1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-24-1998

United States v. Walker

Precedential or Non-Precedential:

Docket 97-7368

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Recommended Citation

"United States v. Walker" (1998). 1998 Decisions. Paper 173.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/173
Filed 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 Appellee 
OPINION OF THE COURT 

NYGAARD, Circuit Judge. 

Lawyer Lee Walker appeals his sentence after pleading 

guilty to possession of a prohibited object by an inmate, 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 "corrections 

officer." We conclude that the district court used the 

appropriate guideline, but misconstrued the phrase 

"corrections officer." We will reverse and remand for further 

fact-finding as the district court deems appropriate, and for 

resentencing. 

I. 

Walker, an inmate at the United States Penitentiary at 

Lewisburg, Pennsylvania, worked on a food service detail in 

the kitchen supervised by David Wadeck. During a 

confrontation with Walker, Wadeck called Walker a"punk." 

Later, Walker attacked Wadeck from behind with a large, 

steel food service ladle or paddle. Walker was eventually 

charged with unlawful possession of a weapon by an 

inmate, 18 U.S.C. S 1791(a)(2), and resisting and impeding 

a federal officer, 18 U.S.C. S 111(a). Walker pleaded guilty 

to both charges, but filed objections to the presentence 

report. 

At the sentencing hearing, the district court accepted 

Walker's objections to the application of section 3A1.2(a) 

because the court found, based on evidence adduced at the 

hearing, that the attack was not motivated by Wadeck'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 neither 

party nor the PSR had previously mentioned. After 

argument and additional testimony from Special 

Investigative Agent Aponte, the district court applied 

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

by three levels. The guideline in its entirety provides 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 immediate 

 flight therefrom, the defendant or a person for whose 

 conduct the defendant is otherwise accountable, 

 knowing or having reasonable cause to believe 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 guideline 

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 witness 

testimony after the district court raised the possible 

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 construction 

and subject to plenary review. United States v. Huff, 873 

F.2d 709, 713 (3d Cir. 1989). 

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B. 

As an initial matter, Walker argues on appeal that section 

3A1.2(b) does not apply at all. For support, he cites an 

application note under that section, which provides in 

pertinent part: 

 "Subdivision (b) applies in circumstances tantamount 

 to aggravated assault against a law enforcement 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 cannot 

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 assault, and 

possessing a prohibited object. Hence, Walker's assault on 

Wadeck was "committed in the course of . . . another 

offense," namely, the possession of a prohibited object. We 

conclude that the enhancement provisions apply if Wadeck 

meets the definition of "corrections officer." See United 

States v. Valdez-Torres, 108 F.3d 385, 390 (D.C. Cir. 1997). 

C. 

The thrust of Walker's argument, however, is that 

Wadeck was not a "corrections officer" within the meaning 

of section 3A1.2(b). "Corrections officer" is not defined 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 Regulations. 

In support of the district court's implicit conclusion that 

Wadeck is a corrections officer, the governmentfirst 

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, these 

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factors are not dispositive of who is a "corrections officer" 

for purposes of this sentencing enhancement. Further, 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 the 

protection of Section 3A1.2(b)," is supported neither by 

citations to the record nor by legal authority. 

According to Walker, there must be a distinction between 

an officer and an employee under the guidelines because 

section 3A1.2(a) refers to federal officers and employees, 

while subsection (b)'s coverage is limited to law enforcement 

and corrections officers. Walker submits that Wadeck was 

merely "a cook/supervisor employee . . . not a corrections 

officer." Walker notes that when section 3A1.2(a) was 

amended in 1992 to its present form, subsection (b) was 

not correspondingly amended, thus evincing an implied 

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 rule 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. Powell, 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, "government 

officer[s]" in section 3A1.2(a) must be a group distinct from 

"government . . . employee[s]," otherwise "government 

officer" would be superfluous. Similarly, a natural reading 

of the entire section indicates to us that "law enforcement 

or corrections officer[s]" is a subset of "government 

officer[s]." It follows then that corrections officers should 

also be considered a group distinct from other government 

employees. 

This distinction between officers and employees is 

supported by other statutory and regulatory provisions. For 

example, the officer/employee distinction appears by 

reference in the criminal statute defining the offense 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 of 

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official 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 States or of any 

 agency in any branch of the United States Government 

 (including any member of the uniformed services) . .. 

 or any person assisting such an officer or employee in 

 the performance of such [official] duties . . . ." 

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

The officer/employee distinction is also apparent in 

statutes pertaining to the Bureau of Prisons. The Attorney 

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 correctional 

institutions, except military or naval institutions, shall be 

vested in the Attorney General, who shall promulgate rules 

for the government thereof, and appoint all necessary 

officers and employees in accordance with the civil-service 

laws, the Classification Act, as amended and the applicable 

regulations." 18 U.S.C. S 4001(b) (emphasis added).

Walker's argument that the term "corrections officer" 

does not encompass employees such as Wadeck finds 

further support in the Office of Management and Budget's 

Proposed 1997 Standard Occupational Classification 

Manual. There, Correctional Officers and Jailers perform the 

following functions: 

 "Guard inmates in penal or rehabilitative institution in 

 accordance with established regulations and 

 procedures. May guard prisoners in transit between 

 jail, courtroom, prison, or other point. Include deputy 

 sheriffs and police who spend the majority of their time 

 guarding prisoners in correctional institutions." 

(visited July 1, 1998) http://stats.bls.gov/soc/soc_5360.htm>. 

Also, the Department of Labor describes a "correction 

officer" as one who: 

 "[g]uards inmates in penal institution in accordance 

 with established policies, regulations, and procedures: 

 Observes conduct and behavior of inmates to prevent 

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 disturbances and escapes. Inspects locks, window 

 bars, grills, doors, and gates for tampering. Searches 

 inmates and cells for contraband articles. Guards and 

 directs inmates during work assignments. Patrols 

 assigned areas for evidence of forbidden activities, 

 infraction of rules, and unsatisfactory attitude or 

 adjustment of prisoners. Reports observations to 

 superior. Employs weapons or force to maintain 

 discipline and order among prisoners, if necessary. 

 May escort inmates to and from visiting room, medical 

 office, and religious services. May guard entrance of jail 

 to screen visitors. May prepare written report 

 concerning incidences of inmate disturbances or 

 injuries. May be designated according to institution as 

 Correction Officer, City Or County Jail; Correction 

 Officer, Penitentiary; Correction Officer, Reformatory. 

 May guard prisoners in transit between jail, courtroom, 

 prison, or other point, traveling by automobile or 

 public transportation and be designated Guard, 

 Deputy." 

1 U.S. Dep't of Labor, Dictionary of Occupational Titles 268 

(4th ed. rev. 1991) (parenthetical notations omitted). We are 

convinced that a "corrections officer," as referenced in 

section 3A1.2(b), is a person distinct from other prison 

employees. 

Finally, our jurisprudence counsels us to apply the

commonly used definition of words not defined in the 

Sentencing Guidelines. See United States v. Brannan, 74 

F.3d 448, 453 (3d Cir. 1996). Applying the procedure 

utilized in Brannan, we find "correction" defined as "the 

treatment and rehabilitation of offenders through a

program involving penal custody, parole, and probation." 

Webster's Ninth New Collegiate Dictionary 293 (1988). 

"Officer" is defined as "one charged with police duties" and 

"one who holds an office of trust, authority, or command," 

id. at 820, while "employee" is defined as "one employed by 

another usu[ally] for wages or salary and in a position 

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 spends 

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significant time guarding prisoners within a jail or 

correctional institution or in transit to or from or within a 

jail or correctional institution, and all other persons 

assaulted while actually engaged in guarding prisoners. 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 Wadeck 

both as a corrections officer, (PSR P11, at 5; PSR Add. at 

19), and as an employee, (PSR P22, at 7). At the sentencing 

hearing, the government referred to Wadeck as a 

government employee before the district court raised 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 chaplains, 

psychologists, and cooks like Wadeck, receive the same 

correctional training, and that when an incident occurs, 

"You respond as a corrections officer first, and then your 

specialty, whether it be psychology, food service, chaplain. 

When the call for assistance is sounded, you respond as a 

correctional officer to the situation." On cross examination, 

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 spends 

significant time guarding prisoners, or if he was, at the time 

of the assault, actually engaged in guarding prisoners, 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 "corrections officer" is 

to have meaning apart from "government employee," and we 

conclude that it must, then Wadeck is not a corrections 

officer according to this record. First, there is no 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. Finally, the 

PSR contains internal conflicts as to Wadeck's status; thus, 

without more, the district court and the government err by 

relying on the factual findings therein. 

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III. 

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 remand, 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, applying 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 determine 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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