Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 CR 789-Ruben Castillo, Judge.
The opinion of the court was delivered by: Cudahy, Circuit Judge.
ARGUED SEPTEMBER 13, 2007
Before EASTERBROOK, Chief Judge, and CUDAHY and SYKES, Circuit Judges.
Gerald Anderson and John Meisch have been friends since 1967. Anderson was a successful real estate developer who owned a lot of valuable property around Aurora, Illinois. John Meisch was an Alderman for the City of Aurora and served as its Mayor Pro Tem. In December 2004, Anderson and Meisch were indicted on charges of bribery and wire and honest services fraud. The two men had been caught offering a $10,000 bribe to the Aurora Director of Public Works in order to smooth the way for Anderson's latest development project. Meisch pleaded guilty and testified against Anderson at trial. Anderson was ultimately convicted on two counts. He now appeals, arguing mainly that his six-year sentence should be reduced. Many of his arguments are without merit but he does have one substantial challenge to his sentence. He argues that the district judge improperly calculated his sentencing range under the U.S. Sentencing Guidelines by overestimating the net benefit he received from his wrongdoing. We agree that the district court improperly calculated the Guidelines range but we find that the error was harmless. We AFFIRM.
Gerald Anderson owned a number of real estate properties around Aurora, including parcels now known as Grand Pointe Homes and Misty Creek. In late 1997, Anderson was introduced to Jeff Pelock, who was interested in developing homes on Anderson's land. The two men became partners in a venture called Aurora LLC. Anderson put nearly $6,000,000 of property into Aurora LLC, including Grand Pointe Homes and Misty Creek. In return, he received preferred payments for the value of his property as well as 30% of the profits of the business. The two men immediately began developing Misty Creek.
In Aurora, developers typically begin by providing the City's staff engineers with a copy of their preliminary plan. The staff engineers review the plan and pass their recommendation on to the Aurora City Council. If the preliminary plan is approved by the City Council, the developer can submit a final plan to the City for approval. In order to be approved, a plan must comply with numerous City ordinances and regulations, so developing a plan often involves ongoing negotiations with City officials from various departments.
While Misty Creek was well underway by early 2000, Anderson and Meisch's second project, Grand Pointe Homes, was still in the initial planning stages. Rick Zirk, an employee of Aurora LLC, presented the plan for Grand Pointe Homes to the City's staff engineers but the plan was rejected. Zirk believed that he had gotten an undeservedly hostile reception from the engineers and so went directly to the City Council's Planning and Development Committee. But, on May 31, 2000, the Committee also rejected the plan. The Committee objected, among other things, to the planned density of the project. Anderson decided to take "a more proactive role" with the City. The first thing he did was call his old friend, John Meisch, who was then the Chairman of the Planning and Development Committee.
Pelock and Anderson met with Meisch in early 2001 to complain about the reception their plan had received. Anderson asked Meisch to support his development plans for Misty Creek and Grand Pointe Homes and to garner support from other aldermen. On January 30, 2001, Meisch made a motion before the City Council to have the City annex a portion of Anderson's development (he also voted in favor of the motion). Anderson and Meisch met again in early 2001 to discuss the plan. In September 2001, Anderson had a third meeting with Meisch. During this meeting, Anderson asked Meisch to set up a meeting with the Oswego Park District regarding a bike trail that ran through Grand Point Homes. The Park District was going to take over the trail once the property was developed and it had concerns about its design and location. At the end of the meeting, Anderson handed Meisch an envelope containing $2500 in cash.
Meisch later met with city officials and officials of the Oswego Park District. Meisch was able to resolve the issues with the Park District and Anderson was able to move forward with his project. On September 10, 2002, Meisch, acting as Mayor Pro Tem, signed a resolution approving a plan for Grand Pointe Homes. On February 27, 2003, Meisch supported before the Planning and Development Committee the resolution approving the final plan for Grand Pointe Homes. The plan passed even though the density of the project was greater than it had originally been. In March 2003, Anderson gave Meisch an envelope containing another $2500 in cash.
After Meisch left office, he had a final meeting with Anderson. They discussed a new project at Eola Road, which Anderson owned with another partner, Don Hamman (Aurora LLC was not involved). Anderson hoped that Meisch would assist him as he had in the past. Meisch advised Anderson that he would need to win the approval of Bob Rieser, Aurora's Director of Public Works. Anderson gave Meisch an envelope containing $1000 in cash.
In late 2003, Anderson approached Ken Schroth, a civil engineer for the City of Aurora, to discuss whether Eola Road could be developed without an onsite pond to collect storm water runoff. Anderson believed that an offsite pond was sufficient to comply with Aurora's storm water ordinance but Schroth determined that the offsite pond could not hold all of Eola Road's storm water. Schroth told Anderson that he would need to set aside 15% of the property for an onsite pond. Anderson met with Schroth again several weeks later, and Schroth again insisted that Anderson needed a set-aside.
Rieser was also aware of the set-aside problem. In January 2004, just before Rieser was expected at a meeting of staff engineers regarding the Eola Road project, Meisch appeared in his office and closed the door. Meisch told Rieser, "Gerry Anderson has been very good to me in the past, and . . . he can be very good to you [if you help him with Eola Road]." Meisch said that "there is $10,000 cash that no one would know about" if he supported the project. After Meisch left, Rieser called the Federal Bureau of Investigations, which advised Rieser to play ball with Meisch. At the meeting of staff engineers, Rieser was asked about the sufficiency of the offsite water storage at Eola Road and responded that it was "do-able."
On February 9, 2004, Rieser spoke with Anderson on the phone and asked if he was still "okay" with the $10,000. Anderson assured Rieser that he was. He also told Rieser that he would keep everything confidential. Anderson, Meisch and Rieser arranged a meeting on February 17, 2004. Anderson informed Rieser that he would seek approval for the project only after he had bought out the other owners and wanted to make sure that Rieser ...