By Patrick Southern

Did the District Court Err in Determining a Private Correctional Officer Occupies a “Sensitive Position” for the Purpose of Enhanced Sentencing?

Today, in United States v. Dodd, the Fourth Circuit decided a matter of first impression. The appellant Dodd challenged a decision to enhance the sentence he received after pleading guilty to bribing a correctional officer and conspiracy. Specifically, Dodd argued private correctional officers do not occupy a “high-level decision-making or sensitive position” as defined in sentencing guidelines. The Fourth Circuit disagreed, affirming his sentence.

Appellant Bribed Private Correctional Officers

The case began when staff members at a private correctional institution (which contracts with the Federal Bureau of Prisons to house inmates) found prohibited items in Dodd’s cell. An investigation revealed Dodd was paying correctional officers to smuggle cell phones and tobacco products into the institution, where he would then re-sell them to other inmates.

Dodd pleaded guilty to bribing a private correctional officer and to conspiracy. Prior to sentencing, a probation officer determined that sentencing guidelines provided for a sentence of thirty-seven to forty-six months for Dodd. The 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 high-level decision-making or sensitive position.” Without the enhancement, the sentencing range would have been twenty-four to thirty months.

Dodd objected to the enhancement, arguing the officers did not occupy a “high-level decision-making or sensitive position.” The probation officer recommended the district court find that correctional officers occupy a sensitive position because they “have substantial authority, influence, and control over inmates and are responsible for the overall management, safety, and security of a given facility.”

The District Court found that correctional officers occupy a sensitive position because they have “the authority and ability to directly and significantly influence inmates’ lives and the entire facility’s safety with the decisions he or she makes.” Dodd then appealed to the Fourth Circuit.

Private Correctional Officers Occupy a “Sensitive Position” For Sentencing Purposes

The commentary on the sentencing guidelines provides a definition for a “high-level decision-making or sensitive position.” Such positions are “characterized by a direct authority to make decisions for, or on behalf of, a government department, agency, or other government entity, or by a substantial influence over the decision-making process.” The definition continues to note that officials in a sensitive position “include a juror, a law enforcement officer, an election official, and any other similarly situated individual.”

Prior to this case, only the Fifth Circuit had considered whether correctional officers hold a sensitive position, and then only in unpublished opinions. It held they do because they “have the authority and the ability to directly and significantly influence inmates’ lives and the entire facility’s safety with the decisions [they] make.” The Fifth Circuit cases defined a sensitive position as “one that has power to affect the integrity and workings of the judicial and law enforcement system.

Private Correctional Officers are “Similarly Situated” to Law Enforcement Officers

Dodd made four arguments as to why private correctional officers should not be considered to hold a “sensitive position.” The Fourth Circuit dismissed them all in turn.

First, he argued private correctional officers don’t make “any governmental decision” or wield “any influence, much less substantial influence, over any government agency decision.” The Fourth Circuit responded that the correctional officers operated under contract with the Federal Bureau of Prisons, and the arrangement empowered officers to make decisions “on behalf of” the Bureau of Prisons. Dodd’s bribes caused the officers to wield their authority in improper ways.

Second, Dodd said he did not intend for his bribes to influence official acts, arguing that the officers performed no official act because guards delivering contraband are operating outside their official capacity. The court responded that any public official acting pursuant to a bribe is acting contrary to his or her role. Dodd bribed the officers specifically to use their position to undermine the institution’s security.

Third, Dodd argued private correctional officers are not similarly situated to jurors, law enforcement officers, or election officials (the examples from the Guidelines commentary) because private correctional officers do not take an oath, are not publicly employed, do not determine guilt or innocence, and cannot arrest members of the public. The court agreed that private correctional officers are not identically situated to the examples, but noted that is not the standard. The definition in question includes those who are “similarly situated” to the listed examples. Private correctional officers “wield the coercive power of the state to maintain order and safety among the populations they protect.” Bribes lead to a violation of the public trust placed in them.

Finally, Dodd said sentencing enhancement has “no conceivable outer limits” if it covers private correctional officers. The Fourth Circuit responded that these officers are responsible for maintaining safety and security among a captive, potentially dangerous population, and as such they play an integral role in the operation of the justice system, distinguishing them from most public officials

Ultimately, the court said private correctional officers are “similarly situated” to law enforcement officers, which are specifically mentioned in the definition in the commentary to the sentencing guidelines. As a result, they are considered to hold a “sensitive position” as outlined under the sentencing guidelines. Thus, the Fourth Circuit affirmed the sentencing enhancement as it applied to Dodd.

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