Case: 09-30880   Document: 00511695195   Page: 1   Date Filed: 12/14/2011




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                             December 14, 2011
                                 No. 09-30880
                                                                 Lyle W. Cayce
                                                                      Clerk
UNITED STATES OF AMERICA,
                                          Plaintiff - Appellee
v.

GARRETT GENE WILSON,
                                          Defendant - Appellant


                               consolidated with
                                 No. 09-30881


UNITED STATES OF AMERICA,
                                          Plaintiff - Appellee
v.

ALAN VICTOR LEE,
                                          Defendant - Appellant


                               consolidated with
                                 No. 09-30904


UNITED STATES OF AMERICA,
                                          Plaintiff - Appellee
v.

WINFRED RANDOLPH JOHNSTON, JR.,

                                          Defendant - Appellant
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                                   No. 09-30880 et al.



                                    consolidated with
                                      No. 09-30943


UNITED STATES OF AMERICA,
                                                  Plaintiff - Appellee
v.

WILLIAM MONTGOMERY RODES, JR.,

                                                  Defendant - Appellant



                   Appeals from the United States District Court
                       for the Western District of Louisiana
                             USDC No. 5:08-CR-379-4


Before GARZA and DENNIS, Circuit Judges.*
PER CURIAM:**
        These consolidated appeals arise out of the prosecution of five persons —
defendant-appellants Garrett Wilson, Alan Lee, Winfred Johnston, Jr., and
William Rodes, Jr. (collectively “appellants”), as well as Mark Rowe, who is not
a party to this appeal — for defrauding the Bossier Parish School Board
(“BPSB”). All five defendants pled guilty in federal district court to various
charges arising out of the fraud. Appellants each raise one or more challenges


       *
        Judge Garwood was a member of the panel that heard oral arguments but due to his
death on July 14, 2011, did not participate in this decision. This case is being decided by a
quorum. 28 U.S.C. §46(d).
       **
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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to the sentences imposed by the district court.          We conclude that all of
appellants’ claims regarding their respective sentences are without merit.
Accordingly, we AFFIRM appellants’ sentences.
                               BACKGROUND
      Wilson and Lee owned Arklatex Air Repair (“Arklatex”), an air
conditioning company in Bossier Parish, Louisiana. Johnston, Rodes, and Rowe
were employed by BPSB in the maintenance department. In 2004, Wilson and
Lee entered into a kickback scheme with Johnston, Rodes, and Rowe, regarding
the bidding process for maintenance and repair of heating, ventilation, and air
conditioning (“HVAC”) systems in Bossier Parish schools. Johnston was the
supervisor of the HVAC section of the BPSB maintenance department and the
superior of Rodes and Rowe. In exchange for kickbacks, Johnston and Rodes
provided Arklatex with competitors’ bids for HVAC contracts with BPSB;
Arklatex would then be in a position to make a lower bid and obtain the
contracts. As a result of this scheme, Arklatex received numerous BPSB HVAC
contracts and a lucrative contract for emergency repair work.
      To make up for the low bids, Arklatex billed for larger equipment than it
actually installed, submitted invoices for equipment that it did not replace and
for work in rooms that did not exist, and charged more for units than it specified
in its bids. As supervisor of BPSB’s HVAC program, Johnston was responsible
for reviewing contractors’ invoices and ensuring that the work was completed
properly. He would approve invoices to be submitted for payment to a supervisor
or to BPSB’s director of maintenance, and Johnston’s approval signified that
work had been completed.        Arklatex paid Johnston and Rodes for their
assistance, and permitted them to conduct credit card transactions with their
BPSB-issued credit cards at Arklatex, receiving cash back, with false invoices
generated to cover up the fraud.


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                               No. 09-30880 et al.

      Appellants pled guilty to various counts of federal mail fraud. Following
a sentencing hearing, the district court found the amount of loss attributable to
the fraud to be $1,214,550.25. The Sentencing Guidelines (“guidelines”) range
for each defendant was 87 to 108 months. Johnston, Rodes, and Wilson each
received a sentence of 87 months in prison, while the district court varied
upward to 120 months with respect to Lee because of his criminal history, his
personal characteristics, and his involvement in the fraud. The defendants were
also ordered to pay $1,194,300.25 in restitution to BPSB.
      Johnston, Wilson, Lee, and Rodes each filed a timely notice of appeal.
                              DISCUSSION
                 I. Johnston’s Claims (Case No. 09-30904)
      Johnston raises four claims: (1) that the district court’s loss determination
was not supported by the evidence or a proper methodology; (2) that the district
court erred by concluding that Johnston was a public official, which increased
his base offense level; (3) that the district court should have sentenced him below
the guidelines range; and (4) that the government refused to file a motion for
downward departure for an improper reason. These claims require this court to
engage in a bifurcated review. See Gall v. United States, 

, 51 (2007).
First, we determine whether the district court committed significant procedural
error. 

consider the substantive reasonableness of the sentence
under a deferential abuse of discretion standard.         

that
Johnston’s four claims lack merit.
                                        A.
      First, Johnston argues that the district court’s loss determination, which
amounted to over $1.2 million, was based on an inappropriate methodology and
unsubstantiated evidence. Johnston contends that a figure of $941,174, or
“somewhere less than $1,000,000,” is the appropriate loss amount. Johnston Br.


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                               No. 09-30880 et al.

11; Johnston Reply Br. 5. The difference between the loss amount urged by
Johnston and that found by the district court translates to a difference of two
offense levels. U.S.S.G. § 2B1.1(b)(1)(H), (I) (2008).
      Because Johnston preserved his arguments by contesting the loss
determination and methodology below, we review the district court’s method for
determining loss de novo and the underlying factual findings for clear error.
United States v. Harris, 

, 250-51 (5th Cir. 2010). Courts need make
only a “reasonable estimate” of loss. See U.S.S.G. § 2B1.1 cmt. n.3(C); United
States v. John, 

, 279 (5th Cir. 2010). Nevertheless, the method used
“must bear some reasonable relation to the actual or intended harm of the
offense.” 

(internal quotation marks and citation omitted).
      The government submitted a detailed sentencing memorandum, which
included charts summarizing hundreds of invoices and the government’s loss
amount calculations, and which was supported by exhibits, including invoices,
BPSB bid invitations, and Arklatex’s bids for 2006 and 2007. The district court
held a hearing on the issue of the amount of loss. Citing, inter alia, the
government’s sentencing memorandum and the testimony of FBI Agent J.T.
Coleman at that hearing, the court concluded that the government’s
methodology and calculations were appropriate. The court noted that the
defendants failed to offer evidence that the method was improper or to provide
an alternate method, and it rejected in detail the defendants’ objections.
      Johnston argues that the government failed to prove the amount of loss,
and that the district court erroneously accepted the government’s methodology
and total loss figure. Johnston contends that the amount of loss should have
been reduced by legitimate equipment and services rendered as well as energy
cost savings due to the placement of superior units at various schools, arguments
the district court rejected in detail. Johnston does not provide any analysis of


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                               No. 09-30880 et al.

those claims or provide any alternative calculations or citations to specific record
evidence in support of his arguments, nor does he identify any error in the
district court’s reasoning rejecting his claims. We conclude that Johnston has
failed to demonstrate that the district court’s methodology and loss
determination were improper. See 

-81.
      Johnston also contends that an audit by an expert was necessary to
determine loss. This argument lacks merit. Relying on United States v. Jones,

, 706 (5th Cir. 2007), Johnston argues that a district court may not
rely on a Presentence Report (“PSR”) loss calculation based solely on unsworn
assertions of the government without an audit and independent analysis.
However, Jones involved a PSR’s determination of loss without any analysis of
the cost of actual services rendered, and based solely on unsworn assertions by
the government; this court noted as one deficiency the lack of any audit or
independent analysis.      

.        Here, by contrast, the
government submitted a detailed analysis of invoices showing the differences in
costs between services provided and services billed, supported by the testimony
of Agent Coleman and hundreds of pages of exhibits, including the invoices,
contracts, and bids. This court has previously affirmed as sufficient calculations
based on similar evidence. See United States v. Ollison, 

, 164 (5th
Cir. 2009).
      Finally, Johnston contends that Agent Coleman’s testimony required
specialized knowledge under Rule 702 of the Federal Rules of Evidence and is
thus subject to scrutiny under Daubert v. Merrell Dow Pharmaceuticals, Inc.,

(1993), which sets out standards for assessing the reliability of
expert testimony. Johnston also contends that the court should not have
accepted Coleman as an expert because there was no notice and because his
credentials were not provided. However, Johnston cites no authority for the


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                               No. 09-30880 et al.

proposition that an FBI agent’s testimony about loss calculation for fraudulent
HVAC billing must be considered under the rules governing expert testimony.
In addition, the district court did not deem Coleman an expert, but merely cited
Daubert as providing guidance in analyzing whether Coleman used an
appropriate methodology in determining loss.           Again, Johnston cites no
particular flaw in this methodology. Thus, we conclude that Johnston has not
shown any error regarding the amount of loss.
                                        B.
      Johnston next argues that the district court erred in determining that he
was a “public official” within the meaning of guidelines § 2C1.1(a)(1). We
disagree. The guidelines commentary to § 2C1.1 defines “public official” as
follows:
      “Public official” shall be construed broadly and includes the
      following:
      (A)   “Public official” as defined in 18 U.S.C. § 201(a)(1).
      (B)   A member of a state or local legislature. “State” means a State
            of the United States, and any commonwealth, territory, or
            possession of the United States.
      (C)   An officer or employee or person acting for or on behalf of a
            state or local government, or any department, agency, or
            branch of government thereof, in any official function, under
            or by authority of such department, agency, or branch of
            government, or a juror in a state or local trial.
      (D)   Any person who has been selected to be a person described in
            subdivisions (A), (B), or (C), either before or after such person
            has qualified.
      (E)   An individual who, although not otherwise covered by
            subdivisions (A) through (D): (i) Is in a position of public trust
            with official responsibility for carrying out a government
            program or policy; (ii) acts under color of law or official right;
            or (iii) participates so substantially in government operations
            as to possess de facto authority to make governmental

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                                     No. 09-30880 et al.

               decisions (e.g., which may include a leader of a state or local
               political party who acts in the manner described in this
               subdivision).
U.S.S.G. § 2C1.1 cmt. n.1. The district court’s determination that Johnston was
a public official was a matter of pure guidelines interpretation, and therefore, we
review it de novo. See United States v. Snell, 

, 346 (5th Cir. 1998).
       Johnston argues that subpart (C) of the commentary definition does not
apply to him because he was “merely a shop foreman” without “the authority to
allocate resources of his department or award contracts” or “to make
governmental decisions by virtue of substantially participating in government
operations.” Johnston Br. 23-24. The government does not dispute Johnston’s
premise that the definition of “public official” requires some measure of
authority, and instead contends that the record shows that Johnston possessed
the requisite authority. Gov’t Br. 56-57. The government points to the following
facts in support of its argument: Johnston had “authority to approve and certify
that work by an outside contractor had been completed in accordance with the
terms of the contract”; “Johnston had access to bids on air condition work . . . and
. . . could command $400 for each exercise of that access”; and “[h]e was able to
certify that an emergency existed and that units needed to be changed out on an
emergency basis.” 

not dispute the government’s assertions
regarding his job duties.
       We conclude that Johnston’s responsibilities were such that he falls within
the definition of a “public official” provided in the guidelines commentary. We
ground our determination in the structure of § 2C1.1, in case law interpreting
the commentary definition, and in case law interpreting the substantively
identical definition of “public official” set forth in 18 U.S.C. § 201(a)(1).1

       1
         Compare 18 U.S.C. § 201(a)(1) (“[T]he term ‘public official’ means[, inter alia,] . . . an
officer or employee or person acting for or on behalf of the United States, or any department,

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                                        No. 09-30880 et al.

        First, the structure of § 2C1.1 is inconsistent with Johnston’s argument
that a “public official” must have substantial authority over government resource
allocation or decision-making.2                  In addition to the base offense level
enhancement for a bribery offense by a “public official,” § 2C1.1 provides a
separate, larger enhancement “[i]f the offense involved . . . any public official in
a high-level decision-making or sensitive position.” U.S.S.G. § 2C1.1(b)(3). The
commentary states that “‘[h]igh-level decision-making or sensitive position’
means a position characterized by a direct authority to make decisions for, or on
behalf of, a government department, agency, or other government entity, or by
a substantial influence over the decision-making process.” 

It
follows that to qualify merely as a “public official,” and not as a “public official
in a high-level decisionmaking or sensitive position,” one need not possess “direct
authority to make decisions for, or on behalf of, a . . . government entity,” nor
wield “substantial influence over the decision-making process.” Further, this
court has said that, in determining whether a defendant was a “public official in


agency or branch of Government thereof, including the District of Columbia, in any official
function, under or by authority of any such department, agency, or branch of Government, or
a juror[.]”), with U.S.S.G. § 2C1.1 cmt. n.1(C) (“‘Public official’ . . . includes . . . [a]n officer or
employee or person acting for or on behalf of a state or local government, or any department,
agency, or branch of government thereof, in any official function, under or by authority of such
department, agency, or branch of government, or a juror in a state or local trial.”).
        2
          The parties do not debate, and we need not decide, whether merely being an
“employee . . . of a state or local government,” without more, is enough to make a defendant
a “public official” within the meaning of § 2C1.1. Cf. United States v. Neville, 

,
1104 (D.C. Cir. 1996) (“[18 U.S.C. §] 201(a)(1) has two possible readings. Under one
interpretation, ‘public official’ includes every [government] ‘employee . . .’ without further
qualification. . . . Alternatively, we could read section 201(a)(1) as . . . requiring [a government
employee] to act ‘in an[] official function’ . . . in order to qualify as a public official. . . . We need
not choose between the two readings, because under either Neville is a public official. If the
first reading is correct, and every District of Columbia employee is a public official, Neville
plainly qualifies . . . . If the second reading is correct, and only employees in ‘an[] official
function’ qualify, we must consider whether Neville performs an ‘official function’ for the
District of Columbia government. Without venturing a comprehensive definition of ‘official
function,’ we have no doubt that Neville performs such a role.” (final alteration in original)).

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a high-level decision-making or sensitive position,” an “important mark of high-
level responsibility is the existence of discretion involving final decision-making
authority over matters of public policy or over the expenditure of substantial
sums of money.” 

(citing United States v. Tomblin, 

, 1391 (5th Cir. 1995)). Again, it follows that a mere “public official” need
not have such final decision-making authority. Johnston’s suggested reading of
“public official” would render redundant § 2C1.1’s enhancement for a “public
official in a high-level decision-making or sensitive position,” and we must avoid
such a construction if possible. See, e.g., Dodd v. United States, 

,
370 (2005).
      Second, while there is scant case law interpreting the guidelines definition
of “public official,” that which exists conflicts with Johnston’s argument. In
United States v. Jones, 260 F. App’x 873 (6th Cir. Jan. 24, 2008) (unpublished),
a panel of the Sixth Circuit concluded that a defendant who “worked as a [state
driver’s] licensing clerk,” 

and was convicted of accepting bribes from
a driving school to make it easier for applicants sent by the school to obtain a
driver’s license, “clearly falls within the [guidelines] definition of ‘public official’”
because, “[a]s an official [state] employee . . . , [she] acted ‘on behalf of a state
agency,’ and had the ‘official responsibility’ to issue [state] driver’s licenses
pursuant to a ‘government program.’” 

Johnston argues that “[u]nlike
the defendant in Jones, Johnston was not placed in a . . . ‘position of public trust’
with ‘official responsibility for carrying out a government program or policy’ such
as issuing driver’s licenses to the public.”        Johnston Br. 25.       We are not
persuaded that the level of authority Johnston possessed is meaningfully
distinguishable from that possessed by the defendant in Jones.
      Third, case law interpreting the definition of the term “public official” in
the federal bribery statute, 18 U.S.C. § 201(a)(1) — which, as explained above,


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                                    No. 09-30880 et al.

is nearly identical to the definition of that term in guidelines § 2C1.1 cmt. n.1(C)
— further undermines Johnston’s argument that he did not possess the requisite
authority to be a “public official.”3 In United States v. Thomas, 

(5th
Cir. 2001), the defendant, “a guard employed by a private entity operating a
detention center under contract with the Immigration & Naturalization Service
. . . contend[ed] he was not a . . . ‘public official’ because[] he did not have any
responsibility or authority to allocate federal resources or implement federal
policy . . . and . . . did not occupy a position of public trust with official federal
responsibilities.” 

(emphases removed). This court concluded that the
guard “was a ‘public official’, as defined by § 201(a)(1)” because, “[a]lthough he
did not have any authority to allocate federal resources, [he] nevertheless
occupied a position of public trust with official federal responsibilities, because
he acted on behalf of the United States under the authority of a federal agency
. . . .” 

(citations omitted). Other cases confirm that a “public official”
under § 201(a)(1) need not have more authority than Johnston had. See, e.g.,
United States v. Baymon, 

, 728-29 (5th Cir. 2002) (concluding that
cook foreman at a federal prison who “h[eld] a position with some degree of
responsibility . . . [was] not plainly outside of the definition of ‘public official’”);
United States v. Neville, 

, 1106 (D.C. Cir. 1996) (determining that
District of Columbia prison guard “perform[ed] an ‘official function’” and noting



       3
          Application note 1(A) in the commentary to § 2C1.1 specifically references the
definition of “public official” in 18 U.S.C. § 201(a)(1). It is clear that the guidelines
commentary intended to adopt the same definition of “public official” used in that statute, and
accordingly, case law interpreting “public official” under 18 U.S.C. § 201(a)(1) is informative
of the meaning of the same term in § 2C1.1 of the guidelines. Cf. United States v. Hughes, 

, 673 n.1 (5th Cir. 2010) (noting that we“‘appl[y] our holdings under the residual
clause of the [Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii)] to analyze the definition
of crimes of violence under [U.S.S.G.] § 4B1.2, and vice versa,’” because those two provisions
contain identical definitions (quoting United States v. Mohr, 

, 609 n.4 (5th Cir.
2009))).

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                                No. 09-30880 et al.

that “nothing in the case law support[s the] argument that . . . a . . . government
employee must make policy or spending decisions” or otherwise “exercise
discretion in order to qualify as [a] public official[]”).
      Accordingly, we conclude that the district court did not err in determining
that Johnston was a “public official” under § 2C1.1(a)(1).
                                          C.
      We next conclude that Johnston has failed to show that his sentence is
substantively unreasonable. Because his sentence of 87 months is within the
guidelines range, it is presumptively reasonable. See United States v. Cooks, 

, 186 (5th Cir. 2009) (citing United States v. Candia, 

, 473
(5th Cir. 2006)), cert. denied, 

(2010). “When reviewing a
sentence for reasonableness, the court ‘will infer that the judge has considered
all the factors for a fair sentence set forth in the Guidelines.’” 

States v. Mares, 

, 519-20 (5th Cir. 2005)). “The presumption
is rebutted only upon a showing that the sentence does not account for a factor
that should receive significant weight, it gives significant weight to an irrelevant
or improper factor, or it represents a clear error of judgment in balancing
sentencing factors.” 

States v. Nikonova, 

, 376 (5th
Cir. 2007)).
      Johnston argues that he cooperated with the police in making a case
against one of his coconspirators and that the district court did not give him the
credit that he deserved for that assistance because the government declined to
exercise its discretion to file a motion for a downward departure under § 5K1.1.4
Johnston acknowledges that “[t]he district court indicated that it had taken
Johnston’s cooperation into consideration” when it chose to sentence him at the


      4
         We address below Johnston’s distinct argument that the government abused its
discretion in choosing not to file a § 5K1.1 motion.

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                               No. 09-30880 et al.

bottom of the guidelines range, but argues that the district court did not give
him enough credit for his cooperation. Johnston has not established any basis
for rebutting the presumptive reasonableness of his within-guidelines sentence.
See 

argues that the § 3553(a) factors applied to his personal
characteristics and offense characteristics justified a sentence below the
guidelines range. See Johnston Br. 27-32. These arguments fail to make the
necessary showing to justify upsetting the presumptively reasonable sentence
chosen by the district court. See 

; 

.
                                       D.
      We also conclude that the government did not impermissibly breach
Johnston’s plea agreement by refusing to file a guidelines § 5K1.1 motion for a
downward departure based on substantial assistance. Johnston challenges the
government’s determination that his cooperation was not substantial because it
led only to the prosecution of Rodes, who was less culpable than him. Johnston
preserved this issue in his PSR objections, and the court addressed it at
sentencing. Accordingly, as this issue implicates the government’s averment
under the plea agreement, review is de novo. See United States v. Garcia-
Bonilla, 

, 46 (5th Cir. 1993) (reviewing de novo a claim that failure to
file a § 5K1.1 motion breached the plea agreement).
      The government has discretionary authority to file a motion for a
downward departure pursuant to § 5K1.1; it is not required to do so. See 

government may bargain that discretion away, it did not do so
here, as the plea agreement stated that the decision to file a motion “shall be in
the sole and non-reviewable discretion of the United States Attorney.” See 

(determining that the government was “not obligate[d] . . . to move for a
downward departure” where the plea agreement provided that “‘the decision


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                                No. 09-30880 et al.

whether to file [a 5K1.1] motion rests within the sole discretion of the United
States’” (alteration in original)). Nevertheless, like other discretionary decisions,
a prosecutor’s decision not to file a § 5K1.1 motion is reviewable if the refusal
was based on an unconstitutional motive, such as race or religion. Wade v.
United States, 

, 185-86 (1992).
      Johnston contends that the policy of the United States Attorney for the
Western District of Louisiana of not filing a motion if a defendant’s cooperation
leads to an offender who is equally or less culpable is not “related to a legitimate
governmental end.” Johnston Br. 33 (citing 

); see 

(“As the Government concedes, Wade would be entitled to relief
if the prosecutor’s refusal to move was not rationally related to any legitimate
Government end . . . .” (citations omitted)). Johnston’s reliance on Wade’s
“legitimate Government end” language is misplaced. This court has rejected the
proposition that this language permits judicial scrutiny of the government’s
motives absent an allegation “that the government’s decision was based on . . .
a constitutionally suspect reason.” United States v. Urbani, 

, 110
(5th Cir. 1992). “Absent any such suggestion,” a defendant’s claim that the
decision was arbitrary amounts to nothing “more than his disagreement with the
government’s decision and an invitation to the district court to similarly
disagree, which is exactly the type of judicial oversight that Wade . . . forbids as
overly intrusive on the prosecution’s broad discretion.” 

contends that the government failed to act in good faith in
negotiating the plea agreement, arguing that it must have known that Rodes
was less culpable and that Johnston would not receive a departure. However,
we may not grant relief based on bad faith where the government retains sole
discretion over the decision to file a § 5K1.1 motion. See United States v. Solis,

, 227 n.3 (5th Cir. 1999).           Johnston’s contention that the


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                               No. 09-30880 et al.

government’s promise induced his plea is likewise unavailing, as “[t]here can be
no inducement when the Government retains sole discretion.” United States v.
Aderholt, 

, 743 (5th Cir. 1996).
      Accordingly, we conclude that Johnston’s arguments lack merit.
                   II. Wilson’s Claim (Case No. 09-30880)
      In his sole issue on appeal, Wilson contends that the district court erred
by failing to rule on his request that his sentence run concurrently with a state
parole revocation sentence. At sentencing, Wilson did not object when the court
stated that it would not rule on his request. “When a defendant fails to raise a
procedural objection below, appellate review is for plain error only.” United
States v. Lopez-Velasquez, 

, 806 (5th Cir. 2008). In order to preserve
the issue for appeal, the party “must raise a claim of error with the district court
in such a manner so that the district court may correct itself and thus obviate
the need for our review.” United States v. Rodriguez, 

, 414 (5th Cir.
1994). Wilson’s general request did not sufficiently alert the district court to the
procedural challenge he now raises. See United States v. Mondragon-Santiago,

(5th Cir. 2009). We therefore conclude that he did not preserve the
issue, and so we review only for plain error. United States v. Krout, 

, 1434 (5th Cir. 1995). To show plain error, Wilson must demonstrate error
that is clear or obvious and affects his substantial rights. See Puckett v. United
States, 

, 1429 (2009). We conclude he has failed to demonstrate
clear or obvious error.
      Federal law dictates that “[m]ultiple terms of imprisonment imposed at
different times run consecutively unless the court orders that the terms are to
run concurrently.” 18 U.S.C. § 3584(a); see also 

(stating that a district court has the discretion to order a defendant’s federal
sentence to run consecutively or concurrently to an undischarged state


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                               No. 09-30880 et al.

sentence). By operation of Louisiana law, a defendant’s state-imposed parole is
deemed revoked as of the date of the commission of a new felony and a parole
revocation sentence is automatically imposed without a hearing by the court or
parole board. La. Rev. Stat. Ann. § 15:574.10. The statute states that the new
sentence and the term of imprisonment for violation of parole will be served
consecutively unless the state court directs a concurrent term. 

Wilson was released from state prison on parole, having served
a sentence for armed robbery and accessory to murder. He was still on parole
when he was charged in the present case, and upon being charged he turned
himself into state authorities. He was held in state custody throughout the
federal proceedings in the present case. At his sentencing hearing in this case,
the district court declined to rule on Wilson’s request that his federal sentence
be ordered to run concurrently with the sentence he would receive for violating
the terms of his state parole. Before reaching its decision, the district court
acknowledged “the possibility or even the likelihood” that Wilson may be subject
to a consecutive state sentence. In declining to rule, therefore, the district court
recognized that Wilson was likely to serve consecutive sentences, but preserved
for the state district court or parole board the opportunity to order the sentences
to run concurrently.
      Wilson argues that the district court erred because it was not aware that
Wilson’s parole would be revoked without a hearing, and, as a result, the district
court “unwittingly den[ied]” his request for concurrent sentencing. He provides
no support for his claim that the district court was unaware of the relevant
Louisiana statute. Furthermore, he overlooks the fact that the Louisiana statute
also gives the state court the authority to order the sentences to run
concurrently. 

of whether the district court was aware
of the Louisiana statute, the district court clearly foresaw the possibility — even


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                                    No. 09-30880 et al.

likelihood — that the state court would not intervene to order the sentences to
run concurrently, and that therefore, the sentences would run consecutively.
Thus, it cannot be said that the district court “unwittingly den[ied]” Wilson’s
request.
       The district court properly exercised its discretion not to order concurrent
sentences. That decision was not clear or obvious error.
                       III. Lee’s Claims (Case No. 09-30881)
       Lee raises two claims: (1) that the district court improperly relied on his
past arrest record when it sentenced him to 120 months in prison, which is above
the guidelines range for his offense; and (2) that the government breached its
plea agreement by failing to file a § 5K.1 motion for a downward departure based
on substantial assistance, and by failing to inform the district court of the extent
of his cooperation.
       We apply a plain error standard of review to Lee’s claims.5 At sentencing,
Lee objected “to the ruling of the court and to the sentence.” He did not
specifically object to the court’s reference to his past arrest record, nor did he
assert that the government’s decision not to file a § 5K1.1 motion was arbitrary
or improper, or assert that the government failed to advise the court of his
cooperation. Lee’s general objection did not give the district court notice or an
opportunity to correct any of the specific claims he now raises on appeal.

; 

. We therefore
conclude that he did not preserve these issues for appeal, and so we review only
for plain error. 

; 

; United
States v. Reeves, 255 F3d 208, 210 & n.2 (5th Cir. 2001) (concluding that the


       5
         We reach this conclusion despite the fact that both parties contend that the ordinary
reasonableness standard of review applies to Lee’s past arrest record claim, because this court
decides the standard of review notwithstanding the contentions of the parties. See United
States v. Vontsteen, 

, 1091 (5th Cir. 1992) (en banc).

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                                     No. 09-30880 et al.

defendant’s mere statement that the government had agreed to recommend a
particular sentence was insufficient to preserve a claim that the government’s
failure to make that recommendation was a breach of the plea agreement). To
show plain error, Lee must demonstrate error that is clear or obvious and affects
his substantial rights. See 

. To prove that his
substantial rights were affected by the plain error, Lee must show, by a
probability sufficient to undermine confidence in the outcome, that the error
affected his sentence.        See 

. We
conclude that Lee did not demonstrate plain error.
                                               A.
       Lee first asserts that the district court improperly relied on his arrest
record to impose what he characterizes as an upward departure from the
guidelines range. He argues that guidelines § 4A1.3(a)(3) specifically prohibits
upward departures based on prior arrests, and that this court has held that
arrests are not the kind of reliable information that may justify departing from
the sentencing guidelines.6
       According to the PSR, prior to his arrest in the present case, Lee had been
convicted of several crimes. These included: (1) a 1976 conviction for aggravated
assault with a deadly weapon; (2) a 1979 conviction for driving while intoxicated;
(3) a 1981 burglary conviction; (4) a 1981 federal conviction for possession of a
firearm by a felon; (5) a 1982 conviction for theft over $10,000; (6) a 1985



       6
         The sentencing guidelines authorize an upward or downward departure from the
guidelines range if the court concludes that the otherwise applicable criminal history category
is inadequate. See U.S.S.G. § 4A1.3. An upward departure may be warranted “[i]f reliable
information indicates that the defendant’s criminal history category substantially under-
represents the seriousness of the defendant’s criminal history or the likelihood that the
defendant will commit other crimes.” 

arrest record itself shall not be considered
for purposes of an upward departure . . . .” 

see United States v. Williams, 

, 494 (5th Cir. 2010).

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                               No. 09-30880 et al.

conviction for possession of methamphetamine; and (7) a conviction for a
burglary that occurred in 1989. When Lee was being sentenced for the 1989
burglary, the court relied on his six prior convictions and sentenced him to
prison for 24 years as a habitual offender. He served 11 years of this sentence,
and was paroled in 2002. The PSR also indicated that in addition to these
convictions, Lee had numerous arrests from 1975 to 1990 for various offenses,
including theft, carrying a weapon, burglary, being a fugitive, and possession of
burglary tools.
      In the calculation of his criminal history score, Lee received three criminal
history points for the 1989 burglary conviction. He did not receive any points for
the six additional convictions because they all occurred more than 15 years
before his arrest in the present case. See U.S.S.G. § 4A1.2(e). At sentencing, the
district court concluded that the guidelines range of 87-108 months was
insufficient under the § 3553(a) factors, opining that people “need[] to be
protected from [Lee] continuing to commit crime” and that the penalties imposed
on him for prior offenses had not been sufficient to give him “the message about
taking money from others.” The court recited his numerous past convictions and
arrests, and declared that “[o]rdinary citizens” never accumulate the number of
arrests that Lee had. The court also noted that Lee served only 11 years of a 24-
year habitual offender sentence. The court further cited Lee’s conduct in the
present case, which involved defrauding public schools of $1.2 million dollars
that might have been used to benefit students. The court relied on Lee’s role in
the offense, its magnitude, and the likelihood that he would commit further
crimes, to impose “a non-Guidelines sentence . . . sometimes called a ‘variance,’”
and sentence Lee to 120 months in prison.
      Lee was correct in arguing that district courts may not consider the “mere
fact” of an arrest in imposing an upward departure from the guidelines range.


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                               No. 09-30880 et al.

See United States v. Jones, 

(5th Cir. 2006); U.S.S.G. § 4A1.3.
However, here, the district court did not impose an upward departure; it applied
a variance. We have not resolved the question as to whether “it is error for a
district court to consider a defendant’s ‘bare arrest record’ in imposing a non-
Guidelines sentence.” See United States v. Williams, 

, 495 (5th Cir.
2010). Because this question is unresolved, we cannot find that the district court
committed “clear or obvious” error. United States v. Rodriguez-Parra, 

, 230 (5th Cir. 2009); see also United States v. Olano, 

, 734 (1993)
(“At a minimum, court of appeals cannot correct an error pursuant to [plain error
review] unless the error is clear under current law.”)
      Moreover, the district court did not only consider the “mere fact” of Lee’s
prior arrests, but rather, as in Williams, conducted a “lengthy and weighted
discussion of other significant, permissible factors” during Lee’s sentencing
hearing. 

. The district court was permitted to, and
did, rely on the nature and circumstances of Lee’s offense, as well as on his
history. 18 U.S.C. §3553(a)(1). The district court thoroughly analyzed the
relevant facts — including Lee’s extensive criminal history and the magnitude
of the offense — in concluding that a guidelines-based sentence was insufficient
to comply with the purposes set forth in 18 U.S.C. § 3553(a), and that a variance
would be required to adequately punish Lee, deter criminal conduct, and protect
the public from further crimes by Lee. Its reference to Lee’s arrest record does
not “impugn its conclusion that the significant variance was justified.” 

.
                                        B.
      Lee next contends that the government improperly declined to file a
motion for a downward departure under § 5K1.1 for his substantial assistance,
and breached the plea agreement by failing to advise the district court of his


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                               No. 09-30880 et al.

cooperation. According to Lee, the government’s decision not to file a motion was
arbitrary in light of the facts. He also contends that the government did not file
the motion because it was punishing him for disagreeing with the government’s
calculation of loss. As in Johnston’s case, the government expressly retained its
discretionary authority to determine whether to file a § 5K1.1 motion. See

. Therefore, we can review the government’s
refusal to file the motion only if we find that the refusal was based on an
unconstitutional motive. 

. Because Lee claims that he was
being arbitrarily punished for raising what he believed to be valid objections to
the loss calculations, his claim could fall within the scope of Wade. See 

(noting that certain discretionary determinations based on
the defendant’s exercise of statutory or constitutional rights would be improper).
      However, Lee has failed to show that the government’s refusal to file the
§ 5K1.1 motion was based on a motivation to punish him for exercising his right
to challenge the government’s loss calculation. In its letter explaining why it
declined to file the motion, the government noted that Lee had objected to it
including several particular HVAC units in its loss calculation. The government,
however, went on to state that it did not decline to file the motion because of the
extra work involved in verifying Lee’s claim, but because government
investigators discovered that Lee’s claim that the units had been installed was
untrue, and that the government had been right to include the units in their
initial loss calculation. In addition, the government noted that Lee’s repeated
frivolous challenges to the government’s claims of loss were therefore
inconsistent with cooperation. The government opted not to file the motion
because Lee provided untruthful information that resulted in the dispute.
Because we conclude that the government’s refusal to file the § 5K1.1 motion



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                                No. 09-30880 et al.

was not based on the unconstitutional motive that Lee claims, we cannot review
its decision not to file the motion.
      Finally, Lee’s assertion that the government breached its agreement to
advise the court of his cooperation also is without merit. The district court had
Lee’s sentencing memorandum before it, in which Lee’s counsel set out in some
detail the extent of his alleged cooperation. In addition, Agent Coleman testified
at Lee’s guilty plea hearing that Lee had cooperated in the investigation by
wearing a wire and assisting in efforts to recover assets for forfeiture and
restitution. Lee does not point to any information regarding his cooperation that
he believes the government failed to provide the court. He merely recites the
same information that he provided in his sentencing memorandum. We conclude
that there was no breach of the plea agreement. See United States v. Hooten,

, 884 (5th Cir. 1991) (concluding that the government did not violate
the essence of the plea agreement where the district court was generally aware
of the “important aspect[s] of [the defendant’s] cooperation”).
                    IV. Rodes’ Claim (Case No. 09-30943)
      Rodes contends that his within-guidelines sentence of 87 months was
substantively unreasonable. Although Rodes did not expressly object to the
reasonableness of his sentence after it was pronounced, he made detailed
arguments before the district court that even the bottom of the guidelines range
for his offense was excessive in light of the § 3553(a) factors, and his counsel
objected to the sentence imposed. Thus, we conclude that he preserved his
reasonableness challenge. See 

. Because
Rodes’ sentence fell within a properly calculated guidelines range, it is entitled
to a rebuttable presumption of reasonableness. See 

; 

(citing 

). To rebut this presumption,
Rodes must show that his sentence fails to take into account a factor that should


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                               No. 09-30880 et al.

receive significant weight, gives significant weight to an irrelevant or improper
factor, or represents a clear error of judgment in balancing the sentencing
factors. 

.
      Rodes contends that his sentence is unreasonable because it did not
account for his history and characteristics, did not promote just punishment, did
not take into account the wide variety of sentences available, and does not avoid
unwarranted sentencing disparities. He claims that he warranted a sentence
below the guidelines range because he is relatively less culpable than his co-
defendants, and because of several mitigating factors, including serious health
problems, alcohol abuse, family circumstances, remorse, cooperation, and his
age. We consider these arguments, and conclude that Rodes has not rebutted the
presumptive reasonableness of the district court’s within-guidelines sentence.
      The district court was in the best position to determine the relative
culpability of the parties and to weigh the relevant factors and evidence. See

. Because it has full knowledge and familiarity of the
facts and the individual defendants, the district court has “an institutional
advantage over appellate courts in making these sorts of determinations,
especially as they see so many more Guideline sentences than appellate courts
do.” Koon v. United States, 

, 98 (1996); see also 

-
52. We therefore are deferential to the district court’s sentencing decision. 

.
      The record supports the district court’s decision to reject Rodes’s lesser
culpability claim. The PSR and Agent Coleman’s testimony suggests that Rodes
was involved in informing Lee and Wilson of the BPSB bids; that he received
cash and other things of value, such as repairs to his car, notwithstanding his
unsupported assertions to the contrary; and that he even complained he was not
receiving as much remuneration as Johnston. He also assisted in the overall


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                               No. 09-30880 et al.

scheme by signing off on false invoices at Johnston’s direction, falsely certifying
that proper equipment was in place, and failing to conduct proper inspections.
      Further, Rodes’ comparison of his sentence to those imposed on Johnston,
Wilson, and Rowe is inapposite. They were not similarly situated to Rodes, and
therefore are “not appropriate points for comparison in a reasonableness
analysis.” 

. Wilson and Johnston received sentences at
the bottom of the range because the government asserted that they provided
assistance in the investigation, and even filed a § 5K1.1 motion on behalf of
Wilson. There is no indication that the government similarly asserted that
Rodes provided assistance or that the court had reason to believe that he had
been cooperative. Rodes also fails to provide support for his allegation that he
and Rowe were engaged in similar criminal conduct. The record does not indicate
why Rowe received probation, though it does indicate that Johnston and Rodes
were the two persons involved in the bid rigging scheme. These differences
between the defendants undermine Rodes’s claim of unwarranted disparity. See

the disparity between co-defendants’ sentences was not
unreasonable because they were not similarly situated).
      Rodes argues that there are additional factors that should have influenced
the district court to impose a lower sentence. First, he claims that he will not be
able to receive necessary medical treatment in prison, but does not provide
support for this allegation. Second, he claims that certain factors suggest that
he will be unlikely to commit future crimes, but did not show that the district
court failed to take these factors into account; on appeal, he merely repeats the
circumstances that he presented to the district court. Both are insufficient to
support a conclusion that the sentence was substantially unreasonable. Rodes
did not allege that the district court gave significant weight to an irrelevant or
improper factor. Finally, he did not show that the district court clearly erred in


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                               No. 09-30880 et al.

its balancing of the sentencing factors. In short, he has not made the required
showing to rebut the presumption that his sentence is reasonable. See 

asks this court to substitute his assessment of the evidence and § 3553(a)
factors for that of the district court, which this court may not do. See 

.
                                CONCLUSION
      For the foregoing reasons, we AFFIRM appellants’ sentences.




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