United States of America v. Herschell Lyon Becker

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HERSCHELL LYON BECKER,
Defendant-Appellant.
No. 16-30254
D.C. No. 3:15-cr-00021-SLG-1
MEMORANDUM*
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN ASHFORD BECKER, AKA Jack
Becker,
Defendant-Appellant.
No. 16-30256
D.C. No. 3:15-cr-00021-SLG-2
On Appeal from the United States District Court
for the District of Alaska,
Judge Sharon L. Gleason, Presiding
Argued and Submitted June 13, 2018
Anchorage, Alaska
Before: THOMAS, Chief Judge and CALLAHAN and BEA, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JUL 30 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Herschell and John Becker were charged with bribery in violation of 18
U.S.C. § 201(b)(1) when they attempted to bribe an Air Force officer to accept
deficient work that the Beckers’ company had performed at Joint Base Elmendorf
Richardson near Anchorage, Alaska. Herschell Becker pleaded guilty to three
counts of bribery in violation of 18 U.S.C. § 201(b)(1) and was sentenced to 48
months imprisonment. Following a jury trial, John Becker was convicted of two
counts of bribery in violation of 18 U.S.C. § 201(b)(1) and was sentenced to 24
months imprisonment.
The Beckers jointly appeal their sentences.1 We apply a three-pronged
standard of review to sentencing decisions under the Sentencing Guidelines. United
States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017). We review the district
court’s identification and interpretation of the applicable Guidelines provisions de
novo, the district court’s factual findings for clear error, and the district court’s
application of the Guidelines to the facts it has found for an abuse of discretion. Id.
1. The district court did not err in calculating the amount of loss the Beckers
intended to inflict for purposes of sentencing. The district court determined that the
government did not suffer an actual loss as a result of the Beckers’ conduct, but
correctly proceeded to determine if the Beckers had intended to inflict a loss on the
1 Neither Appellant contests his guilt on appeal.

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government. See U.S.S.G. § 2C1.1(b)(2); Application Note 3 to U.S.S.G. § 2C1.1;
Application Note 3(A) to U.S.S.G. § 2B1.1. Next, the district court reasonably
concluded that the Beckers subjectively intended to cause the government to accept
their deficient work and, thus, subjectively intended to cause a “loss” equal to the
cost to bring the Beckers’ deficient work into compliance with the Air Force’s
standards. The district court rejected the Beckers’ estimates of the cost to fix their
work and accepted the testimony proffered by the government: that it would cost
$850,000 to remedy the deficiencies with the Beckers’ work. Contrary to the
Beckers’ arguments, the district court’s order reflects that it carefully considered the
evidence submitted by the Beckers and took their subjective knowledge and intent
into account. As a result, we find no error in the district court’s determination that
the Beckers intended to inflict a loss of $850,000.
2. The district court did not abuse its discretion in sentencing Herschell Becker
to 48 months, a downward departure from the Guidelines range of 57 to 71 months.
The district court reasonably weighed the relevant mitigating and aggravating factors
in arriving at its sentencing decision.
3. The district court did not abuse its discretion in sentencing John Becker to
24 months, a downward departure from the Guidelines range of 51 to 63 months.
The district court reasonably weighed the relevant mitigating and aggravating factors
in arriving at its sentencing decision.

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AFFIRMED.

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