USA. v. Sierra

• Decision Date: 13 August 1999
• Docket Number: No. 98-2733,98-2733
• Citation: 188 F.3d 798
• Parties: (7th Cir. 1999) United States of America, Plaintiff-Appellee, v. Alex Sierra, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 798

188 F.3d 798 (7th Cir. 1999)

United States of America, Plaintiff-Appellee, v. Alex Sierra, Defendant-Appellant.

No. 98-2733

United States Court of Appeals, Seventh Circuit

Argued April 21, 1999

Decided August 13, 1999

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 CR 531--James F. Holderman, Judge. [Copyrighted Material Omitted]

Before Bauer, Flaum, and Manion, Circuit Judges.

Manion, Circuit Judge.

At age 29, Alex Sierra had some significant achievements. For the last five years he had been a Chicago police officer. After graduating from high school he completed 125 hours of college credit. He then received police academy training. He was always gainfully employed as an adult including two years as a hospital security officer before joining the police force. During that time he was a citizenship instructor at the Chicago Boys and Girls Club. He worked as a family educator, was a volunteer at Inner City Impact, and was a football and baseball coach. Then he threw it all away. One night Sierra used his police badge to enable him and two teenage friends to enter a retail store (after closing) and steal money and fireworks while pretending to make an official seizure of the illegal merchandise. On the eve of trial, after his two young friends pleaded guilty and agreed to testify, Sierra also pleaded guilty to conspiracy to commit robbery. The district court sentenced him to 120 months in prison. He appeals his sentence, arguing that he was not an organizer or leader of the conspiracy, that he did not abuse a position of trust, and that he accepted full responsibility for his allegedly minor role in the theft. We affirm the district court.

I.

On June 30, 1994, Officer Sierra--a five-year veteran of the Chicago police force--and two teenage friends decided to steal some fireworks which were being sold illegally from a Tiger Super Food store in Chicago, Illinois. Around 9:30 p.m., Sierra drove Giovanni Lozada and Gilberto Quinones to the store just as it was closing. Sierra sent Lozada into the store to ask the owner, Iyad Daoud, whether he had any fireworks for sale. After Lozada saw the fireworks, he went outside where Sierra and Quinones were waiting and confirmed that the store had the goods. The three then went to the now-locked entrance of the store where Sierra flashed his badge through the glass door and shouted "police." Assuming that the three were policemen, Daoud admitted them into the store. Sierra told Daoud that he was under arrest for selling fireworks, advised him of his Miranda rights, and ordered his friends to handcuff him. Along with $800 worth of fireworks, someone took about $700 from the cash box. After transferring the goods to Sierra's truck, Sierra removed the handcuffs from Daoud, gave him an official "victim information notice" (normally given to a crime victim, not the person arrested), and told him that he would be notified by mail about his court date. Needless to say, Sierra and his accomplices were not on official police business, nor did they turn over the money or fireworks to Sierra's superiors or report the incident to the police.

When a neighbor later told Daoud that he saw three men loading the fireworks into a civilian Blazer, he realized that the confiscation was not a legitimate police seizure. Daoud then reported the incident to the authorities. While viewing a police line-up, Daoud mistakenly identified Officer Arcenio Cruz (Sierra's partner) as one of the perpetrators, but did not identify Sierra, who was also in the line-up. Shortly thereafter Sierra told Quinones to say he knew nothing if asked about the robbery. Eventually the charges against Cruz were dismissed. Sierra was charged in a four-count superseding indictment with robbery, conspiring to commit robbery, conspiring to violate Daoud's constitutional rights, and violating those rights, in violation of 18 U.S.C. sec.sec. 1951, 2, 241, and 242. On February 13, 1998, Sierra pleaded guilty to count I of the indictment: conspiring to commit robbery in violation of 18 U.S.C. sec.sec. 1951 & 2. For purposes of sentencing, Sierra had a criminal history category of I and, after enhancements for using a firearm, abusing a position of trust, acting as an organizer or leader, and physically restraining the victim, his offense level was 31. This gave Sierra a range of 108-135 months of imprisonment. The district court sentenced him to 120 months' imprisonment and a $5,000 fine. Sierra argues on appeal that his offense level was improperly increased because he did not occupy a position of trust and was not an organizer or leader, and that the district court should have departed downward because he accepted responsibility for his crime.

II.

A. Abuse of a Position of Trust

The Sentencing Guidelines call for a two-level enhancement if the defendant abused a position of public or private trust or used a special skill in a way that significantly facilitated the commission or concealment of the offense. U.S.S.G. sec. 3B1.3. We review the district court's interpretation of "public trust" de novo, and its determination that the defendant abused his position for clear error. United States v. Emerson, 128 F.3d 557, 562 (7th Cir. 1997); United States v. Bhagavan, 116 F.3d 189, 192 (7th Cir. 1997). To determine whether this enhancement applies we apply a two-part test that tracks the Guideline. We review the district court's determination (1) whether the defendant occupied a position of trust; and (2) whether his abuse of the position of trust significantly facilitated the crime. Emerson, 128 F.3d at 562. In determining whether the defendant occupied a position of trust his diminutive title or lack of sweeping power is unimportant. United States v. Strang, 80 F.3d 1214, 1219-20 (7th Cir. 1996). Rather, a person is considered to have occupied a position of trust if he had access to or authority over valuable things, including governmental power. See United States v. Stewart, 33 F.3d 764, 768 (7th Cir. 1994). A crime is significantly facilitated by a position of trust if the position makes it more difficult to detect the offense or the defendant's responsibility for the crime. U.S.S.G. sec. 3B1.3 App. n.1. Put another way, if the defendant's position made it substantially easier to commit or conceal the crime, significant facilitation occurred. Stewart, 33 F.3d at 768. Importantly, the position of trust may have facilitated a crime without the victim actually placing any trust in the criminal. United States v. Zaragoza, 123 F.3d 472, 482 (7th Cir. 1997). The extent of the facilitation is not judged by the ultimate success of the enterprise or its concealment, as this guideline could never be applied unless the concealment failed in some way. United States v. Gould, 983 F.2d 92, 94 (7th Cir. 1993).

Sierra concedes that as a police officer, he occupied a position of public trust, thus leaving only the question of whether this position facilitated his crime. See United States v. Parker, 25 F.3d 442, 450 (7th Cir. 1994) (police officer occupies a position of trust); United States v. Lamb, 6 F.3d 415, 419 (7th Cir. 1993) (same). We note that Sierra used his police badge to gain admission to the store that had just closed, an advantage that criminals of the non- police variety do not enjoy. "A police officer knows the power of [his] badge. Symbolizing the power of the state, a badge invests its possessor with control over people and access to places." United States v. Foreman, 926 F.2d 792, 795 (9th Cir. 1990). Without seeing the badge, it is unlikely that Daoud would have unlocked his store and allowed the trio to enter. Thus, Sierra's use of his badge to gain admittance to the store he intended to rob, in itself, substantially facilitated his crime. Sierra also used a police victim information notice (which is not generally available to the public) in an effort to trick the victim into thinking that the seizure of the fireworks and money was legitimate. Thus, his access to these notice forms greatly assisted his attempt to conceal the crime, for if Daoud believed that the seizure was an official police action, he was unlikely to have called the police to complain. In fact he did delay reporting the theft because he thought the seizure was official. It is, therefore, readily apparent that Sierra's status as a police officer greatly facilitated his offense and the concealment of his criminal deeds.

Sierra takes exception to this enhancement, arguing that an imposter could have used a fake badge to facilitate the crime, and thus Sierra's position of trust was not essential to the crime. This detour gets him nowhere. Initially we note that sec. 3B1.3 is used to punish imposters just as severely as those who actually violated their positions of trust in most of the circuits which have addressed the issue. United States v. Barnes, 125 F.3d 1287, 1292 (9th Cir. 1997) (physician-impersonator is considered to have occupied a position of trust for purposes of sec. 3B1.3 because the victims perceived him as a doctor); United States v. Gill, 99 F.3d 484, 489 (1st Cir. 1996); United States v. Queen, 4 F.3d 925, 930 (10th Cir. 1993); but see United States v. Echevarria, 33 F.3d 175, 181 (2d Cir. 1994) (enhancement is limited to those who legitimately occupy a position of trust).¹ So Sierra's argument that an imposter could have pulled off the same crime (and thus sec. 3B1.3 is not applicable because his position provided him no greater ability to commit the offense) lacks a surface plausibility in light of the fact that in at least three circuits, even the imposter would have his sentence enhanced under sec. 3B1.3.

Moreover, it does not follow that a police officer's position did not facilitate his crime just because an imposter could use a fake badge to commit the same crime. Regardless of whether an imposter could have committed the same crime, Sierra was in a...