United States v. Nilesh Patel , 457 F. App'x 549 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0110n.06
No. 10-4107 FILED
UNITED STATES COURT OF APPEALS Jan 31, 2012
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE NORTHERN
) DISTRICT OF OHIO
v. )
) OPINION
NILESH R. PATEL, )
)
Defendant-Appellant.
BEFORE: MARTIN, SUHRHEINRICH, and COLE, Circuit Judges.
COLE, Circuit Judge. In connection with a wide-ranging federal investigation into corrupt
practices associated with Cuyahoga County, Ohio, public officials, Nilesh Patel pleaded guilty to one
count of conspiracy to commit bribery concerning programs receiving federal funds, in violation of
18 U.S.C. § 371. In return for Patel’s plea and his testimony in other related criminal trials, the
government agreed not to bring additional charges against Patel, as well as to recommend a
downward departure for substantial assistance and the lower end of the guidelines sentence. The
district court granted the downward departure, but then varied the sentence upward to an above-
guidelines sentence. We AFFIRM the sentence.
I. BACKGROUND
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Beginning in July 2008, federal law enforcement engaged in a wide-ranging investigation
into corruption in the Cuyahoga County government. The investigation centered on allegations that
public officials demanded bribes and kickbacks from private vendors doing business with the
County, particularly construction companies working on public projects. One of the people swept
up in the investigation was Nilesh Patel. Patel was the Vice President of East West Construction
Company (“East West”), a family-owned business in the Cleveland area. East West did construction
work on Cleveland’s public MetroHealth Hospital (“MetroHealth”). John Carroll, the Vice President
of Facilities and Institutional Services for MetroHealth, and Carroll’s assistant Thomas Greco,
solicited Patel to provide bribes and other benefits in return for MetroHealth’s business. Patel
provided trips, home improvements, and other items to Carroll and Greco, who in turn would work
with Patel to inflate East West’s invoices to MetroHealth to “recover” the cost of the bribes. As a
result of these actions, Patel overbilled MetroHealth for approximately $628,000. Patel kept detailed
records of “the number”—the amount East West needed to recover from MetroHealth to recoup the
bribes to Carroll and Greco—on an ongoing basis.
When the investigation reached MetroHealth, Patel agreed to cooperate with the government.
As part of his plea agreement, Patel would plead guilty to one count of conspiracy to commit bribery
concerning programs receiving federal funds, in violation of 18 U.S.C. § 371. In return for this
lenience, Patel testified against Greco. In addition, Patel testified against Faisal Alatrash, an official
with the Regional Transit Authority (“RTA”), about public corruption not mentioned in the plea
agreement.
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At Patel’s sentencing, the government fulfilled all of its obligations described in the plea
agreement, including moving for a downward departure for substantial assistance. The district court
granted the motion for substantial assistance, resulting in a guidelines recommendation of 30 to 37
months. However, the district court, in considering the required statutory factors under 18 U.S.C.
§ 3553(a), applied an upward variance and sentenced Patel to 42 months in prison. In reaching this
conclusion, the district court found that Patel’s crime was “particularly heinous” in light of the
extended length of Patel’s involvement in the bribery and his central role in the illegal scheme. The
district court also considered Patel’s testimony in the Alatrash case, noting that Patel admitted to
additional criminal conduct in connection with the RTA that was not reflected in the plea agreement.
Finally, the district court considered Patel’s sentence in light of the sentences of other individuals
involved in the corruption investigation. In particular, the district court mentioned the sentence of
Timothy Armstrong, an attorney involved in distributing kickbacks to various county officials. Patel
filed a timely notice of appeal of his sentence, pursuant to a provision of his plea agreement that
authorizes an appeal of an above-guidelines sentence.
II. ANALYSIS
Patel argues on appeal that his sentence is substantively unreasonable. “[A] sentence may
be substantively unreasonable if the district court chooses the sentence arbitrarily, grounds the
sentence on impermissible factors, or unreasonably weighs a pertinent factor.” United States v.
Brooks, 628 F.3d 791, 796 (6th Cir. 2011) (citation omitted). Substantive unreasonableness
challenges are reviewed for an abuse of discretion. United States v. Christman, 607 F.3d 1110, 1117
(6th Cir. 2010) (citing Gall v. United States, 552 U.S. 38, 45 (2007)). Because the sentence was
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outside of the calculated guidelines range, the sentence is entitled to neither a presumption of
reasonableness nor unreasonableness. Christman, 607 F.3d at 1118. On review, we “must ‘take into
account the totality of the circumstances,’ while recognizing that ‘[t]he sentencing judge is in a
superior position to find facts and judge their import under § 3553(a) in the individual case.’” United
States v. Reilly, 662 F.3d 754, 760-61 (6th Cir. 2011) (quoting Gall, 552 U.S. at 51) (alteration in
the original).
As a preliminary matter, Patel challenges the district court’s imposition of an upward
variance, not a departure. These two phases of the sentencing process are conceptually distinct.
United States v. Grams, 566 F.3d 683, 687 (6th Cir. 2009) (per curiam) (“While the same facts and
analyses can, at times, be used to justify both a Guidelines departure and a variance, the concepts are
distinct.”). As a result, “even though ‘a factor is discouraged or forbidden under the guidelines,’ that
‘does not automatically make [the factor] irrelevant when a court is weighing the statutory factors
apart from the guidelines.’” United States v. Davis, 537 F.3d 611, 617 (6th Cir. 2008) (quoting
United States v. Smith, 445 F.3d 1, 5 (1st Cir. 2006)) (alteration in Davis). See also United States
v. Stephens, 549 F.3d 459, 466-67 (6th Cir. 2008) (“‘variances from Guidelines ranges that a District
Court may find justified under the sentencing factors set forth in 18 U.S.C. § 3553(a)’ include a
much broader range of discretionary decision making [than departures].”) (quoting Irizarry v. United
States, 553 U.S. 708, 715 (2008)).
The district court concluded that a variance was appropriate because the proposed sentence
under the guidelines did not reflect the gravity of Patel’s offense. In particular, the district court
noted Patel’s central role in the bribery scheme at issue, in contrast to Patel’s continuing attempts
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to minimize his culpability. We do not believe that the district court reached this conclusion
arbitrarily or unreasonably weighed the § 3553(a) factors.
Patel contends that the district court relied on an impermissible factor when it considered his
trial testimony in the Greco and Alatrash cases when imposing a sentence. In particular, Patel argues
that his case is controlled by United States v. Milan, 398 F.3d 445 (6th Cir. 2005). In Milan, we
concluded that the district court could not consider proffer statements in that case, as U.S.S.G.
§ 1B1.8 “prohibits the court from considering the defendant’s own proffer statements.” 398 F.3d
at 456. Milan, however, is an upward departure case, not an upward variance case. It does not
follow that the same bright line rule regarding proffered testimony applies to variances. Viewing
the district court’s analysis of § 3553(a) in its “totality” and in light of the broad discretion given to
sentencing judges, we do not believe that the district court’s discussion of Patel’s trial testimony
makes his sentence substantively unreasonable.
Patel also argues that, independent of § 1B1.8, the use of his proffer and trial testimony
violates his Fifth Amendment rights. Patel does not cite to, nor are we aware of, any authority from
this Court for this proposition. In addition, both of his authorities from other circuits, United States
v. Conway, 81 F.3d 15 (1st Cir. 1996) and United States v. Abanatha, 999 F.2d 1246 (8th Cir. 1993),
are readily distinguishable. In Conway, the district court misquoted the plea agreement when
questioning the defendant about his voluntary acceptance of the plea, and left out the qualification
that his statements could not be used against him “by the government.” Conway, 81 F.3d at 17. To
ensure fairness to the defendant, the First Circuit construed the plea agreement as a grant of total
immunity. Id. Prior to reaching that result, however, the court made clear that the agreement as
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written would not have prevented a district court from considering the proffered statements. Id. at
16-17. There was no similar confusion in this case, and the agreement Patel signed provides no
blanket grant of immunity and makes clear that the district court would be the final arbiter of the
proper sentence in this case. Abanatha involved information gained as a result of a proffer that was
improperly included in the Presentence Report and used for guideline calculations. 999 F.2d at 1249.
This makes Abanatha a departure scenario, and thus governed by the Sentencing Guidelines as
discussed in Milan. There is nothing in either case that would suggest that Patel has an independent
right to be sentenced completely without consideration of his proffered testimony, and we decline
to impose such a rule here.
Finally, Patel argues that it was substantively unreasonable for the district court to equalize
his sentence with Timothy Armstrong’s. While the district court may have mentioned Armstrong
when discussing sentencing disparities, that discussion was in the broader context of the assessment
of Patel’s culpability and his conduct. In reviewing the sentencing transcript in its totality, we cannot
say that the district court explicitly equalized Patel’s sentence with that of Armstrong. Therefore,
in light of the deference afforded to the district court in sentencing, we find that the district court did
not abuse its discretion.
III. CONCLUSION
For these reasons, we AFFIRM Patel’s sentence.
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