     Case: 09-50846 Document: 00511319922 Page: 1 Date Filed: 12/13/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 13, 2010

                                       No. 09-50846                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

BRUCE MCCOWAN,

                                                   Defendant - Appellant




                    Appeal from the United States District Court
                         for the Western District of Texas
                             U.S.D.C. No. 7:09-cr-00067


Before DAVIS, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
       Bruce McCowan pleaded guilty to conspiracy to bribe a public official in
violation of 18 U.S.C. §§ 201(b)(1)(C), 371, for arranging to have a correctional
officer at the facility where McCowan was incarcerated smuggle drugs to him.
At sentencing, the district court increased McCowan’s offense level by six by
applying the sentencing enhancement prescribed by U.S.S.G. § 2C1.1(b)(3), for
“offense[s] involv[ing] an elected official or any public official in a high-level
decision-making or sensitive position,” because the court concluded that a

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
     Case: 09-50846 Document: 00511319922 Page: 2 Date Filed: 12/13/2010



                                      No. 09-50846

correctional officer was a public official in a sensitive position.             McCowan
appeals, arguing that a correctional officer is not a public official in a sensitive
position and that the district court lacked “a factual basis” for reaching that
conclusion. We AFFIRM.
       In his June 2009 written plea agreement, McCowan acknowledged that as
an inmate at the Ector County Correctional Center (“ECCC”), in Odessa, Texas,
he arranged with “a prison guard, A. Zehr,” at ECCC to meet with McCowan’s
brother, Marcus, outside of the facility, and that Marcus would provide Zehr
with contraband to smuggle into ECCC for McCowan. The plea agreement
further acknowledged that Marcus and Zehr eventually met, and Marcus paid
Zehr $100 and gave him the contraband that Zehr delivered to McCowan at
ECCC.
       The Presentence Investigation Report (“PSR”) identified Zehr, as “a
correctional officer, employed at . . . ECCC,” and because of Zehr’s position, the
PSR recommended an offense-level enhancement under U.S.S.G. § 2C1.1(b)(3),
for an “offense involv[ing] . . . any public official in a . . . sensitive position,”
increasing McCowan’s offense level from twelve to eighteen. At sentencing,
McCowan did not object to the finding adopted by the district court that Zehr
was a correctional officer.1 However, he did object to the upward adjustment
because he contended that Zehr was not in a sensitive position. The district
court overruled McCowan’s objection and applied the enhancement because it
found that “as a prison guard, Mr. Zehr is in a sensitive position. A prison guard
does have great control over the inmates under his or her control. They can
write people up. They can make recommendations. They deal with their daily
lives in that position. . . . They are law enforcement officials responsible for the
day-to-day management and safety of the facility.” McCowan offered no rebuttal


       1
        “At sentencing, the court . . . may accept any undisputed portion of the presentence
report as a finding of fact.” Fed. R. Crim. P. 32(i)(3)(A).

                                             2
     Case: 09-50846 Document: 00511319922 Page: 3 Date Filed: 12/13/2010



                                    No. 09-50846

evidence, but continued his objection that “there is not a factual basis” in the
record to find Zehr was in a sensitive position.
      “The question whether [an official] 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.” 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)).            We examine the
underlying “[f]actual questions, such as the discretion, supervisory authority,
and other indicia of responsibility of [the] official . . . only for clear error and
afford great deference to the court’s application of the guidelines to those facts.”
Id. (citing United States v. Tomblin, 46 F.3d 1369, 1391 (5th Cir. 1995)). “The
burden is on the party seeking to adjust the sentence level to prove ‘by a
preponderance of the relevant and sufficiently reliable evidence the facts
necessary to support the adjustment.’” United States v. Herrera-Solorzano, 114
F.3d 48, 50 (5th Cir. 1997) (quoting United States v. Alfaro, 919 F.2d 962, 965
(5th Cir. 1990)). “There is no clear error if the district court’s finding is plausible
in light of the record as a whole.” United States v. Cisneros-Gutierrez, 517 F.3d
751, 764 (5th Cir. 2008). The sentencing court may rely on the facts in the PSR
“without more specific inquiry or explanation, provided those facts had an
adequate evidentiary basis” and the defendant has not presented rebuttal
evidence. United States v. Rodriguez, 897 F.2d 1324, 1328 (5th Cir. 1990). And
“the court is permitted to make inferences from the facts.” Id. at 1326.
      Section 2C1.1(b)(3) of the Sentencing Guidelines provides: “If the offense
involved an elected official or any public official in a high-level decision-making
or sensitive position, increase by 4 levels. If the resulting offense level is less
than level 18, increase to level 18.”         U.S.S.G. § 2C1.1(b)(3) (Nov. 2009).
According to the commentary to § 2C1.1(b)(3), “‘High-level decision-making or
sensitive position’ means a position characterized by a direct authority to make

                                          3
     Case: 09-50846 Document: 00511319922 Page: 4 Date Filed: 12/13/2010



                                      No. 09-50846

decisions for, or on behalf of, a government department, agency, or other
government entity, or by a substantial influence over the decision-making
process.” Id. cmt. n.4(A). “Examples of a public official who holds a sensitive
position include a juror, a law enforcement officer, an election official, and any
other similarly situated individual.” Id. cmt. n.4(B) (emphasis added). Before
2004, the commentary listed “supervisory law enforcement officers” as an
example of a public official in a sensitive position. See U.S.S.G. Manual supp.
app. C, amend. 666. The 2004 amendments to § 2C1.1 and its commentary
changed this example to simply “law enforcement officer,” id., “suggest[ing that]
officers need not be in a supervisory position to be considered ‘sensitive.’” United
States v. Guzman, 383 F. App’x 493, 494 n.4 (5th Cir. 2010) (unpublished).
       Based upon the undisputed facts in the record and inferences supported
by those facts, we hold that the district court did not err in applying
§ 2C1.1(b)(3) to enhance McCowan’s offense level because those facts and
inferences meet the Sentencing Guidelines’ definition of a public official in a
sensitive position. McCowan contends that the record evidence does not support
the district court’s findings; however, the plea agreement identified Zehr as a
“prison guard” and the PSR identified him as a “correctional officer” and
McCowan did not dispute these facts or offer rebuttal evidence. The record also
indicates that Zehr had access to inmates. Therefore, district court’s factual
findings about Zehr’s duties and responsibilities are plausible in light of the
record as a whole and are not clearly erroneous.
       The district court’s findings support the conclusion that Zehr occupied a
sensitive position.2 The district court found that correctional officers have a
substantial influence over the decision-making process by having significant
control over prisoner disciplinary matters and tremendous responsibility for the

       2
         McCowan does not contend that Zehr was not a “public official” but only that he was
not in a sensitive position.

                                             4
     Case: 09-50846 Document: 00511319922 Page: 5 Date Filed: 12/13/2010



                                     No. 09-50846

“day-to-day management and safety of the facility.” This finding meets the
Sentencing Guidelines’ definition of “sensitive position,” which is “a position
characterized . . . by a substantial influence over the decision-making process.”
U.S.S.G. § 2C1.1 cmt. n.4(A).
       McCowan mistakenly argues that our decision in Tomblin, 46 F.3d at
1391, which was decided before the 2004 amendments to § 2C1.1,3 dictates that
only where an official possesses “some final decision-making authority” or
occupies a position that “involves substantial responsibility for funds can the
position qualify under the” Sentencing Guidelines as a sensitive position. In
Tomblin, we held that “[a] senator’s top administrative aide holds a position of
substantial influence, because he often serves as the senator’s functional
equivalent” and therefore is in a sensitive position. Id.             It is true that in
reaching that decision, we said: “[t]hat a position requires the exercise of some
discretion alone does not mandate finding that the possessor of that discretion
occupies a sensitive government position. When the discretion includes some
final decision-making authority or involves substantial responsibility for funds,
however, the position can qualify under the Guidelines.” Id. (citations omitted).
However, in Snell, decided three years after Tomblin, we expressly rejected
McCowan’s contention:
       [D]iscretion involving final decision-making authority over matters
       of public policy or over the expenditure of substantial sums of money
       . . . is not always required, and courts have readily found an . . .
       enhancement [under the predecessor to § 2C1.1(b)(3)] appropriate
       . . . based on the official’s ability to use his position to influence
       another in the exercise of such discretion.




      3
          McCowan relies on other cases that pre-date the 2004 amendments to § 2C1.1(b)(3),
which changed the commentary to remove the modifier, “supervisory,” from “law enforcement
officers.” Because those cases were decided before the relevant changes to the commentary,
they are unpersuasive.

                                            5
    Case: 09-50846 Document: 00511319922 Page: 6 Date Filed: 12/13/2010



                                 No. 09-50846

152 F.3d at 347. We have previously characterized Snell as holding that “a
sensitive position is one that has power to affect the integrity and workings of
the judicial and law enforcement system.” Guzman, 383 F. App’x at 494 (citing
Snell, 152 F.3d at 348). We agree that “[a] prison guard [who] 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,” has “[s]uch power
within the judicial system [that] makes the position of prison guard a sensitive
position under the sentencing guidelines.” Id. at 494-95.
      Therefore, the decision of the district court is AFFIRMED.




                                       6
