United States of America, Appellee, v. Stuart Ziglin, Appellant, 964 F.2d 756 (8th Cir. 1992)

Mary P. Schroeder, St. Louis, Mo., argued (Raymond A. Bruntrager, on brief), for appellant.

James E. Crowe, St. Louis, Mo., argued, for appellee.

Before McMILLIAN, BOWMAN, Circuit Judges, and EISELE,^*  Senior District Judge.

BOWMAN, Circuit Judge.

Stuart Ziglin appeals from the sentence imposed by the District Court¹  following his guilty pleas on one count of conspiracy to bribe a public official in violation of 18 U.S.C. §§ 201(b) (1), 371 (1988) and one count of bribing a public official in violation of 18 U.S.C. § 201(b) (1). We affirm.

Ziglin's claim that the District Court erred in applying the 1989 amendments to the Sentencing Guidelines to his conspiracy conviction is baseless. The initial draft of the Presentence Report covering the conspiracy conviction ("Report") included a related conduct increase in Ziglin's offense level based on a section added to the Guidelines by the 1989 amendments. The conduct in question related to the conspiracy conviction was concluded by April 30, 1989, before the November 1, 1989, effective date of the 1989 amendments. After Ziglin's objection, the final version of the Report was changed to reflect this fact. The addendum to the Report did state that "this issue can be considered an aggravating circumstance which might warrant departure." Addendum to Presentence Report for Docket No. 90-00161CR(3) at 2, reprinted in Appellant's Appendix at 25, 26. The District Court, however, did not consider an upward departure, but instead granted a downward departure. Ziglin's assertion that the 1989 Guideline amendments erroneously were applied retroactively with respect to this issue is without merit.

Ziglin next objects to the fact that two presentence reports were prepared in this case, instead of one report that would have grouped the two convictions. We fail to see how Ziglin was harmed by this alleged error. The Report noted the sentences to be imposed should comply with the grouping provisions of the Guidelines, as the criminal conduct underlying the two convictions was viewed as one ongoing scheme. The Report also indicated that the sentences should run concurrently. On the bribery conviction, Ziglin received a twenty-one month sentence to run concurrently to the twenty-four month sentence he received as a result of his conspiracy conviction. He thus received the same sentence he would have received had the two convictions been covered in one presentence report. Accordingly, we find no prejudicial error in the manner in which Ziglin was sentenced.

Next, Ziglin challenges the eleven-level increase in his offense level given pursuant to United States Sentencing Commission, Guidelines Manual, § 2C1.1(b) (1) (Nov.1987). Section 2C1.1(b) (1) utilizes the offense level chart of U.S.S.G. § 2F1.1(b) (1) when the value of the benefit to be received as a result of the bribe exceeds $2,000. Section 2F1.1(b) (1) (J) of the 1987 Guidelines establishes a nine-level increase if the value of the action to be received is between $1,000,001 and $2,000,000. Apparently, however, Ziglin's offense level increase was computed according to the 1989 Guidelines, which provide for an eleven-level increase when the benefit to be received is greater than $800,000 and less than $1,500,000. U.S.S.G. § 2F1.1(b) (1) (L) (Nov.1989). Ziglin, however, has not objected to this apparently erroneous retroactive application of the 1989 Guidelines to the value of the action to be received as a result of the bribery scheme, and so we decline to require the District Court to re-sentence him as this apparent error does not result in a miscarriage of justice and thus is not plain error.²  See United States v. Ybabez, 919 F.2d 508, 510 (8th Cir. 1990), cert. denied, --- U.S. ----, 111 S. Ct. 1398, 113 L. Ed. 2d 454 (1991).