### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-30908

UNITED STATES OF AMERICA, Plaintiff-Appellee
v. MICHAEL ROUSSEL, Defendant-Appellant

Appeal from the United States District Court for the Eastern District of Louisiana

Before JOLLY, JONES, and GRAVES, Circuit Judges. JAMES E. GRAVES, JR., Circuit Judge: Michael Roussel (“Rou s s el”) ap p e al s hi s conviction along with the sentence imposed. For the reasons a rt iculated below, we AFFIRM the conviction, VACATE the sentence, and REMAND for resentencing. FACTS AND PROCEEDINGS I. Procedural History Roussel, a New Orleans Police Department (“NOPD”) Captain and Traffic Division commander, and Joey Branch (“Branch”), a Texas businessman, were indict e d on five counts of wire fraud and one count of conspiracy involving a sche m e to defraud Entergy Services, Inc. (“Entergy”), a New Orleans-based utilities provider. Branch pleaded to conspiracy, entered into a plea agreement U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Janu ary16 , 20 13 Lyle W . Cayce Clerk Case: 11-30908 Document: 00512115568 Page: 1 Date Filed: 01/16/2013No. 11-30908

whereby he agreed to th e s t atutory maximum five-year sentence, and cooperated with the government. Roussel proceeded to trial. At trial, the district court read to the jury the Fifth Circuit Pattern Jury Instruction’s “deliberate ignorance” charge, which 1

r e l a t es to the mens rea required for conviction. The district court also re a d t o the jury a modified version of the circuit’s pattern jury instruction regarding limitations for consideration of “other acts” under Federal Rule of Evidence 404(b). The district court al l o w ed Roussel’s attorney to cross-examine Branch about his sentencing reduction in exch an ge f or c o o p er ating with the government, but limited detailed inquiry into the magnitude of the benefit Branch received. The jury returned a partial verdict, convicting Roussel of conspiracy and two wire fraud counts, acquitting him on one wire fraud count, and remaining undecided on the remaining two wire fraud counts. On September 8, 2011, the district court sentenced Roussel. The court, in determining the advisory range under the United States Sentencing Guidelines (“sentencing guidelines”) § 2C1.1, found that Roussel was a public official and a high-level public official, that more than one bribe was anticipated, and that the reasonably expected benefits from the fraudulent scheme were b e t w e en $1,000,000.01 and $2,500,000.00. This resulted in an offense level of 38 and a

s e n tencing guidelines range of 235-293 months, equivalent to the base offens e level for second degre e m u rder. U.S. Sentencing Guidelines Manual § 2A1.2. The district court, however, determined that the “guidelines themselves came to an unreasonable result,” granted a downward variance, and imposed a 136- month sente n c e—99 months below the bottom of the advisory range. Roussel timely appealed, asserting that the distric t c o u rt committed numerous errors during trial and at sentencing.

This is al sok now n as t he “w illf ul blind nes s” c harge. 1
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II. Facts The conspiracy to defraud Entergy centered arou n d a bribery plan of Roussel and Branch, along with Louis Dabdoub (“Dabdoub”), th e E n t ergy security m a n a g e r who assisted the FBI in the investigation. Roussel, as the NOPD Traffic Division commander, helped coordinate traffic for hurricane evacuations. Branch owned Gladius Inc. (“Gladius”), a Texas company that
provi ded security guards to other companies. Dabdoub, a retired NOPD Captain, was Enter gy’ s s e curity manager. He assisted with hiring security guards for Entergy for natural disasters, including hurricanes. In 2008, Branch, through Gladius, provided armed securi ty guards to Home Depot in New Orleans following Hurricane Gustav. NOPD office r s complained that Gladius’ s gu a r ds did not have proper certifications. A friend put Branch in touch with Roussel, who assisted in solving the problem. Roussel later assisted Branch with other paid details. On June 10, 2010, Branch visited New Orleans and asked Roussel if he knew any big companies willing to work with Gladius. Branch told Roussel that he paid “finder’s fees” to assist Gladius in obtaining contracts. Roussel told Branch he knew Dabdoub, Entergy’s security manager. Branch a s k e d if Dabdoub was a decision-maker, and Roussel allegedly responded, “Yes, but he’s going to want a piece of it.” Roussel later denied making this s t a t e m e n t i n testimony. Roussel then called Dabdoub himself to explain Branch’s operation. During the call, he allegedly told Dabdoub, “man, have I got some m o n e y f o r you.” Roussel later testified tha t h e w a s simply repeating to Dabdoub what Branch had told him. Dabdoub became suspicious of th e plan. In fact, as Roussel’s NOPD commander in 1997, Dabdoub had accused Roussel of tipping off a drug dealer

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about an impending raid and then lying about his whereabouts. Ultimately, the 2 accusation that Roussel had obstructed justice by tipping off the drug dealer was not sustained, though the accusation that he lied about his whe r e ab o u t s was sustained. He was therefore suspended without pay for three days. According to Roussel, this was the only blemish on his record. After Roussel’s call about the Gladius proposal, D abdoub called NOPD Major James Treadaway. Treadaway p assed on the information to the NOPD Superintendent, who c a l l e d the FBI. Dabdoub assisted by acting as a corrupt security manager for Ent e r gy . Dabdoub placed a recorded call to Roussel on June 14, 2010, agreeing to meet Branch. On the call, Roussel said, “[T]here is some money for us.” Branch flew his plane to N e w O rl e ans Lakefront Airport later that day. Roussel, in his NOPD uniform and driving an NOPD vehicle res e rv e d for dignitaries, drove Branch and his associates to Entergy. At the video recorded meeting, Branch and Dabdoub discussed the deal, while Roussel, sitting in the back, listened, texted, and occasionally commented when the conversation was directed to him. He left to use the bathroom when discussions turned to paying Dabdoub, and ret u r ned about a minute-and-a-half later. While he was out,

In that incid ent, a narc oti cs off icer rec eived a call fr om an info rm ant st ating wh ere 2
a kn ow n dr ug dea ler coul d be fou nd. Wh e n p o l ice arrived to app rehe nd the sus pec t, the
sus pec t pos se ss ed no dr ug s . H o w e v e r , he had a pager , wh ich had rec eived a page fr om the NO PD Sixth Di st ric t st atio n’s mai n number at the sam e tim e as or just aft er the info rm ant’ s call wa s plac ed to the off icer

. Though Rous se l wa s not on the narc oti cs squ ad, he late r arrived at the sc ene in hisp ers onal carands pok e b rief ly t o the sus pec t. The NO PD’ s Public Integri ty Bureau had cond uct ed an inves tigat ion into the 1997 mat ter

. The tw o off

icer s involved in the tel epho ne conver sat ion wi th the info rm ant st ated that they saw only Rous se l com e in and out of the roo m wh ile the phon e conver s a tio n wa s occ urring. As partof the inves tigat ion, Dabd oub ques tio ned Rous se l abouthi s wh ere about s at the tim e o f the info rm ant’ s call

. Rouss el deni ed being at the SixthD ist ric t st atio n o n t he day of the call , altho ugh Dabdo ub rem embere d se eing him e arli er that day at the st atio n. Later , Rous se l tol d inves tigat ors that he never sp ok e with Dabdo ub about his wh ere about s on the day of the raid

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Dabdoub and Branch decided Dabdoub’s wife would become employed by Gladius. Roussel was told about this arrangement when he returned. Again in Rous s e l’s presence, Dabdoub and Branch arranged for Entergy to pay Gladius $89.50 per guard p e r h our, which was inflated about $15 over what Gladius needed to make a profit. Branch and Dabdoub discussed dividing the excess $1 5 , a gr e e i ng, after Branch stated, “I have to have my consultant here,” that they and Roussel would split it three ways. Roussel testified at trial that he was “bored” during the meeting, that the talk was above him, and that he “didn’t give it any thou gh t” that the men could be scheming to defraud Entergy. Afterwards, Roussel and Branch had dinner in the French Quarter a n d , according to Branch, talked about early retirement f r o m all the money they would make. On June 16, 2010, Dabdoub placed a r e c o r d e d call to Roussel to request “ go o d faith” money from Branch, to ensure that Branch would not deceive them. Roussel said he would call Branch later that day, but the parties dispute whether or not he ever made the call. On June 20, 2010, Branch called Roussel and Roussel told him about Dabdoub’s request for “good faith” money. This upset Branch. Roussel testified th a t h e suggested Branch take Dabdoub out to dinner to show his “good faith.” Branch testified that he told Roussel he would pay $10,000, but after Roussel said it was too much, Branch said he would pay $1,000. On June 22, 2 0 10, Branch flew back to New Orleans to execute the contract. Roussel, again in his N OPD uniform and driving an NOPD vehicle, drove Bra n c h a nd his associates to Entergy. During the ride, Branch gave Roussel $500. Immediately before the group meeting among Branch, Roussel, 3 Dabdoub, and several Entergy and Gladius staff, the three met privately in

Rous se l tes tif

ied that this wa s m o n e y o we d to him for coo rdinati ng a prior det ail, 3 wh ile Branc h tes tif

ied that this wa s his “good fai th” mo ney to Rous se l for the Ent e r gy dea l. 5 Case: 11-30908 Document: 00512115568 Page: 5 Date Filed: 01/16/2013No. 11-30908

Dabdoub’s of

f ice. In Roussel’s presence, Branch gave Dabdoub an envelope containing the $1,000 in “good faith” m o ney. Branch also gave Dabdoub the paperwork for Gladius to hire Dabdoub’s wife, and the two joked about Dabdoub’s wife being “the best- p a i d secretary” ever. When Dabdoub began to discuss the amount of money the three cou l d make from the deal, Roussel replied, rhetorically, “I don’t even want to know.” The three then returned to the group conference room and the parties signed the fraudulent contract. Afterwards, age n ts arrested Branch and Roussel. When questioned, Roussel stated that the contract would never be carried out be c a u s e Branch would not follow through. DISCUSSION Roussel asserts that the district court committed three errors during trial and four errors during sentencing. Regarding the trial errors, he argues that the district court committed error in: ( 1 ) its issuance of this circuit’s “deliberate ignoran c e” pattern jury instruction; (2) its Federal Rule of Evidence 404(b) i n struction to the jury on “other acts;” and (3) limiting Roussel’s co u n s e l ’ s cross-examination of Branch regarding Branch’s plea agreement, which denied Roussel his constitutional right to confront his accuser. With respect to sentencing, Roussel asserts that the sentencing guidelines enhancements were improper because the district cour t c learly erred in: (1) f i nding that Roussel was a public official and a high-level public official; ( 2 ) finding that more than one bribe occurred; and (3) its calculation of the expected monetary benefit from the fraudulent contract. Additionally, Roussel contends the district court violated the Supreme Court’s ruling in Apprendi v. New Jersey , 530 U.S. 466 (2000), in considering a 30-year statutory maximum sentence when the evidence presented to the jury was only sufficient to convict on a crime with a 20-year maximum. We address each of these claims in order.

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I. Whether the d i s t r i c t court’s issuance of this circuit’s “deliberate ignorance” pattern jury instruction was, even if erroneous and in violation of Supreme Court precedent, harmless error. A. Standard of Review The parties disp u t e th e applicable standard of review. The government argues that Roussel did not “inform the court of the specific objection [to the jury instruction] and the grounds for the objection,” which requires a review o f the district court’s decision to issue the jury instruction and th e content of the instruction for plain error. Fed. R. Crim. P. 30(d). R o u s s e l argues that he properly objected, and that w e “review preserved error in jury instructions under

an abuse of discretion standard and ask whether the court’s charge, as a whole, is a correct statement of the law and whether it clearly instructs jurors as to the principles of the law applicable to the factual issues confronting them.” United States v. Brooks , 681 F.3d 678, 697 (5th Cir. 20 1 2 ) (quotation omitted). Nonetheless, “[a]ny error is subject to harmless error review,” United States v. Mendoza-Medina , 346 F.3d 121, 132 (5th Cir. 2003) (citation omitted), rendering moot the parties’ disagreement regarding the applicable standard of review. B. Analysis Though the deliberate ignorance instruction was improper, the district court’s error was harmless. Roussel argues that the district court’s decision to give the instruction was improper because it lowered the required mens rea , and that the circuit’s pattern instruction is in violation of Supreme Court precedent. The government argues that both the court’s decision to give the in s t r u c t i o n and the language of the instruction were proper. This circuit’s pattern jury instructions state that “ ‘knowingly’

. . . means th a t the act was done voluntarily and intentionally, not because of mistake or accident.” 5th Cir. Pattern Jury Instructio n s : C riminal § 1.37 (2001). If a

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deliberate ignorance instruction is warranted, the judge may continue reading from the pattern instruction as follows: Yo u may find that a defendant had knowledge of a fact if you fi n d that th e defendant deliberately closed his eyes to what would otherwise have been obvious to him. While knowledge on the part of the defendant cannot be established merely by demonstrating that the defendant was negligent, careless, or f o oli s h , knowl e d ge can be inferred if the defendant delib e r a t e ly blinded himself to the existence of a fact. Id. “[A] deliberate ignorance instruction is warranted when a def e n d ant claims a lack of guilty knowledge and the proof at trial supports an inference of deliberate indifference.” Bro o k s, 681 F.3d at 701 (quotation omitted). “The evidence at trial must raise two inferences: (1) the defenda n t w a s s ubjectively

aware of a high probability of the existence of the illegal conduct; and (2) the d e fendant purposely contrived to avoid learning of the illegal conduct.” I d

. (quotation omitted). In Mendoza-Medina, we explained: We have often cautioned against the use of the deliber at e ignorance instruction. Because the instruction p e rmits a jury to convic t a defendant without a finding that the defendant was actually aware of the existence o f i l l egal conduct, the deliberate ignorance instruction poses th e risk that a jury might convict the defendant on a lesser negligence standard—th e d efendant should have been aware of the illegal conduct. Mendoza-Medina , 346 F.3d at 132 (quotation omitted). Last year, we further e l aborated that “[d]eliberate indifference instructions are inappropriate in the usual case, where the evidence presents a simple choice between a version of the facts in which the defendant had actual k n o wledge, and one in which the defendant was no more than neglige n t o r stupid.” United States v. Jones , 664 F.3d 966, 9 7 9 ( 5 th Cir. 2011) (quotation omitted), cert. denied , 132 S. Ct. 2728 (2012).

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Nevertheless, we have “consistentl y h e l d that an error in giving the deliberate ignorance instruction is

. . . harmless where th ere is substantial

e vi d e n ce of actual knowledge.” United States v. Threadgill , 172 F.3d 357, 3 6 9 (5th Cir. 1999) (quotations omitted); accord Jones , 664 F.3d at 979 (holding that
any erroneous issuance of deliberate ignorance jury charge was harmless in that case). In Threadgill , we found that the defendants had actual knowledge of their participa t i o n in a money laundering scheme, and there was thus no need to address whether the deliberate ignorance instruction was properly submitted. Id. “We concede, after reviewing the record, that there is little evidence that the defendants purposefully contrived to av o i d k nowing that their actions were unlawful. In fact, the evid e n c e r e v e als just the opposite, that the defendants knew that their conduct was criminal and took elaborate measures to hide it.” Id. Here, the distri c t c ourt’s issuance of the deliberate ignorance charge, though erroneous, was harmless error. As in Threadgill , there was substantial evidence of Roussel’s actual knowledge of the illegal scheme. The record reflects that, to the extent he attempted to take any exculpatory action s , th e y h a d the
purpose of hiding his involvement in the fraud, not to avoid kno w l e d g e o f it altogether. Roussel was an essential player in the three-way scheme from the beginning. He connected Branch and Dabdoub, facilitated and participated in meetings and telephone calls, shuttled Branch back and forth to those meetings, stayed involved throughout the negotiatio n s of the fraudulent contract, assented to receiving a portion of the kickback, an d a dvi s e d Branch on the amount of “good faith” money that Branch would pay Dabdoub. He also admitted to having at least some knowledge of Branch’s untruthful ways when questioned after his arrest, calling Branch a “bullshit artist.” During the sentencing proceedings, the district court elaborated on the overwhelming evidence against Roussel:

9 Case: 11-30908 Document: 00512115568 Page: 9 Date Filed: 01/16/2013No. 11-30908 The whole crime, basically, was committed on videotape, and I w a tched Mr. Roussel, not only listened to his words but watched his body language, his facial expressions, his conduct o n the videotapes. Although, it is true, he sort of sat back and let Mr. Branch and Mr. Dabdoub d o most of the talki n g , th e re is no doubt in my mind that he was clearly involved, very involved in what they were discussing, very aware of what they were discussing, and his testimony that he didn’t understand, was not aware that they were talking about s omething that was illegal just, frankly, was preposterous to me. To the extent Roussel contends that he was merely a “consultant” and his only interest was to receive a “finder’s fee,” he remained intimately involved in the transaction for a much longer period of time than was necessary or reasonable to maintain such an innocent role. Whether Roussel was bored and texting during the June 14, 2010 meeting at Entergy is not dispositive of his knowledge of, or involvement in, the scheme. Nor is Roussel’s leaving to use the bathroom “alm o s t i m m ediately when discussions turned to paying D ab d o ub , ” Gov’t App. Br. at 8, proof of Roussel’s lack of knowledge (as he claims) or proof that he was acting to deliberately avoid knowledge of the kickback scheme (as the government claims). He was told upon his return that Branch would hire Dabdoub’s wife and that they would split the $15 overpayment three ways. That is substantial k n owledge of the illegal scheme. Therefore, the district court’s issuance o f the deliberate ignorance instruction was erroneous, but the error was harmless. Since we find harmless e rr o r , there is no need to address Roussel’s argument that this circuit’s pattern delib erate ignorance instruction is improper in light of Global-Tech Appliances, Inc. v. SEB S.A. , 1 31 S. Ct. 2060 (2011). Nonetheless, we have already expressly approved continued use of the pattern

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instruction post- Global-Tech. United States v. Brooks , 681 F.3d 678, 702-03 4 ( 5th Cir. 2012) (“although this [Fifth Circuit pattern deliberate ignorance] instruction obviously does not use the same language as Global-Tech , the same meaning is conveyed.”). Therefore, Roussel’s argument is without merit. II. Whether the district cou r t e rred in its Rule 404(b) instruction to the jury on “other acts.” Rule 404(b) reads: ( 1 ) Evidence of a crime, wrong, or other act is not admissible t o prove a person’s character in order to sho w that on a particular occasion the person acted in accordance with the character. (2) This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absen c e of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must: (A) provide reasonable notice of the general nature of a ny such evidence that the prosecutor intends to offer at trial; and ( B) do so before trial—or during trial if the court, for go o d cause, excuses lack of pretrial notice. Fed. R. Evid. 404(b). The evidence at issu e h ere was Dabdoub’s 1997 accusation that Roussel tipped off drug dea l ers about an impending raid and then lied about his whereabouts to cover it up. The NOPD’s Public Integrity Bureau did not sustain the accusation against Roussel for tipping off the drug dealer, but it did sustain the accusation of “untruthfulness” for lying to Dabdoub about his whereabouts that day. Wh a t makes this case different from the typical Rule 404(b) dispute i s that, here, the defense sought to introduce evidence of other acts. During trial, the district court stated that “the government originally offered [evidence of the

In Globa l- T

e c h , the Sup rem e Court cons ide red del iber ate ignora nce in the civil 4 cont ext, s tat ing t hat del iber ate ignora nce requ ires p roo f that : (1) t he def enda nt subject ively belie ved that ther e wa s a high pr obabil ity that a fac t e xist s and (2) the def enda nt too k del iber ate act ion s to avoid lear ning of that fac t. Globa l- Tec h , 131 S. Ct. at 2070 (c itat ions om itt ed)

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1997 NOPD incident] as a 404(b) evidence, and

. . . I was inclined to keep it out of this case completely until the defense injected it into the case for other reasons.” Roussel “marshaled this evidence in support of its theory that Roussel would not have knowingly approached Dabdoub, his dogged prior accuser, with

a solicitation for illegal activity.” Roussel App. Br. at 22. Therefore, a s th e district court correctly recognized, the standard Rule 404(b) jury instruction would need to be modifi e d t o account for the atypical situation and to ensure that the evidence of the 1997 incident would not be used to pr o v e R o u s s e l had a propensity to commit the crimes in the indictment. To the extent the introduction of the evidence was erroneous, the doctrine of invited error applies to this situation; when injection of inadmissible evidence is attributable to the actions of the defense, the d e f e nse cannot later object to such “invited error.” United States v. Raymer , 876 F.2d 383, 388 (5th Cir. 1989) (citing, e.g., United States v. Lemaire , 712 F.2d 944, 948-49 (5th Cir. 1983), cert. denied , 464 U.S. 1012 (1983)), cert. denied 110 S. Ct. 198 (1989). Roussel invited
any erroneous Rule 404(b) instruc t i o n b y injecting the evidence of the 1997 incident into the c a s e . N o w that he has lost this risky bet, he attempts to d e m o n s t r a te that the district court’s instruction was improper all along. On appeal, he asserts a new and inapplicable argument th a t “[t]he other acts—unsubstantiated, fourteen-year-old misconduc t allegations against Mr. Roussel—were dissimilar from the charged offense, were remote in time, and had no proper bearing on Mr. Roussel’s guilt for the charged offense.” Roussel Reply Br. at 23. Indeed, it appears th at h e i s now making a typical 404(b) argument that the evidence should never have been introduced in the first place. Given that he requested the introduction of th e evidence, however, he invited any error in the issuance of the instruction. 5

The governm ent cont ends that Rous se l’s ulti mat e ass ent to the Rule 4 0 4 (b) in struction 5

cons tit utes a wa iver, cit ing Uni ted States v. Jef fe rso n , 432 F. App ’x 382, 387- 88 (5t h Cir. 2011) 12 Case: 11-30908 Document: 00512115568 Page: 12 Date Filed: 01/16/2013No. 11-30908

III. Whether the d i strict court erred in limiting Roussel’s counsel’s crossexamination of Branch regarding Branch’s plea agreement, and, if so, whether that error violated Roussel’s right to confront his accuser. A. Standard of Review A constitutional qu e s t i o n merits de novo review. See United States v. Asibor , 109 F.3d 1023, 1037 (5th Cir. 1997). Once the Confrontation Clause of the Sixth Amendment has been satisfied, limitation of cross-examination is reviewed for abuse of discretion. United States v. Davis , 393 F.3d 540, 548 (5th Cir. 2004). 6 B. Analysis Reviewing the constitutional question de novo , th ere was no violation of Roussel’s Sixth Amendment right to confront his a c c u s er. Beyond that, reviewing the limitation of Roussel’s counsel’s cross-examination of Branch for any other impropriety, the district court did not abuse its discretion. 7 Roussel argues that his Sixth Amendment right to confr o n t his accuser

was violated and that the district court’s limitation on his counsel’s crossexamination of Branch about Branch’s actual exposure under the guidelines was otherwise improper. “While the sco p e o f c ross-examination is within the discretion of the trial judge, this discretionary au th o ri ty comes into play only after there has been permitted as a matter of right sufficient cross-examination

(“The def

ens e couns el’s agree me nt to the ins tru cti ons cons ti t utes a waiver. ”) ). We need not cons ide r this argum ent, how ever, sin ce Rous se l i nvited any err or in the dis tri ct cour t’s ins tru cti on. A g a i n, Rous se l and the governm ent dis agree on the app licable st andar d of revi e w . 6 T h e go v e rnm ent ass ert s that Rous se l did not pr es erve his objec tio n, and that revie w is ther efo re lim ite d to plai n err or. We need not add res s this dis agree me nt beca use , even ass umi ng Rous se l pr es erved his objec tio n, as explained below , the dis tri ct court did not err in lim itin g the cro ss -exam inati on. Aft er Rous se l’s couns el rep eate dly questioned Branch ab out the se nten cing guide lines ’ 7
e f f e c t on the magnitud e of his benef it, the dis tri ct cour t st ated “[w] e’ve beat this h o r s e t o dea th, M r. Ree d. We real ly have

. We ’reno t going i nto se nten cing guide lines .” 13 Case: 11-30908 Document: 00512115568 Page: 13 Date Filed: 01/16/2013No. 11-30908

to satisfy the Sixth Amendment.” United States v. Restivo , 8 F.3d 274, 278 (5th Cir. 1993). The Sixth A m e n d m ent’s Confrontation Clause is violated if “the defendant [c a n] s h o w that a reasonable jury might have had a significantly different impression of the witness’s credibility if defense c o u n s e l had been allowed to pursue the questioning.” Davis , 393 F.3d at 548. In Davis , we ruled that there was no Sixth Amendment violation or abuse of discretion re g a r ding the court’s limitation on cross-examination because defense counsel was able to elicit information on the effect of a plea agreement

on the dismissal of the indictment against the witness. Davis , 393 F.3d at 547- 48. Additionally, in Restivo , we held that there was no Sixth Amendment violation or abuse of discretion regarding th e c o u rt’s limitation on crossexamination because defense co u nsel had elicited sufficient testimony to infer the witness’s bias. Restivo , 8 F.3d at 278. Roussel argues that his counsel was unable to question Branch about Branch’s actual exposure under the guidelines or further benefits that Branch
may receive through h i s c ooperation. Nevertheless, the jury had more than

enou gh inf

or m atio n to infer Branch’s potential bias in testifying against Roussel, including Branch’s maximum statutory penalty on the initial charges (30 years), the government’s agreement to prosecute Branch on only one of the six charges and Branch’s agreement to plead guilty on th a t charge, and the resulting statutory cap on Branch’s sentence (five years). Additionally, the jury had a copy of Branch’s full p l e a a greement. Beyond that, the jury knew that the government could ask for an even lesser se nt e nce depending on the value of Branch’s cooperation. This was more than sufficient t o satisfy the Confrontation Clause, and does not indicate that th e district court abused its discretion by limiting questioning into Branch’s possible exposure under the sent e n c ing guidelines. Given that he had not yet been sentenced at the time of his testimony, Branch’s

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own estimate of his sentence under the sentencing guidelines would have been 8 speculative and confusing to the jury. That the jury knew about a possible 25-year sentencing reduction and Branch’s plea to only one of six counts in exchange for his cooperation was more than enough information to infer Branch’s bias a s a witness, and, therefore, there was no Confrontation Clause violation nor abuse of discretion in limiting Roussel’s counsel’s cross-examination. IV. Whether the district court clearly erred in finding Roussel was a public official and a high-level public official for the purposes of the sentencin g guidelines enhancements. A. Standard of Review We review purely legal conclusions or interpretations of the meaning of a sentencing guideline de novo , and review the tria l c o u rt ’s findings of fact for clear error. United States v. Mann , 493 F.3d 484, 492 ( 5 th Cir. 2007). Clear

error exists if we are left with a definite and firm conviction that a mistake has been made. United States v. Griffin , 324 F.3d 330, 365 (5th Cir. 2003). We may affirm the district court’s judgment on any basis supported by the record. United States v. Le , 512 F.3d 128, 134 (5th Cir. 200 7) (quotation omitted). B. Analysis The district court did not err in applying sentencing enhancements based

on its findings that Roussel was a public official, and a high-level public official or a public official in a sensitive position. Section 2C1.1(a) of the sentencing guidelines requires a base offense level of 14 “if the defendant was a public official.” Otherwise, the base offense level is 12. Id. The commentary to the section, in relevant part, defines “public official” as:

In any cas e, the se nten cing guide lines are advis ory only. Uni ted States v. Booke r , 543 8 U. S. 220 , 246, 259 -60 (200 5). 15 Case: 11-30908 Document: 00512115568 Page: 15 Date Filed: 01/16/2013No. 11-30908

(C) An officer or employee or person acti n g for or on behalf of a state or local government, or any department, agency, or branch of government thereof, in any function, under or by authority of such department, agency, or branch of government, or a juror in a state or local trial. * * * (E) An individual who, although not otherwise covered by subdivisions (A) through (D): (i) is in a position of public trust with official responsibility for carryi n g out a government program or policy; (ii) acts under color of law or official right; or (iii) participates so substantially in government operations as to possess de facto authority to make governmental decisions . . . . U.S. Sentencing Guidelines Manual § 2C1.1 cmt. n.1. 9 Addition a l ly, § 2C1.1(b)(3) requires that “[i]f the offense involved an elec t e d p ublic official or any public official in a high-level decision-making or sensitive position, increase by 4 levels.” The commentary to the section defines

a “high-level decision-making or sensitive position” as “a position characterized by a direct authority to make decisions for, or on behalf o f, a government department, agency, or other government entity, or by a substantial influence

over the decision-making process.” U.S. Sentencing Guidelines Manual § 2C1.1 cmt. n.4. It provides examples of a public official in a high-level decision-making position, “includ[ing] a prosecuting attorney, a judge, an agency administrator, and any other p ub l i c official with a similar level of authority.” Id. “Examples of a public official who holds a sens i tive position include a juror, a law enforcement of

f icer , an election official, and any other similarly situated individual.” Id. (emphasis added). Roussel argues that the district court erred in applying the § 2C1.1(a) “public official” enhancement because he was not “acting for or on behalf of” the

“[ C]om me ntary in the Gu ide lines Manual that inte rp ret s or expla ins a guide line is 9 autho rit ative unles s it violat est he Cons tit utio n o r a f ede ral st atut e, or is inco nsi st ent wi th, or a plai nly err o n e o u s r e adin g of, that guide line. ” Stinso n v. Uni ted States , 508 U. S. 36, 38 (199 3). 16 Case: 11-30908 Document: 00512115568 Page: 16 Date Filed: 01/16/2013No. 11-30908

NOPD at the specific times he engaged in the crimin a l a c t ivity. He further argues that his wearing his Captain’s uniform and use of his police vehicle while off duty to chauffe u r Branch were not indicative of his acting in an official capacity, and that “his position provided him with no special access to Dabdoub,

w h o w a s an acquaintance from high school and no longer employed by the NO P D

. ” R oussel App. Br. at 32-33. Despite this, the district court found that he was acting in his offici a l capacity or under the authority of his office at the time the crimes were committed. Irrespective of whether Roussel was acting for the NOPD at the time of the criminal activity, he was “in a position of public trust with official responsibility for carrying out a government program or policy,” U.S. Sentencing Gui d e l ines Manual § 2C1.1 cmt. n.1(E), and was therefore a “public official” for the purposes

o f t he sentencing guidelines. He was the commander of the NOPD’s Traff i c Division, responsible for the incredibly important job of coordinating hurricane evacuations. This was clearly a position of public trust. Therefore, as we may affirm a district court’s decision on any basis supported by the reco r d , L e , 5 12 F.3d at 134, the “public official” sentenci n g e nhancement was not clearly

erroneous. The four-level sentencing enhancement based on Roussel’s high-level or sensitive position was also appropriate. Th e c ommentary to § 2C1.1(b)(3) explicitly identifies a police officer as a person holding a sensitive position. U.S. Sentencing Guidelines Manual § 2C1.1 cmt. n.4(B). Additionally, as a Captain in the NOPD, Roussel was clearly in a high-level position. Roussel argues that the four-point “high-level or s e nsitive position” sentencing enhancement was improper because he “was n o t th e subject of the bribe and his official role was not compromised.” Roussel App. Br. at 36 (citing United States v. Barraza , 655 F.3d 375, 384 (5th Cir. 2011) (“The commentary explains that the four-level enhancement should be applied ‘if the payment was

17 Case: 11-30908 Document: 00512115568 Page: 17 Date Filed: 01/16/2013No. 11-30908

for the purpose of influencing an official act by certain officials.’ ”) (quoting U.S. S e nt e ncin g Gui delin es Manual § 2C1.1 cmt. background) (erro ne ou s ly attrib ut e d to U.S. Sentencing Guidelines Manual § 1B1

. 1 cmt. background) , cert. denied , 132 S. Ct. 1590 (2012)). Roussel deduces from this that the f o u r - l e v el enhancement is precluded in any other situation. In 2004, the sentencing guidelines were amended by removing language requiring an eight-level enhancement where “the offense involved a payment for the purpose of influencing an elected official or any official holding a high-level decision-making or sensitive position.” See U.S. Sentencing Guidelines Manual
app. C, amend. 666.12. Following Amendment 666, this language is no longer part of the guidelines, though it remains as an instructive example in the background to the commentary. Instead, § 2C1.1(b)( 3 ) was implemented to 1 0 apply a four-level increase when “the offense involves an elected public official

or any public official in a high-level decision-making or sensitive position.” The amendment demonstrates an intention to expand the reach of the four-level enhancement beyond public officials that receive direct payment bribes to influence their official actions. Furthermore, Roussel’s reliance on Barraza a n d other cases is unpersuasive, as the courts there were merely applyi ng the sentencing enhancement based on the particular facts of those cases. This does not in any way suggest that the “high-level or sensitive position” enhancement is improper in any other situations. 1 1

As the dis tri ct court st ated during the se nten cing pr oce edi ngs, the back grou n d i s 10 “ill ust rat ive of exam ple s of wh at they m ean, but it doe sn’ t say that ’s the only way thi s cou ld fit

. It s a y s , ‘[i]t app lies to a per so n wh o off ers or gives a bribe for a cor rup t pur pos e,’ wh ich cer tainl y ap pli eshe re. ”

“[A] guide line for the off ens e mus t be des igned to c o v er diver se sit uatio ns. ” U. S. 1 1 Sent enci ng G uide lines M anual § 2 C1.1 cm t. bac kgr ound

. 18 Case: 11-30908 Document: 00512115568 Page: 18 Date Filed: 01/16/2013No. 11-30908

Though he states early in his o p ening brief that he will not argue this, Roussel also asserts in his reply brief that Roussel should not receive the fourlevel sentencing guidelines enhancement because Branch did not. He posits that, since the guideline s re quire a f our - level e nh ancement for crimes “involving”

a high-level o r s e n sitive position, Branch should have also received the enhancement. Roussel Reply Br. at 4. Branch’s lesser sentence, however, does not assist Roussel because “a mere disparity of sentences among co-defendants does not, alone, constitute an abuse of discretion.” United States v. Ochoa , 667 F.3d 643, 651 (5th Cir. 2012) (finding no abuse of discretion for sentencing one defendant to 235 months and governm e n t c ooperator to three years). In any case, Roussel may h av e been more deserving of the enhancement because “offenders who abuse their positions of public trust are inherently more culpable than those who seek to corrupt them

. . . .” U.S. Sentencing Guidelines Manual app. C, amend. 666, reason for amendment. For all the reasons stated above, the district court did not clearly err in applying either th e “p ub l ic official” sentencing guidelines enhancement or the “high-level or sensitive position” enhancement to Roussel. V. Whether the district court clearly erred in finding th a t m o re t han one bribe occurred, meriting a sentencing guidelinesenhancement. A. Standard of Review Again, we review purely legal conclusions or i n t erpretations of the meaning of a sentencing guideline de novo , and review the trial court’s findings of fact—including the relevant conduct for determining whether more than one bribe occurred—for cle a r e rror. See United States v. Mann , 493 F.3d 484, 492 (5th Cir. 2007) (citation omitted) (det ermining there was no clear error in district court’s finding more than one act of extortion); United States v. Griffin , 324 F.3d 330, 365 (5th Cir. 2003) (citation and internal quotation marks omitted) (holding that district cour t c l e a rly e rred in finding more than one bribe). Clear error

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exists if we are left with a definite and firm conviction that a mistake has been made. Griffin , 324 F.3d at 365 (citation omitted). B. Analysis The district court clearly erred in finding that more than one bribe occurred, and the two-level enhancement under § 2C1.1(b)(1) of the sentencing guidelines was therefore improper. The guidelines’ commentary states that [s]ubsection (b)(1) provides an adjustment for offenses involving more than one inciden t o f either bribery or extortion. Related payments that, in essence, constitute a single incident of bribery or extortion (e.g. , a n umber of installment payments for a single action) are to be treated as a single bribe or extortion , e v e n if charged in separate counts. U.S. Sentencing Guidelines Manual § 2C1.1 cmt. n.2. “The ‘offense’ referred to in section 2C1.1(b ) ( 1) includes ‘the offense of conviction and all relevant conduct under § 1B1.3 (Relevant Conduct) unless a different meaning is specified or is otherwise clear from the context. ’ ” Mann , 4 9 3 F.3d at 497 ( 5th Cir. 2007) ( quoting U.S. Sentencing Guidelines Manual § 1B1.1 cmt. n.1) (affirming dist ri c t c ourt’s application of two-level sentencing guidelines e nh ancement based on the commission of more than one act of extortion). “Relevant conduct includes offens e s th a t are part of the same

1 2

course of conduct or common scheme or plan a s th e offense of conviction.” Id.

§ 1B1.3 def

ines , in mat eria l p a r t , t h e “r elevant cond uct” to be cons ide red in 1 2 det erm ining the guide lines r ange as fol low s: (A) all act s and om iss ions com mi tte d, aide d, abet ted , couns eled , c o m m ande d, indu ced , pr ocur ed, orw illf ully caus ed by t he def enda nt; and (B) in the cas e of a joint ly unde rta ke n cri mi nal act ivity (a c r i m i n a l p l an, sc hem e, ende avor, or en t e r p ris e unde rta ke n by the def enda nt in conc ert wi th othe rs , wh ethe r or not char ged as a cons pir acy) , all reas onably for es eeabl e act s and om iss ions of othe rs in fur ther ance of the joint ly unde rta ke n cri mi nal act ivity, that occ urr ed durin g t h e c om mi ss ion of the off ens e of convic tio n, in pr epa rat ion for that off ens e, or in the cour se of att em pt ing to avoid det ect ion or res pons ibili ty fort hat off ens e. U. S. S ente ncing Gu ide lines M anual § 1 B1.3( a)( 1). 20 Case: 11-30908 Document: 00512115568 Page: 20 Date Filed: 01/16/2013No. 11-30908

(quotation omitted). “A district court’s determina t ion of what constitutes relevant conduct is reviewed for clear error.” Id

. During the sentencing proceedings, the district court found that: [w]hat was intended was a series of actions over a period of time. This contract was to continue for some period of time in the future

. . . . It could not be anticipated exactly when they would occur, but whenever there would be a presidentially declared natural catastrophe or emergency and Entergy would be r e quired to immediately beef up its security force, then

. . . Gladius, would be called upon to supply security officers,

. . . but in any event, it seems to me that that is very different from a one-time agreement to pay a bribe that is then just paid over in installments. This was going to be a series of actions. Effectively another bribe to be paid every time there was another event that occurred. Roussel requests that we adopt the Second Circuit’s test for determining whether more than one bribe took place. In United States v. Arshad , 239 F.3d 276, 280-82 (2d Cir. 2001), the Second Circuit announced three factors to determine whether mul t iple bribes occurred for the purposes of the two-level sentencing guidelines enhancement: (1) whether the payments wer e made to influence a “single action;” (2) whether the pattern and amount of payments bear the hallmarks of installment payments, such as a regular schedule of payments

o ver a finite period of time toward a fixed final sum, rather than a s e ri e s o f intermittent and varied bribes; and (3) whether the metho d f o r m aking each payment remains the same. Ars h a d , 239 F.3d at 280-82. At least one other circuit has applied the Arshad factors to find that multiple bribes took place. See United States v. Weaver , 175 F. App’x 506, 509-11 (3d Cir. 20 06). Roussel, applying the Arshad factors, asserts that the bribe intended for Louis Dabdoub was: (1) to influence a single action, the confection o f the fraudulent Entergy contra c t; (2) for a fixed amount of the fraudulent Entergy contract with Gladius ($4.83 out of every $89.50, or approximately 5% of all f u ture security needs), a hallmark of installment payments; and (3) to b e

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consistently paid to Dabdoub’s wife as compensation for her sham employment

w i th G l adius. Roussel Reply Br. at 9. Roussel also argues the consistentl y immaterial point that, since Branch did not receive the enhancement, Roussel should not have either. We need not address the Arshad f a c t o r s t o come to the conclusion that Roussel was not involved with the payment of more than one bribe. Simply put, the government proved the payment of only one bribe—the $1,000 “good faith”
money to Dabdoub. The r est was all speculative. The defendant in Arshad , a contractor who bribed a state building inspector for overlooking defective work,
p aid the inspector at least four separate times. Arshad , 239 F.3d at 2 7 8

. T h e defendant in Weaver , a public school employee who received kickbacks under a contract for laptop computers, received thirteen differen t bribe payments. Weaver , 175 F. App’x at 510. § 1B1.3(a)(1) of the sentencing guidelines lists all “relevant conduct” in the past tense. The government does not cite a single case

wh ere unknown p o s sib l e future payments were included in determining wh eth er

more than one bribe occurred. Moreover, the district court seemed to improperly characterize the contract as having an indefinite duration with an indefinite number of future bribe payments; in fact, it was only a one-year contract, lasting from June 16, 2010 until June 15, 2011. It is indeed illustrative to note that, as

a result of the speculative nature of the payments, the United States Probation Office recommended a sentence for Roussel of 96 months—40 months below the sentence imposed. See Sentencing Recommendation, 1-2. In sum, we are firmly convinced that the district court erred in finding more th a n one bribe, and it should have therefore declined to apply the corresponding two-level sentencing guidelines enhancement. VI. Whether the district court clearly erred in its expe cted benefit calculation. A. Standard of Review

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Again, we review purely legal conclusions or interpre t a t ions of the meaning of a sentencing guideline de novo , and review the trial court’s findings of fact—including benefit calculations—for clear error. See Griffin , 324 F.3d at 365 (holding that district court clearly erred i n its benefit calculation for the
purposes of the sentencing guidelines enhancement). Clear error exists if we are left with a definite and firm conviction that a mistake has been made. Id

. B. Analysis For virtually the same reasons articulated with respect to th e multiple bribes enhancement, we find that the district court clearly erred in its calculation of the fraudulent contract’s expected benefit to Roussel, Branch, and Dabdoub. The sentencing guidelines state: If the value of the payment, the benefit received or to be received in return for the payment, the value of anything obtai n e d o r to be obtained by a public official or others acting with a public official, or the loss to the government from the offense, whichever is greatest, exceeded $5,000, increase by the number of levels from the table in § 2B1.1 (Theft, Property Destruction, and Fraud) corresponding to that amount. U.S. Sentencing Guidelines Manual § 2C1.1(b)(2). The guidelines require a 12- level increase for expected b e n e f i ts to Roussel, Branch, and Dabdoub between $200,000.01 and $400,000.00, and a 16-level increa s e for expected benefits between $1,000,000.01 and $2,500,000.00. U.S. Sentencing Guidelines Manual § 2B1.1(b)(1). “[T]he loss need not be determined with precision. T h e c o u rt need only make a reasonable estim a t e o f the loss, given the available information. Further,

. . . if an intended loss that the defendant was attempting to inflict can be determin e d , this figure will be used if it is greater than the actual loss.” United States v. Ismoila , 100 F.3d 380, 396 (5th Cir. 1996) ( e m p h a s is added) (quotation omitted) (holding that the intended loss was greater than the actual

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l o s s , a nd therefore the district court’s sentencing determination based on the intended loss was correct); see also United States v. Chappell , 6 F.3d 1095, 1101 (5th Cir.1993) (quotation omitted). 1 3 The district court applied a 16-level enhancemen t based on the presentence investigation rep o rt’s recommendation of estimated benefits to Branch, Roussel, and Dab d o ub f rom the fraudulent overpayment of between $1,000,000.01 and $2,500,000.00. The enh ancement was based on Entergy’s payments during the 2008 hurricane season, which included Hurricanes Ike and Gustav, two abnormally costly storms. Roussel first contends that the district court erred because there was no actual benefit, as the entire deal was fraudulent. Nonetheless, recognizing that the guidelines also require contemplation of benefits to be received , Roussel

ar gu e s that to calculate the expected benefits, the district court should have use d Entergy’s actual applicable security needs for the one year the fraudulent contract was supposed to be in place, from June 16, 2010 until June 15, 2011. Based on that year, which had no hurricanes and only one incident in the form of the Mississipp i f

l o o d s , the benefit to Roussel, Branch, and Dabdoub would have only been $231,570.00. This would have only merited a 12

- l e vel enhancement, a four-level difference from the level applied by the district court. In applying the guidelines enhancement, the district court observed that there is a reasonable basis to conclude that from all of the evidence, not only the evide n c e o f what Entergy had, in fact, spent in other similar events but also the testimony and the discussions among the participants themselves as to what they anticipated being able to receive from this scheme. They all talked about ret i ring in 2 or 3

For our analys is in this cas e only, we use “ben efi t” i n t e r c h a n geably wi th “lo ss ” 1 3 beca use they are the sam e amo unt here ; the so le dis tinc tio n is wh ethe r th e s p e a k e r is the objec t or subject of the bribe (i. e. Enter gy’s “los s” wo uld have been Rous se l/Br anch/Dabdo ub’s “ben efit”)

. In othe r cas es , how ever, be nef it and los s may not be the sam e a mo unt. 24 Case: 11-30908 Document: 00512115568 Page: 24 Date Filed: 01/16/2013No. 11-30908

years, one or two big storms which would a l low them to retire comfortably; so, they were talking about substantial sums of money. W e f ind the district court clearly erred in its calculation of the expect e d benefit. It is true that r ecent hurricanes were discussed during negotiations, and Roussel and Branch considered those storms—and the costs associated with them—as exemplars of what was to come. See United States v. John , 597 F.3d 263, 279 (5th Cir. 2010) (“In ascertaining the intended loss, the district court must determine the defendant’s actual intent

. ”)

. No n eth el e s s , th e di s trict court’s calculation of expected benefit was purely speculative. There was no reasonable est i m a t e o f the “intended loss that the defendant was attempting to inflict.” Ismoila , 100 F.3d at 396. This case is distinguished from our holding in Griffin , in which the district court was present e d w i th a set of known amounts of profits from various land deals allegedly resulting from a bribery scheme, and simply erred by including certain amounts that it s h o u l d not have included in calculating the expected benefit from th e s c h eme. This case is also distinguished from our holding in Ismoila , in which we found that “[t]he intended loss consisted of credit card charges of $85,203 and $6,200 that were attempted at [two stores]—charges that the credit card companies declined to process.” Ismoila , 100 F.3d at 396. Again, those were known amounts upon which the district court could concretely base its calculation. Here, on the other hand, the district court arbitrarily based its calculation on the previous hurricane season, which happened to be one of the costliest in United States history. That arbitrariness is reflected in the district court’s justification for the larger enhancement bec au s e “th ey w ere t alking about substantial sums of money.” “Substantial sums,” however, cannot constitute an estimate of an intended benefit for the purposes of the sentencing guidelines enhancement.

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There was a more accurate a nd straightforward way to estimate the expected benefit. We agree with Roussel that the sounder method would have been to cal c u l ate the benefit that Roussel, Branch, and Dabdoub would have actually obtained during the contract’s duration—$231,570. 0 0

. This method comports with the sente ncin g guidelines and our holdings in Griffin and Ismoila

. Our conclusion is further supported by the Uni t ed States Probation Office’s sentencing recommendation, which suggested a downward variance to Roussel’s sentence because of the “speculative nature of the potential gain” and the f a ct that “there was no actual loss in the instant offense.” Senten c i n g Recommendation at 1-2. We are firmly convinced that the district c o urt erred in its calculation of the expected benefit, and that the correct amount would have called for only a 12-level sentencing guidelines enhanc e m e nt an d not th e 16-level enhancement imposed. VII. Whether the district court’s consideration of a 30-year statutory maximum sentence constituted an Apprendiviolation. A. Standard of Review “The applicability of Apprendi to this case i s a qu e s t ion of law that we review de novo ,” subject to harmless error analysis. United States v. Matthews , 312 F.3d 652, 661, 665 (5th Cir. 2002). B. Analysis The Supr e m e C ourt has held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and p r oved beyond a

r e asonable doubt.” Apprendi v. New Jersey , 530 U.S. 466, 490 (200 0)

. Nevertheless, “the Supreme Court’s decision in Apprendi does not effect [sic] [a defendant’s] term of imprisonment [when] it does not e x c e ed the statutory maximum authorized by the jury’s findings.” United States v. Doggett , 230 F.3d 160, 165 (5th Cir. 2000) (citing United States v. Meshack , 225 F.3d 556, 575-76

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(5th Cir.2000)) ( a ffirming sentence because it was not greater than statutory maximum for crimes charged to jury and proved beyond a reasonable doubt). 18 U.S.C. § 1343, pursuant to which Roussel was charged, provides a 20- year maximum sentence for wire fraud but increases the maximum sentence to 30 years where the “vi o l a t i o n occurs in relation to, or involving any benefit authorized, transported, transmitted, transferred, disbursed, or paid in connection with, a presidentially declared major disaster or emergency . . . .” Roussel contends that no evidence was presented at trial supporting the assertion that Entergy would receive federal funds to subsidiz e i ts future

s e c u rity needs, though he acknowledges that evidence at trial showed that Entergy received federal funds for Hurricane Katrina-related needs. He argues that, for the offense level of 38 that the district court imposed, the upper end of the sentencing guidelines range was 293 months—almost four-and-a-half years

more than the correct 20-year statutory maxim u m . The government does not contest Roussel’s assertion, but insists that any Apprendi error was harmless because Roussel’s 136-month sentence was less than 20 years. While the district court’s consideration at sentencing of the 30-year

s t atutory maximum instead of the 20-year maximum was improper, i t w a s harmless because Roussel’s proper offense level was 32, meriting a sentencing guidelines range of 121-151 months. The correct guidelines range is well below the 20-year statutory maximum for wire fraud not connected to a presidentially declared major disaster or emergency. See Doggett , 230 F.3d at 165. VIII. Whether the district court’s 9 9

- m o n t h downward variance renders its sentencing guidelines errors harmle ss. The district court’s granting o f a 99-month downward variance from the lowest point o f th e a pplicable sentencing guidelines range because the “guidelines themselves came to an unreasonable result” does not rend er harmless the court’s starting f r o m an incorrect sentencing guidelines range.

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“The Supreme Court has held that, if ‘the distri ct court misapplied the [g]uidelines, a remand is appropriate unless the reviewing court concludes, on the record as a whole,

. . . that the error did not af f ect the district court’s selection of the sentence imposed.” United States v. Waskom , 179 F.3d 303, 312 (5th Cir. 1999) (quoting Williams v. United States , 503 U.S. 193, 203 (1992)). We do not conclude that, on the record as a whole, the district court’s error did not affect its selection of the sentence imposed. I n Waksom , we held that “[a]lthough Waskom’s sentence falls be l o w th e

c o rrected guideline range [because of the sentencing judge’s significa n t downward departure], we cannot conclude that the [sentencing guidelines] error

was harmless.” Id. at 312. “We cannot di s c e r n from the record whether the sentencing judge would have imposed the same sentence had he been departing fro m th e range set by an offense level of thirty-two, instead of thirty-five.” Id. (citing United States v. Bush , 70 F.3d 557, 560 n.3 (10th Cir.1 995) (ruling that

an error in calculating the base offense level was not harmless because it might hav e a ffected the extent of the downward departure that had resulted in a sentence falling below the corrected sentencing range)). Similarly, here the record does not reflect whether the district court would h ave imposed a 136-month sentence had it departed from the 121-151 m o n th range for an offense level of 32, instead of the 235-293-month range for an offense level of 38. While 136 months is the midpoint of the correct r a n ge, we cannot assume the district court would not have granted a variance from th e correct range because of the speculative nature of the fraudulent contract, or for
any other reason. Th eref ore , th e s e nt e ncin g gui delin e s enhancement errors were not harmless, and we remand the case to the district court for resentencing. CONCLUSION For the foregoing reasons, we AFFIRM the conviction, VACATE the sentence, and REMAND for resentencing.

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