Opinion
Case No. 3:18 CR 480
06-09-2020
UNITED STATES of America, Plaintiff, v. Marcus HENDERSON, Defendant.
Michael J. Freeman, Office of the U.S. Attorney, Toledo, OH, for Plaintiff. Donna M. Grill, Office of the Federal Public Defender, Toledo, OH, for Defendant.
Michael J. Freeman, Office of the U.S. Attorney, Toledo, OH, for Plaintiff.
Donna M. Grill, Office of the Federal Public Defender, Toledo, OH, for Defendant.
ORDER DENYING GUIDELINES ENHANCEMENT
JACK ZOUHARY, U. S. DISTRICT JUDGE
Defendant Marcus Henderson was convicted of Hobbs Act Extortion (Doc. 72). He is set to be sentenced June 22, 2020. Henderson's Presentence Report includes a baseline offense level of 18 (Doc. 74), which is four levels higher than the initial calculation (Doc. 73) due to an enhancement under U.S.S.G. Section 2C1.1(b)(3). Pretrial Services agrees with the Government that the enhancement applies to Henderson, who was a corrections officer at the Lucas County Jail (Doc. 74 at 18). Henderson objects (id. ).
Section 2C1.1(b)(3) calls for a four-level enhancement "[i]f the offense involved an elected public official or any public official in a high-level decision-making or sensitive position." A high-level decision-making or sensitive position is "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 decision-making process." § 2C1.1 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." § 2C1.1 cmt. n.4(B) (emphasis added).
Before 2004, the Guidelines Commentary listed "supervisory law enforcement officers" as an example of a public official in a sensitive position. United States v. McCowan , 464 F. App'x 213, 215 (5th Cir. 2010) (citation omitted). However, after the 2004 Amendments to Section 2C1.1, the Commentary list was revised to include any "law enforcement officer." Id. In United States v. Guzman , the Fifth Circuit noted that the change may "suggest officers need not be in a supervisory position to be considered ‘sensitive.’ " 383 F. App'x 493, 494 n.4 (5th Cir. 2010).
Indeed, multiple Circuits have applied the enhancement to guards in state-level facilities. See United States v. Chairez , 423 F. App'x 361, 362 (5th Cir. 2011) ("The district court did not err in applying [the] enhancement ... on the ground that as a correctional officer, [defendant] was a public official in a sensitive position."); United States v. Dodd , 770 F.3d 306, 312 (4th Cir. 2014) (holding that private corrections officers are similarly situated to law enforcement because they "wield the coercive power of the state to maintain order and safety among the populations they protect," "are responsible for enforcing the rules," and have been placed in a position of "public trust"); United States v. Grosso , 658 F. App'x 43, 46–47 (3d Cir. 2016) ("[A corrections officer] wields the coercive power of the state to maintain order and safety among the populations he protects. This power places him in a sensitive position because correctional officers who accept bribes to bring contraband to prisoners endanger those inside and outside of the prison.") (citation and internal quotation marks omitted); United States v. Love , 710 F. App'x 351, 353 (11th Cir. 2017) (upholding a district court Guidelines calculation -- which included an increase under Section 2C1.1(b)(3) -- for a state corrections officer convicted of smuggling drugs into the facility).
Recently, this enhancement, in the context of a federal prison guard, was addressed by the Sixth Circuit in United States v. Griffith , 781 F. App'x 418, 421 (6th Cir. 2019). In comparing the guard to a "law enforcement officer," the court focused on the guard's ability to carry a weapon and make arrests: "Given that federal corrections officers are empowered to carry firearms and make arrests under certain conditions, ... they are ‘similarly situated’ to law enforcement and, therefore, within the class of people that the Guidelines intended to fall within this provision." Id. at 421. Along the same lines, in United States v. Johnson , the D.C. Circuit cautioned that courts "should not be understood to embrace the idea that any law enforcement officer, no matter his level of responsibility, can be deemed to hold a sensitive position." 605 F.3d 82, 84 (D.C. Cir. 2010). Again, critical to the court's analysis was whether defendant had the "power to arrest." Id.
Henderson asserts that, unlike Griffith , he is not similarly situated to law enforcement officers. This Court agrees. First, Henderson was an employee of the County, with less authority than a federal officer. Under Ohio Administrative Code Section 109:2-9-01(F), Henderson's "position[ ] consist[ed] primarily of duties that require prisoner supervision, direct interaction with prisoners and responsibility for the safety and security of prisoners and of [the Lucas County Jail]." He had no authority outside of the jail. Second, Henderson was not authorized to carry a firearm. See Ohio Admin. Code §§ 109:2-9-02(F)(1)–(6) ; 5120:1-8-18 (no firearms training is required for jail staff). Third, Henderson was not a "peace officer," meaning he had no authority to make arrests. See Ohio Revised Code § 109.71(A).
Moreover, the out-of-circuit decisions dealing with state-level guards did not examine the guard's specific duties or decision-making responsibilities. Rather, they held that a prison guard was in a "sensitive" position simply because of the general ability to impact facility safety. See, e.g. , McCowan , 464 F. App'x at 216–17 ("A prison guard [who] has the authority and the ability to directly and significantly influence ... the entire facility's safety," has "[s]uch power within the judicial system [that] makes the position of prison guard a sensitive position under the sentencing guidelines."). This Court disagrees for two reasons. First, based on that logic, any position inside the facility could be considered "sensitive." Cooks, nurses, and custodians all have some ability to influence facility safety by smuggling contraband. Second, there are nearly 300 full-time security staff at the Lucas County jail. Surely, they all are not "high-level decision makers."
Alexandra Mester, Job–Freeze Led to Understaffed Lucas County Jail , Toledo Blade (Feb. 28, 2020), https://www.toledoblade.com/local/police-fire/2020/02/28/job-freeze-led-to-understaffed-lucas-county-jail/stories/20200227140.
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This Court declines to apply the enhancement with such a broad brush -- a conclusion consistent with Sixth Circuit precedent. Griffith dealt with federal corrections officers who carry weapons, have the power to arrest, and are therefore similarly situated to "law enforcement officers." 781 F. App'x at 421. Henderson is not so situated. Yes, he was a jail employee. But he did not carry a weapon, possessed no special authority to arrest anyone, and had no "substantial influence over [any] decision-making process." U.S.S.G. § 2C1.1 cmt. n. 4(A).
Henderson's objection to the four-level enhancement is sustained. With this finding, the Motion for Disclosure (Doc. 76) is denied as moot.
IT IS SO ORDERED.