United States of America v. Kenneth Dodd, a/k/a K

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.

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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.

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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)

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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”).

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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

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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).

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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 commentary4 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)

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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).

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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)

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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).

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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.

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§ 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

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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

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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.

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IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.

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