U.S. v. McMillen

• Decision Date: 28 November 1990
• Docket Number: No. 90-3079,90-3079
• Citation: 917 F.2d 773
• Parties: UNITED STATES of America, Appellant, v. Robert J. McMILLEN.
• Court: U.S. Court of Appeals — Third Circuit

Page 773

917 F.2d 773

UNITED STATES of America, Appellant, v. Robert J. McMILLEN.

No. 90-3079.

United States Court of Appeals, Third Circuit.

Argued June 21, 1990.

Decided Oct. 29, 1990.

Rehearing and Rehearing In Banc

Denied Nov. 28, 1990.

Thomas W. Corbett, Jr., U.S. Atty., Constance M. Bowden (argued), Asst. U.S. Atty., Bonnie R. Schlueter, Asst. U.S. Atty., Pittsburgh, Pa., for appellant.

Kim William Riester (argued), Scott, Vogrin & Riester, Pittsburgh, Pa., for appellee.

Before STAPLETON and GREENBERG, Circuit Judges, and POLLAK, ^* District Judge.

OPINION OF THE COURT

STAPLETON, Circuit Judge:

The United States appeals the sentence imposed on Robert J. McMillen under the United States Sentencing Guidelines (the "U.S.S.G."), following a guilty plea, for misapplication of funds by a Savings and Loan employee in violation of 18 U.S.C. Sec. 657. The Government argues that the district court erred in not adjusting McMillen's sentence upward pursuant to U.S.S.G. Sec. 3B1.3 because he abused a position of private trust in a manner that significantly facilitated the commission of the offense. We agree and will vacate the sentence and remand to the district court for further proceedings consistent with this opinion.

I.

McMillen was indicted for misapplying the funds of the First Federal Savings and Loan Association in violation of 18 U.S.C. Sec. 657. At all relevant times he was employed by the Savings and Loan Association as a branch manager. The indictment alleged that McMillen willfully misapplied funds by obtaining loans in the fictitious name of Edwin Thurmond. To collateralize the loans, McMillen issued a savings certificate in the name of Edwin Thurmond without the bank's receiving any consideration therefor. In addition, he opened a checking account, also in the name of Edwin Thurmond, and deposited the loan proceeds in that account. After completing the fraudulent loan applications, McMillen approved them himself as branch manager.

McMillen pled guilty to one count of misapplication of funds by a Savings and Loan employee. The district court, in applying the sentencing guidelines, found U.S.S.G. Sec. 3B1.3 inapplicable. In the district court's view, McMillen was not employed in a position of trust; the opportunity to commit this crime was equally available to other employees, and McMillen's position as branch manager did not contribute in a substantial way to facilitating the commission of the crime. App. at 56-57. The court sentenced McMillen to a three-year term of probation. As a condition of the probation, the court ordered McMillen confined to a Community Treatment Center for a period of thirty days to be followed by five months of home detention. The Government's timely appeal followed.

II.

A. Jurisdiction

This Court has jurisdiction over the appeal pursuant to 28 U.S.C.A. Sec. 1291 and 18 U.S.C.A. Sec. 3742(b)(2).

B. Standard of Review

Congress has provided us with guidance concerning the appropriate standard for appellate review of a sentence under the Sentencing Guidelines. "The court of appeals ... shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. Sec. 3742(e). The relevant legislative history is also instructive.

This standard of review is intended to give the court of appeals flexibility in reviewing an application of a guideline standard that involves some subjectivity. The deference due a district court's determination will depend upon the relationship of the facts found to the guidelines standard being applied. If a particular determination involved closely resembles a finding of fact, the court of appeals would apply a clearly erroneous test. As the determination approaches a purely legal determination, however, the court of appeals would review the determination more closely.

134 Cong.Rec. H11257 (daily ed. Oct. 21, 1988).

In our view, the case before us raises three separate categories of questions. The first, of course, is what authority McMillen had as branch manager and what he did in the course of committing this crime. These are questions of fact and the district court's answers to them are reviewable only for clear error. Fortunately, there appears to be no dispute with respect to these matters of fact although the record is not as fully developed as it might be.

The second question is whether the authority possessed by McMillen as bank manager was such that he served in a "position of trust." While recognizing that the issue is not free from doubt, ¹ we believe that this question is better characterized as an inquiry into the "interpretation of a guideline term." So characterized, it approaches a purely legal determination. See United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir.1989). Accordingly, a standard approaching de novo review is appropriate. ²

Whether McMillen abused his position in a way that substantially facilitated the commission or concealment of the crime is the final question. This determination more closely resembles a finding of fact and necessitates review under the clearly erroneous standard. See United States v. Foreman, 905 F.2d 1335, 1338 (9th Cir.1990) (whether defendant's conduct significantly facilitated the concealment of her crime was a factual determination to which the court would defer unless clearly erroneous); United States v. Ehrlich, 902 F.2d 327, 330 (5th Cir.1990) (district court's determination that defendant used position of trust to facilitate the commission of her offenses was not clearly erroneous and would not be reversed).

C. Analysis

U.S.S.G. Sec. 3B1.3 requires the sentencing court to increase the offense level by two "[i]f 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...." The defendant was a branch manager for the First Federal Savings and Loan Association. As a branch manager, McMillen was in a supervisory position and had the authority to approve loan applications, issue savings certificates, and sign bank documents without supervisory approval from other bank employees. Based on these undisputed facts, and without any further evidence reflecting material limitations on this authority, we believe the district court could only conclude that McMillen served in a "position of private trust" within the meaning of U.S.S.G. Sec. 3B1.3. ³

The remaining question is whether McMillen abused his position as branch manager "in a manner that significantly facilitated the commission or concealment of the offense...." The Application Notes of the Sentencing Guidelines elaborate: "The 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. This adjustment, for example, would not apply to an embezzlement by an ordinary bank teller." Application Note to U.S.S.G. Sec. 3B1.3. The district court found that McMillen's position as branch manager did not substantially contribute to the commission of the crime. App. at 57.

As this Court has noted, "[w]hile [the clearly erroneous] standard of review severely restricts our role, it does not extinguish it." Ali v. Gibson, 631 F.2d 1126, 1129 (3d Cir.1980), cert. denied, 449 U.S. 1129, 101 S.Ct. 951, 67 L.Ed.2d 117 (1981). The uncontradicted presentence report declared that "[c]onstruction and completion of the scheme was facilitated by virtue of [McMillen's] position as branch manager." Presentence Report, p 7. McMillen did not challenge this declaration and, accordingly, there was no further record development on the point. We note that the district court adopted "all factual statements contained in the PSI" in its Memorandum of Sentencing Hearing and Report of Statement of Reasons. Supp.App. at 6SA. McMillen personally approved his own initial fraudulent loan application as well as subsequent applications to refinance the loan. His position as branch manager made it possible for him to take such actions. McMillen's own attorney stated that he could not have committed the crime had he not been branch manager.

A review of the record leaves us with "the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). McMillen abused his position of trust. As branch manager, he approved fraudulent loans to himself, created a false savings certificate to serve as collateral for the loans and opened a checking account in a fictitious name. His abuses contributed substantially to the facilitation of both the commission and concealment of the crime. The record simply does not support the district court's finding that "an ordinary bank teller" could have "embarked upon a reasonably similar scheme of embezzling the funds and covering it up so it would not have been detected." ⁴ App. at 56. We find that the district court committed clear error in holding that U.S.S.G. Sec. 3B1.3 is not applicable to McMillen. We will vacate the sentence.

III.

The defendant argues that because he has begun serving his sentence, the government's appeal violates the double jeopardy clause of the Constitution. In United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), the Supreme Court addressed this argument in the context of 18 U.S.C. Sec. 3576. That statute granted the United States the right to appeal the sentence imposed upon a "dangerous special offender." On appeal, the government sought the imposition of a more severe sentence upon a defendant who had begun serving his original sentence.

The Court rejected the defendant's argument that the double jeopardy clause of the fifth amendment barred the government's appeal.

Although it might be argued that the defendant perceives...