U.S. v. Spear

• Decision Date: 26 June 2007
• Docket Number: No. 06-1296.,06-1296.
• Citation: 491 F.3d 1150
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Catherine Ileen SPEAR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

491 F.3d 1150

UNITED STATES of America, Plaintiff-Appellee, v. Catherine Ileen SPEAR, Defendant-Appellant.

No. 06-1296.

United States Court of Appeals, Tenth Circuit.

June 26, 2007.

Lynn C. Hartfield, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Denver, CO, for Appellant.

James C. Murphy, Assistant United States Attorney (Troy A. Eid, United States Attorney, and Kathleen L. Torres, Assistant United States Attorney, with him on the brief) Office of the United States Attorney, Denver, CO, for Appellee.

Before TYMKOVICH, EBEL, and HOLMES, Circuit Judges.

TYMKOVICH, Circuit Judge.

Catherine Spear worked as a federal immigration employee responsible for the intake of applications submitted by persons applying for changes in their immigration status. Instead of processing the applications, she kept the fees accompanying the applications and then threw the applications in the trash.

After her scheme was uncovered, she pleaded guilty to two counts of embezzlement of government funds in excess of $1,000, in violation of 18 U.S.C. § 641. Applying the two-level enhancement for abusing a position of public trust pursuant to § 3B1.3 of the U.S. Sentencing Guidelines (USSG), the court sentenced her to 14 months in prison. She now appeals that sentence.

We have jurisdiction under 28 U.S.C. § 1291. Concluding that Spear's position lacked the authority and discretion required for the abuse of public trust enhancement, we REVERSE the district court and REMAND for resentencing.

I. Background

Catherine Ileen Spear worked as an Examinations Assistant in the United States Citizenship and Immigration Services Bureau (USCIS) in Denver, Colorado. The USCIS handles applications and petitions regarding various citizenship and immigration matters. Many submissions require payment of a fee, which the USCIS collects and processes. Spear's position included processing the numerous submissions mailed into the USCIS as well as collecting, recording, and depositing any accompanying fees. She also was responsible for preparing program reports, managing travel for the Denver office, and addressing building maintenance issues. She did not have the authority to approve immigration applications.

In early 2005, several applicants notified USCIS that their applications had not been processed even though their money orders had been cashed. After an investigation, the government determined Spear had stolen the funds. She accomplished this by covering the first two letters from the payee line on money orders submitted payable to "USCIS," relying upon the remaining "CIS" notation to deposit the funds into her own accounts (based on her matching initials—Catherine Ileen Spear). Forty-six money orders from immigration applications totaling $11,210 were deposited into Spear's personal bank account. Spear admitted, after depositing the funds into her personal bank account, she discarded the accompanying applications.

Spear was charged with sixteen counts of embezzlement of government property as well as an enhancement provision that applies when the value of the embezzled property exceeds $1,000. She pleaded guilty to two counts of embezzlement and the enhancement provision.

Prior to sentencing, the presentence investigation report evaluated two possible sentence enhancements: (1) targeting vulnerable victims pursuant to USSG § 3A1.1, and (2) abusing a position of trust pursuant to USSG § 3B1.3. The report concluded that neither enhancement was merited. Nonetheless, the government argued for both enhancements at sentencing. The district court denied the government's request for the § 3A1.1 vulnerable victim enhancement, but agreed to apply the § 3B1.3 abuse of trust enhancement. Based on this determination, two sentencing levels were added, doubling her maximum sentence from 6 months to 12 months.

The district court relied on three grounds for the enhancement: (1) a letter submitted from a supervisor claiming Spear was in a position of trust, (2) Spear's job responsibilities as identified in a prior performance evaluation, and (3) concerns that Spear's misconduct further complicated an already complicated immigration process, especially for those unfortunate families seeking citizenship for foreign-born, adoptive children. Moreover, even after applying the abuse of trust enhancement, the district court sua sponte varied upwards from the guidelines range of 6-12 months and sentenced Spear to 14 months because of the consequences her crime imposed on innocent victims enmeshed in the immigration system.

On appeal, Spear challenges the enhancement, the reasonableness of her sentence, and a lack of pre-sentence notice regarding the sua sponte upward variance.

II. Discussion

"Whether a defendant occupied a position of trust under USSG § 3B1.3 is generally a factual matter" that we review for clear error. United States v. Haber, 251 F.3d 881, 890-91 (10th Cir.2001). We review a district court's interpretation of the Guidelines de novo to see if the correct standard was applied to the factual findings, id. at 890, and whether the court's "determination that the facts justify an abuse-of-trust enhancement" was correct. United States v. Britt, 388 F.3d 1369, 1371 (11th Cir.2004). In this case, no real dispute exists as to the district court's factual findings. The question is whether the district court applied the proper legal standard in determining whether Spear occupied a position of trust. We conclude it did not.

A. Legal Framework

The Guidelines contain a special provision allowing courts to enhance sentences for abuse of a position of trust. "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 2 levels." USSG § 3B1.3.

The government must satisfy two elements to meet § 3B1.3, establishing: (1) whether the person occupies a position of trust, and (2) whether the position of trust was used to facilitate significantly the commission or concealment of the crime. USSG § 3B1.3, see United States v. Parrilla Roman, 485 F.3d 185, 190-91 (1st Cir.2007) (discussing two-step process); United States v. Andrews, 484 F.3d 476 (7th Cir.2007); United States v. Morris, 286 F.3d 1291, 1295 (11th Cir.2002). In this case, the analysis falters primarily at the first step.

In defining a position of public or private trust, the Guidelines' Application Note 1 to § 3B1.3 provides that:

"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.

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

The commentary goes on to illustrate the scope of the enhancement—it applies, for example, to professionals like lawyers or doctors, but not to bank tellers or hotel clerks.¹

Our cases interpreting the guideline make clear that the term "position of trust" is a bit of a misnomer. It actually has little to do with trustworthiness and everything to do with authority and discretion.

Our recent decision in United States v. Edwards, 325 F.3d 1184 (10th Cir.2003), a case involving a clerk in an insurance company, is our most thorough analysis of the enhancement to date. In Edwards, we started with the simple observation that the establishment of trust and confidence inheres in most fraud cases, but that the "enhancement is not meant to apply in every case of fraud." Id. at 1187 (quoting United States v. Koehn, 74 F.3d 199, 201 (10th Cir.1996)). We emphasized, moreover, that the lack of "any [] authority to make substantial discretionary judgments" is key in determining whether the enhancement applies. Id. (emphasis added); see also United States v. Reccko, 151 F.3d 29, 31 (1st Cir.1998) (recognizing "trust" in § 3B1.3 is a function of the Sentencing Guidelines "creat[ing] their own vocabulary" and "defin[ing] terms in ways that might strike lay persons as peculiar."); United States v. Ragland, 72 F.3d 500, 503 (6th Cir.1996) (characterizing position of trust as a "term of art"). "The fact that [the defendant] was trusted by her employer with significant responsibility . . . is not determinative." Edwards, 325 F.3d at 1187.²

By defining a "position of public or private trust" as a position of authority characterized by the exercise of professional or managerial discretion, we more accurately identify those defendants eligible for the enhancement. The enhancement is concerned with persons in positions of authority abusing their lack of supervision to commit or conceal wrongdoing; therefore, it is reserved for those with professional or managerial discretion. Such authority is characterized by "substantial discretionary judgment . . . given considerable deference" and is contrasted against "employees whose responsibilities are primarily non-discretionary in nature." USSG § 3B1.3, cmt. n. 1 (emphasis added). The discretion necessary to qualify for the enhancement exists where the person charged had the authority to make broad case-by-case decisions for the organization. Edwards, 325 F.3d at 1188 (citing United States v. Tiojanco, 286 F.3d 1019, 1021 (7th Cir.2002)). This discretion requires more than engaging in mere ministerial tasks directed by standardized office protocols.

Accordingly, to determine whether a defendant occupies a position of trust, we must undertake a functional analysis of job responsibilities and examine whether those duties were merely ministerial or were, in fact, managerial. Indications of substantial discretionary judgment under the § 3B1.3 enhancement include the authority to engage in case-by-case...