A former Lake County sheriff convicted of wire fraud and bribery will not have his 12-plus-year federal prison sentence reduced after the 7th Circuit Court of Appeals rejected his appeal.
The 7th Circuit affirmed John Buncich’s sentence on Monday, finding the U.S. District Court for the Northern District of Indiana, Hammond Division, didn’t err when it ordered the ex-sheriff to serve 151 months behind bars.
Buncich served as sheriff from 1995 to 2002 and was elected to a third, four-year term beginning in 2011, then another beginning in 2015. Before taking office again, Buncich put together a list of around 12 towing companies and assigned them to defined geographic territories, some of which were more lucrative than others.
Throughout Buncich’s time in office, towing companies paid him to ensure that they remained on the tow list. Many of those payments were made through Chief of Police Timothy Downs, who reported to Buncich, using campaign fundraiser tickets to facilitate the scheme. Downs delivered fundraiser tickets to towing company owners, who paid for them by check or cash.
Other towing company owners purchased tickets from different police officers or dealt with Buncich directly, while some towing company owners who failed to purchase their full allotments of tickets found that their assigned territories had been reduced.
Buncich was convicted of five counts of wire fraud and one count of bribery in 2017. In January 2018, a federal judge handed down a 15-year sentence.
In 2019, the 7th Circuit overturned Buncich’s convictions for the first three wire fraud counts due to insufficient evidence but affirmed the convictions for the other three counts and remanded to the district court for resentencing.
Before resentencing in 2020, a probation officer filed an addendum to a presentence report asserting the reversal on the first three counts had no effect on the original guideline calculation, so 151 to 188 months remained the correct range. In response, Buncich submitted another sentencing memorandum arguing he should be sentenced to time served followed by home detention due to his age, poor health, and vulnerability to COVID-19.
Buncich also argued the government’s proposed sentence would be disparately severe as compared to those imposed on other bribery and public corruption defendants both nationally and in the circuit. Finally, he restated his view that the guideline calculation was improper because the government had failed to show any actual benefit to Willam Szarmach of CSA Towing and Scott Jurgensen of Samson Relocation & Towing.
The district court rejected Buncich’s arguments and again adopted the position of the probation officer and the factual content of the presentence report. Reiterating that it had considered the mitigation arguments and all the other factors mentioned during the first sentencing hearing, the court imposed a new sentence of 151 months.
In his most recent appeal, Buncich argued that the district court erred in its sentencing guideline calculation, that the court failed to explain its guideline findings sufficiently and made other procedural errors, and that his sentence was substantively unreasonable.
In the Monday opinion, the 7th Circuit rejected all three arguments in United States of America v. John Buncich, 20-2569.
Buncich first argued the district court miscalculated the benefit received by the towing companies, resulting in an incorrect guideline range. On review, the 7th Circuit found the district court agreed with the probation officer’s estimate, finding no reversible error.
Buncich then argued the district court erred because CSA Towing and Samson Relocation & Towing received no benefits for the bribes they paid him. He pointed out that the two companies had fewer total tows in 2016 — when the scheme ended — than they had in 2012. He further argued the district court’s calculation was incorrect because it included tows dating back to 2011, while Jurgensen did not make his first corrupt payment until April 2014 and Szarmach’s did not come until October 2014.
The 7th Circuit was not persuaded.
“The combination of the presentence report, the exploration of the benefit-received issue at the two sentencing hearings, and the district court’s resolution in favor of the presentence report’s view is sufficient for us to understand both the issue and the district court’s resolution of it and to permit meaningful review,” Circuit Court Judge David Hamilton wrote.
The ex-sheriff’s second challenge was that the district court committed procedural errors by improperly presuming that a guideline sentence was reasonable and by failing to address his sentencing disparity evidence.
But “the district court calculated a proper guideline range, as it was required to do, and it considered the advice from the Sentencing Commission reflected in that calculated range, as it was also required to do,” Hamilton wrote. “The judge fully understood, though, that he could not deflect responsibility for the sentencing decision to the Commission. He acknowledged that he had the discretion to impose a different sentence and that he was responsible for the ultimate sentence.
“Taking into account the many inputs relevant to the decision, Judge (James) Moody accepted the guidance from the calculated range and said he was not convinced there were persuasive reasons to go outside that range. That was entirely appropriate, not a procedural error.”
Additionally, the 7th Circuit wrote the disparity challenge failed for two reasons.
First, it found that a sentence within a guideline range necessarily complies with 18 U.S.C. § 3553(a)(6). Second, the appellate court recognized that a district court may pass over in silence a defendant’s argument that the court failed to consider disparities when imposing a guideline-range sentence, and because the guideline calculation in this case was not erroneous, the district court was not required to address Buncich’s argument any more specifically than it did.
In conclusion, the 7th Circuit found the sentencing not unreasonable.
“The court acknowledged that there were mitigating factors, such as Buncich’s community involvement and lack of a criminal record,” Hamilton wrote. “But the court understandably placed greater weight on the aggravating factors in these bribery convictions of the highest-ranking law enforcement officer in the county.
“… Judge Moody knows Lake County as well as anyone,” Hamilton continued. “He was entitled to make that judgment focusing primarily on the seriousness of Buncich’s offenses and the need for general deterrence in the larger community.”
Circuit Judge Amy St. Eve concurred in part and dissented in part, “largely” agreeing with the majority.
St. Eve opined that the district court did not improperly presume that a guideline sentence was reasonable, did not fail to address a nonfrivolous disparity argument and did not impose a substantively unreasonable sentence. She only parted ways only on the question of whether the district court, based on the record before it, appropriately calculated the “benefit received” by the tow companies.
“On the number of tows, merely giving some benefit to the two companies, even in exchange for bribes, does not signify that every tow resulted from the illegal payments,” St. Eve wrote. “I do not dispute that Szarmach’s towing company was awarded more tows and that Jurgensen’s towing company maintained its position as other companies lost out. But the benefit calculation relied on by the district court presupposes that both companies would have lost all their territory without paying the bribe money.
“That goes too far on this record alone,” she continued. “As the government acknowledges, no company was ever removed from the towing list. Companies that did not pay, indeed, saw their territory shrink. No attempt, however, is made to quantify the loss that a non-bribing company experienced. Causation can be loose, just not so attenuated that it lacks factual support.”
St. Eve continued, “The calculation ultimately adopted by the district court included tows from alleged bribery beginning in 2011 without any supporting factual findings going back that far in time.
“Given the lack of factual findings to support the ‘benefit received’ by the bribers, I would respectfully remand for resentencing,” she concluded.