In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2707
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FELIPE ZAMORA,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:18-cr-00184-2 — John Z. Lee, Judge.
____________________
ARGUED SEPTEMBER 17, 2020 — DECIDED DECEMBER 15, 2020
____________________
Before KANNE and HAMILTON, Circuit Judges. *
HAMILTON, Circuit Judge. While appellant Felipe Zamora
was in a federal correctional facility awaiting resentencing for
past offenses, he began paying a guard to smuggle contra-
band into the facility. Once the smuggling operation was
*Then-Circuit Judge Barrett was a member of the panel when this case
was argued but did not participate in the decision and judgment. The ap-
peal is resolved by a quorum of the panel under 28 U.S.C. § 46(d).
2 No. 19-2707
discovered, Zamora pleaded guilty to bribing a federal offi-
cial. The Sentencing Guidelines call for a four-level enhance-
ment for bribery offenses that “involved … any public official
in a high-level decision-making or sensitive position.”
U.S.S.G. § 2C1.1(b)(3). The district court held that the guard
was a public official in a sensitive position and applied the
four-level enhancement. Zamora argues that the court erred
because the prison guard was a low-level official with little
discretionary authority and therefore did not hold a sensitive
position. But the Guideline’s commentary, which generally
binds us on issues of interpretation, explains that officials in
sensitive positions include those who are situated similarly to
a law enforcement officer. We conclude that a non-supervi-
sory prison guard fits within this guidance.
I. Factual and Procedural Background
Appellant Felipe Zamora was a high-ranking member of
the Latin Kings gang in Chicago. In 2009 he pleaded guilty to
an extortion and racketeering conspiracy. See United States v.
Zamora, 835 F.3d 684, 685 (7th Cir. 2016). After two successful
challenges to his sentence, Zamora was transferred to the
Metropolitan Correctional Center in Chicago (MCC) to await
resentencing. There, he hatched a scheme with his sister and
Rafael Lizak, a Bureau of Prisons guard at the MCC, to smug-
gle contraband into the prison.
To carry out the scheme, Zamora took orders from fellow
inmates for desired contraband and directed his sister to ob-
tain the items. She would pass the contraband—synthetic ma-
rijuana, cigarettes, and cell phones—to Lizak, who used his
position as a guard to smuggle the items into the prison. Lizak
delivered the items to Zamora, who sold them at a profit. Za-
mora told his sister to pay Lizak $1,000 per delivery. Over six
No. 19-2707 3
months, the group smuggled four loads of contraband into
the MCC before Lizak withdrew from the scheme. Zamora
told his sister to offer Lizak $5,000 to smuggle another cell
phone, but Lizak refused.
Zamora was charged with conspiracy to commit an of-
fense against the United States in violation of 18 U.S.C. § 371
and giving and offering bribes to a federal official in violation
of 18 U.S.C. § 201(b)(1)(C). He pleaded guilty to the bribery
charge, and the government dismissed the conspiracy charge
under a plea agreement. Zamora admitted in the agreement
that he bribed Lizak with the intent to induce him to violate
prison rules on contraband.
The district court calculated Zamora’s guideline sentenc-
ing range using § 2C1.1 of the Sentencing Guidelines. The
court started with a base offense level of 12 and then added
several enhancements, including a four-level enhancement
because the offense “involved … [a] public official in a high-
level decision-making or sensitive position.” U.S.S.G.
§ 2C1.1(b)(3). Zamora objected to this enhancement, arguing
that Lizak did not qualify because he lacked decision-making
authority at the correctional facility. The district court over-
ruled the objection, explaining that although Lizak “may not
have had high level decisionmaking authority,” a prison
guard qualifies as a “sensitive position.” Zamora appeals his
sentence. 1
1 Zamora challenges the use of the § 2C1.1(b)(3) enhancement in calculat-
ing his guideline range. The district judge ultimately imposed a 60-month
sentence that exceeded Zamora’s guideline range either with or without
the enhancement. Nevertheless, an error in calculating the guideline range
is “a procedural error that we presume influenced the judge’s choice of
sentence, unless the judge said otherwise.” United States v. White, 883 F.3d
4 No. 19-2707
II. Discussion
Zamora presents two arguments on appeal. First, he ar-
gues that Lizak did not hold a sensitive position because non-
supervisory BOP guards have very little authority. Second, he
asserts that even if Lizak held a sensitive position, the sensi-
tive-position enhancement does not apply to the type of brib-
ery he committed. We reject both of these arguments and af-
firm the district court’s judgment.
A. Lizak Held a Sensitive Position
In a federal bribery case, § 2C1.1(b)(3) of the Guidelines
instructs the sentencing court to increase the base offense
level by four “if the offense involved an elected public official
or any public official in a high-level decision-making or sen-
sitive position.” “Whether an individual is a public figure in
a high-level decision making or sensitive position is a factual
determination, reviewable for clear error.” United States v.
Johnson, 874 F.3d 990, 1002 (7th Cir. 2017).
The phrase “high-level decision-making or sensitive posi-
tion” is a term of art defined in the guideline commentary,
which is treated as authoritative unless it conflicts with the
text of the relevant Guideline. See Stinson v. United States, 508
U.S. 36, 38 (1993). Application Note 4(A) defines a “high-level
decision-making or sensitive position” as one “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
983, 987 (7th Cir. 2018), quoting United States v. Marks, 864 F.3d 575, 582
(7th Cir. 2017). Here, the district judge never said that the disputed guide-
line issue would not affect the final sentence, so we cannot treat as harm-
less the arguable error in the advisory guideline calculation. Id.
No. 19-2707 5
process.” U.S.S.G. § 2C1.1 cmt. n.4(A). The parties agree that
Lizak was not a high-level decision-maker. The question is
whether he held a “sensitive position.”
Application Note 4(B) advises: “Examples of a public offi-
cial who holds a sensitive position include a juror, a law en-
forcement officer, an election official, and any other similarly
situated individual.” § 2C1.1 cmt. n.4(B). Relying on Applica-
tion Note 4(B), other circuits have concluded that prison
guards hold sensitive positions under § 2C1.1(b)(3), in part
because they seem fairly similar to law enforcement officers.
See United States v. Dodd, 770 F.3d 306, 312 (4th Cir. 2014) (fed-
eral correctional officer); United States v. Griffith, 781 F. App’x
418, 421 (6th Cir. 2019) (same); United States v. Grosso, 658 F.
App’x 43, 46–47 (3d Cir. 2016) (county correctional officer);
United States v. Guzman, 383 F. App’x 493, 494 (5th Cir. 2010)
(same).
Those decisions are persuasive. In many ways, federal
prison guards are law enforcement officers. They bear the
front-line responsibility for detecting crime and rule viola-
tions within a prison’s walls and are authorized to use force
and to make arrests to carry out that responsibility. See 18
U.S.C. § 3050. In other statutory contexts, the Supreme Court
and this court have held that prison guards are a type of law
enforcement officer. See Ali v. Federal Bureau of Prisons, 552
U.S. 214, 218, 227–28 (2008) (holding a Bureau of Prisons
guard is a “law enforcement officer” under the Federal Tort
Claims Act); United States v. Sababu, 891 F.2d 1308, 1328–29
(7th Cir. 1989) (holding Bureau of Prisons’ practice of record-
ing prisoner calls qualified as wiretapping by “an investiga-
tive or law enforcement officer” under Title III of the Omnibus
Crime Control and Safe Streets Act).
6 No. 19-2707
Zamora argues that the example of law enforcement offic-
ers in Application Note 4(B) should not reach prison guards
on the theory that even non-supervisory police officers have
far more discretion than prison guards. Guards, he asserts, are
not situated similarly to the law enforcement officers who
qualify under the Guideline because non-supervisory guards
lack the requisite “authority to make decisions for, or on be-
half of, [the] government,” § 2C1.1 cmt. n.4(A). Zamora notes
that, unlike a highway patrol officer who has broad discretion
to give a speeding motorist a warning instead of a citation,
guards like Lizak are bound by rigid prison policies requiring
a supervisor’s approval even before allowing an inmate to
visit other cells, to make unscheduled trips to the library, or
to use a television, telephone, or computer after hours. Za-
mora maintains that Lizak’s discretion was limited to only the
most minor decisions, like giving inmates extra food or essen-
tial toiletries.
We agree that § 2C1.1 probably calls for some level of de-
cision-making authority on the part of an official deemed to
have a “sensitive position,” but we are not persuaded that
prison guards fall outside the scope of the Guideline. Before
the Sentencing Commission amended § 2C1.1 in 2004, Appli-
cation Note 4(B) included only “supervisory” law enforce-
ment officers in its examples of officials holding sensitive po-
sitions. Under that earlier version, Zamora would have had a
stronger argument. But in 2004, Note 4(B) was broadened. The
word “supervisory” was stricken, indicating that the defini-
tion should include all law enforcement officers. See U.S.S.G.
App. C, Amendment 666 (Nov. 2004). The amended, broader
application note interprets the Guideline, and that broader
scope is persuasive (keeping in mind that, at this point, of
No. 19-2707 7
course, all the Sentencing Guidelines and their application
notes are only advisory).
The better course is to interpret the Guideline in a way that
reaches bribery of officials with decision-making authority
comparable to at least front-line, non-supervisory police offic-
ers. While a prison guard’s duties surely differ from a high-
way patrol officer’s, for example, federal prison guards have
enough law-enforcement authority to fall within the guid-
ance. First and foremost, like police officers, guards are au-
thorized to carry firearms and to make warrantless arrests on
behalf of the Bureau of Prisons for a broad array of crimes,
including assault, escape, trespass, theft, contraband, or “any
other offense … if necessary to safeguard security, good or-
der, or government property.” 18 U.S.C. § 3050. These powers
confer substantial decision-making authority. See Guzman,
383 F. App’x at 494 (“A prison guard has the authority and the
ability to directly and significantly influence inmates’ lives
and the entire facility’s safety with the decisions he or she
makes.”).
Supervising inmates and maintaining order within a
prison may entail some police-like discretion. Consider the
actual policy Zamora bribed Lizak to violate: preventing in-
mate possession of contraband, including illegal drugs. Police
officers and prison guards both investigate and enforce rules
against drug possession and smuggling in a way that neces-
sarily entails discretion. No policy can delineate ahead of time
exactly when and to what extent police officers or prison
guards will investigate an individual suspected of possessing
or trafficking drugs. Although laws, policies, and supervisors’
instructions constrain their discretion, police and prison
guards alike must decide whether to investigate based on the
8 No. 19-2707
circumstances before them. See United States v. Reneslacis, 349
F.3d 412, 416 (7th Cir. 2003) (positions can be “sensi-
tive … even if existing rules dictate how th[eir] decisions
should be made”). The facts of this very case suggest Lizak
enjoyed considerable authority and discretion even as a non-
supervisory guard. He was able to use his position of author-
ity to smuggle drugs and cellphones to Zamora for months
without detection.
In short, prison guards are situated similarly to law en-
forcement officers for purposes of § 2C1.1(b)(3) as explained
in Application Note 4(B). “The men and women who occupy
these positions wield the coercive power of the state to main-
tain order and safety among the populations they protect.
They are responsible for enforcing the rules.” Dodd, 770 F.3d
at 312. We therefore affirm the district court’s finding that
Lizak, a non-supervisory prison guard, was a public official
in a “sensitive position” for purposes of § 2C1.1.
B. The Enhancement Applies to Crime-Facilitation Bribery
Zamora offers a second theory for rejecting the enhance-
ment. Even if Lizak held a sensitive position, Zamora argues,
the enhancement applies only to bribes made for the purpose
of influencing an official act. See 18 U.S.C. § 201(b)(1)(A) (offi-
cial-acts bribery); see also McDonnell v. United States, 136 S. Ct.
2355, 2371–72 (2016) (defining “official act” as “a decision or
action on a ‘question, matter, cause, suit, proceeding or con-
troversy’” that “must involve a formal exercise of governmen-
tal power that is similar in nature to a lawsuit before a court,
a determination before an agency, or a hearing before a com-
mittee”). According to Zamora, smuggling contraband cannot
be considered an official act because Lizak lacked legal au-
thority to supply inmates with drugs and other contraband,
No. 19-2707 9
from which Zamora argues that smuggling was not a “formal
exercise of governmental power.” See McDonnell, 136 S. Ct. at
2372. Zamora also emphasizes that he pleaded guilty to vio-
lating 18 U.S.C § 201(b)(1)(C), which, unlike § 201(b)(1)(A),
has no requirement that the bribe was made to influence an
official act. Section 201(b)(1)(C) applies instead to what Za-
mora calls crime-facilitation bribery—where the bribe in-
duces the public official to do something that would be illegal
even without the bribe.
Zamora did not make this distinct argument in the district
court, so we review it only for “plain error.” United States v.
Olano, 507 U.S. 725, 732 (1993) (“Rule 52(b) defines a single
category of forfeited-but-reversible error”—“‘error’ that is
‘plain’ and that ‘affect[s] substantial rights’”), quoting Fed. R.
Crim. P. 52(b). To be “plain,” the error must be “clear” or “ob-
vious.” Id. at 734. If a guideline error is shown, however, it
“most often will” affect the defendant’s substantial rights and
require resentencing. See Molina-Martinez v. United States, 136
S. Ct. 1338, 1345 (2016); see also Rosales-Mireles v. United States,
138 S. Ct. 1897, 1911 (2018) (“[T]he failure to correct a plain
Guidelines error that affects a defendant's substantial rights
will seriously affect the fairness, integrity, and public reputa-
tion of judicial proceedings.”). Still, a sentencing court may
signal clearly that a particular guideline issue did not affect
the ultimate sentence. E.g., Molina-Martinez, 136 S. Ct. at
1346−47; United States v. Thomas, 897 F.3d 807, 817 (7th Cir.
2018); United States v. Hill, 645 F.3d 900, 912–13 (7th Cir. 2011);
United States v. Abbas, 560 F.3d 660, 667 (7th Cir. 2009). Some
guideline issues are abstract, technical, minor, and/or only
tenuously related to the purposes of sentencing under 18
U.S.C. § 3553(a). That’s why we have encouraged district
judges to explain their thinking on whether disputed
10 No. 19-2707
guideline issues actually affect their sentences. E.g., United
States v. Marks, 864 F.3d 575, 582 (7th Cir. 2017).
The forfeiture does not matter here, however, because Za-
mora’s crime-facilitation argument is not persuasive. The dis-
tinction he draws between official-acts bribery and crime-fa-
cilitation bribery does not save him from the § 2C1.1(b)(3) en-
hancement because the enhancement applies to both forms.
Section 2C1.1(b)(3) is worded broadly. It applies to all bribery
offenses that “involved” a qualifying official; it does not limit
its application to only certain forms of bribery.
Despite this broad language in (b)(3), Zamora contends,
the Guideline’s commentary requires a narrower interpreta-
tion. The Background Note to § 2C1.1 explains: “Under
§ 2C1.1(b)(3), if the payment was for the purpose of influencing an
official act by certain officials, the offense level is increased by
4 levels.” U.S.S.G. § 2C1.1 cmt. (backg’d) (emphasis added).
Zamora interprets this statement as singling out official-acts
bribery as the exclusive means of triggering the enhancement.
As with his previous argument, this would have been a
stronger argument before 2004. The actual text of the Guide-
line then matched more closely the Background Note’s lan-
guage. At that time, the Guideline applied “If the offense in-
volved a payment for the purpose of influencing an elected official
or any official holding a high-level decision-making or sensi-
tive position … .” U.S.S.G. App. C, Amendment 666 (Nov.
2004) (emphasis added). But the 2004 Amendments broad-
ened the text of § 2C1.1(b)(3) to eliminate the need for “a pay-
ment for the purpose of influencing” an official. Instead, the
enhancement now applies more broadly, “If the offense in-
volved an elected public official or any public official in a high-
level decision-making or sensitive position … .” Id. (emphasis
No. 19-2707 11
added). The Sentencing Commission explained that the
amendment was intended to “ensure[] … that all offenses in-
volving ‘an elected public official or any public official in a
high-level decision-making or sensitive position’ will receive
four additional offense levels.” Id. (emphasis added). Section
2C1.1(c)(1) further confirms that this four-level enhancement
applies not only to official-acts bribery but also to crime-facil-
itation bribery: “If the offense was committed for the purpose of
facilitating the commission of another criminal offense, apply the
offense guideline applicable to a conspiracy to commit that
other offense, if the resulting offense level is greater than that de-
termined above” in § 2C1.1(b)(3). (Emphasis added).
The vestigial language Zamora relies upon in the Back-
ground Note—seeming to limit the enhancement to offenses
where “the payment was for the purpose of influencing an of-
ficial act”—is thus no longer consistent with the broader,
amended text of the Guideline itself. When such conflicts arise
between the Guideline and the commentary, the Guideline
controls. See Stinson, 508 U.S. at 43 (“It does not follow that
commentary is binding in all instances. If, for example, com-
mentary and the guideline it interprets are inconsistent in that
following one will result in violating the dictates of the other,
the Sentencing Reform Act itself commands compliance with
the guideline.”).
Under the text of § 2C1.1(b)(3), Zamora’s bribery offense
indisputably “involved” Lizak. Lizak accepted bribes on sev-
eral occasions and, in exchange for the $1,000 cash bribes, he
personally delivered contraband within the prison walls. Be-
cause Zamora’s bribery offense involved a public official in a
sensitive position, the district court properly applied
§ 2C1.1(b)(3)’s four-level enhancement.
12 No. 19-2707
Finally, we take this occasion to remind district judges,
and ourselves, that such close parsing of the evolving lan-
guage of the Guidelines and their commentary can drift away
from the purposes of sentencing that must, by law, drive the
judge’s discretionary sentencing decision under 18 U.S.C.
§ 3553(a). A sentencing judge who confronts a textual issue as
involved as this one may of course find it appropriate to en-
gage with it fully. But a judge is also entitled to respond to the
debate by asking, “Why should I care?” See Marks, 864 F.3d at
576. If there is no good answer to that question in terms of the
purposes set forth in § 3553(a), a decision that focuses primar-
ily on those central purposes may serve better than one driven
by the “attenuated subtleties” and nuances of the texts of the
Guidelines and commentary. See Lucas v. Earl, 281 U.S. 111,
114 (1930).
The district court’s judgment is AFFIRMED.