The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
On September 5, 2008, a federal grand jury indicted Kevin Ring, a lobbyist who worked with Jack Abramoff, for payment of an illegal gratuity (Count II), honest services wire fraud (Counts III, IV, V, VI, VII, and VIII), and conspiracy (Count I). A jury trial that commenced on September 1, 2009 ultimately resulted in a hung jury on all counts.*fn1 A second trial commenced on October 18, 2010. Following a two-week trial and four days of deliberations, the jury returned a verdict of guilty on Counts I, II, III, VII, and VIII and a verdict of not guilty on Counts IV, V, and VI.
Before the Court is the matter of calculating the appropriate sentence for defendant under the Sentencing Guidelines. The parties' respective positions could hardly differ more dramatically. By the government's calculation, Ring's total offense level is 37, corresponding to a Guidelines sentence of 210 to 262 months.*fn2 Defendant, however, calculates his offense level as 16,*fn3 resulting in a Guidelines range of 21-27 months-a difference of approximately 17 years.
Before the Court can proceed to sentencing, it must resolve this stark conflict between the parties, for in the wake of Booker v. United States, 543 U.S. 220 (2005) and Gall v. United States, 552 U.S. 38 (2007), a set of procedural requirements have developed that govern sentencing. "A district court begins by calculating the appropriate Guidelines range, which it treats as 'the starting point and the initial benchmark' for sentencing." United States v. Akhigbe, 642 F.3d 1078, 1084 (D.C. Cir. 2011) (quoting Gall, 552 U.S. at 49). "Then, after giving both parties an opportunity to argue for whatever sentence they deem appropriate," the court considers all of the sentencing factors listed in 18 U.S.C. Â§ 3553(a)*fn4 and undertakes "an individualized assessment based on the facts presented." Id. (citing Gall, 552 U.S. at 49-50).
I. VIOLATION OF THE SIXTH AMENDMENT RIGHT TO TRIAL
This prosecution arose out of the Jack Abramoff lobbying scandal that first came to light in early 2004. Between 2005 and 2009, Abramoff, along with his fellow lobbyists from Greenberg Traurig-Michael Scanlon, Neil Volz, Todd Boulanger, and Tony Rudy-pled guilty to participating in an influence-peddling and bribery scheme whereby they provided travel, meals, tickets to sporting events, and other things of value to federal public officials, with the expectation that these officials would, in turn, perform official acts on behalf of the lobbyists' clients on an "as-needed" basis. Some of the public officials, including Ann Copland (staffer to Sen. Thad Cochran), John Albaugh (chief of staff to Rep. Ernest Istook), Mark Zachares (aide to Rep. Don Young), former Congressman Robert Ney, and William Heaton (Ney's chief of staff), also pled guilty to honest services fraud for their role in the scheme.
The Guidelines calculations for each of these defendants are detailed in Appendix A. Each of the public official defendants pled guilty to honest services fraud, and for each, the government entered into a plea agreement stipulating to an applicable base offense level under the 2003 Guidelines*fn5 of 10 (under Â§2C1.7) plus 8 levels for an offense involving an "elected or high-level decision-making official" (per Â§2C1.7(b)(1)(B)) for a total offense level of 18, prior to adjusting for role in the offense or acceptance of responsibility. In addition, Heaton and Zachares received 5K1.1 letters in recognition of their cooperation with government investigators. The government's sentencing recommendations for this group of defendants ranged from six months of home confinement (for William Heaton) to 27 months incarceration for Bob Ney, who was the only elected official charged in this conspiracy and the only one of the many co-conspirators who pled but did not cooperate with the government.*fn6
Each of the Greenberg Traurig lobbyist defendants (except for Scanlon and Abramoff) entered into similar plea agreements with the government, whereby Guideline Â§2C1.*fn7 and an 8-level "elected official" enhancement was used, resulting in a total offense level of 18 prior to adjustments, including a 3-point reduction for acceptance of responsibility. Of these, only Volz has been sentenced as of this date-the government recommended a sentence "at the low end" of 4-10 months of home confinement. Without taking into account the 5K1.1 letter they are expected to receive for their cooperation, Rudy and Boulanger have agreed to Guidelines calculations that expose them to 24-30 months incarceration and 18-24 months incarceration, respectively.
Scanlon and Abramoff faced higher sentencing ranges under the Guidelines, having been convicted of multiple counts including a kickback conspiracy to defraud Abramoff's clients known as "Gimme Five." Scanlon's Guidelines range (including a 3-level reduction for acceptance of responsibility) was 51-63 months, while Abramoff faced a range of 108-135 months. The government recommended a sentence of 24 months for Scanlon and an effective sentence of 39 months for Abramoff,7 having given both 5K1.1 letters for their cooperation.
As Ring points out, the government now advocates for a Guidelines methodology that it has never asked for before (and that the Court has not previously employed) with respect to calculating the sentences of his co-conspirators. The government urges the Court to apply the cross reference found at Â§2C1.7(c)(4) and sentence defendant under the bribery guideline, Â§2C1.1-something it has done only for Abramoff and Scanlon (who, unlike Ring, were actually charged with conspiracy to commit bribery in violation of 18 U.S.C. Â§ 201(b)). (See Dkt. No. 257 at 2.) For each of the other co-conspirators charged with honest services fraud, the government advocated for a Guidelines calculation pursuant to Â§2C1.7.
In addition, the government is not seeking to apply the 8-level elected-official enhancement that it applied to the other co-conspirators, including Scanlon and Abramoff. *fn8
Instead, it advocates for a 20-level enhancement based on the benefits received by the lobbyists' clients in exchange for the bribes provided to public officials, or in the alternative, a 16-level enhancement based on the value of the bribes paid to the public officials. (See id. at 6-19.)
Defendant's position is that the government is retaliating against him for exercising his Sixth Amendment right to trial. It is easy to see why such an inference might be justified, since the government's new methodology for calculating defendant's offense level (prior to adjustments for role in the offense and obstruction of justice) would result in a Guidelines sentence of between 121 and 151 months-nearly nine years longer than it would otherwise have been. Even assuming that the Â§2C1.1 cross reference applies, the use of the 20-level "value of benefits received" enhancement in lieu of the 8-level "elected official" enhancement translates into an eight-year difference in the ultimate sentence. Indeed, the government's position is that Ring's total offense level (37) should be the highest of all participants in the conspiracy, despite the fact that Abramoff (whose offense level was 34, not including acceptance of responsibility) and Scanlon (whose offense level was 27, not including acceptance of responsibility) were clearly more culpable.
The notion that an ostensibly objective system of sentencing guidelines can produce such wildly varying results for essentially the same offense conduct is deeply troubling, and indeed, as Ring argues, if the Guidelines are "subject to manipulation" in this fashion, it would mock the very consistency the Guidelines were meant to impose on such elementary concepts as "offense level." (Dkt. No. 258 at 5.)
The government's first line of response is to argue that Ring is not similarly situated to his co-conspirators, because "he is the only lobbyist who went to trial and chose not to plead guilty and cooperate with the United States."*fn9 (Tr. 8/30/11 5:21-22.) Taken at face value, this position could have a noticeable chilling effect on the exercise of one's right to a jury trial. While disparities in the ultimate sentence that result from cooperation "are not unreasonable," and it is "constitutionally prop[er]" for the government to "[f]ail to afford leniency to those who have not demonstrated those attributes on which leniency is based," United States v. Carter, 560 F.3d 1107, 1121 (9th Cir. 2009), the government cannot retaliate against defendant for exercising his rights. United States v. Mazzaferro, 865 F.2d 450, 460 (1st Cir. 1989). The Guidelines contain numerous provisions that account for leniency to be afforded to those who plead guilty or cooperate with the government. Prosecutors may bring fewer or different charges.*fn10 "Absent malfeasance, the Judiciary has nothing to say about charge bargaining and, quite appropriately, it says nothing." *fn11 Berthoff v. United States, 140 F. Supp. 2d 50, 61-62 (D. Mass. 2001), aff'd on other grounds, 308 F.3d 124 (1st Cir. 2002).*fn12 At sentencing, Â§3E1.1 provides for up to a 3-level reduction for defendants who clearly demonstrate acceptance of responsibility or who timely notify the government of their intention to plead guilty. The government can agree to cooperation agreements with defendants, and defendants who provide information concerning the unlawful activities of others under such agreements may be protected from having the "full" extent of their offense conduct used against them. Â§1B1.8(a). Most significantly, cooperating witnesses who provide "substantial assistance" to the government may be rewarded with leniency in the form of a Â§5K1.1 letter permitting the court to downwardly depart from the Guidelines.*fn13
The leniency that results from such cooperation can be dramatic. Jack Abramoff's offense level prior to accounting for acceptance of responsibility under Â§3E1.1 was 34, corresponding to a Guidelines range of 151-188 months.*fn14 Combining the Â§5K1.1 letter with the 3-level reduction for acceptance of responsibility, the government's leniency took the form of a recommended sentence at least 112 months shorter than it would have been had Abramoff gone to trial and been found guilty, a 75 percent reduction. Neil Volz faced an offense level of 18-a Guidelines range of 27 to 33 months. The government recommended a sentence "at the low end" of the sentencing range for an offense level of 9 or approximately four months. The government's leniency toward Volz thereby reduced his sentence by at least 85 percent-again, in a manner explicitly permitted by the Guidelines.
The government's argument that it has unlimited freedom to afford "leniency" to those who plead guilty and that this does not amount to a penalty for the exercise of a defendant's constitutional right to stand trial is unpersuasive. For, as even the government admits, what it cannot do is "calculate the Guidelines based on whether or not someone went to trial." (Tr. 8/30/11 6:17-18.) Employing a dramatically different methodology for calculating the Guidelines range of those who plead guilty would be a form of "leniency," to be sure, but arguably not permissible under the Guidelines.*fn15
If accepted, the government's position would undermine the very purpose of the Guidelines, and give prosecutors even more power over sentencing than is already the case. "Congress enacted the sentencing statutes in major part to achieve greater uniformity in sentencing, i.e., to increase the likelihood that offenders who engage in similar real conduct would receive similar sentences." Booker, 543 U.S. at 255 (Remedial Op., Breyer, J.). The Guidelines vindicate this principle in a number of ways. Judges are required and empowered to take into account not only the charges actually brought by the government, but any relevant conduct (including uncharged or acquitted conduct) occurring during the commission of the charged offense as well. U.S.S.G. Â§1B1.3. In addition, the Guidelines require plea agreements to "set forth the relevant facts and circumstances of the actual offense conduct and offender characteristics," id. Â§ 6B1.4(a)(1), and forbid parties from "stipulat[ing] to misleading or nonexistent facts" in plea agreements, "even when both parties are willing to assume the existence of such 'facts' for purposes of the litigation." Id. Â§ 6B1.4 cmt.; accord id. Â§ 6B1.4(a)(2) (stipulations of fact accompanying plea agreements "shall . . . not contain misleading facts"). Arguably, this system does not permit the calculation of offense levels using one methodology for defendants who plead guilty, but a dramatically different one for the "only lobbyist who went to trial and chose not to plead guilty and cooperate with the United States." (Tr. 8/30/11 5:21-22.) For to do so raises the specter that a defendant has been impermissibly retaliated against for exercising his constitutional right to stand trial. See Mazzaferro, 865 F.2d at 460 ("The law is clear beyond peradventure that a sentence based on retaliation for exercising the constitutional right to stand trial is invalid."); United States v. Rolfsema, 468 F.3d 75, 79 (1st Cir. 2006) ("[T]he Government may not vindictively seek to raise a defendant's sentence solely because of that defendant's exercise of a constitutional right."); Carter, 460 F.3d at 1121 (government may afford leniency to those who enter pleas "so long as there is no indication the defendant has been retaliated against for exercising a constitutional right").
But, as explained herein, the Court need not decide whether the granting leniency in this fashion represents an unconstitutional burden on defendant's right to trial by jury. Since the hearing before the Court, the government has somewhat retreated from what one might view as an absolutist position, and now argues that Ring is dissimilar from his co-conspirators "both factually and legally." (Dkt. No. 274 at 6-7.) Specifically, the government argues that between the time the plea agreements were signed with Ring's co-conspirators (late 2005 through 2009) and now, there have been significant changes both in the controlling law, see United States v. Skilling, 130 S. Ct. 2896 (2010), as well as in the relevant facts learned by the government over the course of the investigation.*fn16
Defendant appears to agree that a material change in the law or facts would justify a change in sentencing methodology. (See Tr. 8/30/11 33:17-34:3 ("[T]o the extent that the government learns new facts, . . . then that might be an appropriate reasons to change the Guidelines calculation. To the extent that the government-the government learns of new authority, like Skilling that fundamentally changes the calculus, that might be an appropriate ground to vary the guideline calculation.")). Ring disagrees, however, with the suggestion that the government's prior "sentencing calculations were based on a universe of information that did not include the issues that drive its [current] position." (Dkt. No. 272 at 5.)
Ring argues that the government was free to advocate in favor of the bribery cross-reference for Albaugh, who the government argued had breached his plea agreement and whose sentence occurred post-Skilling. (Dkt. No. 258 at 2-3; Dkt. No. 274 at 5.) The fact that it did not, according to defendant, belies the government's claim that it has changed its sentencing methodology due to the Skilling decision. Likewise, Ring notes that the government did not seek to enhance Albaugh's sentence pursuant to Â§2C1.1(b)(2)(A) by referencing the total amount of appropriations sought by Ring, despite the fact that these amounts were known to the government at that time and specified in the factual basis for Albaugh's plea. (See Albaugh Factual Proffer Â¶12(i).) In addition, defendant contends that the government was aware of all relevant facts at least by the time Abramoff was sentenced in August 2008, when it stated to the Court that it remained "confident that [Abramoff's] plea agreement and factual basis reflect substantially all of the fraudulent conduct which we have found Abramoff to have engaged in." United States v. Abramoff, 06-001 (D.D.C. Aug. 27, 2008), Dkt. No. 33 at 9.
The first issue is simple to resolve: the law surrounding honest services fraud changed dramatically in June 2010 when the Supreme Court decided Skilling. (See infra Part II.A.) This change in the law justifies the use of the Â§2C1.1 cross-reference, as well as the decision by the government to argue in favor of the 20-level "value of the benefits received" enhancement previously unavailable to it under Â§2C1.7.*fn17
The fact that the government did not adopt this position during Albaugh's sentencing is of no moment, given that the government had agreed pre-Skilling to a sentencing calculation pursuant to Â§2C1.7 in Albaugh's plea. Nor was the government, as Ring contends, "releas[ed] from the constraints of th[is] agreement's preliminary guidelines calculations." (Dkt. No. 272 at 5.) At sentencing, the government argued only that Albaugh failed to meet his obligations pursuant to paragraph 8(b)(ii)-(iv) of the Plea Agreement by "challenging the adequacy or sufficiency of the United States' offer of proof" against him, "den[ying] involvement in the offense," and by "giv[ing] conflicting statements about [his] involvement." (See supra note 17.) These actions allowed the government to oppose any adjustment for acceptance of responsibility under the terms of the plea agreement itself. The government at no time challenged the validity of the remainder of Albaugh's plea agreement.
The government's second argument is highly relevant to its decision to argue in the alternative for a 16-level enhancement for defendant based on the value of the bribes, rather than employing the 8-level elected-official enhancement it had so consistently utilized in the past. (See supra Part I; Attachment A). Because the Court must use the greater of the two enhancements, prior representations by the government that the 8-level elected-official enhancement applied or was "greater than any adjustment which might otherwise have applied based on value under Â§2C1.7(b)(1)(A)" (see Albaugh Plea Agreement Â¶ 8(a); Boulanger Plea Agreement Â¶ 9(a)), necessarily mean that the government once believed the ascertainable value of corrupt payments in this conspiracy totaled less than $120,000.*fn18 See U.S.S.G. Â§Â§ 2C1.7(b)(1)(A) & 2B1.1(b)(1). As noted above, the government used this calculation for Ney, Heaton, Zachares, Albaugh, and all of the lobbyist defendants, including most notably Scanlon and Abramoff. Moreover, the government has relied on the elected-official enhancement as recently as January 2009, when it entered into a plea agreement with Todd Boulanger. Only now, after trying Mr. Ring on two occasions, does the government claim to have estimated the amount of corrupt payments, arriving at a total value exceeding $1 million. The practical effect of this change is an 8-level increase in Ring's offense level, resulting in a Guidelines range (excluding role in the offense and obstruction enhancements) that is more than six years longer than would be the case if the 8-level increase were to be applied.
The fact that the government may properly take into account new facts it has learned in the years since Ring's co-conspirators plead guilty does not mean that it may engage in fact bargaining. As previously explained, the Guidelines provide prosecutors with ample tools to afford leniency to those who have demonstrated the attributes on which leniency is based. See Carter, 560 F.3d at 1120-21. The government may not, however, mislead the court, even if it has promised a defendant it will do so as a reward for pleading guilty or for cooperation.
Our system of sentencing is in part designed to ensure that sentences are based upon "the real conduct that underlies the crime of conviction." Booker, 543 U.S. at 250 (Remedial Op., Breyer, J.). "One of the principal reasons for this, as expressed by the Court, is to prevent prosecutors, when they make charging decisions, from 'exercis[ing] a power the Sentencing Act vested in judges.'" United States v. Stewart, 590 F.3d 93, 161 n.13 (2d Cir. 2009) (Calabresi, J. concurring) (quoting Booker at 257). Plea agreements must therefore "set forth the relevant facts and circumstances of the actual offense conduct and offender characteristics" and may "not contain misleading facts." U.S.S.G. Â§6B1.4(a)(1), (2). The end result is that under the Guidelines, prosecutors therefore may not "swallow the gun"-that is, "hide evidence from the sentencing judge if defendant pleads guilty but regurgitate it where the plea deal f[alls] through." United States v. West, 552 F. Supp. 2d 74, 77 (D. Mass. 2008); accord United States v. Salazar, 983 F.2d 778, 784 (7th Cir. 1993). Even where Â§1B1.8*fn19 applies, and the government is thereby permitted under the Guidelines to advocate for a sentence based on "facts" that do not capture a defendant's true offense conduct, "[t]his provision does not authorize the government to withhold information from the court." Â§1B1.8 cmt. n.1. Others have noted, however, that while the Guidelines may proscribe fact bargaining, they do not prevent it in practice. See Booker, 543 U.S. at 290 (Remedial Dissent, Scalia, J.) ("[T]he premise on which the Court's argument is based-that the guidelines as currently written prevent fact bargaining and therefore diminish prosecutorial power-is probably not correct. As one commentator has noted: '[P]rosecutors exercise nearly as much control when guidelines tie sentences to so-called 'real-offense' factors . . . . One might reasonably assume those factors are outside of prosecutors' control, but experience with the Federal Sentencing Guidelines suggests otherwise; when necessary, the litigants simply bargain about what facts will (and won't) form the basis for sentencing.'" (quoting Stuntz, Plea Bargaining and Criminal Law's Disappearing Shadow, 117 Harv. L. Rev. 2548, 2559-2560 (2004) (omission in original).).*fn20
Ultimately, however, attempting to resolve the question of precisely what facts the prosecutors knew at the time of the plea raises serious separation-of-powers and prosecutorial discretion concerns. See, e.g., Scott, 631 F.3d at 406-07. Moreover, such an exercise would pose challenging evidentiary issues given the number of prosecutors and defendants involved in this conspiracy. In criminal cases involving plea agreements, the Court and the probation office are frequently at the mercy of the parties to disclose and explain the relevant facts. As a result, the Court may not always get a full picture of the defendant's offense conduct, nor does it have the means to learn the information on its own.*fn21 Also, assuming that such a delicate exercise could be conducted, and the Court could somehow determine that the government had failed to disclose relevant information in the plea agreements or sentencing memoranda of Ring's co-conspirators, such a conclusion arguably would serve only to identify weaknesses in the Guidelines calculations for prior sentences. See United States v. Yeje-Cabrera, 430 F.3d 1, 27 (1st Cir. 2005) (The ...