U.S. v. West
| Decision Date | 09 June 1995 |
| Docket Number | No. 94-3094,94-3094 |
| Citation | 56 F.3d 216 |
| Parties | UNITED STATES of America, Appellee, v. Gary Stephen WEST, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
A.J. Kramer, Federal Public Defender, Washington, DC, argued the cause and filed the briefs, for appellant.
Barbara A. Grewe, Asst. U.S. Atty., Washington, DC, argued the cause, for appellee. With her on the brief were Eric H. Holder, Jr., U.S. Atty., John R. Fisher, Elizabeth Trosman and David H. Baum, Asst. U.S. Attys., Washington, DC.
Before: EDWARDS, Chief Judge, WALD and GINSBURG, Circuit Judges.
Opinion for the Court filed by Chief Judge HARRY T. EDWARDS.
Appellant Gary S. West challenges the District Court's two-point upward adjustment of his sentence, pursuant to section 3B1.3 of the federal Sentencing Guidelines ("Guidelines"), for allegedly abusing a position of private trust. West pleaded guilty to one count of bank fraud, in violation of 18 U.S.C. Sec. 1344, in the United States District Court for the District of Columbia. West, the president and sole employee of a small courier company, admitted culpability for two fraudulent schemes, one involving the theft of checks he had been hired to transport, the other involving certain false credit card transactions. West engaged in his first scheme while employed through contract as a courier, and his duties were simply to transport At sentencing, the District Court added two points to appellant's base offense level, pursuant to section 3B1.3 of the Guidelines, for abusing a position of trust in a manner that significantly facilitated the commission and concealment of his crime. The District Court found that appellant was subject to the abuse-of-trust enhancement because he had been entrusted with large amounts of money, as well as information giving him access to large amounts of money. The court also found that the enhancement applied because West's position as president and sole employee of his own courier company facilitated the commission and concealment of his crimes. Because of this enhancement, appellant was sentenced to an additional six months imprisonment.
certain checks from one local bank branch to another. In carrying out his second scheme, West stole various documents from a company's lockboxes, using keys he had acquired during previous employment as a courier with a different courier company.
On appeal, West argues that the abuse-of-trust enhancement should not have been applied to him, because his job as a courier did not constitute a position of trust within the meaning of section 3B1.3 of the Guidelines. We agree. The commentary to section 3B1.3 defines a "position of trust" as one that is "characterized by professional or managerial discretion." U.S.S.G. Sec. 3B1.3, application note 1 (Nov. 1, 1994). Such positions, the commentary adds, involve "substantial discretionary judgment that is ordinarily given considerable deference." Id. However, appellant's position as a courier in this case involved almost no discretion whatsoever--his job consisted of nothing more than transporting certain items from one place to another. Such a position clearly does not involve the sort of discretion, either professional or managerial, contemplated by the plain language of the commentary to section 3B1.3. Accordingly, because the District Court erroneously applied the abuse-of-trust enhancement to appellant, we vacate this part of appellant's sentence and remand the case for resentencing without the enhancement.
West was the president and sole employee of Courier Network USA ("CNUSA"), a small courier company that transported items for businesses in the Washington, D.C. area. West admitted engaging in two fraudulent schemes, one involving the theft of child-support checks he was hired to transport, the other involving false credit card transactions. The facts of these schemes are not in dispute.
In 1992, West entered into a contract for CNUSA to transport child-support checks from a Signet Bank branch in Maryland to a NationsBank branch, also in Maryland. 1 The Maryland Office of Child Support Enforcement ("OCSE") had originally opened an account at Signet Bank to hold child-support funds sent by various parties to be distributed to the guardians of the children. The agency later moved its account to NationsBank. Because some individuals continued to send their checks to Signet Bank, West was hired to transport the errant checks to NationsBank.
In November 1992, West, using a false name, opened an account at a Citibank branch in the District of Columbia in the name of "Bureau of Support Enforcement, Client Collections." Over a period of several months, West deposited into this account $143,000 in child-support checks that he was supposed to deliver from Signet to NationsBank. West subsequently withdrew about $80,000 from this account. After discovering that the account was fraudulent, Citibank security officers contacted the United States Postal Inspector's Office, which investigated the matter. In July 1993, West and his attorney began discussing a pre-indictment plea with the United States Attorney's Office for the District of Columbia.
During these plea negotiations, West also engaged in a second fraudulent scheme.
Several years earlier, when working for a different courier company, West had obtained keys to certain lockboxes used by the Hecht Company to store documents awaiting pickup by a courier. In July 1993, West used these keys to remove from the lockboxes credit card receipts and other paperwork documenting credit card transactions, from which West compiled a list of valid Visa and MasterCard account numbers. Using these account numbers and a point-of-sales terminal West had installed in his home (also the office of CNUSA) in Northwest Washington, D.C., West processed over 1000 fraudulent credit card transactions, totaling $413,824.70. The transactions were credited to a merchant account West had opened for CNUSA in 1992 at First Premier Bank in Sioux Falls, South Dakota. When West asked First Premier to transfer these funds to his local account in Washington, officials at the bank became suspicious of the large number of transactions in what had been essentially a dormant account, and they contacted the FBI. West's credit card scheme was thus thwarted before any of the fraudulently acquired funds reached his Washington, D.C. account.
Pursuant to a plea agreement, West pleaded guilty on March 31, 1994 to an information charging him with one count of bank fraud in violation of 18 U.S.C. Sec. 1344. The Government and West agreed that appellant would have an offense level of 15 and a criminal history category of I, yielding a projected range of 18-24 months imprisonment under the Guidelines. The presentence report agreed with this projection, but also recommended a two-point upward adjustment in West's offense level, under section 3B1.3 of the Guidelines, for abusing a position of private trust in a manner that significantly facilitated the commission and concealment of his offense. This adjustment raised the Guideline sentencing range to 24-30 months.
On June 21, 1994, the District Court, over West's objection, followed the recommendation of the presentence report and adjusted West's offense level upward under section 3B1.3. In imposing the abuse-of-trust enhancement, the District Court adopted the reasoning of the memorandum filed by the Government in support of the enhancement. See Sentencing Tr. (June 21, 1994) at 18, reprinted in Appendix ("App.") 83. The Government first argued that West occupied a position of trust because he had acted as an agent for both OCSE and the Hecht Company, and that these entities had entrusted him with either large amounts of money (the OCSE checks) or information which gave him access to large amounts of money (the credit card receipts in the Hecht lockboxes). See Government's Opposition to Defendant's Memorandum of Points and Authorities in Support of Defendant's Objections to the Presentencing Report at 4-6, reprinted in App. 60-62. The Government then contended that West's position as president and sole employee of CNUSA significantly facilitated the commission and concealment of his criminal activity. On this point, the Government contended that West's position as president allowed him to obtain the point-of-sales terminal and to open the merchant account at First Premier. And because West had no supervisor, he purportedly was able to avoid detection of both the check and credit card schemes. See id. at 6-7, reprinted in App. 62-63. The District Court sentenced West to 30 months imprisonment, to be followed by a three-year term of supervised release. The court also ordered West to pay restitution in the amount of $125,045.28 ($123,164.48 to OCSE and $1880.80 to First Premier Bank). West began serving his sentence in June 1994.
West challenges the District Court's decision to increase his sentence by two levels because he abused a position of private trust under section 3B1.3 of the Guidelines. He claims that, under the commentary to section 3B1.3, as well as this court's construction of that section, he did not occupy a position of private trust with respect to either OCSE or Signet Bank (the check scheme) or the Hecht Company (the credit card scheme). Specifically, West contends that his sentence was improperly enhanced because his duties as a courier in connection Section 3B1.3 of the Guidelines mandates a two-level upward adjustment of a defendant's base offense level "[i]f the defendant abused a position of public or private trust ... in a manner that significantly facilitated the commission or concealment of the offense." U.S.S.G. Sec. 3B1.3 (Nov. 1, 1994). 2 Thus, in...
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