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

No. 11-60509

UNITED STATES OF AMERICA, Plaintiff - Appellee
v. WALTER W. TEEL; PAUL S. MINOR; JOHN H. WHITFIELD, Defendants - Appellants

Appeals from the United States District Court for the Southern District of Mississippi

Before KING, PRADO, and HAYNES, Circuit Judges. HAYNES, Circuit Judge: Appellants Walter W. Teel (“Teel”), Paul S. Minor (“Minor”), and John H. Whitfield (“Whitfield”) (collectively, “Appellants”) raise several appellate issues arising from their final amended judgments of convictions and se nt e nc e s e nt e r e d by the district court after this court remanded the case for resenten c i n g in United States v. Whitfield , 590 F.3d 325 (5th Cir. 2009). Specifically, Appellants challenge: (1) the jury instructions for erroneously defining honest-services fraud; (2) the indictment for failure to stat e a n o f f e n se; and (3) whether the

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 August 14, 20 12 Lyle W . Cayce Clerk Case: 11-60509 Document: 00511956680 Page: 1 Date Filed: 08/14/2012No. 11-60509

district court committed various errors in sentencing Minor and Whitfield. We 1 AFFIRM. I. Original Appeal Because the complete factual history is extensively set out in Whitfield , we only summarize the relevant procedural history. In 2007, a jury found Appellants guilty on all charges. Minor received 132 months of imprisonment to be followed by three years of supervised release, was fined $2.75 million ($250,000 for each of h is eleven counts of conviction), and, along with Teel, was ordered to pay $1.5 million as restitution to United States Fidelity and Guaranty (“USF&G”), the victim of the Minor/Teel bribery scheme. In addition to the r e s t i t u tion order, Teel received seventy months of imprisonment and two year s o f s u pervised release. Whitfield received 110 months of imprisonment, three years of supervised release, and a $125,000 fine. In Whitfield , however, we concluded that the dist r i c t court committed plain error when it denied Appellants’ motions for judgment of acquittal under Federal Rule o f C r iminal Procedure 29 on the 18 U.S.C. § 666 counts of the i n d ictment. Accordingly, we reversed all of the convictions related to federal
program bribery in violation of § 666, including Minor and Teel’s convictions for conspiracy to commit federal program bribery. However, we a f f i r m ed each remaining count of conviction, specifically, Ap p e l lants’ convictions for honestservices mail and wire fraud in violation of 18 U.S.C. §§ 1341, 1343, and 1346, 2

As st ated in thei r ope ning and rep l y brie fs , Whit fie ld and Teel join Min or in the 1 chall enges to the indic tm ent andthe jury inst ruc tio ns, and adop t the relevant por tio ns from Min or’ s ope ning and rep ly brie fs acc ord ingly. Ho we ver, wh ile Min or and Whit fie ld als o rais e variou s app ellat e i s s u e s s t em mi ng fr om thei r res ente ncings , Teel, wh o has com ple ted his im pr iso nme nt ter m, d oes no t.
18 U. S. C. §§ 1341 and 1343 cri mi nalize the use of the mai ls or wi res , res pec tivel y, in 2 fur ther ance of “any sc hem e or art ifi ce to def raud , or for obta ining mo ney or pr ope rty by me ans of f als e or fr audul ent pr ete nse s, repr es enta tio ns, or pro mi se s. ” 18 U. S. C. § 1346 def ines the ter m “sche me or artifi ce to def raud” to inclu de “a sc hem e or art ifi ce to dep rive anot her of the intan gible rightof

ho nes t se rvice s. ” 2 Case: 11-60509 Document: 00511956680 Page: 2 Date Filed: 08/14/2012No. 11-60509

Minor and Whitfield’s convictions for conspiracy in violation of 18 U.S.C. § 371, and Minor’s conviction for racketeering in violation of 18 U.S.C. § 1962(c). In light of the foregoing, we vacated e a c h Appellant’s sentence and

r e m an d e d th e c a s e f

o r r e s e nt e nc in g
. Thereafter, Minor unsuccessfully p e titi o n e d this court for rehearing, an d e a c h Appellant unsuccessfully petitioned the Supreme Court for a writ of certiorari. On remand for resentencing, Minor, joined by Whitfield and Teel, filed in t h e district court a motion to vacate their convictions in light of the S u p r e m e Court’s decision in Skilling v. United States , 130 S. Ct. 2896 (2010). Appellants argued that Skilling was an intervening change of law by a controlling authority that rendered the indictment and jury instructions erroneous. After receiving supplemental briefing and hearing argument, the district court denied Appellants’ motion. The district court then resentenced Appellants. Whitfield received seventy-five months of imprisonment and two years of supervised release. Teel received fifty-one months of imprisonment and two years of supervised release. Minor received ninety-six months imprisonment to be followed by three years 3 of supervised release, and was fined $ 2 m i llion ($250,000 for each of his eight remaining counts of conviction). Also, as before, Min o r a n d Teel were ordered jointly and severally to pay restitution to USF&G. This timely appeal followed.

II. Current Appeal: Convictions and Law of the Case Between the original appeal and the current appeal, the Supreme Court decided Skilling. In that case, Defend a n t J e f frey Skilling (“Skilling”) was charged wi t h a n d convicted of, inter alia , conspiracy to commit securities and wire fraud. See id. at 2908. Specifically, according to the indictment, “Skilling

Whit fie ld’ s se cond im pr iso nme nt se nten ce wa s, in tot al, thir ty-f ive mo nths low er than 3 his origi nal se nten ce, Teel’ s im pr iso nme nt se nten ce wa s ninet een mo nths low er, and Min or’ s im pr iso nme nt se nten ce wa s thir ty-s ix m onth s low er. 3 Case: 11-60509 Document: 00511956680 Page: 3 Date Filed: 08/14/2012No. 11-60509

had sought to ‘depriv[e] Enron and its shareholders of the intangible right of [his] honest services.’” Id. (alterations in original). The Supreme Court granted certiorari to address whether Skilling’s c o nviction for conspiracy to commit honest-services wire fraud was impro p er: “We

. . . consider whether Skilling’s

c onspiracy conviction was premised on an improper theory of honest-services wire fraud. The honest-services statute, § 1346, Skilling main t a i n s , is unconstitutionally vague. Alternatively, he contends that his conduct does not fall within the statute’s compass.” Id. at 2925-26. The Court determined that § 1 3 4 6 i s not unconstitutionally vague, but that its reach is limited to brib e r y and kickback sc hemes, not other conduct, such as conflict-of-interest schemes. Id. at 2930-34. Appellants argue that Skilling changed the law of ho n e st-services fraud to render both the jury instructions and the indictment in this case erroneous. Specifically, Appellants allege that the jury instructions were erroneous because they incorporated the Mississippi-state-l a w definition of bribery. In addition, Appellants allege that the indictment failed to state an offense under § 134 6 because instead of charging bribery under federal law, the rel e v a nt counts charged that “honest services” are those “performed free from deceit, bias, selfdealing, and concealment.” I n t h i s way, Appellants continue, the indictment charged a conflict-of-interest scheme, which Skilling specifically excludes from § 1346’s compass. According to Appellants, each of these errors independently requires reversal of their convictions. These arguments implicate the l a w - of-the-case doctrine. Under that doctrine, th e d i s trict court on remand, or the appellate court on a subsequent appeal, abstains from reexamining an issue of fact or law that has already been decided on appeal. See, e.g., United States v. Carales-Villalta , 617 F.3d 342, 344 (5th Cir. 2010). A facet or corollary of the law-of- t h e - c a s e doctrine is the mandate rule. See United States v. Becerra , 155 F.3d 740, 753 (5th Cir. 1998),

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abrogated on other grounds by United States v. Booke r , 5 4 3 U.S. 220 (2005). Under the mandate rule, “[a] district court on remand ‘must implement both the letter and the spirit of the appellate court’s mandate and may not disregard the explicit directives of that court.’” United States v. McCrimmon , 443 F.3d 454, 459 (5th Cir. 2006) (quoting United States v. Matthews , 312 F.3d 652, 657 (5th Cir. 2002)). Accordingly, the mandate rule “prohibits a district court on remand from reexamining an issue o f law or fact previously decided on appeal and not resubmitted to the trial court on remand. This prohibition covers issues decided both expressly and by necessary implication

. . . .” United States v. Pineiro , 470 F.3d 200, 205 (5th Cir. 2006) (per curiam)

. “Additionally, pursuant to the ‘waiver app roach’ to the mandate rule,” McCrimmon , 443 F.3d at 459, “‘[a]ll other issues not arising out of this c ourt’s ruling and not raised before the appeals court, which could have been brought in t h e o r i gi n al appeal, are not
proper for reconsideration by the district court below,’” Pineiro , 470 F.3d at 205 (citation omitted). See also United States v. Lee , 358 F.3d 315, 321 (5th Cir. 2004) (“Absent exceptional circumstances, th e m an d at e rule compels compliance

on remand with the dicta t es of a superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court. Moreover, the rule bars litigation of issues decided by the district court but foregone on a p p e a l or otherwise waived, for exam p l e because they were not raised in the district court.”). “We review de novo a district court’s application of the remand order, including whether the law-of-the-case doctrine or m a n d ate rule forecloses the district court’s actions on remand.” Carales-Villalta , 617 F.3d at 344. Both the law-of-the-case doctrine and the mandate rule are discretionary practices, not jurisdictional rules, and they are subject to an exception Appellants urge here: that “there has been an intervening chan g e o f l aw by a controlling authority.” Matt h e w s , 312 F.3d at 657. Appellants contend that

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their challenges to the jury instructions and the indictment were properly before t he district court on remand for resentencing because Skilling satisfies the intervening-change-of-law exception. We disagree. Appellants argue that, after Skilling , § 1346 criminalizes only bribery and kickbacks under federal law , thereby specifically excluding bribery and kickbacks under sta te law. According to Appellants, by the Skilling Court’s stating that its “construction of § 1346 ‘establish[ e s ] a uniform national standard,” 130 S. Ct. at 2933 (alteration in original), the Court could only have meant federal law. A fair reading of Skilling , however, reveals that the Court

was establishing a uniform national standard by construing § 1346 to clearly exclude conduct outside of bribery and kickbacks, such as conflict-of-interest schemes, not to establish federa l la w as the uniform national standard for the element s o f bribery and kickbacks in § 1346 prosecutions. Moreover, the 4 Skilling Court further asserted that “[o]verlap with other federal statutes does not render § 1346 superfluous. The principal federal bribery statute, [18 U.S.C.] § 201, for example, generally applies only to federal public officials, so § 1346’s application to state and local corruption an d to private sector fraud reaches misconduct that might otherwise go unpunished.” Id. a t 2 9 3 4 n.45 (emphasis added). Accordingly, we read Skilling as recognizing that § 1346 pr osecutions may involve misconduct that is also a violation of state law. In Whitfield , we recognized that “the district court based its definition of bribery in the jury charge on the M i s s issippi offense of bribery,” and that the “jury charge was also consistent with the language of the Fifth Circuit Pattern

Add itio nally, it is notable that in Bla ck v. Uni ted States , 130 S. Ct. 2963 (201 0), a 4
com pani on cas e to Skil li n g dec ide d the sam e da y, t h e S u pr em e Court st ated that it had “d ecid ed in Skil li ng that § 1346, pr ope rly conf ined , cri mi nalizes only sc hem es to def raud that involve bribe s or ki ckback s. ” Id

. at 2968. If Skil li ng had inde ed held that § 1346 cri mi nalizes only sc hem es to def

raud that involve bribe s or ki ckb a c k s u n d er fe deral la w , it is only
reas onable t hat the Courtw ouldhaves aid as muc h i n Bla ck

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Jury Instructions on ‘Bribery of a Public Official’ under 18 U.S.C. § 201(b)(1) and ‘Receiving Bribe by Public Official’ under 18 U.S.C. § 201(b)(2).” 590 F.3d at 348. Moreover, we made clear that “in order to constitute a federal crime, the state statute must concern ‘something close to bribery’ and

. . . ‘the mere violation of

a gratuity statute

. . . will not suffice.’” Id. (citing United States v. Brumley , 116 F.3d 728, 734 (5th Cir. 1997) (en banc)). Acc o r d i n gl y , Whitfield was fully consonant with Skilling , and nothing in the Skilling opinion suggests that our

a n a l y sis of the jury instructions in Whitfield was incorrect. To the contrary, Skilling cites approvingly to Whitfield for our analysis of the district court’s jury instructions regarding bribery. 130 S. Ct. at 2934. Furthermore, although Skilling changed the law of honest-services fraud to exclude the conflict-of-interest category of cases from § 1346’s scope, see id. at 2931-32, this is not an intervening change of law as applied to the facts of this

case because Appellants were charged with bribery schemes. Indeed, as we observed in Wh itfield , this case involved “two prolonged bribery schemes spanning nearly four years each.” 590 F.3d at 352. The mere inclusion of the 5 “performed free from deceit, bias, self-dealing, and concealment” l a n gu a ge did not tra n s f

orm the bribery schemes charged in the indictment into conflict-ofinterest schemes. B a s e d on the foregoing, the intervening-change-of-law exception i s inapplicable to this case. Accordingly, the mandate rule bars litigation of these arguments. See Pineiro , 470 F.3d at 205; McCrimmon , 443 F.3d at 459. We

6

In the ins tant app eal, App ellant s att em pt to re- liti gate wh ethe r they we re guilty of 5 any wr ongdo ing. In fac t, they even re- urge that Min or’ s tra nsa cti ons wi th Whit fie ld and Teel
we re cons tit utio nally pr ote cte d pol itic al cam paign cont ribut ions that qualif ied for F i rs t Ame ndm ent pr ote cti on. We dec line App ellant s’ invita tio n to ente rta in this att em pt ed “s eco nd bite at the app le. ” See, e. g., Cara le s- Vi llal ta , 617 F.3d at 344- 45; Uni ted States v. Sla nina , 359 F.3d356 , 358 (5t h Cir

. 2004) ( perc uriam ).

Even if the man dat e rul e d i d n ot for eclo se App ellant s’ argum ents , we need not 6 add res s them here beca use they we re never rais ed at tri al or in the init ial app eal. Mo reo ver, 7 Case: 11-60509 Document: 00511956680 Page: 7 Date Filed: 08/14/2012No. 11-60509

decline the invitation to revisit Appellants’ convictions that w e r e affirmed in Whitfield. III. Current Appeal: Sentences A. Standard of Review Minor and Whitfield also cont e n d th at th e di s tric t court committed various sentencing errors on remand that require this court to vacate t h e i r s e n tences and remand for resentencing. In particular, Minor and Whitfield raise arguments specific to their in d ividual resentencings. In addition, both argue that the district court erred in calculating the benefit receiv e d f r o m the Minor/Whitfield bribery scheme. 7 “In reviewing a sentencing decision, we first must consider whether t h e distri c t c o u r t committed a significant procedural error, such as improperly

c a l culating the [Sentencing] Guidelines range, treating the Guidelines a s mandatory, or selecting a sentence based on c l early erroneous facts. If the

s e nt ence is procedurally sound, we th e n c o n s i d e r th e ‘ s ub s t a ntiv e r e a s o n ab l e n e s s

we note that even thou gh Skil li ng wa s dec ide d wh ile App ellant s’ cer tio rar i pet itio ns we re st ill pend ing in the Sup rem e Court , App ellant s did not ask the Court to vacat e thei r convic tio ns in light of Skil li ng
. See, e. g., F E D

. R. AP P

. P. 28; Lofton v. McNei l Consum er & Spec ia lty Phar m. , 672 F.3d372, 381 (5t h Cir

. 2012) ( “‘[A]r gume nts no t rais ed bef oret he dis tri ct co urt are wa ived and wi ll not be cons ide red on a p p eal unles s the par ty can dem ons tra te extr aord inary cir cum st ance s. ’ The Fift h Circ uit has a ‘virt ually univer sal pr act ice of ref usi ng to add res s mat ter s rais ed for the fir st ti m e o n app eal. ’” (al ter atio n in origi nal) (c itat ions
om itt ed) ); Uni ted States v. Thi bode aux , 211 F.3d 910, 912 (5t h Cir. 2000) (p er cur iam) (“ It has long been the ruleint his c irc uit thatany iss ues no t brie fedonap pea l a re wa ived. ”)

. Min or als o allege s that the dis tri ct cour t err ed in calc ulati ng the benef it rec eived fr om 7 the Min or/Teel bribe ry sc hem e. In that sc hem e, Minor arr anged and paid off a bank loan for Teel in exchange for Teel’ s rend erin g a favor able dis pos itio n in Peop le s Bank v. Uni ted States Fide li ty & Gu aranty , res ulti ng in a $1.5 mil lion se ttl em ent in favor of Min or’ s clie nt, Peop les Bank

. See Whi tfi el d , 590 F.3d at 339- 41. The cru x of Min or’ s chall enge to the dis tri ct cour t’s calc u l a t i o n i n regar d to the Min or/Teel sc hem e is that even wi thou t Teel’ s act ions , USF& G
wo uld no t have been sp ared the need to se ttl e Peop le s Bank at a sub st antia l pr ice. This
ar gu m e n t is for eclo se d, how ever, by the law of the cas e—a s st ated in Whi tfi el d , “U SF&G
wo uld have hadno need to s ett le the cas e” fo r $1.5 milli on had it not been forTee l’s ac tio ns. Id. at 368. Acco rd ingly, we do not dis turb the dis tri ct cour t’s calc ulati on of the benef it rec eived fr omt he Min or/Teel bribe ry s chem e a s $1.5 m illio n. 8 Case: 11-60509 Document: 00511956680 Page: 8 Date Filed: 08/14/2012No. 11-60509

of the sentence imposed under an abuse-of-discretion standard.’” United States

v. Delgado-Martinez , 564 F.3d 750, 751 (5th Cir. 2009); see also United States v. Simmons , 649 F.3d 301, 303 (5th Cir.) (per curiam), cert. denied , 132 S. Ct. 857 (2011) (“We ordinarily review sentences for procedural error and for substantive reasonableness, applying an abuse of discretion standard.”). In addition, “[i]n exercising this bifurcated review process, we continue to review the district court’s application of the Guidelines de novo and its factual findings for clear error.” Delgado - M a r tinez , 564 F.3d at 751; see also United States v. Cisneros-Gutierrez , 517 F.3d 751, 764 (5th Cir. 2008). “There is no clear

error if the district court’s finding is plausible in light of the record as a whole.” Cisneros-Guti e rrez , 517 F.3d at 764 (citation and internal quotation marks omitted). “‘However, a finding will be deemed clearly erroneous if, based on the record as a whole, we are left with the definite and firm c o nvi c t i on that a mistake has been committed.’” United States v. Miller , 607 F.3d 144, 148 (5th Cir. 2010) (citation omitted); see also United States v. Campbell , 106 F.3d 64, 66 (5th Cir. 1997) (“[A] district court retains wide discretion in sentencing, and the sentencing decision is entitled to considerable deference.”). B. Whitfield’s Prison Sentence In Whitfield , we reversed Whitfield’s conviction for federal p r o gram bribery, but affirmed his convictions on all other counts, specifically, counts one, four, five, six, and seven (conspiracy and mail fraud/honest-services fraud). For the affirmed counts o f c o nvi ction, the district court had originally sentenced Whitfield to an imprisonment term of sixty months. On remand, however, the district court imposed a diffe r e n t s e ntence for count seven alone, specifically, i m p osing seventy-five months imprisonment instead of the sixty-month-t e r m imposed for the o t h e r counts. Thus, with all sentences running concurrently, Whitfield received a total imprisonment term of seventy-five months. Whitfield objected to the increase in the sentence for count s e v e n i n t he absence of

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intervening aggravating factors, but the district court overruled the objection: “If I had not had C o u n t 1 1 [federal program bribery] available at the first sentence, then my address of Count 7 [mail fraud/honest-services fraud] would have been different. So your objection is on record, but my motive for doing so was because I had at that time Count 11 for the Court’s consideration.” Here, Whitfield claims that the district court on r e m a nd imposed a presumptively vindictive sentence upon him in violation o f N o rth Carolina v. Pearce , 395 U.S. 711 (1969), overruled on other grounds by Alabama v. Smith , 490 U.S. 794 (1989). Specifically, he alleges that the imposed i m p risonment term of seventy-five months as to count seven, which was fifteen months longer than the imprisonment term for count seven imposed in 2007, was presumptively vindictive even though his total sentence was actually reduced. “We review the question of whether a sentence is vindictive, an d thus

u n c o nstitutional, de novo .” Campbell , 106 F.3d at 66. For the purpose o f reviewing this question, we expressly adopted in Campbell the ag gr e g a te approach, under which “courts compare the total original sentence to the total sentence after resentencing. If the new sentence is greater than the original sentence, the new sentence is considered more severe.” Id. at 68. 8 Whitfield alleges that the holding of Campbell does not foreclose his argument because his case falls into Campbell’s recognized exceptions to its holdings, claiming that the counts were not related and the original sentences

were not imposed as part of a “sentencing package.” See id. at 68 n.4. However,

as in Campbell , none of these facts are present here. Specificall y , the counts

Whit fie ld urges this cour t to re- exam ine its ado pt ion of the aggregat e app roac h, and 8 ado pt ins tead the “re mai nder aggregat e” or “co un t

- by-c ount” app roac h. This argum ent, how ever, is for eclo se d by the rule of ord erli nes s. See Jac obs v. Na t’l Dr ug Intell igen ce Ctr. , 548 F. 3d 375, 378 (5t h Cir. 2008) (“ It is a we ll- se ttl ed F i f t h C i r c u it rule of ord erli nes s that one pane l of our court may not overtur n anot her panel’s dec isi ons , abs ent an inte rvenin g change in the law , suc h as by a st atut ory ame ndm ent, or the Sup rem e Court , or our en banc cour t. ”)

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were related because they all involved bribery. In addition, despite never using t h e phrase “sentencing package,” the district court clearly used the packag e approach as demonstrated by its explanation: had it not been for the availability of the lengthier sentence under count eleven, it would have imposed a different sentence for count seven. Cf. United States v. Bass , 104 F. App’x 997, 1000 (5th Cir. 2004) (per curiam) (unpublished) (“When a defendant is convicted of more than one count of a multicount indictment, the district court is likely to fashion

a sentencing package in which sentences on individual coun t s a re interdependent.”). Furthe r m o r e, nothing in the district court’s explanation
sug g e s t s t hat the reason for its decision was anything other than clearly objective, let alone vindictive or plainly unreasonable. Finally, the district court also commented that it had no obligation to reduce Whitfield’s sente n c e given the guideline range, but that it would do so beca u s e Whitfield had accepted responsibility, and that it would further vary downward from the guid e l i ne range because of Whitf i e l d’ s m e dic al issues and his positive post-offense conduct. Accordingly, it appears that the district court was actually being quite lenient. Thus, under Campbell’s aggregate approach, Whitfield’s claim of vindictiveness fails. 9 C. Minor’s Prison Sentence Minor argues that while addressing the se nt e nc in g f ac t o r s u n d e r 1 8 U .S.C. § 3553(a), the district court erred by giving him a longer sentence to promote his

a lcohol rehabilitation. The government concedes that under Tapia v. U n i t e d States , 131 S. Ct. 2382 (2011), the district court erred if it lengthened Minor’ s

Whit fie ld als o mak es tw o unsu pp ort ed argum ents —t hat his se nten ce wa s bas ed upon 9
rac ial dis cri mi natio n suc h that it wa s disp rop ort ionat ely great er than his fel low def enda nts , and that the app lica tio n of the obs tru cti on- of- j ust ice enhanc em ent wa s inap pr opr iate

. Ho we ver, he fai ls to cit e any autho rit y for thes e a r gume nts , so we dee m them wa ived. See F E D

. R. AP P

. P. 28(a)( 9)(A); Lofton , 672 F.3d at 381; Proc ter & Ga mbl e Co. v. Am wa y Corp

. , 376 F.3d496, 499 n.1 ( 5th Cir. 2004) (“ Failur e ade quate ly to brief an iss ue on app eal con st itut es wa iver of thatar gume nt. ”)

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prison sentence to allow for alcohol rehabilitation as arguably suggested by the written statement of reasons. See i d

. at 2393 (“[A] court may not impose or 1 0 lengthen a prison sentence to enable an offender to comple t e a treatment program or otherwise to promote rehabilitation.”); see also 18 U.S.C. § 3582(a) (“[I]mprisonmen t i s n ot an appropriate means of promoting correction and rehabilitation.”). The parties, however, do not agree on the standard of review applicable here. It is unnecessary to determine the standard of review for thi s i s s ue, h o w ev e r , b e c au s e ev e n if th e district court impermissibly addressed Minor’s n e e d for alcohol treatment, this consideration is harmless error in this c a s e
. Wh en the term of imprisonment is not lengthened by a district court’s consideration of

a n impermissible factor, such as the need for rehabilitation, reversa l i s n o t required. See United States. v. Tolbert , 668 F.3d 7 9 8 , 8 0 3 ( 6th Cir. 2012) (holding that the def

e n d a n t’s sentence was substantively reasonable because “the district court did not impermissibly impose or lengthen [h i s ] s entence to enable him to complete a treatmen t p r o gr am or promote his rehabilitation”); United States v. Ca r de n as - M ireles , 446 F. App’x 991, 994-95 (10th Cir. 2011) (unpublished), cert. denied , 80 U.S.L.W. 3596 (U.S. Apr. 23, 2012) (No. 11-9539) (“[T]he question is not merely whether the district court had Cardenas-Mireles’s medical needs on its mind when it issued his sentence, but whether the court’s assessment of his medical needs actually changed the sentence the court would otherwise have imposed.”). At the resentencing hearing, the district court made clear that although the same Guidelines range of 121 to 151 months was applicable, it was choosing

The w r i t t en st atem ent of reas ons —f iled thr ee days bef

ore the Sup rem e Court ’s 1 0 dec isi on in Tap ia—s tat ed as fol low s: “As to the nee d to pr ovide the def enda nt wi th need ed educ atio n or vocat iona l t r a i n i ng, me dic al car e, or othe r cor rec tio nal tre atm ent in the mo st eff ect ive man ner - Mr

. Min or has a se riou s his tor y of alco hol abus e, and he need s a suf fic ient
amo unt of tim e i n p ris on to full y ben efi t fr omal coho l t reat me nt. ” 12 Case: 11-60509 Document: 00511956680 Page: 12 Date Filed: 08/14/2012No. 11-60509

to vary downward to ninety-six months, a total downward deviation of twentyfive months from the minimum of the Guidelines range. The di s t r ict court explained that although it could have imposed the same sentence as before, since the last sentencing, Minor had “earned the re du c ti on” based on his rehabilitative conduct, which largely focused on his alcohol abuse. Moreover, the district court recollected that it had been necessary to send Minor to a rehab center previously, b u t t h a t i t was encouraged to know that Minor had conquered his problems and would continue to do so. Furthermore, in the w r i t t en statement of reasons, the district court

r e f e r e nc e d Minor’s participation in bribery schemes with two separate tri al c o urt judges under three sepa r a t e § 3 5 53(a) factors, rendering it likely to have been the most salient fact for the district court in determining the length of Minor’s sentence. In addition, whereas the district cour t m e n tioned the alcohol treatment program that had already occurred, no w here did it reference any specific treatment program in the future that would require lengthening Minor’s sentence. See Tapia 131 S. Ct. at 2392-93 (noting that a court does not commit

error simply by discussing the opportunities for rehabilitation within prison, but in the case at bar, the court had committed error by “select[ing] the length of the sentence to ensure that [the defendant] could complete the 5 0 0 H our Drug Program”). Thus, nothing in the rec o r d suggests that the district court actually lengthened M inor’s sentence based on its consideration of his need for alcohol rehabilitation. To the contrary, it appears that the consideration of alcohol treatment was based upon events in the past, not anticipated “rehabilitation” in prison in the future. Accordingly, we reject this argument. D. Minor and Whitfield’s Sentences: Loss Enhancement In exchange for Minor’s arranging of bank loans for Whitfield in the total amount of $140,000, Wh i t f i e l d arranged to preside over Marks v. Diamond

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O f f s h ore Management Co. , and to render a decision in favor of Archie M a r k s (“Marks”), Minor’s client. See Whitfield , 590 F.3d at 337-38. After conducting the bench trial, Whitfield ruled in favor of Marks and awarded him $3.75 million in damages, but subsequently reduced the award to $3.64 million in response to post-trial motions. Id. $3 million of the $3.64 million award “was attributable to noneconomic ‘soft’ damages.” Id. at 338. The d e f e n d ant in Marks “later appealed to the Mississippi Supreme Court, which, sitting en banc , affirmed the finding of liability” but reduced the total award to $1.64 million. Id. In light of Minor and Whitfield’s criminal convictions, however, the Mississippi Supreme C o urt withdrew its original opinion, vacated Whitfield’s judgment, a n d remanded the Markscase for a new trial on all issues. See id. at 338 n.5. The new trial resulted in a damages award of only $383,000. In the first appeal, Minor and Whitfield challenged their enhanced

se n t e nces on the grounds that “the district court erred in including the full amount of the original award in Marks ($3.75 million) in their respe c t ive loss calculations.” Id. at 367. T here, we determined that the Guideline regarding bribery-rel a ted offenses, U.S.S.G. § 2C1.1, was applicable to the case “because the jury found appellants guilty on a theory of bribery.” Id. Having done so, we also observed that “U.S.S.G. § 2C1.1(b)(2) provides for an enhanced sentence if the ‘value of the payment’ or ‘the benefit received or to be received in return for the payment’ exceeds $5,000. The level of enhancement is dictated by the table in U .S.S.G. § 2B1.1.” Id. We also recognized that “Application Note 2 of U.S.S.G. § 2B1.1 provides that the loss should be determined by the greater of the actual loss or i n t e nded loss, which is defined in relevant part as ‘the pecuniary harm that was intended to result from the offense.’” Id. In light of the remand for resentencing, however, we declined to address whether the district court clearly erred in determining the amount of the benefit received, except to “suggest that the district court might more properly rely on

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the actual amount awarded by Wh itfield in the Marks case ($3.64 million) adjusted by taking into account a reasonable estimate of whatever intrinsic value that case may have had if litigated before an impartial judge.” Id. at 368. Here, Whitfield and Minor argue that on remand, the district court again

e rro n eously enhanced their respective sentences. Specifically, they contend th at the district court should not have used the $383,000 award from t h e n e w trial of Marks as the intrinsic value that Marks may have had if it had been litigated before an impartial judge. They allege that the $383,000 award was reached a decade later with different evidence of the plaintiff’s medical condition, which had substantially improved by t h e time of retrial. Accordingly, they maintain that the district court erred by basing its loss calculation for enhancement
purposes on the difference between the $3.64 million Whitfield actually awarded in Marksand the $383,000 award from the new trial. We review the district court’s finding of fact regarding the amount of the benefit received for clear error. See, e.g., United States v. Griffin , 324 F.3d 330, 3 6 5 ( 5 th Cir. 2003) (“The amount of the benefit to be received is a fact fin d i n g issue that is reviewed for clear error.”). With respect to Minor, even if we used the $1.64 million figure from the Mississippi Supreme Court’s o p i n i on as the

“ intrinsic value” of Marks , he would still qualify for the eighteen-leve l enhancement that he received on remand beca u s e h is loss calculations for enhancement purposes include the benefit received from both the Minor/Whitfield scheme and the Minor/Teel scheme. In other words, using the $2 million difference instead of the number actually used would still not qualify Minor for a smaller e n h a ncement. See U.S.S.G. § 2B1.1(b)(1)(J) (any loss amount between $2.5 million and $7 million increases the offense le v el by eighteen). With respect to Whitfield, using the higher “intrinsic value” number and, therefore, calculating a lower “loss” amount would yield a smaller enhancement,

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taking the enhancement from eighteen levels to sixteen. See id. § 2B1.1(b)(1)(I) 1 1 (any loss amount between $1 million and $2.5 million increases the offense level by sixteen). Thus, with a criminal history category of I and a base offense level of ten, Whitfield’s total offense level would become twenty-six, with an advisory guideline range for i m p ri s o n m e nt o f s ixty - three to seventy-eight months, instead of twenty-eight, with an advisory guideline range of seventy-e i gh t to ninetyseven months. Accordingly, we must consider whether the district court “clearly erred” in using the $383,000 figure. Whitfield argues that the $383,000 figure reflects a different time
per i o d—ten years after the original trial—with more information about the underlying litigant’s damages and improved condition. While that may be so, we cannot conclude that the passage of time and ensuing additional information renders the use o f t h is figure “clearly erroneous.” Calculating the “intrinsic value” of the Marks case is an imprecise endeavor, and we require only that the district court make a reasonable estimate. See United States v. Goss , 549 F.3d 1 0 1 3 , 1 0 1 9 ( 5 th C ir
. 2 0 08) (“[T]he district court cannot achieve absolute certainty in determining the

. . . losses. Instead, ‘[t]he court need only make a reasonable estimate of the loss.’” (quoting United States v. Holbrook , 499 F.3d 466, 468 (5th Cir. 2007))); see also Griffin , 324 F.3d at 3 6 6 ( “The district court need not determine the value of the benefit with precision.”). Moreover, “[t]he sentencing judge is in a unique position to assess the evidence and estimate the loss based
upon that evidence. For this reason, the court’s loss determination is entitled to

H e r e, and in conne cti on wi th Whit fie ld’ s chall enge to the obs tru cti on- of- just i c e 11 enhanc em ent disc uss ed above, the governme nt argues , as it did dur ing the fir st app eal, that “any err or in se nten cing wa s harm les s beca use the dis tri ct cour t inco rre ctl y app lied the mo re lenie nt Unit ed Sta tes Sent enci ng Gu ide lines fr om 2001 rat her than the Gu ide lines as ame nded i n 2 006. ” Whi tfi el d , 590 F.3d at 366. We dec lined to add res s this argum ent in Whi tfi el d beca use it wa s not dis pos itive

. Id. (“ The fac t that [t he] dis tri ct cour t use d the 2001 Gu ide lines ins tead of the 2006 Gu ide lines doe s not nece ss aril y me an that app ellant s we re not pr ejudi ced by any alleg e d e r r o rs in thei r se nten cing. ”)

. For the sam e reas on, we lik ew ise dec line to cons ide r the governm ent’ s argum ent here

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appropriate d e f

e r e nce.” Holbrook , 499 F.3d at 468 (citation and internal quotation marks omitted). Because the $383,000 awa r d was a reasonable estimate of the “intrinsic value” of Marks , we conclude that the district court did not clearly err. Even if the calculation was in error, we conclude such error was harmless. See F E D

. R. C R I M

. P. 52(a) (“Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”); Williams v. United States , 503 U.S. 193, 203 (1992) (“[O]nce the court of appeals has de c i d e d t h a t the district court misapplied the Guidelines, a remand is appropriate un l e s s the reviewing court concludes, on the record as a whole, that the error was harmless, i.e., that the error did not affect the district court’s selection of t h e s e n t e n c e imposed.”); Delgado-Martinez , 564 F.3d at 752-53 (“[C ]ertain ‘harmless’ errors do not warrant reversal.”). Whitfield received an impris o n m e n t sentence of seventy-five months, which falls well within the range for the putative revised t o t al offense level of twenty-six. The record as a whole suggests th a t t h e

ca l c u l a tion of Whitfield’s sentence was not influenced by this alleged error. Accordingly, we concl u d e no reversible error was committed in the loss enhancement. E. Minor’s Sentence: Fines According to the district court’s written statement of reason s f or resentencing, the district court imposed on Minor the maximum fine of $250,000

on each c o u n t, see U.S.S.G. § 5H1.10, resulting in a total fine of $2 million dollars: The Court finds [Mi n o r] has the ability to pay a fine in addition to restitution. In ordering a fine, the Court has considered the advisory guidelines range of $17,500 to $175,000, in addition to the sent encing factors in 18 U.S.C. § 3553(a). The Court has determined there are aggravating circumstances rela t i n g to this defendant’s conduct and other facts specific to the case at hand which leads the Court to conclude that a variance from the advisory

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guideline fine range is fa ir and reasonable. The Court has been made aware that the defendant failed during t he presentence investigation to disclose the existence of an asset va l u e d at approximately $5,000,000, which was transferred by him by way of q u i t claim deed to his wife and subsequently to a limited liabilit y company controlled by his wife w i t hin days of the indictment and his arrest in this case. Additionally, the Court recognizes the need for the amoun t o f the fine to be sufficient to ensure that the fine, taken together with other sanction s imposed, is punitive to this defendant, who has substantial assets and income; and will provide deterrence to other criminal activity. It is therefore the order of the Court that the defendant pay a fine of $250,000 per count, for a total fine of $2,000,000.00. Minor contends that the district court abused its discretion in setting his fine. Specifically, citing United States v. Painter , 375 F.3d 336 (5th Cir. 2004) 1 2 and United States v. Graham , 946 F.2d 19 (4th Cir. 1991), Minor argues that the district court relied on his financial status when i t v a r i e d from the Guidelines
range and that this wa s a n impermissible use of his socio-economic status. In addition, Minor contends that the district court erred by taking into account his failure to disclose the transfer of the property to his late wife as an aggravating circumstance. Mino r ’ s c h a l l enge is without merit. First, his reliance on Painter and Graham is misplaced. Those cases deal with challenges to upward departures , not variances

. See Irizarry v. United S t a t e s , 5 53 U.S. 708, 714 (2008) (“‘Departure’ is a term of art under the Guidelines and refers only to non-Guidelines sentences imposed unde r t h e framework set out in the Guidelines.”). The pertinent question in a d eparture case is whether “there exists an aggrava t i n g or mitigating circumstance of a kind

. . . not adequately

In Whi tfi el d , bec aus e werem ande d the case for res ente ncing, we dec lined to decid e 1 2 wh ethe r the dis tri ct cour t too k Min or’ s so cio- eco nom ic st atus into acc ount wh en im pos ing its fine

. See 590 F.3d at 368. We did , how ever, conc lude that ther e sho uld b e so me level of red uct ion fr om the pr evious ly ord ere d fin e o f $2.7 5 mi llion , as thr ee count s upon wh ich the fine w as bas ed we re rever se d. See id. 18 Case: 11-60509 Document: 00511956680 Page: 18 Date Filed: 08/14/2012No. 11-60509

taken into consideration by th e Sentencing Commission in formulating the guidelines that sh o u l d r e s u lt in a sentence different from that described.” 18 U.S.C. § 3553(b). Basing a departure on financial resources is an erroneous use of discretion because “the Sentenc i n g Commission adequately considered a defendant’s ability to pay in formulating the fine guideline.” Graham , 946 F.2d at 21. The d i s t r ict court, however, did not consider Minor’s ability to pay in “departing” from the Guidelines; rather, the court properly utilized its discretion to vary from the Guidelines by taking into account Minor’s financial resources when determining the appropri a t e l y punitive fine in the first instance. The district court’s reliance on Minor’s assets was not in reference t o h is socioeconomic status. I n s t e ad, it was with regard to his ability to pay the fine and the need for the fine to be sufficiently punitive. See 18 U.S.C. § 3572(a)(1) (“In determining whether to impose a fine, and the amount, time for payment, and method of payment of a fine, the court shall consider

. . . the defendant’s income, earning capacity, and financial resources.” (emphasis added)); see also U.S.S.G. § 5E1.2(d) (stating that a fine should be sufficiently punitive and take into consideration the defendant’s ability to pay in light of earning capacity and financial resources). 1 3 For the foregoing reasons, the district c ourt’s judgment on remand is AFFIRMED.

M inoral soar gues that the dis tri ct cour t err ed by t ak ing i nto acc ounthi s fai luret o 1 3 dis clos e the tra nsf

er of the pr ope rty to his late -w ife as an aggravati ng cir cum st ance
. Ho we ver, even ass umi ng ar

guendo that Min or is cor rec t that the dist ric t cour t abus ed its dis cre tio n in this man ner, he canno t sho w how the dis tri ct cour t’s c o n s i d e r a tio n of the non- dis clos ure aff ect ed the fine im pos ed. Both the governm ent and Min or agree that in im p o s i n g M inor ’s origi nal se nten ce, the dis tri ct cour t did not tak e the non- dis clos ure into cons ide rat ion in
se tti ng the fine

. Never thel es s, the origi nal se nten ce st ill im pos ed a fine of $250, 000 per count , t h e s a m e amo unt im pos ed at res ente ncing. Acco rd ingly, even if the dis tri ct cour t’s
cons ide rat ion of the non- dis clos ure as an aggravati ng cir cum st ance wa s err oneo u s , it wa s harm les s sin ce it didno t im pac t the amo unt of the fine

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