NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 19-2139

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UNITED STATES OF AMERICA

v.

VAUGHN SPENCER,

Appellant

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(No. 5:17-cr-00391-001)

District Judge: Hon. Juan R. Sánchez

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Submitted Under Third Circuit L.A.R. 34.1(a)

on January 16, 2020

Before: JORDAN, GREENAWAY, JR., and KRAUSE, Circuit Judges

(Filed: January 17, 2020)

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OPINION

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KRAUSE, Circuit Judge.

Vaughn Spencer, a former mayor of Reading, Pennsylvania, was convicted of 

multiple bribery and fraud offenses. He appeals his sentence, arguing that the District 

 

 This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, 

does not constitute binding precedent.
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Court misapplied two sentencing guidelines enhancements. We discern no such error and 

so will affirm.

DISCUSSION1

Spencer challenges the District Court’s application of two enhancements: (A) an 

eight-level increase under U.S.S.G. § 2C1.1(b)(2) based on the “benefit received or to be 

received in return for” his attempt to bribe a city councilor to repeal a campaign 

contribution limit he had violated; and (B) a four-level increase under U.S.S.G. 

§ 3B1.1(a) for his role as an “organizer or leader” of the bribery scheme. Whether each 

was properly applied to Spencer’s case is “predominantly fact-driven” in nature, and 

consequently we review for clear error. United States v. Richards, 674 F.3d 215, 218–23 

(3d Cir. 2012); see United States v. Starnes, 583 F.3d 196, 216–17 (3d Cir. 2009); United 

States v. Ortiz, 878 F.2d 125, 126–27 (3d Cir. 1989). Because a review of the record 

does not leave us “with the definite and firm conviction that a mistake has been 

committed,” United States v. Batista, 483 F.3d 193, 197 (3d Cir. 2007) (citation omitted), 

we will not disturb the District Court’s sentence.

A. Benefit to Be Received

Spencer first challenges the District Court’s finding that the “benefit . . . to be 

received,” U.S.S.G. § 2C1.1(b)(2), from his efforts to bribe a city councilor was 

$93,500—that is, the amount of contributions Spencer’s campaign had taken in beyond 

the limits of the ordinance he was attempting to have repealed. He argues that because he 

was unsuccessful in securing the ordinance’s repeal and because the local ethics board 

 

1 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have 

jurisdiction over Spencer’s timely appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. 

3742(a)(2). As we write only for the parties, who are familiar with the background of 

this case, we need not reiterate the factual or procedural history.
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ultimately allowed him to keep the excess contributions, “the only ‘benefit’ he stood to 

receive ‘in return for’ the bribe was the avoidance of the . . . $3,500 in fines and cost” 

that resulted from the ethics investigation. Appellant’s Br. 23. Spencer’s argument is 

legally and factually misguided. 

Spencer’s initial misstep is in conflating the outcome of a bribery scheme with its 

intended effect. What matters for purposes of U.S.S.G. § 2C1.1(b)(2) is what the 

defendant “intended to receive from criminal conduct,” regardless whether anything results 

from the bribe. United States v. Blagojevich, 794 F.3d 729, 743 (7th Cir. 2015); see United 

States v. Ellis, 951 F.2d 580, 585 (4th Cir. 1991) (affirming the district court’s calculation 

of the benefit to be received as including the value of a promised payment even though the 

promisor “later reneged on th[e] commitment”); see also U.S.S.G. § 2C1.1 background

(emphasizing that the “object” of the bribe is what determines its estimated value). It is 

therefore irrelevant that, as Spencer repeatedly emphasizes, “the bribery scheme . . . 

fail[ed]” and “the ethics ordinance was not amended or repealed,” Appellant’s Br. 3. Cf.

United States v. Feldman, 338 F.3d 212, 223 (3d Cir. 2003) (“[L]oss under the 

Sentencing Guidelines is determined by calculating the greater of actual or intended loss, 

and intended loss includes loss that was impossible.” (emphasis added)).

Equally incorrect is Spencer’s conflation of the object of an unlawful bribe with 

the possible outcomes of a lawful dispute resolution mechanism or legal proceeding. 

That Spencer may have been able to avoid disgorgement of the excess contributions by 

submitting to an ethics investigation does not alter the “object and nature of [the] bribe,” 

U.S.S.G. § 2C1.1 background, which was to avoid the possibility of disgorgement 

altogether. See Appellant’s Reply 7 (conceding that disgorgement was “one possible 

option on a menu of ‘solutions’” arising from his campaign finance violations). As one 
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of our sister Circuits observed in an analogous context, even if Spencer “could have 

resolved” the issue through legal means, he “chose instead an illegal means and [is] 

bound by that choice.” United States v. Thickstun, 110 F.3d 1394, 1400 (9th Cir. 1997). 

Finally, from a factual standpoint, the record amply supports the District Court’s 

findings that Spencer undertook the bribery scheme because he “hoped to retain the[] 

excess campaign contributions,” App. 12 n.1. The Presentence Report explicitly stated 

that Spencer had devised the ordinance repeal scheme because he needed the funds to 

succeed in an upcoming election, and although Spencer objected to the accuracy of other 

portions of the PSR, he failed to dispute that characterization at sentencing. That failure 

is fatal to his argument, as the District Court was entitled to “rely on the facts set forth in 

the presentence report when their accuracy [wa]s not challenged.” United States v. 

Watkins, 54 F.3d 163, 166–67 (3d Cir. 1995). Moreover, it defies credulity to suggest 

Spencer would have undertaken a personally and politically risky $1,800 bribe just to 

avoid having to pay $3,500 in administrative fines and costs. The District Court thus did 

not clearly err in imposing an eight-level enhancement based on the value of the 

campaign contributions Spencer hoped to retain once the ordinance was repealed. 

B. Organizer or Leader

Spencer also challenges the District Court’s finding that he was an “organizer or 

leader,” U.S.S.G. § 3B1.1(a), of the bribery schemes that resulted in his convictions. He 

advances three main arguments,2 none of which is persuasive. He first argues that it was 

 

2 Spencer gestures toward, but does not develop, a fourth argument: that the 

leader-or-organizer enhancement was “duplicative” of the enhancement he received as an 

elected official pursuant to U.S.S.G. § 2C1.1(b)(3). See Appellant’s Br. 4, 14. Even if 

that argument were properly before us, however, it would lack merit. Multiple 

sentencing enhancements may be applied in tandem so long as each “address[es] different 

sentencing concerns.” United States v. Wong, 3 F.3d 667, 668 (3d Cir. 1993). That is 

certainly the case here: The leader-or-organizer enhancement recognizes that “persons 
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his campaign manager “who both organized and led the criminal activity.” Appellant’s 

Reply 10. But it is well settled that there may be “more than one person who qualifies as 

a leader or organizer of a criminal association,” United States v. Thung Van Huynh, 

884 F.3d 160, 170 n.4 (3d Cir. 2018) (quoting U.S.S.G. § 3B1.1 cmt. n.4), and here, there 

was ample evidence that Spencer directed his coconspirators, set the goals of the 

conspiracy, and ultimately approved the group’s actions. Spencer next emphasizes that 

his staff often carried out the actual work of soliciting favors and offering bribes. We 

have made clear, however, that a defendant who “supervises a conspiracy’s operation 

does not immunize himself from upward adjustment under § 3B1.1 just because he does 

not join in all of the mechanics . . . of the illegal enterprise,” as “leaders and organizers 

often distance themselves from the actual implementation of the conspiracy,” United 

States v. Bass, 54 F.3d 125, 129 (3d Cir. 1995). 

Finally, Spencer emphasizes that his staff thought him to be “‘clueless,’ ‘naïve,’ 

and ‘stupid’” and ultimately assisted federal officials in investigating him. Appellant’s 

Br. 29. Yet none of the factors that go into deciding whether someone acted as a leader 

or organizer, see Bass, 54 F.3d at 128, requires intelligence, incisiveness, or the loyalty of

subordinates. Given the extensive evidence that Spencer directed and approved his 

staff’s unlawful activities, the District Court did not clearly err in applying a four-level 

enhancement under U.S.S.G. § 3B1.1(a).

CONCLUSION

For the foregoing reasons, we will affirm the District Court’s judgment.

 

who exercise a supervisory or managerial role in the commission of an offense tend to 

profit more from it and . . . are more likely to recidivate,” U.S.S.G. § 3B1.1 background, 

whereas the elected-official enhancement recognizes the unique “harm that is inflicted 

when the trust that the official betrays was conferred on him in an election,” United 

States v. Stevenson, 834 F.3d 80, 84 (2d Cir. 2016) (citation omitted).