United States v. Morgan

hearing produced would favorable ev-

idence. is fatal to claim. This failure Snyder,

See 1432. procedural

Although the aspects

Boucher’s ineffective claim assistance

debatable, According- the merits are not.

ly, Slack, is not he to a COA. entitled (if

529 U.S. S.Ct. 1595 “dis-

trict court petition denies habeas

procedural grounds,” petitioner must show jurists

“that reason would find it debat-

able petition valid whether states

claim of the right, denial of a constitutional jurists

and that of reason find it

debatable whether district court was

correct in procedural ruling”).

Ill reasons,

For foregoing DENY a

COA appeal. and DISMISS the America,

UNITED STATES

Plaintiff-Appellee/Cross-

Appellant, MORGAN,

Michael Steven Defendant-

Appellant/Cross-Appellee. 13-6025,

Nos. 13-6052. Court of Appeals,

Tenth Circuit.

Nov. Williams, Behenna, Zemp E.

Vicki Scott Attorney, Okla- Office OK, Plaintiff-Appel- City, homa lee/Cross-Appellant. Babbit, Chance, Mitchell &

Garin Derek OK, Chance, Dwayne City, Oklahoma Jack Fisher, Attorney at Esq., Jack Fisher Edmond, Law, OK, Defendant-Appel- lant/Cross-Appellee. HARTZ, O’BRIEN,

Before HOLMES, Judges. Circuit ORDER AND JUDGMENT* O’BRIEN, L. Circuit TERRENCE Judge. attorney Morgan, Steven

Michael bribery eonvic- politician, appeals from * decision, binding precedent. 10th Cir. judgment unpublished R. is an This order and § 666. As removing tion. See 18 U.S.C. he would ment activities. residents it, living to nursing the evidence assisted facilities was insufficient homes living because assisted jury in- facilities properly convict provide were necessary unable level that, specific structed on intent. Not Crosby, part care. Sam owner of OKA- but he should have new trial because the LA member Oak Living, Silver Senior was agree- failed to tacit disclose extremely regarding objections vocal to ments with a government’s witness. The the ODH’s efforts. He claimed Silver Oak (no cross-appeal claims targeted by was repeatedly ODH and incarceration; only probation) is substan- had to perceived deal with what he tively given unreasonable the nature of his unfair civil fines. He several hired law crime. affirm the We conviction but re- firms lawyers and assist with these dis- for resentencing. verse and remand A in putes. lawyer one of special- the firms in dealing ized with the ODH. I. Trial Evidence In May Crosby lobbyist hired Ben- Morgan, attorney, a practicing was ny promote Vanatta to Silver posi- Oak’s elected the Oklahoma in State Senate legislature. tion with the Vanatta immedi- 1996 and remained a senator he until was ately arranged meeting Crosby with and Const., term-limited 2008.1 See Okla. Morgan Morgan’s Capitol. office at V, § art. (establishing twelve-year 17A According Crosby’s testimony, they met limit legislators). term for state He for “about an hour to an hour and a half.” as the chairman of appropria- served (Morgan’s 1904.) App’x, 5Vol. at His tions committee 2004 and became Presi- testimony continued I as follows. told (Pro Tem)2 Pro Tempore dent the Sen- “them my fights all troubles and with bribery ate March 2005.3 The occurred everything that I [ODH] need- occupied august while he position. ed help. some I didn’t care whether it was In 2005 and members of the Okla- call, phone legislation, meetings, whatev- (“OKA- homa Living er, Assisted Association just I help get needed some them off LA”) unhappy (Id.) my became with the Oklahoma back.” About forty-five minutes (ODH) Department meeting, get Health’s enforce- into Vanatta left coffee. 32.1(A). 2038.) unpublished (Morgan’s App’x, Citation decisions is ate. Vol. 5 at The for, prohibited. position responsible R.App. ap- among Fed. 32.1. It is case, propriate things, setting agenda, running relates as it to law of the issue the caucus meetings, preclusion appointing preclusion. Unpub- claim members of the Senate to the various Senate committees. In lished decisions also be cited for their view, one 32.1(A). former Senator's Pro persuasive Tem is value. 10th Cir. R. Cita- judgment tion to an order and must be ac- powerful Capi- man most in the State companied by appropriate parenthetical tol.... He hires on the and fires staff Sen- (unpublished). ate, appoints he [members of the Senate to] notation — And in the committees. State [various] legislature,” 1. Oklahoma has "citizen mean- Oklahoma, governor with a weak form of ing majority the vast its members have a government, governor anything can’t do occupation serving full-time in addition to without the advice and consent the Sen- legislature. (Morgan's App’x, Vol. 5 at ate. 2036.) contrast, In members of the United (Id., 1356-57.) Vol. 4 at Congress prohibited having employment. outside legislative 3.During the 2007 and 2008 ses- sions, Morgan was Co-President Pro Tem be- equally Pro-Tem was described trial as was cause the Senate divided between parties. operating political “chief officer or CEO” the Sen- the two gone, having “a Morgan accused ODH of hidden told

While Vanatta itway agenda “This is the works. You con- Crosby, destroy Living Assisted (Id.) pay $1,000 (Id.) me a a month retainer.” industry.” cept Crosby arrangement Morgan assured direction, month, Crosby’s That same asked, “Well, Crosby I legal. do Arguello, Belinda Silver director of Oak’s get traffic tickets or maybe some some- compliance, began sending e-mails to Mor- (Id.) Morgan thing for that [amount]?”4 6gan reporting ongoing Silver Oak’s diffi- and will Crosby told to call law firm ODH. com- culties with She attached (Id.) you traffic “help [the tickets].” munications Oak and the between Silver end, though sound even “[d]idn’t substantively ODH. When right” Crosby, Silver Oak made twelve by August, Crosby suggested responded $1,000 from July 2006 payments be e-mail sent his e-mail address (Id.) July until 2007.5 ensure had received infor- Morgan to Dorya Shortly meeting, after Hus- response. mation. still The There was er, long-term chief ODH’s care divi- Crosby communication between and sion, supervisor, was contacted her Morgan May meeting after in was Rocky McElvany. McElvany told Huser Crosby’s visit from Morgan to office legislator request from a to they “had seeking a campaign contribution anoth- (Morgan’s talk about come rules.” Crosby er candidate. said at- also he 1949.) result, App’x, at As a Vol. Vanat- tempted to law office contact ta, Crosby, partner Lindsey Eric and concerning several traffic times tickets. in McElvany and met with Huser Mor- testimony enough: Morgan His clear (Mor- gan’s Capitol room at conference never in lawyer Oak as assisted Silver gan according present, Crosby’s to dealing matter, or with the ODH testimony. Morgan said he did attend way helpful. but he found to another stop meeting but did a moment say to participants). hello to the The January Morgan In authored and go meeting did not well. Huser testified (S.B. 738). introduced Bill Senate being “extremely conten- the encounter provided: 1950.) (Id. later, A few tious.” at weeks living If a in an resident assisted center 15, 2006, Crosby June letter e-mailed room, receiving care addition and numerous House Senate members n board, and personal specified in the care complaining proposing ODH about Living Continuum Care and Assisted .regulations [living] limit the “that would physician, improperly of seniors” Act determined choice[s] inter- preting existing regulations Department State Health shall detri- (Id., 2638.) ment seniors. Vol. at He the resident from order removal 2006, Crosby 4. charged owned twelve assisted liv- The Silver 2007. Oak statements Oklahoma, Nebraska, Texas, ing $1,000 facilities in per simply stated the month fee Wyoming employing persons, about "[professional was for [r]endered.” [s]ervices employees Those tickets," received "a lot of traffic 2640-46.) (Morgan’s App'x, Vol. 7 at Vol, 1900.) (Morgan's App'x, 5 at 6.Arguello initially Mor- sent e-mails to Senate, Morgan billing 5. send statements did gan’s Morgan e-mail at address although during 2006 payments Silver Oak Arguello directing e-mail her to send all Morgan July began Morgan be- 2006. office correspondence to law e-mail future gan sending January statements 2007 and address. through monthly July to do so continued living if following center August 13, assisted On Crosby sent a let- conditions met: ter thanking him for his “assistance to our program” terminating his retainer be- resident, family or le- resident’s cause Silver Oak limit “elected [its] gal representative, physi- the resident’s political (Mor- involvement for a while.”8 owner, cian, govern- or operator and the 2701.) gan’s App’x, 7 at Vol. ing living body the assisted center stay consent to the resident’s continued History II. Procedural center; living the assisted On grand March jury indict- owner, operator, 2. The governing respect ed with to three clients body living center com- the assisted paid him monthly who retainer fees. assuring mits to the resident re- Counts 1 ($141,- through related to fees necessary ceives additional services. 664.52) he received from Dilworth Devel- 2680-81.) (Morgan’s App’x, Vol. 7 Hus- opment, a company small landfill in North- purpose of Morgan’s er concluded the bill Oklahoma, ern from April 2006 May to tell “was leave [ODH] assisted alleged conspired 2008. Count 1 he living writing facilities alone and not.be attorney Stringer N. Martin and lobbyist (Id,, these deficiencies.” level-of-care Vol. to accept William Andrew Skeith the fees 1953.) Mary Brinkley, the executive in exchange for legislative his influence on of an of aging director association services behalf of Dilworth. 2 through Counts '29 providers, about not to testified her choice alleged in extortion violation of 18 U.S.C. lobby against the bill in the Senate be- 1951(a) (honest services) mail and fraud Morgan had cause introduced “[I]t’s it— §§ violation of 18 in U.S.C. & 1346. really go up against to leadership hard and through Counts 30 to with had do change any or to to bill make amend- ($250,000) fees Morgan collected between (Id. 1879.) to it.” at ment April 2006 and December 2008 from Te- passed unanimously After the bill naska, Inc., Nebraska energy corpora- Senate, it was amended in to the. House tion with in business interests Oklahoma. provide more detail.7 But in final even alleged Morgan These counts conspired version, favorably S.B. 738 addressed Stringer with accept and Skeith to the fees many Crosby’s of concerns. (Count legislative in return for influence 30) The signed (honest Governor S.B. into law engaged and in mail fraud services) on monthly June 2007. Silver Oak’s last §§ in violation 18 U.S.C. (Counts 31-62). payment Morgan July to onwas 2007. & trial, explained As 7. Senate Bill was a He Arguel- at reviewed the material attached to (Morgan’s bill” "shell when introduced. lo's e-mails and concluded Silver Oak 1838.) App’x, Vol. 5 at This means the bill’s basis for may actually subject a suit and be to language expected fully to minimal Morgan civil criminal sanctions. and/or developed during legislative session. any analysis leave written his record of might because he was afraid it be used trial, Morgan Crosby's At all of denied testi- client, against having He to claimed ar- events, mony gave his version of the ranged meeting Crosby a face-to-face with in testifying alleged meeting as follows: September Crosby and told Silver Oak could Morgan’s May office in 2006 never Senate Crosby be in serious trouble. Because Instead, Crosby occurred. he met with some- honesty appreciate seemed and could (after meeting time June between Silver future, help Crosby need his decided to ODH) Crosby’s Crosby Oak office. keep Morgan on retainer. hired him to whether Silver Oak determine ODH, bring against could a viable lawsuit necessary to bribery charged 18 ed verdict. evidence Count 63 under conclusively 666(a)(1)(B) Morgan’s support verdict need based U.S.C. every hypothesis $12,000 Morgan Oak. reasonable exclude receipt of Silver except negate possibilities all defendant named Sil- and need omitted). guilt.” (quotations Oak count. ver government’s evidence was After the a violation 18 U.S.C. To establish rested, complete the district must, 666(a)(1)(B), charges, including many of the dismissed course, offense prove all elements conspiracy relating count Count 30—the beyond a reasonable doubt. See re After a trial Morgan.9 Tenaska —as to Winship, 397 U.S. S.Ct. weeks, lasting jury convicted over two (“[T]he (1970) 25 L.Ed.2d 368 Due Process bribery with Sil- connection against accused convic- Clause protects (Count 63). It was unable ver Oak beyond upon proof tion reason- except 2 through on Counts 29— reach a verdict con- necessary fact every able doubt counts relat- the extortion and mail fraud he stitute crime which with ing acquitted Dilworth. elements, charged.”). Among those conspiracy relating count Count 1—the Morgan, is that appeal, critical charges mail fraud re- Dilworth—and Oklahoma, agent while an of the State (Counts 62). lating through Tenaska or “corruptly or ... solicit[ed] demanded] post-trial mo- Morgan’s The court denied agree[d] accept” or accepted] Silver trial. tion “intending while payments Oak’s retainer to be connection influenced rewarded Appeal III. Direct transaction, business, or series Sufficiency A. Evidence of'the Oklahoma. transactions” State § 666(a)(1)(B). claims Morgan 18 U.S.C. government present “Whether the government’s on this element a evidence support to ed sufficient evidence convic him, bribery According to fell short. a legal question we review de novo.” tion a Hernandez, quid pro quo, requires proof of a conviction States Cir.2007) him, which, a (quotations according requires also to omitted). taking corrupt agreement payor only whether, “ask[ between ] We words, payee. In other would the evidence—both direct and circumstan tial, it, government required to with inferences to have together reasonable light Crosby most show both he and acted with a be drawn therefrom —in says intent. no government, corrupt to the a reasonable He there was favorable establishing Crosby’s corrupt in- jury guilty could find the be evidence defendant having in- yond Crosby a reasonable doubt.” never testified tent — testimony Baldridge, tended bribe. omitted). needing during initial “help” their (quotations will about “We meeting enough jury a conviction rational for to infer reverse unless 1905.) (Morgan’s intent. Vol. 5 at disput- App’x, trier of fact could reached have granted judg- co-conspirators, government motion for no other 9. The court Skeith’s against acquittal agreed (conspiracy count ment of on all counts him to dismiss Count 30 (Counts 62). Tenaska) through granted relating against Morgan. The It also Stringer eventually re- Stringer's jury acquitted of the similar motion as Counts counts). (the (Dilworth) maining against him through counts Tenaska Without (Counts 29). defendants, through having alleged either of these following $1,275 fees of paid He also claims the evidence be in could cash. was not to Crosby’s intent obtain gave indicates Id. After employee Dean the legislature but rather help $1,275 cash, arrested, Dean was (1) legitimate legal retain him for services: charged, guilty and subsequently found him, (2) Arguello’s Crosby’s e-mails to re- soliciting a bribe and extortion. Id. tickets, (3) quest help with traffic Cros- appellate her court reversed convic- by’s knowledge Morgan’s past success- tion, writing: litigation against agencies,10 state ful agreement There was no between the (4) Crosby’s lack of knowledge of admitted parties that Dean $1275 government until S.B. 738 handed him personally. accepted money She os- copy the bill when recruited his tensibly on behalf DCRA testimony.11 with every indication that the fee was re- support argument of his that both quired Furthermore, for the [license]. intent, parties corrupt must Mor- nothing suggest see record gan primarily relies United States v. expected pro- favorable [hotel] Dean, (D.C.Cir.2011). 629 F.3d 257 Dean cessing of the license that Dean employed by the District Columbia agreed provide processing. favorable Department Regulatory Consumer and (DCRA). Among Affairs other things, she Therefore, processed applications, “various license to prove failed agreement between needed, example, licenses establish- perform Dean and the she hotel that would ments for their elevators.” Id. at 258. her official personal in return for a duties applicants Her inform scheme was to benefit at 259-60. the hotel. Id. payments timely for a license submission Dean, however, require proof does could be made check but all fees late of corrupt part par- intent on the of both paid cash. Id. She then ties. As subsequently Circuit D.C. keep payments the cash for her own use. clear, “agree- made use of word employee Id. After a local hotel informed ment” Dean was (FBI) Investigation the Federal Bureau of specific synonym as a intent. used activity, up about this the FBI sting set When, Dean, as in official is operation. employee (acting Id. The hotel ' bribe, soliciting FBI) charged the evi- approached instruction from the must the official con- dence show that seeking Dean additional licenses. Consis- scheme, veyed an perform tent official acts general with Dean in- intent her in exchange personal benefit. Ac- employee timely formed the the li- may paid by cordingly, cense fees check but be absent Dean late element 10, testimony argument Trial under established that fails even the because could, legislator-lawyer, agen- as a sue state more lenient de novo States v. review. cies, represent but he could not clients before (10th Cir.2011). 1104, Cooper, 654 1118 F.3d agencies. Moreover, "a the absence of conviction always satisfy sufficient evidence will almost “bribery requires 11. did not raise Thus, plain-error requirements. all our four payor payee both the to have corrupt plain review for in this context differs error argument judgment intent” motion for in his properly little our novo review de review, therefore, acquittal. Our claim,” preserved sufficiency United States v. normally plain be for error. United States v. 1356, Gallegos, 1359 784 Cir. F.3d 1082, DeChristopher, 1091 695 Cir. F.3d 2015), 2012), However, not need decide wheth plain stringent er he meets the error standard

430 (1972), 2531, L.Ed.2d 507 S.Ct. to offer or solicit an intent

[was] payee, that, to a bribe respect with personal exchange of official action is violation “acceptance of the bribe gain. 526, Id. S.Ct. the statute.” 460, 468 Ring, States v. proposition parallel 2531. The (D,C.Cir.2013). set Dean’s conviction was straightfor- payor is context a bribe employee hotel not because the aside of the bribe the viola- the offer ward: Dean intent but because corrupt lacked Indeed, we have of the tion statute. money or accepted solicited did—she quid pro quo need clear that made not ostensibly on of the DORA but behalf for the to be “fully not act be executed influ- position intent to use her with an Orenuga, considered a bribe.” licensing treat- garner favorable ence at 1166. words, for the In other hotel. ment require theft, bribery does bribery. Because crime was Dean’s complete a agree actually to or official to instructive. Ring case even more The exchange, does honest- corrupt neither Ring, lobbyist, was convicted honest- bribery. Although we services fraud on his (by bribery) fraud based services than black-letter look further need travel, dinners, drinks, having provided conclusion, bribery to reach law concerts, congres- sporting events “ ‘pun fraud statute fact that the wire officials. sional and executive branch ” scheme, success,’ Pas ishes the prosecuted Because he was States, 544 U.S. quantino v. United theory, bribery on a services honest fraud 161 L.Ed.2d 125 S.Ct. agreed parties Pierce, (2005) (quoting United bribery. Id. at 467. the elements of prove (2d Cir.2000)), lends however, Morgan, Ring claimed Like that a support to our conclusion further they because jury instructions were flawed may guilty of honest-ser be defendant require jury find the failed offers an official bribery he vices where receiving agreed favors had officials specific intent something value with But corrupt exchange. Id. at 466-67. if that quid pro quo even to effect a no error: there was accept. emphatically refuses official criminal- bribery expressly statute words, of a though the offerer In other something of value a mere “offer” of izes fraud, guilty bribe is of honest-services an official the intent to influence entirely attempted target 201(b)(1). 18 U.S.C. That act. Anderson, innocent. See United States for the accept need not offer official (bribe (D.C.Cir.1974) bribery complete to be evident act from offi culpability may differ payer’s statute, which from the structure culpability). cial’s act separate defines two crimes: Ring soliciting Although addressed Id. at 467. offering a bribe and the act U.S.C, 201, prohibiting § id. the statute accepting a or bribe. officials, 201(b)(l)-(2). gratuities § inter- Confirming this bribes and federal in a different result would Supreme held we see reason pretation, Court here, § Brewster, 501, follow 666.12 U.S. under statute "re- entity any agency where the offspring 666 is U.S.C. thereof" 12. Section of 18 ceives, period, any year benefits in § to brib- in one applies 201. It sanctions criminal $10,000 program a ery by agent Federal organization, or of a- excess under “an of an contract, loan, State, local, subsidy, involving grant, government, or a or Indian tribal Morgan Supreme lishing also illegal relies for neither unethical nor him, in Sun- Court’s decision United States v. a to an legislator-lawyer, as have Cal., Diamond U.S. attorney-client relationship Growers with Silver Oak (1999), or monthly S.Ct. L.Ed.2d 576 to his charge clients a retainer where, § addressing when the Su- claims following fee. He also evidence required quo negates Court preme “quid pro a inference of his having an acted —a give (1) or specific something intent to receive with corrupt regular a intent: his ar- exchange in for rangements of value official act.” with an other clients fees 404-05, Morgan Id. at 119 S.Ct. 1402. form a monthly nonrefundable re- tainer; (2) hangs “quid quo” his hat on lan- pro his lack of involvement as S.B. guage argument but proceeded through exceeds elastic 738 the Senate and House; (3) bribery The Court not saying limits. was application bill’s to the whole, both to have requires parties industry to a specifi- bribe as a not Oak Silver Rather, corrupt distinguish- cally. says intent. it was at- any He also the lack bribery illegal gratui- ing between and an tempt arrangement conceal ty, penalized, but in Crosby deposited both sections different fees into his law —he end, merely of 201. Id. In the any the Court corruption.14 office account—belies held that establish a violation Morgan’s argument unconvincing. statute, illegal gratuity “the Government agreement Morgan The retainer between prove must a link thing between a value Crosby was at a at meeting made upon spe- conferred official in the Capitol. office meet- The cific ‘officialact’ for or of which it because ing lobbyist was brokered hired given.” Id. at 1402. S.Ct. promote governmental Oak’s rela- Silver case, key then, question Crosby

The Morgan this tions. told “[he] didn’t Crosby Morgan call, not both legisla- had care was a phone whether whether corrupt tion, Morgan just intent but meetings,” whether “help” he needed back,” corrupt (Mor- getting intent —whether he had the in- “off [his] the ODH 1905.) gan’s tent to receive the in- App’x, Morgan retainer fees Sil- Vol. 5 at retainer, in exchange legislative monthly ver Oak for his though sisted on even Morgan influence.13 represent Not he surprisingly, could Silver Oak before says no. He points Shortly to the estab- supra evidence ODH. See n.10. thereaf- insurance, Court, guarantee, spite findings, or of Feder- other form "the its consider (b). 666(a)(1), al assistance.” U.S.C. As any evi- the fact fair evaluation of this parties acknowledge, legis- the Oklahoma to the leads conclusion Mr. Mor- dence qualifies entity. lature as such an was, least, gan very right up against dealings line over over in his with these Although quid quo pro requirement 13. (Government's supposed Supp. clients.” bribery requires .give or intent receive 1244.) App'x, Vol. 3 at takes something exchange of value in for an official completely out of statement context. act, necessary it was objection made after the sustained his contemplated specific S.B. other involving to consideration of the clients bribes (only when he solicited the he act bribe Silver Oak relevant than conduct. expected to take some in ex- official action government’s evi- reference "this change money). Abbey, See United States v. context, dence,” proper refers read (6th Cir.2009). 520-21 Mor- government presented the evidence gan argument. so conceded at oral bribes, concerning the other According Morgan, ad- involving Silver bribe Oak. at there mitted was insufficient supporting by asking evidence his conviction payment in ter, legislator” legislator accept return that “a re- learned Huser Moreover, the meeting political ODH and quested wielding between influence. place take representatives industry Oak on the as a whole Silver S.B. 738’s effect 1949.) (Id. beneficial) Seven and a Capitol. (even corrupt the negate if does not later, Morgan a bill half months introduced purpose partially intent. valid that “[A] favorably addressing prob- Oak’s Silver not a transaction does insulate motivates lems. an participants in transaction unlawful United, liability.” from criminal States engagement letter

There was no written (2d Cir.1993) Coyne, (quo- Morgan spite monthly in “retainer” omitted). Moreover, tations upon.15 despite insisted Mor- legal gan’s providing represen- claim be at- Finally, Morgan claims not he did Oak, Arguello’s e-mails tation to Silver tempt up arrangement to cover his facial unanswered, Morgan’s monthly went bill deposited payments Crosby; with he specify legal Silver Oak did law from Silver Oak into his he received provided, there was no evi- services ar- office testified that account actually per- legal services dence Crosby rangement legal was for ser- with (absent Morgan’s Oak formed Silver But of all provided. vices he those aware self-serving with claim have consulted facts, jurors, for instance could Crosby possible against about a lawsuit so merely he did to conceal conclude ODH). Finally, shortly after the bill payments. And purpose real behind law, signed Crosby into informed Mor- justified. that could be skepticism well no gan longer pay Silver Oak He Morgan’s story Parts of are dubious. principals because its decided to limit its Crosby him to hired determine claimed “political (Morgan’s App’x, involvement.” Oak ODH. whether Silver could sue the added).) (emphasis Vol. at Crosby’s legal But included an armada governing Oklahoma’s “citizen The rules specialized dealing who with attorney legislature” to maintain allow its members the ODH. And written income, something an outside source of Crosby. record of his communications with (Morgan’s Morgan emphasizes. App’x, He claims the lack a written record was Indeed, 2392.) points he to trial Vol. at protection, attorney- for Crosby’s but the establishing testimony legislator- privilege likely client would most have ade- lawyer may legislate on mat- continue quately purpose. met that interest, long affecting a so as ters client’s jury system the hallmark of Perhaps our industry to an legislation applied is uncertainty. in resolving role jury’s But, admits, he basis. state-wide It, alone, is left find the And facts. testimony line also same established fruits of its effort lie the verdict. legis- if practice such a to be unlawful jury believed version could have lator-lawyer paid to do so. Neither not.16 federal Oklahoma rules allow a law nor events but required aptly explained denying 16. As Although letter the court such Conduct, Morgan's acquittal on the motion for based Oklahoma Rules of Professional it is sufficiency of the evidence: retaining legal common when services attorney also Mor- an and was common in Morgan's be motion must [I]t is clear gan’s practice other clients. While instance on which denied. Each determinative, engagement dispute jury's absence validity of the relies context, totality may, part way if the letter functions verdict interpretation evi- jury may views his Court the circumstances consider. Oliver, reputation judicial Cir. of proceedings.” 2001) (“It omitted). weigh jury (quotations to the left conflicting and to the evidence consider portion relevant instruction witnesses.”) credibility of omit- (quotations charge governing bribery required the ted). Instead, jury Mor- determined jury beyond to find a reasonable doubt: in- gan demanded retainer fees with the solicited, demanded, That the defendant to “help” Crosby through position tent his or agreed accept accepted, anything an legislator. influential Its decision person; value another [and] rationally supported by the evidence.17 That so corruptly, did defendant is, that with the intent influenced

B. Jury Specific Instruction on Intent business, in connection with some trans- action, or series of transactions of the Morgan way quarrels with the State Oklahoma. on jury specific intent instructed required for conviction. But he (Morgan’s App’x, (emphasis Vol. at 179 object given, limiting to the instruction added).) The instruction further stated: plain our review to error. United States “A person corruptly acts person when that Davis, Cir. understanding acts with the that some- 2014). “Under Federal Rule of Criminal thing given value is to be or offered 52(b), appellate may, Procedure him in connection with his offi- influence discretion, in its (Id. correct an error added).) (emphasis cial duties.” only raised at trial where appellant provided: payments also “[W]hen (1) error; demonstrates that there is an by a accepted public payor officialfrom (2) obvious, the error is clear rather with intent obtain official’s (3) subject to dispute; basis, than reasonable actions an ‘as so needed’ appellant’s error affected the substantial opportunity presents when the itself that rights, ordinary which means takes case official official action on the payor’s pay- affected the outcome the district court behalf return for those (4) (Id. ments, seriously bribery.” proceedings; and error constitutes fairness, (emphasis added).) integrity affects the or public 180-81 improperly only dence in a Mor- manner favorable fused and influenced the evi- gan. example, arguing For when im- presented dence of the dismissed counts and port Crosby, of his co-defendants, initial conversation concerning his evidence Morgan plausible explanation offers hearsay, including co-conspirator But between conversation the two men. (conviction count, jury’s verdict one mixed However, Morgan’s explanation is not the others, others, acquittal on as to verdict one, jury’s and in fact verdict Stringer) acquittal sug- co-defendant clearly rejects explanation in favor gests opposite; properly just distin- reasoning trial. offered Plaintiff at guished between the and defendants. counts clear, As Plaintiff’s brief makes there seeking To the extent review the evidence offered at trial which estab- court’s his motion for a denial severance . lish each element of the crime of convic- and defendants or admission of co- counts tion. That can now inno- offer an conspirator hearsay, simply he is late. too explanation cent for that evidence does Mark, Corp., Inc. v. M.D. Kerr-McGee acquittal. entitle him to (10th Cir.2009) ("[T]he 768 n. 7 273.) (Morgan’s App’x, Vol. 1 at general party rule in this is that circuit brief, reply Morgan suggests jury arguments raised for issues waives 63, despite claim convicted him on Count brief.”), reply in a first time evidence, con- insufficient because it was trial, for her re- Morgan accepted ar- free media new services In his motion' return, errone- and, two instructions gued campaign the latter in she election the intent the payor’s ously overpriced described to the work me- steered union Id, al- improperly recipient’s therefore provider. objected dia Ford services to him if it con- jury convict the lowed instruction, which the court’s district knowledge of merely that he cluded person in “A part: relevant acts stated intent, any Crosby’s corrupt even absent corruptly person acts with the when the part. on his Stated differ- corrupt intent understanding something of value is his convic- ently, jury have based or her given influence in be offered intent, corrupt not his Crosby’s on tion organizational with duties.” connection her rejected argu- this court The trial own. omitted). (quotations ap- The Id. at arguments fo- Morgan’s ment because Ford’s reversed conviction pellate portions phrases or very narrow cused “appear[ed] instruction because the instructions, consider- rather than of the jury ‘corruptly1 have told the that the re- properly When ing them as whole.18 fully was quirement [Ford’s] satisfied considered, fairly cor- the instructions of knowledge intent and omit- the donor’s But if rectly the applicable stated law. intent in ted reference to [Ford’s] erro- supplemental were instructions value____” accepting Id. thing concluded, neous, error the court did easily fairness, distin- integ- seriously situation affect the “so public reputation judicial guished of the Here the court told rity, or Ford’s. grant jury should unless it proceedings that Court could convict doubt, (Morgan’s App’x, found, trial.” Vol. beyond new reasonable 533.) Morgan or retain- accepted demanded fees “with the to be er intent influenced arguments now reiterates business, connection with transac- some court, relying trial a Sec- made tion, or of the series transactions State decision, States Circuit ond App’x, (Morgan’s Vol. 1 Oklahoma.”19 Ford, (2d Cir.2006). Ford added).) (emphasis Although at 179 of a union employees’ an officer state standing alone, supplementary language, Id. at 206. federal funds. that received case, charge alleged may have been bribery against her she ill-advised F,3d 212, However, jury Second Cir- read instructions in 18. We and evaluate because, entirety lacking in their to “determine whether the found these cuit instructions structions, light of the record examined jury among things, they other allowed whole, fairly, adequately, correctly as a simply find such intent if Ford was aware of jury governing provide the law and state the something payee’s give intent value ample understanding applica of the with influencing purposes her. for the Id. at principles of issues con ble law and factual while this The court aware- held fronting Denny, them.” United States v. strong "might well circum- ness constitute 1454 (10th Cir.1991). Generally, intent, requisite stantial evidence” “[f]aulty jury require instructions reversal Here, contrast, enough, was not alone (1) substantial doubt whether when jury specifically told it had find whole, instructions, prop as a considered demanded, "solicited, accepted, or deliberations; jury erly guided the in its agreed accept anything value from an- (2) jury preju when a deficient instruction person” "with and he so intent Inc., Serv., dicial.” v. United Parcel Jones influenced some to be connection (10th Cir.2012). 1187, 1198 business, transaction, of transactions or series (Morgan’s App’x, the State Oklahoma.” jury describe 19. The instructions in Ford did 179.) "intending 1 at Ford’s Vol. influenced” as intent. as a whole could not have The participation disclosure revealed the instructions Crosby’s daughter who regarding accepted some jury confused the misled gave cattle from him and then her father government’s proof. burden proceeds she after sold in her them Smith, own name. The disclosure also included Cir.1994) (“Only reviewing court where the allegations, in of an the form from affidavit jury the has doubt that was substantial victims, one of Crosby the fraudulent- guided judgment be fairly will the dis- ly sold securities in the form of “Preferred turbed.”) omitted). (quotations There was (PMIs) Membership Interests” in 2005.20 error, no (Morgan’s 340.) App’x, 1 at During Vol. selection, jury requested the defense Cros- Tacit Agreements C. by’s (PSR), presentence report which the trial, Crosby Prior to Morgan’s was (with government supplied per- the court’s and bank charged arrested fraud. mission). report The included information The fraud involved Crosby bank scheme scheme, about Crosby’s bank fraud submitting invoices which falsely to a bank involvement, daughter’s and the he loans alleged purchased he had cattle. The received from various individuals in the allowed draw on Crosby invoices the disclosures, form PMIs.21 Despite these he line of credit had with bank. He Morgan sought evidentiary hearing an also cattle he used sold had secure and, trial, in a motion for new claimed notifying the line credit without government failed tacit disclose kept proceeds. bank and Pursuant to agreements Crosby it made with in viola- agreement, guilty plea he to one pled of Brady Maryland, tion 83 U.S. making count statement false (1963), S.Ct. L.Ed.2d and government in bank. The disclosed the presented knowingly false in evidence vio- documents, charge, vestigation Illinois, and the lation Napue 360 U.S. (1959). plea agreement subsequent defense. S.Ct. L.Ed.2d trial, the defense learned that in 2011 After viduals the form of Preferred Member 20. Crosby’s (PMIs) victim of PMI scheme another had Interest in his numerous business lawyer who in contacted Colorado turn con- guaranteed interests defendant Exchange U.S. Securities tacted investors on their 10% The investments. (SEC). Commission The SEC transferred the accountant believed these investments be- Department to the matter Oklahoma Secu- gan [Crosby] 2003 or estimated rities, brought enjoin which an action $3,000,000 approximately received from in- Crosby offering selling unregistered from vestors. Two months after securities Oklahoma. 4.) (Morgan’s App’x, 8Vol. This informa- against Morgan, Crosby stipulated the verdict tion, conjunction previous with the disclo- injunctive request- to the relief and consented victims, from sure one of the was sufficient ed. investigate. notice the need to Morgan complains he also did not receive Morgan complains information con- selection, concerning jury giving PSR until him insuf- Crosby’s tained PSR PMI investigate simply Crosby verify ficient time to scheme incorrect- what was But, ly money prior report. listed he received from the said jury selec- equity tion, scheme as when he obtained line of Morgan did affidavit from one scheme, credit from the bank. He contends this infor- Moreover, of the victims of the PMI gave investigate mation him basis 13, 2012; jury February selection occurred report PMI further. scheme But the out- Crosby was not cross-examined until Febru- line scheme: event, ary any request- never Agents also received information from the ed a continuance. previous [Cros- defendant’s accountant that receiving by] from various loans indi- agreement not to tacit do requests. undisclosed court denied so. timely provid- government determined Further, con- material. all relevant

ed govern- Finally, Morgan maintains the agreements, they go if uncor- any testimony ment false undisclosed allowed cluded Crosby’s agreement plea at trial. rected existed, because were immaterial defense prosecu- him protected stated fully Crosby’s credibili- counsel addressed to the bank from tion for false statements information ty at trial additional (bank through January 2003 June (cid:127) change the result. fraud) protec- provide any and “does argu- repeats his trial crime not against tion prosecution for (Morgan’s specifically here. He claims above.” ments described 2729.) agreement App’x, at Vol. 7 Crosby subject significant to knew was “[Tjhis con- provided: further document charges, including brib- criminal additional agreement tains terms of the the fraud, (this money ery case), securities in plea guilty concerning [Crosby’s] Further, laundering, it and mail fraud. deals, there no other case and that in Crosby’s daughter was involved knew understandings bargains, agreements, or addition, In Mor- the bank scheme. fraud (Id. modify alter terms.” at these assets, Crosby about his gan contends lied 2730.) argues assertions Morgan these presen- in his employment, and income were were other deals false because there investigation According tence interview. government the of and it was well aware to Morgan, government’s failure to contrary failed correct false state- to Crosby or his prosecute daughter either jury.22 also Morgan ments to the faults any inescapably of this should for conduct government fully explaining government to lead one conclude agreement’s expecta- “It is the statement: in agreed to more than was much stated tion criminal of the United States that its plea Crosby’s agreement. He further (as investigation of the conduct defendant’s government’s claims the failure to seek others) opposed will wrongdoings to the Crosby forfeiture the assets received agree- upon signing plea cease of this 2723.) (Id. his ment.”23 from criminal activities demonstrates Crosby probation. Actually complains years that when his five 22. also attempted point jury to counsel to out imprisonment, sentenced "zero months” to charged bribery, Crosby had not been variance which was the result a downward government’s objec the court sustained the advisory guideline range from of 41 question posed improper tion. But the (Government’s imprisonment. Supp. months punishment for brib because indicated the 980.) App’x, government While Vol. 2 at years. Chapman ery was fifteen v. departure Crosby's cooperation, seek (no States, Crosby it still be sentenced recommended jury being prohibiting error in informed year day. appears and a sentence); mandatory see of the minimum (a judge judge judge in this different than the Peña, 930 also United States v. F.2d case) Crosby’s co- varied downward based (10th Cir.1991) ("Unless specific 1491-92 operation significant well as health his play part in permits jury statute event, any In will not automatical- issues. meting punishment, in jury’s out role sole ly subject disclo- preexisting "infer a deal criminal case to determine whether ” gov- Brady merely sure because under charged.”). crime guilty defendant favorably ernment chooses to a witness treat re-phrase not to counsel elected Defense Bell, following a trial. Bell v. question. Cir.2008) (en banc); see also Shabazz (2d Cir.2003) Artuz, says rewarded witness, (post-trial of a Crosby testimony with a favorable treatment But, except Crosby’s for his claim uncompleted about criminal prosecution” may be interview, during presentence lies Mor- important "why suggests because it (from gan govern- knew trial prior might by lying.” witness Id. at 1215 & n. disclosures) ment’s about underlying omitted). 18 (quotations such im- “And suggests prove agree- facts he now tacit peachment sensitivity increases direct ments. could He have cross-examined proportion importance to the witness’s Crosby on these issues but did not. He (quotations the state’s case.” Id. at 1215 Crosby’s chose instead focus need to omitted). cooperate in this case in order avoid a Napue, Under “criminal convictions ob- harsh sentence his bank fraud case. by presentation tained of known false evi- While he have had a tactical reason also violate process. dence” due Douglas, further, fact, inquiring Morgan, for not 1172; Giglio see also had the information and could used States, 150, 153, 405 U.S. 92 S.Ct. log lying rather than behind the order (1972) (“[Deliberate L.Ed.2d decep- event, appeal. to create issues jurors by tion a court and the presenta- he has failed establish that either a tion known false is incompati- evidence Brady or Napue violation occurred. rudimentary ble with justice.”) demands of Brady principle “established the omitted). (quotations “The same result criminal sup- convictions obtained ... State, although obtains soli- when or pression exculpatory impeaching evi- evidence, citing go false it to allows uncor- guarantees process dence violates the due appears.” rected Douglas, when 560 Douglas Fourteenth Amendment.” (quoting F.3d at Napue, 360 at 1172 U.S. Workman, 1156, v. 1173). 79 S.Ct. Cir.2009). government’s “The obligation Crosby 'key gov- was witness disclose exculpatory impeaching] to [or evi- ernment as to Count 63. But turn does on an dence accused’s re- merely speculates about undisclosed tacit duty quest” to and “the disclose such infor- agreements prior points to his trial. to He judicial mation throughout continues agreement. solid evidence such Id. at process.” 1172-73. The government’s prosecute to failure ei- “Brady requires disclosure tacit ther Crosby daughter or his or to seek agreements prosecutor between the and a civil simply forfeiture assets A is a explicit

witness. deal or tacit. deal— States, enough. See v. United Jefferson is no that logic supports There distinguish (6th Cir.2013) (“[T]he 730 F.3d ing two.” Douglas, between the 560 F.3d fact that prose- [witnesses] both were not 1186; Bell, see also Bell v. crimes, more, cuted particular without (6th Cir.2008) (en banc). “A conviction .., is insufficient un- establish that an testimony implicating based on concealed existed.”). disclosed deal important po incentives to an witness Mullin, tentially Cargle cases relied on by v. illustrate tainted.” (10th Cir.2003). this point. Each'case involved evidence “[Partic impeachment possible through demonstrating agreement ularized bi an undisclosed ases, prejudices, ulterior arising motives reached was between the in as-yet prior connection with example, uninitiated or witness trial. For alone, trial). standing prior is insufficient establish that ness prosecution leniency promised to the wit- defendant); implicated prom- custody to a from if he

Cargle, the witness was murder Dretke, immunity exchange 340-44 ised for his testimo- Graves However, a few ny. (5th Cir.2006) 317 F.3d at 1214. media (prosecutor informed trial, had years before witness years that had trial star witness five after on an as- given been a deferred sentence prior trial he had acted admitted n charge. Id. His current sault involvement prosecutor failed had yet alone murders him in the have “expos[ed] murder would defendant; to reveal this information twenty toup to an immediate sentence testimony had the defen- witness’s trial imprisonment on years’ pre-existing murders). involved dant [later] conviction.” assault “When Douglas, Cargle, Unlike other non- investigator an asked ... whether by Morgan, neither upon cases relied acceleration deferred Crosby government has admitted nor (tacit) part agreement of his been anything Crosby having promised case, been testify petitioner’s witness] [the than which he assur- testified that he had admitted received an hopes noth- sentence in a lenient attorney ance the district trial — ing up in would come court about fraud bank case. (emphasis Id. at 1215 deferred sentence.” Morgan also relies added). evidently We concluded “there Cir.1986). Shaffer, 789 F.2d Shaf- additional, quite significant, tax drug income fer was convicted of quid pro quo coopera- [the witness’s] violations, F.2d at The court tion, which not recited in [immuni- to a new affirmed entitlement Shaffer’s to the ty] agreement never disclosed alia, to, government’s trial “the due inter

jury.” Id. at 1214. key trial wit- [the failure to disclose Similarly, Douglas, testi the witness ness] fact have assets which were did at two “provided] fied murder trials and (i.e., drug acquired through profiteering the direct defen linking evidence [the and funds to enter Springs house Palm F,3d dants] the murder.” 560 at 1174. spa).” a health Id. at said this trials, the After witness executed “coupled govern- with the nondisclosure affidavit trial recanting handwritten his ment’s to initiate asset forfeiture failure testimony “asserting had re and that he assets, proceedings im- acquire these [prosecutor’s] ceived ex assistance agreement reached plies was tacit change for testimony, his his contrary government between and the [the witness] at denials both trials.” 560 at 1167. any to avoid [the witness] allowed agreed with the that the We district court liability in for his exchange asset forfeiture prosecutor’s failure to disclose his deal cooperation.” rejected the Id. The court Brad/y the witness violated and government’s “because argument 1175; violation was see material. at agreement explicit there was no [on also LaCaze v. Warden La. Inst. Carr. issue], to dis- nothing forfeiture it had Women, Cir.) (5th 735-86 explicit close”: it is clear that an “While (witness he repeatedly claimed received be- agreement have be disclosed would son prosecut assurances his would not be cause of its on credi- [the witness’s] effect defendant), prior implicating amend ed bility, it is clear that facts equally which Cir.2011); ed 647 F.3d 1175 Harris agreement also bear on Lafler, imply an Cir. would 1030-31 2009) (witness credibility dis- promised [his] testified the police girlfriend he and his released Id. at 690. would be closed.” government Morgan failed to claims Cross-Appeal IY. Government’s Crosby’s disclose lies during presen- his Morgan’s The PSR base of determined interview, tenee much govern- like the fense level be 14. USSG ment’s nondisclosure But Schaffer. 201.1(a)(1). § Two relevant conduct Morgan misrepre- discovered claimed points were in added because offense sentations in- after he his own conducted (Silver Oak, volved more than one bribe (let vestigation not does elaim alone Dilworth, Tenaska, clients) and three other demonstrate) government aware points fourteen added because were of the lies relevant during the time. payments six from the bribes received . $684,164.52.25 totaled See USSG misrepresentation mis- Evidence or (2). §§ 2Bl.l(b)(l)(H), 201.1(b)(1), Anoth leading government part points er four were under added USSG lacking Morgan has to provide failed 201.1(b)(3) offense because “the involved Instead, agreement.24 evidence he any public an elected or offi official merely agree- speculates about a possible high-level cial in decision-making sen government’s charging ment based position.” sitive offense level was ad enough. Speculation decisions. justed upward two levels for obstruction of “Without an agreement, evidence was justice based on false trial testi suppressed, conduct, state’s and the concerning dealings mony his with Silver have, something disclosing can- Oak. See USSG These 3C1.1. enhance not be a Brady considered violation.” adjustments ments and resulted a total F,3d Bell, omitted). (quotations offense level of criminal histo With a of Napue, We see no I, violation which ry category calculated an PSR prohibits presentation of known false guideline advisory range 188 to 235 jury. Morgan evidence Because has However, imprisonment. months the sen deals, provided any no evidence of other he statutory capped maxi tence has hot Crosby’s demonstrated trial testi- mum—120 months.

mony concerning plea agreement objected to the relevant conduct the absence of false. deals was adjustment upward determination and the justice. He also obstruction flooded that, Not only but rele- praising the court with letters charac- vant facts he which ter, noting his contributions commu- assign now uses to sinister motive seeking He nity, requested leniency. and government. inquired He could have probation. of a sentence more thoroughly about those facts cross-examination and let decide jury Morgan’s district court sustained saving it credibility issue rather than objection.- Although conduct relevant it appeal. concerning concluded the schemes (2d Cir,1982) string (prosecutor deliberately cites Second Circuit prosecution deliberately cases wherein rap key showing of a witness withheld sheet per withheld evidence or convictions). failed to correct prior felony he two had jured testimony, Neither circumstance See, present e,g„ in this case. United States v. eventually 25. The decided not to Wallach, (2d Cir.1991) ($116,500) rely on the received from amount (government recogniz "consciously avoided clients, Waste. But this one of the Allied ing” lying that was witness and instead impact decision did not PSR's calcula- sought to him on exami rehabilitate redirect tions. nation); Fevre, Le Perkins v. case, I your see no sentenc- qualified as relevant conduct need

other clients 1B1.3, your ing public. This is gov- protect it decided the under USSG justice first the criminal prove prepon- introduction ernment had failed any- system, I that and don’t think evidence conduct there’s derance Tenaska, background Dilworth, your or that would thing oth- relating to you another illegal. Relying primarily clients indicate that would have er was illegal just one. I think that is a nonfactor of testimony making on the neither attorney charge re- of factors. nor unethical an list work, performing legal tainer fees without Now, provide think that I the need certainly the court reasoned: “There or you with educational vocational could take that would indicate you view a nonfactor. medical treatment also doing he that Mr. knew what was case, I in this look at the serious- So wrong wrong. and that it was There offense, adequate ness of the deterrence view, persuasive opin- equally my anis others, you but and ion, everything right he respect for promoting the law. (Government’s illegal.” App’x, Supp. my beg[i]n I with of the evi- view 1233.) Thus, it Vol. 3 at all concluded this, through I sat the' dence. as did sentencing guideline calculations jury, I opinions had definite about solely on based the offense conviction I get evidence voice don’t (no conduct). It relevant consideration does, con- jury you when the but were Morgan’s objection to the also sustained only one of victed on 63 counts. justice adjustment, obstruction conclud- ing many was “a of Mr. there view letters One submitted testimony entirely ... it is all correct I your suggested figure behalf [o]n consistent your and honest and still be with the out be—I what should jury’s evidence and with verdict then suppose guidelines under —and (Id. 1235.) on Count 63.” These rul- up 63 to with a fair divide come ings in a total offense of 22 actually thought resulted level I sentence. that was not idea, advisory range 41 to guideline figure such I a bad but could imprisonment. months do out math to it. But, clearly, you charged with were further, varying

But the court went even lot, very you were little. convicted sentencing Morgan to five downward conviction, And that incarceration). [defense counsel] (no It years probation has pointed today, out was based on complete 104 ordered him to hours also evidence, suspect very based on some during year community sendee first felon, of a testimony convicted re- probation money entered a forfeiture in a bill sulting that no one has ever $12,000 judgment amount but about. complained explained imposed fine. decision as follows: looking this case I’m So in the course, Certainly

Of I harm the start with the calculation done. always reputation legit- to guideline range go of the and then on to harm the is government. state That suffers enough consider what sentence but imate many places, more to sometimes Oklahoma necessary than reflect the seri- offense, others. that’s promote respect certainly ousness of the more than And law, respected a just punishment to be and which provide the value and punishment should be out. for the meted offense. I look at this book of by judge), government I’ve the says, letters. lated the often, I thought substantively don’t think that I would when unreasonable meas- letter, people against to even ured the set out in know 482 ask factors 3553(a).26 positive § get much less from all of It the one U.S.C. asserts court arguments failed address two of its them back. You are well the loved —the (1) need for the many imposed sentence community pro- communities. adequate (2) vide deterrence and avoid many so people And these sentencing unwarranted It disparities. fo- asked for probation consideration of or cuses on the former important most the leniency your behalf. [o]n factor sentencing elected officials in thing The one prosecutor] [the public corruption cases like this one. argues in favor sentence of imprison- also points to the court’s reliance on two one, ment important is an and that impermissible factors —the court’s doubts example to others who be inclined jury’s guilty about the and its con- verdict you try to do what have done. clusion that sufficiently pun- I personally am of the opinion that the negative ished publicity and other col- publicity has this case followed (the consequences lateral loss of his law beginning, you from the the results license and deterioration physical of his health, in your both your financial health). Finally, and financial it says the health, you the fact that will almost cer- placed court reliance on unreasonable law, tainly your practice lose license to I supportive volume of (literally letters hun- think all of these are factors that would dreds). surely anyone considering deter else Not surprisingly, Morgan takes a differ- same conduct. ent He acknowledges view. deterrence reasons, For all these I am varying warranting be a factor consideration but guideline from the range downward not, government alleges, as the the most imposing probation. sentence important distinguishes one. He also (Government’s Supp. App’x., 3 at Vol. government cases the relies show 1246-48.) from appeals results unwarranted sentenc- sentence, charging incarceration-free ing disparities. According Morgan, substantively unreasonable. properly considered the collateral A. Standard Review consequences his conviction the let- 3553(a)(1) years probation Five imposed support § ters of under —“the face of to 51 months of incarceration nature and circumstances the offense (as guidelines history, recommended calcu- and the and characteristics of the 3553(a) requires 26. Section with needed educational vocational train- or sufficient, "impose ing, court to a sentence but care or other medical correctional treat- manner; greater necessary, comply than pertinent ment in the most effective (2) statements; purposes paragraph guidelines; pertinent policy set forth of this determining particular dispari- subsection.” need to avoid unwarranted sentence ties; imposed, provide sentence to be it shall consider need to restitution. offense; 3553(a). nature U.S.C. "When court enhances and.circumstances defendant; history range or characteristics detracts the recommended 3553(a) imposed through application need for the sentence to reflect ... factors offense, promote seriousness of re- increase decrease is called a variance.” law, spect McComb, provide just punishment for the offense, deterrence, (10th Cir.2007) the adequate pro- 1 (quotations afford 1051 n. omit- ted). public, provide tect the the defendant 442 omitted). Although the couch heavily relies on the

defendant.” challenges to arguments all the es of its as of discretion standard deferential abuse decisions, sentencing applied to substantive review reasonableness claiming sentence, occurred claims specific no such abuse here. of its relate some considering impermissible fac to the court Booker, 543 United States v. U.S. Since argu to failing tors address two its (2005), 738, 220, 160 621 S.Ct. L.Ed.2d 125 arguments relate to Both of those ments. for reasonableness— review sentences we of the procedural sen the reasonableness two-step process comprising proce “a Lente, v. tence. 647 See component.” a substantive dural (10th Cir.2011); 1021, 1031-32 United F.3d Friedman, 1301, v. 554 States F.3d (10th Smart, 800, 803-04 States v. omitted). (10th Cir.2009) (quotations 1307 Cir.2008). Thus, whether we first consider procedural component begin with the We error. procedural the court committed is error in the whether to determine there or explanation of court’s calculation district States, v. United 552 sentence. Gall the B. Reasonableness Procedural 51, 128 586, 169 38, 445 L.Ed.2d S.Ct. U.S. government did not Because (2007). includes incor Procedural error preserve procedural ar reasonableness failing to calculating or rectly .calculate court, review for gument in the trial we sentence, treating guidelines guidelines Lucero, v. plain error.27 United States 747 mandatory discretionary, than rather (10th Cir.2014). 1242, F.3d 1246 “Under

failing statutory consider standard, only vacate sen we will 3553(a), clearly relying factors (2) (1) error; is is tence if: there facts, or failing adequately erroneous (3) rights, or plain; that affects substantial major Id. “[A] [vari sentence. explain words, outcome affects the range] guideline should be ance from (4) substantially affects proceeding; and justifica significant more supported fairness, reputation integrity, or 50, a minor one.” Id. at 128 tion than ' judicial (quotations proceedings.” rea 586. “Review substantive S.Ct. omitted). standard This is difficult length focuses on whether sonableness Rosales-Miranda, meet. States v. given is reasonable all of the sentence Cir.2014). (10th But, 1253, 1258 light of the circumstances case 3553(a).” overcome, plain er [the forth in 18 “while difficult factors set U.S.C. goal: Friedman, important 1307 ror serves standard] 554 F.3d at (quotations Concurrence, According'to govern and decide courts have discretion to raise (rather forfeited) purpose sponte, any pro sua even for the than issues ment waived see argument reversing judgment.”); also a lower-court reasonableness thus cedural error, 121, it, plain Singleton ought even for U.S. S.Ct. v. consider Wulff ("The (1976) Teague, matter of 49 L.Ed.2d See United Cir.2006) ("[W]aiver up questions be and resolved is inten what taken primari relinquishment appeal one left of a the first is abandonment time tional ly appeals, right"; party that the discretion “a has waived a courts known (cid:127) review,") appellate right exercised on facts of individual entitled is cases.”). But, justi omitted). appellate govern even if federal (quotations “[A] resolving passed on procedural fied below an issue not ment did waive the reasonable beyond proper ... argument, we have the discretion con where the resolution ness doubt, injustice might otherwise re Parenthood & or where sider it. Planned Kan. U.S, S.Ct, sult," Moser, Singleton, Mid-Missouri .,. Cir.2014) ("Waiver case, protracted making such 2868. This is binds court____[I]t unnecessary. party, well-settled that debate about waiver our encourage balance all need trial favor, the resolve defendant’s participants to seek a fair and accurate factual that jury issue the has resolved in trial the against prosecutor’s time the first around our in- beyond favor a reasonable sistence that injustice be doubt.” Rivera, obvious promptly States v. 411 F.3d (7th omitted). redressed.” (quotations Cir.2005); Id. see also United Hunt, “Accordingly, plain (6th find will error Cir.2008) (“[I]t when error be particularly egregious improper would for the judge in sentencing rely failure remand correction direct facts ly inconsistent with those produce miscarriage found justice.” of jury beyond doubt.”); reasonable (quotations omitted). This onerous States v. Curry, standard is satisfied here. .., Cir.2006) (“The court erred in sentenc jury The returned unanimous verdict ing [the defendant] based a conclusion finding Morgan willingly traded on his leg- that jury’s verdict.”). contravened the A islative for pecuniary gain status and dis- district court’s “considerable discretion” guised bribery payments legal as fees. consider “the nature and circumstances” sentence, The court’s least in part, 3553(a)(1) offense under “does based on its view that conviction extend to nullifying jury’s verdict.” “very evidence, resulted from suspect Bertling, 611 F.3d at 482 (quotations omit on the testimony based of a convicted fel- ted). on, in bill resulting that one has ever Morgan argues the jury nullification (Government’s complained about.”28 cases are not relevant here because “the 1247.) Supp. App’x, Vol. 3 at District Court never said Morgan was maintains the may properly consider not guilty” and in fact denied his motion weight part evidence for judgment acquittal. (Morgan’s Re- nature the offense. The ply 40.) Responsive Br. at That is contends these comments show the court correct as goes, as it far the legitimacy but disagreed with the which verdict led to an of the sentence unravels when the record unreasonably lenient sentence. is cor- shows the court’s doubts about verdict rect. leaked into the sentencing decision. The The court cannot substitute “its view court’s comment through sat ... jury’s evidence verdict.” jury trial and “had definite opinions about United States v. Bertling, the evidence that get [it not] to voice (8th Cir.2010). jury “Once the has [did],” when jury in conjunction spoken, its verdict controls unless the evi- its comment that the was “sus- evidence procedural dence insufficient some pect,” reveal considerable doubts about the occurred; error it is unnecessary both propriety jury’s (Govern- verdict.29 inappropriate for the judge reexamine, ment’s Supp. App’x., 1246-47.) Vol. 3 at say legislation 28. We do not effect disagreement court’s with the verdict should sentencing. considered equivalent not the of miti- consideration Surely, a more ap- severe sentence would be gating sentencing. circumstances at A miti- propriate Morgan if managed pass legisla- gating circumstance is "[a] fact or situation tion specific that caused harm to individuals. question that does not hear on the. a defen- But we are concerned “no-harm-no- guilt dant's but bear on court's approach foul” employed here possibly lessening severity judg- of its minimizes the seriousness of this offense. Circumstance, ment.” Black's Dictio- Law government, Faith keystone in honest 2014) nary added). (emphasis ed. case, trust, is the victim in this 444 32, (1st 47 Prosperi, 686 v. States have no important. We are Words (re- 994(d) Cir.2012); 28 see also U.S.C. observer, hearing or “a reasonable

doubt to be guidelines infer, sentencing remarks, quiring the might quoted reading the the ... socioeco- “entirely neutral as esti- incorrectly,” that the court’s [even if] offenders”); of USSG nomic status evidence, contrary to the mation (“[education and vocational §§ 5H1.2 Morgan’s sentence. a jury’s, played role in deter- ordinarily relevant are skills 586- Leung, v. departure is warrant- a mining whether Cir.1994). from remarks differ (2d Its is ed”), record Indeed, (“[e]mployment 5H1.5 they ap- reference. passing mere determining whether ordinarily relevant rea- significant to be clearly, quite pear, (socio- warranted”), 5H1.10 departure vari- and unreasonable for its drastic son in the relevant “not status is economic recommendation. guideline ance sentence”). of a determination determining Similarly, the court erred Bist Take, United States example, by punished adequately Morgan was guilty to pled line, where the defendant and the case received publicity heightened pornography. child possessing knowingly physical and and his law license loss of Cir.2012). (6th Bistline prosecu- of his as a result financial health night’s confine single to a was sentenced Generally, there conviction.30 tion and a ten- lockup and courthouse ment con- information ... “no limitation release even supervised of year period character, and background, cerning the range was advisory guideline though the anof offense person convicted conduct Id. The imprisonment. months 63 to 78 court which collateral on certain part relied judge purpose for the and consider receive conviction, including of his consequences Unit- sentence.” appropriate an imposing as register him requirement Pinson, 542 F.3d ed States publication “the offender and sexual omitted). “It (quotations community and to to the registration in the fed- constant uniform has been (quo neighbors.” Id. his friend sentencing for the judicial tradition eral it omitted). Circuit saw The Sixth tations person every convicted consider judge to as error: unique every ease as as individual 3553(a)(2)(A) states plainly [Section] failings that sometimes human study in the “reflect imposed” should “the sentence magnify, crime mitigate, sometimes offense,” (empha- Gall, seriousness to ensue.” punishment added); things are these sis and none (quotations omit- 128 S.Ct. U.S. they conse- Nor hand, Bistline’s sentence. ted). words On the sentence, opposed to quences as reso- with thunderous First Circuit vibrate con- prosecution and of his consequences a court to impermissible nance: “[I]t recitation court’s viction. The district on white-collar lighter impose a consequences therefore collateral these blue-collar defendants than on defendants sen- that Bistline’s nothing show does offend- white-collar it reasons that because of- seriousness tence reflects harm or reputational greater suffer ers otherwise, sorts of fense. Were these by conviction.” United to lose have more to consider improper the court say explicitly Mor- 30. While the they "punishment,” are not punished things these these gan adequately had been deterrents, implicitly explain. consequences, will adequate it did so as we collateral Not adequate claiming they were deterrents. consequences particularly ones related (quotations at 608 omitted); see also — to a Kuhlman, defendant’s humiliation before his United States v.

community, neighbors, Cir.2013) (“The friends— Sentencing to support tend shorter sentences Guidelines no special authorize with cases defendants from discounts on privileged account of economic social status.”).32 backgrounds, might who more along

lose these lines. And “[w]e do And, as the Seventh aptly Circuit has believe with privileged criminals back- stated: grounds are leniency more entitled sentencing [N]o “middle class” discounts than those nothing who have left are authorized. Business criminals are Stall, lose.” United v. States 581 F.3d not to be leniently treated more than Cir.2009). members just the “criminal class” Id. at 765-66. virtue being regularly employed or otherwise productively engaged in lawful recently,

More the Sixth Circuit reiter- activity. economic is natural ated this sentiment a bank and wire (as judges, we) they drawn as are from fraud case where the district court ignored the middle or upper-middle class, to guideline range to 71 im- months sympathize with criminals drawn from prisonment impose essentially none.31 the same class. But this instance we United v. Musgrave, States 761 F.3d fight must our nature. Criminals who (6th Cir.2014). In fashioning the have the training education and that en- sentence, “the district heavily relied people ables to make a decent living the fact on that Musgrave already without resorting to crime are more punished ‘been extraordinarily’ four rather than culpable less than their des- years legal fees, proceedings, legal perately poor deprived brethren in likely license, loss of his felony CPA crime. convictions that would him for follow Stefonek, rest of his life.” 608. States Id. at But the Sixth (7th Cir.1999) (citation omitted). was, Circuit saw for what it favoritism for the consequences elite. The of Mus- agree reasoning We with the of the grave’s prosecution and conviction were Sixth, Seventh, and Eleventh By Circuits. impermissible factors be considered: considering publicity, license, loss law “None these things are his sentence. of physical and deterioration and financial they Nor are consequences sentence; his punishment, health as impermis- the court a diminished sentence based these con- sibly focused the collateral conse- siderations does not reflect the quences seriousness of Morgan’s prosecution con- just of his offense or punishment.” 3553(a)(2)(A) effect viction. But requires “the error; Actually, he day varied downward to one The Second found Circuit "The with credit day processing. for the specifically district court required by sec- 3553(a) 'just punishment tion to consider the Stewart, 32. But see United States v. 3553(a)(2)(A). for the offense.' 18 U.S.C. (2d Cir.2009). Stewart, It is difficult see how a properly court can judge determined defendant’s conviction 'just punishment’ calibrate a if it does "made it ‘doubtful pursue’ that [he] could his particular consider collateral of a effects translator, an career as academic or sentence.” Id. We agree. Considering can’t therefore need for further deterrence and thing, collateral myopically effects one protection is lessened because dwelling upon quite them another. 'already the conviction itself visits substantial ” punishment on the defendant.’ Id. at 141. circumstances, weight of au- ... the seri- certain imposed reflect make thority add- circuits (Emphasis from other offense.” ousness conse- ed). holding plain None these collateral error absent even properly Supreme included Court.” quences court or the crimi- They impermissibly favor Hill, sentence.

nals, privileged back- Morgan, omitted). like “if But (quotations And, case in this paradoxically, grounds. Supreme nor the the Tenth Circuit neither cor- popular politician who they favor subject, we cannot Court ruled on the has influence, violating ruptly sold authority if plain error find obligations betraying solemn but also law Story, 635 at 1248- split.” circuits is trust, misused and who public’s and the omitted). (10th Cir.2011) (quotations concealing the practice law to license rule, however, per- is most general “This bribes. language a explicit where the suasive the government’s claim that resolve specifically to the or does

As statute rule for ade- the need Edgar, failed to consider v. court United States an issue.” to avoid unwarrant- quate (quotations deterrence F.3d disparity, disagree as sentencing omitted) plain ed where (finding error be to the latter. agree but as the former specifi- procedure federal of criminal rule While, explain, weighing as we will issue). cally resolved sub- the factor amounted deterrence in this case were procedural The errors error, it. expressly consider it did stantive nor Admittedly, neither this Court plain. that. error procedural There was Supreme the has addressed case Court Lente, In con- F.3d 1031-32. See (until now) where a court varied downward trast, need it not account the large part disagreement to its due sentencing disparity, unwarranted avoid Yet, weight of jury’s the au- verdict. having this government raised despite found these thority other circuits has “material, Id. at non-frivolous” issue. to error. More- circumstances amount error. procedural This constitutes 1035. over, it is any precedent, quite even absent Id. nature clear court’s consideration “the question next is whether The of the offense” under and circumstances procedural errors we have identified 3553(a)(1) effectively permit § does be plain, To error must plain. “[an] be at- voiding consequences necessarily “current, or well-set obvious” under clear tending verdict.33 jury’s Story, United States tled law.” of the col- 1241, 1248 (10th Cir.2011). The erroneous consideration General F.3d prosecution consequences lateral contrary to well- ly, “for an error be also clear law, punishment or conviction as Supreme either Court settled Again, neither Court issue.” and obvious. must have this court addressed omitted). “However, Supreme in nor the Court addressed (quotations Id. has parte communication with non-harmless ex are circumstances which 33. There under Indeed, deny- jury jury). applies as a Neither here. such set aside a verdict acquit- ing judgment of Morgan's or non-harmless motion of sufficient evidence lack tal, Rivera, was suffi- court found the evidence procedural See 411 F.3d at error. credit, Finn, 866; support conviction. To its cient also United States v. see (10th Cir.2004) (insufficient in favor of personal doubts evi- aside set Hernandez, dence); Unfortunately, objective forti- analysis. de (10th Cir.1984) (trial judge’s tude did not continue. And, Sixth, Seventh, issue. while the “seriously fairness, in- affect[] Eleventh Circuits have found consideration tegrity, public reputation judicial pro- consequences favoring or upper- ceedings.” omitted). middle- (quotations This error, class defendants Second is easily standard met here. More than Circuit has not. supra See n.S2. Never- personalities involved, this case is theless, the answer is made clear under about public trust the fairness in- 994(d) language the explicit of 28 U.S.C. tegrity government. Also at stake is as well policy as the statements reputation of collective all offi- elected guidelines. 5H1.2, 5H1.5, §§ See USSG cials, particularly pinnacle those at the 5H1.10. power and prestige. What happens when public by trust corrupt abused acts? 3553(a)(6)

Finally, expressly requires reputation offender’s is sullied and court to the need consider with it reputation of honest and stal- to avoid sentencing dispari- unwarranted judicial wart servants. The re- ties argued point. and the sponse to corruption demonstrated A procedural court commits error when it political honor, elite and lapse duty, does “material, not consider a non-frivo- represents integrity important is as argument lous” party. raised Lente, as the corruption great itself. The orator Daniel was Webster both revered re- and We next govern- consider whether the politics. viled But institutional ment has shown these errors affected the government commitment to honest cap- is (third factor). of outcome the proceedings tured these words: “I would invoke According to Morgan, if even who justice, those fill the seats of all the improper considered factors and altar, who at minister her they exe- had considered the need avoid unwar- cute the necessary wholesome and severity ranted disparities, the result of the law.” Daniel Plymouth Webster’s would have been hardly. the same. Not Oration, (Dec. Plymouth, Massachusetts The court’s of view the evidence and its 22,1820). fairness, integrity, Lest belief adequately had been pun- public reputation of judicial proceedings ished collateral consequences played an must, suffer we dispassionately, meet the significant obvious and role sentenc- challenge. to the public’s Harm trust ing decision. properly Had the court cali- immeasurable, may be but brated the need for the sentence avoid that does not make inestimable. The unwanted sentencing disparities it would profound harm is by any rational estimate. at a arrived sentence of imprison- Leaving probation intact a sentence ment. received a lenient sentence (when guidelines recommend substan- of damage because to his privileged status. imprisonment) tial on denigra- based But crime a corrupt misuse verdict, tion of jury’s considering very status. Would beat minor cop factor, improper failing consider government functionary be ever afforded critical factor “particularly egregious.” is such extraordinary consideration? Our failure correct these errors would plain if the Even errors are and affected surely miscarriage justice.” be “a rights, substantial we have the discretion to leave them Having error, uncorrected. Rosales-Mi- plain procedural found we F,3d randa, 755 may only at 1258. We normally remand without consider- plain correct affecting error ing the substantial substantive reasonableness rights if we doing also conclude that not so Haggerty, sentence. See United States occasion, infrequent Cir.2013); may, on (10th 1094, 1101 n. 6 omitted). abused.”) (citation “In sentenc Tom, 494 F.3d areas, at judges district ing, as in other easily Cir.2007). But because we mistakes that are substantive. make substantively un- times the sentence

conclude times, they impose sentences that intolerable, At will reasonable, case in this courts exist Circuit unreasonable. it.34 address they occur.” mistakes when correct such Reasonableness C. Substantive 338, 354, States, 551 U.S. Rita v. United (2007); 2456, 168 see L.Ed.2d 203 127 S.Ct. reason for substantive “Review Friedman, 1308-12 also length on whether the ableness focuses (finding imprison of 57 months given all the is reasonable the sentence range was ment, advisory guideline where light case circumstances months, substantively unreason 151 to 188 3553(a).” in 18 U.S.C. forth set factors able). appellate out for This case cries Friedman, (quotations F.3d at 1307 intervention. omitted). for an abuse Our review Gall, U.S. discretion.35 improper Removing consideration court abuses its “A district S.Ct. (doubts jury’s guilty ver- factors about judgment that it renders a discretion when con- consideration the collateral dict and whimsical, or mani capricious, arbitrary, prosecution of a conviction sequences States v. festly unreasonable.” the court’s deci- punishment), as sufficient Munoz-Nava, 524 probation vary downward sion omitted). “must (quotations We (1) seriousness following: based court’s to the district give due deference offense, (2) support, and the letters of factors, 3553(a) viewed, decision that (3) these Properly deterrence. whole, of the variance. justify the extent factors, support cumulatively, do even reasonably have might The that [we] fact guidelines from the gross variance that a different sentence was concluded presents. sentence justify rever is insufficient appropriate to the paid only lip service The court (quotations sal of the district court.” its of the and harm seriousness offense omitted). reputation public honest servants Nevertheless, contin- “appellate review legitimate faith state and the Instead, and important play explanation role to to have an its government. ues stamp.” by regarded might as a rubber one must not be sentence” be reached “fair 836; Pinson, see also calculating guideline 542 F.3d at sentence first (Count Ali, 210, 266 crime of conviction Abu on the States v. based 63) 63, Cir.2008) (“[I]nherent by total concept dividing then and counts, including the mistried is the notion that the rare number ‘reasonableness’ unreasonable, relating counts to Dilworth acquitted inher- and may be (Government’s Supp. App’x, notion Tenaska. is the ent in the idea ‘discretion’ imprisonment probation argued a term of procedural error— perceive one other 34. We pre decision. See sufficient to relevant conduct warranted. This was the court’s was argu n.36. its substantive unreasonableness serve infra appellate review. See United States ment for court, government did In the trial Mancera-Perez, 1058-59 being object sub- specifically to the sentence (10th Cir.2007); States v. Torres-Due did, however, ob- stantively unreasonable. It Cir.2006). nas, 1182-83 ject Morgan’s request sentence of for a 1247.) so, 3 at In doing Vol. prosecutorial discretion, used the will not pre- acquitted mistried and to mitigate counts sume the dismissal any way suggests Morgan’s punishment on the count for Morgan’s innocence or that govern- which he was convicted. That is clearly ment faith in lost propriety those improper. anything, If counts these Morgan counts. claims the com- court’s should have been considered as aggrava- jest. ments were said That ting the seriousness the offense.36 It is true. But the court also pointed sepa- out improper, as well as illogical, to think ac- rately Morgan “charged had been quittals on some counts somehow amelio- with a lot [but] convicted very little.” guilt rate on convicted It counts. is worse (Government’s Supp. App’x, Vol. 3 at to so treat the mistried counts. first At 1247.) blush it might appear government' that the The placed court also emphasize undue concurred the trial court’s assessment on the numerous letters in support written to the against counts of leniency. government concedes, As which jury could reach a verdict. the court could and should consider the analysis Close that first reveals blush to be by letters sent Morgan’s supporters. But a faint one. jury its reached verdict review those letters reveals many on March government 2012. The suffer same flaws inherent in the apparently satisfied with partial victory (outlined court’s analysis decided, reason, for whatever not to above) many of the questioned retry those authors counts. moved dismiss — Morgan’s guilt 2012; them on March know the facts motion was granted days surrounding five later. offense Had it been able while others be- sentence, to anticipate probation lieved im- adequately been pun- posed later, ten months January ished consequences collateral of his 2013, it may have prosecution made a different choice. and conviction. The number cannot guess We second the exercise of of letters certainly impressive but not 36. Our review of beyond the evidence—both at trial reasonable doubt. Both before and and at sentencing strongly suggests Guidelines, that the under the facts relevant to sen- — government proved by preponderance tencing of the generally pre- been found evidence that ponderance Nevertheless, relevant in- evidence.”). conduct cluded, least, very at the money he re- challenged has not the court's ceived from Dilworth and Tenaska. evi- The relevant conduct decision and therefore Mor- dence showed money gan received from opportunity has not had an to address it. yet performed Thus, these legal clients no As work. decline we to consider it. Bronson v. out, pointed Swensen, the court it be Cir.2007) ethical for an 500 F.3d attorney charge monthly ("[W]e to retainer routinely without have declined consider necessarily performing legal any arguments raised, work that are not or are inade- month. But there was no quately evidence of in presented, appellant's an opening legal performed brief.”), by Morgan work these see but Planned Parenthood Kan. & clients; indeed, Mid-Mo, Moser, both clients had other attor- neys performing And, legal (“A work for party them. an is waives issue not jury hung while the on the Dilworth counts entitled us consider and rule on it. acquitted counts, and on the Tenaska those But is it well-settled that courts have discre- government verdicts establish the failed tion to raise and sponte, decide issues sua prove these counts under the more purpose reversing onerous even for the lower- standard, beyond a judgment.”). said, reasonable doubt not being court That preponderance sentencing. standard used at other bribes are addressing relevant in Magallanez, sentence, States v. substantive reasonableness of his in (10th Cir.2005) ("An acquittal by juiy particular offense, seriousness proves only that guilty the defendant issue not did raise. lost conviction, he shows record government aptly and As

surprising. his between majority income not Presi- become “One does out: points Senate, and year the confidence he the Oklahoma without left Pro Tern dent influential,” Thus, in income quite drop greatest some his many supporters, 80.) The longer Br. at (Government’s Opening profit when could he occurred light. in that long before position viewed political must be and letters from fees. began legal incur he need consider the court While deterrence, im- by it did so adequate deter- considering general Properly collateral conse- on the relying properly rence, a non-custodial fail to how see and prosecution from flowing quences from officials public would deter arguendo, Assuming, conviction. deterrence soliciting General bribes. collateral consider these proper of conviction from a probability comes to fur- deterrents consequences specific is elim- consequences. If either significant (as op- by Morgan behavior ther criminal minimized, effect deterrent inated punishment), we fail posed to sufficient country minimized. This proportionately satisfy the need they suffice how see democ- representative depends on honest True, Morgan’s pros- general deterrence. imperfect, and, system racy while our highly publi- were ecution and conviction widespread generally suffer from does in the court’s in But cized Oklahoma. functioning re- proper Its corruption. com- loved “well remained words he the com- to serve quires officials elected (Govern- many munity communities.” gain. Our good, personal mon not illicit 1247.) 3 at Obvi- App’x, Supp. ment’s Vol. honesty in- place faith citizens trial accompanying his publicity ously, the mean- Without tegrity of officials. elected necessarily deter would and conviction trust, for a breach ingful-consequences from conduct. similar officials other elected blind trust. than their trust no more Moreover, conditions Morgan’s health Deter- recognized as much. Congress has of his and exacerbation (anxiety/depression sentencing deci- factor in is a crucial rence high pressure) seem pre-existing blood corruption public -and sions economic be temporary nature this such as one: crimes Similarly, officials. known tois generally would second of a law purpose license loss of- committing the majority of elected to a others applicable not be deter considering important it to be a deter- particularly officials and fense. This is focus; Morgan Major a loss represents rent collar crime. the area white crimi- to facilitate his license are sen- used law often collar white criminals Stefonek, or no nal act. little fines tenced small Cfi (district departing down- erred Unfortunately, cre- imprisonment. ren- defendant had based on services ward offenses certain impression ates community as a nurse because dered to fine that punishable only a small are by very busi- “provided services were doing of off a cost as be written can of [defen- the vehicle that were nesses business. law”). of multiple violations federal dant’s] (1983), 98-225, reprinted S.Rep. No. of his Moreover, twilight is in Morgan 3182,3259. U.S.C.C.A.N. in 1984 privi- career, loss of the making the legal of Thus, objectives” primary “one of the in less Oklahoma lege practicing of law of officials convicted sentencing elected hardship to the financial devastating. As to other message bribery is “to of send his trial as a result Morgan incurred [public [bribery] is a officials] serious both abusing his public office violating it a crime carries with corresponding- of profession. ethics ly punishment.” Knhlman, serious The court did not seriously consider the By awarding Morgan F.3d at 1328. proba- need for the imposed sentence promote tion disregarded “the district court respect for the law and provide just importance delivering such a message. punishment for the offense. While rec- fact, [Morgan’s] sentence op- sends the ognize probation is a form punishment, posite message encourages rather than —it is “grossly inappropriate” here: discourages [public from engag- officials] ing in [bribery] they past [I]n because there might con- have been many cases, clude that the only penaltfy] they particularly in will face of major instances if caught crime, they probation].” [is white collar in probation which Consequences probation count and granted doesn’t has been because the offender enough count in this case. And no fine required nothing little or in way imposed. was from probation, Aside Mor- institutionalized rehabilitative measures gan’s punishment comes down to this: he ... society and because required no in- required $12,000 bribe, to forfeit the sulation from offender, without due perform 104 service, hours of community being given consideration fact pay the special standard assess- $100 heightened that the deterrent effect of ment fee. incarceration and the readily perceivable receipt just punishment proper

Consideration of accorded factors does not incarceration were of admit to a critical probationary impor- sentence. But tance. troubling placing probation more The perhaps are the factors not of [a white collar considered. mention, criminal] The court may perfectly did passing, even in government’s appropriate which, cases credible under all argument Morgan circumstances, should be sen- only the rehabilita- tenced to some of imprisonment term tive needs pertinent; offender are order to avoid unwarranted such a dis- be grossly inappro- parities. cited a however, number priate, in cases in which the involving cases political figures accused circumstances mandate the sentence’s using their for personal gain status who carrying substantial puni- deterrent or were sentenced imprisonment. to terms of tive impact. Morgan attempted distinguish these S.Rep. 98-225, No. (1983), at 91-92 re- by noting cases the differences in the printed in 1984 U.S.C.C.A.N. 3274- illegally

amounts gained, attempts 75. scheme, conceal the the harm caused. Upon being elected But he cited no as an case Oklahoma where defendant Senator, to, swore among sentenced probation other absence “not, acceptance things, knowingly, of responsibility receive, (guilty directly or government. any plea) indirectly, money assistance or other valuable Moreover, thing, did performance neither. or nonperform- amount Oak Silver bribe was ance of duty rela- act or pertaining to my tively office, small in comparison to the other than the compensation al- Const, counts large indictment but looms lowed law.” Okla. art. 15 in terms harm public And, trust. Not only oath, he violate he violat- earlier, explained attempted to ed the of trust his electorate. The entire up fees, cover his legal as thereby bribes as ought suffers a result and not be sort. general of a quo, but more quid pro amount a a sentence to tolerate requested why requirement Finally, explain I will sentencing guide- with grossly odds in this case. than a was satisfied to little more amounting lines punishment Condign slap on the wrist. of period incarcera- A significant

demands in this required Resentencing is tion. 666(a)(1)(B) § makes 18 U.S.C. case. crime someone if conviction but Morgan’s AFFIRM We for the or demands corruptly solicits for resentenc- REMAND REVERSE or accepts or any person, of benefit ing. anything of value agrees accept, intending to be influenced any person, concurring. HOLMES, Judge, Circuit any busi- or rewarded connection ness, transaction, of transac- or series majority opinion with the I agree government, organization, of be tions such conviction af- must Morgan’s Michael thing of value of involving any agency More or and his sentence vacated. firmed $5,000 in all of the fully more[.] I concur specifically, thoughtful order thorough and majority’s in the law as to uncertainty There is some is, I That except Part IV. and judgment, any, if neces- quo, type quid pro what majority’s disposition agree with statutory satisfy requirement sary to judgment appeal from Morgan’s Mr. with the bribee be that the bribe solicited 13-6025). (Case to that As No. conviction or rewarded in “intending influenced be to ex- separately merely I write appeal, Id. As official business. connection with” con- of the aspect on one my views press below, the statute does explained detail quid-pro-quo el- of the nature viction—the showing, but quid-pro-quo demand 18 U.S.C. required ement pay- exchange of a in the sense loose IV, Part 666(a)(1)(B). Regarding action, the sense for official ment as the I same conclusion though reach precise fa- that the bribee must bestow outcome proper regarding majority time vor that was identified (i.e., be vacat- must Mr. bribe.1 rationale; I ed), so under a different I do a circuit authorities have observed Some explicate it. separately write § question whether split on the requirement and quid-pro-quo bears I Unit- requirement. the nature McNair, 1152, 1189 conviction, assume ed States v. I will Turning to the Sixth, (11th Cir.2010) that the (suggesting light facts knowledge pertinent of the Circuits, and Seventh, Eleventh of them. thorough recitation majority’s require “spe- Second, concerning extent the some precedent I will discuss the Fourth pro quo,” whereas quid and will cific requirement quid-pro-quo does); Olen, The Devil’s require Circuit Jared W. relevant cases all conclude 1830s, illustrate, it was remarked this dis- end case 1. As the facts money governed by lawyers. That important circum- nation particularly tinction explained, or lawyers ration- receiving paid could official where an elected stances alized, money paid for actual receipt as justify or laundered might otherwise bribes difficulty in legitimate legal was a substantial legal services payments for services or Noonan, occupying Jr., lawyers isolating paid bribes Bribes 447 See John T. income. (footnote omitted)). posts.” (1984) describing official America at ("Toqueville,

453 § in the Intent: Does 18 U.S.C. promise, 666 Re- nor specific need link each ben- Quidr-Pro-Quo ?, quire Intent 42 act.”);2 efit single a official United Proof 229, (2012) (conclud- L. Sw. U. Rev. 234-40 Jennings, 1006, States v. 1018 Fourth, ing Second, Eighth and (4th Cir.1998) (“[A] juror reasonable could required quid pro Circuits have a quo have concluded was a that there course of Seventh, Sixth, whereas Eleventh involving conduct payments flowing from not). A reading Circuits have closer [the in exchange briber] to [the bribee] cases, however, finds readily them recon- pattern a of official actions favorable to cilable. companies, [the briber’s] and that was suf- begin, ficient to convict quid pro quo To is most [the defendant] brib- tradition added)). ally ery.” (emphases characterized with reference a spe cific, See, e.g., one-for-one trade. Black’s Cases in supposedly anti-quid-pro- (de Laic Dictionary 2014) 1443 ed. quo camp are not inconsistent with the fining the term as action or thing “[a]n authorities, as aforementioned demonstrat exchanged for another or action ed the fact that those courts re value; thing equal more or less a substi jected a specific quid-pro-quo requirement, tute”). § In the 666 bribery context, i.e., a exchange, one-for-one not while re though, it has been given general more jecting a quid-pro-quo requirement meaning that essentially just requires the general, sense free-floating more ex government any exchange show aof change where an agreement is reached to action, political bribe no matter wheth exchange a bribe for official action but specific er there is a connection between where the official precisely action favor, bribe an explicit such as identified at the time of the bribe. See request particular for that favor. This McNair, (“[T]here 605 F.3d at 1188 is no position quite clearly has been taken requirement 666(a)(1)(B) (a)(2) or the circuits that are commonly understood government prove allege or an intent having imposed a quid-pro-quo require solicited, specific payment that a was re Redzic, ment. See United States v. ceived, given exchange specific 683, (8th Cir.2010) (“[T]he F.3d gov (em act quid official termed pro quo.” must present ernment quid evidence of a added)); phases Abbey, pro quo, but illegal paid bribe be (6th Cir.2009) 560 F.3d (“By its with the intent a general influence terms, not require gov [§-666] does course conduct. not necessary ernment to prove [the contem bribee] for the any to link particular plated a payment specific act when he any particular action received undertak defendant].”); (emphasis bribe....” added)); by [the en States v. Ganim, Gee, (2d States v. F.3d Cir. (“[S]o 2005) (“Another long as the jury argument finds that an official is that the evi gifts accepted exchange promise dence any does specific establish act perform giver, official acts for the that [the need in response bribee] took not find that specific act to per specific payment.... Yet the statute does formed identified at the time of require any such (emphases link.” add- McNair, appears This sentence 1189-90; from Ganim under terms. See 605 F.3d at see heading Extortion,” Rosen, "Hobbs Act but the also United States (2d Cir.2013) Second Circuit making seems to have been (applying quid pro Ganim to point about both that quo agreements offense bribery under federal statutes). discussion has been understood in those honest services fraud

454 or rewarded intending to Terry, be influenced 707

ed)); see also business, Cir.2013) as with’” (explaining, connection 612 F.3d 666(a)(1)(B))). Accordingly, agreement § that general principle, (quoting “[t]he a person 666(a)(1)(B) public official and a conviction can sustain § between spell out which need not offering the bribe proves that the bribee the evidence where official particular payments control which part exchange as of an accepted the bribe Rather, if ‘it is sufficient acts. action, is no if there for even political ex- that or she was he official understood the bribe and specific connection between on the some influence to exercise pected particular a action.3 opportunities as arose.’” payor’s behalf 518)). at Abbey, F.3d

(quoting B re two circuits that have been Even sug question mum on garded as have apply All test. that remains approach. a similar See gested light testimony in the Considering the trial Garrido, government, gov- most favorable (“[Section] require does following se- established ernment (em specific pro jury quid quo.” to find Department quence of The Health events. McNair, (citing phasis added) citing Crosby’s Mr. business had been 1187-89)); Bryant, United States v. who, according to the housing individuals (3d Cir.2011) (“[A] pro quid nursing have been in Department, should in the quo may come form of a ‘stream citations, Cros- Upset by the Mr. homes. ”). benefits.’ Morgan he because Mr. turned sum, does be appear there care help. didn’t [He] some “needed re- disagreement among real the circuits call, legislation, phone whether garding the substance of 666 re- what whatever, just some meetings, [he] needed quires, though use different courts Aplt. off back.” help get [his] them terminology describing that different (test, Crosby) (empha- Mr. App. substance. added). informed Morgan sis then Mr. way is the it works. Crosby: Mr. “This approach entirely with

This consistent $1,000 a month retainer.” pay You me a §of language Simply put, the 666. retainer, S.B. 738 was that While contains nothing imply statute that Morgan’s name. If introduced under Mr. to the specifically favor must be linked drafted, Bill enacted as McNair, any way. bribe See Crosby’s problems ameliorated Mr. lan- (“[N]othing plain at 1187-88 authorizing Department by the Health 666(a)(1)(B) 666(a)(2) '§ nor re- guage living patients longer stays in assisted solicited, specific quires payment medical needs and with more serious received, given exchange specif- for a Depart- of the Health powers act.”); Gee, reducing ic official 714-15 F.3d at The such matters. ver- regulate ment to (“A specific quid pro quo of for a money passed, sion Bill while substan- of the legislative act is to violate sufficient than the statute, tially and more balanced revised necessary. is not but .,. draft, help in fact address Mr. initial enough ‘corruptly accepts if someone anything Crosby’s concerns. any person, ... value from 8, 2012) ("It be shown need not juiy clearly dated Mar. instructions reflected given require- any specific in ex- understanding benefit was quid-pro-quo act.’’). Instrs,, change specific Aplt. (Jury official App, ment. at 181 To recap, distill this narrative Mr. calls for punishment. offense a significant Crosby Morgan came to And, Mr. for assistance below, I explain I believe it calls fending off Department, in- Health greater a punishment proba- than the assistance; cluding legislative paid he Mr. tionary Morgan Mr. received $1,000 month; and Mr. here. We need not Mr. Mor- celebrate Bill introduced a that would have gan’s delivered recognize downfall in order to that assistance, if passed drafted, such as he must be held for proven accountable did fact that deliver assistance as enact- misconduct. The must have confi- ed. exchange There was an for money dence that there consequences are when political favorable action and the more their leaders temptation. succumb to general quid-pro-quo easily test was satis- After addressing a preliminary matter— I Accordingly, difficulty fied. con- is, scope government’s of the sen- cluding that Mr. properly tencing cross-appeal proceed to set —I convicted under 18 U.S.C. forth my reasoning rejecting the dis- trict court’s sentencing order.

II A proceed considering We must the pro- priety of Mr. sentence from outset, At the I must note I re- premise that took he a bribe violation of spectfully disagree majority with the re- blush, 18 U.S.C. 666. At first this fact garding government’s scope might incongruous seem with the life that T cross-appeal: specifically, believe the record reveals Mr. has other- only challenge us involves the before led, wise involving many positive contribu- vel non substantive reasonableness Mr. tions to the State Oklahoma. But histo- Morgan’s I not view do sentence. ry and literature chronicle the lives government procedural-rea- lodging a many (and good women) otherwise men and, challenge sentencing sonableness ac- who pride arrogance have allowed cordingly, any would decline review become the seeds downfall— their own claim, such rig- ostensible under the even here, overweening arrogance pride and plain-error orous In other standard. that allows a man to believe that he is words, I procedural do not that the believe above the law. .Morgan’s reasonableness Mr. us; is before this case should be resolved What this case is the underscores conse- only respect reason- with substantive quences of failing guard against ableness. inherent weaknesses of the condi- human tion. good That otherwise majority men As the explains, sub- we review sen ject to these frailties an important rea- two-step tences a reasonableness under son that the criminal law supply must process a that consists of procedural and meaningful See, properly deterrent. Once components. e.g., substantive convicted, charged and Friedman, the law demands States v. persons (10th Cir.2009)

that all (“Reasonableness matter their station review is —no in life—be held to ac- two-step process account their comprising procedur tions. This is all the more so in a case al and a substantive component.”) (quoting involving political corruption, a of- Verdin-Garcia, serious United States v.

fense public’s which Cir.2008)). erodes the faith in the Where both legitimacy government of their components sentencing are at issue leaders. Accountability appeal, such serious begin we ordinarily exchange point before after At no and consider component

procedural procedur- refer necessary government if only did component substantive of the sentence. court erred. al reasonableness the district whether determine States, U.S. Gall v. forfeited government therefore (2007) (“As 586, 169 L.Ed.2d 128 S.Ct. argument procedural-reasonableness court’s suming. the district and, if it is entitled the district court sound, appel procedurally decision all, for plain it would review then consider sub should late court McGehee, 672 States v. See United error. sen reasonableness stantive Cir.2012) (“Unlike _”). But the here tence theories, will entertain forfeited waived procedural-reasonableness preserve appeal, but we reverse theories will ap court or in the district argument on the of judgment court’s basis district Gantt, F.3d v. 679 States peal. See United so only failing if theory do forfeited Cir.2012) (“To 1240, 1247 (10th preserve [a re plainly erroneous entrench challenge] procedural unreasonableness sult.”) Grp., Ernest (quoting Richison v. needed to appeal, [defendant for [the] Cir.2011)); Inc., 1123, (10th 1128 634 F.3d explanation was court that its alert 647 Vasquez-Alcarez, require ordinarily would inadequate, which Cir.2011) (10th (“If has 973, he F.3d 976 the court had rendered objection after an we argument, stale forfeited the conviction any cure court could then sentence. The of reasonableness review the substantive explana offering necessary error error.”). for The only plain his sentence Romero, 491 tion.”); States however, has not government, asked Cir.2007) (holding that 1177 procedural-reason of a plain-error review contemporaneous ob requirement “the Instead, it challenge. ableness frames consistent procedural errors is jection to solely challenge appeal issue on as a rea represents precedent our with of Mr. Mor substantive reasonableness defendants”). on sonable burden at Opening Br. Aplee. gan’s sentence. object to Mr. government (“The downward vari district court’s 47 procedural-reason- on sentence substantively unrea probation ance Indeed, of- the record grounds. ableness sonable.”). Indeed, government’s proce- single clue that such fers not a briefing does not refer —even once—to challenge ever dural-reasonableness procedural unreasonableness. At court. the district made before re- has not government Because hearing, the district after procedural- of a plain-error review quested sentence, its advised explained court challenge, much less made reasonableness right appeal Mr. effect, to this argument an should begins stated, probation period “Your on appeal. consider this forfeited error I a dis- you to have immediately. advise Richison, (“And See, at 1131 e.g., 634 F.3d probation office before cussion argue so—the failure the failure do building.” Aplee. App. you leave ap- plain application error and 8, 2013). Tr., (Sentencing dated Jan. 1249 the end the road peal surely marks asked, “Is there court then The district — present- not first argument an reversal counsel,” which the anything else court.”); see also United to the district “No, ed Your Hon- responded, government Lamirand, n. States v. court then ad- Id. The district or.” (“Mr. Lamirand has hav- 7 sentencing proceedings, journed the late-blooming argu- us to to the sentence. asked review objections ing heard no plain ment for error. Accordingly, we de- with the task formulating a structure for so cline do and will not definitively opine sentencing that would ‘assure meeting the merits argument.”). purposes this More- sentencing as set forth ” over, because the has made 3553(a)(2),’ [18 ] no U.S.C. including deterrence, procedural-reasonableness (alteration general argument in its original) brief, opening (quoting it has sepa- 991(b)(1)(A))); waived—on 28 U.S.C. S.Rep. 98-225, independent rate and No. (1983), procedur- reprinted basis— See, (“[Deter- challenge. al-reasonableness U.S.C.C.A.N. e.g., Swensen, particularly Bronson v. important rence] in the area (10th Cir.2007) (“[W]e crime.”). of white collar routinely From that have de- nu- range, merical arguments clined to consider varied are not downward raised, to a imprisonment, or are inadequately presented, proba- tionary years, term of five appellant’s brief.”); opening accord hours of community service, v. Cooper, forfeiture of (10th Cir.2011). $12,000. pertinent here, As explained the court

B its sentence as follows: course, I Of start with view, my therefore, the calculation of chal- guideline[s] range then go and on lenge us on government’s before cross- consider what appeal enough sentence is but relates the substantive reason- more necessary than to reflect vel non seri- Morgan’s ableness of Mr. sen- offense, promote ousness respect briefly tence. After summarizing the rele- law, for provide and facts, just punishment explicate vant I my rationale for offense.... concluding that Mr. sentence is substantively unreasonable, case, in this I and that So look at the serious- offense, district court erred ness imposing adequate it. deterrence you only others, but for ' promoting respect for the law. I began my with of the view evidence. The district court advisory calculated this, I through sat as jury, did the and I sentencing range of forty-one to fifty-one opinions had definite about the evidence pursuant months to the United Sen States I get that don’t to voice when the jury (“U.S.S.G.” tencing Guidelines or “the does, you but were Guidelines”). convicted one That range numerical of 63 counts. by applying derived that Guidelines were One of specifically designed many letters political deal with submitted your corruption suggested [o]n behalf specifically figure that I set with deter your out what Aplee. rence mind. See sentence at should be—I App. (Presentence suppose guidelines Investigation under the Report, filed then —and 21, 2012) by 63 to Aug. (calculating up divide it come with base offense fair I actually sentence. thought level pursuant fourteen was not U.S.S.G. 201.1(a)(1) idea, such but I not figure Mr. a bad could because awas public official); out math to it. do United v. Ruiz- Terrazas, But, Cir. clearly, you charged were awith 2007) (“In setting lot, forth purposes you were very convicted little. goals Guidelines, Congress specifi conviction,' And that as [defense counsel] cally charged the Sentencing Commission pointed out has today, based on reasons, varying I am all evidence, For these based suspect very

some range felon, guideline[s] from the re- of a convicted downward testimony probation. imposing no one has ever bill that sentence sulting in a complained about. Tr., (Sentencing 1246-48 App. Aplee. at looking I’m at case So Jan, 8,2013). dated Certainly the done. that was harm legit- reputation always to the harm is That suffers government. imate state in Oklahoma sometimes

many places, the current majority, given Unlike the certainly that’s others. And more than regarding law substantive-rea state of the respected which to be a value by the Su review defined sonableness out. be meted should punishment court, think our I preme Court and do of letters. I’ve I this book that a “easily look conclude” can ever often, think I would I thought don’t substantively unreasonable. sentence letter, ask for a 448; see, to even people e.g., know 482 States v. Op. Maj. from of positive all get a one 1280, 1289 (10th much less Wittig, 528 F.3d You are well loved (“This pres them back. (Hartz, J., concurring) court’s many communities. community and approach appears ent to be people of these many if the sentenc And so reasonable substantively probation length for consideration judge provides asked reasons ing behalf, leniency your this court’s Under [o]n of the sentence.... may go through the government] approach we thing present that [the The one impris- re of a sentence motions of argues favor substantive-reasonableness one, view, gesture,”); empty and that is be an important is an but it will onment Smart, inclined who States v. example to others Cir.2008) (“We may the have done. not examine try you do what to various weight assigns a district opinion of that the personally I the am factors, 3553(a) assess ultimate case followed this publicity that has them, of as the balance between you ment the results beginning, from the novo. health, legal be reviewed de conclusion financial your your both Instead, ‘give must due deférence we health, you will almost cer- the fact that the court’s law, decision I the district practice tainly your license lose whole, factors, 3553(a) justify the on a that would all of these are factors think ” variance,’ Gall, (quoting considering extent anyone the surely else deter However, 586)).4 51, 128 at S.Ct. U.S. conduct. same counterweight important sions remains an review in the 4. Substantive-reasonableness courts. See balance discretion district the Supreme Court’s decision in Unit- wake S.Ct, (exploring "important Booker, functions id. at 964-70 U.S. ed States v. [i.e„ it treat (2005), when courts diminished challenging 160 L.Ed.2d as a rub- Note, review] endeavor, See, substantive-reasonableness e.g.. say the least. ("[Resistance stamp”); ber id. at Meaning- Formality; Case More than disparities that the rea- Review, reifies unwarranted Reasonableness Substantive ful implemented to was (2014) (“The sonableness standard workabil- Harv. L. Rev. of one I the remarks remedy.”). endorse review has ity reasonableness of substantive commentator who said: withering subject of criticism from been ex- consider the bench, Sentencing [A]ppellate should academy, courts and the Nevertheless, from itself.”),- deviation of a tent sentence’s substan- Commission Gall) (as permitted and from Guidelines deci- review tive-reasonableness upon careful review of the record and the defendant’s contention that “the district rationale, court’s I district agree do court simply disagreed with the career majority that the court’s sentence is provisions offender Guidelines.” Id. substantively unreasonable. Although at 1311. we recognized that the district court would been entitled to helpfully ease is through

This viewed express disagreement, such a it did not do decision, lens of precedential the one so, offering only an “exceedingly limited we did where reverse a sentence as sub- ambiguous statement” in defense of stantively unreasonable —United States u most, the variance. Id. At Friedman, district supra. The district court there justification court’s indicated that it be- robber,” “a serial sentenced bank lieved there “something was about the na- fifty-seven at months ture of the [offense] and [the prison, ninety-four defendant’s] “a month variance history and characteristics called for [that] the bottom of the advisory Guidelines a substantial variance from range,” at government’s advisory id. 1308. On the range.” Guidelines Id. Since that appeal, we reversed the determi- sentence as sub- Id, nation was stantively “unsupported record,” by the unreasonable. it 1312. At “an constituted abuse of analysis, start our we observed that discretion.” Id. discussion, At “the the close of our undeniably sparse record in we th[e] case reiterat- ed certainly very that “the question bears whether limited nature paucity record and [the sentence is substantively reasoning defendant’s] on the part of reasonable.” Id. at 1308 n. the district We court most certainly then remarked that bear on “the district court our simply review the substantive rea- disregarded the career provi- offender sonableness [the defendant’s] sentence.” sions” that Id. applicable were and that 1312. Given those shortcomings in “never identified record, nature of how we reversed and remanded for or [offense] [the defendant’s] individual resentencing.

characteristics supported sentence While Friedman is not factually on all amounting to 38% of the bottom of the case, fours with view, my instant advisory range.” Guidelines Id. at 1308. supplies the appropriate analytical frame- concluded, not enough, that the work for our review. Just in Fried- district court had a “hunch” “feeling” man, we deal here awith substantive- unlikely. recidivism Id. at 1308 challenge reasonableness to a significant n. 11. gaps record, Given these we downward variance from the Guidelines. nothing could discern suggest to “that the And, Friedman, just as in the current imposed by sentence the district court is record us no grounds to offers find that light reasonable the set factors out in downward variance substantively reason- 3553(a).” § [18 U.S.C.] result, able. As a Friedman counsels that then specific We turned the argu- resentencing remand is mandated sentence, ments for rejected Lente, here. United v. States 759 F.3d Cf similarly sentences situated remanding offend- resentencing nize that is not ers; assess whether the district court’s very costly rea- remedy,- sentencing hear- (cid:127) soning 3553(a) § is short, ings whether the relatively sound discrete affairs. emphasized factors by the district Id. can court say, 971. Suffice it to if we are weight assigned them; bear the and de- stamp” function as more than a "rubber we whether, light totality termine of the give meaning must endeavor to the sub- circumstances, shockingly is sentence component appellate stantive of our review of low_ decisions, high or recog- Courts should also 460 3553(a). § See Cir.2014) (in enumerated (10th rejecting the factors

1149, 1174-75 Robertson, States v. challenge, United a substantive-reasonableness Cir.2009) (“[A] (10th occurs ‘variance’ impor- also stating underscore “[w]e a sentence court reaches a district in when record created of the extensive role tant Guide the recommended that differs from record we ex- type “the this case”.... application range through the lines reviewing a sentence far pect to see when 3553(a).” § (ci- outlined in U.S.C. range” advisory Guidelines outside factors added)); Alap States v. United (emphasis omitted)). tations (10th izco-Valenzuela, 546 F.3d the cir- why under explain I first will (“[W]hen varies court the district our substantive- of this case cumstances range advisory from the Guidelines deferential, review, while reasonableness 3553(a) § through application fac justifi- for a the need be sensitive must tors, whether simply consider we signifi- to warrant on the record cation substantively rea sentence length Then, I will variance. cant downward give defer due ... ... ‘must sonable. We is ab- justification how demonstrate that the court’s decision ence the district here, mandating a remand for thus sent whole, 3553(a) justify the § on a factors, resentencing. ” added) (emphases of the variance.’ extent omitted) (citations (quoting United States (10th Munoz-Nava, 524 F.3d v. why our reasons related There are two Pinson, Cir.2008))); v. justification of the record review (“In (10th Cir.2008) light espe- must be sentence Mr. 3553(a) recognizing factors (1) district court searching here: cially court over vested the district discretion Guidelines; from the sharply varied this sentence sentencing, find [variant] (2) are deliber- applicable Guidelines ” added)). (emphasis reasonable — purely probation- ately avoid structured in white- sentences, Morgan’s, Mr. ary like play Moreover, the Guidelines because prosecutions. collar sentencing, it stands a core role at such that the of a variance would reason size inquiry inform sentence’s regarding our one in which substantive reasonableness. variance classic case Shuck, 563, 570 the Guide- States court from a district deviates Cir.2013) (“In court’s reviewing the advisory district Guidelines lines because reasonableness, pun- for substantive for the” range “fully account fails into ‘take account appropri- ... will otherwise ishment that would circumstances, including 3553(a). totality U.S.C. ate under 18 variance the Guidelines Scott, extent Gall, added) (quoting However, range.’” (emphasis Cir.2008). undisputed that 586)). 51, Stated 552 U.S. at 128 S.Ct. starting the should be “the Guidelines discrepancy be- larger the differently, of sen- the initial benchmark” point and advisory Ray, the sentence 704 tween tencing. United States Gall, more of a (quoting range, the foundation 1307, Guidelines 1315 3553(a) 586). § factors to 49, sub- The there must be 128 552 U.S. S.Ct. at Friedman, discrepancy. inquiry justify must be stantive-reasonableness (“[W]hen a district at n. 10 1308 for the 554 to a reason variance able detect advisory from the Guidelines grounded court varies from Guidelines

461 range it ‘must consider the extent of weight general to (emphasis deterrence.” added)); justification deviation and ensure that the Pugh, 515 F.3d at 1199 (noting sufficiently compelling support to a probationary sentence “afforded degree variance,’ especially given precious if any weight” little to the need to that ‘a major sup- [variance] be should reflect crime, seriousness to ported significant a more justification promote law, respect pro- for the to (second than a minor one.’” alteration in just punishment offense). vide for the Gall, original) (quoting at U.S. b 586)).

S.Ct. A large from meaningful background With these variance principles in prison Guidelines hand, a probation- sentence to becomes why clear we must be ary term trigger should a close look at especially discerning in our search for val- guided 3553(a) 3553(a) id factors factors— support the vari- record — under any However, circumstances. ance The district court here. varied from triggers an even closer look in the context Guidelines degree, substantial one, of case like this as the relevant dropping from Guide- years three-and-a-half provisions lines deliberately adopted were advisory low end to zero. range to ensure offenders, that white-collar point, More to the like the variance awas Morgan, Mr. comparably were treated is, tremendous one in terms of kind —that their blue-collar counterparts, who qualitatively. A histori- punishment non-custodial cally have received harsher is qualitatively sentences. than different one that in- volves imprisonment. words, In other This aspect of the has Guidelines been there obvious difference between a aptly (now-Justice) by Judge described from, goes say, years seven Breyer, who was member of the first imprisonment years, three-and-a-half Sentencing Commission and participated goes and sentence that from three-and-a- in that capacity creation the first years (i.e., half to nothing period edition the Guidelines. See Carissa incarceration). Gall, U.S. Cf. Hessick, Byrne Appellate Review Sen- (“We recognize S.Ct. that custodial tencing Policy Decisions Kim- After sentences are qualitatively more severe brough, (2009) Marq. L. Rev. than probationary sentences of equivalent (“Prior appointment Supreme terms.”). Court, Breyer Justice as served one of the original Sentencing U.S. (i.e., Commissioners the latter situation a downward and is often principal referred as zero imprisonment), variance the vari- Guidelines.”). author of original In an ance deviates the Guidelines to the article, informative law then-judge review possible, fullest extent aas result our Breyer explained ap- how the Guidelines’ review searching should as the defer- proach to sentencing white-collar offenders ential standard review allows. Unit- Cf. was devised: Kuhlman, ed (11th Cir.2013) (‘We are hard-pressed found in signif- Commission its data see how a non-custodial sentence serves icant discrepancies pre-Guide- between goal general a[in deterrence white- punishment line[s] of certain white-collar collar prosecution].”); crimes, fraud, United States v. such as similar Pugh, (11th Cir.2008) crimes, common law such as theft. The (“Quite simply, by imposing a non-custodi- Commission’s statistics indicated that sentence, al the district court involved, accorded where white-collar fraud was

462 ‘prime are crimes these opportunity,’ probation to offenders granted courts deterrence,’.” (al- in- general in situations for frequently candidate^] than

more crimes; Bi- analogous volving original) (quoting Stephanos law common teration in furthermore, se- prison less terms were bas, and Bargaining Plea White-Collar white-collar criminals who for Booker, Mary vere & 47 Wm. Sentencing After mitigate To probation. not receive (2005))); 721, accord United L. Rev. 724 discrepancies, inequities these (6th 602, 609 Musgrave, 761 F.3d States v. require short but decided Commission Cir.2014); Peppel, 707 v. United States many for confinement certain terms Cir.2013). (6th F.3d 637 tax, offenders, in- including white-collar landscape, considering legal After offenders, trading, and antitrust sider so circuits went far one of our sister likely re- have previously would who for the central reasons say “[o]ne that only probation. ceived guidelines” as a creating sentencing Sentencing Breyer, The Federal Stephen for penalties to ensure stiffer whole “was Key Compromises and the Guidelines dis eliminate crimes and white-collar Best, L. They 17 Hofstra Which Upon sentences parities white-collar between omitted). (1988) (footnotes 1, 20-21 Rev. United other crimes.” and sentences concerns, the equitable In addition (6th Davis, 611, 617 v. F.3d States 537 for confinement preference Guidelines’ Cir.2008); at Musgrave, 761 F.3d accord by oth criminals is motivated white-collar here, as the so far go I need one, “proba For interests. significant er opine me to require case does instant crime tionary white-collar sentences overarching purposes about ac sentencing disparities concerns raise there can say that Suffice Guidelines. class,” to socio-economic United cording that, minimum, the Com at a be no doubt (3d Levinson, 190, 201 543 v. F.3d States penalties for equalize mission’s desire Cir.2008); v. accord United States Muef blue-collar Cir.2006), and (1st white-collar and 40 felman, crime— an patently the former —is strengthening forcefully against spoken has out Congress white- undergirding the important the sen that to soften concern any practice tends See, merely e.g., sentencing provisions. rich powerful collar tences see powerful, rich 28 they Prosperi, are because United States v. F.3d 994(d) (“The shall (1st importance Commission (discussing U.S.C. policy state guidelines that the Congress assure have that Commission ... entirely to the are neutral as ments of discrepan placed on “the minimization offenders.”). socioeconomic status of blue-collar cies white- and between Moreover, especially important it is Mueffelman, F.3d (quoting fenses” gen sentences effectuate white-collar Treadwell, 40)); v. punish of criminal aims eral-deterrence Levinson, Cir.2010) (same); Hayes, States ment. (“The Sentencing Commis 543 F.3d at (“[W]e (11th Cir.2014) 1300, 1308 imprisonment terms of sion recommended general explained deterrence defendant’s] like [the crimes economic cases, factor in white-collar important concern because of greed.”); motivation where ineffectual”). crime had been white-collar Martin, 1227, 1240 advisory the Guidelines Now Cir.2006) (“Because fraud- economic and district binding upon the rational, cool, rather than crimes are ‘more based Booker, courts, passion see U.S. than crimes sudden calculated

463 738, (7th S.Ct. but certain Gir.2012) “short terms con- (mentioning one-year-and- a many offenders,” finement for white-collar one-day prison for sentence accepting Breyer, supra added), (emphasis at 20 $1,200 bribes); in United States v. Curesc no longer goal that the can u, Guidelines 735, (7th Cir.2012) 674 F.3d 737-38 achieve, as district courts retain the discre- (mentioning a forty-one sentence vary tion to below Guidelines where months for accepting $1,000); bribe appropriate prison and a term is conse- Robinson, United States 265, v. 663 F.3d quently See, no longer e.g., “certain.” (7th Cir.2011) (mentioning 267-68 a ten- Smart, 518 (“Applying 810 year paying $1,000 for sentence bribe appropriate legal pro- standard review offering more); and United States v. Bel vided Kimbrough[, Gall and 552 U.S. dini, 709, (3d 443 Fed.Appx. 712-13 Cir. 85,128 558,169 (2007)], S.Ct. L.Ed.2d 481 2011) (mentioning a of thirty-six sentence crediting and the district court’s reasoned imprisonment months’ for receiving two consideration multiple sentencing these $10,000 bribes); United States v. factors, perceive any we fail to abuse of Anderson, (7th 953, 517 F.3d discretion in sentencing [the defendant] (mentioning a years sentence of six for sentence.”). a below-Guidelines Neverthe- offering bribe); $10,000 United States v. less, policy the Guidelines’ interest in con- Gonzalez, 516, 706102, 193 F.3d 1999 WL for finement most offenders is white-collar (5th Cir.1999) curiam) *1 (per (unpub one, important “the because Guide- decision) lished table (mentioning a sen lines starting should be the point year tence of one day one for accept initial sentencing, benchmark” at Ray, 704 ing worth of in bribes violation of $600 Gall, F.3d at 1315 49, (quoting U.S. at 666(a)(1)(B)); § United v. Agostino, States 586), that policy S.Ct. remain should 1183, (7th Cir.1997) 132 F.3d 1188-89 central consideration for a district court (mentioning a four sentence of months for sentencing a white-collar criminal. offering $4,000). a bribe of Indeed, sentencing patterns of dis Tellingly, in rare cases where courts, Booker, trict prior both to and after district courts imposed probationary have specific prosecu area white-collar sentences, seemingly uniform result on tion at political issue corruption— here— appeal has been reversal the sentence suggest that courts have demonstrated resentencing. remand In strong fidelity foregoing policy con v. Hayes, States Circuit va Eleventh and, cerns consequently, consistently the probationary sentence of cated a de declined to impose probationary sentences $600,000 fendant paying convicted of over on corrupt government officials. More in bribes. 762 F.3d at 1310-11. Despite specifically, district generally courts have cooperation gov imposed defendant’s with the prison some bribery time ernment, the court cases, concluded that the sen matter how small the dollar See, substantively amount of tence was e.g., unreasonable bribes. be Richard, (5th v. provide “just cause it punishment failed 775 F.3d Cir.2014) (affirming thirty-three promote month offense or [the defendant’s] law,” soliciting sentence accepting respect for the id. at $10,000 bribes); “provide see also United States the same level of deterrence as Reid, can 531-32 the threat of Cir. incarceration federal 2014) (mentioning sixty-month penitentiary meaningful for a period of $10,000 bribes); accepting $20,000 time,” (quoting id. United States v. Live Owens, say, Cir.2009)),

464 they to necessary carry weight assigned to cannot any eliminate not was dis- them. disparity because no such

sentencing existed, Further, in id. United parity Beyond pro forma references to the (2d Cir.1998) Faria, 161 F.3d 761 v. States 3553(a) factors, § the district court made curiam), vacated (per the Second Circuit justify to points four Mr. substantive the dis- sentence because the defendant’s (1) Morgan’s his sentence: conviction departed improperly trict downward court evidence; (2) based on questionable to a sentence. Id. at 762-63. probationary legislative that resulted from the action case, court did the instant district (3) objectionable; bribe not Mr. Mor- disagreement with the white- express a effectively gan already punished been sentencing policy of collar the Guidelines by negative means of publicity, financial that custodial for offend- sentences favors losses, his problems,, likely health dis- it of course been would have ers—which barment; (4) Morgan enjoyed and Mr. see, do, Spears e.g., free v. United I support many community. in the 261, 265-66, 840, States, 129 555 U.S. S.Ct. below. justifications address these (2009) curiam); (per 172 596 L.Ed.2d Lopez-Macias, v. 661 F.3d United States a (10th Cir.2011). 485, I Accordingly, 490 hard-pressed under would be circum- proper points The first two con Morgan’s that to conclude Mr. stances Starting siderations. with the district purely probationary variant sentence is evidence, court’s criticism of the it would If substantively probation- reasonable. a if extremely concerning the district ary on appropriate ever be sentence could in on imposed lighter court fact a sentence (and it), I facts these doubt there such as Mr. because doubted the validi especially strong jus- be an need to a ty of his Once defendant has conviction. 3553(a) § in the fac- grounded tification trial, it toup been a jury afforded section, I explain tors. In the next will peers guilt vel non. It is decide justification why it patent such for a sentencing court revisit the absent here. question. Bertling, v. See United States (8th Cir.2010) (“[W]hile 482

4 has district court considerable discre 3553(a) ,,, through tion under Having described lens 18 U.S.C. which, view, my nullifying in we must Mr. discretion does not extend evaluate verdict____”); sentence, jury’s I now United States v. can consider its Hunt, (6th Cir.2008) analyz- F.3d substantive reasonableness. When (“The ing appears reasonableness district court have relied substantive sentence, length part ask “whether the substantial its doubt [the given all the to commit defendant] is reasonable intended fraud.... light improper judge of the case [I]t circumstances would be 3553(a).” directly rely factors forth in 18 U.S.C. facts incon set Chavez, jury sistent with found be those Cir.2013) (10th doubt.”); yond a (quoting reasonable Rivera, States v. Reyes-Alfonso, Cir.2011)). (“[I]t unnecessary inappropri I will is both examine reexamine, justifications judge ate for the and resolve offered district favor, factual support its sentence will find defendant’s issue jury that the has prosecu- illegal resolved because legisla leads inferior doubt.”). beyond favor tion; tor’s reasonable illegal it is it “betrays because thereby trust” and undermines “the way, Put another exercise of its importance critical representative self- duty, constitutional jury convicted Mr. government.” White, United States v. Morgan of accepting a in exchange bribe 1207, F.3d Cir.2011); 1217 accord taking legislative for action. The district Lipscomb, States v. 303, F.3d required to honor that finding, (5th Cir.2002) (lead (discuss opinion) and so are As majority’s we. analysis ing corrupting, public-trust “the indicates, insofar eroding as the court weighed this effects of improper bribery” that calculus, targeted factor § 666 (quoting procedural committed error. United States v. Apple, See Unit F.Supp. 1119, 1124 ed Story, States v. (N.D.Ind.1996))); Unit (10th Cir.2011) (“A Ford, ed States procedur is ally unreasonable if it is based on. consid that (noting “every public of act (em eration of impermissible an factor.” bribery inherently entails pub abuse added)); phasis Smart, trust”). 518 F.3d at 803 lic Citizens are entitled to the (holding that when “a district court bases of representatives services who evaluate a sentence a factor not within the cate bills with an eye honest on how those bills gories 3553(a)” § set forth in it commits a will potentially affect the people, rather “form of procedural (emphasis error” add than an eye avaricious on how those bills ed)). However, properly only before us is will potentially line representatives’ challenge to the substantive reasonable pockets. own Rosen, See United States v. ness of Mr. Morgan’s And, sentence. (2d Cir.2013) (“The cor context, important point is that ruption of elected officials undermines any we should purported not use verdict- public confidence our democratic institu doubt rationale as a finding basis for tions.”). a legislator When takes official district court’s sentence substantively rea action a bill in return for money, he sonable. irreparably and egregiously betrays this trust,

The same is true public district court’s and his betrayal no is less justification second for the grave sentence: the bill actually when turns out not “no one has complained ever any about” to do City S.B. harm.5 See Columbia v. Aplee. App. at 1247. Bribery Adver., Inc., is not Omni Outdoor 499 U.S. action, 5. The analogous Second Circuit made an just unjust, cial right whether or or point respect judicial sale; with corruption wrong, is not for and if the rule shall the infamous Manton case. In United States accepted ever be the correctness of Manton, (2d Cir.1939), 107 F.2d 834 judicial price action taken removes the Judge former Senior Circuit of the United corruption stain and exonerates the Appeals States Court of for the Second Circuit judge, the event will step mark the first conspiracy convicted to obstruct the toward the imperative abandonment justice administration of and to defraud the requisite justice proclaimed even-handed part, judge States. the former chal by Chief Justice Marshall more cen- than a lenged arguing conviction that the sus tury ago.... pect legally decisions were Writing sound. principle applies Id. at 846. This equal panel, Supreme for retired Court Justice any government force to action taken un- George explained: Sutherland just personal gain, regardless of whether the [Tjhe judge, unlawfulness of conspiracy legislator, actor is a here question degree dependent is in no upon public official. The relative pro- merit of the indefensibility immaterial; posed the decisions which is point action is that were in consummating rendered it. Judi- action is not for sale. (1991) passage This 1344, 113 App, at Aplee. L.Ed.2d 382 1247-48. 111 S.Ct. gen- at the dicta, guilty construed as directed mayor is could be (noting, in that “[a] 3553(a)(2)(B). § goals of if eral-deterrence he would and accepting bribe even taken, interest, reasonable problem that there should have general-de- finding the statute’s bribe was basis for which the action same interest the moment terrence satisfied. damage is done paid”). The accepted the harm is the bribe language —and Consider system imaginable our most serious 3553(a)(2)(B), district which directs government.6 sen- for the court to consider “the need de- adequate ... imposed to afford tence

b conduct.” criminal terrence potential reasons added). That leaves two 3553(a)(2)(B) To say (emphasis colorably that least for the variance ade- negative publicity provided has that in 18 forth implicate did, the factors set U.S.C. deterrence, court quate as the district (B): 3553(a)(2)(A) that Mr. §§ and essentially is no need say that there tois enough, such that already suffered any to provide the sentence deterrence for necessary; that and Mr. imprisonment was come from has all at all: the deterrence community. in his Morgan was beloved and consequences investigation of the the nothing and has prosecution, the sentence expressed the first The district to add. left following terms: point thing government] that a [the The one the out pointed As Sixth Circuit impris- scenario, of argues in favor of a sentence harms recited the sorts of similar one, that important is an and onment not “conse by the district court are here sentence, may be example op to others who inclined as of [a quences defendant’s] you try to to what have done. prosecution do of consequences his posed conviction,” justify a they if could opinion that and personally I am of the tend lighter penalty they “would publicity has followed case then that in cases with support shorter sentences beginning, you from the the results backgrounds, health, privileged financial defendants from your in your both along these might to lose health, cer- have more you the fact that will almost who v, Bistline, law, I tainly your practice lose license lines.” (6th Cir.2012); Mus that 765-66 accord think all of these are factors would law, By should anyone considering grave, else' 608. surely deter See 28 U.S.C. countenance that result. same conduct. bribe, Their proper reciprocation bribery, on extensive In his treatise Noonan, Jr., always Senior Cir- a Honorable John T. conflict resultant of interest Judge betrayal the United States of cuit Court of loyalty, always dilution Circuit, trust____ explored Appeals for Ninth occurrence, understanding, effects injury The breaches social inflicted present- bribery times to the from ancient beyond goes measure- trust material words, day United States. In government officials act When ment. beyond officials debate that [i]t against the fab- they act themselves enrich government upon to act for the relied are depend, else they for what ric which enrichment, public interest not their own except the ex- upon does rest they they divide their When take bribes to act for pectation that those chosen consciously they loyalty. or not Whether welfare? public will that welfare serve interest, they against have act Noonan, supra, at 704. action, adopted criterion of second 994(d) (“The § fees, ceedings, legal Commission shall assure likely loss of his license, guidelines policy felony that the statements CPA convictions life”). ... him entirely neutral as socioeco- would follow for the rest offenders.”); view, my In probationary nomic status Mr. U.S.S.G. out for a (noting strong cries 5H1.10 socioeconomic status and mean ingful general-deterrence justification; is “not relevant of a determination sentence”).7 district court failed provide one. Lastly, relying prosecution hardly surprising

It is extent which Mr. Morgan community, is beloved in the corruption political some would draw arguably media, district court “the addressed negative attention history and characteristics of the defen- physical that it would cause financial and 3553(a)(1). dant." did so fact, form defendant. problems following statement: if surprising prosecution would be such I look at this book of consequences. letters. some these I’ve failed often, I thought don’t I think that would surely aware Commission letter, people know 482 to even Guidelines, ask possibility crafted the when positive much aget less from all of one anyone be. It ineluctably follows back. You them are well loved in the strong preference that the Guidelines’ community many and communities. of for terms confinement” “certain white- offenders, at-20, many And so Breyer, people these supra, collar for probation asked negative on notion consideration pub the that predicated leniency your other [o]n licity consequences behalf. like collateral generate enough general not sufficient Aplee. App. at 1247. bribery in most

deterrence cases. The permissible certainly sentenc- why explain district not the court did diffi ing court to take into account letters of experienced culties Mr. due to See, support e.g., for a defendant. unusually so prosecution were intense Sayad, States v. 1118-19 imprisonment unnecessary, that (10th Cir.2009) (affirming the substantive bridge gap. the record does not that of a probationary reasonableness sentence Cf Warner, United States v. 792 F.3d part that in was based “letters (“While [the defendant’s] community”); [the defendant’s] Munoz- prosecution has been more than Nava, (affirming at 1149 sub- most, agree that this we fact deserves one-year-and- stantive -reasonableness little, weight.”); Musgrave, if any, 761 one-day prison in was based (finding prison F.3d at 607 sen one-day part “many the defendant’s letters substantively despite said, tence support”).8 unreasonable That letters —stand- court’s belief that ing district white- justify this alone—cannot variance “ (1) collar punished defendant ‘been ex when: the variance in is substantial (2) years legal four traordinarily1 by pro quality quantity; the Guidelines see, majority ably point, upon makes a similar 7. court's reliance the character letters 445-46, sure, e.g., Maj. fully agree urging Op. leniency Morgan. I for Mr. To be at with analysis, ultimately insofar as it is consistent with the conclude letters are that the nearly uphold enough to sentence on discussion herein. this However, substantive-reasonableness review. important purposes resentencing It is to be impending clear about broad proceedings, berth that the district court has in scrutiniz- the district should be ing sentencing government record. The aware has the discretion consider questioned appeal in support part has district Mr. letters as of its 3553(a) § in- express powerful factors do issue addressed provisions at (3) only us a affirm the substantive give basis to imprisonment; terest impli- The re- arguably discussion reasonableness its sentence. relevant 3553(a) imposition factors —which relat- error here is the cating § versible woefully in- justified ref- general that cannot be ed deterrence —was variance Hampton, United States v. 3553(a) adequate. and the erence the record Cf (4th Cir.2006) (“In order especially 441 F.3d factors. The courts must be scrutiny, such politi- reasonableness vigilant encouraging withstand obedience advisory because, from the a dramatic variance corruption cal laws as evident supported must guideline[s] range case, be integrity of the law- the instant justifications related compelling may making process at itself be stake. 3553(a) factors, weight’ and ‘excessive Hayes, (“Bribery given single factor.” properly be seen cannot victimless (citation omitted) (quoting States v. crime, for in the foun- a sense it threatens Green, Cir.2006))). government.... dation democratic [Bjribery general tears at the belief citizenry officials car- will summarize, always ry honestly, their if not

To comments out duties arguably competently.”). “just punishment” A made are even district court See, Warner, e.g., defendant the authors of character has with calculus. (affirming rea- F.3d at the substantive weighing import 857-59 letters’ at sen- letters probationary of a sentence that sonableness tencing, and should remember that successful detailing part on letters based have, reasons, might figures various more generosity); defendant's charitable works and supportive Vigil, 476 than others. See letters (affirming Sayad, 589 F.3d at 1118-19 ("[W]hen F.Supp.2d 1308-09 a successful probationary substantive reasonableness of a politician corrup- stands before the on Court part sentence that was based in on "letters charges, present usually or she can tion he community"); defendant's] from [the Munoz- many good qualities pa- evidence of can Nava, (affirming sub- at 1149 the 524 F.3d before who will attest to rade the Court others one-year-and- stantive of a reasonableness ability qualities. those This often the reflec- one-day prison sentence was based in that brought originally what the defendant tion of sup- part “many on letters of the defendant's prominence public place life. To too in port”). emphasis qualities would much on those run government's read The briefs could be people punishing the in life not risk leeway suggest in that a district court has less Second, crimes.”). for their a district court considering support letters of sent on behalf place disproportionate reliance on should high-profile politician or a successful other ignoring evi- virtually such letters "while the a court would have more defendant than tugged way.” Vrdolyak, that the other dence ordinary That The defendants. is incorrect. F,3d And, third, 593 at 682. district court a authority by government submitted impose a more lenient sentence on should point limit court’s this does not a district financially prosperous a defendant assessing part of in as its discretion letters ground economi- Peppel, that he can contribute more sentencing 707 determination. See 640-42; Vrdolyak, cally community. Peppel, 593 to the F.3d F.3d at United States v. 707 640-42, (7th Cir.2010); view, remand, my United States v. F.3d 682 in the dis- On (D.N.M.2007), Vigil, F.Supp.2d 476 1308-09 may again any court trict consider letters of Cir.2008). (10th 'd, support Morgan, long aff for so as it does so Mr. Rather, common these stand for three cases caselaw, required by fashion balanced propositions regarding sense how district long considering so so while as it does approach courts should such letters. sentencing important concerns dis- lesson is that first a district court cussed herein. type relationship keep in should mind the a perverting the offense of our convey strong message judicial a democratic into- government system generally will political be the corruption, lerance and that punishment imposed upon serious the most message not sent Mr. is, imprisonment. probationary offenders: Pugh, sentence. 515 F.3d Cf. Cf. (“Probation

Livesay, (“Quite [in simply, by imposing at 1195 a non- sentence, white-collar prosecution] does not account custodial the district ac- court weight [the the seriousness general defendant’s] corded deterrence.” punish added)); conduct. It does him sufficient (emphasis (noting id. at 1199 ly.... nothing encourage probationary does re precious sentence “afforded spect system court in country,” if weight little principles under- United, (quoting v. McVay, 3553(a)(2)(A)”). lying 294 Fed. 18 U.S.C. Appx. Cir.2008))). view, my charge it is not the of an All of particularly these concerns are appellate court to the sentence that dictate potent in instant Mr. particular circumstances. should receive. defendant pro was president tempore “We defer the district weighing court’s 3553(a) Oklahoma He Senate. was entrusted with of the 18 U.S.C. factors” when weighty responsibility Masek, the legislature, weighs them. 1283, 1290 (10th where he played important shap- Cir.2009); role cf. ing governed Lente, the laws that his State and States v. Const, V, § people. See Okla. art. (“Perhaps (requiring president pro tempore right the district court will reach “preside [the over Senate’s] deliberations same outcome it fills in this gap after place [regarding potential absence dispari Lieutenant Governor”); Abel, ties], Kevin M. The Constitu- but— cannot our appel [w]e fulfill deferential, tional Mandate that the role, Gov- Lieutenant late assessing however Senate, ernor Presides Over Okla. the substantive of the sen reasonableness (2002) (discuss- City filled.”). U.L. having Rev. gap 646-48 tence been without ing expansive powers enjoyed However, when district never Senate). president pro tempore properly factors that mili examines jury sentence, When convicted Mr. against the chosen and when tate accepting a exchange offering bribe for ap there no other discernible basis favor, political reasonable, guilty he was eyes proving rever —in trading the law—of only option. If person- office for sal and remand is our. al enrichment. probationary Mr. for sentence could ever survive substantive-reasonable A democratic cannot func- highly ness I doubt it—it review—and tion occupying when those most elevat- require especially detailed ed offices act to benefit themselves rather 3553(a) application of fac persuasive than the citizenry they which work tors to these district court’s facts. The they highest loyalty. which owe their analysis anything not provide remote does Rosen, (“The corrup- view, Accordingly, my to that. ly close tion elected officials undermines upheld. cannot be confidence in our democratic institu- tions.”). In of any absence explanation III contrary explanation that is —an 3553(a)’s stated, in the I record before fac- For the reasons respectfully us— tors penalty fully called for a join majority’s out would concur and all judg- thorough order and

thoughtful and Part, As to that

ment, for Part IV. except reverses judgment, which

I in the concur sentencing order court’s

the district written resentencing. I have

remands for I forth deem

separately to set what reaching rationale appropriate conclusion. CINK, Plaintiff-Appellant,

Twilladean COUNTY, OKLAHOMA, po

GRANT subdivision is sued

litical which County Com of the Board name Sr., Hammons, Lynn Amber Mark County, Okla missioners Grant Gowens, Hurst, Hammons, Hurst & Asso- Defendant-Appellee, homa OK, for ciates, Plaintiff- City, Oklahoma Appellant. Dark, Laffer- Robert S. Lauren Jessica Sterling, individually, Defendant. Scott Wood, randre, Pierce Randall James No. 15-6030. Green, Baysinger & Couch Hendrickson OK, Defendant-Appellee, City,- Oklahoma of Appeals, Court Collins, Ambre Esq., James Christopher Tenth Circuit. Miller, Gooch, L. Collins Esq., C. Jordan Nov. OK, City, Zom Oklahoma Wagner, &

Defendant. TYMKOVICH, Judge, Chief

Before PHILLIPS, Circuit HOLMES and Judges. AND

ORDER JUDGMENT* HOLMES, Judge. Circuit JEROME A. appeals from Cink Plaintiff Twilladean favor of judgment grant summary unanimously ord, examining panel appellate rec has determined the briefs and * After

Case Details

Case Name: United States v. Morgan

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Nov 6, 2015

Citation: 635 F. App'x 423

Docket Number: 13-6025, 13-6052

Court Abbreviation: 10th Cir.