*

Honorable James K. Logan, Senior U.S. Circuit Judge for the

Tenth Circuit, sitting by designation. 

 1Initially Kummer was charged with and pleaded guilty to

conspiracy to violate the statute, under 18 U.S.C. § 371. The

court then determined that Kummer pleaded guilty without knowing

United States Court of Appeals,

Eleventh Circuit.

Nos. 95-9066, 95-9085 and 95-9165.

UNITED STATES of America, Plaintiff-Appellee,

v.

Thomas Lowrance KUMMER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert Jerva JERNIGAN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

John E. OGLESBY, Defendant-Appellant.

Aug. 2, 1996.

Appeals from the United States District Court for the Southern

District of Georgia. (No. CR494-165), B. Avant Edenfield, Chief

Judge.

Before EDMONDSON and DUBINA, Circuit Judges, and LOGAN*

, Senior

Circuit Judge.

LOGAN, Senior Circuit Judge:

In these consolidated direct criminal appeals, defendants

Thomas Kummer (No. 95-9066), John Oglesby (No. 95-9165), and Robert

T. Jernigan (No. 95-9085) appeal from sentences imposed after they

each pleaded guilty to one count of violating 18 U.S.C. § 1954

("Offer, acceptance, or solicitation to influence operations of

employee benefit plans")1

 pursuant to plea agreements. Defendants
that the conspiracy charge carried a five-year statutory maximum

penalty, and it allowed him to plead to a new information

charging the substantive offense of 18 U.S.C. § 1954 which has a

three-year statutory maximum penalty. 

argue that the district court erred in sentencing them for

involvement in a bribe rather than a gratuity, which they assert

was the charge and the plea to which they agreed. Alternatively

defendants Kummer and Jernigan contend they should be allowed to

withdraw their guilty pleas. Defendants also individually allege

various errors by the district court related to sentencing.

I

Defendant Jernigan was the business agent and financial

secretary for the United Brotherhood of Carpenters Local 256 in

Savannah, Georgia; he was also trustee of the local's health and

welfare plan, an employee benefit plan. His union needed to obtain

a loan to assist in financing its union hall, and he asked

defendant Oglesby for assistance in that matter. Oglesby was the

general representative of the Brotherhood of Carpenters

International Union in the southeastern United States. Oglesby and

Jernigan had worked together because of Jernigan's representation

of the local union and Oglesby's work with the international

office. In response to Jernigan's request for assistance in

obtaining a loan for the union hall, Oglesby told Jernigan about

his associates Thomas Kummer and Edward Killian who were involved

in the Tahoe Company, a real estate development company located in

Reno, Nevada. Kummer was general counsel of Tahoe; Killian was

acting vice president and secretary of Tahoe, as well as being a

member of the board of directors of Commercial Pacific Savings and
Loan (Compac). Tahoe was engaged in soliciting investments from

business agents of union benefit plans in exchange for promoting

union labor and construction projects developed by Tahoe.

Following Oglesby's advice, Jernigan talked to Killian about

getting a loan for the union hall. Jernigan also told Killian that

he needed to refinance a mortgage on the house where he lived.

Killian suggested that Compac might be able to make Jernigan a

personal loan. Killian sent Jernigan a personal loan application,

which Compac denied because of his poor credit rating. Oglesby

then told Jernigan that Tahoe was receiving investments from local

unions and that if an investment was made from Jernigan's local

union it would increase the possibility that he would receive the

personal loan he was seeking. Jernigan then called Killian, who

told him that an investment from the health and welfare plan would

"just about secure any type of loan" for which Jernigan applied.

Oglesby Presentence Report (PSR) at ¶ 5; 2 R. at 15 (No. 95-9085).

Killian advised Jernigan to ask his girlfriend, Lori Stone, to

apply for the refinancing loan in her name because Stone's credit

rating was better than Jernigan's. Killian apparently told Oglesby

that a personal loan would have to be made to Jernigan to make sure

that he would invest approximately $250,000 from the health and

welfare plan in Tahoe. Oglesby Presentence Report at WW 4, 6. On

February 2, 1990, Jernigan wired $253,041.84 from the union's

health and welfare plan to Compac to purchase Tahoe stock. In

making this transfer Jernigan did not obtain the required

authorization of another representative of the health and welfare

plan. On February 5, 1990, Jernigan received an $85,000 loan from
Compac secured by a $95,000 certificate of deposit that Tahoe

obtained using the funds Jernigan had wired to Tahoe.

On February 21, 1990, in a recorded conversation defendant

Kummer told David Brumbeloe, a Tahoe shareholder, that he had

called Jernigan to persuade him to purchase the stock with funds

from the union's health and welfare plan. Kummer indicated that in

return Tahoe would ensure that Jernigan received the home loan.

On March 31, 1990, Jernigan received from Tahoe a $6,000 check

made out to him but which he was to deliver to Waylon Morton, a

business agent of the union local in Macon, Georgia. Morton had

requested a cash payment from Tahoe before he would agree to use

union annuity funds to purchase shares of Tahoe stock. Jernigan,

however, cashed the check and spent the money. On May 8, 1990,

Morton invested $78,586.72 from his union's annuity plan with

Tahoe. The following July 2 Killian sent a $6,000 payment to

Morton as a result of his earlier investment.

Oglesby received $29,900 over a period of time in fees, loans

and expense reimbursements from Tahoe; some of this money was

obtained through a personal loan made to him by Compac based on

Killian's authorization.

After a lengthy investigation by the Department of Labor,

defendants were charged by information with violating 18 U.S.C. §

1954, "Offer, acceptance, or solicitation to influence operations

of employee benefit plan." Section 1954, as pertinent, provides

that:

Whoever being—

(1) an administrator, officer, trustee, custodian,

counsel, agent, or employee of any employee welfare benefit
plan or employee pension benefit plan; or

(2) an officer, counsel, agent, or employee of an

employer or an employer any of whose employees are covered by

such plan; or

(3) an officer, counsel, agent, or employee of an

employee organization any of whose members are covered by such

plan; or

(4) a person who, or an officer, counsel, agent, or

employee of an organization which, provides benefit plan

services to such plan

receives or agrees to receive or solicits any fee, kickback,

commission, gift, loan, money, or thing of value because of or

with intent to be influenced with respect to, any of his

actions, decisions, or other duties relating to any question

or matter concerning such plan or any person who directly or

indirectly gives or offers, or promises to give or offer, any

fee, kickback, commission, gift, loan, money, or thing of

value prohibited by this section, shall be fined under this

title or imprisoned not more than three years, or both.

18 U.S.C. § 1954.

 Although § 1954 does not use the term "bribe" or "gratuity,"

the courts have noted that the language "because of, or with intent

to be influenced" corresponds with a "bribe/gratuity dichotomy."

United States v. Lopreato, 83 F.3d 571, 575 (2d Cir.1996). The

"with intent to be influenced" language prohibits a bribe, which

involves a quid pro quo. Id.; see also United States v. Mariano,

983 F.2d 1150, 1159 (1st Cir.1993) (a bribe involves intention of

briber to gain quid pro quo); United States v. Muldoon, 931 F.2d

282, 287 (4th Cir.1991) (payer's intent to influence recipient's

actions distinguishes bribe from gratuity). The "because of"

language prohibits a gratuity, which involves no quid pro quo, but

is a payment made "because of the act." Muldoon, 931 F.2d at 287.

Unlike other federal statutes prohibiting bribes and

gratuities, § 1954 provides the same maximum penalty for violation
of the "because of" (gratuity) or the "intent to be influenced"

(bribe) language of the statute. See 18 U.S.C. § 1954 (providing

maximum of three years imprisonment); cf. 18 U.S.C. § 201(b)

(bribery of public official or witness) (maximum penalty fifteen

years) and id. § 201(c) (gratuity) (maximum penalty two years).

The Sentencing Guidelines that apply to § 1954, however, do make a

distinction between a bribe and a gratuity, providing for a base

offense level often for a bribe and six for a gratuity. USSG §

2E5.1(a)(1) and (2). Application Note 1 to USSG § 2E5.1 defines

bribe as "the offer or acceptance of an unlawful payment with the

specific understanding that it will corruptly affect an official

action of the recipient;" Application Note 2 defines gratuity as

"the offer or acceptance of an unlawful payment other than a

bribe." Thus the Guidelines follow the distinction made in other

statutes that a bribe involves a specific understanding that it

will affect an official action—a quid pro quo.

The informations in the instant cases alleged that defendants

were involved in a "gratuity," and did not refer to a "bribe." But

they each included essentially the "with intent to be influenced

with respect to" language of § 1954 that generally refers to a

bribe. See 1 R. doc. 1 at WW 3, 6, 7 (No. 95-9066) (Kummer

conspired to obtain money for stock "in exchange for" providing a

loan for Jernigan's benefit, ¶ 3; he combined with others to offer

value "to influence" the operations of an employee benefit plan, ¶

6; he assisted others "to influence" Jernigan to use plan moneys

to buy Tahoe stock, ¶ 7); 1 R. doc. 1 at WW 5, 6 (No. 95-9165)

(Oglesby received from Tahoe moneys "because of and with intent to
be influenced with respect to his actions" concerning a welfare

plan, ¶ 5; he participated in negotiations to arrange a financial

benefit to Jernigan "in exchange for" Jernigan's use of plan funds

to buy Tahoe stock, ¶ 6); 1 R. doc. 1 at ¶ 5 (No. 95-9085)

(Jernigan received moneys "because of and with intent to be

influenced with respect to his actions" relating to a welfare plan,

¶ 5).

The plea agreements also used the language in a confusing

manner, stating that "Count One alleges a violation of Title 18,

United States Code, Section 1954, that is, to offer a gratuity to

influence the operations of an employee benefit plan." (emphasis

added). See 1 R. doc. 19 at ¶ 5a (No. 95-9066) (Kummer); see also

1 R. doc. 13 at ¶ 5a (No. 95-9085) (Jernigan) (same except "accept

a gratuity to influence"); 1 R. doc. 12 at ¶ 5a (No. 95-9165)

(Oglesby) (same except "offer and accept a gratuity to influence").

The agreements also stated "defendant understands that Count One

... charges the defendant with offering something of value to

influence the operations of an employee benefit plan." 1 R. doc.

19 at ¶ 6a (No. 95-9066) (Kummer); see also 1 R. doc. 13 at ¶ 6a

(No. 95-9085) (Jernigan) (same except "obtaining a gratuity to

influence"); 1 R. doc. 12 at ¶ 6a (Oglesby) (same except "Offer,

Acceptance, and Solicitation to Influence"). The government then

agreed that the base offense level was based on USSG § 2E5.1(a)(2),

gratuity, which would be six.

When defendants Kummer and Jernigan entered their guilty

pleas, the district court told each defendant, as the plea

agreement provided, that for sentencing purposes it was not binding
 2

The district court did at one point ask defendant

Jernigan's counsel if he wanted to withdraw the guilty plea. 

When Jernigan's counsel stated he would "have to think about

that," the district court rescinded the offer. See 2 R. 23 (No.

95-9085). 

on the court and that if the court did not accept the

recommendations in it they would not be able to withdraw. See 2 R.

at 32-33 (No. 95-9066); 3 R. at 32-33 (No. 95-9085). The judge

also stated, however, that if he did not accept the plea agreements

he would give them a chance to withdraw. Id. at 43-44; 66 (both

records).

Upon completion of the presentence reports (PSRs), the

probation officer recommended that the judge find all of the

defendants had been involved in a bribe, and thus apply the base

offense level of ten. The PSRs differed in several respects from

the plea agreements, including recommending a higher valuation.

Defendants made numerous objections to the PSRs. The U.S. Attorney

also filed objections, in particular stating that the transaction

should not be classified as a bribe. The probation office then

produced an addendum to the PSRs, in which it revised upward some

of its recommendations. Defendants then filed further objections

and the probation office made a final report.

After holding a hearing for defendants Kummer, Jernigan and

Killian, during which both the probation officer and the labor

department investigator testified, the district court accepted the

PSRs' recommendations that the payments were bribes and thus the

base offense level was ten. The district court did not allow

defendants Kummer or Jernigan to withdraw their pleas.2 Defendant

Oglesby was sentenced later than the other defendants; the
district court gave him the opportunity to withdraw his plea but

Oglesby declined. The district court adopted most of the other

sentencing recommendations in each defendant's PSR and addendum.

It sentenced Jernigan to twenty-four months; Kummer to eighteen

months, and Oglesby to fourteen months.

II

 Defendants argue that they were charged with and pleaded

guilty only to the gratuity prong of § 1954; that they must be

sentenced for a gratuity; that the court should have applied the

base offense level for gratuities in the Sentencing Guidelines.

This argument is based on a reading of § 1954 as including two

distinct offenses—bribe or gratuity—as opposed to one offense. We

have found no Eleventh Circuit case, or any other circuit case

specifically addressing whether § 1954 contains two separate

offenses. Cf. United States v. Gayle, 967 F.2d 483, 485 n. 3 (11th

Cir.1992) (en banc) (stating that 18 U.S.C. § 912, which provides

"Whoever falsely assumes or pretends to be an officer or employee

acting under the authority of the United States ... and acts as

such, or in such pretended character demands or obtains any money"

contains two distinct offenses), cert. denied, 507 U.S. 967, 113

S.Ct. 1402, 122 L.Ed.2d 775 (1993). But the case law we have found

from other circuits suggests that § 1954 contains only one offense.

See, e.g., United States v. Rosenthal, 9 F.3d 1016, 1017, 1020,

1024 (2d Cir.1993) (defendant was charged "with offering a gratuity

in connection with a pension plan" and court referred to conviction

for "intent to influence"); see also United States v. Lopreato, 83

F.3d 571, 574 (2d Cir.1996) ("While the difference between a bribe
 3

Sentencing Guideline § 1B1.2 provides that the court

"Determine the offense guideline section in Chapter Two (Offense

Conduct) most applicable to the offense of conviction (i.e., the

offense conduct charged in the count of the indictment or

information of which the defendant was convicted)." There is no

question that the offense guideline section applicable here is §

2E5.1, "Offering, Accepting, or Soliciting a Bribe or Gratuity

Affecting the Operation of an Employee Welfare or Pension Benefit

Plan; Prohibited Payments or Lending of Money by Employee or

Agent to Employees, Representatives, or Labor Organizations." 

That Guideline, however, contains two offense levels. The

Guidelines provide that "[w]here there is more than one base

offense level within a particular guideline, the determination of

the applicable base offense level is treated in the same manner

as a determination of a specific offense characteristic." USSG §

1B1.2, comment. (n. 2). Then USSG § 1B1.3(a) states,

Unless otherwise specified, (I) the base offense level

where the guideline specifies more than one base

offense level, [and] (ii) specific offense

characteristics, ... shall be determined on the basis

of the following:

1(A) all acts and omissions committed, aided, abetted,

counseled, commanded, induced, procured, or willfully

caused by the defendant; and

and a gratuity does not affect the propriety of [defendant's]

conviction under section 1954(1), a bribe commands a higher base

level under the Sentencing Guidelines."). Further, neither the

title of the statute, "Offer, acceptance, or solicitation to

influence operations of employee benefit plan," nor its wording

make a distinction between bribe and gratuity. We hold that the

statute states a single crime, and it is only the Sentencing

Guidelines that differentiate between levels of punishment

applicable to that single offense. Thus, even though the

informations in these cases used the term "gratuity," defendants

pleaded guilty to violating the statute. The language of the

informations alone did not foreclose the district court from

assigning a base offense level for bribe.3
(4) any other information specified in the

applicable guideline.

Thus, despite use of the term gratuity in the

information, the determination of the base offense level

under § 2E5.1 is to be made based on all of the information

provided at sentencing. 

III

 Defendants next assert that the plea agreements provided that

they were involved in a "gratuity" but not a "bribe." As

previously noted, Jernigan's plea agreement stated, "[t]he

defendant understands that Count One alleges a violation of Title

18, United States Code, Section 1954, that is, to accept a gratuity

to influence the operations of employee benefits plans." 1 R. doc.

13 at ¶ 5a (No. 95-9085) (emphasis added); see also 1 R. doc. 12

at ¶ 5a (No. 95-9165) (Oglesby) ("offer and accept a gratuity");

I R. doc. 19 at ¶ 5a (No. 95-9066) (Kummer) ("offer a gratuity").

Indeed, our review of the record suggests that both the government

and defendants believed that the agreement was to plead to a

violation of the statute through the gratuity prong.

Defendants Jernigan and Kummer argue that under Federal Rule

of Criminal Procedure 11 the court was obligated to enter a

sentence consistent with the plea agreement or to reject the plea

agreement entirely and allow defendants to withdraw their guilty

plea.

Rule 11(e)(1) provides:

In General. The attorney for the government and the

attorney for the defendant or the defendant when acting pro se

may engage in discussions with a view toward reaching an

agreement that, upon the entering of a plea of guilty or nolo

contendere to a charged offense or to a lesser or related

offense, the attorney for the government will do any of the

following:
(A) move for dismissal of other charges; or

(B) make a recommendation, or agree not to oppose the

defendant's request, for a particular sentence, with the

understanding that such recommendation or request shall not be

binding upon the court;

(C) agree that a specific sentence is the appropriate

disposition of the case.

The court shall not participate in any such discussion.

In United States v. Dean, 80 F.3d 1535 (11th Cir.1996), this court

distinguished subsection (B) plea agreements from those under the

other subsections.

One important distinction between "B" pleas and "A" or

"C" pleas is that only "B" pleas may be modified: "such a

recommendation or request shall not be binding upon the

court." This is made clear in Rule 11(e)(2), which states, in

pertinent part:

If the agreement is of the type specified in subdivision

(e)(1)(A) or (C), the court may accept or reject the

agreement, or may defer its decision as to the acceptance

or rejection until there has been an opportunity to

consider the presentence report. If the agreement is of

the type specified in subdivision (e)(1)(B), the court

shall advise the defendant that if the court does not

accept the recommendation or request the defendant

nevertheless has no right to withdraw the plea.

Id. at 1539. As applicable here, if this is a "C" plea agreement

the court must simply accept or reject the entire plea agreement;

if it is a "B" agreement the court may accept the plea and reject

the recommended punishment. See id. at 1541.

The plea agreements here contained the prosecution's promise

to recommend a downward adjustment for acceptance of

responsibility, and to consider asking for a USSG § 5K1.1

substantial assistance downward departure if it appeared justified.

Those are clearly type "B" recommendations; defendants would not

be able to withdraw their guilty pleas if the district court
decided not to follow them. See Dean, 80 F.3d at 1538-39.

Defendants argue, however, that the government's agreement that

each defendant was involved in a gratuity and that USSG §

2E5.1(a)(2) controlled the determination of the sentencing

guideline range should be construed as a type "C" agreement. Thus,

defendants contend that the instant agreements contained both type

"B" agreements to recommend particular sentencing options as well

as type "C" agreement that the offense fell under the gratuity base

level offense of USSG § 2E5.1(a)(2).

This court has said that when the government "or the court"

does not follow a plea agreement the court should order specific

performance or afford the defendant an opportunity to withdraw the

plea; and specific performance is preferred. United States v.

Jefferies, 908 F.2d 1520, 1527 (11th Cir.1990) (plea stipulation

specified drug quantity but court found quantity to be larger);

see also United States v. Taylor, 77 F.3d 368, 371 (11th Cir.1996)

(government paid "lip service" to plea agreement but then

affirmatively supported position inconsistent with agreement;

defendant allowed to withdraw plea); United States v. Rewis, 969

F.2d 985, 988-89 (11th Cir.1992) (when government breached plea

agreement, remedies include specific enforcement or permitting

withdrawal of plea).

Considering the ambiguous nature of the agreement, this is a

close case. The agreements did not state that they were type "C"

agreements or that they were type "B" agreements. They did not

provide that defendants could withdraw if the court determined it

could not apply the gratuity base offense level. The references to
 4

At the plea hearing, the district court stated that the

"[p]lea agreement is not binding upon the Court. The Court, of

course, will have the presentence at some time, and if the Court

should reject the plea agreement, of course, you may withdraw and

enter a plea of not guilty and proceed to trial." 2 R. at 32

(No. 95-9066); 3 R. at 32 (No. 95-9085). The court also stated

that "[y]our lawyers and the government, no doubt, will make a

recommendation to me as to what sentence should be imposed, as

well as the probation officers. I am not bound by those

recommendations; they are only that. You cannot withdraw your

plea of guilty even though I do not accept the recommendation." 

Id. at 33. The government then recited the terms of the plea

agreements, referring to gratuity. See id. at 36-38, 41-42. The

district court then stated "the agreement is not binding upon the

Court, but if the Court should reject it, or any of them, you

will be given an opportunity to withdraw your plea of guilty and

enter a plea of not guilty." Id. at 43-44. Finally, at the end

of the hearing the judge stated that he accepted the guilty plea,

but that after the PSRs were prepared, "if I find that I cannot

accept the plea, at that point I will reject it and allow

everybody to enter a plea of not guilty." Id. at 66. 

"gratuity" might be viewed as factual stipulations, and as such

they would not be binding on the court. See USSG § 6B1.4(d). For

the reasons stated in the prior sections of this opinion the text

of the agreement is not inconsistent with holding they are type "B"

agreements, from which defendants would not be entitled to withdraw

when the court decided not to follow the sentencing

recommendations. But we must also consider the advisement of the

court when it accepted the pleas of Kummer and Jernigan. Although

the district court told defendants they would be unable to withdraw

because the agreement was not binding on the court, it also twice

informed them that they would be able to withdraw their plea if the

court did not accept the agreement.4

Considering all the circumstances, including the sentencing

court's statements to the defendants, if the court could not in

good conscience accept the violations as justifying a sentence

under the gratuity guideline, the sentencing court was obligated to
allow withdrawal of the guilty pleas. See United States v. Forbes,

888 F.2d 752, 753-54 (11th Cir.1989) (when court found reduction

for minor role, as agreed upon by defendant and government, not

justified by PSR, court offered to allow defendant to withdraw

guilty plea). Because defendants Kummer and Jernigan were not

afforded the opportunity to withdraw their pleas, we remand to the

district court with the direction that it permit them to withdraw

their guilty pleas.

The court did offer defendant Oglesby the opportunity to

withdraw his plea and he declined. He does not argue that the

government breached the plea agreement. Thus, defendant Oglesby's

right to any relief is dependent upon the merits of the claims he

raises that we discuss hereafter.

IV

 Each defendant asserts that the district court erred in its

factual determination that the base offense level for the offense

of conviction was ten (bribe) rather than six (gratuity). See USSG

§ 2E5.1(a)(1) and (2). As previously noted, the base offense level

for a bribe applies if there was an offer or acceptance of unlawful

payment "with the specific understanding that it will corruptly

affect an official action of the recipient," USSG § 2E5.1 comment.

(n. 1); a gratuity is "the offer or acceptance of an unlawful

payment other than a bribe," id. comment. (n. 2). We review the

district court's findings of fact on this issue for clear error and

review de novo the application of the Guidelines to the facts. See

United States v. Jennings, 991 F.2d 725, 732 (11th Cir.1993).

Defendants argue that there was no evidence of a specific
 5

Defendant Jernigan raises the issue whether the probation

officer improperly relied on information gained from his grand

jury testimony in determining his guideline range. That would

violate USSG § 1B1.8, which prohibits use of self-incriminating

information provided pursuant to a cooperation agreement from

being used in determining the applicable guideline range, except

to the extent provided in the agreement. The PSR, its addendum,

and the probation officer's testimony indicate that she relied on

Jernigan's and Ogelsby's grand jury testimony in making the

bribery recommendation. But the court reminded the officer that

such self-incriminating testimony could not be used against a

cooperating defendant. The court then elicited from the officer

that she would have arrived at the same conclusion without

considering the grand jury testimony. More importantly, as noted

by the quotation in the text, the district court disclaimed any

such reliance in making its own conclusion. 

understanding or a quid pro quo. They point to testimony by Sandra

Rackleff, the labor department agent who investigated the case over

a five year period, that she did not think there was enough

evidence of a quid pro quo on which to base a bribe offense level.

The United States probation officer, in contrast, testified that

her recommendation to the contrary was based on a belief that the

evidence supported an understanding between Jernigan and the Tahoe

Company which prompted him to invest the health and welfare plan

money in Tahoe stock. She recited evidence that Oglesby spoke to

Jernigan several times to encourage Jernigan to invest in Tahoe,

the turndown of Jernigan's first application for a loan, the timing

of the defendants' discussions, the investment purchase, the loan

made to Jernigan's girlfriend, and Oglesby's grand jury testimony.

The probation officer highlighted Jernigan's grand jury testimony5

that he was pushed into purchasing Tahoe shares by phone calls and

contacts in part from Oglesby and also from Killian. She also

pointed to Oglesby's grand jury testimony that "[the home loan] was

a commitment that [Ed Killian] had made to Robert Jernigan in order
for Robert Jernigan to make the investment." 2 R. 68 (No. 95-

9085).

In sentencing Jernigan the district court alluded to its own

prior comments, as the testimony and arguments were made to it.

The judge stated, "I think I made it known of my beliefs of why I

found the bribe instead of the gratuity. According to the law and

to case law it is not a matter of semantics. In no way can

[Jernigan's] testimony before the grand jury be used against him.

But the clear wording of the excerpts of the other defendants, the

coincidences or lack of coincidences and all indicated but one

conclusion to this Court." Id. at 87. The court's comments in

sentencing Kummer, 3 R. at 49, 56 (No. 95-9066), and Ogelsby, 2 R.

at 83-84 (No. 95-9165), are not as extensive but are to the same

effect.

 Of course, the standard for a sentencing court on a disputed

fact involved in sentencing is a preponderance of the evidence.

United States v. Ignancio Munio, 909 F.2d 436, 439 (11th Cir.1990),

cert. denied, 499 U.S. 938, 111 S.Ct. 1393, 113 L.Ed.2d 449 (1991).

"In resolving any reasonable dispute concerning a factor important

to the sentencing determination, the court may consider relevant

information without regard to its admissibility under the rules of

evidence applicable at trial, provided that the information has

sufficient indicia of reliability to support its probable

accuracy." USSG § 6A1.3(a). The court's finding is not clearly

erroneous. There was sufficient evidence on which the court could

find that the loan was a bribe under USSG § 2E5.1(a)(1), and thus

a base offense level of ten was appropriate.
 6

An additional $78,000 investment by a union official,

Morton, steered to Tahoe by Jernigan, was added to the improper

benefit total in the PSR addendum. We do not address that

addition because it makes no difference to our analysis. 

 7The plea agreement with Jernigan stated that he agreed the

amount of the gratuity was "approximately $91,000," apparently

consisting of the $85,000 loan plus the $6,000 check Jernigan

received and kept. 1 R. doc. 13 ¶ 5a. (No. 95-9085). 

V

 Defendants argue that the district court erred in determining

the increase in their offense levels under USSG § 2E5.1(b)(2). We

review the district court's determinations on this issue for clear

error. See United States v. Hang, 75 F.3d 1275, 1284 (8th

Cir.1996).

The Guidelines direct the court to increase the offense level

"by the number of levels from the table in § 2F1.1 (Fraud and

Deceit) corresponding to the value of the prohibited payment or the

value of the improper benefit to the payer, whichever is greater."

USSG § 2E5.1(b)(2). The district court adopted the PSRs

recommendation that the offense characteristics be increased based

on the "value of the improper benefit to the payer," which it

stated was the full amount of Jernigan's $253,041 purchase of Tahoe

securities.6

 All defendants argue the value of the improper

benefit to Tahoe executives was not the full amount of the stock

purchase.

Defendants contend that the "value of the prohibited

payment"—the loan to Jernigan—should be used as the basis for

increasing the offense level.7

 They then argue that the value of

the loan for Jernigan's benefit was less than the $85,000 loan

amount. Oglesby argues further that his plea agreement stipulated
the prohibited payment was a gratuity of less than $40,000.

If the increase in offense level is to be based on the "value

of the improper benefit to payer," that term is defined in the

"Commentary to § 2C1.1." USSG § 2E5.1 comment. (n. 4).

Application Note 2 to § 2C1.1 provides that " "the benefit received

or to be received' means the net value of such benefit." It then

provides as an example that if a $150,000 contract is awarded in

return for a bribe, and $20,000 profit was made on the contract,

the "value of the benefit received is $20,000." Id.

The basis of defendants' argument that the district court

erred in using the entire amount of the $253,000 purchase of Tahoe

stock is that the stock had some value. See United States v.

Fitzhugh, 78 F.3d 1326, 1331 (8th Cir.1996) ("value of transaction

is often quite different than the face amount of the transaction").

Although the district court adopted the PSR recommendation on this

issue, the factual findings underlying its determination are not

clear. The district court may have concluded the stock had no

value, and therefore the entire amount of the purchase was the net

value of benefit received by Tahoe. Cf. Lopreato, 83 F.3d at 576

(district court could have properly concluded securities had no

value where evidence showed active looting of company and impaired

collateral).

This issue may become relevant again on the remand we order.

If it does the district court should make explicit factual findings

as to value of the improper benefit. The court must determine the

net benefit of the $253,000 stock purchase to Tahoe. If that

figure is less than the $85,000 loan to Jernigan, as enhanced by
the $6,000 check payment Jernigan retained, the court will need to

determine the value of the loan to see if it is greater than the

net value of the Tahoe investment. The value of a loan to the

borrower may also be less than the face amount. See Fitzhugh, 78

F.3d at 1331 (remanding and noting that "scanty evidence" suggests

value of loan was less than face amount). If the borrower's

promise to repay were worthless or unenforceable, the value of the

loan might be the face value. Id. at 1331 n. 2. Further, "[w]hen

a loan is obtained by bribes, it is likely to be at favorable

terms, in which case its value will typically be the difference

between the actual cost of the loan and the cost of the same loan

at fair market terms and conditions." Id. at 1331. We leave the

valuation questions to the district court on remand.

VI

 Defendants Ogelsby and Jernigan assert that the district

court erred in assessing them a two-level increase for abuse of

position of trust. USSG § 3B1.3 provides for a two level increase

in the base offense level "[i]f the defendant abused a position of

public or private trust, or used a special skill, in a manner that

significantly facilitated the commission or concealment of the

offense." They first attack the legal basis for the two-level

increase, asserting it amounts to double counting under Section

3B1.3, which also provides that "[t]his adjustment may not be

employed if an abuse of trust or skill is included in the base

offense level or specific offense characteristic." We review the

district court's factual determination on this issue for clear

error, but the question whether these facts justify the abuse of
 8

These defendants also note that the base offense level for

a gratuity to a public official is a level seven, USSG § 2C1.2,

while the base offense level for a gratuity under § 2E5.1(a)(2)

is six; they assert this one-level difference demonstrates that

the Commission views public corruption offenses under § 2C1.2 as

more serious. Defendants argue "there is no rational basis for

permitting an increase of two levels pursuant to U.S.S.G. § 3B1.3

for a bribery or gratuity offense under U.S.S.G. § 2E5.1

involving union officials, where the Guidelines relating to the

more serious offense of public corruption covered by § 2C1.2 do

not permit such an increase because they recognize that the abuse

of trust factor was already taken into consideration in the

formulation of those Guidelines." Brief of Appellant Oglesby at

26. 

trust enhancement is a question of law that we review de novo.

United States v. Terry, 60 F.3d 1541, 1545 (11th Cir.1995), cert.

denied, --- U.S. ----, 116 S.Ct. 737, 133 L.Ed.2d 687 (1996).

These defendants point to the commentary to other Guidelines

relating to public corruption cases, USSG §§ 2C1.1 and 2C1.2

(bribes and gratuities), which state that generally § 3B1.3 should

not be applied in these cases because the Guidelines took into

consideration the fact that such cases necessarily involve abuse of

positions of trust.8 See USSG §§ 2C1.1, comment. (n. 3) (bribery);

2C1.2, comment. (n. 2) (gratuity).

We reject this argument. First, any private citizen could

offer a bribe or gratuity to influence the operation of an employee

benefit plan in violation of § 1954; they need not be in any

position of trust. Thus, the § 2E5.1 base offense level does not

include an abuse of trust. In United States v. Pedersen, 3 F.3d

1468, 1470, 1470 n. 6 (11th Cir.1993), we allowed enhancement for

abuse of "special trust" under § 3B1.3 in an insider trading case

even though an element of trust is implicit in laws prohibiting

insider trading. We noted that the "Sentencing Commission has
expressly excepted certain offenders from particular enhancements

where it intended to do so." Second, this conclusion seems

compelled by Guideline section 2E5.1: "If the adjustment for a

fiduciary at § 2E5.1(b)(1) applies, do not apply the adjustment at

§ 3B1.3 (Abuse of Trust or Use of Special Skill)." USSG § 2E5.1,

comment. (n. 5).

 Oglesby also attacks the factual finding that he was in a

position of trust, noting that he was not a "fiduciary of the

benefit plan or labor organization" as specified in § 2E5.1(b)(1).

But the abuse of trust enhancement only requires a finding that

defendant possessed a position "characterized by professional or

managerial discretion" which "contributed in some significant way

to facilitating the commission ... of the offense." USSG § 3B1.3,

comment. (n. 1). In his position as a union official Oglesby had

such discretion, and as the labor investigator pointed out, his

position significantly contributed to facilitating the commission

of the offense in this case. The district court did not abuse its

discretion in giving defendant Oglesby the two-level increase under

§ 3B1.3.

VII

 Defendant Oglesby's argument that he should have received a

two-level downward adjustment under USSG § 3B1.2(b) for being "a

minor participant" does not impress us. Pointing to Special Agent

Rackleff's testimony at sentencing that he did not have control or

authority over the money or transactions, he contends he was less

culpable than the other defendants. But Rackleff also testified

that Oglesby was the facilitator of the transaction; and the
record shows he played a significant role in assuring the illegal

transactions were completed. He also profited, at least

indirectly, from them. The district court did not err in denying

a downward adjustment.

VIII

Defendants Kummer and Jernigan make certain other contentions

that we treat briefly because of the possibility these defendants

will not withdraw their guilty pleas, or the issues will arise

again after their trial.

 Defendant Kummer argues that the district court erred in not

departing below the Guideline range based on the government's USSG

§ 5K1.1 motion to depart because of his substantial assistance. We

cannot review a court's refusal to grant a downward departure

unless the district court erred in concluding it did not have

authority to depart. United States v. Fossett, 881 F.2d 976, 979-

80 (11th Cir.1989). At the sentencing hearing the court resolved

the defendant's objections to the PSR, and found a total offense

level of 15 and criminal history of I, indicating a sentencing

range of eighteen to twenty-four months. After hearing testimony

of defendant Kummer's assistance to the government, the court

stated that it had read "the 5K1.1 motion filed by the government

which the Court grants." 3 R. at 56 (No. 95-9066). The court,

however, then sentenced defendant Kummer to eighteen months, which

would not be a downward departure. On remand the district court

should clarify this point if Kummer does not withdraw his guilty

plea.

 As to defendant Jernigan's argument that he should have
received a departure outside the Guidelines range because his

behavior was aberrational and not within the heartland of cases

controlled by the Guidelines, we note that the government

recommended and the district court granted Jernigan a downward

departure to twenty-four months for cooperation. The court clearly

acknowledged that it could depart further downward but chose not to

do so. Defendant Jernigan also argues that he was entitled to a

downward adjustment under USSG § 3B1.2 as a minor or minimal

participant. He asserts he was unsophisticated in business

affairs, and attempts to frame the "offense" as Tahoe's overall

investment scheme. But the offense of conviction involved here is

the giving of a loan in exchange for or as a result of Jernigan's

$253,000 investment in Tahoe. We fail to see how defendant

Jernigan can argue he had a minor or minimal role in the offense of

conviction. There was no abuse of the court's discretion. The

other issues he raised are meritless and deserve no discussion.

Defendants Jernigan and Kummer request that a new judge be

assigned to conduct proceedings on remand. After reading the

record we are satisfied the district judge who conducted these

proceedings did nothing to justify reassignment. Therefore, we

decline the request.

AFFIRMED in part, REVERSED in part, and REMANDED for

proceedings consistent with this opinion.

 . . . . .