United States v. Robles
| Decision Date | 19 March 2015 |
| Docket Number | Case No. CR 04-1594(B) SVW |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ALBERT ROBLES, Defendant. |
| Court | U.S. District Court — Central District of California |
A jury convicted Albert Robles on thirty counts of honest services fraud, money laundering, and bribery stemming from his corrupt tenure as South Gate City's Treasurer. United States v. Garrido, 713 F.3d 985, 989 (9th Cir. 2013).1 Subsequent development in the law, however, forced the Ninth Circuit to reverse certain convictions, entitling Robles to a new sentence. The unusual facts of this case — namely, the extent of Robles's corruption no longer captured by his surviving convictions — warrant an upward departure from the Guidelines range. The Court therefore imposed a sentence of 84 months imprisonment (the amount of time Robles has served) and 3 years supervised release. This memorandum fully explains the reasons animating the sentence, which the Court set forth during the hearing on March 16, 2015.
Between 1999 and 2001, Robles took contributions from Michael Klistoff, the owner of Klistoff & Sons Waste Company. Id. at 990. Klistoff hoped to gain access to the city's waste-hauling contracts. Id. And when the city's contract became available in 2001, Klistoff told Robles's longtime friend George Garrido that he wanted it. Id.2
Before the city solicited proposals, Robles met with Klistoff and showed him the draft documents. Id. at 991. The draft proposal envisioned four companies providing different services, but Klistoff suggested that one company do it all. Id. Robles evidently agreed, and the final request called for a single company to haul all the city's waste. Id.
Klistoff & Sons submitted a bid. Id. Robles then tapped his friend, Louis Moret, as the city's bidding facilitator, telling him that Klistoff & Sons was his "horse in the race." Id. Still, Robles expressed concern to Moret that Klistoff might not be able to make a persuasive presentation to the contract selection committee. Id. So Moret recommended Ray Garubo as a consultant, whom Garrido soon after told Klistoff to hire. Id. Garubo became Klistoff's consultant, but Garrido paid Garubo's fees. Id.
Robles also provided Klistoff with other competitive advantages. He showed him the other bids, which were supposed to be confidential. Id. And he directed Moret to provide Garubo with the questions the committee would ask bidders, which were also supposed to be confidential. Id.
After all the bidders made oral presentations, the selection committee voted to negotiate only with Klistoff & Sons. Id. The city council approved the selection and awarded the $48 million contract to Klistoff's company. Id.
The government filed its original indictment in November 2004. Id. at 992. Robles proceeded to trial some time later under a second superseding indictment alleging twenty-one counts of honest services mail and wire fraud, four counts of money laundering, and five countsof bribery. Id. The indictment and jury instructions permitted the jury to convict Robles of honest services fraud under two different theories: (1) bribery and kickbacks or (2) failing to disclose conflicts of interests. Id. at 995-97. And the government's case rested on both, although the prosecutor emphasized Robles's undisclosed conflicts in his closing arguments. Id. at 996-97. The jury convicted Robles on all charges. Id. at 992. The Court sentenced him to ten years imprisonment. Id. Robles then appealed. Id.
During the pendency of Robles's appeal, the Supreme Court decided United States v. Skilling, 561 U.S. 358 (2009). Before then, honest services fraud could be based on either bribery or undisclosed conflicts of interest. Garrido, 713 F.3d at 993; United States v. Kincaid-Chauncey, 556 F.3d 923, 942 (9th Cir. 2009). Skilling changed that: honest services fraud only encompassed bribery and kickback schemes, the Supreme Court said, not failures to disclose conflicts of interest. 558 U.S. at 409-12; Garrido, 713 F.3d at 993-94.
This intervening change in the law rendered the Court's jury instructions erroneous. Garrido, 713 F.3d at 994-95. Even though there was "evidence in the record that could support a bribery or kickback conviction," the gravaman of the indictment, instructions, and prosecution's arguments was the nondisclosure theory, making it "impossible to conclude that the jury convicted Robles . . . based on [his] participation in either a bribery or kickback scheme instead of based on Skilling's unconstitutional failure to disclose a conflict of interest." Id. at 996-97. The Ninth Circuit consequently reversed Robles's honest services fraud convictions. Id. at 998.3
The Ninth Circuit upheld Robles's bribery convictions though. Id. at 1002. In doing so, the Ninth Circuit pointed to the ample evidence supporting the jury's verdict:
Robles showed Klistoff a draft request for the proposals for the contract, and . . . the final request for proposals incorporated Klistoff's suggestion . . . . Robles assigned his friend Moret to work as facilitator for the bidding process . . . . Robles further instructed Moret that his "horse in the race" was Klistoff & Sons. During the selection process, Robles communicated with Moret frequently and Moret told Robles information that was not available to the public. Robles requested that Moret recommend a consultant to assist Klistoff & Sons in its presentation for the bid, but he did not request assistance for any bidders. Klistoff & Sons hired the recommended consultant. Robles showed Klistoff the other companies' competing bids . . . . Moret provided Robles and Klistoff & Son's consultant with confidential questions . . . .
Id. at 1000. The Ninth Circuit then rejected Robles's other legal argument, id. at 1000-02, and remanded the case for further proceedings consistent with its opinion, id. at 1002.
The government declined to retry Robles for honest services fraud due to the age of the case and the time Robles already served. Gov't's Sentencing Position, 1:24-28, ECF No. 418.
The reversal of Robles's honest services fraud convictions unbundled the Court's prior sentence. See United States v. Ruiz-Alvarez, 211 F.3d 1181, 1184 (9th Cir. 2000). Since the Ninth Circuit's remand was unlimited, the Court must repackage a de novo sentence in light of the entire record. See United States v. Matthews, 278 F.3d 880, 885-86 (9th Cir. 2002); United States v. Garcia-Guizar, 234 F.3d 483, 490-91 (9th Cir. 2000); United States v. Barron, 172 F.3d 1153, 1160 (9th Cir. 1999) (en banc); United States v. Ponce, 51 F.3d 820, 826 (9th Cir. 1995) (per curiam). Consequently, the Court must calculate Robles's Sentencing Guidelines range, consider the range, assess the factors outlined in 18 U.S.C. § 3553(a), arrive at an appropriate sentence, and explain the reasons for imposing the chosen sentence. United States v. Blinkinsop, 606 F.3d 1110, 1114 (9th Cir. 2010). The Court cannot presume the Guidelines range is reasonable. Id. And although the Court may exercise its discretion in tailoring a sentence, the ultimate punishment must be reasonable. Gall v. United States, 552 U.S. 38, 51 (2007). As a general rule, the Court uses a preponderance of the evidence standard when making factual findings. United States v. Dare, 425 F.3d 634, 642 (9th Cir. 2005).
Since the Court considers Robles's sentence upon an open record, it is not temporally circumscribed to the facts as they existed at the original sentencing hearing. See, e.g., Ponce, 51 F.3d at 826. And a de novo sentence includes a recalculation of Robles's criminal history in light of all relevant evidence. See id.; United States v. Romano, 749 F. Supp. 53, 57 (D. Conn. 1990) aff'd, 937 F.2d 54 (2d Cir. 1991).
Robles has three criminal convictions. He spent ten days in jail for a vehicle code violation in 1986. The age of this conviction, however, renders it irrelevant to Robles's criminal history score. U.S. Sentencing Guidelines Manual § 4A1.2(e)(3) (2000) [hereinafter USSG].4 Robles was sentenced to four years probation for a penal code violation in 2002, which equates to one criminal history point. USSG §§ 4A1.1(c), 4A1.2(e)(2). Last, Robles's conviction for failing to identify information in mass mailings — which were a product of the same corruption underlying his federal convictions — results in two additional points. USSG §§ 4A1.1(b), 4A1.2(e)(2). Three criminal history points place Robles in criminal history category II. USSG § 5A.
A court may impose a downward variance where the defendant's criminal history category "significantly over-represents the seriousness of a defendant's criminal history or the likelihood that the defendant will commit further crimes." USSG § 4A1.3. The Probation Department submits (and Robles does not object) that this case warrants such a departure. In essence, they contend that Robles had not incurred this conviction at the time of the original sentencing, so its inclusion would repunish him for the same conduct. But Robles "has no legitimate expectation of finality in the original sentence when he has placed those sentences in issue by direct appeal and has not completed serving a valid sentence." United States v. Andersson, 813 F.2d 1450, 1461 (9th Cir. 1987). The Court must consider the full record as itcurrently stands. Ponce, 51 F.3d at 826; see also United States v. Montalvo-Rodriguez, 540 F. App'x 339, 340-41 (5th Cir. 2013) (per curiam); United States v. Allen, 153 F.3d 1037, 1043 (9th Cir. 1998). And neither Robles nor the Probation Department have pointed to any evidence that Robles's criminal conduct was more innocuous than his past convictions suggest. See United States v. Sablan, 469 F. App'x 601, 603 (9th Cir. 2012). Thus, the Court has no reason to conclude that classifying Robles as a category II offender significantly over-represents the seriousness of his criminal history.
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