U.S. v. Lang, 02-1814.

• Decision Date: 27 June 2003
• Docket Number: No. 02-1814.,02-1814.
• Citation: 333 F.3d 678
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donna LANG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

333 F.3d 678

UNITED STATES of America, Plaintiff-Appellee, v. Donna LANG, Defendant-Appellant.

No. 02-1814.

United States Court of Appeals, Sixth Circuit.

Submitted: June 18, 2003.

Decided and Filed: June 27, 2003.

Thomas C. Rowsey (briefed), Cumming, GA, for Appellant.

Thomas J. Gezon, Assistant United States Attorney (briefed), Grand Rapids, MI, for Appellee.

Before BOGGS and GILMAN, Circuit Judges; MARBLEY, District Judge.^*

OPINION

GILMAN, Circuit Judge.

Donna Lang pled guilty to a one-count information charging her with mail fraud. The district court sentenced her to a 30-month term of imprisonment, followed by 3 years of supervised release. Lang appeals a sentencing enhancement under United States Sentencing Guidelines § 3B1.3, which concerns the abuse of a position of trust or use of a special skill. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual background

Hermann Miller, Inc. (HMI), a furniture manufacturing company based in Zeeland, Michigan, employed Lang as a trade-in specialist from January of 1982 to February of 2001. Lang's job was to hire contractors to remove and dispose of used office furniture from companies that had purchased new HMI furniture. In June of 1998, Lang created an entity that she called Style, Inc., which had a telephone answering service and a mailing address in Memphis, Tennessee.

As HMI's trade-in specialist, Lang processed a fictitious invoice from Style, Inc. to HMI in January of 1999 for work that had in fact been provided by another company. She received payment from HMI for the invoice, then waited several months to determine whether HMI would discover the fraud. Satisfied that HMI was in the dark, Lang began to routinely submit fraudulent invoices. By the time HMI discovered in the summer of 2000 that Lang was defrauding it, she had submitted approximately 20 fraudulent invoices involving Style, Inc. HMI suffered a total loss of over $600,000 as the result of Lang's conduct by the time that her employment was terminated in February of 2001.

B. Procedural background

In March of 2002, Lang was charged in a one-count information with mail fraud, in violation of 18 U.S.C. § 1341. She pled guilty. Her case was then referred to the United States Probation Office for a presentence investigation and report.

The Presentence Report (PSR) placed Lang's base offense level at 6, then added 14 levels for specific offense characteristics. It next recommended a two-level enhancement based upon United States Sentencing Guidelines § 3B1.3, which concerns the abuse of a position of trust or use of a special skill. Lang objected to this enhancement. After a hearing, the district court overruled her objection and sentenced her to a 30-month term of imprisonment, followed by 3 years of supervised release. This timely appeal followed.

Both parties have stated that oral argument is unnecessary. Having examined the briefs and the record, we unanimously agree that "the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument." Fed. R.App. P. 34(a)(2)(C).

II. ANALYSIS

Lang contends that the district court erred in adopting the PSR's recommendation that her offense level should be increased two levels for abusing a position of trust. United States Sentencing Guidelines § 3B1.3 requires such an enhancement where the defendant "abused a position of public or private trust ... in a manner that significantly facilitated the commission of concealment of the offense."

Paragraph 25 of Lang's PSR stated: "Ms. Lang, having worked for HMI for approximately 19 years and being the only trade-in specialist, was subjected to significantly less supervision based on her established trust and specialized position." The PSR therefore recommended a two-level increase under § 3B1.3. Lang's attorney objected to this recommendation. In a letter to the probation officer, he wrote:

Mrs. Lang certainly did steal from her employer. However, she did not abuse a position of public or private trust.... Since Mrs. Lang was employed as a trade-in specialist, who had to send all invoices and information to corporate headquarters for approval, we do not believe that her job was a position that held the level of trust and discretion contemplated by the commission in drafting U.S.S.G. § 3B1.3. Thus, Mrs. Lang's Offense level should not be increased by the two levels you contend in paragraph number 25 of your Pre-Sentence Investigation Report.

The probation officer responded to this objection in an addendum to the PSR, in which he reported that he had spoken "with the Manager of Business Risk Assurance who informed this officer [that] Ms. Lang had the authority and did sign for all of her invoices.... Ms. Lang's boss was not required to oversee her transactions." At the sentencing hearing, the district court overruled Lang's objection, reasoning as follows:

According to the Manager of Business Risk Assurance from Herman Miller [sic], Defendant Lang, although not officially designated a manager, had the authority to sign all of her invoices and was in charge of all trade-ins. In addition, Defendant Lang's boss was not required to oversee her transactions.... Due to the obvious discretionary nature of Lang's position, she was able to submit numerous false vouchers, I think twenty, for payment without obvious detection.... I, therefore, find her position did hold the level of trust and discretion contemplated by the enhancement language.

Lang argues on appeal that irrespective of the merits of the enhancement, the district court committed reversible error by relying on factual findings contained in the PSR rather than making its own determination of the facts. She points out that Rule 32 of the Federal Rules of Criminal Procedure provides that a sentencing court "must — for any disputed portion of the presentence report or other controverted matter — rule on the dispute or determine that a ruling is unnecessary...." Fed. R.Crim.P. 32(i)(3)(B). In United States v. Parrott, 148 F.3d 629 (6th Cir.1998), this court explained that Rule 32 "prohibits a court faced with a dispute over sentencing factors from adopting the factual findings of the presentence report without making factual determinations of its own." Id. at 633. According to Lang, after she objected to Paragraph 25 of her PSR, the district court could not conclude that she had abused a position of trust unless the government introduced evidence to support the enhancement.

We find her argument unpersuasive. In our opinion, the above-quoted assertion by Lang's attorney is not sufficient to give rise to a "dispute" within the meaning of Rule 32. See United States v. Treadway, 328 F.3d 878, 886 (6th Cir.2003) ("We can find no reason to require a district court to make independent findings outside the PSR when the facts are undisputed.") We agree with the reasoning of the Seventh Circuit that

[a] defendant cannot show that a PSR is inaccurate by simply denying the PSR's truth. Instead, beyond such a bare denial, he must produce some evidence that calls the reliability or correctness of the alleged facts into question. If a defendant meets this burden of production, the government must then convince the court that the PSR's facts are actually true. But the defendant gets no free ride: he must produce more than a bare denial, or the judge may rely entirely on the PSR.

United States v. Mustread, 42 F.3d 1097, 1102 (7th Cir.1994) (citations and internal quotation marks omitted). Our own court, in the unpublished decision of United States v. Dolan, No. 95-1769, 1996 WL 599819 (6th Cir. Oct.17, 1996), reached the same conclusion: "[A] defendant who challenges factual allegations in the PSR [presentence report] has the burden of producing some evidence beyond a bare denial that calls the reliability or correctness of the alleged facts into question." Id. at *7 (alterations in original).

Nothing in Parrott is to the contrary. Lang is correct that the defendant in Parrott "contended generally that there was no evidence to support" the enhancement at issue, 148 F.3d at 633, without himself producing any evidence to call the reliability or correctness of the PSR's facts into question. This court stated that "the District Court erred by failing to make independent factual findings sufficient to support the ... enhancement." Id. at 634-35. It therefore vacated the district court's imposition of the enhancement and remanded for reconsideration. The reason, however, that the district court erred in relying on the PSR in Parrott was not that the defendant had called the reliability or...