USA v. GERALD E. ANDERSON, 06-2205.  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 and 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.

Anderson’s appeal focuses largely on sentencing issues.  A fourteen-point enhancement was added because the "benefit received" from the bribe was more than $400,000 but less than $1,000,000. See U.S.S.G. § 2B1.1(b)(1)(H) (2003).

We now turn to the most hotly contested issue in this case, which is the proper calculation of the "benefit received" in return for the bribe. See U.S.S.G. § 2C1.1(b)(2) (2003).  Both parties agree that the value of the "benefit received or to be received" is the proper measure in this case, but they disagree on how it should be calculated.

Basically, the dispute in this case is over whether Anderson’s offense conduct should include convicted conduct, relevant conduct or both.  The Government is correct here, at least in theory.

It is well settled that the sentencing judge may consider not only the conduct that formed the basis of the conviction but also "relevant conduct." See U.S.S.G. § 1B1.3(a)(2) (2003). Relevant conduct may include "uncharged conduct and even conduct that formed the basis of an acquittal," as long as the judge makes factual findings based on the preponderance of the evidence. United States v. Schaefer, 291 F.3d 932, 938 (7th Cir. 2002) (citations omitted).

The judge, however, must make sure that the conduct forms a part of the "same course of conduct" or "ongoing series of offenses." U.S.S.G. § 1B1.3 cmt. n.9(B) (2003). Further, we have cautioned that when the benefit calculation is based largely on conduct for which the defendant was not convicted, the district court must be careful to explain exactly how the conduct factors into the benefit calculus. See Schaefer, 291 F.3d at 939.

We are aware that benefit calculations cannot always be precise, and so we accept reasonable estimates based on the information available in the record. See U.S.S.G. 2B1.1(b)(1), cmt. n.3(c) (2003). To be rejected, a district court’s calculation must not only be "inaccurate but outside the realm of permissible computations." United States v. Peterson-Knox, 471 F.3d 816, 822 (7th Cir. 2006).

Because more than 90% of the district court’s net benefit figure reflects benefits derived from relevant conduct, we will scrutinize the numbers more closely. See Schaefer, 291 F.3d at 939.  In the end, there has been no reasonable basis presented for calculating the value of Misty Creek on the basis of a discount. This is a rare occasion in which the district court’s calculation is "outside the realm of permissible calculations." Peterson-Knox, 471 F.3d at 822.

Before we remand the case, however, we must determine whether the error was harmless. See e.g., United States v. Saunders, 129 F.3d 925, 932-33 (7th Cir. 1997). An error is harmless if it "did not affect the district court’s selection of the sentence imposed." Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992).

So, knowing what we now know, would the district court have selected the same sentence? There is no need for speculation here. The district court stated explicitly at the sentencing hearing that it believed that seventy-two months was the reasonable sentence under § 3553(a), even if its benefit calculations were incorrect.  Because it has clearly stated its intention to do so, any error in the calculation of the sentencing range was harmless.

AFFIRMED

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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