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U.S. v. PEASE

May 13, 2005.

UNITED STATES of AMERICA
v.
CAROLYN PEASE.



The opinion of the court was delivered by: BLANCHE MANNING, District Judge

MEMORANDUM AND ORDER

This matter is presently before the Court for sentencing. After pleading guilty to one count of bribery of a public official, in violation of 18 U.S.C. § 201(b)(1), Defendant Carolyn Pease filed objections to the Presentence Investigation Report ("PSR") prepared by the United States Probation Office ("Probation"). For the reasons set forth herein, this Court sustains Pease's objections and imposes a sentence of eight (8) months home-confinement, five (5) years probation, a fine of $4,000, and restitution in the amount of $11,180.

BACKGROUND*fn1

  Since 1992, Pease has worked as a sales representative for Air Filter Engineering. She was apparently a very dedicated and successful employee, who earned the nick name the "filter queen" for her outstanding sales performance. One of Pease's filter customers was the General Services Administration ("GSA"), a federal agency which manages the Dirksen Federal Building, the location of this Court. In her Plea Agreement, Pease admits to offering to pay three bribes and actually paying two bribes to a GSA supervisor ("the Supervisor") in return for awarding her filter contracts at the Dirksen Building. In each case, Pease promised the Supervisor that if she was awarded the contract, she would give him part of her sales commission. The first of these bribes occurred in November of 1999 when Pease told the Supervisor that "she would give him $2,000 cash for his assistance in obtaining the award of the [contract] for Pease's company." After Pease's company was awarded the contract, she gave the Supervisor $2,000 as promised. Based on paper work submitted by Pease, she received a commission of $7,500 for this contract (which was worth $24,500).

  Next, Pease admitted that in January 2000, she offered to "split her commission" with the Supervisor if her company received a $139,000 air duct cleaning contract. She told the Supervisor his share of her commission would be $10,800. Based on the Plea Agreement, it is unclear whether Pease received this contract or paid the proposed bribe.

  The final bribe occurred in October 2000, when Pease offered the Supervisor $2,000 for "his assistance in obtaining" an "air filter supply contract totaling $30,175." After her company was awarded the contract, she gave the Supervisor $2,000 as promised. Based on paper work submitted by Pease, she received a commission of $3,680 for this contract.

  In a "Supplemental" PSR, Probation subsequently calculated the total offense level, using the 2000 edition of the United States Sentencing Guidelines ("the Guidelines"), as follows: Base Offense Level (§ 2C1.1) 10 Paying More than One Bribe (§ 2C1.1(b)(1) 2 Value of Bribes (§ 2C1.1(b)(1)) 4 Adjustment for Acceptance of Responsibility -3 (§ 3E1.1(a) and (b))

 Total Offense Level 13

  Based on an offense level of 13 and a criminal history category of I, the Guidelines recommend a sentence of 12 to 18 months. Probation recommends that this Court sentence Pease to the low end of the Guideline range — 12 months.

  Pease has now filed a "Position Paper On Sentencing As To Sentencing Factors," in which she objects to Probation's calculation of the value of the bribes. The Court will review this objection and the effect of United States v. Booker, 125 S.Ct. 738 (2005) on her sentence.

  ANALYSIS

  I. Value Received from the Brides

  Before addressing Pease's specific objection, this Court will briefly review the Booker decision and its impact on the calculation of Pease's sentencing. In Booker, 125 S. Ct. at 745-54, the Supreme Court held that its prior decision in Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004), which held that the state of Washington's "sentencing scheme" violated the Sixth Amendment because it allowed judges to sentence a defendant beyond the maximum range set forth in the state statute based upon facts "neither admitted by [the defendant] nor found by the jury," applied to the federal Guidelines. Based on this application, the Booker court held that the Guidelines likewise violated a defendant's right to have a "jury find facts essential to his punishment" because they permit judges to impose a sentence greater than the maximum authorized in the Guidelines based upon "facts beyond those found by the jury" or admitted by the defendant.*fn2 124 S. Ct. at 749-51. Consequently, under Booker and Blakely, to impose a sentence exceeding the prescribed Guideline range, the facts must have been specifically included in a guilty plea or found beyond a reasonable doubt by the jury, or, where the defendant waives his right to a jury finding, by the court.

  Here, Probation calculated $27,500 as the "value of the benefit" Pease received for the payment of the bribes. Probation based the above amount on the commissions which Pease allegedly received for three contracts her company was awarded in return for the bribes (35% of $24,500, $10,465, and $30,175). In the Plea Agreement, Pease admitted to offering three bribes in exchange for the award of three contracts. (Plea at 3-5.) The Plea Agreement, however, does not state that three bribes were actually paid or that GSA awarded three contracts in return for these bribes. Pease admitted to ...


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