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United States of America v. Douglas Richards

March 16, 2012

UNITED STATES OF AMERICA
v.
DOUGLAS RICHARDS,
APPELLANT



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

The opinion of the court was delivered by: Rendell, Circuit Judge.

PRECEDENTIAL

Argued January 11, 2012

Before: SCIRICA, RENDELL and SMITH, Circuit Judges

OPINION OF THE COURT

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 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 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.

(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 ...


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