case this case i think is primarily about the text of the guidelines and his commentary which are authoritative the guideline itself refers to any public official in a high level decision making or sensitive position and that language by itself might be ambiguous and we might have a nice debate about what sensitive needs of the sentencing commission defines and interprets the term more narrowly than the broad definitions that say the th circuit or the district court gave to that term commentary no for a talks about decision making ability or substantial influence on the decision making process we describe in our brief we use the word discretion maybe more than this issue making i think that's slightly inaccurate it really is about can a public official make decisions or have a substantial influence on the decision making process of the agen y so what we have here is we have a low level employee who can't who doesn't have that ability the employee obviously makes decisions every day about how to carry out his job but precisely and that's that's why he's not in a sensitive position he has no influence on what the bureau does your presence decides to do he certainly doesn't have a substantial influence if if he's going to be bribed and the bribe is going to be best not permitted by the bureau of prisons that's not an official act that i mean that's just contrary to law in other words he doesn't have the ability to make a decision as to whether somebody should go free or not well that's the government's best argument and the reason why is because the those that's an example of what the definition is trying to achieve and so what we have to look to st is whether we've satisfied the definition so for example if i were to give you your here are some examples of cities that meta definition bloomington indiana west lafayette indiana champagne illinois the question is is an arbor a similarly situated sit and we don't know the definition might say cities that have a big ten university and in which case it would fit the definition it is similarly situated the definition might say big tent towns within the th circuit in which case it would not be similarly situated to those cities so the example of law enforcement officer we have to look to whether correctional officers are similarly situated in the way that the definition talks about and law enforcement officers have much greater to the ability to make decisions on behalf of the government so the typical example is a law enforcement officer pull somebody over they have a lot of discretion a lot of decision making ability to determine do i give this person a warning direct them a citation do i arrest them there's a great deal of decision making ability there and it really gets to what the sentencing commission is saying in this background commentary that this provision really only applies to official acts right the language is if the payment was for the purpose of influencing an official act we think that an exam like and an official act the negative you know judge penny was asking about looking at where leaving the cell door open i mean is it an official acts not to report or you know use that as an example of discretion does that count and yet he lets me speed and he doesn't pull me over i think that would because so many people speed the decision on whether to pull somebody over is is a decision that's intrusted to a law enforcement officer it's how do we have to force the law this he's acting perfectly compliant with the law to say i'm not going to pull that person over now if if somebody gave them a bribe to do so then the reason that's unlawful is because of the bribe it's not because you let somebody speed because police officers let people speed all the time  the question is whether the decision to stop somebody is a decision that's intrusted to that officer so leaving a cell door open or leaving the gates of the prison open that is not a decision that's untrusted to the officer there  policies you know the record such as it is in this case indicates he couldn't let people stay out after lights out he couldn't let people go to the library without getting you know some sort of supervisory permission  i'm sorry in the right of citations for disciplinary and factions i believe he can that that may be the case is whether to report some prisoners and not others just like a police officer can choose to pull some people of mine and others i think that it hasn't come up in the briefs and so i don't have the particular regulations and my my impression is that his ability to do that is more tightly through to what extent does your human depend on the empirical claim the official act bribery as you describe it is harder to detect than other kinds of bribery i don't think it depends at all on that imperial claim i think it explains why the sentencing commission wrote what it did but what the sensing commission said was i mean quite literally if if the payment was for official act then section two see one point one b three applies and we know that the sentencing commission consider the different types of bribery because in the commentary you say you see this was difficulty to crime harder to detect bribery when the action is authorized by law if it weren't corrupt you know if it weren't motivated by an improper motive and so it makes sense to increase the offense level for increase deterrence if it's harder to detect we need to deter it but i think this is a textual argument is just what do the guidelines say and how to how are they interpreted in the commentary my contention  united states the district court here correctly applied a four level enhancement under guideline to see one point one b three because the defendant's offense involved a public official in a sens application note for to the guideline defines an individual in a sense to physicians as someone who has authority to make decisions on behalf of a government agency and it gives an example of a law enforcement officer the supreme court has held that a federal corrections officer someone who is employed by the federal bureau of prisons is in fact a law enforcement officer for purposes of the federal tort claims act this court has also treated correctional officers as one person officers for title three purposes that makes sense they have decision they have the authority to make decisions on behalf of the bureau of prisons for example under eighteen arrest for in the exercise of their discretion as some of you noted and questions to mr henderson a correctional officer also has discretion in the way that he exercises his authority in the conduct of a prison to ensure the safety and security of the community and investigate offenses they can shoot citations they can initiate disciplinary proceedings they can take a walk if hating a circuit split if we have got to the defendant's position here certainly your honor by my research every other circuit has addressed this issue has held that a federal correctional officer is in fact in the sensitive position the safety and security of a prison environment and the guidelines i'm sorry the sentencing commission made a determination under the guidelines to treat that as being one more serious breach of trust in the context of bribery  that's i don't think that it's true that the detection of bribery offenses d what motivates this particular enhanced it's the violation of the public trust and the fact that you know if you have a crime that's committed by a prison guard or a police officer it's more serious than a than the same crime when it's committed by somebody who is a low level it ministry of personnel employed by the same company and the guidelines reflect that with respect to the homie i'm having a employed by let's say the bureau of prisons but as the defendant notices achaean it or i don't think that that's a sensitive position to which the guideline would apply or somebody who works at a front desk at a police department that's not a cases i am not aware of the top of my head of a case in which our office at least has prosecuted individuals who are in those positions but it certainly i think would be covered by for example to a one and and there wouldn't be a sensitive position involved in those cases i mean you are correct insofar as most of at least our prosecutions involve individuals in sensitive positions you know that's effective that's an effective you know the decision making as to the allocation of resources for prosecutions but it doesn't make the enhanced man any less proper than those in the circumstances if there are no further questions from the panel the government would ask that the court affirm the district court's judgment and the defendant's sentence  i guess to two main things to focus on just to return to the government's essential argument is look at the examples law enforcement officer sounds a lot like corrections officer and that skips a step we have to deal with the definition the government talks about well they're in a sensitive position because of the safety and security of prisons but that's not the definition of what is and that position sensitive position is a position characterized by either direct authority or substantial influence on the decision making process knots are they in a place where they have to regulate safety and security so we have to start with the definition and look at the examples rather than the other way around  would yes but that that decision is not authorized by law so i'll just take one minute a judge can say under the three thousand five hundred and fifty three a factors i'm giving you seven years when if he hadn't gotten a bride from the prosecutor he would have given them five that decision is going to be an reviewable the judge has authority to order a seven year sentence that's authorized by the law a prison guard is not a i'm sorry