United States v. Dodd, No. 13-4763 (4th Cir. 2014)
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Defendant appealed his sentence after pleading guilty to bribing a private correctional officer and to conspiracy. Defendant's conviction stemmed from bribing correctional officers thousands of dollars to smuggle cell phones and tobacco products into the correctional facility where defendant was an inmate. The court concluded that the correctional officers defendant bribed occupied a sensitive position within the meaning of U.S.S.G. 2C1.1(b)(3). Therefore, the court affirmed the district court's application of a four-level enhancement under section 2C1.1(b)(3) after finding that the offense involved a public official in a sensitive position.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4763 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KENNETH DODD, a/k/a K, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (2:12-cr-00020-FL-3) Argued: September 19, 2014 Decided: October 29, 2014 Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges. Affirmed by published opinion. Judge Duncan wrote the opinion, in which Judge Wilkinson and Judge Keenan joined. ARGUED: Joshua Brian Howard, GAMMON, HOWARD, ZESZOTARSKI, PLLC, Raleigh, North Carolina, for Appellant. Joshua L. Rogers, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. DUNCAN, Circuit Judge: Appellant, Kenneth Dodd, pleaded guilty private correctional officer and to conspiracy. the district court applied a four-level to bribing a At sentencing, enhancement after finding that the offense involved . . . [a] public official in U.S.S.G. § 2C1.1(b)(3). 1 a . . . sensitive position. challenges the propriety of this enhancement on appeal. Dodd For the reasons that follow, we affirm. I. Rivers Correctional Institution ( Rivers CI ) is a private, low-security facility that contracts with the Federal Bureau of Prisons to house federal inmates. In May 2011, Rivers CI staff discovered various prohibited items in an inmate s cell. This discovery prompted an investigation by the U.S. Department of Justice Office of the Inspector General, which uncovered the conspiracy at issue here. Beginning, apparently, in early 2011, Rivers CI inmate Dodd paid two Rivers CI correctional officers thousands of dollars to smuggle prohibited officers, cellular telephones items--into the two and Rivers CI. circumvented 1 the tobacco According products--both to institution s one of security the by Citations to the U.S. Sentencing Guidelines Manual refer to the November 2012 edition unless otherwise noted. 1 concealing the contraband in food containers and gloves. Dodd profited from this arrangement by reselling the telephones and tobacco products to other inmates. On October 3, 2012, a federal grand jury charged Dodd with bribing one of the correctional officers, in violation of 18 U.S.C. § 201(b)(1)(C), and conspiracy, in violation of 18 U.S.C. § 371. Dodd pleaded guilty to both counts on April 16, 2013. Prior to sentencing, a U.S. probation officer prepared a draft presentence investigation report determining that the Guidelines sentencing range for Dodd was 37 to 46 months, based on a total offense level of 17 and a criminal history category of IV. This calculation included a four-level enhancement under U.S.S.G. § 2C1.1(b)(3), which applies when the offense involved an elected public official or any public official in a highlevel decision-making or sensitive position. In August 2013, Dodd objected in writing to the application of U.S.S.G. § 2C1.1(b)(3). He did not dispute--and does not dispute on appeal--that the correctional officers he bribed were public officials within the meaning of U.S.S.G. § 2C1.1(b)(3). 2 2 The commentary accompanying this guideline states that the phrase public official is construed broadly, U.S.S.G. § 2C1.1 cmt. n.1, and incorporates the definition of that term in 18 U.S.C. § 201(a)(1), see U.S.S.G. § 2C1.1 cmt. n.1(A). Section 201(a)(1) defines public official to include an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government (Continued) 2 Rather, he argued that these officers did not occupy a highlevel decision-making officer subsequently investigation report, enhancement. The district court sensitive position or sensitive submitted which that because the still probation find position. final included officer have the probation presentence four-level recommended correctional they The that officers substantial occupy the a authority, influence, and control over inmates and are responsible for the overall management, safety, and security of a given facility. J.A. 83. The district court sentenced Dodd on October 3, 2013. the hearing, enhancement. Dodd The renewed district his objection court At to the four-level overruled the objection, finding that a private correctional officer occupies a sensitive position because he or she has the authority and the ability to directly and significantly influence inmates lives and the entire facility s safety with the decisions he or she makes. thereof, including the District of Columbia, in any official function, under or by authority of any such department, agency, or branch of Government. 18 U.S.C. § 201(a)(1) (emphasis added); cf. United States v. Thomas, 240 F.3d 445, 446, 448 (5th Cir. 2001) (holding that a guard employed by a private entity operating a detention center under contract with the Immigration & Naturalization Service . . . was a public official , as defined by § 201(a)(1), because, among other reasons, he acted on behalf of the United States under the authority of a federal agency which had contracted with his employer ). 3 J.A. 51. The district court determined that the applicable Guidelines sentencing range was 37 to 46 months, and sentenced Dodd to 37 months imprisonment. Without the enhancement, the range would have been 24 to 30 months. This appeal followed. II. We review criminal sentences for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). See Improper calculation of the Guidelines range is an abuse of discretion. See id. In procedurally such a situation, unreasonable and the resulting subject to sentence being is vacated. United States v. McManus, 734 F.3d 315, 318 (4th Cir. 2013) (quoting United States v. Hargrove, 701 F.3d 156, 161 (4th Cir. 2012)) (internal quotation mark omitted). We determine calculation was whether proper by a district reviewing court s that Guidelines court s factual findings for clear error and its legal conclusions de novo. United States v. Bartko, 728 F.3d 327, 345 (4th Cir. 2013) (quoting United States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006)) (internal quotation mark omitted). Where a Guidelines application law involves a mixed question of and fact, the applicable standard turns on the nature of the circumstances at issue. United States v. Adepoju, 756 F.3d 250, 256 (4th Cir. 2014). If the application turns on a question of fact, the 4 clear error standard interpretation, de applies; novo if review is it turns on appropriate. a legal See United States v. Steffen, 741 F.3d 411, 414 (4th Cir. 2013). This appeal presents a question of Guidelines interpretation: whether private correctional officers occupy a high-level decision-making or sensitive position. 2C1.1(b)(3). U.S.S.G. § We review de novo the district court s resolution of this question of law. 3 Cf. United States v. Snell, 152 F.3d 345, 346 (5th Cir. 1998) (citing United States v. Stephenson, 895 F.2d 867, 877 (2d Cir. 1990)) ( The question whether a juror is an official holding a high-level decision-making or sensitive position, because it depends primarily upon interpretation of the sentencing guidelines, is a question of law that we review de novo. ). III. Dodd argues on appeal that his sentence is procedurally unreasonable because the correctional officers he bribed were 3 We do not hold that all applications of U.S.S.G. § 2C1.1(b)(3) are subject to de novo review. Indeed, clear error review is appropriate where application of this guideline turns primarily on fact. United States v. ReBrook, 58 F.3d 961, 969 (4th Cir. 1995) (applying a predecessor to U.S.S.G. § 2C1.1(b)(3)); accord United States v. Matzkin, 14 F.3d 1014, 1021 (4th Cir. 1994) (same). A district court s application turns primarily on fact where, unlike here, it depend[s] on an evaluation and weighing of the factual details. United States v. McVey, 752 F.3d 606, 610 (4th Cir. 2014). 5 neither high-level decision-makers nor were they in the kind of sensitive subject position to the the Sentencing enhancement. Commission Appellant s Br. described at 5 6. as The government responds that Dodd s sentence is proper because the prison guards in question occupied a sensitive position[] for the purposes of USSG §2C1.1(b)(3). Appellee s Br. at 16. This court has not yet decided whether private correctional officers acting under the authority of the Federal Bureau of Prisons hold a sensitive position for the purposes of U.S.S.G. § 2C1.1(b)(3). Like the district court, we answer this question on a nearly blank slate. We begin with a discussion of the Guidelines precedent, arguments, and and correctional relevant finally officers explain do hold why a then we turn conclude sensitive to Dodd s that private position for the purposes of the enhancement. A. Our analysis starts with the text of U.S.S.G. § 2C1.1(b)(3), which provides, in relevant part, If the offense involved . . . any public official in a high-level decisionmaking or sensitive position, increase by 4 levels. 2C1.1(b)(3). U.S.S.G. § The accompanying commentary 4 defines a [h]igh- 4 The Guidelines commentary is authoritative and binding, unless it violates the Constitution or a federal statute, or is inconsistent with, or [a] plainly erroneous reading of the (Continued) 6 level decision-making or sensitive position as one that is characterized by a direct authority to make decisions for, or on behalf of, government a entity, decision-making government or by process. a department, agency, substantial Id. § influence 2C1.1 cmt. or other over n.4(A). the The commentary then gives separate examples of a public official in a high-level decision-making position and a public official who holds Officials a in enforcement sensitive a position. sensitive officer, an position election similarly situated individual. 5 We turn next to Id. § 2C1.1 include official, a cmt. juror, n.4(B). a and any This court law other Id. relevant precedent. has discussed in two published opinions whether an official held a sensitive position under the Guidelines. In United States v. Guideline itself. United States v. Peterson, 629 F.3d 432, 435 (4th Cir. 2011) (quoting Stinson v. United States, 508 U.S. 36, 38 (1993)). 5 The history of the commentary establishes that law enforcement officers occupy a sensitive position even if they lack supervisory authority. Effective November 1, 2004, the Sentencing Commission amended the commentary to clarify the meaning of high-level decision-making or sensitive position. U.S.S.G. app. C, amend. 666. Prior to that date, the commentary listed supervisory law enforcement officers as an example of officials holding a high-level decision-making or sensitive position. U.S.S.G. § 2C1.1 cmt. n.1 (2003). The revised commentary lists a law enforcement officer --not a supervisory law enforcement officer--as an example of an official in a sensitive position. U.S.S.G. § 2C1.1 cmt. n.4(B). 7 ReBrook, we affirmed the district court s determination that an attorney for the West Virginia Lottery Commission held a sensitive position because of the nature of the advice [the attorney] gave to the Director of the Lottery Commission, the influence that [the attorney] had with other Lottery Commission members[,] . . . and the fact that [the attorney] was privy to confidential information. 58 F.3d 961, 970 (4th Cir. 1995). And in United States v. Matzkin, we upheld the district court s finding that a United States Navy supervisory engineer and branch head with responsibility for the technical aspects of major procurements held a sensitive position because he was involved in decision making on multi-million dollar Navy contracts and had considerable discretion and influence in these matters. 14 F.3d 1014, 1016, 1021 (4th Cir. 1994). Although instructive in providing a frame of reference, these cases do not dictate officials the outcome discussed of therein this held appeal positions from that of a private correctional officer. because the markedly public different In neither Matzkin nor ReBrook did we establish parameters for determining whether a given position is sensitive. 6 6 Dodd also cites United States v. Alter, in which an outof-circuit district court found that a director of a halfway house was not a high-level government official because his position placed him at a low level in the Bureau of Prisons hierarchy and he lacked the legal authority to impose major (Continued) 8 Only one circuit has considered, correctional in officers three hold unpublished opinions, whether a sensitive position. See United States v. Chairez, 423 F. App x 361 (5th Cir. 2011) (per curiam); United States v. McCowan, 464 F. App x 213 (5th Cir. 2010) (per curiam); United States v. Guzman, 383 F. App x 493 (5th Cir. 2010) (per curiam). held that correctional officers occupy a The Fifth Circuit sensitive position because they ha[ve] the authority and the ability to directly and significantly influence inmates lives and the facility s safety with the decisions [they] make[]. entire Chairez, 423 F. App x at 362 (quoting Guzman, 383 F. App x at 494). These cases define a sensitive position as one that has power to affect the integrity and workings of the judicial and law enforcement system. Guzman, 383 F. App x at 494. disciplinary sanctions without referring the discipline cases to his superiors. 788 F. Supp. 756, 767 (S.D.N.Y. 1992), rev d on other grounds, 985 F.2d 105 (2d Cir. 1993). This case lends no support to Dodd s position because, among other reasons, the district court applied a materially outdated version of the Guidelines. The Guidelines then in effect did not make clear that the enhancement applied to officials in a sensitive position regardless of whether that position was also highlevel. See supra note 5. The outdated Guidelines played a central role in the Alter Court s opinion: it held that the halfway house director was not a high-level government official even though he possessed a sensitive position, some degree of discretion, and de facto authority. 788 F. Supp. at 767 (emphasis added). 9 B. Dodd makes four arguments in support of his contention that the private correctional officers he bribed did not occupy a sensitive position. We consider each in turn. First, Dodd maintains that the officers did not make any governmental decision substantial Br. ( High-level at wield over influence, Appellant s or any 8 9; cf. decision-making any influence, government U.S.S.G. or § agency 2C1.1 sensitive much less decision. cmt. position n.4(A) means a position characterized by a direct authority to make decisions for, or on behalf of, a government department, agency, or other government entity, decision-making or by a process. ). substantial To the influence contrary, over the however, the correctional officers operated under a contract with the Federal Bureau of empowered Prisons, the a government officers Bureau of Prisons. to make agency. decisions This on arrangement behalf U.S.S.G. § 2C1.1 cmt. n.4(A). of the Dodd s bribes caused the officers to wield their authority in at least two improper ways: they used their position to circumvent Rivers CI security, and they ignored their duty to enforce the institution s regulations. Second, Dodd claims that the enhancement should not apply to his offense because he did not intend for his bribes to influence official acts. Appellant s Br. at 11 12; cf. U.S.S.G. 10 § 2C1.1 cmt. background ( Under § 2C1.1(b)(3), if the payment was for the purpose of influencing an official act by certain officials, the offense level is increased by 4 levels. ). He maintains that the correctional officers performed no official act because prison guards delivering contraband to prisoners are operating outside their official capacity and in derogation of their role. Appellant s Br. at 11. But any public official acting pursuant to a bribe is acting contrary to his or her role. Dodd bribed the officers to use their position to undermine Rivers CI security. Third, Dodd argues that private correctional officers are not similarly situated to jurors, law enforcement officers, or election officials--the examples in the Guidelines commentary of public officials correctional in a officers sensitive do not take position--because an oath, are not private publicly employed, do not determine guilt or innocence, and cannot arrest members of the public at large. Appellant s Br. at 9 11; see also Reply Br. at 2 3 ( Dodd simply submits that people who swear to God to defend the United State[s] Constitution materially different than those that do not. ). are We agree that private correctional officers are not identically situated to any of the listed examples. But that is not the standard; the commentary indicates that officials include officials who are in a similarly 11 sensitive situated position to the examples. U.S.S.G. § 2C1.1 cmt. n.4(B). And we find that private correctional officers and law enforcement officers are similarly situated. positions wield The the men coercive and women power of who the occupy state to maintain order and safety among the populations they protect. responsible for enforcing the rules. these They are When a person bribes these officers to do some act in contravention of their duties, that person is paying the officers to violate not only the law, but also the public trust placed in them. Such bribery undermines the integrity and effectiveness of our criminal justice system. Fourth, Dodd maintains conceivable outer officers. Appellant s officers are limits the it covers if Br. responsible that at for enhancement private 14 15. We maintaining disagree. safety an operates integral role effectively. in ensuring These that the factors no correctional and among a captive, potentially dangerous population. play has These security And they justice distinguish system private correctional officers from most public officials. C. We hold that private correctional officers acting under the authority of the Federal Bureau of Prisons occupy a sensitive position for the purposes of U.S.S.G. § 2C1.1(b)(3). considerations, taken together, compel this conclusion. private correctional officers occupy 12 a position of Two First, trust in institutions that are both inherently dangerous, Lewis v. Casey, 518 U.S. 343, 391 (1996), and critical to the functioning of our justice system. one need not linger As the district court accurately noted, long when thinking about the sensitive nature of guarding in a prison setting and the importance of that position. J.A. 51. When correctional officers accept bribes to bring contraband to prisoners, they endanger those inside and outside of the prison. Contraband cellular telephones, for example, can be used by inmates to orchestrate criminal activity, prison walls. plan escapes, and be a menace outside of Lawmakers Push to Criminalize Prison Cell Phone Smuggling as Problem Spreads, Cal. Dep t Corr. & Rehab. (Apr. 14, 2009), http://www.cdcr.ca.gov/News/Press_Release_Archive/2009_Press_Rel eases/April_14.html (saved as ECF opinion attachment) (quoting Matthew Cate, Secretary of the Corrections and Rehabilitation). officers are officer. We similarly California Department of Second, private correctional situated to a law enforcement U.S.S.G. § 2C1.1 cmt. n.4(B). conclude that the correctional officers Dodd bribed occupied a sensitive position within the meaning of U.S.S.G. § 2C1.1(b)(3). Accordingly, the district court did not abuse its discretion by applying this enhancement to Dodd at sentencing. 13 IV. For the foregoing reasons, the judgment of the district court is AFFIRMED. 14
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