United States v. Richards

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-4767

_____________

UNITED STATES OF AMERICA

v.

DOUGLAS RICHARDS,

Appellant

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Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Criminal No. 3-09-cr-00400-001)

District Judge: Honorable James M. Munley

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Argued January 11, 2012

Before: SCIRICA, RENDELL and SMITH, Circuit Judges

(Opinion Filed: March 16, 2012)

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William Ruzzo, Esq. [ARGUED]

590 Rutter Avenue

Kingston, PA 18704

Counsel for Appellant

William S. Houser, Esq. [ARGUED]

Amy C. Phillips, Esq.

Office of United States Attorney

235 North Washington Avenue

P.O. Box 309, Suite 311

Scranton, PA 18503

Counsel for Appellee

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OPINION OF THE COURT

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RENDELL, Circuit Judge.

Defendant Douglas Richards, the former Director of

Human Resources for the government of Luzerne County,

Pennsylvania, appeals the sentence he received after pleading

guilty to accepting a bribe. Richards objects to the District

Court’s enhancement of his sentence pursuant to §

2C1.2(b)(3) of the Sentencing Guidelines for being a

government official in a high-level decision-making or

sensitive position. His appeal requires us to determine, as a

matter of first impression in our Court, the standard of review

we apply to a district court’s application of a sentencing

enhancement pursuant to § 2C1.2(b)(3). We conclude that

the clearly erroneous standard is appropriate when reviewing

a district court’s determination that the enhancement under §

2C1.2(b)(3) applies based on the facts presented. Under that

2

standard, we hold that the District Court did not clearly err in

finding that Richards was a public official in a high-level

decision-making or sensitive position. Accordingly, we will

affirm.

I. Facts and Procedural History

In December 2009, Richards was charged with one

count of violating 18 U.S.C. § 666(a)(1)(B) for accepting a

bribe in excess of $1,000 but less than $5,000 in connection

with assistance given by Richards to Continental Consultants,

a New York consulting firm interested in contracting with

Luzerne County. Richards accepted $1,000 and free New

York Mets tickets from Continental Consultants. In

exchange, he helped Continental Consultants to obtain a

contract with Luzerne County to provide temporary

employment services for individuals hired to perform clean-

up work in the aftermath of a 2006 flood. Continental

Consultants paid Richards because he “got the ball rolling” on

the project and assisted in preparing the paperwork for the

contract. PSR at ¶ 19. Richards also “did all the

administrative work for Continental Consultants’ contract

with Luzerne County.” (App. at 26.)

Richards pled guilty to violating § 666(a)(1)(B). In the

Presentence Report, the probation officer recommended a

sentence of fifteen to twenty-one months’ imprisonment.

This recommendation was based on § 2C1.2(a)(1), the

applicable guideline for a violation of § 666(a)(1)(B), which

set the base offense level at eleven. The probation officer

then added two levels pursuant to § 2C1.2(b)(1) because the

offense involved more than one gratuity. Next, the probation

officer added four levels pursuant to § 2C1.2(b)(3) because

3

the offense involved a public official in a high-level decision-

making or sensitive position. The officer then subtracted

three levels for Richards’s acceptance of responsibility

pursuant to § 3E1.1. The resulting offense level was fourteen.

With a criminal history placing him in Category I, the

advisory sentencing range was therefore fifteen to twenty-one

months.

Richards was sentenced on December 13, 2010 to

fifteen months’ imprisonment and two years of supervised

release. At the sentencing hearing, Richards objected to the

four-level enhancement pursuant to § 2C1.2(b)(3). That

enhancement provides:

If the offense involved an elected public 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 15, increase to level 15.

U.S.S.G. § 2C1.2(b)(3). The commentary to that section, in

turn, provides:

(A) Definition.—“High-level decision-making or

sensitive position” means 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.

4

(B) Examples.—Examples of a public official in

a high-level decision-making position include a

prosecuting attorney, a judge, an agency

administrator, a law enforcement officer, and

any other public official with a similar level of

authority. 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. at cmt. n.3. Had that enhancement not been applied,

Richards would have faced an advisory sentencing range of

six to twelve months.

Richards argued that he was not a public official in a

high-level decision-making or sensitive position because: (1)

he could not hire or fire anyone; (2) he could not bind the

County; (3) he could not act officially on the County’s behalf;

(4) he had administrative, not policymaking, duties; (5) he

reported to superiors, who, in turn, reported to the County

Commissioners; and (6) the sentencing court did not apply the

high-level government official enhancement to Richards’s

superior, William Brace, who was also implicated in this

bribery scheme.

Richards did acknowledge, however, that, as part of

his job duties, he would refer three or four of the top

candidates for a job to the County Commissioners for their

ultimate hiring. He also administered his own department

and made many different types of recommendations to his

superiors, the Deputy County Clerk, the County Clerk, and

the County Commissioners.

5

At sentencing, the Government introduced the job

description for Richards’s position as an exhibit in support of

applying the enhancement under § 2C1.2(b)(3). According to

that description, Richards was “responsible for designing,

implementing and maintaining a centralized Human Resource

Department.” He provided “leadership and oversight of all

Personnel Department functions.” He also was responsible

for “writ[ing], maintain[ing] and apply[ing] the County

policies and guidelines by administering and directing a

comprehensive human resource program, formulating and

recommending policies, regulations, and practices for

carrying out programs, consulting and advising the County

staff to coordinate the various phases of the policies,

practices, ordinances, and resolutions.” (App. at 55-56.)

Although he agreed that the job description was accurate,

Richards contended that it did not, in fact, support application

of the enhancement. He submitted a flow chart indicating the

hierarchy of officials in the Luzerne County government as

evidence that he was not in a high-level decision-making or

sensitive position. According to that chart, Richards first

reported to the Deputy Clerk, who in turn reported to the

Chief Clerk. Together, the Deputy Clerk and Chief Clerk

reported to the Board of Commissioners.

The District Court concluded that Richards was subject

to the enhancement under § 2C1.2(b)(3). The District Court

sentenced Richards to fifteen months’ imprisonment and two

years of supervised release. Richards filed a timely notice of

appeal. 1

1

The District Court had jurisdiction pursuant to 18 U.S.C. §

3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a).

6

II. Discussion

On appeal, Richards contends that the District Court

erred in finding him subject to the enhancement because,

although he was a public official, he did not occupy a high-

level decision-making or sensitive position. Before we can

determine whether the District Court was correct in applying

the enhancement, however, we must first decide under what

standard we are to review the District Court’s decision — de

novo, abuse of discretion, or clear error.

A. Standard of Review

Richards argues that de novo review is warranted

because the question before us involves an interpretation of

the Sentencing Guidelines. See, e.g., United States v. Grier,

475 F.3d 556, 570 (3d Cir. 2007) (en banc) (exercising

plenary review over a district court’s interpretation of the

Sentencing Guidelines). Richards points out that the essential

facts regarding the nature of his employment are not in

dispute; therefore, de novo review is appropriate because

whether those facts fit within the definition of the

enhancement necessarily requires the court to interpret that

definition. We disagree.

While we review de novo a district court’s

interpretation of the Guidelines, here, the District Court’s

interpretation of the Guidelines is not really at issue.

Richards does not quarrel with the District Court’s

articulation of what it means to be a government official in a

high-level decision-making or sensitive position, for the

District Court used the definition of the enhancement exactly

as it is recited in the Guidelines. Rather, Richards disagrees

with the District Court’s conclusion that the facts regarding

7

his employment fit within the Guidelines definition of a

government official in a high-level decision-making or

sensitive position. This is not properly characterized as an

issue of Guidelines interpretation as Richards urges.

Guided by the Supreme Court’s instruction in Buford

v. United States, 532 U.S. 59 (2001), we believe that a more

deferential standard of review is appropriate where, as here,

we consider a district court’s application of the Guidelines to

a specific set of facts, that is, where the district court

determined whether the facts “fit” within what the Guidelines

prescribe. In Buford, the Supreme Court addressed the

standard that a court of appeals should apply in reviewing a

district court’s determination that an offender’s prior

convictions were “functionally consolidated,” or “related,”

for purposes of sentencing. In concluding that deferential

review was appropriate, the Court focused on the “relative

institutional advantages enjoyed by the district court in

making the type of determination at issue.” Id. at 64

(citations omitted). It reasoned that a district court was in a

better position to decide whether various convictions were

related, and thus should be consolidated, in part because the

district court saw many more consolidations. Id. The Court

observed, further, that “factual nuance may closely guide the

legal decision” of whether to consolidate convictions, “with

legal results depending heavily upon an understanding of the

significance of case-specific details.” Id. at 65 (citations

omitted). Finally, the Court found significant that the

question before it was not a “generally recurring, purely legal

matter, such as interpreting a set of legal words, say, those of

an individual guideline, in order to determine their basic

intent,” which a court of appeals may be better suited to

answer and would thus warrant less deferential review. Id.

8

“Rather, the question at issue grows out of, and is bounded

by, case-specific detailed factual circumstances,” which

“limits the value of appellate court precedent” because the

next court to consider the issue will have a different set of

facts before it. Id. at 65-66. These considerations, the Court

concluded, weighed in favor of deferential review. 2

2

We should note that the Court also based its holding in part

on the existence of 18 U.S.C. § 3742(e), which requires

courts of appeals to “accept the findings of fact of the district

court unless they are clearly erroneous” and to “give due

deference to the district court’s application of the guidelines

to the facts.” Subsequently, the Court decided United States

v. Booker, 543 U.S. 220, 259-60 (2005), in which it excised §

3742(e) because it contained cross-references to the also-

excised provision of the United States Code making the

Guidelines mandatory, 18 U.S.C. § 3553(b)(1). In so doing,

the Court was particularly troubled by the provision in §

3742(e) requiring de novo review of departures from the

applicable Guidelines range because it reinforced the

mandatory nature of the Guidelines, but it expressed no

concerns about the provisions calling for deferential review of

findings of fact and application of the Guidelines to the facts.

542 U.S. at 261. Then, in Grier, we recognized that §

3742(e) had been excised, see 475 F.3d at 564, but

nevertheless held that, given the nature of the inquiry and

relative institutional advantage, we would continue to apply

clear error review to fact-findings by a district court, see id. at

569-70. We do not view the excision of § 3742(e) as

undermining the Court’s reasoning in Buford. In fact, in Rita

v. United States, 551 U.S. 338, 361-62 (2007), Justice Stevens

observed that Booker did not disturb “the portions of §

9

These same considerations guide our decision here. A

district court undoubtedly deals with more applications of §

2C1.2(b)(3) than does a court of appeals. A trial judge’s

experience with this type of issue at sentencing weighs in

favor of applying a more deferential standard of review.

Additionally, the facts which illuminate the nature and scope

of an individual’s position within a government entity will

closely guide the decision whether to apply the enhancement,

for it is on those facts’ particular “fit” within the definition of

the enhancement that the district court’s decision to apply the

enhancement will turn. A district court must determine,

based on the facts, whether the defendant possesses “direct

authority to make decisions” for a government entity.

Similarly, the facts will guide a district court’s determination

whether a defendant exercises “substantial influence over the

decision-making process.” § 2C1.2(b)(3) cmt. n.3.

Richards, however, urges that we follow United States

v. Stephenson, 895 F.2d 867 (2d Cir. 1990), and review the

issue here de novo. In Stephenson, the court reviewed de

novo whether the defendant, an export licensing officer in the

Department of Commerce who decided whether to approve

applications to export high-technology equipment to the

Soviet Union and China, qualified as a government official in

a high-level decision-making or sensitive position within the

3742(e) requiring appellate courts to . . . ‘accept the findings

of fact of the district court unless they are clearly erroneous,’

and to ‘give due deference to the district court’s application

of the guidelines to the facts.’” (Stevens, J., concurring)

(quoting 18 U.S.C. § 3742(e)). Thus, we view § 3742(e) as

still calling for “due deference” to be given to a district

court’s application of the Guidelines to the facts.

10

meaning of the enhancement. Id. at 878.3 But Stephenson

provides no reasoning as to why de novo review is

appropriate with respect to the enhancement; the court simply

stated that “this issue presents a question of law reviewed de

novo.” Id. at 877-78. Without any reasoning or additional

case law as to why this inquiry should be reviewed de novo,

and because of the Supreme Court’s decision in Buford, we

will not rely on Stephenson as Richards urges and conduct de

novo review.

We therefore decline to apply de novo review. Left

with a choice between reviewing for clear error or abuse of

discretion, “‘the nature of the question presented’” persuades

us that, in order to give the appropriate level of deference, we

should review for clear error, rather than for abuse of

discretion. Buford, 532 U.S. at 63 (quoting Koon v. United

States, 518 U.S. 81, 98 (1996)). As we explain more fully

below, the choice between the two standards here may be a

distinction without a difference, for where the determination

is fact-driven, a district court will have abused its discretion

in imposing a sentence when it bases its decision on clearly

erroneous factual conclusions. United States v. Wise, 515

F.3d 207, 217 (3d Cir. 2008) (citations omitted).

3

At the time the defendant in Stephenson was sentenced, the

enhancement was set forth in § 2C1.1(b)(2), and called for an

eight-level increase in the offense level “‘[i]f the offense

involved a bribe for the purpose of influencing . . . any

official holding a high level decisionmaking or sensitive

position.’” 895 F.2d at 877 (quoting U.S.S.G. § 2C1.1(b)(2)).

At that time, the Guidelines did not define a high-level

decision-making or sensitive position. Id.

11

Clear error review is appropriate when the legal issue

decided by the district court is, in essence, a factual question.

For example, in United States v. Brown, 631 F.3d 638, 644

(3d Cir. 2011), we held that we would review for clear error a

district court’s determination whether a false statement in a

warrant application was made with reckless disregard for the

truth. We concluded that this standard of review was

appropriate in part because the legal test, which provides that

an assertion is made with reckless disregard for the truth

when “viewing all the evidence, the affiant must have

entertained serious doubts as to the truth of his statements or

had obvious reasons to doubt the accuracy of the information

he reported,” essentially requires a court to make a factual

determination as to whether “‘serious doubts’ or ‘obvious

reasons’ existed.” Id. at 645 (internal quotation marks and

citation omitted). The answer to that inquiry, we observed,

“is a matter of fact. Serious doubts exist or they do not; a

reason for doubt exists or it does not and is obvious or is not.”

Id.

We reasoned that clear error review is appropriate

because when the legal issue involves “a ‘strictly factual test,’

such that once the test is stated no legal reasoning is

necessary to the resolution of the issue,” “[t]he considerations

related to legal correctness and the development of

precedent” that favor a less deferential standard of review are

of diminished concern. Id. at 644. “At the same time, the

factual nature of the determination favors the trial court’s

experience and first-hand observation of testimony and other

evidence.” Id. An appellate court’s review of these kinds of

decisions, moreover, “will not be of much use in future cases

with different fact patterns.” Id. at 645.

12

As in Brown, the legal test we are applying here is in

essence a factual inquiry. That test is set forth in the

definition of a government official in a high-level decision-

making or sensitive position, and under that test, a district

court simply needs to find facts that will answer — either yes

or no — whether the government official possesses “direct

authority to make decisions” for a government entity or

whether the official possesses “substantial influence over the

decision-making process.” § 2C1.2(b)(3) cmt. n.3(A). The

answer to these questions are, as in Brown, matters of fact;

either a government official will or will not possess “direct

authority to make decisions,” or will or will not possess

“substantial influence over the decision-making process.” Id.

These facts will form the sole basis for the district court’s

conclusion whether to subject a defendant to an enhancement

under § 2C1.2(b)(3). The highly factual nature of this

inquiry, and a trial court’s relative institutional advantages in

conducting it, weigh in favor of clear error review.

Moreover, our review of these decisions will be of little help

in future cases because the next government official

inevitably will be in a different position and have different

job responsibilities than the defendant does here.

We are not alone in concluding that whether an

individual is a public official in a “high-level decision-

making or sensitive position” is a factual determination,

reviewable on appeal for clear error. The Courts of Appeals

for the Fourth and Sixth Circuits have so concluded, although

without extensive discussion of the issue. See United States

v. Mack, 159 F.3d 208, 220 (6th Cir. 1998) (reviewing district

court’s application of public official in high-level decision-

making or sensitive position enhancement for clear error);

United States v. ReBrook, 58 F.3d 961, 969 (4th Cir. 1995)

13

(reasoning that the high-level decision-making or sensitive

position enhancement is reviewed for clear error because it

“turns primarily on fact”).

Our decision to apply clear error review is further

supported by the fact that many other sentencing

enhancements, which call for similarly factual

determinations, are also reviewed for clear error. For

example, we and other courts of appeals review a district

court’s decision to apply the “organizer or leader”

enhancement, U.S.S.G. § 3B1.1, for clear error. See United

States v. Starnes, 583 F.3d 196, 216-17 (3d Cir. 2009).4

4

See also United States v. Snow, 663 F.3d 1156, 1162 (10th

Cir. 2011) (reviewing application of the organizer or leader

enhancement for clear error); United States v. Rodriguez-

Ramos, 663 F.3d 356, 364 (8th Cir. 2011) (same); United

States v. Barrington, 648 F.3d 1178, 1200 (11th Cir. 2011)

(same); United States v. Wardell, 591 F.3d 1279, 1304 (10th

Cir. 2009) (reviewing application of organizer or leader

enhancement for clear error because it involves a “factual

determination”); United States v. Garcia-Pastrana, 584 F.3d

351, 393 (1st Cir. 2009) (reviewing application of organizer

or leader enhancement for clear error); United States v. Gotti,

459 F.3d 296, 349 (2d Cir. 2006) (reviewing application of

organizer or leader enhancement for clear error because it is a

“predominantly factual” question); United States v. Hankton,

432 F.3d 779, 793 (7th Cir. 2005) (reviewing application of

the organizer or leader enhancement for clear error); United

States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002) (same);

United States v. Berry, 258 F.3d 971, 977 (9th Cir. 2001)

(same); United States v. Miller, 161 F.3d 977, 984 (6th Cir.

1998) (same); United States v. Sidhu, 130 F.3d 644, 655 (5th

14

While that Guideline does not define “organizer” or “leader,”

it provides factors for the sentencing court to consider when

determining whether a defendant qualifies for the

enhancement, such as the defendant’s “exercise of decision

making authority, . . . the degree of participation in planning or

organizing the offense, . . . and the degree of control and

authority exercised over others.” § 3B1.1 cmt. n.4. These

factors closely resemble the definition of the enhancement at

issue here, because they both require the district court to

examine the individual’s ability to make decisions or influence

decision-making. See § 2C1.2(b)(3) cmt. n.3 (explaining that

a high-level decision-making or sensitive position is one

characterized by “direct authority to make decisions” or

“substantial influence over the decision-making process”).

Similarly, we review for clear error a district court’s

reduction of a defendant’s base offense level pursuant to §

3B1.2 of the Guidelines for being a “minimal participant” or

“minor participant” in criminal activity. See United States v.

Carr, 25 F.3d 1194, 1207 (3d Cir. 1994). A “minimal

participant” is one who is “among the least culpable of those

involved,” and a “minor participant” is one “who is less

culpable than most other participants, but whose role could

not be described as minimal.” U.S.S.G. § 3B1.2 cmt. nn.4-5.

This sentencing adjustment thus requires a sentencing court to

closely consider the role the defendant played in the offense,

a necessarily factual inquiry. To our knowledge, every other

court of appeals joins us in reviewing the application of the

Cir. 1997) (same); United States v. Gaviria, 116 F.3d 1498,

1528 (D.C. Cir. 1997) (same).

15

reduction under § 3B1.2 for clear error. 5 These examples

demonstrate that where, as here, sentencing adjustments

require a district court to closely examine a set of facts and

determine whether they fit within the definition of the

adjustment before deciding whether to apply the adjustment,

we should review that decision for clear error only.

We note that we have made general pronouncements

in the past that we review a district court’s application of the

Guidelines to the facts for abuse of discretion. See, e.g.,

United States v. Blackmon, 557 F.3d 113, 118 (3d Cir. 2009)

(reviewing a district court’s “application of the Guidelines to

the facts for abuse of discretion”); United States v. Tupone,

442 F.3d 145, 149 (3d Cir. 2006) (“We review the District

Court’s application of the Guidelines to facts for abuse of

discretion.”). That is correct, and appropriate, where there is

room for interpretation as to whether the facts satisfy an

essentially legal test, or where a district court can exercise

some discretion in deciding whether to apply particular

Guideline provisions. However, where, as here, the particular

5

See also United States v. Leiskunas, 656 F.3d 732, 739 (7th

Cir. 2011); United States v. McElwee, 646 F.3d 328, 346 (5th

Cir. 2011); United States v. Mitchell, 613 F.3d 862, 870 (8th

Cir. 2010); United States v. Bernal-Benitez, 594 F.3d 1303,

1320 (11th Cir. 2010); United States v. Rosa-Carino, 615

F.3d 75, 81 (1st Cir. 2010); United States v. Blake, 571 F.3d

331, 352 (4th Cir. 2009); United States v. Groenendal, 557

F.3d 419, 423 (6th Cir. 2009); United States v. Tankersley,

537 F.3d 1100, 1110 (9th Cir. 2008); United States v.

Martinez, 512 F.3d 1268, 1275 (10th Cir. 2008); United

States v. Castano, 234 F.3d 111, 113 (2d Cir. 2000); United

States v. Mathis, 216 F.3d 18, 26 (D.C. Cir. 2000).

16

Guideline in question sets forth a predominantly fact-driven

test, review for clear error is more appropriate. In this case,

the abuse of discretion standard does not “fit as well” with the

inquiry before us, because “[t]he question is not whether the

District Court abused its discretion in choosing among

different courses of action. Instead, it is whether the Court

perceived the facts correctly.” United States v. Zats, 298 F.3d

182, 185 (3d Cir. 2002); see also Harry T. Edwards & Linda

A. Elliott, Federal Standards of Review ch. I.E (2007)

(explaining that the abuse of discretion standard generally

applies to a decision “committed to a trial judge’s discretion,”

i.e., “a decision with respect to which Congress or the courts

have decided that there is no single right or wrong answer,

but rather a range of acceptable choices”). Here, our role is

more appropriately described as determining whether the

District Court clearly erred in its determination that the facts

fit within the meaning of § 2C1.2(b)(3), rather than whether it

abused its discretion by adopting one set of factual findings

instead of another.

As noted above, our decision to apply clear error,

rather than abuse of discretion, review, is, however, not very

significant. The differences that would result under the

different standards of review are few, if any. That is because

a district court would “abuse its discretion” if it based its

decision on clearly erroneous facts. See Wise, 515 F.3d at

217 (“[I]f the asserted procedural error is purely factual, our

review is highly deferential and we will conclude there has

been an abuse of discretion only if the district court’s findings

are clearly erroneous.”); United States v. Legros, 529 F.3d

470, 474 (2d Cir. 2008) (“The abuse-of-discretion standard

incorporates de novo review of questions of law (including

interpretation of the Guidelines) and clear-error review of

17

questions of fact.”). Thus, if we reviewed application of the

enhancement at issue here under the abuse of discretion

standard, we would be reviewing the factual findings

supporting application of the enhancement for clear error in

any event. And we would find that a district court abused its

discretion in applying the enhancement based on a particular

set of facts only if those facts were clearly erroneous.

Therefore, we will review the District Court’s

application of the enhancement pursuant to § 2C1.2(b)(3) for

clear error.

B. Application of the Enhancement

Richards contends that he is not subject to the

enhancement because he did not possess the requisite power

to make decisions for a government entity, nor the ability to

influence decision-making by other government officials. He

relies principally on Stephenson and United States v. Alter,

788 F. Supp. 756 (S.D.N.Y. 1992), but that reliance is

misplaced because those cases do not provide useful

comparisons to the facts of his case.

In Stephenson, the court concluded that the defendant,

an export licensing officer in the Department of Commerce,

was not subject to the enhancement. Although his job of

deciding whether to approve applications to export high-

technology equipment to the Soviet Union and China

“involved some degree of discretion and required him to

possess a security clearance,” the court concluded that he was

not different “from a multitude of personnel in the federal

service.” 895 F.2d at 878. Richards urges that, unlike the

defendant in Stephenson, he was not in a position to bargain

for cash in exchange for awarding an export license. But this

18

fact-based comparison is unhelpful; the issue is not whether

Richards could provide something of value to another.

Rather, the inquiry must be focused on whether he could

exercise “a substantial influence over the decision-making

process” in the Luzerne County government. U.S.S.G. §

3C1.2(b)(3) cmt. n.3(A). The District Court here concluded

that he could.

In Alter, the court concluded that the director of a

halfway house within the federal Bureau of Prisons was not

subject to the enhancement. 788 F. Supp. at 767. As director,

Alter was eleven levels removed in the bureaucratic chain of

command from the highest director of the Bureau of Prisons,

and Alter could not impose major disciplinary sanctions

without referring the cases to his superiors. Id. The court

reasoned that “although Alter possessed a sensitive position,

some degree of discretion, and de facto authority, these

characteristics do not render one a ‘high-level’ government

official.” Id. Richards argues that unlike Alter, he did not

have the authority to control inmates’ freedoms. Again, this

comparison is unhelpful. The relevant inquiry is not whether

Richards could control inmates’ freedoms, but whether

Richards could exercise substantial influence over a decision-

making process. Again, the District Court concluded that he

could.

We conclude that the District Court did not clearly err

in finding Richards subject to the enhancement. Richards

admitted that, as part of his job duties, he would refer three or

four of the top candidates for a job to the County

Commissioners for their ultimate hiring. He also

administered his own department and made recommendations

to his superiors, the Deputy County Clerk, the County Clerk,

and the County Commissioners. Moreover, the job

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description, the accuracy of which Richards did not contest,

supports application of the enhancement. According to the

description, Richards was “responsible for designing,

implementing and maintaining a centralized Human Resource

Department.” He also was responsible for “writ[ing],

maintain[ing] and apply[ing] the County policies and

guidelines by administering and directing a comprehensive

human resource program, formulating and recommending

policies, regulations, and practices for carrying out programs,

consulting and advising the County staff to coordinate the

various phases of the policies, practices, ordinances, and

resolutions.” (App. at 55-56.) The District Court did not

clearly err in concluding that these job duties and

responsibilities evidenced Richards’s ability to substantially

influence the decision-making process. 6

6

We also reject Richards’s argument that the District Court

erred in applying the enhancement to him because the District

Court did not apply it to Richards’s supervisor, William

Brace. Richards does not support his argument with any

comparative evidence and has not demonstrated that he is

similarly situated to Brace for sentencing purposes. Without

showing that Brace’s “circumstances exactly paralleled”

Richards’s, “a court should not consider sentences imposed

on defendants in other cases in the absence of such a

showing” by Richards. United States v. Iglesias, 535 F.3d

150, 161 n.7 (3d Cir. 2008) (internal quotation marks and

citation omitted); see also United States v. Robinson, 603

F.3d 230, 234-35 (3d Cir. 2010) (rejecting a defendant’s

argument that his sentence was unreasonable in light of the

fact that his co-defendant was not subject to the same

enhancements that he was; we could not conclude that the

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III. Conclusion

For the foregoing reasons, we will affirm the judgment

of the District Court.

defendant’s sentence was unreasonable based solely on the

fact that the court applied the enhancement to one defendant

but not to the other). Merely pointing out the difference

between his sentence and Brace’s sentence does not establish

that the District Court clearly erred in concluding that the

enhancement should be applied to Richards.

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