United States v. Godsey

• Decision Date: 05 September 2012
• Docket Number: No. 11–2971.,11–2971.
• Citation: 690 F.3d 906
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Sarah Ann GODSEY, also known as Sarah Marcum, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

690 F.3d 906

UNITED STATES of America, Plaintiff–Appellee,

v.Sarah Ann GODSEY, also known as Sarah Marcum, Defendant–Appellant.

No. 11–2971.

United States Court of Appeals, Eighth Circuit.

Submitted: March 15, 2012.

Filed: Sept. 5, 2012.

Alfred E. Willett, argued, Cedar Rapids, IA, for Appellant.

Teresa Baumann, AUSA, argued, Cedar Rapids, IA, for Appellee.

Before WOLLMAN and COLLOTON, Circuit Judges, and HICKEY,¹ District Judge.

HICKEY, District Judge.

Sarah Ann Godsey pleaded guilty to one count each of bank fraud, access-device fraud, and aggravated identity theft under 18 U.S.C. §§ 1344; 1029(a)(5); and 1028A(a)(1), respectively. The district court ² sentenced her to a total of 54 months' imprisonment. Godsey appeals her sentence. We affirm.

I.

Godsey was a sales assistant at KBK Inc.'s (“KBK”) Cedar Rapids, Iowa office from June 2005 through March 2007. Her duties included preparing checks for her supervisors' signatures. Over a 16–month period, Godsey embezzled money from KBK's checking account at U.S. Bank by forging checks and making unauthorized electronic transfers. Godsey concealed the fraud by covering her withdrawals with funds transferred from other KBK credit card accounts. Godsey also opened several credit card accounts and increased KBK's credit limit to $120,000 by using her supervisor's name, birthdate, and social security number. She linked those credit cards to her personal online account with PayPal Inc. (“PayPal”). Godsey used the credit cards to make personal purchases and to pay off her U.S. Bank embezzlement. She further concealed her fraud by mailing altered KBK bank statements to KBK's New York office.

When KBK and local police discovered the scheme in early 2007, Godsey provided false explanations and forged PayPal documents to hinder the investigation. Godsey also gave false statements to an FBI agent working on the case. A grand jury indicted her on 33 counts of bank fraud, mail fraud, access-device fraud, and aggravated identity theft. Pursuant to a plea agreement, Godsey pleaded guilty to one count of bank fraud, one count of access device fraud, and one count of aggravated identity theft. At sentencing, the district court imposed a two offense level increase under § 3B1.3 of the United States Sentencing Guidelines for abusing a position of trust and denied Godsey's request for an adjustment downward under § 3E1.1 for acceptance of responsibility. The district court found the total offense level on the two fraud counts to be level 19, criminal history category I, with an advisory guideline range of 30 to 37 months. On the aggravated identity theft count, the district court calculated the guideline range as 24 months pursuant to 18 U.S.C. § 1028A, which mandates a sentence of two years to run consecutive with other terms of imprisonment. The district court denied Godsey's motion to vary below the guideline range under 18 U.S.C. § 3553(a) and imposed a total sentence of 54 months—two concurrent 30 month sentences for the fraud counts and a consecutive 24 month sentence for aggravated identity theft. The district court further imposed a 5–year term of supervised release, a $300 special assessment, and restitution in the amount of $120,189.22.

II.

Godsey appeals three aspects of her sentence. First, she contends that the district court erred by applying to her sentence a two offense level increase for abusing a position of trust under U.S.S.G. § 3B1.3. Second, Godsey contends that the district court erred by denying her an adjustment downward for acceptance of responsibility under U.S.S.G. § 3E1.1. Finally, Godsey contends that the district court erred by denying her a downward variance in light of her family obligations, alleged mental illness, and lack of criminal history under 18 U.S.C. § 3553(a).

A.

Godsey first argues that the district court erred in applying to her sentence an upward adjustment for abusing a position of trust. U.S.S.G. § 3B1.3 (2011). Improperly calculating the guideline range is a significant procedural error. United States v. Hagen, 641 F.3d 268, 270 (8th Cir.2011). “We review the district court's construction and application of the guidelines de novo and its factual findings for clear error.” United States v. Bates, 584 F.3d 1105, 1108 (8th Cir.2009).

1.

Section 3B1.3 of the guidelines provides for a two offense level increase “[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[.]” U.S.S.G. § 3B1.3. Application Note 1 of that section defines “public or private trust” as:

1. Definition of “Public or Private Trust”.—“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. For this adjustment to apply, the position of public or private trust must have contributed in some significant way to facilitating the commission or concealment of the offense ( e.g. by making the detection of the offense or the defendant's responsibility for the offense more difficult).

U.S.S.G. § 3B1.3 Application Note 1.Godsey argues that the district court erroneously applied Application Note 2(B) of § 3B1.3. Application Note 2(B) states in relevant part:

2. Application of Adjustment in Certain Circumstances.—Notwithstanding Application Note 1, or any other provision of this guideline, an adjustment under this guideline shall apply to the following ...

(B) A defendant who exceeds or abuses the authority of his or her position in order to obtain, transfer, or issue unlawfully, or use without authority, any means of identification.

U.S.S.G. § 3B1.3 Application Note 2(B).

The district court applied § 3B1.3 on the basis that Godsey abused the authority of her position in order to use without authority her supervisor's means of identification. Godsey argues that because the district court did not first establish whether she occupied a “position of public or private trust” under Application Note 1, it should never have reached Application Note 2(B). In response, the government contends that Application Note 2(B) may be applied independently of Application Note 1 because Application Note 2 clearly states that it applies “[n]otwithstanding Application Note 1....”

Godsey's argument requires us to interpret the guidelines. “ ‘We employ basic rules of statutory construction when interpreting the Guidelines.’ ” United States v. Davis, 668 F.3d 576, 577 (8th Cir.2012) (quoting United States v. Hackman, 630 F.3d 1078, 1083 (8th Cir.2011)). Unless an Application Note is clearly erroneous or in conflict with the Constitution, a federal statute, or the guideline itself, the note is binding on a district court. Hackman, 630 F.3d at 1083 (quoting United States v. Smith, 282 F.3d 1045, 1047 (8th Cir.2002)). Godsey does not argue that the Application Note in question suffers any such deficiency. “ ‘We therefore turn to the ordinary meaning of the terms to guide our review’ ” of the Application Note at issue. Id. (quoting United States v. Parker, 267 F.3d 839, 847 (8th Cir.2001)).

Generally, under U.S.S.G. § 3B1.3 the government must prove (1) that the defendant was in a position of public or private trust; and (2) that he used the position to significantly facilitate the commission or concealment of the offense. United States v. Miell, 661 F.3d 995, 998 (8th Cir.2011). We now face the question of whether Application Note 2(B) provides an independent basis for applying an adjustment under § 3B1.3. We hold that is does.

The Note's own terms sever it from other § 3B1.3 requirements. Application Note 2 states that “[n]otwithstanding Application Note 1 or any other provision of this guideline, an adjustment under this guideline shall apply to the following[.]” “Notwithstanding” means “in spite of.” Notwithstanding, Black's Law Dictionary 1091 (7th ed. 1999). Application Note 2(B), therefore, applies in spite of Note 1. A failure to meet the definition of Application Note 1 does not affect whether Application Note 2(B) applies.

The plain language of Application Note 2(B) thus compels the conclusion that it applies even when Application Note 1 does not. Accordingly, we find that Application Note 2(B) is an independent basis for applying an adjustment under § 3B1.3. See United States v. Abdelshafi, 592 F.3d 602, 611 (4th Cir.2010).

2.

Godsey next argues that she is not covered by the language in Application Note 2(B). She asserts that all of the example applications given in Application Note 2(B) involve identity theft that victimizes individuals outside the defendant's place of employment. Because Godsey's identity theft victimized only her supervisor, she argues that Application Note 2(B) does not apply to her. The government argues that the Note's application should not be limited by its stated examples.

Note 2(B) provides the following example applications:

(i) An employee of a state motor vehicle department who exceeds or abuses the authority of his or her position by knowingly issuing a driver's license based on false, incomplete, or misleading information; (ii) a hospital orderly who exceeds or abuses the authority of his or her position by obtaining or misusing patient identification information from a patient chart; and (iii) a volunteer at a charitable organization who exceeds or abuses the authority of his or her position by obtaining or misusing identification information from a donor's file.

U.S.S.G. § 3B1.3 Application Note 2(B).

The first victim mentioned in the examples is presumably the public. The second victim is a patient, and the third is a charitable donor. While none of the stated examples involve the employment...