United States v. Gary Solomon , 892 F.3d 273 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1747
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GARY SOLOMON,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 CR 00620-2 — Edmond E. Chang, Judge.
____________________
ARGUED DECEMBER 5, 2017 — DECIDED JUNE 5, 2018
____________________
Before WOOD, Chief Judge, and ROVNER and HAMILTON,
Circuit Judges.
WOOD, Chief Judge. Hard as it may try, Chicago has not yet
managed to shake free from the scourge of public corruption.
Gary Solomon, Thomas Vranas, and Barbara Byrd-Bennett
have added another chapter to this inglorious history. As CEO
of the Chicago Public Schools (CPS), Byrd-Bennett worked be-
hind the scenes to assure that two companies headed by Sol-
2 No. 17-1747
omon and Vranas would receive lucrative contracts. In ex-
change, Solomon and Vranas agreed that they would pay
Byrd-Bennett a percentage of the revenue generated by those
contracts when she came to work for them at the end of her
tenure with CPS. After the fraudulent scheme was exposed,
each participant pleaded guilty to committing wire fraud in
violation of 18 U.S.C. §§ 1343 and 1346. Solomon was sen-
tenced to 84 months’ imprisonment, 30 months more than
Byrd-Bennett received. Solomon’s sentence also significantly
exceeds Vranas’s, though that gap is irrelevant for this appeal.
Solomon wants a new sentencing hearing. He accuses the
district court of incorporating the value of a contract unre-
lated to the criminal agreement into his advisory sentencing
guidelines calculation. That alleged error resulted in an of-
fense score that was four levels higher than Solomon believes
it should have been. Additionally, Solomon believes that the
disparity between Byrd-Bennett’s sentence and his sentence is
unwarranted, making his sentence substantively unreasona-
ble. Because the record supports the court’s decision to in-
clude the contested contract in the offense level calculation,
and because dissimilar cooperation is a reasonable basis for a
sentencing disparity, we affirm the district court’s sentence.
I
Before she joined CPS in May 2012, Byrd-Bennett briefly
consulted for a pair of companies (The SUPES Academy, LLC,
and Synesi Associates, LLC) to which we refer as SUPES.
SUPES provided training services for educators. Solomon was
its CEO, and Vranas its President. Byrd-Bennett’s consulting
role with SUPES entitled her to a percentage of the companies’
revenue. When Byrd-Bennett assumed her public positions,
first consulting for CPS and later as its CEO, her relationship
No. 17-1747 3
with SUPES persisted, despite the fact that as an agent of CPS
she was not allowed to have an economic interest in any ven-
dor contracts. Byrd-Bennett used her authority as the head of
CPS to ensure that SUPES won two lucrative contracts. The
first, ultimately valued at $2.54 million, was awarded within
two weeks of her taking over the top job for the school district.
The second followed her ascension by eight months and was
worth $20.5 million. Each was a sole-source contract—mean-
ing it was a contract for which there could be only one bidder.
In exchange for this largesse, Solomon and Vranas depos-
ited a percentage of the revenue generated from those con-
tracts into trusts for the benefit of Byrd-Bennett’s two grand-
sons. The plan was that once she finished with her CPS ser-
vice, she would return to SUPES and receive control of the
trusts as a “signing bonus.” SUPES also set aside revenue into
a “development fund,” a portion of which was earmarked for
Byrd-Bennett, again to be paid on her return to SUPES.
As Robert Burns observed, “The best laid schemes o’ mice
an’ men/Gang aft a-gley.” So it was here. No more than a
month after the second contract was awarded, the Inspector
General for the Chicago Board of Education launched an in-
vestigation into Byrd-Bennett’s relationship with SUPES. As
Vranas would later admit, he and Solomon deleted emails
sent between them and Byrd-Bennett when they learned
about the investigation. Almost two years to the day of Byrd-
Bennett’s taking the reins as CEO, a grand jury returned a 23-
count indictment against Solomon, Vranas, and Byrd-Bennett.
They were charged with, among other things, a scheme to ob-
tain public money through bribery and kickbacks. All three
defendants pleaded guilty on one count.
4 No. 17-1747
At Solomon’s sentencing hearing, he and the government
disagreed about the scope of the fraudulent arrangement. He
argued that his agreement with Byrd-Bennett reached only
the first of the two contracts SUPES received, while the gov-
ernment countered that the agreement remained in force
through the second contract. If Solomon was right, the value
of the monetary benefit he and Vranas received from the
scheme, calculated as the profit earned from each contract,
was $508,000. If the government was right, the benefit was
$2.9 million. This translated, for purposes of the U.S. Sentenc-
ing Guidelines, into a difference of four levels in the required
enhancement to the baseline offense score of 12, see U.S.S.G.
§ 2C1.1(a)(2), from 12 additional levels to 16, see U.S.S.G.
§§ 2B1.1(b)(1), 2C1.1(b)(2). Solomon did not dispute the gov-
ernment’s benefit calculation if the second contract was found
to be part of the agreement.
The district court found that the evidence backed the gov-
ernment. After adding another four levels because the scheme
involved a public official in a high-level position, U.S.S.G.
§ 2C1.1(b)(3), plus two more levels for obstruction of justice,
U.S.S.G. § 3C1.1, and then subtracting three levels for ac-
ceptance of responsibility, U.S.S.G. § 3E1.1(a), (b), the court
found a final offense level of 31. Together with Solomon’s
Criminal History Category I, this yielded an advisory sen-
tencing range of 108–135 months. After weighing the sentenc-
ing factors outlined by 18 U.S.C. § 3553(a), the court selected
a final sentence of 84 months’ incarceration.
Though Byrd-Bennett was still awaiting sentencing at the
time of Solomon’s hearing, the district court discussed her and
Solomon’s relative culpability. The government acknowl-
edged that had all things been equal, it would have preferred
No. 17-1747 5
that Byrd-Bennett receive a harsher sentence than Solomon.
And indeed, the advisory guidelines sentence for Byrd-Ben-
nett, which accounted for the fact that she was a public offi-
cial, was 135–168 months. But the government advised the
judge that it supported a higher sentence for Solomon. It did
so in large part because of Byrd-Bennett’s much more exten-
sive cooperation with the investigation—cooperation that the
government intended to reward through the filing of a motion
under U.S.S.G. § 5K1.1 at the appropriate time. Moreover, Sol-
omon profited immediately from the scheme. While Byrd-
Bennett was promised a payout, she never actually saw those
dollars, because they were not supposed to be paid until she
returned to SUPES. In the end, the court sentenced Byrd-Ben-
nett to 54 months’ imprisonment.
II
Solomon first challenges the district court’s finding that
the $20.5 million contract was part of the criminal agreement
between him and Byrd-Bennett. This was a finding of fact, and
so we review it for clear error. United States v. Coscia, 866 F.3d
782, 801 (7th Cir. 2017). The district court needed to find by a
preponderance of the evidence that the second contract was
part of the bribery scheme. See United States v. Holton, 873 F.3d
589, 591–92 (7th Cir. 2017). If so, it was properly incorporated
into the offense level calculation.
Solomon pleaded guilty to the version of wire fraud that
covers “a scheme or artifice to deprive another of the intangi-
ble right of honest services.” 18 U.S.C. § 1346. To convict
someone of honest-services fraud, the government must
prove that there is an agreement to pay a bribe or kickback.
Skilling v. United States, 561 U.S. 358, 408–09 (2010). As the dis-
trict court observed, this reaches schemes that involve a
6 No. 17-1747
stream of benefits over time, not just singly negotiated deals.
See Ryan v. United States, 688 F.3d 845, 852 (7th Cir. 2012); see
also United States v. Wright, 665 F.3d 560, 568 (3d Cir. 2012)
(“The bribery theory does not require that each quid, or item
of value, be linked to a specific quo, or official act.”). Conse-
quently, the district court did not have to find an explicit
agreement to exchange payment for awarding the second
contract. It was enough to find sufficient evidence of an ongo-
ing agreement to compensate Byrd-Bennett for sending con-
tracts to SUPES, and that this agreement was still active at the
time SUPES won the $20.5 million contract.
The district court primarily relied on three pieces of evi-
dence in this respect. First, Byrd-Bennett sent Solomon an
email five days after SUPES won the $20.5 million contract. In
that email, she wrote that “anything u can provide to me or a
designated person relative to the future college and weddings
for the boys might be helpful.” The district court interpreted
that email as demonstrating that the agreement to fund trusts
for Byrd-Bennett’s grandsons in exchange for awarding con-
tracts to SUPES was still in place at the time. Second, Byrd-
Bennett steamrolled internal resistance to ensure that SUPES
received the $20.5 million contract. She pressured CPS offi-
cials to find money to fund the program; she shepherded
SUPES through CPS’s sole-source contract process; and she
strong-armed a CPS employee who raised concerns about the
procurement process to resign. Third, the district court high-
lighted evidence that Solomon and Vranas had deleted emails
about the $20.5 million contract upon learning about the In-
spector General’s investigation. It regarded those deletions as
evidence of their consciousness of guilt.
No. 17-1747 7
Solomon sees the evidence differently. He relies heavily on
Byrd-Bennett’s testimony before the grand jury, where she de-
nied that the $20.5 million contract was part of her agreement
with Solomon. He criticizes the evidence contradicting her ac-
count as nothing but “speculation and conjecture.” But Solo-
mon’s position suffers from at least two faults. First, the dis-
trict court found Byrd-Bennett’s testimony incredible, observ-
ing at sentencing, “I think ultimately you and Ms. Byrd-Ben-
nett are—you’re fooling yourselves a little at this point, you
know, after the fact, that this 20.5 was not part of the bribery
scheme.” Second, even if Byrd-Bennett’s testimony were be-
lievable, she never negated the facts on which the district
court relied. Solomon ignored those facts in his opening brief,
waiting until his reply to comment on a few of them. He ar-
gues that the district court misconstrued the import of the
email Byrd-Bennett sent following the second contract. The
email, Solomon insists, sought payment from SUPES for the
contract that had been finalized eight months earlier, and not
the contract won five days prior. Even if this argument were
not made too late (and it was), it is far-fetched. It was not
clearly erroneous for the district court to find that the email
was about the $20.5 million contract. Additionally, Solomon
fails to address Byrd-Bennett’s efforts to secure the second
contract for SUPES. While it might be argued that Byrd-Ben-
nett was so tenacious because she genuinely believed in the
value of SUPES’s services, Solomon has not pressed that argu-
ment on appeal, and it fails in any event to take into account
her conflict of interest.
Compounding Solomon’s problems is the additional evi-
dence in the record indicating that the bribery scheme was
alive and well at the time the $20.5 million contract was final-
ized. Shortly after CPS awarded the large contract to SUPES,
8 No. 17-1747
Solomon emailed Vranas telling him that Byrd-Bennett had
called to celebrate. Two days later, as CPS and SUPES were
preparing to pitch the contract to the CPS Board, Byrd-Ben-
nett wrote to Solomon “I obviously have a very personal in-
terest in our success. So much on many levels will be im-
pacted now and in the future.” Neither email is a smoking
gun, but both buttress the district court’s findings.
Solomon may be right that it is a stretch to see the evidence
of his and Vranas’s deletions of emails as an indication that
the $20.5 million contract was part of the bribery scheme. That
evidence is in the record because Vranas confessed to the de-
letions while making a proffer to the FBI. We do not know the
content of the deleted emails. Deleting emails might display a
general consciousness of guilt, but it does not speak to the
scope of the illegal agreement. Yet any error in this respect
was harmless. Even without the evidence of the deletions,
there was ample evidence to support the court’s finding by a
preponderance of the evidence that the $20.5 million contract
was properly included.
III
Next, Solomon argues that the disparity between his and
Byrd-Bennett’s sentence was unwarranted and that this dis-
parity renders his sentence substantively unreasonable. “We
review the reasonableness of a sentence for an abuse of dis-
cretion … and note that a below-guidelines sentence is ‘pre-
sumptively reasonable against an attack by a defendant
claiming that the sentence is too high.’” United States v. Harris,
791 F.3d 772, 782 (7th Cir. 2015) (quoting United States v. Lidell,
543 F.3d 877, 885 (7th Cir. 2008)). A defendant rebuts the pre-
No. 17-1747 9
sumption only by showing that the sentence does not com-
port with the factors outlined in 18 U.S.C. § 3553(a). United
States v. Durham, 645 F.3d 883, 897 (7th Cir. 2011).
A sentence might be unreasonable if it creates “unwar-
ranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct.”
18 U.S.C. § 3553(a)(6). If a district judge “correctly calculated
and carefully reviewed the Guidelines range, he necessarily
gave significant weight and consideration to the need to avoid
unwarranted disparities.” Gall v. United States, 552 U.S. 38, 54
(2007). But the guidelines are not a straitjacket. A district court
is entitled, if it wishes, to apply the rule against unwarranted
disparities to co-defendants’ sentences. See United States v.
Statham, 581 F.3d 548, 556 (7th Cir. 2009) (“We are therefore
open in all cases to an argument that a defendant’s sentence is
unreasonable because of a disparity with the sentence of a co-
defendant … .”). Indeed, in Gall the Supreme Court approved
a district court’s decision to take into account the sentences
that co-defendants had received. 552 U.S. at 55–56; see Stat-
ham, 581 F.3d at 556. We take this opportunity to clarify that
the district court’s discretion extends this far—a point that
may not be as clear as it should be in light of language in some
of our decisions. See, e.g., Durham, 645 F.3d at 897 (stating that
the elimination of sentencing disparities should be viewed
across judges or districts, not co-defendants, but then compar-
ing co-defendants and finding no error); United States v. Scott,
631 F.3d 401, 404–05 (7th Cir. 2011) (making same statement
about disparities among judges and districts, but then hold-
ing that there could be no disparity among defendant and his
coconspirator “when the latter does not even exist”).
10 No. 17-1747
Solomon relies on similarities between himself and Byrd-
Bennett as evidence that the sentencing disparity is unwar-
ranted. They each pleaded guilty to the same criminal charge,
they were equal partners, and they had the same criminal his-
tory score. If anything, he argues, Byrd-Bennett—the public
official—is the more culpable defendant. Both the govern-
ment and district court acknowledged at sentencing that in
the abstract it makes sense for the public official to receive the
harsher punishment. The respective advisory ranges corrobo-
rate that notion.
But sentencing is never abstract: the district court is re-
quired by statute to tailor its sentence to the particular defend-
ant before it. And as soon as we look at the specifics, it is ap-
parent that all things are not equal. Byrd-Bennett cooperated,
and Solomon did not (at least in any meaningful way). Dis-
parate cooperation warrants disparate sentencing. United
States v. Orlando, 819 F.3d 1016, 1026 (7th Cir. 2016). We have
held as much, even when the less culpable of co-defendants
finds himself staring at the harsher sentence. See United States
v. Boscarino, 437 F.3d 634, 637–38 (7th Cir. 2006) (finding the
district court’s sentencing of the more culpable of two co-de-
fendants to a lesser term of imprisonment to be reasonable
based on his cooperation).
Solomon urges that the district court erred by failing to
equate his cooperation to Byrd-Bennett’s. He highlights flaws
in her proffers, and her initial failure to tell the truth. He adds
that he was honest in his own proffers, conceded the bribery
scheme as it related to the first contract, and provided valua-
ble information. Nonetheless, a district court may accept one
account of cooperation over another. United States v. Knox,
No. 17-1747 11
573 F.3d 441, 453 (7th Cir. 2009). Here, the district court cred-
ited the government’s assessment. The judge remarked at sen-
tencing, “But I also can’t give you credit for coming com-
pletely clean, at least based on the facts that I have found … .
You did try to cooperate. The bottom line there is that the
prosecution found that the actual substantial assistance came
from Ms. Byrd-Bennett and Mr. Vranas.” The government re-
ported that Solomon waited four months after he became
aware of the investigation before he tried to proffer. Even
then, he was not entirely forthcoming, and he sent the gov-
ernment to chase false leads. While Byrd-Bennett also failed
to come clean initially, eventually she did so. Moreover,
though it seems to have been a secondary reason for the dis-
parity, Solomon immediately profited from the criminal
agreement while Byrd-Bennett never actually pocketed her
share of the revenue.
Before leaving this subject, we note that we are not dis-
posed to accept the government’s invitation to hold flatly that
a sentence cannot become substantively unreasonable based
upon a co-defendant’s later sentence. The government reasons
that if a later sentence may render an earlier one unreasona-
ble, then the district court is put in the untenable position of
having to predict the future. That may often be true, but it is
not inevitable. Here, for instance, the district court was han-
dling both cases simultaneously. Despite the sequence of the
sentencing hearings, it had enough information available to it
at Solomon’s sentencing hearing to compare his and Byrd-
Bennett’s culpability. And the judge did so ably. Case-by-case
consideration of this point is all that is needed.
12 No. 17-1747
IV
Though Solomon will pay a heavy price for his role in this
seamy business, his sentence is based on a properly sup-
ported assessment of the scope of his criminal agreement. The
court’s decision to impose a harsher sentence on him than it
did on Byrd-Bennett also has ample support in the record; Sol-
omon’s sentence is not substantively unreasonable. We there-
fore AFFIRM the district court’s judgment.