United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 11, 2007 Decided August 7, 2007

No. 05-3196

UNITED STATES OF AMERICA,

APPELLEE

v.

JEFFREY EDWARDS,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 03cr00156-01)

Ketanji B. Jackson, Assistant Federal Public Defender,

argued the cause for appellant. With her on the briefs was A.J.

Kramer, Federal Public Defender. Neil H. Jaffee and Tony W.

Miles, Assistant Federal Public Defenders, entered appearances.

Bryan G. Seeley, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief were Jeffrey A. Taylor, U.S.

Attorney, and Roy W. McLeese, III, Lisa H. Schertler, and James

W. Cooper, Assistant U.S. Attorneys.

Before: SENTELLE, GARLAND, and KAVANAUGH, Circuit

Judges.
2

Opinion for the court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: Jeffrey Edwards was a District

of Columbia asbestos inspector who issued a permit to a

contracting company that allowed the company to conduct an

asbestos abatement project. He told the company that he

thought a more costly abatement procedure was required by the

applicable regulations, but that he would permit it to use a less

costly procedure if it paid him $10,000. Unfortunately for

Edwards, the FBI videotaped the transaction, and he was

arrested and then convicted for bribery and extortion. The

district court sentenced Edwards to 33 months in prison.

Edwards now appeals, contending that the court erred in its

application of the United States Sentencing Guidelines. Finding

no error, we affirm the judgment of the district court.

I

Jeffrey Edwards was a senior inspector in the Air Quality

Division of the District of Columbia Department of Health. His

duties included reviewing permit applications submitted by

contractors who intended to demolish structures containing

asbestos. Federal regulations govern this type of demolition

project. See 40 C.F.R. § 61.140 et seq. The regulations

differentiate between asbestos-containing materials that are

“friable” -- meaning “that, when dry, [they] can be crumbled,

pulverized, or reduced to powder by hand pressure” -- and

materials that are “nonfriable.” Id. § 61.141. If a structure

contains a sufficient amount of asbestos-containing material that

is friable (or that could become friable), the regulations require

contractors to follow a specific set of abatement procedures

before they can demolish it. See id. §§ 61.141, 61.145.

Edwards’ job was to inspect structures and to ensure that

contractors’ abatement plans complied with the pertinent

regulations.
3

In 2002, the District of Columbia Department of Public

Works requested bid proposals for the demolition of six

structures at a waste transfer facility. It ultimately awarded the

contract to Keystone Plus Construction. Edwards was

responsible for monitoring the project and approving Keystone’s

demolition plan. Keystone hired Carlos Elizondo, an

environmental consultant, to help prepare the plan. Elizondo’s

services to Keystone included meeting with Edwards to try to

convince him that the asbestos-containing materials in the

structures were nonfriable. This was important to Keystone,

because a friable abatement is more expensive to conduct than

a nonfriable abatement.

On January 27, 2003, Elizondo drove to Edwards’ office for

the meeting. According to Elizondo’s trial testimony, Edwards

insisted on meeting in Elizondo’s car rather than in the office.

The men began discussing the waste facility project, and

Edwards said that he thought the asbestos-containing material at

the site was friable rather than nonfriable. He observed that

“[i]t’s going to be a pretty expensive project if Keystone plans

to do it as a friable project,” predicting that “a full [friable]

containment would . . . cost them a lot of money, about a

hundred thousand dollars” more than a nonfriable containment.

Trial Tr. 34 (Apr. 29, 2004 (AM)). He said, however, that in

exchange for “special considerations,” he could help Keystone

obtain a “waiver” that would allow the company to treat the

material as nonfriable. Id. at 37-38. When Elizondo asked,

“[W]hat type of special considerations are you talking about?,”

Edwards responded “ten,” which Elizondo took to mean

$10,000. Id. at 38.

After the meeting, Elizondo contacted the FBI. Edwards

and Elizondo had another meeting on February 13, 2003, this

time at Elizondo’s office and within view of FBI surveillance

cameras. During the meeting, Elizondo produced $10,000 in
4

pre-recorded FBI funds. Edwards then wrote the word

“approved” on Keystone’s proposal to treat the asbestoscontaining materials at the waste facility as nonfriable, and

Elizondo handed him the money. Edwards also gave Elizondo

a signed asbestos permit, allowing the company to begin

implementing its nonfriable abatement plan. Edwards was

arrested immediately upon leaving Elizondo’s office. After his

arrest, the District permitted Keystone to implement the same

nonfriable abatement plan that Edwards had approved.

On April 10, 2003, a grand jury indicted Edwards on one

count of soliciting and accepting a bribe, in violation of 18

U.S.C. § 201(b)(2), and one count of extortion, in violation of 18

U.S.C. § 1951. A jury found Edwards guilty on both counts on

May 4, 2004.

The district court sentenced Edwards on October 25, 2005.

The parties agreed that the relevant provision of the United

States Sentencing Guidelines was § 2C1.1, entitled “Offering,

Giving, Soliciting, or Receiving a Bribe; Extortion Under Color

of Official Right,” and that under that guideline, Edwards’ base

offense level was 10. See U.S. SENTENCING GUIDELINES

MANUAL § 2C1.1(a) (2003) [U.S.S.G.]. The parties disagreed,

however, on how much the court should increase that offense

level pursuant to § 2C1.1(b)(2)(A), which instructs:

If the value of the payment, the benefit received or to

be received in return for the payment, or the loss to the

government from the offense, whichever is greatest . .

. exceeded $5,000, increase [the defendant’s offense

level] by the number of levels from the table in §2B1.1

. . . corresponding to that amount. 

Id. § 2C1.1(b)(2)(A); see § 2B1.1 (table of offense level

increases corresponding to specified dollar losses).
5

1

The district court sentenced Edwards after the Supreme Court’s

decision in United States v. Booker, and followed Booker’s instruction

to treat the Sentencing Guidelines as advisory. See 543 U.S. 220, 245-

46 (2005). 

The government argued that, in applying § 2C1.1(b)(2)(A),

the court should focus on the value of the benefit to be received

by Keystone in exchange for the $10,000 bribe solicited by

Edwards. In the government’s view, this equaled the difference

between the cost to Keystone of conducting a friable abatement

at the waste facility and the cost of conducting a nonfriable

abatement. It put this difference at $200,000, based on the trial

testimony of another contractor, P.J. Goel, who estimated that

“the difference between doing [the abatement] friable versus

non-friable . . . was roughly $200,000.” Trial Tr. 86 (Apr. 28,

2004 (PM)). This amount corresponded to a 10-level increase

in Edwards’ offense level. See U.S.S.G. § 2B1.1(b)(1).

Edwards countered that the court should only consider the

$10,000 value of the bribe, which would have corresponded to

a 2-level increase. See id.

After hearing argument, the district court noted that “the

defendant himself said that the cost differential would be

roughly $100,000,” and that Goel estimated that the differential

would be more than twice that amount. Sentencing Hr’g Tr. 9-

10 (Oct. 25, 2005). The court concluded that “the

preponderance of the evidence does support at least a $100,000

valuation of the benefit,” id. at 10, which corresponded to an 8-

level increase in Edwards’ offense level, see U.S.S.G. §

2B1.1(b)(1). This yielded a total offense level of 18 and an

advisory Guidelines range (in light of a prior conviction) of 30

to 37 months’ incarceration. See U.S.S.G. ch. 5, pt. A

(sentencing table).1

 The court sentenced Edwards to a prison

term of 33 months on each count, to be served concurrently.
6

II

Edwards raises two challenges to his sentence, one legal and

one factual. First, he argues that the district court erred by

treating the “value of . . . the benefit . . . to be received in return

for the payment,” U.S.S.G. § 2C1.1(b)(2)(A), as the cost

differential between conducting a friable and a nonfriable

abatement. Edwards maintains that, as a matter of law,

Keystone did not benefit by that amount because it would not

have been “legally required to spend that extra sum to conduct

a friable abatement . . . if there had been no bribery solicitation

at all.” Appellant’s Reply Br. 6. Second, he argues that the

district court made a clear factual error when it found that the

cost differential was $100,000.

We review sentencing decisions under a “‘reasonableness’

standard.” United States v. Booker, 543 U.S. 220, 262 (2005);

see also Rita v. United States, 127 S. Ct. 2456, 2459 (2007).

Although Booker rendered the Sentencing Guidelines

“effectively advisory” rather than mandatory, 543 U.S. at 245,

the Sentencing Reform Act “nonetheless requires judges to take

account of the Guidelines together with other sentencing goals”

listed in the statute, id. at 259 (citing 18 U.S.C. § 3553(a)). “A

sentencing court acts unreasonably if it commits legal error in

the process of taking the Guidelines or other factors into

account, or if it fails to consider them at all.” United States v.

Bras, 483 F.3d 103, 106 (D.C. Cir. 2007) (citing United States

v. Simpson, 430 F.3d 1177, 1185-87 (D.C. Cir. 2005); United

States v. Price, 409 F.3d 436, 442-43 (D.C. Cir. 2005)). A

sentencing court also acts unreasonably if the sentence rests on

a finding of fact that is clearly erroneous. See United States v.

Grier, 475 F.3d 556, 570 (3d Cir. 2007); cf. United States v.

Olivares, 473 F.3d 1224, 1229 (D.C. Cir. 2006). With this

standard of review in mind, we consider each of Edwards’

challenges.
7

A

Edwards’ legal challenge turns on the meaning of “value of

. . . the benefit . . . to be received in return for the [bribe].”

U.S.S.G. § 2C1.1(b)(2)(A). He notes that, after his arrest,

“Keystone proceeded to demolish the [structures] using

substantially the same non-friable abatement plan that it had

submitted to Mr. Edwards for review.” Appellant’s Br. 26.

Edwards argues that, because the District eventually permitted

Keystone to implement the less expensive abatement plan that

Edwards had approved in exchange for the bribe, the bribe

“would [not] have resulted in any meaningful ‘benefit’ within

the meaning of § 2C1.1.” Id. And since “there was no ‘benefit’

to Keystone,” id. at 22, Edwards believes that the district court

should have increased his offense level based only on the value

of the $10,000 payment, see id. at 25; see also U.S.S.G. §

2C1.1(b)(2)(A) (providing that the increase in the offense level

is based upon “the value of the payment, the benefit received or

to be received in return for the payment, or the loss to the

government from the offense, whichever is greatest”).

The government does not dispute that Keystone was

lawfully entitled to implement the less-expensive, nonfriable

abatement plan. Indeed, it is part of the outrage of Edwards’

extortionate conduct that he coerced a contractor into paying

him $10,000 for the privilege of doing that which the contractor

could lawfully have done for free. But this does not mean that

Keystone did not receive a “benefit” in exchange for the

payment. In fact, it did: Keystone received the benefit of being

allowed to demolish the structures at substantially less expense

than if it had not made the payment -- because without the bribe,

Edwards would not have approved the cheaper, nonfriable

abatement plan.
8

Edwards concedes that, if the contractor had paid $10,000

for approval of an abatement plan to which it was not lawfully

entitled, the benefit to the contractor would have been the cost

differential between that plan and the more expensive, legally

required plan. See Appellant’s Br. 28 n.9; Appellant’s Reply Br.

2, 6. But he maintains that, because Keystone paid $10,000 to

obtain approval for a less expensive abatement to which it was

lawfully entitled, the value to the contractor was zero. See

Appellant’s Br. 26; Appellant’s Reply Br. 7-8. There is nothing

in the phrase “benefit . . . to be received” that suggests this

difference in treatment. Moreover, nothing explains why a

contractor would pay $10,000 to receive no benefit at all. To the

contrary, Keystone’s $10,000 bribe purchased the benefit of

foregoing the expensive measures associated with a friable

abatement. The fact that Edwards’ bribery scheme was

ultimately unsuccessful, and that Keystone was later permitted

to implement a less expensive, nonfriable abatement plan

without paying $10,000, are of no moment. See United States

v. Chmielewski, 196 F.3d 893, 894-95 (7th Cir. 1999) (holding

that a company that paid an OSHA inspector $2,000 to “wipe

away” a $35,000 fine received a “benefit” of $35,000, even

though the fine was later reduced to $6,000 through a lawfully

negotiated settlement); United States v. Muhammad, 120 F.3d

688, 701 (7th Cir. 1997) (“The mere fact that [a] bribe was not

successful does not prevent [the court] from using the

ascertainable benefit that the bribe intended to influence in order

to enhance [the defendant’s] sentence.”).

Moreover, Edwards’ theory would have an illogical

consequence: it would lead to identical Guidelines offense levels

for extortion schemes of vastly different proportions. On his

theory, a government procurement officer who demanded

$10,000 before permitting an eligible contractor to receive a

contract worth $100,000 in profits would have the same offense

level as an officer who insisted on the same payoff for
9

approving a contract worth $100,000,000 in profits. In each

case, Edwards would rate the “benefit to be received” as zero

and increase the base offense level by the value of the (identical)

bribe. See Oral Arg. Recording at 14:00. But this cannot be.

“[T]he purpose of § 2C1.1 . . . is to measure the true harm from

the crime,” Muhammad, 120 F.3d at 701, and to assign harsher

sentences to defendants who participate in more harmful crimes,

see U.S.S.G. § 2C1.1 cmt. background (“[F]or deterrence

purposes, the punishment should be commensurate with the gain

to the payer or the recipient of the bribe, whichever is higher.”).

It would defy this purpose to assign identical Guidelines ranges

in the two extortion schemes outlined above, notwithstanding

that the threatened loss in one is 1,000-times greater than in the

other.

Although no defendant has previously advanced Edwards’

theory in this circuit, a defendant did make a similar argument

in the Eighth Circuit. The defendant in United States v. Hang

was a public housing official who told people on a waiting list

for public housing “that they would have to pay him money in

order to obtain federally subsidized housing.” 75 F.3d 1275,

1278 (8th Cir. 1996). The district court found that “the benefit

received by [the] victims in return for their payments” to the

official was the difference between the “fair rental value” of the

housing they received and the rent they actually paid under the

federal subsidy program. Id. at 1284. The defendant objected

(as Edwards objects here) on the ground that “each of the

victims was otherwise eligible for public housing.” Id. But the

court of appeals rejected that argument, noting that the official

had told the victims that they would not get the housing if they

did not pay him the bribes. See id.

Finally, Edwards argues that, “even if the government’s

analysis [of the meaning of “benefit”] is proper, its argument

clearly rests on a factual assumption that the record does not
10

support” -- that “Edwards was the final authority on the

abatement matter,” and that Keystone could not have appealed

his corrupt friability determination to his supervisor.

Appellant’s Reply Br. 9. In truth, there are two assumptions

here: the government’s “factual assumption” and Edwards’ own

legal assumption that it matters whether he actually had -- as he

suggested to Keystone -- final authority to require the more

costly containment. See Government’s Supplemental Mem. in

Aid of Sentencing at 4 (citing a tape-recorded conversation

between Elizondo and Edwards, in which, after Elizondo said

that he might appeal Edwards’ friability determination, Edwards

said, “I issue the waiver” (emphasis added)). 

We are not so sure that Edwards’ legal assumption is

correct. Why, after all, should a good bluffer receive a lower

sentence simply because he does not actually hold all the cards?

We need not ponder that cosmic question, however, because the

only evidence in this case is that Edwards did indeed hold all the

cards -- thus validating the government’s “factual assumption.”

Edwards’ supervisor, Leela Sreenivas, testified that she relied

“completely” on her inspectors’ recommendations regarding

asbestos abatements and had never overruled an inspector’s

technical review. Trial Tr. 42 (Apr. 27, 2004). She also said

that “[a]ll the responsibility” for the abatement project at the

waste facility “was assigned to Jeffrey Edwards.” Id. at 62.

This evidence is more than sufficient for a finding that Edwards

had the ultimate authority to determine whether a friable

abatement was necessary.

In sum, the district court committed no error, legal or

otherwise, in concluding that Keystone received a valuable

“benefit,” within the meaning of Guideline § 2C1.1(b)(2)(A),

from the bribe extorted by Edwards. We therefore reject the

defendant’s first challenge to his sentence.
11

B

Edwards’ second challenge targets the district court’s

factual finding that a friable abatement would have cost at least

$100,000 more than a nonfriable abatement. We review this

finding only for clear error. The relevant commentary to the

loss table referenced in § 2C1.1(b)(2)(A) instructs that “[t]he

court need only make a reasonable estimate of the loss,” and

that, because “[t]he sentencing judge is in a unique position to

assess the evidence and estimate the loss based upon that

evidence[,] . . . the court’s loss determination is entitled to

appropriate deference.” U.S.S.G. § 2B1.1 cmt. n.3(C). 

In making its finding, the district court considered the only

two pieces of evidence in the record: Elizondo’s testimony, at

trial, that Edwards had told him the additional cost of a friable

abatement would be about $100,000, see Trial Tr. 34 (Apr. 29,

2004 (AM)); and the trial testimony of P.J. Goel, another

contractor who had bid on the job at the waste transfer facility,

that “the difference between doing [the abatement] friable versus

non-friable . . . was roughly $200,000,” Trial Tr. 86 (Apr. 28,

2004 (PM)). After noting that there were reasons to discount

Goel’s estimate somewhat, the court concluded that “the

preponderance of the evidence does support at least a $100,000

valuation of the benefit.” Sentencing Hr’g Tr. 10; see U.S.S.G.

§ 6A1.3 cmt. (providing that the “use of a preponderance of the

evidence standard is appropriate . . . in resolving disputes

regarding application of the guidelines to the facts of a case”);

Bras, 483 F.3d at 107-08 (confirming that the preponderance of

the evidence standard remains applicable post-Booker). Indeed,

the $100,000 and $200,000 figures represented not just the

“preponderance” of the evidence, but the only evidence before

the court.
12

Edwards raises two challenges to the district court’s

consideration of this evidence. First, he suggests that the court

should not have relied on the $100,000 figure as a basis for

valuing the benefit because it represented “an alleged

extortionist’s less-than-credible effort to encourage payment.”

Appellant’s Br. 29. It is hard to sympathize with this

suggestion, since the extortionist referred to is Edwards himself.

Notwithstanding Edwards’ attack on his own credibility, we do

not think it was error for the district court to consider the

defendant’s own estimate of the cost differential. Cf. FED. R.

EVID. 801(d)(2) (providing that an out-of-court admission by a

party is not hearsay).

Second, Edwards contends that the court should not have

relied on either of the two cost figures because “it is clear

beyond cavil that neither was admitted for the truth.”

Appellant’s Br. 32. The trial transcript, however, does not

indicate that the testimony was admitted on a limited basis. In

any event, there is no need either to cavil or to quibble, since a

sentencing judge “may appropriately conduct an inquiry . . .

largely unlimited either to the kind of information he may

consider, or the source from which it may come.” Bras, 483

F.3d at 108 (internal quotation marks omitted); see U.S.S.G. §

6A1.3. (“[T]he 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.”).

Edwards is certainly correct in suggesting that he had little

incentive to challenge the veracity of the two estimates at trial,

since the cost of the abatement was not relevant to his

culpability. But he is wrong in maintaining that he “was

deprived of a fair opportunity to test the reliability of the friableabatement cost figures upon which the court’s guideline analysis

was based.” Appellant’s Reply Br. 2. Edwards does not
13

contend that the district court barred him from presenting his

own cost evidence (or from calling the government’s trial

witnesses for cross-examination) at the sentencing hearing.

Although a footnote in Edwards’ sentencing memorandum did

request an evidentiary hearing, see Def.’s Mem. in Aid of

Sentencing 14 n.10, Edwards did not renew that request or offer

any such evidence when the court expressly invited him to do so

at the sentencing hearing, see Sentencing Hr’g Tr. 4-5.

Edwards’ appellate brief quotes the prior footnote (without

elaboration) in a footnote of its own. Appellant’s Br. 32 n.12.

But if that footnote-in-a-footnote was intended to raise the issue

on appeal, it is plainly insufficient to do so. See Covad

Commc’ns Co. v. FCC, 450 F.3d 528, 546 (D.C. Cir. 2006)

(citing Sugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d

89, 93 n.3 (D.C. Cir. 2002); Hutchins v. District of Columbia,

188 F.3d 531, 539 n.3 (D.C. Cir. 1999)).

III

For the foregoing reasons, the judgment of the district court

is

Affirmed.