United States v. Robert Morales, Sr.

Robert Morales, Sr., appeals his sentence following his guilty plea to multiple counts of various crimes arising out of corrupt practices Morales engaged in while an employee of the Internal Revenue Service. The crimes involved many transactions over a period of years ending when Morales was terminated from his employment in March of 1990.

The principal questions in this appeal pertain to his guilty plea to conspiracy to defraud the United States, Count 1, and to his conviction for bribery in violation of 18 U.S.C. § 201 (1988), Count 3.

Appellant first maintains that a two-level enhancement of his sentence for bribery pursuant to Federal Sentencing Guideline 2Cl.l(b)(l) constituted an ex post facto application of the Guidelines. That Guideline provision mandates a two-level increase in the base offense level if the offense “involved more than one bribe.” That Guideline provision became effective November 1, 1989. The appellant contends that while he engaged in many bribery transactions, only one bribe occurred after the effective date of that Guideline. One of appellant’s schemes involved receipt of payments in return for helping Mario Saikhon evade fourteen million dollars in…

concurring in part and dissenting in part:

Because I believe the majority opinion fails to perceive the Ex Post Facto Clause implications of the enhanced sentence imposed on Morales, I must respectfully dissent.

Implicit in the majority’s approach to Morales’s challenge to the length of his sentence is the idea that he actually committed, and was sentenced for, one, big ongoing offense. Given the premise, I would agree with the majority’s conclusions. If all of Morales’s conduct can be characterized as components of a single continuing offense, then surely his “offense” occurred after the effective date of the 1989 amendments and “involved more than one bribe,” justifying application of the *919 section 201.1(b)(1) enhancement. Just as surely, there could have been no error in lumping together all the losses caused by his offense and assessing them by reference to the November 1989 fraud loss table.

The premise upon which the majority proceeds becomes clearly exposed in its discussion of the sentencing on the group formed by Count 1, for conspiracy, and Count 3, for official corruption, which it refers to as “the bribery offenses”:

Op. at 917 (citations omitted).

Alas, this…

11 F.3d 915 UNITED STATES of America, Plaintiff-Appellee, v. Robert MORALES, Sr., Defendant-Appellant. No. 92-50279. United States Court of Appeals, Ninth Circuit. Argued March 2, 1993. Submission Deferred March 2, 1993. Resubmitted March 18, 1993. Decided Dec. 10, 1993. Philip Halpern, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee. Eugene G. Iredale, San Diego, CA, for defendant-appellant. Appeal from the United States District Court for the Southern District of California. Before: SCHROEDER, THOMPSON, and O'SCANNLAIN, Circuit Judges. SCHROEDER, Circuit Judge: 1 Robert Morales, Sr., appeals his sentence following his guilty plea to multiple counts of various crimes arising out of corrupt practices Morales engaged in while an employee of the Internal Revenue Service. The crimes involved many transactions over a period of years ending when Morales was terminated from his employment in March of 1990. 2 The principal questions in this appeal pertain to his guilty plea to conspiracy to defraud the United States, Count 1, and to his conviction for bribery in violation of 18 U.S.C. Sec. 201 (1988), Count 3. 3 Appellant first maintains that a two-level enhancement of his…