Brian Ridenour v. Boehringer Ingelheim Corp.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1037
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Robert Paul Bossany, Jr. *
*
Appellant. *
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Submitted: March 12, 2012
Filed: May 1, 2012
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Before MURPHY, ARNOLD, and GRUENDER, Circuit Judges.
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ARNOLD, Circuit Judge.
Robert Bossany pleaded guilty to money laundering, see 18 U.S.C.
§ 1956(a)(1)(B)(i), and conspiring to commit honest-services mail fraud, see
18 U.S.C. § 1346. The district court sentenced him to two 90-month prison terms to
be served concurrently. Mr. Bossany challenges his sentence on appeal, contending
that the court erred by denying him an acceptance-of-responsibility reduction under
U.S.S.G. § 3E1.1 and by sentencing him above the 60-month maximum for the
conspiracy offense. We affirm.

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I.
Mr. Bossany worked as a purchasing manager for Best Buy stores, which sells
electronics and services computers. In this position, he assisted one of the vendors,
Chip Factory, Inc., in defrauding his employer. Best Buy obtained computer parts for
its service department by using the Parts Procurement Network (PPN), an online
reverse bidding system that was administered by National Parts (NP). Under the
system, Best Buy identified the parts that it needed, NP posted them online, and
vendors that had the parts placed bids by listing their prices; the PPN then awarded
the order to the lowest bidder. In 2003, Chip Factory, through Russell Cole, company
president, and his wife, Abby Cole, owner, began exploiting a defect in the PPN: The
company placed false low bids to obtain orders and then entered the online system to
increase the price; Best Buy then paid invoices that were based on the higher price.
In 2007, Best Buy executives discovered that Chip Factory's total invoices exceeded
its bids by over 25 million dollars and contacted law enforcement.
Mr. Bossany knew about Chip Factory's scheme, though he was unaware of its
magnitude, and he assisted the Coles in concealing and furthering the fraud. In 2004,
for example, he warned Mr. Cole not to submit any "dollar bids" (false low bids)
during a particular time period because he (Mr. Bossany) would be out of the office
and his supervisor would be monitoring the account. Whenever NP and Mr Bossany's
superiors raised questions about Chip Factory's pricing, he promised to "take care of
it" but instead notified Mr. Cole of the inquiry and suggested how to avoid arousing
suspicion in the future. Mr. Bossany also shared confidential company information
with Mr. Cole to further the scheme. In return for Mr. Bossany's efforts, the Coles
sent checks, cash, and gift cards to his home address and gave him a motorcycle and
an ATV. Mr. Bossany accepted the money and gifts as compensation for his part in
the conspiracy and said nothing about them to his superiors.
During a criminal investigation of Mr. Bossany's participation in the scheme,
he agreed to cooperate. He wore a recording device to nineteen meetings with
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Mr. Cole and thereby obtained incriminating statements that the government used to
prosecute the Coles. Mr. Bossany also met at least eight times with government
agents after his guilty plea, providing them with information about the scheme,
including his acceptance of bribes for concealing the Coles' activities. In his plea
agreement and at his guilty-plea hearing, he acknowledged that he had conspired with
Mr. Cole and Chip Factory and, in return, received money and gifts from the Coles.
Nor did he dispute a similar account of his criminal activities that appeared in the
presentence investigation report, which the sentencing court accepted as true.
The judge who sentenced Mr. Bossany presided over the the Coles' trial, in
which Mr. Bossany testified as a government witness. He admitted on direct
examination that he had "covered up" the fraud, provided Mr. Cole with confidential
information, and accepted the money and gifts in return for participating in the
conspiracy. But Mr. Bossany's testimony changed on cross- and re-cross-
examination: He denied knowing about Chip Factory's bid-to-invoice variances and
then agreed with defense counsel that he surely could not have "covered up"
something that he was unaware of. He also testified that he had treated Chip Factory
as he believed Best Buy would have wanted him to. And he denied that the gifts and
payments from Mr. Cole were bribes or related in any other way to his helping with
the fraud. Despite Mr. Bossany's change in testimony, the jury convicted the Coles.
At sentencing, the court noted that it had observed Mr. Bossany's testimony at
the Coles' trial and had "no doubt" that he committed perjury on cross-examination.
Therefore the court, as the government requested, imposed an enhancement for
obstruction of justice, see U.S.S.G. § 3C1.1, and refused a reduction for acceptance
of responsibility, see U.S.S.G. § 3E1.1. It calculated Mr. Bossany's sentencing range
as 151 to 188 months, but then credited him for helping the government and imposed
concurrent 90-month sentences.
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II.
Mr. Bossany maintains that the court erred by denying him an acceptance-of-
responsibility reduction. Under U.S.S.G. § 3E1.1(a), he had the burden to show that
he "clearly demonstrated acceptance of responsibility." Id. "Whether the defendant
accepted responsibility is a factual question that depends largely on credibility
assessments," and the district court's finding that Mr. Bossany did not accept
responsibility "is entitled to great deference." United States v. Spurlock, 495 F.3d
1011, 1014 (8th Cir. 2007), cert. denied, 552 U.S. 1054 (2007). We reverse such a
finding "only if it is so clearly erroneous as to be without foundation." Id.
On appeal, Mr. Bossany does not challenge his enhancement for obstruction
of justice, an enhancement that "ordinarily indicates that the defendant has not
accepted responsibility for his criminal conduct." U.S.S.G. § 3E1.1 cmt. n.4; see
United States v. Hull, 646 F.3d 583, 588 (8th Cir.2011). Mr. Bossany notes the
general rule, but he argues that he showed "extraordinary circumstances" that made
him eligible for a reduction for accepting responsibility despite his obstruction
enhancement. See U.S.S.G. § 3E1.1 cmt. n.4. The guidelines recognize that in an
"extraordinary case," a defendant may qualify for the reduction, despite having
obstructed justice. Id. But those cases are "extremely rare and highly exceptional,"
United States v. Honken, 184 F.3d 961, 970 (8th Cir.1999), cert. denied, 528 U.S.
1056 (1999), and we see nothing exceptional in this case that compels a finding of
acceptance of responsibility despite Mr. Bossany's perjury. The court found that his
repeated false statements at a crucial point in the case were "all direct repudiations
of his own guilt." The perjured testimony went to the heart of acceptance of
responsibility, and the court did not clearly err in finding that he did not "clearly
demonstrate" his willingness to take responsibility for his criminal conduct. See
U.S.S.G. § 3E1.1.
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III.
Mr. Bossany contends for the first time on appeal that his 90-month sentence
for conspiracy exceeds the five-year (60-month) statutory maximum, see 18 U.S.C.
§ 3742(f)(1), and we agree. The district court notified Mr. Bossany of the five-year
maximum at his guilty-plea hearing, but at sentencing mistakenly imposed a 90-
month prison term for both counts. During the sentencing hearing, the court
explained its decision to impose a below-guidelines sentence of 90 months because
of Mr. Bossany's assistance to the government. It then followed guideline directions
that apply unless "otherwise required by law" and imposed a concurrent sentence
equal to the "total punishment" for each count. Neither the court nor the parties
pointed out that a sentence of no more than 60 months was "otherwise required" for
conspiracy, which had a so-called "guideline range" of 60 months. U.S.S.G.
§§ 5G1.2(b), 5G1.1(a); see 18 U.S.C. § 1346. Because Mr. Bossany did not raise the
issue in the district court, we review for plain error only; under this standard, we may
correct an error only if it is plain, affects substantial rights, and "seriously affects the
fairness, integrity, or public reputation of judicial proceedings." United States v.
Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc) (quoting Johnson v. United
States, 520 U.S. 461, 466-67 (1997)).
Though the error is plain, we conclude that it did not affect Mr. Bossany's
substantial rights by "prejudicially influenc[ing] the outcome of the district court
proceedings," United States v. Maynie, 257 F.3d 908, 919 (8th Cir. 2001). Regardless
of the error, Mr. Bossany would have been sentenced to 90 months in prison because
the court imposed an identical prison term for money laundering, which has a 240-
month maximum. Although we think that the mere presence of of an excessive
sentence in a defendant's record has the potential of causing prejudice, we have held
that an illegal sentence alone does not establish the prejudice necessary for plain error
relief: For example, we have held that a defendant's substantial rights are not affected
by sentences that exceed the maximum authorized by jury findings (and thus violate
the Sixth Amendment), if the district court "could have" imposed legal sentences on
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those counts and used consecutive sentences (rather than concurrent) to achieve the
same "total punishment" under U.S.S.G. § 5G1.2(d). See United States v. Diaz,
296 F.3d 680, 683-85 (8th Cir. 2002) (en banc), cert. denied, 537 U.S. 940 & 1095
(2002); United States v. Gillon, 348 F.3d 755, 758 (8th Cir. 2003), cert. denied,
541 U.S. 968 (2004). We think that these cases require Mr. Bossany to show that,
absent the error, the court could not have imposed 90 months' imprisonment as his
total punishment, which, of course, he cannot do since the court legally imposed that
sentence on another count. We must therefore deny plain error relief.
Because we conclude that Mr. Bossany cannot establish the prejudice necessary
for plain error, we deny his request that we remand for resentencing on his conspiracy
conviction. See United States v. Gray, 332 F.3d 491, 492 (7th Cir. 2003), cert.
denied, 540 U.S. 993 (2003).
We affirm the judgment of the district court.
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