KAYATTA, Circuit Judge.
Reginald Gracie appeals his sentence, arguing that the district court should have sentenced him for accepting an illegal gratuity rather than for demanding a bribe. We affirm.
Reginald Gracie, Jr., was a pharmacist. In 2005, he became Director of Operations
Gracie was eventually indicted on charges relating to these payments. On
At sentencing, the parties disputed which guideline the district court should use to determine Gracie's base offense level. The dispute arose because the guidelines implicitly presume that section 666(a)(1)(B) criminalizes both the receipt of bribes and the receipt of gratuities. The Guidelines' index manifests this presumption by directing a court sentencing for a violation of section 666(a)(1)(B) to two different guidelines: section 2C1.1 ("Offering, Giving, Soliciting, or Receiving a Bribe....") and section 2C1.2 ("Offering, Giving, Soliciting, or Receiving a Gratuity"). U.S. Sentencing Guidelines Manual ("U.S.S.G.") §§ 2C1.1; 2C1.2. The U.S. Sentencing Guidelines Manual provides that when several guidelines are listed in the index for a given statute or subsection, the sentencing court must "determine which of the referenced guideline sections is most appropriate for the offense conduct charged in the count of which the defendant was convicted." U.S.S.G. § 1B1.2, cmt.n.1.
By selecting section 2C1.1, for bribery, as the most appropriate guideline, the district court calculated a base offense level three points higher than would have been the case had the court selected section 2C1.2 as the most appropriate guideline. Compare U.S.S.G. § 2C1.1(a), with id. § 2C1.2(a). Employing that base offense level, the district court sentenced Gracie to forty-six months imprisonment on Count 22. Having preserved his right to appeal any sentence in excess of eighteen months of imprisonment, Gracie appealed. He contends that the district court erred in selecting the bribery guideline. For the following reasons, we disagree.
Although we had previously treated a district court's choice of guideline as predominantly a question of fact to be reviewed for clear error, United States v. Mariano, 983 F.2d 1150, 1158 (1st Cir. 1993), we recently clarified that "[w]e review the district court's choice of guidelines... de novo, and its attendant factual determinations for clear error." United States v. Almeida, 710 F.3d 437, 439 (1st Cir.2013); accord United States v. Ihenacho, 716 F.3d 266, 276 (1st Cir.2013).
When the district court sentenced Gracie, it was possible to construe 18 U.S.C. § 666(a)(1)(B) as making it unlawful to solicit or to accept either bribes or gratuities.
The essential distinction between a bribe and a gratuity is that a bribe requires a quid pro quo, the exchange of something of value for influence over some official conduct of the recipient. See Mariano, 983 F.2d at 1158. The indicted offense to which Gracie pled guilty plainly charged a quid pro quo. Gracie was indicted for "corruptly solicit[ing], demand[ing], accept[ing] and agree[ing] to accept [payments totaling $8,760] intending to be influenced in connection with the filling of drug orders...." When a person with the power to do or not do something demands a payment from the beneficiary of the exercise of that power as a condition for continuing to do so, the payment is not gratuitous. Cf. United States v. Alfisi, 308 F.3d 144, 151 (2d Cir.2002)(noting, in a case under 18 U.S.C. § 201, that even if payments were to assure that an inspector carried out his duties accurately, they were nonetheless bribes).
The circumlocutious manner in which Gracie recharacterizes his conduct reinforces the conclusion that the indictment charges the solicitation and receipt of bribes. Gracie argues that he took payments "as a reward for staying in his position" and "continuing to risk his license in a questionable business." This description is revealing for its omission of the actual charge that Gracie "demand[ed] and accept[ed]" the payment. We infer from such strained avoidance that Gracie recognizes his argument as an equally strained interpretation of the facts. It is also revealing for its concession that he demanded and took the funds not for a past event, but for "continuing" to do what the payee desired (stay on the job and risk his license by filling online drug orders). If a bus driver demands a tip from his passengers for "continuing" to drive the bus, the resulting payments are hardly gratuitous. So, too, if Gracie demanded payments from an online prescription drug seller for, as he argues, "continuing" to perform his job of filling drug orders, the resulting payments were the seller's "this" exchanged for Gracie's "that."
Taking a slightly different tack, Gracie strings together the following argument: the background notes to sections 2C1.1 and 2C1.2 discuss only those bribe and gratuity recipients who are "public officials;"
Gracie does not argue that the district court should have actually sentenced him under section 2E5.1.
We have previously cautioned against mixing and matching guidelines for different crimes, as each set of guidelines tends to function as a unit with its own "tradeoffs and specifications." United States v. Brennick, 134 F.3d 10, 15 (1st Cir.1998); see also U.S.S.G. § 1B1.1, cmt. n.2. There was no need for the district court to do so here. Although sections 2C1.1 and 2C1.2 do not define "bribe" and "gratuity" as explicitly as section 2E5.1 does, the distinction has been well defined in the case law. See Mariano, 983 F.2d at 1159 (discussing section 666(a)(2)); see also United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 404-05, 119 S.Ct. 1402, 143 L.Ed.2d 576 (1999)(construing 18 U.S.C. § 201). There was no need to look to section 2E5.1, which applies to significantly different statutes, to discern the difference.
Even if we followed Gracie's lead, however, he is again defeated by the indictment. Gracie was charged with taking money while "acting as the pharmacist-in-charge and director of operations of PIN Rx," "intending to be influenced and rewarded in connection with the filling of drug orders by PIN RX...." The indictment explained that "the Pharmacist in Charge is responsible legally and professionally for all activities related to the practice of pharmacy within the retail drug outlet." Therefore, Gracie was charged with accepting money to be influenced in and rewarded for his "official acts" as section 2E5.1 uses that term. Cf., e.g., United States v. Lopreato, 83 F.3d 571, 575 (2d
To be sure, the background commentary to sections 2C1.1 and 2C1.2 does not explicitly describe an individual who accepts payments but is not a public official. However, each guideline is written to cover multiple offenses. Cf. U.S.S.G. Ch. 1, Pt. A Subpt. 1(4)(a)(noting that the guidelines resemble a "real offense" system in part because "the hundreds of overlapping and duplicative statutory provisions that make up the federal criminal law forced the Commission to write guidelines that are descriptive of generic conduct rather than guidelines that track purely statutory language.") Section 666 is not the core statute for which sections 2C1.1 and 2C1.2 were written. See U.S.S.G. § 2C1.1 cmt. (stat.provisions); U.S.S.G. § 2C1.2 cmt. (stat.provisions). Nonetheless, the Sentencing Commission made clear in the Statutory Index that it viewed sections 2C1.1 and 2C1.2 as the most appropriate options for section 666(a)(1)(B), even though the statute clearly covers more than public officials. Courts need only select the "most appropriate" of the available guidelines. U.S.S.G. § 1B1.2 cmt. n.1. As Gracie neither argues on appeal that sections 2C1.1 and 2C1.2 were both inapposite nor tries to resuscitate his request for an "outside the heartland" departure or variance,
In reaching our conclusion, we have also considered two recent decisions not addressed by Gracie: United States v. Almeida, 710 F.3d 437 (1st Cir.2013), and United States v. Fernandez, 722 F.3d 1 (1st Cir.2013). We have done so because both cases were decided after Gracie filed his brief (although we note that the government cited Almeida, and Gracie could have addressed it had he filed a reply). In any event, however, neither case helps Gracie.
Almeida clarified that in determining which guideline to apply at sentencing, sentencing courts should look only at the conduct as charged in the indictment, not at, for example, uncharged conduct later proved at trial. 710 F.3d 437, 441-42 (1st Cir.2013).
In United States v. Fernandez, 722 F.3d 1, 25 (1st Cir.2013), we held that section 666(a)(1)(B) does not criminalize gratuities.
For the foregoing reasons, we affirm the judgment of the district court.
U.S.S.G. § 2C1.1 cmt. background. Section 2C1.2's note states: "This section applies to the offering, giving, soliciting, or receiving of a gratuity to a public official in respect to an official act." U.S.S.G. § 2C1.2 cmt. background.