United States v. John Buncich ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-2569
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN BUNCICH,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:16-cr-00161-JTM-JEM-1 — James T. Moody, Judge.
____________________
ARGUED NOVEMBER 1, 2021 — DECIDED DECEMBER 20, 2021
____________________
Before HAMILTON, SCUDDER, and ST. EVE, Circuit Judges.
HAMILTON, Circuit Judge. Defendant John Buncich served
as Sheriff of Lake County, Indiana. As sheriff, he received
thousands of dollars from local towing companies. In return,
those companies received lucrative towing contracts within
the county. A jury convicted Buncich of wire fraud and brib-
ery in 2017, and he was sentenced to 188 months in prison.
Following an earlier appeal that vacated three of the six
counts of conviction, he was resentenced to 151 months.
2 No. 20-2569
Buncich now challenges that decision on three grounds. He
argues that the district court erred in its Sentencing Guideline
calculation, that the court failed to explain its guideline find-
ings sufficiently and made other procedural errors, and that
his sentence was substantively unreasonable. We reject all
three arguments and affirm his sentence.
I. Facts and Procedural History
A. The Towing Scheme
In Lake County, the sheriff maintains a “tow list” that de-
termines which towing companies receive towing assign-
ments when law enforcement must order removal of vehicles
from roadways, ordinarily at the expense of the vehicle own-
ers. Buncich served as sheriff from 1995 to 2002, and he was
elected to a third four-year term beginning in 2011 and an-
other beginning in 2015. Before taking office again, Buncich
put together a list of around twelve towing companies and
assigned them to defined geographic territories, some of
which were more lucrative than others. Some companies were
also assigned to perform tows for specialized police details,
such as the gang unit or the narcotics unit, which could be
even more profitable than the general geographic towing. As
sheriff, Buncich saw a daily report of the gang unit tows, as
well as monthly summaries showing how many total tows
each company had received.
Throughout Buncich’s time in office, at least several tow-
ing companies paid him to ensure that they remained on the
tow list. Many of those payments were made through Chief
of Police Timothy Downs—who reported to Buncich—using
campaign fundraiser tickets to facilitate the scheme. Downs
delivered fundraiser tickets to towing company owners, who
No. 20-2569 3
paid for them by check or cash. Downs would then place all
the money—sometimes thousands of dollars—in an envelope
and give it to Buncich. Other towing company owners pur-
chased tickets from different police officers or dealt with
Buncich directly. And some towing company owners who
failed to purchase their full allotments of tickets found that
their assigned territories had been reduced.
Our decision in Buncich’s first appeal provided a detailed
account of specific payments. United States v. Buncich, 926 F.3d
361, 364–66 (7th Cir. 2019). For sentencing purposes, two tow-
ing company owners’ activities are particularly relevant. First,
William Szarmach owned CSA Towing. While Buncich was
running for sheriff in 2010, Szarmach gave him $500 cash
through a mutual friend. Almost immediately after Buncich
took office, Szarmach found out that he was on the tow list
and believed that his money had been well spent. Szarmach
then continued making payments through the ticket-purchas-
ing arrangement because he felt he needed to in order to re-
main on the list. In addition, after Szarmach paid Buncich
$1,000 more in cash, he was assigned to tow for the gang unit.
And in October 2014, he paid another $2,500 after Downs said
Buncich would take “heavy” tows—which were more lucra-
tive—away from S&S Towing and give them to Szarmach’s
company. For his most expensive tows, Szarmach kicked back
a percentage of the profits to Buncich.
Second, Scott Jurgensen owned Samson Relocation &
Towing. He testified that Chief Downs helped him get on the
tow list—with Buncich’s approval—but that he did not make
any payments to get on the list. About five months into
Buncich’s term, however, Downs approached Jurgensen
about purchasing fundraiser tickets. Like Szarmach,
4 No. 20-2569
Jurgensen believed he needed to buy tickets if he wanted to
stay on the tow list. In June 2015, Jurgensen gave Downs
$2,500 cash and asked, “we’re good for the year, right?”
Downs confirmed that they were and later took the money to
Buncich, who agreed that Jurgensen “don’t have to worry
about nothing.”
Both Szarmach and Jurgensen also had other opportuni-
ties to expand their towing business. Beginning in April 2016,
Buncich assigned an officer to spend three days a week writ-
ing tickets and calling for tows in the city of Gary, using only
Szarmach’s and Jurgensen’s companies. A different officer
eventually took over and spent five days a week doing the
same thing. In addition, Jurgensen expressed interest in New
Chicago towing, and Buncich said he would speak to a mem-
ber of the town council there. Jurgensen testified that he later
received all the New Chicago tows. In September 2016, he
gave Buncich $7,500 cash for making the arrangements.
The FBI searched Buncich’s home and office, as well as
Szarmach’s two business locations, in November 2016. Agents
discovered loose cash along with several used and unused
money bands in denominations of $1,000, $2,000, and $5,000
at Buncich’s home.
B. Trial and Sentencing
Buncich was convicted of five counts of wire fraud and
one count of bribery. Buncich, 926 F.3d at 366. Under the Sen-
tencing Guidelines, bribery defendants are subject to in-
creased offense levels if “the value of the payment” or “the
No. 20-2569 5
benefit received or to be received in return for the payment”
exceeded $6,500. U.S.S.G. § 2C1.1(b)(2). 1
The probation officer’s presentence report used the dates
that Szarmach and Jurgensen initially made contributions as
the starting points for estimating the benefits they received.
Szarmach’s first payment to Buncich was made before he took
office in January 2011, so his company’s 1,384 tows from 2011
to 2016 were included. Jurgensen made contributions as early
as 2013, so his company’s 789 tows from 2013 to 2016 were
included as well. The presentence report used a “conserva-
tive” estimate of $50 profit per tow to arrive at a total benefit
of $108,650, which resulted in an eight-level increase in the
guideline calculation.
Buncich objected to these calculations. He argued that
Szarmach’s 2010 campaign payment was not made in ex-
change for any official action. He also claimed that neither
Szarmach nor Jurgensen received any benefit at all because
their companies’ tows did not increase significantly from year
to year. Buncich argued that the calculation should be based
on the total value of the payments, which was under $40,000
and would result in at most a four-level increase in his offense
level.
The district court rejected Buncich’s objections and
adopted the position of the probation officer, concluding that
the appropriate guideline range was 151 to 188 months. The
1 Once the $6,500 threshold is cleared, § 2C1.1(b)(2) instructs the sen-
tencing court to use the table in the theft and fraud guideline, § 2B1.1, to
determine the exact offense-level increase required. If the value or benefit
is between $95,001 and $150,000, the Guidelines call for an eight-level in-
crease. U.S.S.G. § 2B1.1(b)(1)(E).
6 No. 20-2569
court also adopted the factual content of the presentence re-
port as its own findings of fact. Finally, after stating that it had
considered the 18 U.S.C. § 3553(a) sentencing factors, the mit-
igation arguments, the findings of the presentence report, and
the applicable Sentencing Guidelines, the court imposed a
sentence of 188 months.
C. First Appeal and Resentencing
In his first appeal, Buncich challenged his convictions but
not his sentence. This court overturned his convictions for the
first three wire fraud counts due to insufficient evidence.
Buncich, 926 F.3d at 366. We affirmed the convictions for the
other three counts and remanded to the district court for re-
sentencing. Id. at 369.
Before resentencing, the probation officer filed an adden-
dum to the presentence report asserting that the reversal on
the first three counts had no effect on the original guideline
calculation, so that 151 to 188 months remained the correct
range. In response, Buncich submitted another sentencing
memorandum. He argued that he should be sentenced to time
served followed by home detention due to his age, poor
health, and vulnerability to COVID-19. Buncich also argued
that the government’s proposed sentence would be dispar-
ately severe as compared to those of other bribery and public
corruption defendants both nationally and in this circuit. Fi-
nally, he restated his view that the guideline calculation was
improper because the government had failed to show any ac-
tual benefit to Szarmach’s and Jurgensen’s companies.
The district court rejected Buncich’s arguments. The court
again adopted the position of the probation officer and the
factual content of the presentence report, agreeing that the
No. 20-2569 7
guideline range was still 151 to 188 months. Reiterating that it
had considered the mitigation arguments and all the other
factors mentioned during the first sentencing hearing, the
court imposed a new sentence of 151 months, the bottom of
the guideline range.
II. Guideline Calculation of Benefits from the Bribes
On appeal, Buncich argues first that the district court mis-
calculated the benefit received by the towing companies, re-
sulting in an incorrect guideline range. We review the district
court’s legal application of the Sentencing Guidelines de novo
and its factual findings for clear error. United States v. Slone,
990 F.3d 568, 572 (7th Cir. 2021).
As we have explained, “benefit calculations cannot always
be precise, and so we accept reasonable estimates based on
the information available in the record.” United States v. An-
derson, 517 F.3d 953, 963 (7th Cir. 2008). “To be rejected, a dis-
trict court’s calculation must not only be ‘inaccurate but out-
side the realm of permissible computations.’” Id., quoting
United States v. Peterson-Knox, 471 F.3d 816, 822 (7th Cir. 2006).
Here, the relevant provision is U.S.S.G. § 2C1.1(b)(2),
which requires an offense-level increase if “the value of the
payment” or “the benefit received or to be received in return
for the payment” exceeded $6,500. The district court agreed
with the probation officer’s estimate that the benefit received
was $108,650—the total number of Szarmach’s 2011–16 tows
and Jurgensen’s 2013–16 tows multiplied by $50 per tow. We
find no reversible error in the court’s treatment of the issue.
A. Waiver
As a preliminary matter, the government argues that
Buncich waived any challenge to the guideline calculation
8 No. 20-2569
because he failed to raise the issue during his original appeal.
As a general rule, a party may not use “the accident of a re-
mand” to make an argument that he could have raised—but
did not—in his first appeal. United States v. Adams, 746 F.3d
734, 745 (7th Cir. 2014), quoting United States v. Parker, 101
F.3d 527, 528 (7th Cir. 1996).
That general rule does not hold true, however, when the
opposing party fails to make a waiver argument in the district
court and instead responds on the merits. United States v.
Crisp, 820 F.3d 910, 913 (7th Cir. 2016). The government here
did not argue waiver in the district court upon resentencing
but instead addressed the merits of Buncich’s arguments. In
doing so, it “waived any waiver,” United States v. Whitlow, 740
F.3d 433, 439 (7th Cir. 2014), that might have resulted from
Buncich’s failure to challenge his sentence in his original ap-
peal. We proceed to the merits.
B. No Benefit?
According to Buncich, the district court erred because the
towing companies received no benefits for the bribes they
paid him. He points out that both Szarmach’s and Jurgensen’s
companies had fewer total tows in 2016—when the scheme
ended—than they had in 2012. And while Szarmach’s share
of the total tows had increased by 2016, Jurgensen’s share re-
mained constant. Buncich concludes from these trends that
the payments Szarmach and Jurgensen made had no effect on
their towing contracts.
The argument is neither realistic nor persuasive. First,
both Szarmach and Jurgensen received a benefit in that their
payments allowed them to remain on the tow list and to main-
tain their territories. Both owners testified that they felt they
No. 20-2569 9
needed to buy fundraiser tickets if they wanted to stay on the
list and keep towing. Their payments also allowed them to
expand their towing work or territory on some occasions, in-
cluding Szarmach’s increased heavy towing after the October
2014 payments and both companies’ acquisition of the Gary
tows in 2016.
Meanwhile, as we recognized in Buncich’s first appeal,
“towing companies who failed to buy their full allotment of
campaign tickets had territory taken away.” Buncich, 926 F.3d
at 367. The vice president of S&S Towing, for example, testi-
fied that he did not always purchase tickets and that Szar-
mach took over some of the heavy towing in his territory. And
there were other examples. Based on this evidence, the district
court did not err by finding that both Szarmach and Jurgensen
received a benefit from the arrangement and by calculating
the offense-level increase accordingly.
C. Timing
Buncich further argues that the district court’s calculation
was incorrect because it included tows dating back to 2011.
He claims that Jurgensen did not make his first corrupt pay-
ment until April 2014, while Szarmach’s did not come until
October 2014. As a result, Buncich argues, any tows before
those dates should not have been included in the total.
This argument is also not persuasive. With respect to
Jurgensen, the presentence report concluded based on the ev-
idence that he had “made campaign contributions to secure
favorable towing treatment as early as 2013.” Szarmach’s first
payment was even earlier—he gave Buncich $500 before he
took office because he thought it would help him get on the
tow list. Both men then continued to make payments and
10 No. 20-2569
receive benefits after those initial contributions. Looking at
this evidence, the district court did not act unreasonably in
finding that the companies’ later tows were all part of the cor-
rupt scheme. The court therefore calculated the total using
2011 and 2013 as the start dates for Szarmach and Jurgensen,
respectively. This view of the evidence was reasonable. It cer-
tainly was not “outside the realm of permissible computa-
tions.” Anderson, 517 F.3d at 963, quoting Peterson-Knox, 471
F.3d at 822.
Nor do we find reversible error in the district court’s reli-
ance on the presentence report for its conclusions on the ben-
efit-received issue. The court announced that it was adopting
the position of the probation officer and rejecting defense
counsel’s objections to the calculation of the benefit. We held
that nearly identical language was sufficient in United States
v. Herman, where the district judge said: “I adopt the positions
of the government and the probation officer as set forth in the
addendum, and I reject the position of defense counsel.” 930
F.3d 872, 874 (7th Cir. 2019). We rejected an argument that the
judge needed to provide a more detailed explanation: “Con-
trary to [defendant’s] contention on appeal, this was enough.
The court was entitled to adopt the government’s version of
events, as set forth in the PSR, to explain its ruling on a dis-
puted point that had been thoroughly explored.” Id.So too here. The district court could have said more about
the defense’s specific objections to the findings in the presen-
tence report, but after observing all the witnesses and hearing
all the evidence, it did not clearly err by adopting those find-
ings as its own. See United States v. Blake, 965 F.3d 554, 559 (7th
Cir. 2020) (similarly concluding that district court satisfied re-
quirements of Fed. R. Crim. P. 32(i)(3) when it rejected
No. 20-2569 11
defendant’s position for “the reasons stated in the govern-
ment and probation’s responses”). The combination of the
presentence report, the exploration of the benefit-received is-
sue at the two sentencing hearings, and the district court’s res-
olution in favor of the presentence report’s view is sufficient
for us to understand both the issue and the district court’s res-
olution of it and to permit meaningful review.
III. Procedural Arguments
Buncich’s second challenge is that the district court com-
mitted procedural errors by improperly presuming that a
guideline sentence was reasonable and by failing to address
his sentencing disparity evidence. We review these proce-
dural challenges de novo. United States v. Chavez, 12 F.4th 716,
733 (7th Cir. 2021).
A. Improper Presumption?
Buncich’s presumption argument asserts that the veteran
district judge failed to appreciate and comply with the most
basic principles of federal sentencing that have applied since
the Sentencing Guidelines were deemed only advisory in
United States v. Booker, 543 U.S. 220, 245 (2005), and Gall v.
United States, 552 U.S. 38, 49–50 (2007). The principal statute
governing federal sentencing instructs the district court to
“‘impose a sentence sufficient, but not greater than necessary,’
to accomplish the goals of sentencing.” Kimbrough v. United
States, 552 U.S. 85, 101 (2007), quoting 18 U.S.C. § 3553(a). The
sentencing court may not treat the Guidelines as mandatory
or presume that the guideline range is reasonable. Gall, 552
U.S. at 49–50. Instead, the court “must make an individual-
ized assessment based on the facts presented,” including con-
sideration of the factors set out in § 3553(a). Id. We have said
12 No. 20-2569
repeatedly, however, that the court “need not march through
‘every factor under § 3553(a) in a checklist manner.’” United
States v. Stephens, 986 F.3d 1004, 1010 (7th Cir. 2021), quoting
United States v. Barr, 960 F.3d 906, 914 (7th Cir. 2020). 2
Buncich asserts that the district court’s analysis “focused
entirely” on the guideline range and failed to assess the
§ 3553(a) factors. We read the transcript quite differently. At
the resentencing hearing, the district court discussed the rea-
sons for the sentence at some length. First, the court said: “I
have fully considered the seriousness of the defendant’s crim-
inal conduct in this case; all of the relevant Section 3553(a) sen-
tencing factors including the mitigating and aggravating facts
and circumstances.” The court also noted that it had consid-
ered, among other things,
all of the letters of support and other exhibits
that have been filed in advance of the initial
2 The § 3553(a) factors include:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need
for the sentence imposed: to reflect the seriousness of the
offense, to promote respect for the law, and to provide
just punishment for the offense; to afford adequate deter-
rence to criminal conduct; to protect the public from fur-
ther crimes of the defendant; and to provide the defend-
ant with needed educational or vocational training, med-
ical care, or other correctional treatment in the most effec-
tive manner; (3) the kinds of sentences available; and (4)
the need to avoid unwarranted sentence disparities
among defendants with similar records who have been
found guilty of similar conduct, among other things.
United States v. Beltran-Leon, 9 F.4th 485, 492 (7th Cir.
2021), citing 18 U.S.C. § 3553(a).
No. 20-2569 13
sentencing hearing and this resentencing hear-
ing; the arguments submitted today at this re-
sentencing hearing; … [t]he applicable advisory
sentencing guidelines and the relevant policy
statements of the Sentencing Commission; [t]he
final statements of the defendant, his lawyer,
and the government lawyer; [t]he nature and
circumstances of the crimes of conviction; …
[t]he defendant’s background history and his
personal characteristics.
The court went on to discuss more specific factors that it had
taken into account. These included the fact that Buncich had
“held the highest elected public office in Lake County en-
dowed with staggering powers, which he abused for self-en-
richment;” that he “forever tarnished his own reputation and
the reputation of Lake County’s honest and good public serv-
ants;” and that prior to resentencing he had shown “very little
or no remorse.”
On the other side of the scales, the court weighed
Buncich’s long career in law enforcement, his community in-
volvement, and his lack of a criminal record. Finally, the court
added that it had considered Buncich’s physical health and
vulnerability to COVID-19 and concluded that the Bureau of
Prisons was “perfectly capable of maintaining a safe environ-
ment for the defendant.” Both Buncich and his attorney
agreed that the court had addressed their mitigation argu-
ments and that it had “fully considered everything that’s rel-
evant in determining a reasonable and a just sentence.”
The court then said that the defense’s request for mitiga-
tion lacked “a factual foundation of material substance that
would warrant a sentence below the applicable guidelines
14 No. 20-2569
imprisonment range.” Buncich takes issue with this state-
ment, arguing that it reflects an impermissible presumption
of the Guidelines’ reasonableness.
We disagree. The district court went on to say that
Buncich’s conduct “deserves no less than a guideline sen-
tence, which under the circumstances of this case is not too
harsh. So in the exercise of my discretion, defense counsel’s
request for mitigation of the defendant’s sentence, that’s de-
nied.” In other words, the district court calculated a proper
guideline range, as it was required to do, and it considered
the advice from the Sentencing Commission reflected in that
calculated range, as it was also required to do. The judge fully
understood, though, that he could not deflect responsibility
for the sentencing decision to the Commission. He acknowl-
edged that he had the discretion to impose a different sen-
tence and that he was responsible for the ultimate sentence.
Taking into account the many inputs relevant to the deci-
sion, Judge Moody accepted the guidance from the calculated
range and said he was not convinced there were persuasive
reasons to go outside that range. That was entirely appropri-
ate, not a procedural error. See, e.g., United States v. Rollins,
544 F.3d 820, 840 (7th Cir. 2008) (finding no improper pre-
sumption where “the judge expressly recognized, ‘I have dis-
cretion in this area’ and that he was to impose a sentence suf-
ficient but not greater than necessary to comply with the basic
aims of sentencing”). We have not required more. See, e.g.,
United States v. Armand, 856 F.3d 1142, 1146 (7th Cir. 2017)
(finding no improper presumption where district court “dis-
cussed [defendant’s] history and characteristics, as well as the
need for the sentence imposed to afford adequate deterrence
to criminal conduct, promote respect for the law, and provide
No. 20-2569 15
correctional treatment”); United States v. Allday, 542 F.3d 571,
573 (7th Cir. 2008) (finding no improper presumption where
district court “considered [defendant’s] argument for a lower
sentence and his particular circumstances” and “recognized
that the Guidelines were in no way binding on its decision”).
The district court also reiterated its reasons after announc-
ing the sentence of 151 months. The court said that the sen-
tence “reflects the seriousness of the crimes of conviction,”
“takes into account … the background history and the per-
sonal characteristics of the defendant,” and “protects the pub-
lic from further crimes of this type by the defendant.” This
discussion closely tracks many of the factors laid out in
§ 3553(a), including “the nature and circumstances of the of-
fense,” “the history and characteristics of the defendant,” and
“the need for the sentence imposed” to serve multiple pur-
poses. 18 U.S.C. § 3553(a). The judge’s remarks leave us with
no doubt that “the sentencing judge understood his obliga-
tion to independently decide whether the Guideline sentence
achieved the goals of § 3553(a).” Allday, 542 F.3d at 574.
B. The Disparity Argument
Buncich’s second procedural challenge is based on the dis-
trict court’s terse comment regarding his sentencing disparity
argument. Under § 3553(a)(6), the sentencing court must con-
sider “the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found
guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). The district
court here said that it had “fully considered the need to avoid
unwarranted sentence disparities among defendants.”
Buncich contends that statement was insufficient because he
had presented evidence that bribery defendants both in this
16 No. 20-2569
circuit and nationwide have received more lenient sentences
than he did.
The challenge fails for two reasons. First, we have found
that a sentence “within a Guideline range ‘necessarily’ com-
plies with § 3553(a)(6).” United States v. Sanchez, 989 F.3d 523,
541 (7th Cir. 2021), quoting United States v. Bartlett, 567 F.3d
901, 908 (7th Cir. 2009); accord, e.g., United States v. Annoreno,
713 F.3d 352, 359 (7th Cir. 2013) (“Sentencing within the range
advised by the sentencing guidelines accounts for concerns of
unwarranted sentencing disparities….”). As the Supreme
Court put it, “avoidance of unwarranted disparities was
clearly considered by the Sentencing Commission when set-
ting the Guidelines ranges.” Gall, 552 U.S. at 54. A district
judge who correctly calculates and reviews the guideline
range has therefore “necessarily [given] significant weight and
consideration to the need to avoid unwarranted disparities.”
Id. (emphasis added). That is precisely what the district court
did here.
Second, we have recognized that a district court may pass
over in silence a defendant’s argument that the court failed to
consider disparities when imposing a guideline-range sen-
tence. Sanchez, 989 F.3d at 541. In such cases, the district court
need not say anything at all about § 3553(a)(6). Id. Since the
guideline calculation in this case was not erroneous, the dis-
trict court was not required to address Buncich’s argument
any more specifically than it did.
IV. Substantive Reasonableness
Finally, Buncich argues that his sentence was substan-
tively unreasonable. We review that question for an abuse of
discretion. United States v. Gibson, 996 F.3d 451, 468 (7th Cir.
No. 20-2569 17
2021). A reviewing court may presume that a sentence within
the properly calculated guideline range is reasonable. United
States v. Beltran-Leon, 9 F.4th 485, 491 (7th Cir. 2021).
Buncich has not overcome that presumption here. He ar-
gues that the district court dismissed his mitigation evidence
without discussion, focusing solely on the seriousness of the
offense. Again, we read the sentencing transcript differently.
The district court said that it had reviewed the presentence
report and both parties’ submissions, “which is often enough
to show that it considered the mitigation arguments.” Ste-
phens, 986 F.3d at 1009. The court acknowledged that there
were mitigating factors, such as Buncich’s community in-
volvement and lack of a criminal record. But the court under-
standably placed greater weight on the aggravating factors in
these bribery convictions of the highest-ranking law enforce-
ment officer in the county. That much is clear from the court’s
reference, for example, to Buncich’s “egregious self-serving
betrayal of the trust placed in him as sheriff” and to his abuse
of his “staggering powers” for his own enrichment that had
“forever tarnished his own reputation and the reputation of
Lake County’s honest and good public servants.” Judge
Moody knows Lake County as well as anyone. He was enti-
tled to make that judgment focusing primarily on the serious-
ness of Buncich’s offenses and the need for general deterrence
in the larger community. The sentence here was not unrea-
sonable.
AFFIRMED.
18 No. 20-2569
ST. EVE, Circuit Judge, concurring in part and dissenting in
part. I largely agree with the majority. The district court did
not improperly presume that a guideline sentence was rea-
sonable; did not fail to address a nonfrivolous disparity argu-
ment; and did not impose a substantively unreasonable sen-
tence. I part ways only on the question of whether the district
court, based on the record before it, appropriately calculated
the “benefit received” by the tow companies. 1
Section 2C1.1(b) of the Guidelines provides that a defend-
ant’s sentence can be increased based on the “benefit re-
ceived” by the briber for the corrupt act. U.S.S.G. § 2C1.1(b).
Under this provision, the greater the benefit a briber receives,
the heavier the sentence is for the person bribed. See id. The
“benefit received” includes though only the profits (or net
revenue) that result from the corruption, not the gross reve-
nue. See, e.g., United States v. Sapoznik, 161 F.3d 1117, 1119 (7th
Cir. 1998); United States v. White Eagle, 721 F.3d 1108, 1121–22
(9th Cir. 2013); see also United States v. Anderson, 517 F.3d 953,
962 (7th Cir. 2008) (“[T]he value of the bribe is not always the
sum offered by the defendant.”). A benefit calculation can be
based on uncharged conduct, provided that the district court
“explain[s] exactly how the conduct factors into the benefit
calculus.” Anderson, 517 F.3d at 963. We have acknowledged
that benefit calculations are not always easy to tabulate, so we
“accept reasonable estimates based on the information availa-
ble in the record.” Id. at 963 (emphasis added). Permitting
1
The majority concludes, and I agree, that the government waived its
waiver argument for the scope of remand by not raising the issue below.
See United States v. Whitlow, 740 F.3d 433, 439 (7th Cir. 2014).
No. 20-2569 19
“reasonable estimates,” however, does not mean accepting
any number put forth.
Here, as the majority correctly notes, the towing compa-
nies received some benefit in exchange for the bribes paid to
Buncich. The amount of that benefit though turns on the ap-
propriate number of tows that should be included in calculat-
ing the “benefit received” and the timing of the bribes. The
majority believes that the “benefit received” by the tow com-
panies could fairly be all the tows awarded (multiplied by a
profit of $50) to Szarmach’s company beginning in 2011 and
to Jurgensen’s company beginning in 2013. That may be true,
but the district court has not yet made the necessary factual
findings to justify those conclusions.
On the number of tows, merely giving some benefit to the
two companies, even in exchange for bribes, does not signify
that every tow resulted from the illegal payments. I do not dis-
pute that Szarmach’s towing company was awarded more
tows and that Jurgensen’s towing company maintained its
position as other companies lost out. But the benefit calcula-
tion relied on by the district court presupposes that both com-
panies would have lost all their territory without paying the
bribe money. That goes too far on this record alone. As the
government acknowledges, no company was ever removed
from the towing list. Companies that did not pay, indeed, saw
their territory shrink. No attempt, however, is made to quan-
tify the loss that a non-bribing company experienced. Causa-
tion can be loose, just not so attenuated that it lacks factual
support. See id. at 963 (rejecting the government’s million-dol-
lar figure because the only properties “affected by illegal
bribes” count (emphasis added)); Sapoznik, 161 F.3d at 1120
20 No. 20-2569
(“But in this case there is not enough evidence to permit even
an approximation. There is no evidence at all.”).
On the timing of the bribes, the government seeks to pun-
ish Buncich for uncharged criminal conduct dating back al-
most three years before the first charged bribe. The jury con-
victed Buncich on three counts relevant here, with the earliest
corrupt payment made to Jurgensen in April 2014 and to Szar-
mach in October 2014. The calculation ultimately adopted by
the district court, however, included tows from alleged brib-
ery beginning in 2011 without any supporting factual findings
going back that far in time.
Given the lack of factual findings to support the “benefit
received” by the bribers, I would respectfully remand for re-
sentencing.