Opinions of the United
1998 Decisions                                                                                                             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Precedential or Non-Precedential: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.
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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, 

, 713 (3d Cir. 1989).

                                 3
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, 

, 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

                                4
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, 

, 614 (9th Cir. 1993); cf. United States v. Wong, 

, 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

                               5
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

                               6
       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, 

, 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,"

while "employee" is defined as "one employed by
another usu[ally] for wages or salary and in a position
below the executive level," 

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

                               7
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.

                               8
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, 

, 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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