United States v. Chapman

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 16, 2013
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 12-2113
v. (D.C. No. 1:11-CR-00904-JB-1)
(D.N.M.)
LAURIE CHAPMAN,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.
Laurie Chapman was on the take. At the New Mexico Department of
Corrections she was responsible for selecting the best contractors to perform
maintenance work for the State. Instead and bypassing any public bidding
process, she awarded about $4 million in contracts to Omni Development over the
course of three years — receiving about $237,000 in return from Anthony Moya,
Omni’s owner.
*
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
order and judgment is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
The scheme began unraveling when, remarkably, Mr. Moya was convicted
for still another and unrelated embezzlement plot. Worried now her own
arrangement would be found out, Ms. Chapman visited Mr. Moya in prison to
concoct a cover story. Ms. Chapman suggested that, when asked, they claim the
payments were personal loans from Mr. Moya and backed by her retirement
accounts. But Ms. Chapman didn’t know Mr. Moya was wearing a wire: the FBI
recorded the entire conversation.
A few weeks later, the FBI executed a search warrant on Ms. Chapman’s
house and interviewed her boyfriend, Scott Smith. Ms. Chapman tried to
convince Mr. Smith not to speak to the agents but speak to them he did,
expressing his own suspicions about Ms. Chapman’s arrangement with Mr. Moya.
When the agents questioned Ms. Chapman, though, she stuck to the plan she had
hatched with Mr. Moya. She insisted that the payments were a loan and her
retirement account served as collateral. She also claimed to have a promissory
note memorializing the arrangement, but she was unable to produce it and the
search of her home turned up nothing. Later and in response to a grand jury
subpoena she did produce a paper purporting to be a promissory note, but it
wasn’t signed by Mr. Moya and Mr. Moya claimed never to have seen the
document.
Soon the grand jury indicted Ms. Chapman on thirty counts of soliciting
bribes — one for each alleged payment from Omni — and Ms. Chapman pleaded
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guilty. Turning to the question of her sentence, the district court pegged her
recommended guidelines sentencing range as 151 to 188 months. But because the
statutory maximum sentence for each bribery charge is ten years, the court took
120 months as the appropriate advisory guidelines sentence. From that figure, the
court then varied downward by another fifty months and imposed only a 70-month
term of imprisonment. Its thorough 33-page sentencing memorandum outlined
the reasons for its variance and ultimate sentence.
Despite this favorable result Ms. Chapman appeals. She argues that her
sentence was unreasonable because, in calculating her advisory guidelines range,
the district court denied a two-level adjustment for acceptance of responsibility.
Her problem is that the guidelines generally recommend denying an acceptance-
of-responsibility adjustment to defendants who (like her) have received a
sentencing enhancement for obstruction of justice. See United States Sentencing
Guidelines Manual § 3E1.1 cmt. 4. Neither does Ms. Chapman contest the district
court’s finding that her efforts to prevent her boyfriend from speaking to
investigators and to mask the bribes as a loan constituted obstruction of justice.
Still, Ms. Chapman protests, this is an “extraordinary” case in which the
guidelines suggest both the obstruction and acceptance adjustments should apply.
See id. In evaluating claims like hers, this court has indicated a sentencing court
should “consider the totality of the circumstances, including, but not limited to
(1) whether the obstruction of justice was an isolated incident or an on-going,
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systematic effort to obstruct the prosecution, and (2) whether defendant
voluntarily terminated his obstructive conduct and truthfully admitted the conduct
comprising the offense of conviction.” United States v. Salazar-Samaniega, 361
F.3d 1271, 1280 (10th Cir. 2004). After following these directions, the district
court found (among other things) that Ms. Chapman’s obstruction was not
isolated and that she never voluntarily terminated it.
Ms. Chapman contests these factual findings but we see no error, let alone
the sort of clear error necessary to reverse. See United States v. Soto, 660 F.3d
1264, 1269 (10th Cir. 2011). Ms. Chapman’s conduct was not isolated: she
engaged in at least four separate acts of obstruction (concocting a cover story
with Mr. Moya, repeating it to the FBI, encouraging her boyfriend not to
cooperate, and sending the grand jury a phony promissory note). Neither did she
voluntarily terminate her obstruction: she abandoned her efforts to conceal her
wrongdoing only after the grand jury rejected her explanations and fictitious
paperwork. That was not so much acceptance of responsibility as acceptance of
the inevitable.
Trying a different tack, Ms. Chapman argues the district court
impermissibly faulted her for failing to waive her right to appeal. Here, however,
is what happened. In considering sentences imposed on similarly situated
defendants, something statutorily authorized by 18 U.S.C. § 3553(a)(6), the
district court discussed other recent New Mexico public corruption cases. Noting
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that one (involving a Manny Aragon) ended with a sentence three months shorter
than Ms. Chapman’s, the court reasoned that the finality of the plea agreement in
that case rendered the three month difference immaterial and the two sentences
comparable. It is this analysis Ms. Chapman complains of.
We see no reversible error. This court has recognized in analogous
circumstances that sentence disparities may be justified when they arise from the
fact a defendant “cooperated with the government” by pleading guilty rather than
taking the case to trial. United States v. Zapata, 546 F.3d 1179, 1194 (10th Cir.
2008). This court has also said that aside from a “few exceptions” such as a
defendant’s race, “no limitation shall be placed on the information concerning the
background, character, and conduct of a person convicted of an offense which a
court . . . may receive and consider” at sentencing. United States v. Pinson, 542
F.3d 822, 836 (10th Cir. 2008) (internal quotation marks and alterations omitted).
If an argument exists for distinguishing the logic of Zapata or for the notion that
the absence of an appellate waiver amounts to one of the “few exceptions” to the
sort of information the district court may consider at sentencing, it hasn’t been
presented to the court in this case and we will have to await its presentation in
some other.
Neither, in any event, could any such argument prevail in this case because
any possible error here was clearly harmless. See Fed. R. Crim. P. 52(a).
Harmless because the absence of an appellate waiver was only one of many
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reasons the district court gave for distinguishing Ms. Chapman’s case from Mr.
Aragon’s; in turn, Mr. Aragon’s case was itself only one of many cases the
district court considered by way of comparison; and seeking a sentence in line
with other comparable cases itself amounted to only one of eight reasons the court
gave for choosing the 70-month sentence it did. Under our harmless error
jurisprudence, remand for resentencing is not necessary where we are confident it
would only “produce the same result.” United States v. Sherwin, 271 F.3d 1231,
1235 (10th Cir. 2001). We have that confidence in this case.
Finally, Ms. Chapman claims her sentence is unreasonable because it
(otherwise) differed too greatly from the sentences imposed in other public
corruption cases, both in New Mexico and nationwide. But the district court
assiduously discussed, sought to take account of, and control for the peculiarities
of each case it sought to compare to Ms. Chapman’s. Ms. Chapman may wish the
weight the district court assigned to various factual differences in the various
cases was different. And we readily acknowledge reasonable minds might assess
these factual differences differently. But we simply cannot say the weight the
district court did assign to them was unreasonable, as we must to reverse. See
United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007).
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Affirmed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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