Friday, April 13, 2012

Clear Error Standard of Review Applies to a District Court's Application of U.S.S.G. Section 2C1.2(b)(3)

In, United States v. Richards, No. 10-4767, the Third Circuit affirmed the district court's application of U.S.S.G. Section 2C1.2(b)(3) to the defendant.

Richards, the former Director of Human Resources for the government of Luzerne County, pled guilty to 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 a consulting firm interested in contracting with Luzerne County. Richards accepted $1,000 and free New York Mets tickets. In exchange, he helped Continental Consultants to obtain a contract with Luzerne County to provide temporary employment services for individuals hired to perform cleanup work in the aftermath of a 2006 flood. At the sentencing hearing, Richards objected to the court’s application of a four-level enhancement pursuant to § 2C1.2(b)(3), which applies to “an elected public official or any public official in a high-level decision-making or sensitive position.” The commentary defines the term in part, “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.”

Richards argued the enhancement was inapplicable to him because: (1) he had no hiring/firing authority; (2) he could not bind Luzerne County; (3) he could not take official action on Luzerne County’s behalf; (4) his duties were administrative, and not policymaking; (5) he had superiors who reported to the County Commissioners; and (6) his superior did not receive the enhancement when he was sentenced for his role in the bribery scheme. Richards did admit, however, that he was responsible for referring three or four top candidates for jobs to the County Commissioners. He also was responsible for administering the Human Resources Department and made various recommendations to his superiors, the Deputy County Clerk, and the County Commissioners. These facts, along with his job description, would later prove fatal to his argument.

On appeal, Richards argued that application of the enhancement was subject to de novo review, because the issue involves an interpretation of the Guidelines. The Third Circuit disagreed, finding that the deferential clearly erroneous standard applied “when considering a district court's application of the Sentencing Guidelines to a specific set of facts, that is, where the district court determined whether the facts ‘fit’ within what the Guidelines prescribe.” The Court also noted that its “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,” further supporting application of the clearly erroneous standard of review. Finally, the Court reasoned that many other enhancements that require the district court to make similar factual determinations are also reviewed for clear error.

The Court then held that the district court’s application of the enhancement was not clear error, citing Richards’ responsibilities as director including referring top candidates to the County Commissioners for their ultimate hiring; designing, implementing and maintaining a centralized Human Resource Department; and writing, maintaining and applying county policies and guidelines. Finally, the Court rejected Richards’ argument that the enhancement should not be applied to him because it was not applied to his superior. The Court reasoned that “[w]ithout showing that [his superior’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.” See United States v. Iglesias, 535 F.3d 150, 161 n.7 (3d Cir. 2008); United States v. Robinson, 603 F.3d 230, 234-35 (3d Cir. 2010).

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