USA v. Bruce McCowan


UNPUBLISHED OPINION FILED. [09-50846 Affirmed ] Judge: WED , Judge: JLW , Judge: JLD Mandate pull date is 01/03/2011 for Appellant Bruce Allen McCowan [09-50846]

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USA v. Bruce McCowan e: 09-50846 Cas Document: 00511319922 Page: 1 Date Filed: 12/13/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED December 13, 2010 N o . 09-50846 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. B R U C E MCCOWAN, D e fe n d a n t - Appellant A p p e a l from the United States District Court fo r the Western District of Texas U .S .D .C . No. 7:09-cr-00067 B e fo r e DAVIS, WIENER, and DENNIS, Circuit Judges. P E R CURIAM:* B r u c e McCowan pleaded guilty to conspiracy to bribe a public official in v io la t io n of 18 U.S.C. 201(b)(1)(C), 371, for arranging to have a correctional o ffic e r at the facility where McCowan was incarcerated smuggle drugs to him. At sentencing, the district court increased McCowan's offense level by six by a p p ly in g the sentencing enhancement prescribed by U.S.S.G. 2C1.1(b)(3), for " o ffe n s e [s ] involv[ing] an elected official or any public official in a high-level d e c is io n -m a k in g 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 c o r r e c t io n a l officer was a public official in a sensitive position. McCowan a p p e a ls , arguing that a correctional officer is not a public official in a sensitive p o s it io n and that the district court lacked "a factual basis" for reaching that c o n c lu s io n . We AFFIRM. I n his June 2009 written plea agreement, McCowan acknowledged that as a n inmate at the Ector County Correctional Center ("ECCC"), in Odessa, Texas, h e arranged with "a prison guard, A. Zehr," at ECCC to meet with McCowan's b r o t h e r , Marcus, outside of the facility, and that Marcus would provide Zehr w it h contraband to smuggle into ECCC for McCowan. The plea agreement fu r t h e r acknowledged that Marcus and Zehr eventually met, and Marcus paid Z e h r $100 and gave him the contraband that Zehr delivered to McCowan at ECCC. T h e Presentence Investigation Report ("PSR") identified Zehr, as "a c o r r e c t io n a l officer, employed at . . . ECCC," and because of Zehr's position, the P S R recommended an offense-level enhancement under U.S.S.G. 2C1.1(b)(3), fo r an "offense involv[ing] . . . any public official in a . . . sensitive position," in c r e a s in g McCowan's offense level from twelve to eighteen. At sentencing, M c C o w a n did not object to the finding adopted by the district court that Zehr w a s a correctional officer.1 However, he did object to the upward adjustment b e c a u s e he contended that Zehr was not in a sensitive position. The district c o u r t overruled McCowan's objection and applied the enhancement because it fo u n d that "as a prison guard, Mr. Zehr is in a sensitive position. A prison guard d o e s have great control over the inmates under his or her control. They can w r it e people up. They can make recommendations. They deal with their daily liv e s in that position. . . . They are law enforcement officials responsible for the d a y -to -d a y 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 e v id e n c e , but continued his objection that "there is not a factual basis" in the r e c o r d to find Zehr was in a sensitive position. " T h e question whether [an official] is an official holding a high-level d e c is io n -m a k in g or sensitive position, because it depends primarily upon in t e r p r e t a t io n of the sentencing guidelines, is a question of law that we review d e novo." United States v. Snell, 152 F.3d 345, 346 (5th Cir. 1998) (citing United S ta te s v. Stephenson, 895 F.2d 867, 877 (2d Cir. 1990)). We examine the u n d e r ly in g "[f]actual questions, such as the discretion, supervisory authority, a n d other indicia of responsibility of [the] official . . . only for clear error and a ffo r d 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 b u r d e n is on the party seeking to adjust the sentence level to prove `by a p r e p o n d e r a n c e of the relevant and sufficiently reliable evidence the facts n e c e s s a r y to support the adjustment.'" United States v. Herrera-Solorzano, 114 F .3 d 48, 50 (5th Cir. 1997) (quoting United States v. Alfaro, 919 F.2d 962, 965 (5 t h 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 7 5 1 , 764 (5th Cir. 2008). The sentencing court may rely on the facts in the PSR " w it h o u t more specific inquiry or explanation, provided those facts had an a d e q u a t e evidentiary basis" and the defendant has not presented rebuttal e v id e n c e . United States v. Rodriguez, 897 F.2d 1324, 1328 (5th Cir. 1990). And " t h e court is permitted to make inferences from the facts." Id. at 1326. S e c t io n 2C1.1(b)(3) of the Sentencing Guidelines provides: "If the offense in v o lv e d an elected official or any public official in a high-level decision-making o r sensitive position, increase by 4 levels. If the resulting offense level is less t h a n 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 s e n s it iv e 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 d e c is io n s for, or on behalf of, a government department, agency, or other g o v e r n m e n t entity, or by a substantial influence over the decision-making p r o c e s s ." Id. cmt. n.4(A). "Examples of a public official who holds a sensitive p o s it io n include a juror, a law enforcement officer, an election official, and any o t h e r similarly situated individual." Id. cmt. n.4(B) (emphasis added). Before 2 0 0 4 , the commentary listed "supervisory law enforcement officers" as an e x a m p le of a public official in a sensitive position. See U.S.S.G. Manual supp. a p p . C, amend. 666. The 2004 amendments to 2C1.1 and its commentary c h a n g e d this example to simply "law enforcement officer," id., "suggest[ing that] o ffic e r s need not be in a supervisory position to be considered `sensitive.'" United S ta te s v. Guzman, 383 F. App'x 493, 494 n.4 (5th Cir. 2010) (unpublished). B a s e d upon the undisputed facts in the record and inferences supported b y 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 in fe r e n c e s meet the Sentencing Guidelines' definition of a public official in a s e n s it iv e position. McCowan contends that the record evidence does not support t h e district court's findings; however, the plea agreement identified Zehr as a " p r is o n guard" and the PSR identified him as a "correctional officer" and M c C o w a n did not dispute these facts or offer rebuttal evidence. The record also in d ic a te s that Zehr had access to inmates. Therefore, district court's factual fin d in g s about Zehr's duties and responsibilities are plausible in light of the r e c o r d as a whole and are not clearly erroneous. T h e district court's findings support the conclusion that Zehr occupied a s e n s it iv e position.2 The district court found that correctional officers have a s u b s t a n t ia l influence over the decision-making process by having significant c o n t r o l over prisoner disciplinary matters and tremendous responsibility for the McCowan does not contend that Zehr was not a "public official" but only that he was not in a sensitive position. 2 4 Case: 09-50846 Document: 00511319922 Page: 5 Date Filed: 12/13/2010 No. 09-50846 " d a y -t o -d a y management and safety of the facility." This finding meets the S e n te n c in g Guidelines' definition of "sensitive position," which is "a position c h a r a c t e r iz e d . . . 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 1 3 9 1 , which was decided before the 2004 amendments to 2C1.1,3 dictates that o n ly where an official possesses "some final decision-making authority" or o c c u p ie s a position that "involves substantial responsibility for funds can the p o s it io n qualify under the" Sentencing Guidelines as a sensitive position. In T o m b lin , we held that "[a] senator's top administrative aide holds a position of s u b s t a n t i a l influence, because he often serves as the senator's functional e q u iv a le n t " and therefore is in a sensitive position. Id. It is true that in r e a c h in g that decision, we said: "[t]hat a position requires the exercise of some d is c r e t io n alone does not mandate finding that the possessor of that discretion o c c u p ie s a sensitive government position. When the discretion includes some fin a l decision-making authority or involves substantial responsibility for funds, h o w e v e r , the position can qualify under the Guidelines." Id. (citations omitted). However, in Snell, decided three years after Tomblin, we expressly rejected M c C o w a n 's contention: [D ]is c r e tio n involving final decision-making authority over matters o f public policy or over the expenditure of substantial sums of money . . . is not always required, and courts have readily found an . . . e n h a n c e m e n t [under the predecessor to 2C1.1(b)(3)] appropriate . . . based on the official's ability to use his position to influence a n o t h e r in the exercise of such discretion. 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. 3 5 Case: 09-50846 Document: 00511319922 Page: 6 Date Filed: 12/13/2010 No. 09-50846 1 5 2 F.3d at 347. We have previously characterized Snell as holding that "a s e n s i t i v e position is one that has power to affect the integrity and workings of t h e judicial and law enforcement system." Guzman, 383 F. App'x at 494 (citing S n e ll, 152 F.3d at 348). We agree that "[a] prison guard [who] has the authority a n d the ability to directly and significantly influence inmates' lives and the e n tir e facility's safety with the decisions he or she makes," has "[s]uch power w it h in the judicial system [that] makes the position of prison guard a sensitive p o s it io n under the sentencing guidelines." Id. at 494-95. T h e r e fo r e , the decision of the district court is AFFIRMED. 6

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