UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4346
LAURIE LEIGH SMITH,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CR-02-318)
Submitted: October 31, 2003
Decided: November 14, 2003
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Louis C. Allen, III, Federal Public Defender, William C. Ingram,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, L. Patrick
Auld, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
2 UNITED STATES v. SMITH
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Laurie Leigh Smith was convicted by a jury of using false Social
Security numbers, 42 U.S.C. § 408(a)(7)(B) (2000) (Counts 1-4); mail
fraud, 18 U.S.C.A. § 1341 (West Supp. 2003) (Counts 5-8); using fic-
titious names and addresses, 18 U.S.C. § 1342 (2000) (Counts 9-12);
and engaging in monetary transactions with property derived from
mail fraud, 18 U.S.C. § 1957 (2000) (Counts 13-15). She was sen-
tenced to five years imprisonment and appeals her sentence, arguing
that the district court clearly erred in finding that she abused a posi-
tion of trust. U.S. Sentencing Guidelines Manual § 3B1.3 (2002). We
affirm.
Smith’s offenses occurred while she was promotions manager at
Food Lion, Incorporated. While she held that position, Food Lion car-
ried on a number of promotions involving cash prizes. The winners
were determined by an outside fulfillment agency. Smith’s position
required her to receive the list of winners, determine whether they
were eligible, and direct that checks be prepared for her to disburse
to the winners. Between July 1998 and June 2000, in five different
Food Lion promotions, Smith deleted winners selected by the outside
fulfillment agencies and substituted variations of her own name or
family members’ names on Food Lion memoranda and records. In
this manner, Smith collected checks for $34,300 and caused Food
Lion to issue two checks totaling $384,600 to her grandmother.
The district court’s factual determination that a defendant abused
a position of public or private trust is reviewed for clear error. United
States v. Caplinger, 339 F.3d 226, 235 (4th Cir. 2003). A position of
trust is "characterized by professional or managerial discretion (i.e.,
substantial discretionary judgment that is ordinarily given consider-
able deference)," and employees in such positions are subject to less
supervision than employees with non-discretionary duties. USSG
UNITED STATES v. SMITH 3
§ 3B1.3, comment. (n.1). Thus, it does not apply to a bank teller or
hotel clerk who embezzles or steals from his employer because these
and similar positions involve little discretion and close supervision.
Id. Whether the adjustment applies is determined from the perspective
of the victim. Caplinger, 339 F.3d at 236.
This court has previously set out specific factors to be considered
in determining whether the adjustment applies:
(1) whether the defendant had either special duties or special
access to information not available to other employees; (2)
the extent of the discretion the defendant possesses; (3)
whether the defendant’s acts indicate that he is more culpa-
ble than others who are in positions similar to his and who
engage in criminal acts; and (4) viewing the question of
abuse of trust from the victim’s perspective.
United States v. Akinkoye, 185 F.3d 192, 203 (4th Cir. 1999).
Caplinger describes the distinction between ordinary fraud and
abuse of a position of trust as follows:
A sentencing court must "carefully distinguish between
those arms-length commercial relationships where trust is
created by the defendant’s personality or the victim’s credu-
lity" and those "where a ‘fiduciary or personal trust relation-
ship exists’ with [the victim], and the defendant takes
advantage of the relationship to perpetrate or conceal the
offense." Only the latter circumstances justify the enhance-
ment. At bottom, § 3B1.3’s critical term — "position of
public or private trust" — is a "term of art, appropriating
some of the aspects of the legal concept of a trustee or fidu-
ciary." In other words, application of the enhancement "re-
quires more than a mere showing that the victim had
confidence in the defendant. Something more akin to a fidu-
ciary function is required.
Id. at 237 (internal citations omitted).
4 UNITED STATES v. SMITH
Smith contends, as she did in the district court, that her position as
promotions manager with Food Lion did not give her special access
to information not available to other employees because her supervi-
sor, Dave Godfredson, also received copies of the winners’ list. How-
ever, no witness with actual knowledge testified that Godfredson
received winners’ lists. Godfredson testified that the standard proce-
dure was for lists of winners to be sent to the promotions manager,
i.e., to Smith. Smith further argues that she had little discretion in her
work and that Godfredson kept closely informed about her work. But
Godfredson testified that he was concerned only with the concepts of
Food Lion’s promotions and always delegated the details to Smith.
Thus, Smith had access to special information (the winners’ lists)
and was entrusted by her supervisors with verifying the winners,
excluding any who were disqualified, and instructing employees in
the Expense Payables Department to disburse considerable sums of
the company’s money to whomever she identified as winners. In prac-
tice, Smith operated without supervision from within the company,
and was caught only after the IRS notified Food Lion of a discrepancy
between a winner’s name and Social Security number. Smith’s posi-
tion placed her in a type of fiduciary relationship with her employer,
which she abused. Therefore, we conclude that the district court’s
determination that Smith abused a position of trust was not clearly
erroneous.
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED