USA. v. Kinter

• Court: U.S. Court of Appeals — Fourth Circuit
• Writing for the Court: Before NIEMEYER and TRAXLER; NIEMEYER
• Citation: USA. v. Kinter, 235 F.3d 192 (4th Cir. 2000)
• Decision Date: 26 September 2000
• Docket Number: No. 99-4621,99-4621
• Parties: (4th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PAUL THOMAS KINTER, Defendant-Appellant. . Argued:

Page 192

235 F.3d 192 (4th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PAUL THOMAS KINTER, Defendant-Appellant.

No. 99-4621.

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: September 26, 2000.

Decided: December 19, 2000.

Appeal from the United States District Court for the District of Maryland, at Greenbelt.

Deborah K. Chasanow, District Judge. (CR-98-493-DKC) COUNSEL ARGUED: Martin Gregory Bahl, FEDERAL PUBLIC DEFENDER'S OFFICE, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, Susan M. Bauer, Assistant Federal Public Defender, Barry J. Pollack, Assistant Federal Public Defender, Baltimore, Maryland, for Appellant. Lynne A. Battaglia, United States Attorney, Jan Paul Miller, Assistant United States Attorney, Greenbelt, Maryland, for Appellee.

Before NIEMEYER and TRAXLER, Circuit Judges, and Frederick P. STAMP, Jr., Chief United States District Judge for the Northern District of West Virginia, sitting by designation.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Traxler and Chief Judge Stamp joined.

OPINION

NIEMEYER, Circuit Judge:

For his bribery-related convictions, Paul Kinter was sentenced to 46 months imprisonment, a term based on the amount of benefit that a government contractor received as a result of the bribes rather than the lesser amount of benefit that Kinter personally received from the scheme. It is this lesser amount that Kinter contends is appropriate to consider under U.S.S.G. § 2C1.1(b)(2)(A). Because the Sentencing Guidelines' general application principles stated in§ 1B1.3(a)(1) instruct that a court's determination of the amount of "benefit received" must be informed by the scope of Kinter's activities as well as the reasonably foreseeable activities of persons acting jointly with him, we affirm. In doing so, we also reject Kinter's argument that the Supreme Court's recent decision in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), renders his sentence unconstitutional because it was based in part upon judge-made findings pursuant to the Sentencing Guidelines.

I

When Scott King, an IRS employee, informed Paul Kinter, his former father-in-law, during the summer of 1990 that the IRS planned to consolidate many of its computer maintenance contracts into a single, multimillion dollar contract that it would award to a company certified by the Small Business Administration as a§ 8(a) contractor,^* the two men decided to sell King's influence at the IRS in exchange for kickbacks from a yet-to-be-identified company for whom they would obtain the contract. At the time, King was the technical representative for the IRS's Martinsburg, West Virginia facility and the person on whom the contracting officer, who had authority to award the procurement contract, relied.

With the assistance of a co-conspirator, Mark Nicholas, Kinter eventually located and brought into the scheme Washington Data Systems, Inc., and its subcontractor RGI, Inc. (collectively "Washington Data"), as a § 8(a) contractor. In furtherance of the scheme, Washington Data hired Kinter and Nicholas as "consultants" and agreed to pay them a kickback of approximately 3% of any revenue that Kinter and Nicholas would secure for Washington Data. Kinter and Nicholas were to pay King his share from their amount. Kinter and Nicholas initially paid King approximately $300 per week. After King recommended Washington Data to the contracting officer and Washington Data obtained its first purchase order, King's payments increased to $500 per week. Washington Data had no previous experience in computer maintenance and would not have received the IRS's contract but for King's influence with the contracting officer.

Following the successful completion of that first contract, Washington Data had its "foot in the door" and received approximately 30 short-term and long-term purchase orders from the IRS over the following 5 years. As Kinter had anticipated, the revenues to Washington Data from these contracts exceeded $57 million, generating $9.5 million in profits for Washington Data. Although King ceased to be the technical representative at the IRS's Martinsburg facility in 1992, Kinter and King continued to receive payments from Washington Data until December 1996. In the aggregate, Kinter received between $340,000 and $350,000 from Washington Data, and he paid a substantial portion of this amount to King.

The grand jury indicted Kinter in December 1998 on charges of conspiracy, in violation of 18 U.S.C. § 371; bribery of a public official, in violation of 18 U.S.C. § 201(b)(1); and payment of a gratuity to a public official, in violation of 18 U.S.C.§ 201(c)(1)(A). Following Kinter's guilty plea to the charges, the district court sentenced Kinter to two concurrent 46-month terms of imprisonment on the bribery and conspiracy charges, and one concurrent 24-month term on the gratuity charge. In calculating Kinter's sentences for the bribery and conspiracy counts, the district court enhanced Kinter's offense level by 14 levels based on the $9.5 million in benefits received by Washington Data as a result of the bribery scheme. In doing so, the court rejected Kinter's argument that it should have considered only the $340,000-to-$350,000 amount that Kinter personally received. Had the court accepted Kinter's position, it would have enhanced Kinter's offense level only 8 levels, exposing him to a sentencing range of 24-30 months imprisonment.

This appeal followed.

II

For bribery offenses, the Sentencing Guidelines provide that the sentence shall be enhanced by the greatest of (1) the value of the bribery payment, (2) the "benefit received or to be received" as a result of the bribery payment, or (3) the loss to the government. U.S.S.G. § 2C1.1(b)(2)(A). If the dollar amount so identified exceeds $2,000, the enhancement is prescribed by the table contained in U.S.S.G. § 2F1.1. See id. That table provides an 8-level enhancement if the dollar amount is more than $200,000, and a 14-level enhancement if the dollar amount is more than $5 million. See id . § 2F1.1(b)(1).

The government contends that the proper measure for determining the enhancement in this case is the "benefit received" by Washington Data -the $9.5 million profit that it received from the IRS contracts, yielding the 14-level enhancement that the district court found in this case. Kinter contends that because he was paid between $340,000 and $350,000, the 8-level enhancement is the correct one. He argues that the § 2C1.1 enhancement contemplates only the amount of benefit that he personally received, not the benefit received by Washington Data.

Because resolution of this issue turns primarily upon the legal interpretation of the Sentencing Guidelines, our standard of review is de novo. See United States v. Nale, 101 F.3d 1000, 1003 (4th Cir. 1996); United States v. Jones, 31 F.3d 1304, 1315 (4th Cir. 1994).

Kinter's argument discounts the effect of his crime in a manner that is contrary to the explicit provisions of the Sentencing Guidelines. Section 2C1.1(b)(2) characterizes a "benefit received" as a "specific offense characteristic," and § 1B1.3(a)(1), providing general application principles for the Sentencing Guidelines, instructs that "specific offense characteristics" are to be determined on the basis of

(A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or will fully caused by the defendant; and

(B) in the case of a jointly undertaken criminal activity (criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reason ably foreseeable acts and omissions of others in fur therance of the jointly undertaken criminal activity ,

that occurred during the commission of the offense of con viction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense . . . .

U.S.S.G. § 1B1.3(a)(1) (emphases added). These provisions create two separate bases upon which we conclude that "benefit received," for the purposes of sentencing Kinter, must include Washington Data's $9.5 million profit from the IRS contracts. First, Kinter induced, procured, and willfully caused Washington Data to obtain the IRS contracts. As the district court found:

Mr. Nicholas may have been more important than Mr. Kin ter in getting to an 8(a) [contractor] that was willing to pay the kickbacks, but Mr. Kinter was no less instrumental in arranging for this three-way relationship to take place.

He not only, in my view, was necessary to that beginning, he participated in it, . . . [and he] was intimately involved in the decisions that the coconspirators made and carried out.

* * * * * *

Mr. Kinter was very involved in the ongoing process of receiving the commissions from [Washington Data] and get ting them laundered and split up.

These findings alone make the $9.5 million in profits received by Washington Data relevant to the § 2C1.1 calculus through the application of § 1B1.3(a)(1)(A).

The district court also found that Kinter and Washington Data undertook the bribery conspiracy jointly and that during the conspiracy Kinter foresaw the scope of the continued course of dealing between the IRS and Washington Data, thus rendering the contractor's profits includable also through application of§ 1B1.3(a)(1)(B). The district court stated from the bench,

[T]he initiation of this and the continuing receipt of the commissions [from Washington Data] is all part of the con duct that constitutes the bribery scheme. There was no break, no unforeseen intervening event that stopped the course of this bribery scheme. The fact that IRS continued dealing with [Washington Data] was not unforeseen. It was, in fact, foreseen. It was the purpose of setting...