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standard, we hold that the District Court did not clearly err in
finding that Richards was a public official in a high-level
decision-making or sensitive position. Accordingly, we will
affirm.
I. Facts and Procedural History
In December 2009, Richards was charged with one
count of violating 18 U.S.C. 666(a)(1)(B) for accepting a
bribe in excess of $1,000 but less than $5,000 in connection
with assistance given by Richards to Continental Consultants,
a New York consulting firm interested in contracting with
Luzerne County. Richards accepted $1,000 and free New
York Mets tickets from Continental Consultants.
In
exchange, he helped Continental Consultants to obtain a
contract with Luzerne County to provide temporary
employment services for individuals hired to perform cleanup work in the aftermath of a 2006 flood. Continental
Consultants paid Richards because he got the ball rolling on
the project and assisted in preparing the paperwork for the
contract. PSR at 19. Richards also did all the
administrative work for Continental Consultants contract
with Luzerne County. (App. at 26.)
Richards pled guilty to violating 666(a)(1)(B). In the
Presentence Report, the probation officer recommended a
sentence of fifteen to twenty-one months imprisonment.
This recommendation was based on 2C1.2(a)(1), the
applicable guideline for a violation of 666(a)(1)(B), which
set the base offense level at eleven. The probation officer
then added two levels pursuant to 2C1.2(b)(1) because the
offense involved more than one gratuity. Next, the probation
officer added four levels pursuant to 2C1.2(b)(3) because
the offense involved a public official in a high-level decisionmaking or sensitive position. The officer then subtracted
three levels for Richardss acceptance of responsibility
pursuant to 3E1.1. The resulting offense level was fourteen.
With a criminal history placing him in Category I, the
advisory sentencing range was therefore fifteen to twenty-one
months.
Richards was sentenced on December 13, 2010 to
fifteen months imprisonment and two years of supervised
release. At the sentencing hearing, Richards objected to the
four-level enhancement pursuant to 2C1.2(b)(3). That
enhancement provides:
If the offense involved an elected public official
or any public official in a high-level decisionmaking or sensitive position, increase by 4
levels. If the resulting offense level is less than
level 15, increase to level 15.
U.S.S.G. 2C1.2(b)(3). The commentary to that section, in
turn, provides:
(A) Definition.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 decisionmaking process.
II. Discussion
On appeal, Richards contends that the District Court
erred in finding him subject to the enhancement because,
although he was a public official, he did not occupy a highlevel decision-making or sensitive position. Before we can
determine whether the District Court was correct in applying
the enhancement, however, we must first decide under what
standard we are to review the District Courts decision de
novo, abuse of discretion, or clear error.
A.
Standard of Review
We should note that the Court also based its holding in part
on the existence of 18 U.S.C. 3742(e), which requires
courts of appeals to accept the findings of fact of the district
court unless they are clearly erroneous and to give due
deference to the district courts application of the guidelines
to the facts. Subsequently, the Court decided United States
v. Booker, 543 U.S. 220, 259-60 (2005), in which it excised
3742(e) because it contained cross-references to the alsoexcised provision of the United States Code making the
Guidelines mandatory, 18 U.S.C. 3553(b)(1). In so doing,
the Court was particularly troubled by the provision in
3742(e) requiring de novo review of departures from the
applicable Guidelines range because it reinforced the
mandatory nature of the Guidelines, but it expressed no
concerns about the provisions calling for deferential review of
findings of fact and application of the Guidelines to the facts.
542 U.S. at 261. Then, in Grier, we recognized that
3742(e) had been excised, see 475 F.3d at 564, but
nevertheless held that, given the nature of the inquiry and
relative institutional advantage, we would continue to apply
clear error review to fact-findings by a district court, see id. at
569-70. We do not view the excision of 3742(e) as
undermining the Courts reasoning in Buford. In fact, in Rita
v. United States, 551 U.S. 338, 361-62 (2007), Justice Stevens
observed that Booker did not disturb the portions of
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See also United States v. Snow, 663 F.3d 1156, 1162 (10th
Cir. 2011) (reviewing application of the organizer or leader
enhancement for clear error); United States v. RodriguezRamos, 663 F.3d 356, 364 (8th Cir. 2011) (same); United
States v. Barrington, 648 F.3d 1178, 1200 (11th Cir. 2011)
(same); United States v. Wardell, 591 F.3d 1279, 1304 (10th
Cir. 2009) (reviewing application of organizer or leader
enhancement for clear error because it involves a factual
determination); United States v. Garcia-Pastrana, 584 F.3d
351, 393 (1st Cir. 2009) (reviewing application of organizer
or leader enhancement for clear error); United States v. Gotti,
459 F.3d 296, 349 (2d Cir. 2006) (reviewing application of
organizer or leader enhancement for clear error because it is a
predominantly factual question); United States v. Hankton,
432 F.3d 779, 793 (7th Cir. 2005) (reviewing application of
the organizer or leader enhancement for clear error); United
States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002) (same);
United States v. Berry, 258 F.3d 971, 977 (9th Cir. 2001)
(same); United States v. Miller, 161 F.3d 977, 984 (6th Cir.
1998) (same); United States v. Sidhu, 130 F.3d 644, 655 (5th
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See also United States v. Leiskunas, 656 F.3d 732, 739 (7th
Cir. 2011); United States v. McElwee, 646 F.3d 328, 346 (5th
Cir. 2011); United States v. Mitchell, 613 F.3d 862, 870 (8th
Cir. 2010); United States v. Bernal-Benitez, 594 F.3d 1303,
1320 (11th Cir. 2010); United States v. Rosa-Carino, 615
F.3d 75, 81 (1st Cir. 2010); United States v. Blake, 571 F.3d
331, 352 (4th Cir. 2009); United States v. Groenendal, 557
F.3d 419, 423 (6th Cir. 2009); United States v. Tankersley,
537 F.3d 1100, 1110 (9th Cir. 2008); United States v.
Martinez, 512 F.3d 1268, 1275 (10th Cir. 2008); United
States v. Castano, 234 F.3d 111, 113 (2d Cir. 2000); United
States v. Mathis, 216 F.3d 18, 26 (D.C. Cir. 2000).
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III. Conclusion
For the foregoing reasons, we will affirm the judgment
of the District Court.
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