FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 August 5, 2005 

 THOMAS K. KAHN 

 CLERK

 Honorable Arthur L. Alarcon, United States Circuit Judge for the Ninth Circuit, sitting *

by designation.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-10150

________________________

D. C. Docket No. 04-00007-CR-HL-7

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

ROBERT B. ELLIS, JR., 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Georgia

_________________________

(August 5, 2005)

Before TJOFLAT, PRYOR and ALARCON , Circuit Judges. *

TJOFLAT, Circuit Judge:
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On July 21, 2005, we vacated the defendant’s sentence, remanded the case

for resentencing pursuant to United States v. Booker, 543 U.S. __, 125 S. Ct. 738,

160 L. Ed. 2d 621 (2005), and admitted the defendant to bail on the conditions on

which he was admitted prior to sentencing. United States v. Ellis, 2005 WL

1705008 (11th Cir. July 21, 2005). We now explain the basis of that order.

Defendant Robert B. Ellis, Jr., is the former District Attorney for the

Alapaha Judicial Circuit in Georgia. On April 14, 2004, Ellis was indicted in the

United States District Court for the Middle District of Georgia, on three counts of

civil rights violations, 18 U.S.C. § 242, and one count of witness tampering, 18

U.S.C. § 1512(b)(3). The indictment alleged that on three different occasions

between July 2003 and February 2004, while acting under color of law, Ellis

deprived Jody Manning, a defendant in a then-pending criminal case in his judicial

circuit, of her due process right to bodily integrity—twice by “causing her to

engage in sexual acts, resulting in bodily injury to her,” and once by touching her

breasts. The indictment further alleged that Ellis “corruptly persuade[d] and

engage[d] in misleading conduct toward Jody Manning by telling [her] that he

would prefer that she not talk to [the FBI], with the intent to hinder or prevent” the

FBI’s investigation of him. On May 25, 2004, a superseding indictment added a

single count of making a false statement to a federal agent, 18 U.S.C. § 1001,
 The superseding indictment also amended two of the original counts to allege

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specifically that Ellis caused Manning to engage in sexual acts “by using force against her.”

These changes responded to a motion to dismiss filed by Ellis, in which he contended that the

corresponding counts in the original indictment did not state offenses because they did not allege

that his sexual contact with Manning was either forcible or not consensual. A second

superseding indictment, filed on June 23, 2004, included no significant substantive revisions. 

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which alleged that on February 24, 2004, when asked by an FBI agent whether he

had ever had sex with a woman with past or pending criminal charges in his

judicial circuit, Ellis falsely answered, “No.” 

1

Although Ellis maintained that his relationship with Manning was purely

consensual, on August 31, 2004, he pled guilty to making a false statement to the

FBI in violation of 18 U.S.C. § 1001. In exchange, the Government dismissed the

remaining charges against him. The base offense level for the offense to which

Ellis pled guilty was six, U.S.S.G. § 2B1.1, and Ellis’s criminal history category

was I, yielding a guideline range of 0-6 months’ imprisonment. At the sentencing

hearing, however, the district court departed upward nine offense levels under

guideline section 5K2.7, which provides that “[i]f 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.” The basis for

the departure was the court’s determination that “a local court postponed

prosecuting criminal cases in order to assess the impact and repercussions and
 Ellis’s offense level was also increased two levels for obstruction of justice, U.S.S.G. § 2

3C1.1, based on the conduct alleged in the witness tampering account of the original and

superseding indictments, but this increase was offset by a two-level decrease for acceptance of

responsibility, U.S.S.G. § 3E1.1(a).

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ramifications of [Ellis’s] conduct and acts,” and that “the integrity of the Alapaha

Judicial Circuit district attorney’s office and the public perception of the criminal

justice system were adversely affected.” With a total offense level of 15, Ellis’s

guideline range increased to 18-24 months’ imprisonment, and the court imposed a

sentence of eighteen months. As of our July 21 order, Ellis had served slightly 2

more than eight months of that sentence. Ellis’s appeal challenged only the

upward departure under section 5K2.7.

The error in the district court’s reasoning is clear: Ellis’s false statement to

the FBI did not actually disrupt any governmental function. An upward departure

under section 5K2.7 is not “ordinarily . . . justified” when, as here, “the offense of

conviction is an offense such as bribery or obstruction of justice” because “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.” U.S.S.G. § 5K2.7. The Government concedes

that Ellis did not disrupt the FBI’s investigation in the least—indeed, the agents

knew that Ellis was lying when they questioned him—but it argues that an upward
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departure is appropriate because Ellis’s false statement disrupted the local criminal

docket and undermined the public perception of the criminal justice system in

general and the integrity of his office in particular. In other words, the collateral

consequences of Ellis’s false statement constitute unusual circumstances justifying

an upward departure.

While the Government’s theory is plausible as a general matter, it breaks

down on the facts of this case, for it is clear from the record that any delay in the

disposition of criminal cases in Ellis’s circuit and any disgrace Ellis brought to his

office or the criminal justice system are the result of Ellis’s conduct toward

Manning—whether consented to or not—and his subsequent indictment, not his

false statement. To be sure, there was credible testimony supporting both sorts of

“disruption of a governmental function,” but the only reasonable inference is that

these disruptions were caused by the allegations of sexual misconduct in the April

14 indictment. 

The local court “postponed prosecuting criminal cases in order to assess the

impact and repercussions and ramifications of [Ellis’s] conduct and acts” as soon

as the April 14 indictment, which did not even include the false statement count,

became public. Thus, Ellis’s false statement was logically irrelevant to this

“disruption”; indeed, once Ellis was indicted, it did not matter what he said,
 For example, at the sentencing hearing, the interim district attorney who was appointed 3

to replace Ellis testified that “a lot of people [he] met . . . would make jokes like . . . how many

girlfriends you got, or who all are you sleeping with.” But there is no evidence or reason to

believe that Ellis’s false statement further undermined respect for the district attorney’s office or

the criminal justice system.

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whether he pled guilty or stood trial, or even whether he was ultimately acquitted.

The same is true with respect to the integrity and public perception of the

district attorney’s office and the criminal justice system. The cause of this loss in

public confidence was clearly Ellis’s indictment and subsequent admission to what

was, at best, a consensual sexual relationship with a criminal defendant in a case

pending in his judicial circuit. It defies common sense, as well as the testimony at

the sentencing hearing, to suggest that the incremental harm, if any, caused by his

false statement was more than de minimis.3

The Government’s argument relies primarily on two cases. At oral

argument, the Government said that United States v. Magluta, 198 F.3d 1265 (11th

Cir. 1999), was its “best case.” The relevant portion of that opinion, however, was

subsequently vacated, 203 F.3d 1304 (11th Cir. 2000), and vacated opinions “are

officially gone. They have no legal effect whatever. They are void. [They have

no] remaining force and cannot be considered to express the view of this Court.” 

United States v. Sigma Int’l, Inc., 300 F.3d 1278, 1280 (11th Cir. 2002). 

Accordingly, we do not address Magluta.
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The Government’s second case is United States v. Gunby, 112 F.3d 1493

(11th Cir. 1997). In Gunby, the Chief Magistrate Judge for Baldwin County,

Georgia, embezzled more than $400,000 in filing fees paid into his court and

eventually pled guilty to mail fraud and tax fraud counts stemming from that

scheme. Id. at 1496-98. In affirming an upward departure under section 5K2.7,

we reasoned that “[i]f Gunby’s fraudulent schemes caused the people of Baldwin

County to doubt the impartiality of the magistrate court, then Gunby . . .

significantly disrupted a governmental function,” and “[t]he district court did not

abuse its discretion in concluding that guideline section 5K2.7 encompasses this

loss of confidence in government.” Id. at 1502-03. Thus, the “loss of confidence

in government” in Gunby was actually attributable to the fraud to which Gunby

pled guilty. Here, in contrast, any disruption was caused by Ellis’s misconduct

toward Manning and the resulting indictment, not Ellis’s false statement. 

Accordingly, Gunby does not support the Government’s position.

Post-Booker, we continue to review the district court’s application of the

Guidelines just as we did pre-Booker: “The district court’s interpretation of the

sentencing guidelines is subject to de novo review on appeal, while its factual

findings must be accepted unless clearly erroneous.” United States v. Jordi, __

F.3d __, 2005 WL 1798055 (11th Cir. Aug. 1, 2005) (quoting United States v.
 Similarly, section 5K2.0(a) provides that “[t]he sentencing court may depart from the 4

applicable guideline range if . . . 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.” U.S.S.G. § 5K2.0(a)(1) (emphasis added). The application notes to

section 5K2.0, in turn, define “circumstance” to “include[], as appropriate, an offender

characteristic or any other offense factor.” U.S.S.G. § 5K2.0 application note 1 (emphasis

added). “[T]herefore, upward departures are allowed for acts of misconduct not resulting in

conviction, as long as those acts, whether or not relevant conduct in the section 1B1.3 sense,

relate meaningfully to the offense of conviction.” United States v. Amirault, 224 F.3d 9, 12 (1st

Cir. 2000) (emphasis added); accord United States v. Neal, 249 F.3d 1251, 1259-1260 (10th Cir.

2001). Thus, even though section 5K2.7 refers to “significant disruption of a governmental

function” that results from “the defendant’s conduct,” it must be understood to encompass only

that conduct that “relate[s] meaningfully to the offense of conviction,” rather than any “conduct”

the defendant may be charged with.

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Pompey, 17 F.3d 351, 353 (11th Cir. 1994)). As we explain above, the district

court clearly erred if it found that Ellis’s false statement caused any significant

disruption of a governmental function. Therefore, the departure cannot be

sustained on that rationale. 

Alternatively, if the district court believed that it could consider the

disruptive effects of Ellis’s indictment and conduct toward Manning, then it

misinterpreted the guideline and erred as a matter of law. A departure under

guideline subpart 5K2 may be based on “conduct underlying a charge dismissed as

part of a plea agreement,” but only to the extent necessary “to reflect the actual

seriousness of the offense.” U.S.S.G. § 5K2.21 (emphasis added). That is, such 4

conduct provides a basis for departure only if it sheds further light on the true

nature of the offense of conviction. An upward departure based on Ellis’s conduct
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toward Manning and his subsequent indictment would do nothing to reflect the

“actual seriousness” of the offense to which he pled guilty; rather, it would reflect

the seriousness of unproven allegations that, at least for sentencing purposes, are

not meaningfully related to his false statement to the FBI. Accordingly, any

collateral consequences of these allegations cannot, as a matter of law, form the

basis of an upward departure under section 5K2.7.

In sum, regardless of its precise rationale, the district court committed

reversible error by enhancing Ellis’s sentence under guideline section 5K2.7. By

our July 21 order, the defendant’s sentence has been vacated and the case

remanded for resentencing pursuant to United States v. Booker, 543 U.S. __, 125

S. Ct. 738, 160 L. Ed. 2d 621 (2005). On remand, “[t]he district court[], while not

bound to apply the Guidelines, must consult those Guidelines and take them into

account when sentencing.” Id. at __, 125 S. Ct. at 767. “[B]ecause true

consultation cannot be based on an erroneous understanding of the Guidelines,”

United States v. Crawford, 407 F.3d 1174, 1183 (11th Cir. 2005), the district must

begin by calculating an advisory guideline range that does not include a section

5K2.7 enhancement. The district may then “tailor the sentence in light of other

statutory concerns as well.” Booker, 543 U.S. at __, 125 S. Ct. at 757.