On Appeal from the United States District Court for the District of New Jersey (D.C. No. 96-cr-00162-01) Argued September 15, 1997
Before: Becker, Chief Judge, Sloviter and Scirica, Circuit Judges
The opinion of the court was delivered by: Sloviter, Circuit Judge.
Deandre Rudolph, who pled guilty to bribery and sale of government property, appeals his sentence on the grounds that the district court (1) improperly enhanced hi s sentence pursuant to U.S.S.G. § 2C1.1(b)(1), and (2) improperly failed to group the two convictions under U.S.S.G. § 3D1.2. Because there was no trial, most of the relevant facts were obtained from Rudolph's presentence report.
In March 1995, Gerard Felix, who was arrested on charges unrelated to this case, admitted to having made corrupt payments to employees of the Immigration and Naturalization Service and other Justice Department employees in return for illegal assistance. During the course of his subsequent cooperation with the government, Felix identified, inter alia, the appellant, Deandre Rudolph, an INS Special Agent based in Newark, New Jersey, as one of those government employees. Felix told the agents that in the fall of 1994, Rudolph had accepted a total of $1,500 from him in return for an INS metal template, a device that imprints a marking when fingerprints and signatures are affixed to alien registration "green" cards to demonstrate authenticity. Felix cooperated in the ensuing investigation of Rudolph, during which several telephone calls between Felix and Rudolph were monitored.
In October 1995, Felix asked Rudolph to obtain a federal Presentence Report (PSR) prepared by the United States Probation Office in the Southern District of New York in exchange for $1,000. Thereafter, Felix and Rudolph met on October 18, 1995 at a diner in Irvington, New Jersey to discuss the proposed sale of the presentence report. At that meeting, Rudolph requested more specific information identifying the subject of the report.
The following day, after Felix provided Rudolph with the date of birth of the subject of the report, Rudolph telephoned Felix from his INS office and told him that he had the report. They agreed to meet that afternoon to make the exchange, but at that meeting Rudolph, who displayed the PSR, sought more money than Felix had originally offered because the PSR was highly confidential. Ultimately, Rudolph accepted the $1,000 for the PSR at a later meeting. Rudolph had used an unsuspecting colleague in the INS office to obtain the copy of the PSR.
Approximately one month later, on November 21, 1995, Rudolph, Felix and Wesley Clement, who was described as "an illegal document vendor," met by prearrangement so that Clement could purchase an INS metal template from Rudolph. During negotiations, Rudolph explained that this transaction was riskier than the sale of the template in the fall of 1994 because this time there would be "cameras up in the ceiling." The three men met again an hour later, and Clement turned over $4,000 in cash for the template. According to Felix, Clement purchased yet another template shortly thereafter.
Rudolph was arrested on December 22, 1995. On January 18, 1996, a three-count indictment was filed in the United States District Court for the District of New Jersey charging Rudolph with (1) demanding, seeking, and receiving a monetary bribe as a public official to make opportunities for the commission of fraud by providing an I-89 template for use in fraudulent applications to the INS for permanent residence, in violation of 18 U.S.C. §§ 201(b)(2)(B) and 2; (2) demanding, seeki ng, and receiving a monetary bribe as a public official in order to be induced to act in violation of his official duty by providing an I-89 template to a person not authorized to receive it, in violation of 18 U.S.C. §§ 201(b)(2)(C) and 2; and (3) converting to his own use and without authorit y selling, conveying and disposing of an I-89 metal template belonging to the INS, in violation of 18 U.S.C. §§ 641 and 2. All three counts related to Rudolph's supply of the template to Clement in November 1995 in exchange for money.
On March 22, 1996, pursuant to a written plea agreement, Rudolph pled guilty to count one of the indictment, charging him with receiving a bribe in violation of 18 U.S.C. § 201(b)(2)(B), and waived indictment and pled guilty to a one-count information charging him for the first time with sale of government property, namely a Presentence Investigation Report, in violation of 18 U.S.C. § 641. Counts two and three of the indictment originally presented were dismissed.
The district court sentenced Rudolph on October 23, 1996, to two concurrent 16-month terms of imprisonment, to be followed by 3 years of supervised release. In addition, the district court ordered Rudolph to pay a $7,500 fine for each count of conviction, for a total of $15,000. Final judgment was entered on October 28, 1996, and Rudolph filed a timely notice of appeal on October 31, 1996.*fn1
Rudolph asserts that it was improper for the district court to increase his offense level by two levels under U.S.S.G. § 2C1.1(b)(1) based on his admissions to the probation department that he had accepted two additional bribes that were not the subject of a charge. Section 2C1.1 provides for a base offense level of ten for "offering, giving, soliciting, or receiving a bribe" and mandates a two-level increase if the offense "involved more than one bribe or extortion." See U.S.S.G. § 2C1.1(b)(1),(2). In reviewing the district court's application of § 2C1.1(b)(1), the factual findings are reviewed for clear error, while the application and interpretation of the Guidelines are subject to plenary review. See United States v. Felton, 55 F.3d 861, 864 (3d Cir. 1995).
Rudolph is not challenging the court's finding that he accepted the two uncharged bribes. In fact, Rudolph acknowledged during the sentencing hearing that he had admitted to the probation officer that he accepted bribes for three templates, and the district court considered that admission in making its finding that Rudolph had accepted three bribes. App. at 75. Rudolph's contention is that his two uncharged bribes do not qualify as relevant conduct for purposes of an enhancement under the sentencing guidelines.
Under § 2C1.1(b)(1), the defendant's base offense is increased by 2 levels if more than one bribe is involved. In determining whether there has been more than one bribe, it is necessary to consider "relevant conduct" as defined in § 1B1.3. That section defines relevant conduct as "all acts and omissions committed, aided, abetted . . . procured, or willfully caused by the defendant . . . during the commission of the offense of conviction, in preparation for the offense of conviction, or in the course of attempting to avoid detection or responsibility for that offense." U.S.S.G. § 1B1.3(a)(1). Where the conduct at issue, if charged, would be groupable with a charged offense pursuant to§ 3D1.2(d), however, the definition of relevant conduct also includes "all acts and omissions committed, aided, abetted. . . procured, or willfully caused by the defendant . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G.§ 1B1.3(a)(2). See also United States v. Wilson, 106 F.3d 1140, 1143 (3d Cir. 1997).
Offenses can be part of "the same course of conduct" if "they are sufficiently connected or related to each other as to warrant the Conclusion that they are part of a single episode, spree, or ongoing series of offenses." U.S.S.G. § 1B1.3, appl. note 9(B). Similarly, offenses may constitute part of a "common scheme or plan" if they are "substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi. U.S.S.G. § 1B1.3, application note 9(A).
Here, had they been charged, Rudolph's two uncharged bribes would certainly have been groupable with the bribe charged in count one of the indictment. Thus, it was proper for the district court to consider them as relevant conduct if they "were part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. § 1B1.3(a)(2).
As indicated in the Presentence Investigation Report, Felix was "a highly credible cooperating defendant," and provided the probation department with information concerning his and Rudolph's respective roles in each of the three bribes. That information was corroborated by tape recorded conversations and by Rudolph's own admissions. Accordingly, we cannot say that the district court'sfinding by a preponderance of the evidence that the two uncharged bribes were "relevant conduct" as defined by the Sentencing Guidelines was erroneous.
Rudolph asserts that relevant conduct that is uncharged may not be the basis of a sentencing enhancement. However, the Commentary to § 1B1.3 specifically notes that "conduct that is not formally charged or is not an element of the offense of conviction may enter into the determination of the applicable guideline sentencing range." Accordingly, this court has consistently rejected the argument that only charged conduct may be grounds for a sentencing enhancement. See United States v. Baird, 109 F.3d 856, 863 (3d Cir.) ("conduct not formally charged . . . can be considered at sentencing"), cert. denied, 118 S. Ct. 243 (1997); United States v. Sokolow, 91 F.3d 396, 411 (3rd Cir. 1996) (affirming district court's use of uncharged conduct for purposes of sentencing determination pursuant to § 1B1.3(a)(2)); United Sates v. Pollard, 986 F.3d 44, 47 (3d Cir. 1993) ("the court may consider uncharged conduct in determining whether and how to apply upward or downward adjustments"). Cf. United States v. Frierson, 945 F.2d 650, 652-54 (3d Cir. 1991) ("relevant conduct" included offenses that were charged in the indictment but dropped pursuant to a plea agreement), cert. denied, 503 U.S. 952 (1992).
Rudolph's principal contention on this issue is that use of the uncharged bribes is precluded by our decision in United States v. Thomas, 961 F.2d 1110 (3d Cir. 1992). However, as the district court noted, Thomas is distinguishable. In Thomas we held it was impermissible to depart upward from the guideline range on the basis of uncharged crimes. Id. at 1120. In this case, the uncharged crimes are being used merely as part of the ...