United States v. Michael Vaughn ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4643
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL LYNN VAUGHN,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Paula Xinis, District Judge. (8:17-cr-00125-PX-1)
Submitted: March 26, 2020 Decided: June 9, 2020
Before GREGORY, Chief Judge, and FLOYD and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gerald C. Ruter, LAW OFFICES OF GERALD C. RUTER, P.C., Baltimore, Maryland,
for Appellant. Robert K. Hur, United States Attorney, Baltimore, Maryland, Thomas P.
Windom, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
From 2015 to 2016, Maryland House Delegate and Defendant-Appellant Michael
Vaughn received thousands of dollars in cash from liquor store owners. During this same
period, Vaughn supported those store owners’ preferred Sunday liquor sales legislation.
Convicted by a jury of one count of conspiracy to commit bribery in violation of 18 U.S.C.
§ 371 and four counts of bribery in violation of 18 U.S.C. § 666(a)(1)(B), Vaughn appeals
his conviction and sentence. For the following reasons, we affirm.
I.
This case turns on one elected official’s role in a broader conspiracy to change the
Sunday liquor laws of Prince George’s County, Maryland. First elected to the Maryland
House of Delegates in 2003, Vaughn represented District 24 of Prince George’s County
for fourteen years. During his tenure, he assumed various committee and leadership
positions. Particularly relevant to this appeal, he served continuously on the Economic
Matters Committee, and he served in Maryland House leadership as Deputy Majority Whip
from 2006 until 2017. He served in county delegation leadership, including as Second
Vice Chair of the Prince George’s County Delegation from 2014 through 2017. He also
served in leadership capacities specifically addressing liquor-related legislation. From
2003 to 2010, he served on the Alcoholic Beverages subcommittee. And in 2014, he served
on his county delegation’s Alcoholic Beverage work group.
During his time as a part-time liquor inspector, in 2002, Vaughn became friends
with David Son. Son was also serving as a part-time liquor inspector and was intimately
2
involved with Prince George’s County Korean Chamber of Commerce (the Chamber),
which was run by liquor-store owner Jin Suk Seo. Several Korean American liquor store
owners were involved with the Chamber, including Young Paig and Shin Lee. At the time,
Prince George’s County did not allow liquor sales on Sundays. Although Seo personally
supported a 2014 bill to allow Sunday liquor sales, it did not receive the Chamber’s seal of
approval.
That bill was first introduced on February 6, 2014. Around February 12, 1 the
Alcoholic Beverages work group finalized a ninety-page report (Work Group Report) in
favor of Sunday liquor sales in the county. Vaughn voted against the bill as part of his
county delegation on February 14, and as part of the House Economic Matters Committee
on February 21. The bill failed.
Soon after, Son began working as a Maryland Senate liaison, meeting with
Chamber-connected liquor store owners, including Seo, Paig, and Lee (collectively, the
“Chamber members”), about how best to pass the Sunday liquor sales law. In late 2014,
the group approached Vaughn to see about getting the legislation passed in the 2015
session. Vaughn was willing to support the legislation but wanted to be paid. According
to Son’s trial testimony, Vaughn initially said that he wanted $500 per month in perpetuity
from the willing Chamber members. After negotiations, the Chamber members agreed to
pay Vaughn $20,000 cash in four equal installments, to bookend the 2015 and 2016
1
There is a discrepancy in the record that we need not resolve as to whether the
report was published on February 11 or February 12.
3
legislative sessions. First, they would pay $5,000 before the 2015 legislative session, and
an additional $5,000 if the legislation passed; next, they would pay $5,000 before and after
the 2016 legislative session.
The Chamber members hired attorney Matthew Gorman to draft the bill and lobby
the state legislature. Gorman had represented businesses seeking liquor licenses, and he
had admittedly paid kickbacks to Son for years, who referred him clients. As introduced
in February 2015, House Bill 931 (Sunday Sales Bill) established 100 permits for
businesses to sell liquor on Sundays in Prince George’s County. The Prince George’s
County Board of License Commissioners (Liquor Board) would be responsible for issuing
such permits. Permit applicants would be required to commit to investing $50,000 in their
business during the year after the permit was issued.
On February 13, 2015, the Sunday Sales Bill was introduced into the House. As
Son testified during Vaughn’s trial, about thirty days into the legislative session, Vaughn
asked for “seed money to get the legislation passed” to “convince some of his colleagues
to vote in favor of the [Sunday Sales Bill.]” J.A. 218. Son spoke with Seo, who complied.
Son, Seo, and Lee met Vaughn at a Starbucks, where Seo handed Vaughn $2,000 cash in
the bathroom.
In Maryland, local bills are first voted on by the county delegation. Applying “local
courtesy,” the House will generally defer to the wishes of the local delegation. The Sunday
Sales Bill was first considered and approved by the Law Enforcement subcommittee of the
county delegation, of which Vaughn was not a member. On March 13, 2015, the bill went
to the entire county delegation for a vote, and Vaughn voted in favor of the bill—changing
4
his vote from the prior year. With Vaughn’s support, the 2015 bill passed and continued
to the Economic Matters Committee of the House, where he again voted in favor of the
bill, on March 20, 2015. The bill then went to the House floor, where Vaughn voted in
favor for a third time, and it passed. The Senate passed the bill, and it was signed into law.
After their success, Son, Paig, and Lee met with Vaughn on April 22, 2015. At that
meeting, Paig handed Vaughn a $5,000 cash installment. In his testimony, Son explained
that the meeting was to “[m]ake sure that the $20,000 was being paid, a portion of that
money being paid to show the appreciation of having the [Sunday Sales Bill] passed.” J.A.
225.
With Gorman’s help, Paig and Lee each applied for a Sunday Sales permit. While
Paig and Lee’s applications were pending, they once again met with Vaughn to let him
know that they did not want their proximate competitors to receive Sunday Sales permits
and asked for help in gaining a competitive advantage. Upon their request, Vaughn wrote
a letter to the Liquor Board expressing that certain establishments close to their liquor
stores should not receive a Sunday Sales permit. For example, Cox Liquors was a hundred
feet away from Lee’s store, and Vaughn opposed their permit in his letter. The plan
worked: Cox Liquors did not receive a permit. And by October 2015, Paig and Lee each
received a permit.
Soon thereafter, Vaughn asked to expedite his next $5,000 payment, so that he could
pay his daughter’s college tuition. Originally, the payment had been scheduled for just
before the 2016 legislative session. On November 10, 2015, Son, Paig, Lee, and Vaughn
met to discuss the advance. Paig and Lee agreed to advance the payment in exchange for
5
Vaughn’s opposition to proposed bills that would expand the number of permits. Vaughn
agreed, and was given the $5,000 cash advance. By this time, Gorman was cooperating
with the FBI and had informed them of the meeting. Unbeknownst to the four attendees,
a federal law enforcement agent was inside the restaurant. From that point on, there would
be photos, audio, and video recordings of the co-conspirators, and of Vaughn receiving and
depositing cash.
At a meeting on January 6, 2016, Vaughn complained to Son and Gorman, the latter
of whom was wearing a wire, that he didn’t “wanna seem . . . like a malcontent, but what
we did, there’s so many people benefitting, that only two that I know of are showing any
appreciation [Paig and Lee]. All these . . . I mean they act like we had to do this. And
David will tell you, it was a fight.” S.J.A. R-7 (audio recording) at 00:17–36. Vaughn
continued: “All these other mothers ridin’ the gravy train. They gettin’ fat and happy . . .
but yet they act like this was something that had to be done. This sh*t didn’t really . . .
almost didn’t go through.” S.J.A. R-7 at 01:07–18. He explained that the people “riding
the gravy train need to understand that this is a privilege and not a right,” and “it could be
taken away at any time.” S.J.A. R-7 at 03:49–57.
During the 2016 legislative session, Son and Gorman spoke with Vaughn multiple
times to discuss efforts against the expansion of Sunday Sales permits. They finally agreed
to support a bill that would only increase the number of permits by five, called House Bill
1311 (“Additional Sunday Permits Bill” or “305,” referring to the county bill number). In
February of 2016, another legislator was holding up a different bill that Vaughn supported.
That legislator was also in favor of the Additional Sunday Permits Bill, which was set to
6
come to the Economic Matters Committee. In order to move the other bill that he favored,
Vaughn threatened to hold up the Additional Sunday Permits Bill, saying it “ain’t out the
woods yet.” J.A. 358. Vaughn told Son on a phone call that he was planning to hold up
the Additional Sunday Permits Bill.
The following week, on February 26, 2016, Vaughn met with Son and Gorman to
discuss the holdup. Gorman brought money per Son’s instructions. At that meeting,
Vaughn also told Gorman, “305 is going to come out but you know sometimes you gotta
send ‘em a message,” presumably referring to the legislator holding up Vaughn’s other bill.
S.J.A. R-15 (video recording) at 01:02–06. “You keep f***king with my sh*t but I’m not
going to kill it.” S.J.A. R-15 at 01:07–09. He then stated, “We’re halfway through the
session . . . so anything else that you might, you know, come across, that I can assist you,
you know, not to rush you, but we need to go ahead . . . .” S.J.A. R-15 at 2:42–51. After
further discussion about another corrupt politician, Gorman handed Vaughn $2,000 in cash.
Vaughn said, referring to the Additional Sunday Permits Bill, “So they will be voting on
Monday. And unless . . . like I said I was going to f**k with it. But I’m gonna just . . . I’m
gonna lay down . . . I kinda got [elected official] on alert . . . So I ask [elected official] to
just lay down.” S.J.A. R-15 at 9:01–23.
Like the 2015 bill, the Additional Sunday Permits Bill was first considered by the
Law Enforcement subcommittee of the county delegation, which issued a favorable report.
Vaughn then voted for the bill, again three times: as a county delegate, as a member of the
Economic Matters Committee, and on the floor of the House. On April 11, 2016, Vaughn
called Son to see when he would receive his final payment of $5,000. Gorman separately
7
owed Vaughn $5,000, which he had promised in their prior meeting. That same day,
Gorman met with Vaughn and gave him $5,000 in FBI funds, in a recorded meeting, for
the passage of the Additional Sunday Permits Bill.
Ending its covert investigation, the FBI confronted Vaughn, who agreed to be
interviewed. During that interview, Vaughn admitted that he accepted payments from Paig
and Lee as “[a]ppreciation for the Sunday Sales legislation,” J.A. 886–87, and for the letter
to the Liquor Board. Vaughn said the payments were not a “this for that,” but rather to
“help himself out.” J.A. 893. He explained, “I dug myself a hole.” J.A. 892. At trial, the
government introduced Vaughn’s bank and credit card statements, showing that he was in
debt.
Vaughn was federally indicted with one count of conspiracy to commit bribery, and
four counts of bribery in violation of 18 U.S.C. § 666(a)(1)(B). 2 At the conclusion of the
government’s case, Vaughn’s counsel moved for acquittal under Federal Rule of Criminal
Procedure 29, without making any argument. The district court denied the motion.
Defense counsel then put on two witnesses, each of whom testified that they had not noticed
any untoward actions by Vaughn as to the bills. Vaughn did not testify.
The district court instructed the jury as to the elements of bribery under 18 U.S.C.
§ 666(a)(1)(B). Vaughn’s counsel did not request an instruction as to gratuities, and the
judge did not issue one. After his six-day trial, the jury convicted Vaughn on all five
2
Vaughn was also indicted with counts of wire fraud, which the district court
severed upon his request from this case.
8
counts.
At sentencing, the district court found two special offense characteristics that
increased his offense level under the Sentencing Guidelines: a loss amount totaling more
than $95,000 but less than $150,000, and an offense that involved more than one bribe.
Vaughn did not receive points for accepting responsibility, although the district court
considered his partial acceptance as a mitigating factor under 18 U.S.C. § 3353(a).
Although the government requested a 120-month sentence and a fine, the court sentenced
Vaughn to a 48-month sentence as to each count, to be served concurrently, and no fine.
Vaughn timely appealed his conviction and sentence.
II.
We first consider Vaughn’s challenges to his conviction. Rather than contend with
the plain language of 18 U.S.C. § 666(a)(1)(B), Vaughn has framed his appeal around a
distinction between bribery and gratuities. He is not the first appellant to do so in this
Circuit. See United States v. Hamilton, 701 F.3d 404 (4th Cir. 2012). The result, then and
now, is an appeal that works cross-purposes. First, Vaughn contends that there is
insufficient evidence that he committed a bribery, yet concedes that he committed a
gratuity. Second, Vaughn asserts that the district court should have sua sponte instructed
the jury as to gratuity, which he claims is a lesser-included offense of § 666 bribery. But
§ 666 either criminalizes gratuities, as Vaughn conceives of them, or it does not. If it does,
then he has admitted his guilt and, pursuant to the only penalty provided in § 666, may be
imprisoned for up to 10 years; if it does not, then a gratuity is not a lesser-included offense
9
at all. Notwithstanding this problematic framing, we hold for the reasons stated below that
the district court properly instructed the jury as to the elements of § 666(a)(1)(B), and that
the jury’s verdict is supported by substantial evidence.
A.
As this Court has previously explained, § 666—the “federal programs bribery”
statute under which Vaughn was convicted, see United States v. Tillmon, 954 F.3d 628,
643–44 (4th Cir. 2019)—was enacted as a supplement to an existing federal bribery statute,
18 U.S.C. § 201, United States v. Jennings, 160 F.3d 1006, 1012–13 (4th Cir. 1998).
Section 201 criminalizes “Bribery of public officials and witnesses,” but a circuit split
arose over “whether state and local officials could be considered ‘public officials’ under
the general statute.” See id. (citing S. Rep. No. 98-225, at 369 (1984)). “By enacting § 666
Congress supplemented § 201 to make clear that federal law prohibits ‘significant acts of
. . . bribery involving Federal monies that are disbursed to private organizations or State
and local governments pursuant to a Federal program.’” Id. at 1013 (omission in original)
(quoting S. Rep. No. 98-225, at 369).
Section 201 criminalizes both bribery and illegal gratuities, distinguishing between
the two based on intent. See id. “Bribery requires intent ‘to influence’ an official act or
‘to be influenced’ in an official act [i.e., a quid pro quo], while illegal gratuity requires only
that the gratuity be given or accepted ‘for or because of’ an official act.” See United States
v. Sun-Diamond Growers of Calif., 526 U.S. 398, 404–05 (1999). Because gratuity is
bribery without “corrupt intent,” and is also criminalized by § 201, it is a lesser-included
10
offense of bribery under § 201. See Jennings, 160 F.3d at 1014; see also Fed. R. Crim. P.
31(c)(1) (an offense is lesser included if it is “necessarily included in the offense charged”).
Under § 201, the penalties are also different for bribery and illegal gratuities. Bribery is
punishable by up to 15 years imprisonment, 18 U.S.C. § 201(b), whereas gratuities are
punishable by up to 2 years imprisonment, id. § 201(c).
By contrast, § 666 is not so neatly divided between bribery and gratuities.
Section 666, in relevant part, applies to state officials working for a government,
organization, or agency that receives federal assistance in excess of $10,000 per year. See
18 U.S.C. § 666(a)(1), (b). Vaughn was such a state official. Subparagraph (A)
criminalizes embezzlement, theft, and similar crimes related to government property,
which are distinct crimes from both bribery and gratuity. See id. § 666(a)(1)(A). Vaughn
was convicted under Subparagraph (B), which provides that any such official who:
corruptly solicits or demands for the benefit of any person, or accepts or
agrees to accept, anything of value from any person, intending to be
influenced or rewarded in connection with any business, transaction, or series
of transactions of such organization, government, or agency involving
anything of value of $5,000 or more . . . shall be fined under this title,
imprisoned not more than 10 years, or both.
Id. § 666(1)(B).
There is a circuit split as to whether § 666 criminalizes both bribery and illegal
gratuities, with most circuits holding that it criminalizes both. See, e.g., United States v.
Zimmermann, 509 F.3d 920, 927 (8th Cir. 2007) (holding § 666 criminalizes gratuities);
United States v. Ganim, 510 F.3d 134, 150 (2d Cir. 2007) (same); United States v. Agostino,
132 F.3d 1183, 1195 (7th Cir. 1997) (same). But see United States v. Fernandez, 722 F.3d
11
1, 26 (1st Cir. 2013) (holding that § 666 does not criminalize gratuities). A third possibility
is that § 666 criminalizes bribery along with something less than bribery, but greater than
a gratuity as defined under § 201. This Court has yet to weigh in on this question. In
Jennings, we reserved the issue for another day. 160 F.3d at 1017. Today, we do the same,
because the answer cannot impact Vaughn’s appeal.
On appeal, Vaughn admits that he is guilty of gratuities but argues that there was
insufficient evidence to convict him of bribery. He also argues that the district court should
have instructed the jury as to gratuity, which he claims is a lesser-included offense of § 666
bribery. This argument is counterintuitive, however, as Vaughn would only get relief if
§ 666 does not criminalize gratuities: If, as Vaughn argues, § 666 criminalizes both bribery
and gratuities, then a person convicted for either act has committed the same offense—a
violation of § 666—and is subject to the same penalty—up to 10 years’ imprisonment.
Because there is no free-floating gratuity offense that can be lesser-included and with
which the jury could have convicted Vaughn, any instruction on gratuities “would only
have provided an additional ground on which to convict” Vaughn. See Hamilton, 701 F.3d
at 410. In other words, “even if” § 666 covers gratuities, the “failure to instruct on gratuity
could not have prejudiced [Vaughn] in any way,” because he has admitted to a gratuity,
and § 666 “provides no less severe sentence for gratuities.” See id.
Furthermore, the district court accurately instructed the jury as to the intent
requirement of § 666(1)(B). Vaughn has not argued that an instruction on gratuities was
warranted to avoid confusion; he insists that it is a lesser-included offense with which he
may have been alternatively convicted. Wisdom of his appellate strategy aside, we are
12
assured that the district court’s jury instruction did not confuse the jury, which simply had
to decide whether Vaughn “intend[ed] to be influenced or rewarded.” 18 U.S.C.
§ 666(1)(B). The district court did not err by failing to sua sponte instruct the jury as to a
different offense, which was not lesser included to the offense charged.
B.
Second, Vaughn asserts insufficient evidence to maintain his conviction—again,
focusing on § 666(1)(B)’s intent requirement. We review de novo the denial of a Rule 29
motion for judgment of acquittal based on insufficient evidence. See United States v.
Clarke, 842 F.3d 288, 297 (4th Cir. 2016). Viewing the evidence in the light most
favorable to the government, we sustain a guilty verdict that is supported by “substantial
evidence,” meaning “evidence that a reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.”
United States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006) (quoting United States v. Burgos,
94 F.3d 849, 862 (4th Cir. 1996) (en banc)).
Viewing the evidence in the light most favorable to the prosecution here, there was
substantial evidence that Vaughn intended to be influenced when he accepted his co-
conspirators’ payments. Vaughn contends that he would have voted in favor of the two
bills regardless, and that the bills would have passed without his support. He emphasizes
that the county delegation’s Law Enforcement subcommittee, of which he was not a
member, was the first entity to consider and support each bill, and that he always voted in
line with that subcommittee’s recommendations. Additionally, he argues that he was in
13
favor of Sunday sales legislation as early as 2013 or 2014, and certainly would have been
in favor after the Work Group Report of 2014. Thus, and as he told the FBI in his interview,
the payments were in appreciation for his pre-ordained votes, rather than a “this for that.”
The problem for Vaughn is, even if he “was going to vote for some kind of [Sunday
sales] legislation,” as he claims on appeal, see App. Br. at 26 (emphasis added), the
evidence presented at trial strongly suggested that Son, Paig, and Lee held sway over him.
For example, when the co-conspirators agreed to pay Vaughn $20,000 in installments, it
was not clear what form of Sunday sales legislation Vaughn would support. The jury could
have believed that it was important to Son, Paig, and Lee that the permits be capped, and
that Vaughn intended to be influenced as to the precise contents of the bill. When Vaughn
needed an advance of $5,000, he agreed to oppose bills that would otherwise expand the
permits. A jury could have reasonably believed that, before this conspiracy when Vaughn
allegedly supported Sunday Sales legislation, Vaughn would have favored such permit
expansions. Then, when his co-conspirators suddenly asked him to get on board with the
Additional Permits Bill that added only five permits, he did so—again, changing his
position. Vaughn even wrote a letter to the Liquor Board, specifically stating that a close
competitor of Lee’s store should not receive a Sunday permit. This is something that would
make little sense for Vaughn to do, unless he intended to be influenced by his payors.
Finally, the jury was confronted with Vaughn’s own recorded statements, which
contradicted his contention that the bills were destined to pass. Vaughn was recorded
complaining that more liquor store owners were not chipping in, stating “they act like we
had to do this. And David will tell you, it was a fight.” S.J.A. R-7 (emphasis added).
14
Again, “[t]his sh*t didn’t really . . . almost didn’t go through.” S.J.A. R-7. A jury could
reasonably believe that he did more than just vote “yes” six times; he worked to pass the
bills, which otherwise might have failed. Indeed, the evidence at trial showed that he even
threatened to change his position if he did not receive more money, referring apparently to
the permit scheme as a “privilege and not a right,” which “could be taken away at any
time.” S.J.A. R-7. And during the 2016 legislative session, he was planning to put the
Additional Permits Bill on hold to shake loose another piece of legislation that he
supported. That is, until Gorman paid him $2,000 in cash. Vaughn then said, “[l]ike I said
I was going to f**k with it. But I’m gonna just . . . I’m gonna lay down . . . I kinda got
[elected official] on alert . . . So I ask [elected official] to just lay down.” S.J.A. R-15. A
reasonable jury could infer that Vaughn shifted his position in exchange for cash.
In sum, the jury was presented with substantial evidence that Vaughn’s co-
conspirators exerted influence over him. That is strong circumstantial evidence from which
the jury could infer that Vaughn intended to be influenced. See Hamilton, 701 F.3d at 409
(“[I]ntent can be implied—and it is the jury's role to make such factual inferences.”).
Therefore, the district court did not err by denying Vaughn’s motion for acquittal.
III.
Having affirmed Vaughn’s conviction, we review his sentence for reasonableness.
See Gall v. United States, 552 U.S. 38, 46 (2007). Vaughn identifies three different ways
in which he believes the district court procedurally erred by improperly calculating his
Guidelines range: (1) by finding more than one bribe under U.S.S.G. § 2C1.1(b)(1); (2) by
15
calculating loss at $100,000 under U.S.S.G. § 2C1.1(b)(2); and (3) by failing to sua sponte
grant Vaughn a two-level reduction for acceptance of responsibility under U.S.S.G.
§ 3E1.1. We review the district court’s legal conclusions de novo and its factual findings
for clear error, while considering that sentencing judges need only find facts relevant to the
Guidelines range calculation by a preponderance of the evidence. See United States v. Cox,
744 F.3d 305, 308 (4th Cir. 2014). “Clear error occurs when . . . the reviewing court on
the entire evidence is left with the definite and firm conviction that a mistake has been
committed.” See id. (quoting United States v. Harvey, 532 F.3d 326, 336–37 (4th Cir.
2008)). We review Vaughn’s third argument, which is unpreserved, for plain error. See
United States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012).
A.
First, Vaughn contends that the district court committed clear error by finding that
he participated in more than one bribe under U.S.S.G. § 2C1.1(b)(1), resulting in a two-
level enhancement. Generally, “[r]elated payments that, in essence, constitute a single
incident of bribery or extortion (e.g., a number of installment payments for a single action)
are to be treated as a single bribe or extortion, even if charged in separate counts.” U.S.S.G.
§ 2C1.1 cmt. 2. The government argued that each payment constituted a distinct bribe,
even though installment payments are treated as a “single incident of bribery.” Id.
Regardless, and as correctly found by the district court, Vaughn participated in at least two
bribes. First, Vaughn entered into the initial agreement to be paid $20,000 in four
installments. Second, he asked for an advance of a $5,000 installment, and in consideration
16
for that advance, agreed to oppose certain unforeseen bills that would expand the permit
scheme. That was not contemplated in the original plan and constituted a distinct quid-
pro-quo. We need not count the exact number of bribes, because it is reasonable that the
district court found more than one.
B.
Second, Vaughn argues that the district court erred in its calculation of the loss
amount, resulting in an erroneous eight-level enhancement. Under U.S.S.G. § 2C1.1(b)(2),
“[i]f the value of the payment, the benefit received or to be received in return for the
payment, the value of anything obtained or to be obtained by a public official or others
acting with a public official, or the loss to the government from the offense, whichever is
greatest, exceeded $6,500,” the court must “increase by the number of levels from the
[Theft, Property Destruction, and Fraud] table . . . corresponding to that amount.” As he
did before the district court, Vaughn argues that he was only responsible for the $19,000
in bribes that he was paid, and therefore that his offense level should have only increased
by four levels under the relevant pay table, U.S.S.G. § 2B1.1(b)(1)(C). But there are
multiple ways to calculate loss under this provision, and the Guidelines direct the court to
look at “whichever is greatest.” See U.S.S.G. § 2C1.1(b)(2) (emphasis added).
One of the ways the court may calculate loss is by calculating “the value of anything
obtained or to be obtained by a public official or others acting with a public official.” Id.
(emphasis added). Here, the district court considered that Paig and Lee, who were acting
with Vaughn, each received a Sunday sales permit in conjunction with the scheme.
17
Because permit-holders must invest at least $50,000 in their business over the following
year, the court reasoned that they expected the value of the permit to be at least $50,000.
Therefore, the district court valued a permit at $50,000. Multiplied by two permits for his
co-conspirators, the district court estimated the loss to be more than $95,000, resulting in
an eight-level increase. See U.S.S.G. § 2B1.1(b)(1)(E). This estimate was reasonable and
was certainly reasonably foreseeable to Vaughn.
C.
Third, Vaughn contends that the district court should have sua sponte granted a two-
level reduction for acceptance of responsibility. Defendants that “clearly demonstrate[]
acceptance of responsibility” are eligible for a reduction of their offense level. U.S.S.G.
§ 3E1.1. In Vaughn’s case, the Pre-Sentence Report (PSR) recommended that he receive
no points for acceptance of responsibility (hereafter, “acceptance points”). Vaughn did not
challenge this aspect of the PSR, and he never argued for acceptance points before the
district court. We therefore review for plain error. See Rosales-Mireles v. United States,
138 S. Ct. 1897, 1907 (2018) (“A plain Guidelines error that affects a defendant’s
substantial rights is precisely the type of error that ordinarily warrants relief under Rule
52(b).”). 3
On appeal, Vaughn argues that the district court wrongly believed that the
3
To the extent that Vaughn asserts that clear error should apply, we note that this
standard would not help him: the district court did not err by declining to grant acceptance
points.
18
government awards acceptance points, rather than the court. Our review of the sealed
sentencing transcript assures us that this was not the case. The district court recognized its
ability to award points for acceptance of responsibility but did not do so.
Vaughn also argues that not awarding acceptance points was an error because he
went to trial only to contest his legal, not factual, guilt. In 2016, the Supreme Court
narrowed the definition of “official act” under related bribery statute 18 U.S.C. § 201. See
United States v. McDonnell, 136 S. Ct. 2355 (2016). The district court recognized that
McDonnell factored into Vaughn’s decision to go to trial. It also considered that someone
who goes to trial may still receive acceptance points. See U.S.S.G. § 3E1.1 cmt. 2
(“Conviction by trial, however, does not automatically preclude a defendant from
consideration for such a reduction.”). In fact, it does not seem like the district court held
Vaughn’s decision to go to trial against him at all.
We grant the district court’s evaluation of Vaughn’s acceptance of responsibility
great deference. See id. cmt. 5. In this case, the district court did not err by declining to
award Vaughn acceptance points, when Vaughn never accepted responsibility for the
convicted offense of bribery, only gratuity. Additionally, the court properly considered
that Vaughn had accepted some responsibility as mitigation under the § 3553(a) sentencing
factors.
* * *
All told, the district court conducted a reasonable, thoughtful sentencing hearing for
Vaughn, in which it properly calculated the Guidelines range. It did not blindly accept the
PSR or the government’s stance on the recommended enhancements. Moreover, the jury’s
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verdict rests on substantial evidence that Vaughn intended to be influenced by his co-
conspirators in exchange for money. Setting aside the definition of gratuities from a
different statute, Vaughn’s actions constituted bribery under § 666(1)(B). Vaughn’s
conviction and sentence are therefore
AFFIRMED.
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