pawtucket] job
without first . . . adding '10% for the mayor.'"
The charging papers allude to fifteen separate
____________________
4Because this case was resolved on a guilty plea, we draw
the facts from appellant's admissions, the uncontested portions
of the presentence investigation report (PSI Report), and the
transcripts of the hearings below. See, e.g., United States v.
___ ____ ______________
Garcia, 954 F.2d 12, 14 (1st Cir. 1992); United States v. Dietz,
______ _____________ _____
950 F.2d 50, 51 (1st Cir. 1991).
9
incidents in which city contractors were asked to make
extortionate payments. The PSI Report affords detailed accounts
of these meretricious encounters. The record makes it painfully
plain that the web of corruption was much more widespread; in the
sentencing court's words, appellant "systematically shook down
vendors on a regular basis for a period spanning at least two
years, and for an amount that was at least $250,000." Based on
the tawdry record in this case, the court's finding is
unimpugnable.
We will not paint the lily. Sarault's scheme was
suffusive; it engulfed city government. As the district court
accurately observed, appellant's actions "distorted the process
of awarding bids for Public Works projects from one which is
supposed to see that the lowest responsible bidder gets the job,
to one that resulted in the bidder who was most willing to play
ball getting the job." It follows from this supportable finding
that appellant was responsible for a significant disruption of
the City's governmental functions. Put bluntly, he threw a large
monkey wrench into a vital cog in the machinery of Pawtucket's
operations. His brazen conduct constituted an aggravating
circumstance not adequately taken into account in framing the
sentencing guidelines for RICO cases a circumstance that
distinguished his case from the mine-run of RICO violations and
10
validated an upward departure.5
C.
C.
__
We turn next to the third part of the required Diaz-
_____
Villafane analysis. The nine-month upward departure represents
_________
an increase of approximately fifteen percent in the appellant's
sentence. Although this court has not previously had occasion to
assess the reasonableness of a section 5K2.7 departure, other
courts have upheld departures of a far greater magnitude where
U.S.S.G. 5K2.7 is in play. See, e.g., United States v. Hatch,
___ ____ _____________ _____
926 F.2d 387, 397-98 (5th Cir.) (upholding 5K2.7 departure of
ten months where defendant's fraud deprived the parish of a
significant portion of its budget and undermined confidence in
law enforcement; high end of GSR was fourteen months), cert.
_____
denied, 111 S. Ct. 2239 (1991); United States v. Murillo, 902
______ _____________ _______
F.2d 1169, 1171, 1174 (5th Cir. 1990) (upholding 5K2.7
departure of twenty-seven months where defendant's sale of
illegal immigration papers disrupted government amnesty program;
high end of GSR was twenty-one months); cf. Roth, 934 F.2d at 252
___ ____
____________________
5Although we need not discuss the other dislocations caused
by Sarault's behavior, we detour briefly in order to mention the
district court's comment that appellant's inability to function
effectively as mayor during the period between his arrest and his
eventual resignation contributed to the disruption of city
government. In the clear light of hindsight, it is easy to
criticize the appellant for causing further pain to his community
by continuing in office. But, we question whether his failure to
resign at an earlier date can provide a legitimate basis for an
upward departure. One of the most fundamental tenets of our
system of justice is the presumption of innocence. This
presumption would be substantially undermined if an
officeholder's failure to resign when he was first arrested
could, in and of itself, support an upward departure.
11
(remanding 5K2.7 departure of eighty-three months for further
explanation of degree of departure; high end of GSR was thirty-
seven months). In light of the extensive and pervasive nature of
appellant's scheme, its ubiquity, its duration, the amount of
booty involved, and the havoc occasioned in Pawtucket, we believe
that a nine-month upward departure was well within the realm of
reasonableness.
IV
IV
__
Conclusion
Conclusion
__________
We need go no further. It is difficult to overstate
the gravity of Sarault's offense. He betrayed the trust of the
citizens of Pawtucket, abused the high office to which he had
been elected, pressured municipal vendors, and relentlessly
pursued emoluments to which he was not entitled. Beyond
question, Sarault's course of conduct seriously disrupted the
normal functioning of a vital arm of city government. In these
sorry circumstances, the sentencing court did not err in
formulating and imposing a modest upward departure.
Affirmed.
Affirmed.
________
12