U.S. v. Edwards, 02-2045.

• Decision Date: 13 March 2003
• Docket Number: No. 02-2045.,02-2045.
• Citation: 325 F.3d 1184
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jennifer EDWARDS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

325 F.3d 1184

UNITED STATES of America, Plaintiff-Appellee, v. Jennifer EDWARDS, Defendant-Appellant.

No. 02-2045.

United States Court of Appeals, Tenth Circuit.

Filed March 13, 2003.

Ordered Published April 9, 2003.

Susan Bronstein Dunleavy, Assistant Federal Public Defender (Stephen P. McCue, Federal Public Defender), Albuquerque, NM, for Defendant-Appellant.

Norman Cairns, Assistant United States Attorney (David C. Iglesias, United States Attorney, with him on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Before LUCERO, HOLLOWAY, and ANDERSON, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Jennifer Edwards pled guilty to bank fraud, committed in violation of 18 U.S.C. § 1344, and was sentenced under the United States Sentencing Commission, Guidelines Manual (Nov.2000) (USSG), to five months imprisonment, to be served at a halfway house, followed by five years of supervised release, including five months on home confinement under the electronic monitoring program. The sentence was based on a calculated total offense level of 12, two levels of which reflected an adjustment, pursuant to USSG § 3B1.3, for abusing a position of trust. On appeal, Ms. Edwards contends that the district court erred in applying that adjustment because she did not occupy the type of position for which § 3B1.3 was designed: a position "characterized by professional or managerial discretion (i.e., substantial discretionary judgment that is ordinarily given considerable deference)." USSG § 3B1.3, comment. (n.1).

As relevant to our disposition of this case, "[w]hether a defendant occupied a position of trust within the meaning of USSG § 3B1.3 is a factual question, and we will affirm the sentencing court unless we find its decision clearly erroneous." United States v. Koehn, 74 F.3d 199, 201 (10th Cir.1996). Applying that standard to the analysis set forth below, we vacate the sentence and remand for resentencing.

A.

At the sentencing hearing in this case, the district court adopted the Presentence Investigation Report (PIR), and one witness testified, establishing the following central facts. From 1992 through 1998, Ms. Edwards worked as an hourly wage employee in the outdoor advertising division of the accounting department of Bowlin, a New Mexico retail and outdoor advertising company. In that job, she largely handled accounts receivable. More specifically, her duties during the pertinent period consisted of receiving checks mailed in by Bowlin customers, preparing them for deposit, posting the payments to customer accounts and the cash receipts journal, sending out bills, calculating customer account balances, and compiling and forwarding to sales personnel and her supervisors reports reflecting this data. Cash receipts journal reports were incorporated in the company's general ledgers and, subsequently, its financial statements.

Ms. Edwards' duties also included posting credits to customer accounts. Credits were granted in amounts determined by authorized company personnel when they were advised by customers of various problems with their outdoor signs. Ms. Edwards had no authority to grant credits and no authority to exercise discretionary judgment with respect to any other part of her job. Her tasks were solely ministerial.

From late December 1997, through mid-September 1998, Ms. Edwards embezzled $31,395.06 from Bowlin by failing to post certain customer payments and by re-routing some fifty-nine checks reflecting those payments to her boyfriend's account at The First Security Bank — an account to which she had access. In all but two instances, she accomplished this by simply endorsing the back of the check "for deposit only" to the number of that account. In two instances she changed the name of the payee on the check to correspond to the account. She then included the checks in the regular deposits she prepared. She concealed this diversion of payments by posting false credits to the accounts of customers whose checks were diverted. Thus, the accounts balanced for reporting purposes.

In September 1998, a bank teller finally noticed the discrepancy on the checks between Bowlin, as payee, and the account number listed on the back of the check for deposit purposes. This discovery led eventually to the bank fraud charge in this case.

B.

Section 3B1.3 of the Sentencing Guidelines, and Application Note 1 of the Commentary to the Guideline, provide in pertinent part, as follows:

Abuse of Position of Trust or Use of Special Skill

If the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by levels. This adjustment may not be employed if an abuse of trust or skill is included in the base offense level or specific offense characteristic. ...

Commentary

Application Notes:

1. "Public or private trust" refers to a position of public or private trust characterized by professional or managerial discretion (i.e., substantial discretionary judgment that is ordinarily given considerable deference). Persons holding such positions ordinarily are subject to significantly less supervision than employees whose responsibilities are primarily non-discretionary in nature. For this adjustment to apply, the position of public or private trust must have contributed in some significant way to facilitating the commission or concealment of the offense (e.g., by making the detection of the offense or the defendant's responsibility for the offense more difficult). This adjustment, for example, applies in the case of an embezzlement of a client's funds by an attorney serving as a guardian, a bank executive's fraudulent loan scheme, or the criminal sexual abuse of a patient by a physician under the guise of an examination. This adjustment does not apply in the case of an embezzlement or theft by an ordinary bank teller or hotel clerk because such positions are not characterized by the above-described factors.

USSG § 3B1.3, comment. (n.1) (emphasis added).

As indicated above, Ms. Edwards contends that this guideline adjustment should not have been applied to her because, among other things, her job was purely ministerial and did not entail substantial discretionary judgment. The government, on the other hand, emphasizes Ms. Edwards' alleged specialized accounting skills, her minimal oversight, her virtual exclusive control over the accounts receivable and customer...