US v. Harness, 98-6157.

• Decision Date: 12 July 1999
• Docket Number: No. 98-6157.,98-6157.
• Citation: 180 F.3d 1232
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kelly D. HARNESS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

180 F.3d 1232

UNITED STATES of America, Plaintiff-Appellee, v. Kelly D. HARNESS, Defendant-Appellant.

No. 98-6157.

United States Court of Appeals, Eleventh Circuit.

July 12, 1999.

Jackie D. Ferguson, Ferguson & Ferguson, Huntsville, AL, for Defendant-Appellant.

C. Douglas Jones, U.S. Attorney, Shirley I. McCary, Assistant U.S. Attorney, Birmingham, AL, Victor Conrad, Asst. U.S. Attorney, Huntsville, AL, for Plaintiff-Appellee.

Before BARKETT, Circuit Judge, and KRAVITCH and MAGILL^*, Senior Circuit Judges.

MAGILL, Senior Circuit Judge:

Kelly Harness was sentenced to twenty-seven months' imprisonment for his role in the illegal diversion of federal funds intended to benefit needy individuals facing eviction from their homes. The district court increased Harness's offense level two levels for his aggravating role, pursuant to U.S.S.G. § 3B1.1(c), and two levels for his abuse of a position of trust, pursuant to U.S.S.G. § 3B1.3. The court also declined to grant the government's motion for a downward departure for substantial assistance pursuant to U.S.S.G. § 5K1.1. Because the two level enhancement for an aggravating role was improper, we vacate the sentence and remand for resentencing.

I. Background

The City of Huntsville, Alabama received funds from the United States Department of Housing and Urban Development (HUD) via the Emergency Shelter Grant Program, which was designed to assist individuals in temporary financial trouble facing eviction from their homes. The City of Huntsville contracted with the American Red Cross (Red Cross) to provide administrative services related to the HUD funding. The Red Cross managed this responsibility through a program called Project Happen.

Kelly Harness was an accountant employed by the Red Cross who served as Director for Project Happen. Harness had check signing authority over Project Happen accounts and was responsible for maintaining the records related to these accounts. Harness was also responsible for submitting reimbursement claims to the City of Huntsville for Project Happen expenditures.

To receive assistance from Project Happen, an individual having trouble making rental payments would apply for rental assistance through Advocacy for the Homeless (Advocacy). If the application was approved by James Holland, Executive Director of Advocacy, it was forwarded to Harness at Project Happen for his approval. Project Happen would then issue a check directly to the applicant's landlord to cover his or her rental payment. Project Happen would then submit the application, an eviction notice, a photocopy of the check, and a reimbursement request form to the City of Huntsville for reimbursement.

Between December 1995 and June 1997, Harness and his co-defendants, James and Jill Holland (the Hollands), misapplied over 150 checks from the Project Happen accounts. Harness made numerous payments to cover his personal obligations, including mortgage payments and credit card debts. One of the more egregious diversions by Harness involved a $24,000 payment to Advocacy, which was diverted by James Holland to purchase a van for Harness's personal use. To hide their fraudulent diversion of funds, Harness and the Hollands fabricated payments to landlords that were supposedly made on behalf of needy applicants and falsified records in Project Happen's books. The Hollands were also actively engaged in the conspiracy, and wrote numerous fraudulent checks and created false documentation to cover their activities. The FBI estimated that the defendants illegally diverted in excess of $100,000.

Harness and the Hollands were charged in an eight-count indictment that alleged numerous violations of federal law. Harness pleaded guilty to five of the counts and testified on behalf of the government against the Hollands. The district court accepted Harness's guilty plea and sentenced him to twenty-seven months' imprisonment followed by twenty-four months' supervised release. The court enhanced Harness's offense level two levels for his aggravating role and two levels for his abuse of a position of trust. The court also declined to grant the government's motion for a downward departure for substantial assistance. Harness did not object to the probation officer's findings of fact and sentencing recommendations in his presentence investigation report (PSR) and did not object after the district court imposed the sentence. Harness now appeals his sentence, arguing that the district court's adjustments and refusal to depart downward were erroneous.

II. Standard of Review

We review the district court's application and interpretation of the Sentencing Guidelines under the de novo standard, but review its findings of fact only for clear error. See United States v. Barakat, 130 F.3d 1448, 1452 (11th Cir.1997); United States v. Williams, 51 F.3d 1004, 1011 (11th Cir.1995). Because Harness did not object to the probation officer's or the district court's findings of fact and sentencing calculations, we are limited to reviewing his claims of error for the first time on appeal under the plain error standard to avoid manifest injustice. See United States v. Stevenson, 68 F.3d 1292, 1294 (11th Cir.1995) (per curiam). "For the Court to correct plain error: (1) there must be error; (2) the error must be plain; and (3) the error must affect substantial rights." Id.

III. Discussion

A. Aggravating Role

Harness first argues that the district court erred by increasing his offense level two levels pursuant to U.S.S.G. § 3B1.1(c) for his aggravating role in the offense. We agree.

Section 3B1.1(c) requires a sentencing court to enhance a defendant's offense level two levels if he was "an organizer, leader, manager, or supervisor in any criminal activity...." U.S.S.G. § 3B1.1(c). "To qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants." Id. comment. (n.2) (emphasis added).

The probation officer recommended that the court enhance Harness's offense level two levels because he "exercised management responsibility over the property and assets of the victim organization as contemplated by U.S.S.G. § 3B1.1(c), Application Note 2." PSR at 6, ¶ 25. This was an incorrect application of section 3B1.1(c) because the enhancement requires that the defendant organize, lead, manage, or supervise another participant in the criminal scheme. See U.S.S.G. § 3B1.1, comment. (n.2). In contrast, the sentencing court has the discretion to depart upward from the otherwise applicable sentencing range if the defendant "did not organize, lead, manage, or supervise another participant, but who nevertheless exercised management responsibility over the property, assets, or activities of a criminal organization." Id. The probation officer's recommendation that the court enhance Harness's offense level because he had management responsibility over the assets of the victim was error, because these facts support only a discretionary decision to depart, not a mandatory enhancement under section 3B1.1(c). See, e.g., United States v. Bapack, 129 F.3d 1320, 1324 & n. 6 (D.C.Cir.1997) (recognizing that enhancement requires control over a participant in the scheme, not only control over the scheme itself); United States v. Gort-DiDonato, 109 F.3d 318, 321 (6th Cir.1997) (recognizing that enhancement required only when defendant exerts control over another participant, whereas upward departure may be appropriate if defendant controls only assets or activities of the criminal enterprise); United States v. Jobe, 101 F.3d 1046, 1068 (5th Cir.1996) (same); United States v. Cali, 87 F.3d 571, 576-77 (1st Cir.1996) (same); United States v. McFarlane, 64 F.3d 1235, 1239 (8th Cir.1995) (same); United States v. Fones, 51 F.3d 663, 668 (7th Cir.1995) (same); United States v. Greenfield, 44 F.3d 1141, 1146 (2d Cir.1995) (same).

Perhaps recognizing the probation officer's error, the district court amended the PSR to state that it was imposing a two level adjustment under section 3B1.1(c) "because Harness was an organizer, leader, manager or supervisor of a criminal activity involving at least three participants."¹ Sentencing Tr. at 29. Even this conclusory statement does not indicate that Harness had the requisite control over another participant in the criminal activity to support an enhancement under section 3B1.1(c). Indeed, the findings of fact in the PSR and our review of the limited record before us reveal no evidence that would support a conclusion that Harness had any control over any of the other participants who engaged in the criminal activities. We conclude that the complete absence of any evidence or findings of fact that would support a conclusion that Harness was an organizer, leader, manager, or supervisor of one or more participants renders the district court's enhancement under section 3B1.1(c) erroneous. Furthermore, we conclude that this error was plain and that it affected Harness's substantial rights because he was sentenced at the maximum of the applicable sentencing range. See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (error is plain when it is clear or obvious; error affects substantial rights when it affects the outcome of the proceeding). We, therefore, vacate the sentence and remand for resentencing.²

B. Position of Trust

Harness next contends that the district court erred in enhancing his offense level two levels pursuant to U.S.S.G. § 3B1.3 for abusing a position of trust. We disagree.

Section 3B1.3 requires a sentencing court to increase a defendant's offense level two levels if he "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. "For the enhancement to apply, the defendant must have been in a position of trust with respect to the victim of the crime,...