Before: Stapleton, Nygaard and Weis, Circuit Judges
The opinion of the court was delivered by: Nygaard, Circuit Judge.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Opinion Filed: July 24, 1998
Lawyer Lee Walker appeals his sentence after pleading guilty to possession of a prohibited object by an inmate, 18 U.S.C. § 1791, and impeding a federal officer, 19 U.S.C. § 111. Specifically, he contends that the district court erred by applying U.S. Sentencing Guidelines Manual § 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.
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. § 1791(a)(2), and resisting and impeding a federal officer, 18 U.S.C. § 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
subsection (b) instead of (a) to enhance Walker's sentence by three levels. The guideline in its entirety provides as follows:
(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 ...