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
_____________

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
_____________

Argued January 11, 2012

Before: SCIRICA, RENDELL and SMITH, Circuit Judges

(Opinion Filed: March 16, 2012)
_____________
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
_____________

OPINION OF THE COURT
_____________

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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