United States of America v. Shawn Maurice Johnson

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 7, 2009 Decided May 21, 2010
No. 09-3010
UNITED STATES OF AMERICA ,
APPELLEE
v.
SHAWN M AURICE J OHNSON ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cr-00305-PLF-1)
John A. Briley Jr., appointed by the court, argued the
cause and filed the brief for appellant.
Courtney G. Saleski, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief was Roy W. McLeese
III, Assistant U.S. Attorney.
Before: HENDERSON and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

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Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: In this appeal, we affirm the
district court’s application of a Sentencing Guidelines
enhancement for bribery of a public official in a “sensitive
position” to a special police officer for the District of
Columbia Public Schools.
I.
Appellant Shawn Maurice Johnson worked as a special
police officer for the District’s public schools. Though his
authority extended no farther than school grounds, Johnson
wore a uniform, carried a firearm, and could make arrests. In
the course of his employment, Johnson and his partner
permitted an illegal parking scheme on school property in
exchange for $1570 in bribes. Johnson eventually turned
himself in to the police and pled guilty to one count of bribery
of a public official. See 18 U.S.C. § 201 (2006).
At sentencing, the district court, relying on commentary
to the Sentencing Guidelines, determined that Johnson was a
public official in a sensitive position, and applied the four-
level enhancement called for by the guideline. See U.S.
SENTENCING GUIDELINES M ANUAL § 2C1.1(b)(3) (2009)
[hereinafter U.S.S.G.]. Without the four-level enhancement,
Johnson’s sentencing range under the Guidelines would have
been only 12 to 18 months. With the enhancement, the range
was 24 to 30 months. The court issued a below-range
sentence of 12 months and 1 day. Presuming that his sentence
would have been even shorter under a range calculated
without the enhancement, Johnson appealed. We have
jurisdiction to consider his appeal under 18 U.S.C.
§ 3742(a)(2). See United States v. Love, 593 F.3d 1, 5 n.2
(D.C. Cir. 2010).

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Johnson argues that the district court should have
disregarded the commentary and asks that we vacate his
sentence and remand for the district court to resentence him
using the guideline alone. See Appellant’s Br. at 7–9. We
review de novo the district court’s reliance on the
commentary to interpret the guideline. See United States v.
Pugh, 158 F.3d 1308, 1311 (D.C. Cir. 1998).
II.
The relevant guideline requires a four-level enhancement
if the offense involved a public official in a “sensitive
position.” U.S.S.G. § 2C1.1(b)(3). The guideline commentary
defines “sensitive position,” in relevant part, as one
“characterized by a direct authority to make decisions for, or
on behalf of, a government department, agency, or other
government entity,” id. § 2C1.1 cmt. 4(a), and includes “law
enforcement officer” in a list of illustrative examples, id. cmt.
4(b). Commentary to a sentencing guideline is “authoritative”
unless it violates the Constitution or a federal statute, or “is
inconsistent with, or a plainly erroneous reading of, that
guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993).
The commentary lacks authority only if it is “flat[ly]
inconsisten[t]” with the guideline such that “following one
will result in violating the dictates of the other.” Id. at 43; see
Pugh, 158 F.3d at 1311.
We struggle to understand Johnson’s arguments, but,
generously viewed, his position seems to be that the
commentary’s use of a law enforcement officer as an example
of a public official in a sensitive position is inconsistent with
both the plain meaning of the guideline and the commentary’s
definition of “sensitive position.” See Appellant’s Br. at 7–9;
Oral Arg. Recording at 7:47–8:07. His assertion that the

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example is inconsistent with the guideline is made entirely in
the form of a conclusion. Regardless, it seems plain to us that
there is nothing inconsistent about using a law enforcement
officer as an example of a public official in a “sensitive
position.” Whatever the precise scope of that term, whatever
other positions might fall within its ambit, it certainly includes
law enforcement officers, like Johnson, who are charged with
the power to make arrests—a sensitive power if there ever
was one. See Foley v. Connelie, 435 U.S. 291, 298 (1978)
(“An arrest . . . is a serious matter for any person even when
no prosecution follows or when an acquittal is
obtained. . . . Even the routine traffic arrests . . . can intrude
on the privacy of the individual.”).
Johnson spends most of his fire on the claim that “the
chosen example of ‘law enforcement officer,’ simple and
unadorned, cannot be reconciled with the Commission’s
definition of a ‘sensitive position.’” Appellant’s Br. at 7; see
id. at 8–9. Without telling us how the example and definition
are contradictory, Johnson adds only that “the example of
‘law enforcement officer,’ without any elaboration or
qualification, purports to place appellant . . . on the same
plane as the Chief of the Metropolitan Police Department.” Id.
at 8. For his argument to make sense, Johnson can only be
arguing that not all law enforcement officers hold a sensitive
position because some do not have “direct authority to make
decisions for, or on behalf of, a government department.”
U.S.S.G. § 2C1.1 cmt. 4(a). Whether that may be true in some
hypothetical case, it is certainly not true in this case. Johnson
does not dispute that he was a law enforcement officer who
had the arrest power, which surely involves the power to
make decisions on behalf of the government. In the absence
of any actual inconsistency in the commentary, we need not
consider the possible effect of such inconsistency.

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The history of the commentary to § 2C1.1 likewise
undermines Johnson’s argument. Prior to 2004, the
commentary used “supervisory law enforcement officers” as
examples of public officials who hold sensitive positions.
U.S.S.G. § 2C1.1 cmt. 1 (2003) (emphasis added). As the
Seventh Circuit described this previous standard, “[c]overed
officials . . . typically supervise other employees, make public
policy, stand in the shoes of a policymaker, or influence
policymakers.” United States v. Reneslacis, 349 F.3d 412, 415
(7th Cir. 2003) (citations omitted). Clearly, the Sentencing
Commission knows how to describe a subset of law
enforcement officers. But the Commission changed the
commentary in 2004 by dropping the word “supervisory”
from its reference to law enforcement officers and adding the
current definition of sensitive position. See U.S.S.G. § 2C1.1
cmt. 4 (2004). In light of these changes, we see no
inconsistency between the commentary’s definition and its
example.
In this case at least, the commentary is authoritative, but
we should not be understood to embrace the idea that any law
enforcement officer, no matter his level of responsibility, can
be deemed to hold a sensitive position. Because Johnson was
a special police officer with the power to arrest, the district
court did not err in using the commentary to apply the
enhancement to him.
III.
The sentence is
Affirmed.

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