United States v. Sylvia Chairez , 423 F. App'x 361 ( 2011 )

Case: 09-50844 Document: 00511448407 Page: 1 Date Filed: 04/18/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 18, 2011
No. 09-50844
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
SYLVIA CASTILLO CHAIREZ,
Defendant–Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:09-CR-58-1
Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Sylvia Castillo Chairez appeals the sentence imposed following her guilty
plea to accepting a bribe by a public official in violation of 18 U.S.C.
§ 201(b)(2)(C). Chairez challenges the district court’s imposition of a four-level
enhancement to her base offense level pursuant to United States Sentencing
Guidelines (U.S.S.G.) § 2C1.1(b)(3) on the ground that her offense involved a
“public official in a high-level decision-making or sensitive position.” She argues
that the record evidence does not support a finding that as a correctional officer
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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No. 09-50844
at the Reeves County Detention Center, she occupied a “sensitive position” for
purposes of the Guideline. We AFFIRM on that issue but REMAND in order
that clerical errors in the written judgment can be corrected.
The question whether an official holds “a high-level decision-making or
sensitive position, because it depends primarily upon interpretation of the
sentencing guidelines, is a question of law that we review de novo.” United
States v. Snell, 152 F.3d 345, 346 (5th Cir. 1998). We examine for clear error
“[f]actual questions, such as the discretion, supervisory authority, and other
indicia of responsibility of [the] official.” Id.Chairez did not challenge at sentencing the district court’s description of
the role of a correctional officer and did not offer any rebuttal evidence to
demonstrate that she did not perform the duties of a correctional officer as
described by the district court. The district court was permitted to make
reasonable inferences as to Chairez’s duties and responsibilities from the fact
that Chairez was a correctional officer at a facility that housed federal inmates.
See United States v. Rodriguez, 897 F.2d 1324, 1326 (5th Cir. 1990). The
“district court’s factual findings about [the officer’s] duties and responsibilities
are plausible in light of the record as a whole and are not clearly erroneous.”
United States v. McCowan, No. 09-50846, slip op. at 4 (5th Cir. Dec. 13, 2010)
(unpublished) (per curiam); see United States v. Cisneros-Gutierrez, 517 F.3d
751, 764 (5th Cir. 2008).
We have held that “[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. Such power within the judicial system
makes the position of prison guard a sensitive position under the sentencing
guidelines.” United States v. Guzman, 383 F. App’x 493, 494-95 (5th Cir. 2010)
(unpublished) (per curiam). The guidelines commentary provides that
“[e]xamples of a public official who holds a sensitive position include a juror, a
law enforcement officer, an election official, and any other similarly situated
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No. 09-50844
individual.” U.S. S ENTENCING G UIDELINES M ANUAL § 2C1.1 cmt. n.4(B). The
district court did not err in applying a four-level enhancement to Chairez’s base
offense level on the ground that as a correctional officer, she was a public official
in a sensitive position for purposes of § 2C1.1(b)(3). See McCowan, slip op. at 6;
Guzman, 383 F. App’x at 494-95; Snell, 152 F.3d at 346.
The written judgment states that Chairez was convicted of bribery of a
public official in violation of 18 U.S.C. § 201(b)(1)(C), but Chairez pleaded guilty
to accepting a bribe by a public official in violation of § 201(b)(2)(C). The case is
therefore remanded for the limited purpose of correcting the clerical errors in the
judgment pursuant to F ED . R. C RIM. P. 36. See United States v. Johnson, 588
F.2d 961, 964 (5th Cir. 1979).
AFFIRMED; REMANDED FOR CORRECTION OF CLERICAL ERRORS
IN JUDGMENT.
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