IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50846

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

BRUCE MCCOWAN,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

U.S.D.C. No. 7:09-cr-00067

Before DAVIS, WIENER, and DENNIS, Circuit Judges.

PER CURIAM:

*

Bruce McCowan pleaded guilty to conspiracy to bribe a public official in

violation of 18 U.S.C. §§ 201(b)(1)(C), 371, for arranging to have a correctional

officer at the facility where McCowan was incarcerated smuggle drugs to him.

At sentencing, the district court increased McCowan’s offense level by six by

applying the sentencing enhancement prescribed by U.S.S.G. § 2C1.1(b)(3), for

“offense[s] involv[ing] an elected official or any public official in a high-level

decision-making or sensitive position,” because the court concluded that a

United States Court of Appeals

Fifth Circuit

F I L E D

December 13, 2010

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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correctional officer was a public official in a sensitive position. McCowan

appeals, arguing that a correctional officer is not a public official in a sensitive

position and that the district court lacked “a factual basis” for reaching that

conclusion. We AFFIRM.

In his June 2009 written plea agreement, McCowan acknowledged that as

an inmate at the Ector County Correctional Center (“ECCC”), in Odessa, Texas,

he arranged with “a prison guard, A. Zehr,” at ECCC to meet with McCowan’s

brother, Marcus, outside of the facility, and that Marcus would provide Zehr

with contraband to smuggle into ECCC for McCowan. The plea agreement

further acknowledged that Marcus and Zehr eventually met, and Marcus paid

Zehr $100 and gave him the contraband that Zehr delivered to McCowan at

ECCC.

The Presentence Investigation Report (“PSR”) identified Zehr, as “a

correctional officer, employed at . . . ECCC,” and because of Zehr’s position, the

PSR recommended an offense-level enhancement under U.S.S.G. § 2C1.1(b)(3),

for an “offense involv[ing] . . . any public official in a . . . sensitive position,”

increasing McCowan’s offense level from twelve to eighteen. At sentencing,

McCowan did not object to the finding adopted by the district court that Zehr

was a correctional officer. However, he did object to the upward adjustment

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because he contended that Zehr was not in a sensitive position. The district

court overruled McCowan’s objection and applied the enhancement because it

found that “as a prison guard, Mr. Zehr is in a sensitive position. A prison guard

does have great control over the inmates under his or her control. They can

write people up. They can make recommendations. They deal with their daily

lives in that position. . . . They are law enforcement officials responsible for the

day-to-day management and safety of the facility.” McCowan offered no rebuttal

 “At sentencing, the court . . . may accept any undisputed portion of the presentence 1

report as a finding of fact.” Fed. R. Crim. P. 32(i)(3)(A).

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evidence, but continued his objection that “there is not a factual basis” in the

record to find Zehr was in a sensitive position.

“The question whether [an official] is an official holding a high-level

decision-making or sensitive position, because it depends primarily upon

interpretation of the sentencing guidelines, is a question of law that we review

de novo.” United States v. Snell, 152 F.3d 345, 346 (5th Cir. 1998) (citing United

States v. Stephenson, 895 F.2d 867, 877 (2d Cir. 1990)). We examine the

underlying “[f]actual questions, such as the discretion, supervisory authority,

and other indicia of responsibility of [the] official . . . only for clear error and

afford great deference to the court’s application of the guidelines to those facts.”

Id. (citing United States v. Tomblin, 46 F.3d 1369, 1391 (5th Cir. 1995)). “The

burden is on the party seeking to adjust the sentence level to prove ‘by a

preponderance of the relevant and sufficiently reliable evidence the facts

necessary to support the adjustment.’” United States v. Herrera-Solorzano, 114

F.3d 48, 50 (5th Cir. 1997) (quoting United States v. Alfaro, 919 F.2d 962, 965

(5th Cir. 1990)). “There is no clear error if the district court’s finding is plausible

in light of the record as a whole.” United States v. Cisneros-Gutierrez, 517 F.3d

751, 764 (5th Cir. 2008). The sentencing court may rely on the facts in the PSR

“without more specific inquiry or explanation, provided those facts had an

adequate evidentiary basis” and the defendant has not presented rebuttal

evidence. United States v. Rodriguez, 897 F.2d 1324, 1328 (5th Cir. 1990). And

“the court is permitted to make inferences from the facts.” Id. at 1326.

Section 2C1.1(b)(3) of the Sentencing Guidelines provides: “If the offense

involved an elected official or any public official in a high-level decision-making

or sensitive position, increase by 4 levels. If the resulting offense level is less

than level 18, increase to level 18.” U.S.S.G. § 2C1.1(b)(3) (Nov. 2009).

According to the commentary to § 2C1.1(b)(3), “‘High-level decision-making or

sensitive position’ means a position characterized by a direct authority to make

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decisions for, or on behalf of, a government department, agency, or other

government entity, or by a substantial influence over the decision-making

process.” Id. cmt. n.4(A). “Examples of a public official who holds a sensitive

position include a juror, a law enforcement officer, an election official, and any

other similarly situated individual.” Id. cmt. n.4(B) (emphasis added). Before

2004, the commentary listed “supervisory law enforcement officers” as an

example of a public official in a sensitive position. See U.S.S.G. Manual supp.

app. C, amend. 666. The 2004 amendments to § 2C1.1 and its commentary

changed this example to simply “law enforcement officer,” id., “suggest[ing that]

officers need not be in a supervisory position to be considered ‘sensitive.’” United

States v. Guzman, 383 F. App’x 493, 494 n.4 (5th Cir. 2010) (unpublished).

Based upon the undisputed facts in the record and inferences supported

by those facts, we hold that the district court did not err in applying

§ 2C1.1(b)(3) to enhance McCowan’s offense level because those facts and

inferences meet the Sentencing Guidelines’ definition of a public official in a

sensitive position. McCowan contends that the record evidence does not support

the district court’s findings; however, the plea agreement identified Zehr as a

“prison guard” and the PSR identified him as a “correctional officer” and

McCowan did not dispute these facts or offer rebuttal evidence. The record also

indicates that Zehr had access to inmates. Therefore, district court’s factual

findings about Zehr’s duties and responsibilities are plausible in light of the

record as a whole and are not clearly erroneous.

The district court’s findings support the conclusion that Zehr occupied a

sensitive position. The district court found that correctional officers have a

2

substantial influence over the decision-making process by having significant

control over prisoner disciplinary matters and tremendous responsibility for the

McCowan does not contend that Zehr was not a “public official” but only that he was

2

not in a sensitive position.

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“day-to-day management and safety of the facility.” This finding meets the

Sentencing Guidelines’ definition of “sensitive position,” which is “a position

characterized . . . by a substantial influence over the decision-making process.”

U.S.S.G. § 2C1.1 cmt. n.4(A).

McCowan mistakenly argues that our decision in Tomblin, 46 F.3d at

1391, which was decided before the 2004 amendments to § 2C1.1, dictates that

3

only where an official possesses “some final decision-making authority” or

occupies a position that “involves substantial responsibility for funds can the

position qualify under the” Sentencing Guidelines as a sensitive position. In

Tomblin, we held that “[a] senator’s top administrative aide holds a position of

substantial influence, because he often serves as the senator’s functional

equivalent” and therefore is in a sensitive position. Id. It is true that in

reaching that decision, we said: “[t]hat a position requires the exercise of some

discretion alone does not mandate finding that the possessor of that discretion

occupies a sensitive government position. When the discretion includes some

final decision-making authority or involves substantial responsibility for funds,

however, the position can qualify under the Guidelines.” Id. (citations omitted).

However, in Snell, decided three years after Tomblin, we expressly rejected

McCowan’s contention:

[D]iscretion involving final decision-making authority over matters

of public policy or over the expenditure of substantial sums of money

. . . is not always required, and courts have readily found an . . .

enhancement [under the predecessor to § 2C1.1(b)(3)] appropriate

. . . based on the official’s ability to use his position to influence

another in the exercise of such discretion.

McCowan relies on other cases that pre-date the 2004 amendments to § 2C1.1(b)(3),

3

which changed the commentary to remove the modifier, “supervisory,” from “law enforcement

officers.” Because those cases were decided before the relevant changes to the commentary,

they are unpersuasive.

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152 F.3d at 347. We have previously characterized Snell as holding that “a

sensitive position is one that has power to affect the integrity and workings of

the judicial and law enforcement system.” Guzman, 383 F. App’x at 494 (citing

Snell, 152 F.3d at 348). We agree that “[a] prison guard [who] has the authority

and the ability to directly and significantly influence inmates’ lives and the

entire facility’s safety with the decisions he or she makes,” has “[s]uch power

within the judicial system [that] makes the position of prison guard a sensitive

position under the sentencing guidelines.” Id. at 494-95.

Therefore, the decision of the district court is AFFIRMED.

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