U.S. v. Lamb

• Decision Date: 27 August 1993
• Docket Number: No. 92-2846,92-2846
• Citation: 6 F.3d 415
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Charles L. LAMB, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 415

6 F.3d 415

UNITED STATES of America, Plaintiff-Appellant, v. Charles L. LAMB, Defendant-Appellee.

No. 92-2846.

United States Court of Appeals Seventh Circuit.

Argued Jan. 11, 1993.

Decided Aug. 27, 1993.

Barry R. Elden, Asst. U.S. Atty., Criminal Receiving, Appellate Div., Chicago, IL, Scott A. Verseman, Rockford, IL, for U.S.

Terry L. Deck, Rockford, IL, for defendant-appellee.

Before BAUER, Chief Judge, POSNER and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

Charles Lamb, a letter carrier for the United States Postal Service, was charged with and pled guilty to embezzlement of U.S. mail in violation of 18 U.S.C. Sec. 1709. The district court sentenced Lamb to two months of home confinement followed by three years of probation as well as imposing a fine of $1,000 and ordering that he perform fifty hours of community service. The United States government appeals the district court's refusal to increase Lamb's base offense level by two levels for abuse of a position of public trust under the United States Sentencing Guidelines Sec. 3B1.3. We reverse and remand.

I. BACKGROUND

Defendant Charles Lamb commenced his employment with the United States Postal Service on February 11, 1987, and was assigned as a letter carrier in Rockford, Illinois. His duties included the sorting and delivery of mail given to him by the distribution clerk. Lamb was also responsible for retrieving mail from collection boxes and bringing this mail back to the Post Office for processing.

In early April 1992, postal authorities were informed that thirty-seven opened envelopes and their contents were discovered in a collection box on Lamb's route. On or about that same date, someone stole a master postal key which opened all the collection boxes in Rockford, Illinois. One week later, a Rockford resident returned to the post office 200 pieces of mail, some opened and some unopened, that he found along the railroad tracks. Postal authorities also received twenty-three pieces of mail from two other people who observed it flying out of a postal vehicle (a subsequent investigation revealed that the vehicle was assigned to the defendant Lamb). Later the same day, a county deputy sheriff returned 300 pieces of mail to the Post Office that he found in a forest preserve. The mail delivery problems on Lamb's route prompted the U.S. Postal Inspection Service to begin an investigation into Charles Lamb.

Postal inspectors, who investigate theft by postal employees, placed two test letters, each containing recorded currency, into the mail for Lamb's assigned route on April 10th, 1992. Each of the test letters had an undeliverable address and U.S. Postal procedure dictates that a letter carrier return all undeliverable mail to the U.S. Post Office. The postal inspectors followed and observed Lamb on April 10th as he delivered the mail on his route and apprehended him immediately after he made purchases in a convenience store with money they had placed in a test letter. After arresting Lamb, they found additional plant money in his wallet. At this time, Lamb confessed to stealing the master key to the city's collection boxes and embezzling mail. Postal authorities estimate that Lamb stole or destroyed approximately 1500 pieces of mail including thirty-seven state and federal tax returns.

After the defendant was charged with one count of embezzlement of mail in violation of 18 U.S.C. Sec. 1709, he entered a plea of guilty. Prior to sentencing, a probation officer prepared the Presentence Investigation Report ("PSR") and recommended against a Sec. 3B1.3 enhancement for abusing a position of trust because he believed a letter carrier was like a "bank teller" which the Guidelines commentary excludes from the "position of trust" enhancement. See U.S.S.G. Sec. 3B1.3 comment. (n. 1). At the defendant's sentencing hearing, a postal inspector testified that time and cost constraints prevent the Post Office from keeping a record of each and every piece of First Class Mail that is assigned to an individual letter carrier for delivery on a given day. Furthermore, the postal inspector testified that because of cost constraints the Post Office does not have a procedure in place that will insure that each and every piece of mail retrieved from collection boxes by letter carriers will be promptly delivered to the Post Office. Despite the postal inspector's testimony suggesting that letter carriers are in a position of trust as they perform their daily duties, the district judge denied the two level enhancement for abusing a position of trust relying instead upon the probation officer's recommendation and United States v. Arrington, 765 F.Supp. 945 (N.D.Ill.1991). The government appeals the district court's ruling declining to apply the two-level enhancement for abusing a position of trust.

II. DISCUSSION

The government's appeal requires that we interpret U.S.S.G. Sec. 3B1.3, and the corresponding Application Note 1. Section 3B1.3 instructs the sentencing court to enhance a defendant's sentence two levels when the defendant is in 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." Application Note 1 states that "[t]he position of trust must have contributed in some substantial way to facilitating the crime and not merely have provided an opportunity that could as easily have been afforded to other persons. The adjustment, for example, would not apply to an embezzlement by an ordinary bank teller." U.S.S.G. Sec. 3B1.3 comment. (n. 1). The Application Note's bank teller example has generated several conflicting circuit court decisions. ¹ The government's appeal requires that we review and analyze the various court interpretations of Sec. 3B1.3 and state the law of this circuit.

A. Standard of Review

Judicial interpretation of the term "position of trust" is a legal question that we review de novo. United States v. Kosth, 943 F.2d 798, 800 (7th Cir.1991). Our position in Kosth has been echoed in several other circuits. SeeUnited States v. Castagnet, 936 F.2d 57, 58-59 (2nd Cir.1991); United States v. McMillen, 917 F.2d 773, 774-75 (3rd Cir.1990); United States v. Hill, 915 F.2d 502, 505 (9th Cir.1990); but seeUnited States v. Ehrlich, 902 F.2d 327, 330 (5th Cir.1990) (reviewing for clear error), cert. denied, 498 U.S. 1069, 111 S.Ct. 788, 112 L.Ed.2d 851 (1991).

B. Position of Trust

The courts have enunciated several tests in an attempt to determine whether a defendant, such as this mail carrier, is in a position of trust within the meaning of U.S.S.G. Sec. 3B1.3. At oral argument the appellant and appellee presented three alternative tests. The government urges this court to adopt the standard established in United States v. Odoms, 801 F.Supp. 59 (N.D.Ill.1992). In the alternative, they suggest that if we reject the Odoms standard, we should apply the United States v. Hill test. 915 F.2d 502 (9th Cir.1990). The defendant-appellee in turn proposes adoption of a standard announced in United States v. Arrington, 765 F.Supp. 945 (N.D.Ill.1991). ²

1. The Arrington standard

In Arrington, the district court refused to apply a Sec. 3B1.3 enhancement for abuse of a position of public trust to a casual mail handler because "his access to mail that might contain things of value was no different from that of thousands of postal workers." Arrington, 765 F.Supp. at 947. The court based its holding on two sections of the Sentencing Guidelines: the Application Note to Sec. 3B1.3 (the bank teller example) and Sec. 2B1.1(b)(4) which increases the offense level if the theft involved undelivered mail. Arrington held that postal clerks should be excluded from the position of trust sentencing enhancement because there is nothing "to support the notion that the low-level postal employee who is given no special position of trust should be subjected to anything other than the straightforward application of Guideline 2B1.1, without a two-level increase under Guideline Sec. 3B1.3." Arrington, 765 F.Supp. at 948 (footnote omitted). The court concluded that ordinary postal workers are indistinguishable from bank tellers and are therefore exempt from the Sec. 3B1.3 sentence enhancement. Id. at 949.

In Arrington, the court also found support for its holding in the fact that the Sentencing Commission chose to punish mail theft by postal employees (in violation of 18 U.S.C. Sec. 1709) and mail theft by any other person (in violation of 18 U.S.C. Sec. 1708) under Sentencing Guideline Sec. 2B1.1 without creating a greater penalty for theft by a postal employee. In rejecting the two-level enhancement for abusing a position of trust whenever a postal employee is convicted of mail theft, the court stated, "[i]t is impossible to conclude that the Sentencing Commission equated all postal service employees with the 'public trust' within the meaning of Sec. 3B1.3." Id. at 948. We recently rejected this argument in dicta, stating

"For example, all postal carriers who steal mail might be thought to have abused a position of trust (Sec. 3B1.3), because Sec. 2B1.1 lumps together base offense level 4 forms of theft that do with forms of theft that do not involve an abuse of a position of trust. Since nothing in the guideline itself adjusts for this aggravating factor, postal carriers who steal mail would be under-punished if the adjustment for abuse of trust were confined to cases in which the defendant was more culpable than others who had committed the same crime, as distinct from others who had committed offenses with the same guideline."

United States v. Lallemand, 989 F.2d 936, 939 (7th Cir.1993).

The defendant, relying on Arrington, claims that he was a "low-level employee" (similar to the bank teller in the Application Note) and thus, he argues, the district court properly denied the two-level enhancement for abusing a position of trust. We disagree for we are of the opinion...