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. e du/thir dc ir c uit_1998/173Filed July 24, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-7368

UNITED STATES OF AMERICA

v.

LAWYER LEE WALKER,

Appellant

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
D.C. No. 97-cr-00012

Argued April 21, 1998

Before: STAPLETON, NYGAARD and WEIS, Circuit Judges

(Opinion Filed: July 24, 1998)

Stephen F. Becker (Argued)

114 Market Street Lewisburg, PA 17837

Counsel for Appellant

Frederick E. Martin (Argued)
Office of the United States
Attorney
240 West Third Street

P. O. Box 548 Williamsport, PA 17703

Counsel for AppelleeOPINION OF THE COURT

NYGAARD, Circuit Judge.

Lawyer Lee Walker appeals his sentence after pleadi ng guilty to possession of a prohibited object by an i nmate, 18 U.S.C. S 1791, and impeding a federal officer, 19 U .S.C. S 111. Specifically, he contends that the district court erred by applying U.S. Sentencing Guidelines Manual S 3A1 .2(b) (1997) ("Official Victim") to impose a three-level enhancement to his sentence for assaulting a "corre ctions
officer." We conclude that the district court used the appropriate guideline, but misconstrued the phrase
"corrections officer." We will reverse and remand f or further fact-finding as the district court deems appropriat e, and for resentencing.

I.

Walker, an inmate at the United States Penitentiary at Lewisburg, Pennsylvania, worked on a food service d etail in the kitchen supervised by David Wadeck. During a confrontation with Walker, Wadeck called Walker a"p unk." Later, Walker attacked Wadeck from behind with a la rge, steel food service ladle or paddle. Walker was even tually charged with unlawful possession of a weapon by an inmate, 18 U.S.C. S 1791(a)(2), and resisting and i mpeding a federal officer, 18 U.S.C. S 111(a). Walker plead ed guilty to both charges, but filed objections to the presen tence report.

At the sentencing hearing, the district court accep ted Walker's objections to the application of section 3 A1.2(a) because the court found, based on evidence adduced at the hearing, that the attack was not motivated by Wadec k's status as a government employee, but rather his use of the term "punk." The district court, sua sponte, raised the possible applicability of section 3A1.2(b), which n either party nor the PSR had previously mentioned. After argument and additional testimony from Special Investigative Agent Aponte, the district court appl ied

2subsection (b) instead of (a) to enhance Walker's s entence

by three levels. The guideline in its entirety prov ides as

follows:

"Official Victim

If --

(a) the victim was a government officer or employee; a former government officer or employee; or a member of the immediate family of any of the above, and the offense of conviction was motivated by such status; or

(b) during the course of the offense or imm ediate flight therefrom, the defendant or a person for whose
conduct the defendant is otherwise accountab le, knowing or having reasonable cause to believ e that a person was a law enforcement or corrections officer, assaulted such officer in a manner creating a substantial risk of serious bodily injury,

increase by 3 levels."

U.S.S.G. S 3A1.2 (emphasis added, bold in original) . The district court then adopted the rest of the factual findings and guideline applications of the PSR and sentenced Walker to the lower end of the 77 to 96 month guide line range, supervised release of two to three years, a $200.00 special assessment, and to make restitution in the amount of $4,769.69. Walker now appeals the imposition of the section 3A1.2(b) enhancement to his sentence.

II.

A.

Walker does not dispute the facts elicited from wit ness testimony after the district court raised the possi ble applicability of section 3A1.2(b) at the sentencing hearing. He argues instead that the "corrections officer" in section 3A1.2(b) does not include cook/supervisor employees such as Wadeck. The issue here is one of statutory const ruction and subject to plenary review. United States v. Huf f, 873 F.2d 709, 713 (3d Cir. 1989).

3B.

As an initial matter, Walker argues on appeal that section 3A1.2(b) does not apply at all. For support, he cit es an application note under that section, which provides in pertinent part:

"Subdivision (b) applies in circumstances ta ntamount to aggravated assault against a law enforcem ent or corrections officer, committed in the course of, or in immediate flight following, another offense, such as bank robbery."

U.S.S.G. S 3A1.2 cmt. (n.5) (emphasis added). Based on the "another offense" language, Walker argues that the aggravated assault used as the base level offense c annot
also be used to enhance his sentence.

We need not decide that because Walker's punishable conduct is more than the assault underlying the enhancement. Walker pleaded guilty to two offenses: impeding a federal officer by the aggravated assaul t, and possessing a prohibited object. Hence, Walker's ass ault on
Wadeck was "committed in the course of . . . anothe r offense," namely, the possession of a prohibited ob ject. We conclude that the enhancement provisions apply if W adeck
meets the definition of "corrections officer." See United States v. Valdez-Torres, 108 F.3d 385, 390 (D.C. Ci r. 1997).

C.

The thrust of Walker's argument, however, is that
Wadeck was not a "corrections officer" within the m eaning of section 3A1.2(b). "Corrections officer" is not d efined in the commentary to this guideline, nor anywhere else in the Sentencing Guidelines. Moreover, it is not defined in title 18 of the U.S. Code or in the Code of Federal Regulati ons.

In support of the district court's implicit conclus ion that Wadeck is a corrections officer, the governmentfirs t highlights the special environment within a prison' s walls. Next, it points out that "prison staff," defined as "any employee of the Bureau of Prisons," 28 C.F.R.S 500. 1(b), have disciplinary authority, 28 C.F.R. S 541.10(b), and arrest authority, 18 U.S.C. S 3050. Nonetheless, th ese

4factors are not dispositive of who is a "correction s officer"

for purposes of this sentencing enhancement. Furthe r, the government's characterization of the district court 's conclusion that "all prison employees, who work in facilities and frequently interact with inmates, fall within t he protection of Section 3A1.2(b)," is supported neith er by citations to the record nor by legal authority.

According to Walker, there must be a distinction be tween an officer and an employee under the guidelines bec ause section 3A1.2(a) refers to federal officers and emp loyees, while subsection (b)'s coverage is limited to law e nforcement
and corrections officers. Walker submits that Wadec k was merely "a cook/supervisor employee . . . not a corr ections officer." Walker notes that when section 3A1.2(a) w as amended in 1992 to its present form, subsection (b) was not correspondingly amended, thus evincing an impli ed intent by the Sentencing Commission to exclude the additional types of officers and employees covered by subsection (a).

Walker's position finds some support in a general r ule of statutory construction: one part of a statute will not be interpreted in such a way as to make another part meaningless or superfluous. See United States v. Po well, 6 F.3d 611, 614 (9th Cir. 1993); cf. United States v. Wong, 3 F.3d 667, 670 (3d Cir. 1993) (applying doctrine of "expressio unius est exclusio alterius"). Here, "go vernment officer[s]" in section 3A1.2(a) must be a group dis tinct from "government . . . employee[s]," otherwise "governme nt officer" would be superfluous. Similarly, a natural reading
of the entire section indicates to us that "law enf orcement or corrections officer[s]" is a subset of "governme nt officer[s]." It follows then that corrections offic ers should also be considered a group distinct from other gove rnment employees.

This distinction between officers and employees is supported by other statutory and regulatory provisi ons. For example, the officer/employee distinction appears b y reference in the criminal statute defining the offe nse to which Walker pleaded guilty, 18 U.S.C. S 111. That statute protects "any person designated in section 1114 of this title while engaged in or on account of the performance o f

5official duties . . . ." 18 U.S.C. S 111(a)(1). At the time of the

assault, July 30, 1996, section 1114 included:

"any officer or employee of the United State s or of any agency in any branch of the United States Go vernment (including any member of the uniformed servi ces) . .. or any person assisting such an officer or e mployee in the performance of such [official] duties . . . ."

18 U.S.C. S 1114 (emphasis added).

The officer/employee distinction is also apparent i n statutes pertaining to the Bureau of Prisons. The A ttorney General has the authority to appoint a director of the Bureau of Prisons and "may appoint such additional officers and employees as he deems necessary." 18 U .S.C. S 4041 (emphasis added). Under another statute, "[t ]he control and management of Federal penal and correct ional institutions, except military or naval institutions , shall be vested in the Attorney General, who shall promulgat e rules for the government thereof, and appoint all necessa ry officers and employees in accordance with the civil -service laws, the Classification Act, as amended and the ap plicable regulations." 18 U.S.C. S 4001(b) (emphasis added).

Walker's argument that the term "corrections office r" does not encompass employees such as Wadeck finds further support in the Office of Management and Bud get's Proposed 1997 Standard Occupational Classification Manual. There, Correctional Officers and Jailers pe rform the following functions:

"Guard inmates in penal or rehabilitative in stitution in accordance with established regulations and procedures. May guard prisoners in transit b etween jail, courtroom, prison, or other point. Inc lude deputy sheriffs and police who spend the majority o f their time guarding prisoners in correctional instituti ons."

(visited July 1, 1998) http://stats.bls.gov/soc/soc _5360.htm>. Also, the Department of Labor describes a "correcti on officer" as one who:

"[g]uards inmates in penal institution in ac cordance with established policies, regulations, and procedures:
Observes conduct and behavior of inmates to prevent

6disturbances and escapes. Inspects locks, wi ndow

bars, grills, doors, and gates for tampering . Searches
inmates and cells for contraband articles. G uards and directs inmates during work assignments. Pat rols assigned areas for evidence of forbidden act ivities, infraction of rules, and unsatisfactory atti tude or adjustment of prisoners. Reports observation s to superior. Employs weapons or force to mainta in discipline and order among prisoners, if nec essary. May escort inmates to and from visiting room , medical office, and religious services. May guard en trance of jail to screen visitors. May prepare written repo rt concerning incidences of inmate disturbances or injuries. May be designated according to ins titution as Correction Officer, City Or County Jail; Cor rection Officer, Penitentiary; Correction Officer, R eformatory. May guard prisoners in transit between jail, courtroom, prison, or other point, traveling by automob ile or public transportation and be designated Guar d, Deputy."

1 U.S. Dep't of Labor, Dictionary of Occupational T itles 268 (4th ed. rev. 1991) (parenthetical notations omitte d). We are convinced that a "corrections officer," as referenc ed in section 3A1.2(b), is a person distinct from other p rison employees.

Finally, our jurisprudence counsels us to apply the commonly used definition of words not defined in th e Sentencing Guidelines. See United States v. Brannan , 74 F.3d 448, 453 (3d Cir. 1996). Applying the procedur e utilized in Brannan, we find "correction" defined a s "the treatment and rehabilitation of offenders through a program involving penal custody, parole, and probat ion." Webster's Ninth New Collegiate Dictionary 293 (1988 ). "Officer" is defined as "one charged with police du ties" and "one who holds an office of trust, authority, or co mmand," id. at 820, while "employee" is defined as "one emp loyed by another usu[ally] for wages or salary and in a posi tion below the executive level," id. at 408.

Based upon the above, we hold that for purposes of applying section 3A1.2(b), a "corrections officer" is any person so titled, any person, however titled, who s pends

7significant time guarding prisoners within a jail o r

correctional institution or in transit to or from o r within a jail or correctional institution, and all other per sons assaulted while actually engaged in guarding prison ers. The Presentence Investigation Report identifies Wadeck as a cook/supervisor who was the immediate supervisor of inmate employees in the prison kitchen. (PSR P4, at 5.) Later references in the PSR report characterize Wad eck both as a corrections officer, (PSR P11, at 5; PSR Add. at 19), and as an employee, (PSR P22, at 7). At the se ntencing hearing, the government referred to Wadeck as a government employee before the district court raise d this issue. However, at one point during his testimony, Walker characterized Wadeck as "a cop."

Special Investigative Agent Nelson Aponte testified that all Bureau of Prisons employees, including chaplain s, psychologists, and cooks like Wadeck, receive the s ame correctional training, and that when an incident oc curs, "You respond as a corrections officer first, and th en your specialty, whether it be psychology, food service, chaplain. When the call for assistance is sounded, you respon d as a
correctional officer to the situation." On cross ex amination, Aponte testified that some employees are titled as
correctional officers and some are not.

None of this, however, is very helpful in defining Wadeck's status for Sentencing Guideline purposes. If Wadeck's title is "corrections officer," if he spen ds significant time guarding prisoners, or if he was, at the time of the assault, actually engaged in guarding prison ers, then he is entitled to the extra protection afforded an official victim, and Walker is subject to the enhancement provisions designed to do just that. If "correction s officer" is to have meaning apart from "government employee," a nd we conclude that it must, then Wadeck is not a correct ions officer according to this record. First, there is n o evidence
that Wadeck held the title of Corrections Officer. Second, nothing in the record indicates that Wadeck spent a significant amount of time guarding inmates or that he was actually doing so at the time of the assault. Final ly, the
PSR contains internal conflicts as to Wadeck's stat us; thus, without more, the district court and the government err by relying on the factual findings therein.

8III.

In sum, we hold that the district court used the appropriate guideline. Nonetheless, we will reverse and remand for resentencing because the district court used an
incorrect definition of "corrections officer." On r emand, if the government believes it has evidence sufficient to qualify Wadeck as a corrections officer, the district court may decide to conduct further fact-finding and, applyin g our definition of corrections officer, see if Walker is subject to the section 3A1.2(b) "Official Victim" enhancement. See United States v. Dickler, 64 F.3d 818, 832 (3d Cir. 1995) (district courts are in the best position to determ ine the fairness of further fact finding at resentencing). Otherwise,
it must resentence Walker without it.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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