                                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    to    bribing      a

private correctional officer and to conspiracy.                  At sentencing,

the   district     court    applied     a    four-level     enhancement       after

finding that “the offense involved . . . [a] public official in

a . . . sensitive position.”                U.S.S.G. § 2C1.1(b)(3). 1            Dodd

challenges the propriety of this enhancement on appeal.                     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      cellular      telephones        and      tobacco    products--both

prohibited    items--into     Rivers    CI.        According    to    one   of    the

officers,    the   two   circumvented        the   institution’s      security     by

      1
       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 high-

level 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 high-

level    decision-making      or    sensitive     position.        The    probation

officer      subsequently          submitted      the      final        presentence

investigation      report,    which     still      included       the    four-level

enhancement.         The    probation       officer     recommended       that     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.”

J.A. 83.

        The district court sentenced Dodd on October 3, 2013.                       At

the     hearing,   Dodd    renewed    his    objection      to    the    four-level

enhancement.         The   district     court     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.                                See

Gall   v.     United       States,    552     U.S.      38,     51    (2007).         Improper

calculation of the Guidelines range is an abuse of discretion.

See    id.      In     such    a     situation,         the    resulting         sentence    is

“procedurally         unreasonable          and      subject         to   being     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        whether        a       district         court’s       Guidelines

calculation      was       proper     by     reviewing        that        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      involves      a     mixed       question     of      law   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      applies;       if     it   turns    on     a    legal

interpretation,      de   novo    review     is      appropriate.         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.”                       U.S.S.G. §

2C1.1(b)(3).      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       position    the       Sentencing       Commission         described         as

subject    to    the   enhancement.”             Appellant’s       Br.    at    5–6.       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       and    relevant       precedent,           then    turn        to     Dodd’s

arguments,      and    finally    explain        why   we    conclude      that      private

correctional      officers       do   hold       a   sensitive      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 decision-

making or sensitive position, increase by 4 levels.”                            U.S.S.G. §

2C1.1(b)(3).          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,   a   government          department,      agency,           or    other

government      entity,      or    by    a   substantial         influence          over      the

decision-making          process.”        Id.     §    2C1.1     cmt.    n.4(A).              The

commentary then gives separate examples of a “public official in

a high-level decision-making position” and “a public official

who   holds    a    sensitive      position.”          Id.   §   2C1.1    cmt.           n.4(B).

Officials      in    a   sensitive       position      “include     a    juror,           a   law

enforcement         officer,      an    election       official,        and     any       other

similarly situated individual.” 5                Id.

      We    turn     next    to    relevant       precedent.         This       court         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     the    outcome    of     this      appeal     because    the     public

officials   discussed       therein      held       positions    markedly    different

from that of a private correctional officer.                     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 out-
of-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,     in     three       unpublished

opinions,     whether    correctional     officers       hold      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).                 The Fifth Circuit

held   that   correctional    officers    occupy    a    sensitive           position

because they “‘ha[ve] the authority and the ability to directly

and    significantly    influence    inmates’      lives    and        the     entire

facility’s safety with the decisions [they] make[].’”                        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 high-
level.   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”      or    wield        “any    influence,       much       less

substantial     influence,        over       any    government       agency    decision.”

Appellant’s     Br.    at     8–9;      cf.     U.S.S.G.       §    2C1.1    cmt.     n.4(A)

(“‘High-level       decision-making           or    sensitive       position’       means   a

position 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.”).             To     the     contrary,      however,      the

correctional officers operated under a contract with the Federal

Bureau   of    Prisons,       a    government         agency.         This    arrangement

empowered     the    officers      to    make      decisions       “on   behalf     of”   the

Bureau of Prisons.          U.S.S.G. § 2C1.1 cmt. n.4(A).                   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          in    a     sensitive       position--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 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      are

materially different than those that do not.”).                                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          in    a   sensitive     position

“include”       officials         who     are        “similarly        situated”     to    the

                                                11
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.          The    men         and    women        who     occupy      these

positions    wield    the    coercive         power       of    the     state    to   maintain

order and safety among the populations they protect.                                  They are

responsible for enforcing the rules.                      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         that        the     enhancement         has     “no

conceivable       outer   limits”       if     it    covers       private        correctional

officers.        Appellant’s      Br.     at      14–15.          We    disagree.           These

officers    are    responsible      for       maintaining             safety    and   security

among a captive, potentially dangerous population.                                    And they

play   an    integral     role    in    ensuring           that       the     justice     system

operates     effectively.              These        factors           distinguish        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).           Two

considerations, taken together, compel this conclusion.                                  First,

private     correctional     officers          occupy      a     position       of    trust    in

                                             12
institutions        that    are    both       “inherently      dangerous,”      Lewis   v.

Casey, 518 U.S. 343, 391 (1996), and critical to the functioning

of our justice system.             As the district court accurately noted,

one   need    not    “linger      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,      plan       escapes,     and   be   a    menace    outside   of

prison walls.”        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     California      Department      of

Corrections and Rehabilitation).                      Second, private correctional

officers      are     “similarly         situated”        to   “a    law     enforcement

officer.”      U.S.S.G. § 2C1.1 cmt. n.4(B).

      We     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
