Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-10-2006

USA v. Weaver
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1743




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"USA v. Weaver" (2006). 2006 Decisions. Paper 1457.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1457


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 05-1743


                           UNITED STATES OF AMERICA

                                           v.

                              JOHN HENRY WEAVER,

                                                             Appellant.


                      Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. Civ. No. 03-cr-00337-2)
                    District Judge: Honorable Christopher C. Conner


                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 3, 2006


                  Before: SLOVITER and FUENTES, Circuit Judges,
                         RESTANI*, International Trade Judge


                                (Filed: March 10, 2006)


                                       OPINION




      *
         Honorable Jane A. Restani, Chief Judge of the United States Court of
International Trade, sitting by designation.
RESTANI, International Trade Judge.

       Appellant John Henry Weaver pleaded guilty to conspiring to engage in bribery in

connection with a federally funded program, a violation of 18 U.S.C. § 371 (2000), and was

sentenced to a term of thirty-six months in prison, followed by supervised release. Weaver

appeals his sentence, which was imposed after the issuance of United States v. Booker, 

(2005).

                                      BACKGROUND

       Weaver was employed by the Harrisburg School District (“the District”) for 16 years,

and at the time of the events relevant to this case was the District’s director of information

technology. In the spring of 2002, Weaver met Ronald Morrett when Morrett’s company,

EMO Communications, was awarded a contract to provide the District with approximately

eight hundred laptop computers. A majority of the funds for the computers came from a

federally funded program operated through the Federal Communications Commission,

commonly referred to as “E-Rate”. When Morrett originally submitted his bid, the specified

computers cost approximately $7,600 per unit. The government, however, took over two

years to approve the contract, and in the interim the cost of the computers dropped to

between $1,600 and $1,700 per unit. Nevertheless, EMO’s bid for the project was not

amended and the government approved the purchase of computers at the $7,600 price.

       After Morrett was awarded the contract, he and Weaver agreed that Morrett would pay

kickbacks to Weaver. The payments began in April 2002 and continued until May 2003,

during which time Weaver drew up phony invoices used by Morrett to justify the payments

                                              2
made by EMO Communications. While the record is not clear as to who first proposed the

scheme, Weaver admits that he initially agreed to accept a sum of $1 million from Morrett.

In subsequent meetings with Morrett, the figure was revised to $1.4 million. Later, while

meeting to discuss a discrepancy on one of the phony invoices prepared by Weaver, Morrett

offered an additional payment and gave Weaver a $500,000 check for which no invoice was

prepared. During the course of their arrangement, Morrett made approximately thirteen

payments to Weaver – ranging from $5,000 to $660,000 – for a total of approximately

$1,900,000.

       While it appears that Weaver was under no obligation to report the change in

computer prices to E-Rate, he was to some extent responsible for overseeing Morrett’s

performance of the contract. Specifically, on at least three occasions, representatives of E-

Rate called Weaver to confirm whether Morrett was performing his contract. Weaver

confirmed, truthfully, that he had received the computers.

       With the exception of his arrangement with Morrett, Weaver has no criminal history.

Weaver’s health is deteriorating, and he is currently classified as “disabled” by the Social

Security Administration.

       At sentencing, the District Court, applying the 2003 U.S. Sentencing Guidelines

Manual,1 (the “Guidelines”) imposed a base offense level of ten, and added sixteen levels for


       1
         A defendant is sentenced under the version of the Guidelines effective on the
date of sentencing, “unless doing so would expose the defendant to harsher penalties than
were in effect at the time the crime was committed.” United States v. Lennon,

, 539 (3d Cir. 2004). Because Weaver would be subject to a higher offense

                                             3
the amount of the bribe plus two more for the acceptance of multiple bribes. That was

reduced by three levels for acceptance of responsibility for an offense level of twenty-five.

This being Weaver’s first offense, his criminal history level was category I, resulting in fifty-

seven to sixty months of incarceration (the statutory maximum for the offense). Upon a

recommendation from the prosecutor, the court further reduced Weaver’s sentence by six

levels under Guideline § 5K1.1 for substantial assistance to the government, resulting in a

range of thirty to thirty-seven months. The court declined to further depart downward under

§ 5K2.0 to reflect conditions not otherwise taken into account, and also declined to further

depart for “aberrant behavior”under § 5K2.20.

       On appeal, Weaver claims that the District Court erred in imposing the two level

sentence enhancement for receipt of multiple bribes and in refusing to grant the downward

departures.




                                       DISCUSSION

I.     The Court Properly Considered Objections to the Presentence Report

       Weaver argues that, in imposing the multiple bribe enhancement under Guideline



level under the 2005 Guidelines, as compared with the version in effect at the time of the
offense conduct, the District Court was correct to use an earlier version. However, the
2003 Guidelines Manual incorporates amendments made to the Guidelines up to and
including November 5, 2003. Because Weaver’s conduct ended in May of 2003, the
2002 Guideline Manual should have been used. This error does not affect the outcome of
this case, as the relevant Guidelines provisions are the same in both versions.

                                               4
§ 2C1.1, the District Court improperly relied on portions of the presentence report following

his objection to some of the facts stated therein. Specifically, Weaver objected to the

presentence report’s statement that Weaver and Morrett “reached an understanding that

Morrett would make kickback payments to Weaver in order to ensure that Weaver promptly

processed the certifications which Morrett needed to obtain his draws.” (Presentence Report

¶ 7.)

        A district court “must – for any disputed portion of the presentence report or other

controverted matter – rule on the dispute or determine that a ruling is unnecessary either

because the matter will not affect sentencing, or because the court will not consider the

matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B) (2005). The party challenging the

presentence report bears the burden to produce “evidence that tends to indicate that the report

is incorrect or incomplete.” United States v. McDowell, 

, 290 n.1 (3d Cir.

1989). The ultimate burden of persuasion rests on the party seeking to adjust the sentence,

in this case the government. 

We review the District Court’s finding of fact for

clear error. 

        At sentencing, Weaver testified that Morrett had already begun to receive payments

from E-Rate when he made his arrangement with Weaver. This testimony calls into question

whether Morrett needed Weaver’s certification in order to obtain payment from E-Rate.

During direct examination by the judge, however, Weaver admitted his responsibilities in the

E-Rate program, including the fact that he responded to at least three “audit calls” from the

E-Rate office regarding Morrett’s performance of the contract. Likewise, cross examination

                                              5
revealed the following admission:

A:     Well, from time to time the E-Rate company would call and ask if we received what
       he were [sic] contracted for. I told them yes.
Q:     So you would provide information that would form the basis for payments to Mr.
       Morrett?
A:     Not all the time, no, sir.
Q:     But on a number of occasions?
A:     On a number of occasion [sic], yes.

(Sentencing Hr’g Tr. 22:5–12, Mar. 1, 2005.) The fact that payment had begun prior to

Weaver’s acceptance of the bribe does not contradict the District Court’s conclusion that

future payments were contingent on Weaver’s response to E-Rate’s telephone inquiries;

indeed, Weaver agreed that such calls “form[ed] the basis of payments to Mr. Morrett” on

a number of occasions.2 We therefore detect no clear error in the District Court’s finding that

“[i]f the defendant failed to approve a specific project I have no doubt that Mr. Morrett would

have withheld payment.” (Sentencing Hr’g Tr. 34:25–35:2.) We conclude that the District

Court made the necessary factual finding in response to Weaver’s objection under Fed. R.

Cr. P. 32(i)(3)(B).

II.    Weaver’s Conduct Constituted the Acceptance of Multiple Bribes

       Weaver argues that his conduct was “essentially, a single bribe over a period of time,”


       2
           Weaver also admitted at his plea hearing to the charge that “Mr. Morrett and his
company would receive progress payments under the contract only after the school
district, through Mr. Weaver, had certified their completion of aspects of the contract.”
(Plea Hr’g Tr. 28:23–29:2, Dec. 1, 2003.) We hold Weaver to his word at sentencing.
See United States v. Dickler, 

, 824 n.7 (3d Cir. 1995) (“We have held that
facts relevant to sentencing contained in the indictment and plea agreement are
conclusively established by the entry of a guilty plea even if they are not elements of the
offense charged.”) (citing United States v. Parker, 

, 178 (3d Cir. 1989)).
                                              6
and that the District Court erred in imposing a two offense level increase in his sentence for

the acceptance of multiple bribes under Guideline § 2C1.1(b)(1).

       We review the District Court’s legal conclusion that Weaver’s conduct constituted

multiple bribes de novo and the court’s findings of fact supporting that conclusion for clear

error. United States v. Rudolph, 

, 176 (3d Cir. 1998). Guideline § 2C1.1(b)(1)

imposes a two level sentence enhancement for receipt of “more than one bribe or extortion.”

The Commission’s commentary provides that “[r]elated payments that, in essence, constitute

a single incident of bribery or extortion (e.g., a number of installment payments for a single

action) are to be treated as a single bribe or extortion, even if charged in separate counts.”

Guideline § 2C1.1 cmt. n.6.

       In making its determination, the District Court relied in part on the Second Circuit’s

interpretation of § 2C1.1 in Arshad v. United States, 

(2d Cir. 2001). The

Arshad court identified several factors commonly applied to determine if a payment, or

payments, constitute multiple bribes, including: 1) whether the payments were “made to

influence a single action,” 

(citing, inter alia, United States v. Middlemiss, 

, 124 (2d Cir. 2000); United States v. Martinez, 

, 1153–54 (10th Cir. 1996));

2) “whether the pattern and amount of payments bear the hallmarks of installment payments,

such as a regular schedule of payments over a finite period of time toward a fixed final sum,

rather than a series of intermittent and varied bribes,” 

–82 (citing

; 

; United States v. Morales, 

, 917 (9th Cir. 1993)); and 3) “whether the method for making each payment remains the

                                               7
same.” 

(citing 

).

       Arshad was a contractor who received a $300,000 contract to paint public housing

units in New York. 

The state employed an inspector who was responsible for

overseeing contractors working on public housing projects and penalizing contractors who

performed inadequately. 

to bribe the state inspector for three purposes:

to overlook deficient performance, authorize additional work hours, and expedite approval

of payment for Arshad’s completed work. 

Arshad argued that his conduct did

not constitute multiple bribes because, although he had offered bribes to the same state

employee for different purposes, the bribes were all designed to “obtain insulation from an

overly rigorous inspection regime.” 

Arshad also argued that his payments were

“installment payments,” not multiple bribes, because they were made “at a fixed rate of $10

per apartment,” always paid through the same method, and always given to the same

inspector. 

The court in Arshad gave the first factor primary weight, finding that

“the payments were . . . intended to achieve several distinct benefits for Arshad and were

therefore more than one bribe irrespective of their manner of payment.” 

       Weaver claims that, unlike Arshad, he did not accept multiple bribes because there

was insufficient evidence to conclude that progress payments to Morrett were directly related

to kickback payments to Weaver. Even if we were to find that this counseled against finding

multiple bribes, this would not lead ineluctably to the conclusion that only one bribe took

place. As the court in Arshad noted, that “the existence of multiple payees and payment

methods may demonstrate the existence of multiple bribes.” 

(citing Morales, 

). The payments from Morrett to Weaver do not bear any hallmarks of installment

payments as noted in the comments to Guideline § 2C1.1. The approximately thirteen

individual payments varied from $5,000 to over $600,000. The amount of compensation

Weaver received continued to grow over the course of his relationship with Morrett. An

initial request for $1 million later became $1.4 million, which was supplemented by an

additional $500,000 at the end of the scheme. Thus, the payments followed neither a

“regular schedule,” nor a progression toward a “final fixed sum.” Likewise, the method of

payment varied considerably – money was given directly to Weaver, then channeled through

relatives, and then directed through a corporation controlled by Weaver.3 These facts point

strongly toward the conclusion that Weaver accepted multiple bribes.

       It is a closer question whether the numerous payments to Weaver were made for the

purposes of influencing a “single action” or, as the District Court found, “multiple discrete

acts.” Unlike Arshad, this case involves bribes related to only one type of action – Weaver’s

response to calls from E-Rate. Nevertheless, there is nothing in § 2C1.1 requiring us to find

that separate payments prompting an official to perform the same action on three different

occasions cannot constitute multiple bribes. As discussed above, Weaver’s own testimony

at his sentencing demonstrates that at least some of the payments from E-Rate to Morrett



       3
        Weaver also argues that this case differs from Arshad in that he never accepted
payment in return for overlooking deficient or substandard services from Morrett.
Whether a person offering a bribe provided substandard service has no bearing on
whether the scheme involved multiple bribes.


                                             9
were conditioned on Weaver’s response to E-Rate’s inquiries. Furthermore, the schedule of

payments suggests that Weaver was paid intermittently for the performance of discrete acts.

It is particularly difficult to reconcile the fact that Weaver received an additional $500,000

from Morrett near the end of the contract (with about 110 computers remaining for delivery)

with the argument that these payments all contemplated performance of the same action.

Weaver had already received the agreed-upon $1.4 million payment for the prior shipments,

which indicates that the $500,000 must have been given for some other purpose. While the

matter is not free from doubt, we find no clear error in the District Court’s factual conclusion

that the payments were made intermittently to influence more than one act by Weaver. Given

these three factual conclusions – that the bribes increased over time, that the payments varied

in amount and delivery method, and that Weaver performed multiple acts – we conclude that

Weaver accepted multiple bribes under Guideline § 2C1.1.



III.   The District Court’s Sentence Was Reasonable

       Weaver briefly contends that the two-level enhancement should have been proven

beyond a reasonable doubt, rather than decided by a preponderance of the evidence.

       The Supreme Court has held that “[o]ther than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 

, 490 (2000). Interpreting Apprendi, courts initially followed the usual and ordinary

meaning of “statutory maximum,” allowing a judge to find facts at sentencing by a

                                              10
preponderance of the evidence so long as a sentence greater than that permitted by the

underlying criminal statute did not result. See United States v. West, 

, 459

(D.C. Cir. 2004). The Court’s opinion in Blakley v. Washington, 

(2004),

however, clarified that “the ‘statutory maximum’ for Apprendi purposes is the maximum

sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or

admitted by the defendant.” 

       Weaver contends that under the Blakely definition of “statutory maximum,” he was

entitled to have the facts supporting his two-level enhancement found beyond a reasonable

doubt because they affected his sentence. Such a conclusion would effectively ignore the

second half of the Court’s opinion in United States v. 

, which cured

the Sixth Amendment infirmities of the Guidelines by rendering them advisory. By making

the Guidelines advisory, the Court ensured that a jury conviction or admission of guilt

supports a sentence at any level within the statutory range, provided such sentence is

“reasonable.” 

So long as the judge sentences a defendant within the statutory

range supported by a guilty verdict or admission of guilt (save for a finding of a prior

conviction) the judge has not imposed a sentence in excess of the “statutory maximum” as

defined by Booker.

       Therefore, “[a]s before Booker, the standard of proof under the guidelines for

sentencing facts continues to be preponderance of the evidence.” United States v. Cooper,

No. 05-1447, 

, at *4 (3d Cir. Feb. 14, 2006) (citing United States v. Mares,

, 519 (5th Cir. 2005), cert. denied, 

(2005)).

                                             11
       Weaver pleaded guilty to a violation of 18 U.S.C. § 371, which carries a maximum

penalty of five years. His sentence therefore does not exceed the “statutory maximum” and

the District Court properly applied a preponderance of the evidence standard to facts

surrounding the two-level enhancement.

       Following United States v. Booker, we also review Weaver’s sentence for

reasonableness under 18 U.S.C. § 3742(a)(1). See Cooper, 

, at *2 n.4. Our

evaluation of reasonableness begins with the trial court’s calculation of the correct sentencing

guidelines range. Cooper, 

, at *4. Second, “[t]he record must demonstrate

the trial court gave meaningful consideration to the § 3553(a) factors.” Cooper, 

, at *3. If the District Court did consider the § 3553(a) factors, we must then, giving

deference to the sentencing court, determine “‘whether the district judge imposed the

sentence he or she did for reasons that are logical and consistent with the factors set forth in

section 3553(a).’” Cooper, 

, at *4 (quoting United States v. Williams, 

, 481 (7th Cir. 2005), cert. denied, 

(2006)). A rote recitation of the

§ 3553(a) factors is not necessary, nor does such a recitation demonstrate reasonableness.

Cooper, 

, at *3.

       The District Court correctly calculated the sentencing range suggested by the

Guidelines applicable in this case. We note that the sentence imposed was within the

guideline range, which weighs in favor of a finding of reasonableness. Cooper, 

, at *4. The District Court mentioned that it considered all of the § 3553(a) factors,

and that the sentence imposed “satisfies the purposes” of that section. Additionally, the

                                              12
District Court considered Weaver’s age, medical condition, and financial circumstances,

noting that it imposed this sentence “in light of the nature of the defendant’s offense and his

lack of any criminal history” and also because he had “already received a significant

departure for substantial assistance to authorities based partly on his medical condition.”

(Sentencing Hr’g Tr. 61:20–23, 65:13–14.) The record demonstrates that the District Court

considered all of the § 3553(a) factors and reasonably applied them to this case. We

therefore conclude that Weaver’s sentence was reasonable.




III.   The Court Lacks Jurisdiction to Review The District Court’s Discretionary

       Decision not to Depart Downward

       We have jurisdiction to review errors of law made applying the Guidelines, but lack

jurisdiction under 18 U.S.C. §3742(a) to review the District Court’s discretionary refusal to

grant a downward departure. United States v. Torres, 

, 145 (3d Cir. 2001).

Although Booker excised the portion of the Sentencing Reform Act setting the standard of

review of sentencing on appeal, 18 U.S.C. § 3742(e), it left in place § 3742(a), which

provides for appellate review of 

. The principle that § 3742(a)

does not grant us jurisdiction to review discretionary decisions against downward departures

therefore remains intact. Cooper, 

, at *6 (“We follow the Courts of Appeals



                                              13
for the First, Sixth, Eighth, Tenth and Eleventh Circuits in declining to review, after Booker,

a district court’s decision to deny departure.”).

       There is no indication that the District Court misinterpreted the law regarding

downward departures or refused to exercise its discretion. The court clearly stated that:

“recognizing the authority to depart for the reasons outlined by defense counsel, the court

exercises its discretion not to do so under the circumstances of this case.” We therefore lack

jurisdiction to review the District Court’s discretionary decision not to depart from the

minimum sentence range suggested by the advisory guidelines.

       Accordingly, the sentence imposed by the District Court is AFFIRMED.




                                              14