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Fifth Circuit Upholds Stringent Sentence in Zoning Bribery Case

U.S. v. Grace, 640 Fed. Appx. 298 (5th Cir., 2016) involved the disposition of a sentencing remand by the Fifth Circuit in a zoning bribery case. Defendant mayor was charged with 13 counts of corruption involving four schemes, and was convicted on seven of those counts. The jury acquitted defendant on the remaining counts. In the first appeal, the court upheld the convictions, but remanded the case for resentencing, finding the trial court erred in its calculations.

On remand, the trial court sentenced defendant to 240 months of imprisonment, a year on supervised release, a $50,000 fine and a forfeiture of at least $22,000. Defendant appealed.

Regarding the constitutionality of considering defendant’s underlying conduct with regard to those charges for which he was acquitted, the Fifth Circuit determined the trial court could consider that conduct under a “preponderance of the evidence” standard. Thus, if such a preponderance existed, the court could consider the conduct for sentencing purposes, even if defendant were not convicted of a crime by undertaking that conduct.

Next, the court rejected arguments that some of the losses experienced by the Mayor’s city were not, in fact, losses because the city received value from the scheme and that value should be deducted from the alleged loss under the U.S. Sentencing Guidelines. Because defendant did not raise the issue below, the Fifth Circuit did not consider the argument, as defendant did not preserve error.

Next, the court rejected a challenge to a $900,000 loss from the issuance of a fraudulent zoning letter because defendant did not challenge a concurrent finding that defendant also sought to redirect $1,360,000 from various government programs to buy and develop property, finding no clear error to justify resentencing.

Similarly, defendant failed to challenge an aggravating factor under the Sentencing Guidelines that five or more persons must have taken part in the fraud scheme, again as defendant failed to raise the issue below.

Finally, the court rejected a challenge that the sentence (though it was below the guidelines) was substantively unreasonable because the trial court considered conduct under charges for which defendant was not convicted, which had the effect of inflating the sentence under the Guidelines. Defendant contended he is a nonviolent first time offender, his personal gain was only $22,000, and the effect of the sentence was life imprisonment. The Fifth Circuit concluded the trial court did not abuse its discretion in the sentence imposed and also rejected an as-applied challenge under the Sixth Amendment (rights of the accused in criminal proceedings), as the sentence was within the Guidelines.

There are relatively few criminal cases involving zoning administration, with bribery being the predominant focus. This case apparently involved egregious conduct and the Fifth Circuit fairly mechanically applied the Sentencing Guidelines to full effect in warning those with land use authority that the penalties for criminal abuse the zoning power for private gain are severe.

U.S. v. Grace, 640 Fed. Appx. 298 (5th Cir., 2016).

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