U.S. v. Bras

• Citation: 483 F.3d 103
• Decision Date: 20 April 2007
• Docket Number: No. 05-3190.,05-3190.
• Parties: UNITED STATES of America, Appellee v. Antonio C. BRAS, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

483 F.3d 103

UNITED STATES of America, Appellee v. Antonio C. BRAS, Appellant.

No. 05-3190.

United States Court of Appeals, District of Columbia Circuit.

Argued October 20, 2006.

Decided April 20, 2007.

Appeal from the United States District Court for the District of Columbia (No. 03cr00051-01).

Joseph J. Aronica argued the cause and filed the briefs for appellant.

Suzanne G. Curt, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Kenneth L. Wainstein, U.S. Attorney at the time the brief was filed, and Roy W. McLeese, III, Thomas J. Tourish, Jr., and Steven J. Durham, Assistant U.S. Attorneys.

Before: GARLAND and BROWN, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge.

Antonio C. Bras pled guilty to conspiracy to commit bribery and highway project fraud in violation of 18 U.S.C. § 371, an offense for which the statutory maximum is five years in prison. He was sentenced to 37 months' incarceration under the regime announced in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The validity of that sentence is the only issue on appeal.

Bras raises four challenges to his sentence. First, he contends that the district court sentenced him in violation of Booker principles, because it increased his sentence based on facts found by the court itself, using a preponderance of the evidence standard. Second, Bras maintains that the court violated his Sixth Amendment right to confront the witnesses against him, by increasing his sentence based upon testimonial evidence that was not subject to cross-examination. Third, he argues that the court used unreliable evidence to calculate the loss that his crime caused the government, and thereby erred in calculating his advisory Sentencing Guidelines range. Finally, Bras claims that his sentence was unreasonable, because the district court failed to adequately consider the relevant statutory sentencing factors. Finding these challenges to be without merit, we affirm the judgment of the district court.

I

On February 5, 2003, a grand jury issued a fifteen-count indictment against defendant Bras, charging him with participating in a conspiracy in which Fort Meyer Construction Corporation, through the use of bribes and false documents, overcharged the District of Columbia Department of Public Works (DPW) for asphalt used to pave District streets. See 18 U.S.C. §§ 371 (conspiracy to commit an offense against or to defraud the United States), 201 (bribery of a public official), 1020 (highway project fraud). Trial commenced on December 1, 2003. The evidence at trial, supplemented by the defendant's admissions during his mid-trial guilty plea, established the following facts.

Fort Meyer contracted with the DPW to repair and resurface roads in the District of Columbia. Using funds provided largely by the Federal Highway Administration, the District paid Fort Meyer based on the weight of asphalt it delivered, in amounts ranging from $38 to $50 per ton. The amount of asphalt delivered in each truck-load was recorded on an "asphalt ticket," which a Fort Meyer employee gave to a DPW employee when the asphalt arrived on site. At the end of each day, relying on the asphalt tickets, a DPW inspector prepared an Inspector's Daily Report (IDR), which recorded the total weight of asphalt delivered to the job site. After the data from the IDRs was entered into a computer, the DPW prepared a voucher that authorized payment to Fort Meyer for the asphalt and paving work.

Bras was initially employed by Fort Meyer as an asphalt foreman. He was promoted to asphalt superintendent in October 1996, when his superior, Keith Armentrout, could no longer perform his day-to-day responsibilities due to health problems. Thereafter, Bras was responsible for ensuring that Fort Meyer delivered the proper amount of asphalt to DPW job sites.

As superintendent, Bras continued a bribery scheme that had been initiated by Armentrout. Bras conspired with other Fort Meyer employees, and with DPW inspectors and engineers, to pay the DPW employees to accept false asphalt tickets reflecting tons of asphalt that had never been delivered. The DPW employees then prepared IDRs that included the false weights, and the DPW paid Fort Meyer based on the resulting calculations. At trial, five DPW employees — inspectors David Brown and Thomas Smith, and engineers Timothy Martin, Clarence Short, and Jonathan Gant — testified that they took bribes from Bras as part of this scheme.

At the close of the government's case, the district court dismissed eight of the fifteen counts against Bras. The following Monday, pursuant to a written plea agreement, Bras pled guilty to Count One of the original indictment (which had not been dismissed). That count charged Bras with conspiring to defraud the United States and to bribe DPW employees to accept false tickets for never-provided asphalt, in violation of 18 U.S.C. § 371. At the subsequent plea proceeding, Bras signed a Statement of Facts that was read into the record. The Statement described the aforementioned bribery scheme and listed numerous specific occasions, from July 16, 1997, to September 24, 1997, upon which Bras gave false asphalt tickets to DPW employees, thereby "inflating the quantity of asphalt delivered to a job site" and "fraudulently inflating" a federal contract. Appendix (App.) 42-43.

The final sentencing proceedings in the case took place after the Supreme Court issued its opinion in United States v. Booker, which excised the federal statutory provisions that made the United States Sentencing Guidelines mandatory, and thus rendered the Guidelines "effectively advisory." 543 U.S. at 245-46, 125 S.Ct. 738; see United States v. Simpson, 430 F.3d 1177, 1182 (D.C.Cir.2005). Looking to the Guidelines for advice, the court began with the appropriate guideline for the offense to which Bras pled guilty. See U.S. Sentencing Guidelines Manual § 2C1.1 (2000) [hereinafter U.S.S.G.] (offering or giving a bribe); see also id. § 2X1.1 (conspiracy).¹ This guideline begins with a base offense level of 10, see id. § 2C1.1(a), to which the court added two levels because Bras participated in more than one bribe, see id. § 2C1.1(b)(1). The guideline further instructs that, if the loss to the government exceeds $2,000, the offense level should be increased based upon the amount of loss. See id. § 2C1.1(b)(2)(A) (referencing loss table at U.S.S.G. § 2F1.1). After two days of evidentiary hearings, the court determined that the loss to the government was at least $41,000, which corresponded to a five-level increase in the offense level. See id. § 2F1.1(b)(1)(F). The court also found that Bras was an organizer or leader of the scheme, which added an additional four levels. See id. § 3B1.1(a).

The resulting offense level was 21, which, in light of the fact that Bras had no prior convictions, yielded an advisory Guidelines range of 37 to 46 months' incarceration. See id. ch. 5, pt. A (sentencing table). After further consideration of other sentencing factors, the district court sentenced him to a 37-month prison term. Bras now appeals his sentence, charging that the court committed a variety of errors in the course of calculating the sentence.

In Booker, the Supreme Court instructed appellate courts to review sentencing decisions under a "`reasonableness' standard." 543 U.S. at 262, 125 S.Ct. 738. It also declared that, even "[w]ithout the `mandatory' provision" that it had excised from the Sentencing Reform Act, "the Act nonetheless requires judges to take account of the Guidelines together with other sentencing goals" listed in the statute. Id. at 259, 125 S.Ct. 738 (citing 18 U.S.C. § 3553(a)). A sentencing court acts unreasonably if it commits legal error in the process of taking the Guidelines or other factors into account, or if it fails to consider them at all. See Simpson, 430 F.3d at 1185-87; United States v. Price, 409 F.3d 436, 442-43 (D.C.Cir.2005). A defendant may also challenge the length of a sentence as unreasonable, although we have held that "a sentence within a properly calculated Guidelines range is entitled to a rebuttable presumption of reasonableness." United States v. Dorcely, 454 F.3d 366, 376 (D.C.Cir.2006). With these precepts in mind, we turn to an examination of Bras' sentencing challenges.

II

Bras' first contention is that the district court sentenced him in violation of Booker principles, because it increased his sentence based on facts found by the court, using a preponderance of the evidence standard. According to Bras, Booker held that, in "applying . . . the Guidelines," any fact that is "`necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.'" Appellant's Br. 11 (quoting Booker, 543 U.S. at 244, 125 S.Ct. 738). Based only on the facts Bras admitted in his plea, he contends that "the proper maximum authorized sentence would be the 16 month maximum sentence allowed for an Offense Level of 12, comprised in this case of a Base Offense Level of 10 with a 2-level enhancement for making more than one bribe." Reply Br. 3. On this calculation, the resulting sentencing range would have been 10 to 16 months, which Bras argues should have been reduced still further by consideration of other sentencing factors. Instead, Bras asserts, the court "erroneously relied on additional facts the court found by a mere preponderance" — particularly facts regarding the amount of the government's loss — "to impose an enhanced sentence of 37 months." Id.

Bras misapprehends the meaning of Booker. As we have previously explained, see Simpson, 430 F.3d at 1182, Booker consisted of two separate majority opinions. In the first, "substantive" opinion, the Supreme Court held that the Sixth...