May I please the court. My name is Josh Howard and I am privileged to represent Kenneth Dodd in this appeal of a very narrow sinencing issue from the Eastern District of North Carolina. We would ask this court to vacate and remain the sentence for resenancing without the application of the particular enhancement at issue. I would ask the court to consider this argument with regard to three categories. Those are proportionality, privatization, and practicality. If I could start with proportionality, I would like to explain this sentence in the context that there is a base crime and then there should be a spectrum for which a more aggravated version of that crime can be punished more harshly. That is because the Sennencing Commission in drafting this enhancement recognizes that there needs to be a difference on the sentence spectrum between bribing the postman and bribing the postmaster general. And as applied to this case, it would be similar that in bribing a private contract prison guard, there should be some difference on the sentence spectrum between doing that and bribing, for instance, the director of the Bureau of Fris. I do understand the point and it makes some intuitive sense, but the isn't part of the problem, this 2004 guideline amendment which actually took out the word supervisory, which would now, if they'd left the word supervisory in, you'd have a stronger case, I think, on that point. But when the Sennencing Commission takes supervisory out, doesn't that mean that it's headed in the direction of thinking that an ordinary law enforcement officer does hold a sensitive position, even if it's not a sergeant or even if he or she is not a sergeant or a captain? Yeah, that's certainly a point that the government made at Sennencing and we believe that is a red herring with no applicability here because we suggest these people who are private contract prison guards are not law enforcement at all
. And that is categorized, really, under my second argument, which is as to privatization. There's a difference. In your reply brief, it appears that, I mean, you can see it, I think, that Bureau of prison officials would qualify. Correct, Your Honor. In fact, when this mess down at Rivers Correctional Institute, it needed cleaning up, they sent the OIG down, real legitimate sworn gun and badge officers. But that oath matters. Have it we treated private security guards similarly in other circumstances because of the nature of their responsibilities? We have, Your Honor. In fact, the first thing I did when I took this- Well, in the call of that immunity context, for example. Correct
. They can pick up 1983 liability under tort law and they are also people that if you bribe them, that is a crime of bribing a government official. But it is not subject to this enhancement that speaks to high level decision making and sensitive position- I don't quite understand the distinction then because if they can be liable for under the same theory to a bribery charge, then I'm not following why the enhancement wouldn't also be applicable. We argue, Your Honor, that if you can privatize this and outsource it to people that respond to not to their oaths but to the shareholders, but it can only be so sensitive. But we don't accept that distinction in most other categories. It would seem to me to be equally significant for 1983 purposes, for instance. Bribing these private contract guards is its own crime to which Mr. Dodd readily admits. But bribing someone more high-ranking is where the proportionality argument comes in. And distinction in your mind is that they don't take the oath that they're not sworn
. That's one of many distinctions and I think very important. If a person puts their hand on something sacred and swears to their creator to uphold the constitution, that's very different than someone whose obligation is to their shareholders. Well, what difference does it make in terms of the elements of the enhancement? Your Honor, the difference that comes, the way it speaks to the elements, the enhancement is through the text of the application notes. And it discusses examples, specific examples of kinds of people that should cause this enhancement to apply and it gives jurors, law enforcement and election officials. No, those are examples, but those examples don't include your prison officers either. But in terms of a position characterized by authority to make decisions, etc., etc., how does their failure to take an oath in form or interpretation? Because those examples are all sworn officials. Jurors taken oath, law enforcement takes an oath, and election officials taken oath
. There's no record evidence that these private contract prisoners are. Where does the enhancement speak of taking the oath? It does not, but the examples share that common thread. It says jurors, law enforcement, or election officials, or those similarly situated. That similar situation is a sworn person. What do you find problematic then about the Fifth Circuit's interpretation of the term public official in United States versus Thomas? Where they said that a public official includes, among other things, an employee or person, acting for or on behalf of the United States. What's wrong with that definition? Well, that certainly extends base liability for the underlying offense. But it does not bind this court to say that a mere private contract prison guard should be sentenced at the enhanced level. This is about the proportionality and the spectrum of the sentencing range where these people belong. If a private contract prison guard taking a broad is at this level, then what happens to the director of the Bureau of Prisons, who's actually a federal employee, and they take a broad? But the consequences of undermining the private officials actions can be just to severe
. Surely you agree, then those of the public official. Your correct, Your Honor, and that can be dealt with in the discretion of the sentencing judge, but there ought to be a higher penalty. And the sentencing commission is trying to create a higher penalty for those who are vastly higher ranking. When they discuss in the text of the application, no decision making power and substantial influence, they're talking about agency level decision makers. And the prior precedent of this court in both Reebrook and Mattskin talks about vastly higher ranking people who did and should have received this enhancement. And Reebrook was talking about an attorney who worked for a commission with access to the commissioners and that power and those privileged information. In Mattskin, you're talking about a senior procurement official who had authority over millions of dollars in Navy contracts. And I guess in each one of those cases, it's an extreme level of trust. Well, we have an extreme level of trust
. I mean, there's really no greater compelling service of government than public safety, arguably public health and safety. And this extreme level of trust we're putting in people who are guarding these violent many times offenders. Why isn't that equivalent? Even though I agree with you, it's not as broad in application perhaps as the public official who can affect a million people by taking a bribe. It's still an extreme level of trust we put in these people. Your Honor, that's why it's punished at the base level, but we think it is not the same level of trust that you invest in actual law enforcement. Because they have one of the most constitutionally significant responsibilities that we can acknowledge, which is that they can take people from... But opposed to take
... I mean, there's a tendency to sort of underestimate this, I think, because the contraband it was smogled in were cigarettes and cell phones. And they're certainly not lethal in and of themselves, but suppose the contraband had been guns or explosives or... or poisons or..
. or knives or... or what have you? I mean, you bribe someone to bring an explosive into the prison. That could be a very, very serious situation. And that's why I think the term sensitive position doesn't simply apply to innocuous items like cigarettes, but to things that could really turn the prison environment into a dangerous or more chaotic one. And so, you know, they do hold a sensitive position in that way. I just come back to the fact that you've predicated your argument and it's a good one, but you've predicated it on the difference between high level officials and ordinary officials. But jurors, for example, are not high level officials
. Your average juror probably isn't a high level official, but they still occupy sensitive positions as far as this enhancement is concerned. And the law enforcement officers mentioned is one of the analogous situations. It may not be high level law enforcement officers, but they're still sensitive. And don't you think, taken as a whole, Mr. Howard, that the guidelines can't be read just to cover really important people? It's focused is on a sensitive position. And sometimes, lower level people in a chain of command or whatever can still hold sensitive positions, can't they? They might, Your Honor, but those are different in scope and nature than the positions these private contract prison guards have. A real law enforcement officer can take someone from liberty into custody. These guards merely shepherd people within custody. They're not law enforcement, they're rule enforcement
. They carry out the rules and policies of their superiors, people who should be- But it's how they carry them out. They can either carry them out faithfully or they can subvert them. And that is the obligation of any run of the Mill bureaucrat, not one in a high level or sensitive position. Well, we thank you, sir. Thank you, Your Honor. And you've also got some rebuttal time. Mr. Rogers. Good morning, Mayor. Please the court. My name is Joshua Rogers, and I represent the United States. Defendant stands before this court convicted of bribing a federal prison official under Section 201. And therefore, the only question before the court today is whether the official he bribed was in a sensitive position. And I bring that up because council refers to other law enforcement officers as real legitimate law enforcement officers. And brings in this idea that contracting authorities aren't real. Well, if they weren't real, that just begs the question why he pleaded guilty. He did plead guilty to bribing a federal prison official. And note 4B does give examples including law enforcement officers
. Please the court. My name is Joshua Rogers, and I represent the United States. Defendant stands before this court convicted of bribing a federal prison official under Section 201. And therefore, the only question before the court today is whether the official he bribed was in a sensitive position. And I bring that up because council refers to other law enforcement officers as real legitimate law enforcement officers. And brings in this idea that contracting authorities aren't real. Well, if they weren't real, that just begs the question why he pleaded guilty. He did plead guilty to bribing a federal prison official. And note 4B does give examples including law enforcement officers. And we would argue that prison officials are law enforcement officers. There's a lot of overlap there. It's not as if there's some. Mr. Rogers, if I could just interrupt for just a moment, I don't think you can. I think the point that Mr. Howard was making quite legitimately is that you can't necessarily conflate. The enhancement and the finding of guilt that it requires slightly more. For an individual to qualify for the enhancement
. And we would argue that prison officials are law enforcement officers. There's a lot of overlap there. It's not as if there's some. Mr. Rogers, if I could just interrupt for just a moment, I don't think you can. I think the point that Mr. Howard was making quite legitimately is that you can't necessarily conflate. The enhancement and the finding of guilt that it requires slightly more. For an individual to qualify for the enhancement. So I don't think that just that simply or. If I'm wrong, please tell me that simply saying. The Mr. Dodd pleaded guilty to bribing. Necessarily answers the inquiry or do you think it does? No, we would agree that there could be a federal official that could be low level that's not in a sensitive position. And the way we know is just by looking at the commentary because of the d'Arth of K-slaw. And that was the point I was making. I just don't, I just think it's probably not a good idea to just conflate them. I would agree with that
. So I don't think that just that simply or. If I'm wrong, please tell me that simply saying. The Mr. Dodd pleaded guilty to bribing. Necessarily answers the inquiry or do you think it does? No, we would agree that there could be a federal official that could be low level that's not in a sensitive position. And the way we know is just by looking at the commentary because of the d'Arth of K-slaw. And that was the point I was making. I just don't, I just think it's probably not a good idea to just conflate them. I would agree with that. And I think also that Mr. Howard places a lot of emphasis on the fact that the laundry list of people do take an oath. I take it. You do not think that that is a determinative factor or should be. We do not agree that it's a determinative factor at all. The guidelines don't point it out. And in fact, the guidelines would eviscerate that argument by the fact that it says that any other similarly situated individual, I think it's a stretch to say that similarly situated means anyone who happens to have duties like this and has taken a note. There's no case that says that and I don't believe we're. I'm wondering how far this stretches
. And I think also that Mr. Howard places a lot of emphasis on the fact that the laundry list of people do take an oath. I take it. You do not think that that is a determinative factor or should be. We do not agree that it's a determinative factor at all. The guidelines don't point it out. And in fact, the guidelines would eviscerate that argument by the fact that it says that any other similarly situated individual, I think it's a stretch to say that similarly situated means anyone who happens to have duties like this and has taken a note. There's no case that says that and I don't believe we're. I'm wondering how far this stretches. For example, if you were to drive an official to, in the Department of Agriculture to give you or your friends additional food stamps or you were to a bribe, someone to let you in to the a museum official to let you in to the front of the line at a very, very popular exhibit. And let's suppose this is a federal museum. And I mean, the question is how far does it go? The food stamp example and the Senator, look, I want to get to the front of the line to see this magnificent Picasso exhibit at the national gallery. And I'm afraid I'm not going to I'm going to miss my plane if I don't get get in. Here's $40, $50, you get to the front of the line. I mean, is that does that person occupy a sensitive physician in your judgment? No, your honor because we have jurors who are interested with verdicts. We have law enforcement officers who are interested with enforcing the law. And we have election officials who are interested with the outcomes of elections. We would argue that in that case someone's admission into a museum or ability to give someone food stamps that would give them extra food
. For example, if you were to drive an official to, in the Department of Agriculture to give you or your friends additional food stamps or you were to a bribe, someone to let you in to the a museum official to let you in to the front of the line at a very, very popular exhibit. And let's suppose this is a federal museum. And I mean, the question is how far does it go? The food stamp example and the Senator, look, I want to get to the front of the line to see this magnificent Picasso exhibit at the national gallery. And I'm afraid I'm not going to I'm going to miss my plane if I don't get get in. Here's $40, $50, you get to the front of the line. I mean, is that does that person occupy a sensitive physician in your judgment? No, your honor because we have jurors who are interested with verdicts. We have law enforcement officers who are interested with enforcing the law. And we have election officials who are interested with the outcomes of elections. We would argue that in that case someone's admission into a museum or ability to give someone food stamps that would give them extra food. Don't fall within the category of someone who's similarly situated there. We have looked at a, no. In a public welfare organization for additional benefits or to accept a falsified application form. We would argue that in that case it's probably, that person is probably not similarly situated to a juror, a law enforcement officer or an election official. Because when we look at what prison officials do, they safeguard the security of prisons by, for example, reporting violations of prison rules, maintaining order, confiscating contraband, and conducting investigations into potential criminal activity. These are a lot of activities that overlap with law enforcement. So even if someone is handing a public official 15 false applications for food stamps and the official knows that it's, knows the applications to be false and handed in on bulk basis. And there's a bribe of $500. You would say that's not a sensitive position
. Don't fall within the category of someone who's similarly situated there. We have looked at a, no. In a public welfare organization for additional benefits or to accept a falsified application form. We would argue that in that case it's probably, that person is probably not similarly situated to a juror, a law enforcement officer or an election official. Because when we look at what prison officials do, they safeguard the security of prisons by, for example, reporting violations of prison rules, maintaining order, confiscating contraband, and conducting investigations into potential criminal activity. These are a lot of activities that overlap with law enforcement. So even if someone is handing a public official 15 false applications for food stamps and the official knows that it's, knows the applications to be false and handed in on bulk basis. And there's a bribe of $500. You would say that's not a sensitive position. I would argue that it probably isn't because of the fact that it does not reflect the kind of duties that we see in a juror, a law enforcement officer, or an election official. And this case is made easier by the fact that, you know, we're arguing that prison officials are a type of law enforcement officer because of all the overlap. And, of course, you drive an IRS if it shall not to audit. Again, it's starting to move into the area of law enforcement because the IRS does, you know, it is in the area of enforcing the law, at least with our tax laws. So the closer we get towards being a similarly situated individual, the harder question it's going to be, and the more likely someone's going to be in a sensitive position. So it's a spectrum, isn't it? Yes, Your Honor. And, you know, we would also point out that, you know, sensitive position does mean a position characterized by the direct authority to make decisions on behalf of a government agency. The district court found that the prison guards occupied an important position and that they had the authority to quote guard in a prison setting, deal with inmates, discharge duties, promote respect, and maintain safety. So the district court relied on the Fifth Circuit, which is what it mostly had to rely upon at that point, and held that quote, a prison guard has the authority and ability to directly and significantly influence inmates' lives and the entire facility's safety with the decisions he or she makes
. I would argue that it probably isn't because of the fact that it does not reflect the kind of duties that we see in a juror, a law enforcement officer, or an election official. And this case is made easier by the fact that, you know, we're arguing that prison officials are a type of law enforcement officer because of all the overlap. And, of course, you drive an IRS if it shall not to audit. Again, it's starting to move into the area of law enforcement because the IRS does, you know, it is in the area of enforcing the law, at least with our tax laws. So the closer we get towards being a similarly situated individual, the harder question it's going to be, and the more likely someone's going to be in a sensitive position. So it's a spectrum, isn't it? Yes, Your Honor. And, you know, we would also point out that, you know, sensitive position does mean a position characterized by the direct authority to make decisions on behalf of a government agency. The district court found that the prison guards occupied an important position and that they had the authority to quote guard in a prison setting, deal with inmates, discharge duties, promote respect, and maintain safety. So the district court relied on the Fifth Circuit, which is what it mostly had to rely upon at that point, and held that quote, a prison guard has the authority and ability to directly and significantly influence inmates' lives and the entire facility's safety with the decisions he or she makes. Again, a reflection of the fact that they are acting on behalf of the Bureau of Prisons. Okay. I think we understand your argument. Well, if there are no further questions, I would ask that this court affirm the district court, and I'll take my seat. The either of you, please. Thank you, Your Honor. Mr. Howard, you have some time for a rebuttal, sir. Thank you, Your Honor
. Again, a reflection of the fact that they are acting on behalf of the Bureau of Prisons. Okay. I think we understand your argument. Well, if there are no further questions, I would ask that this court affirm the district court, and I'll take my seat. The either of you, please. Thank you, Your Honor. Mr. Howard, you have some time for a rebuttal, sir. Thank you, Your Honor. If I may address briefly the outer limits of this enhancement and your concern about what I call the practicality of this enhancement, that's defined by reference. The outer limits are defined by reference to this application note for a, which provides the definition that's relevant here. High-level decision-making or sensitive position means a position characterized by direct authority to make decisions for or on behalf of a government department agency or other government entity or by substantial influence over the decision-making process. There is no record evidence, in this case, that these private contract prison guards had any similar authority to that. They had authority over the individual lives of individual inmates, and that's a crime. And he's pled guilty to that. But the extra enhancement requires much higher-level authority, agency-wide, departmental authority, that these private contractors do not have, they're not even federal employees, they can't possibly have it. And we suggest that affirming this enhancement would do violence to the any concept of outer limit on this enhancement. And if the court has no further questions, we would simply ask that you vacate and remand this sentence for a resenancing without that enhancement
. All right, we thank you, Mr. Howard. And I see that you were court-appointed, attorney, and you've really done a fine job with this case, and the court appreciates it. Thank you. We'd like to adjourn court and come down in Greek Council