United States v. Spear

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
June 26, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,
v. No. 06-1296
CATHERINE ILEEN SPEAR,

Defendant-Appellant.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF COLORADO
(D.C. NO . 06-CR-77-LTB)

Lynn C. Hartfield, Assistant Federal Public Defender (Raymond P. M oore,
Federal Public D efender, with her on the briefs), O ffice of the Federal Public
Defender, Denver, Colorado, for A ppellant.

James C. M urphy, Assistant United States Attorney (Troy A. Eid, United States
Attorney, and Kathleen L. Torres, Assistant United States Attorney, with him on
the brief) Office of the United States Attorney, Denver, Colorado, for Appellee.

Before T YM KOV IC H, EBEL, and HO LM ES, Circuit Judges.

T YM K O VIC H, Circuit Judge.

Catherine Spear worked as a federal immigration employee responsible for

the intake of applications submitted by persons applying for changes in their
immigration status. Instead of processing the applications, she kept the fees

accompanying the applications and then threw the applications in the trash.

After her scheme was uncovered, she pleaded guilty to two counts of

embezzlement of government funds in excess of $1,000, in violation of 18 U.S.C.

§ 641. Applying the two-level enhancement for abusing a position of public trust

pursuant to § 3B1.3 of the U .S. Sentencing Guidelines (USSG), the court

sentenced her to 14 months in prison. She now appeals that sentence.

W e have jurisdiction under 28 U.S.C. § 1291. Concluding that Spear’s

position lacked the authority and discretion required for the abuse of public trust

enhancement, we REVERSE the district court and REM AND for resentencing.

I. Background

Catherine Ileen Spear worked as an Examinations Assistant in the United States

Citizenship and Immigration Services Bureau (USCIS) in Denver, Colorado. The USCIS

handles applications and petitions regarding various citizenship and immigration matters.

Many submissions require payment of a fee, which the USCIS collects and processes.

Spear’s position included processing the numerous submissions mailed into the USCIS as

well as collecting, recording, and depositing any accompanying fees. She also was

responsible for preparing program reports, managing travel for the Denver office,

and addressing building maintenance issues. She did not have the authority to

approve immigration applications.

-2-
 In early 2005, several applicants notified USCIS that their applications had

not been processed even though their money orders had been cashed. After an

investigation, the government determined Spear had stolen the funds. She

accomplished this by covering the first two letters from the payee line on money

orders submitted payable to “USCIS,” relying upon the remaining “CIS” notation

to deposit the funds into her own accounts (based on her matching initials—

Catherine Ileen Spear). Forty-six money orders from immigration applications

totaling $11,210 were deposited into Spear’s personal bank account. Spear

admitted, after depositing the funds into her personal bank account, she discarded

the accompanying applications.

Spear was charged with sixteen counts of embezzlement of government

property as well as an enhancement provision that applies when the value of the

embezzled property exceeds $1,000. She pleaded guilty to two counts of

embezzlement and the enhancement provision.

Prior to sentencing, the presentence investigation report evaluated two

possible sentence enhancements: (1) targeting vulnerable victims pursuant to

USSG § 3A1.1, and (2) abusing a position of trust pursuant to USSG § 3B1.3. The

report concluded that neither enhancement was merited. Nonetheless, the

government argued for both enhancements at sentencing. The district court denied

the government’s request for the § 3A1.1 vulnerable victim enhancement, but

agreed to apply the § 3B1.3 abuse of trust enhancement. Based on this

-3-
determination, two sentencing levels were added, doubling her maximum sentence

from 6 months to 12 months.

The district court relied on three grounds for the enhancement: (1) a letter

submitted from a supervisor claiming Spear was in a position of trust, (2) Spear’s

job responsibilities as identified in a prior performance evaluation, and (3)

concerns that Spear’s misconduct further complicated an already complicated

immigration process, especially for those unfortunate families seeking citizenship

for foreign-born, adoptive children. M oreover, even after applying the abuse of

trust enhancement, the district court sua sponte varied upwards from the

guidelines range of 6-12 months and sentenced Spear to 14 months because of the

consequences her crime imposed on innocent victims enmeshed in the immigration

system.

On appeal, Spear challenges the enhancement, the reasonableness of her

sentence, and a lack of pre-sentence notice regarding the sua sponte upward

variance.

II. Discussion

“W hether a defendant occupied a position of trust under USSG § 3B1.3 is

generally a factual matter” that we review for clear error. United States v. Haber,

251 F.3d 881, 890–91 (10th Cir. 2001). W e review a district court’s interpretation

of the Guidelines de novo to see if the correct standard was applied to the factual

findings, id. at 890, and whether the court’s “determination that the facts justify an

-4-
abuse-of-trust enhancement” was correct. United States v. Britt, 388 F.3d 1369,

1371 (11 th Cir. 2004). In this case, no real dispute exists as to the district court’s

factual findings. The question is whether the district court applied the proper

legal standard in determining whether Spear occupied a position of trust. W e

conclude it did not.

A. Legal Framew ork

The Guidelines contain a special provision allowing courts to enhance

sentences for abuse of a position of trust. “If 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, increase by 2 levels.”

USSG § 3B1.3.

The government must satisfy two elements to meet § 3B1.3, establishing:

(1) whether the person occupies a position of trust, and (2) whether the position of

trust was used to facilitate significantly the commission or concealment of the

crime. USSG § 3B1.3, see United States v. Parrilla Roman, 485 F.3d 185, 190–91

(1st Cir. 2007) (discussing two-step process); United States v. Andrews, 484 F.3d

476 (7th Cir. 2007); United States v. M orris, 286 F.3d 1291, 1295 (11th Cir.

2002). In this case, the analysis falters primarily at the first step.

In defining a position of public or private trust, the Guidelines’ Application

Note 1 to § 3B1.3 provides that:

-5-
 “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 w hose responsibilities are prim arily
non-discretionary in nature.

USSG § 3B1.3, cmt. n.1 (emphasis added).
.
The commentary goes on to illustrate the scope of the enhancement— it applies,

for example, to professionals like lawyers or doctors, but not to bank tellers or

hotel clerks. 1

Our cases interpreting the guideline make clear that the term “position of

trust” is a bit of a misnomer. It actually has little to do with trustworthiness and

everything to do with authority and discretion.

Our recent decision in United States v. Edwards, 325 F.3d 1184 (10th Cir.

2003), a case involving a clerk in an insurance company, is our most thorough

analysis of the enhancement to date. In Edwards, we started with the simple

observation that the establishment of trust and confidence inheres in most fraud

cases, but that the “enhancement is not meant to apply in every case of fraud.” Id.

1
“This adjustment, for example, applies in the case of an embezzlement of
a client’s funds by an attorney serving as a guardian, a bank executive’s
fraudulent loan scheme, or the criminal sexual abuse of a patient by a physician
under the guise of an examination. This adjustment does not apply in the case of
an embezzlement or theft by an ordinary bank teller or hotel clerk because such
positions are not characterized by the above-described factors.” USSG § 3B1.3,
cmt. n.1.

-6-
at 1187 (quoting United States v. Koehn, 74 F.3d 199, 201 (10th Cir. 1996)). W e

emphasized, moreover, that the lack of “any [] authority to make substantial

discretionary judgments” is key in determining whether the enhancement applies.

Id. (emphasis added); see also United States v. Reccko, 151 F.3d 29, 31 (1st Cir.

1998) (recognizing “trust” in § 3B1.3 is a function of the Sentencing Guidelines

“creat[ing] their own vocabulary” and “defin[ing] terms in ways that might strike

lay persons as peculiar.”); United States v. Ragland, 72 F.3d 500, 503 (6th Cir.

1996) (characterizing position of trust as a “term of art”). “The fact that [the

defendant] was trusted by her employer with significant responsibility . . . is not

determinative.” Edwards, 325 F.3d at 1187. 2

By defining a “position of public or private trust” as a position of authority

characterized by the exercise of professional or managerial discretion, we more

accurately identify those defendants eligible for the enhancement. The

enhancement is concerned with persons in positions of authority abusing their lack

2
The government relies in part on our 1992 decision in United States v.
W illiam s, 966 F.2d 555 (10th Cir. 1992), which identifies several factors to
consider in applying the abuse of trust enhancement. That decision, however,
predated the significant modifications in the explanatory Application Note that
the United States Sentencing Commission adopted in 1993. See Edwards, 325
F.3d at 1188 (recognizing that the new language in Application Note 1
“deliberately set the bar at a higher level”); Reccko, 151 F.3d at 34 (finding the
amendments emphasized the existence of managerial discretion, thereby limiting
the import of prior decisions defining position of trust); United States v. Smaw, 22
F.3d 330 (D.C. Cir. 1994) (explaining how 1993 amendments affected the
definition and determination of a position of trust). In light of the 1993
amendments, William s is of limited significance when evaluating § 3B1.3.

-7-
of supervision to commit or conceal wrongdoing; therefore, it is reserved for those

with professional or managerial discretion. Such authority is characterized by

“substantial discretionary judgment . . . given considerable deference” and is

contrasted against “employees whose responsibilities are primarily non-

discretionary in nature.” USSG § 3B1.3, cmt. n.1 (emphasis added). The

discretion necessary to qualify for the enhancement exists where the person

charged had the authority to make broad case-by-case decisions for the

organization. Edwards, 325 F.3d at 1188 (citing United States v. Tiojanco, 286

F.3d 1019, 1021 (7th Cir. 2002)). This discretion requires more than engaging in

mere ministerial tasks directed by standardized office protocols.

Accordingly, to determine whether a defendant occupies a position of trust,

we must undertake a functional analysis of job responsibilities and examine

whether those duties were merely ministerial or w ere, in fact, managerial.

Indications of substantial discretionary judgment under the § 3B1.3 enhancement

include the authority to engage in case-by-case decision-making, to set policies,

and to grant exceptions to governing policies or protocols. These factors are a

non-exhaustive, and no one factor is dispositive of the analysis.

Edwards illustrates the application of these considerations. Employing a

functional analysis, we analyzed whether the managerial discretion was present in

the duties of an hourly wage employee in the accounting division of an advertising

company. Edwards embezzled over $30,000 by failing to post certain customer

-8-
payments and then re-routing those payments to her boyfriend’s bank account.

She covered her tracks by posting false credits on the accounts of the customers

whose checks she diverted to her boyfriend’s account. A bank teller noticed the

discrepancy between the advertising company as payee and the account number on

the back of the checks, leading to her arrest.

Edw ards’s duties included, “receiving checks mailed in by [] customers,

preparing them for deposit, posting the payments to customer accounts and the

cash receipts journal, sending out bills, calculating customer account balances, and

compiling and forwarding to sales personnel and her supervisors reports reflecting

this data.” Edwards, 325 F.3d at 1185–86. In addition, Edwards w as responsible

for posting credits to customer accounts, but she had no authority to grant credits.

Applying § 3B1.3, we determined her “tasks were solely ministerial.” Id. at 1186.

The government in that case, like here, alleged that Edwards’s specialized

accounting skills, minimal oversight, virtually exclusive control over accounts

receivable as well as customer billing records, and use of her position to conceal

her defalcation all warranted the § 3B1.3 enhancement. Disagreeing, we w ere

persuaded that Edwards did not have discretion to grant credits herself in finding

she was not in a position of trust. She was not free to make decisions regarding

particular expenditures or other business choices in case-by-case circumstances or

to make exceptions to company policy. W hile only nominal review by a

supervisor made her job responsible, it remained ultimately ministerial. See

-9-
United States v. Humphrey, 279 F.3d 372, 379–80 (6th Cir. 2002) (“W e have

previously established that the level of discretion rather than the amount of

supervision is the definitive factor in determining whether a defendant held and

abused a position of trust.”). “Opportunity and access do not equate to authority,

or to the kind of ‘substantial discretionary judgment’” required for the § 3B1.3

enhancement. Edwards, 325 F.3d at 1187. In short, emphasizing an inquiry into

the level of discretion, Edwards tells us to look to the employee’s job as it is

performed and not how it looks on paper.

Finally, if the defendant occupies a position of trust, we turn to step two of

the § 3B1.3 enhancement to determine if the position was used in a “manner that

significantly facilitated the commission or concealment of the offense.” USSG §

3B1.3. That step is satisfied where the person’s duties allow the more effective

comm ission of the crime by “making the detection of the offense or the

defendant’s responsibility for the offense more difficult.” USSG § 3B1.3, cmt.

n.1.

B. Applying the Functional Analysis

Given this legal framew ork, we conclude Spear lacked the substantial

discretionary authority required for the Guidelines’ enhancement.

1. Spear’s Duties Lack Substantial Discretionary Authority

-10-
 W e start with Spear’s job as an Examinations Assistant. Although the

record does not contain great detail, the district court relied primarily on written

performance evaluations Spear’s managers used to assess her job responsibilities.

The relevant performance evaluation included seven categories of duties for

which Spear was responsible. For purposes of the enhancement, the district court

focused on four categories: (1) “Assists in developing practices, procedures, and

work patterns for the work of the clerical unit and proposes appropriate changes;”

(2) “Conducts on-going analysis of w ork load data, productions, and other reports;

determines whether procedures are being followed and makes suggestions for

improvements;” (3) “Performs liaison [sic] and answers inquiries from

individuals, attorneys, or groups from the general public and from other service

and non-service organizations and professional conduct;” and (4) “Collects,

records, verifies, safeguards and deposit [sic] fees for applications.” Sent. Tr. at

26–28.

In evaluating these four categories, the district court concluded that Spear

exercised a position of trust. W hile we agree the court assessed the correct job

categories, we disagree with its conclusion. None of these particular duties

implicates substantial discretionary authority.

Several reasons support our conclusion. First, the fact that Spear

“assist[ed]” and “ma[de] suggestions for improvements,” (categories 1 and 2)

simply means that Spear assisted her superiors and made suggestions to them.

-11-
Nothing in the evaluations suggests Spear exercised individual authority over

particular applications. Neither category indicates Spear was in a position to set

protocol or to depart from protocols already set by others. An employee who

places suggestions in a box does not stand on the same sentencing ground as the

employee who empties the box and determines which suggestions will be

implemented or discarded. The former’s duties are ministerial, while the latter’s

constitute a position of trust.

Next, the tasks outlined in category 3— “[c]ollects, records, verifies,

safeguards and deposit [sic] fees for applications”— are similarly ministerial.

Finally, the duties listed in category 4— acting as a liaison and answering

questions from the public— come the closest to managerial discretion indicating a

position of trust. But there is no indication in the record that Spear’s

responsibilities in this regard left her with decision-making authority or discretion

over the immigration applications that crossed her desk in a manner that could

facilitate her crime.

In short, Spear’s embezzlements are not characterized as flowing from any

authority on Spear’s part, nor did her job as Examinations Assistant significantly

facilitate the crime or impede its detection. In fact, Spear employed a crude

method of depositing money orders that were submitted with applications to

USCIS into her own bank account and then throwing away the accompanying

applications. After complaints from applicants, the scheme was promptly

-12-
uncovered. No evidence exists that Spear used any discretionary authority to

facilitate or conceal her crime. She did not have discretion to approve or deny

applications, nor does the record show she could reject applications that were

incomplete or inaccurate. Her only authority was to process new applications and

put them in the pipeline for substantive review. Her theft was accomplished by

being in the right place at the right time, i.e., opportunity and access, not by

exercising the cloak of authority to stave off inquiry or decision-making power to

cover her tracks.

The district court arrived at a different result by applying the Guidelines

inconsistently with the ruling of Edwards. The district court made the appropriate

inquiry by reviewing Spear’s duties to determine whether she held a position of

trust. It then compared Spear’s duties to those of a bank teller and hotel clerk, tw o

positions mentioned by the Guidelines as not involving a position of trust. See

Sentencing Tr. at 26–27 (referring to Spear’s duties as “more than just simply a

bank teller;” “[s]omething more than simply being a teller or hotel clerk,

certainly;” and “[a]gain, that is something more than the typical hotel clerk or

bank clerk”). The commentary for § 3B1.3 contemplates a continuum of

discretion from bank teller to professional. Somewhere along the continuum an

employee moves from ministerial to discretionary in the performance of job

duties.

-13-
 But instead of asking whether Spear’s duties included tasks more

sophisticated than the typical bank teller or hotel clerk, the district court should

have asked whether those duties gave Spear functional managerial or professional

discretion— such as the responsibility to (1) differentiate case-by-case situations,

(2) set policies and protocols, (3) diverge from policies and protocols (thereby

indicating managerial or professional discretion)— or whether her duties w ere

primarily subject to non-discretionary rules (thereby indicating the ministerial or

clerical nature of her w ork).

In applying the enhancement, the district court also relied heavily on a letter

from a U SCIS supervisor labeling Spear’s position as one of trust. The conclusory

opinion of a supervisor does not substitute for the functional analysis required by

Edwards (“job titles themselves do not control [the position of trust inquiry];

actual duties and authorized activities do,” 325 F.3d at 1187). Even so, the court

found relevant the letter’s emphasis on Spear’s oath to perform the duties of her

office with honor. But, again, a position of trust for purposes of § 3B1.3 turns

upon discretionary authority, not on one’s veracity or a pledge to fulfill a position

honestly. 3 See United States v. Hirsch, 239 F.3d 221, 227 (2d Cir. 2001) (“An

abuse of trust enhancement may not be imposed on a defendant convicted of fraud

3
Our decision in United States v. Williamson, 53 F.3d 1500 (10th Cir.
1995), is not to the contrary. In analyzing an official oath in the § 3B1.3 context,
while acknowledging the importance of a pledge, we found the defendant
occupied a position of trust because he was a police officer, not because he took
an oath. Id. at 1525.

-14-
solely because of a violation of a legal obligation to be truthful and a victim’s

reliance on a misrepresentation.”).

Finally, the district court was influenced by the harm that Spear inflicted on

the unfortunate victims whose applications crossed her desk. Spear was throwing

“a monkey wrench of huge proportion into the gears that grind through this

Byzantine immigration process . . . .” Sent. Tr. at 29. W hile such considerations

are entirely appropriate when applying the 18 U .S.C. § 3553(a) sentencing factors,

it is inappropriate to use the results of Spear’s wrongdoing in deciding whether the

§ 3B1.3 enhancement applies. Nothing in the language of § 3B1.3 or its

application notes look to the outcome of the misconduct, rather it is the position

and its responsibilities that matter in this inquiry. Even a lower level employee

can wreak havoc.

In sum, the district court correctly identified Spear’s duties as the

appropriate object of inquiry for whether she occupied a position of trust, but the

court guided that inquiry by applying the wrong legal standard. The proper

standard asks whether Spear’s duties were bounded by predetermined rules and

protocols so as to be ministerial or whether she had the substantial freedom in her

duties that arises from discretionary authority signifying a position of trust.

Applying this standard, she did not.

2. Spear’s Duties Are Similar to Those in Edwards

-15-
 Seeking to distinguish our case law, the government urges us to recognize

three distinctions between Spear’s crime and Edwards: (1) only the employer was

hurt in Edwards, (2) Spear’s violation involved government services, and (3) the

employee in Edwards had no authority to post credits to accounts so she was a

conduit that did not perform “the [financial] verification and safeguarding

function as well.” Aple. Answer Br. at 20. W e disagree that these distinctions

make a difference here.

First, as we explained, the consequences of Spear’s actions are not relevant

in determining whether to apply the § 3B1.3 enhancement. Nowhere in its text

does the § 3B1.3 enhancement suggest differing standards w hen the crime hurts

only the employer and not its customers. W hile the relationship to the victim can

in some instances bolster the trust assessment, see, e.g., Hirsch, 239 F.3d at

227–28; United States v. Hart, 273 F.3d 363, 377–78 (3d Cir. 2001), the mere

identity of the victim is not probative. Nowhere in Edwards did we rely on such a

proposition as part of our justification for not applying the enhancement. The

emphasis instead is on whether the position was used to significantly facilitate or

conceal the crime because of the freedom enjoyed by discretionary decision

makers.

Second, the government intimates that the unique nature of U SCIS as a

government entity, in particular having a monopoly on providing immigration

services, distinguishes the situation here from Edwards. But the language of

-16-
§ 3B1.3 does not distinguish between private or public positions of trust— both are

treated equally— nor does the commentary distinguish between public and private

sector violations.

In a related comparison, the district court also analogized to postal service

employees, who qualify for positions of trust under Application Note 2 of

§ 3B1.3’s commentary. Sent. Tr. at 25. (“M s. Spear occupied a position - - if a

United States postal employee holds a position of trust, M s. Spear held a higher

position of trust.”). Postal service employees, however, are an express exception

to the managerial or professional discretion rule and should not be used to

analogize to whether the defendant occupied a position of trust. See United States

v. Smaw, 22 F.3d 330, 332–33 (D.C. Cir. 1994).

Before amended in 2005, Application Note 1 of § 3B1.3 read,

“Notwithstanding the preceding paragraph, because of the special nature of the

United States mail an adjustment for an abuse of a position of trust w ill apply to

any employee of the U.S. Postal Service who engages in the theft or destruction of

undelivered United States mail.” The 2005 amendment struck the language

describing the special nature of the postal service in response to the Identity Theft

Penalty Enhancement Act, Public Law 108-275, 118 Stat. 831 (2004), which

directed the Commission to add enhancements for identity theft to § 3B1.3. In so

doing, the C ommission partitioned out Application Note 2 for listing the two

categories of defendants that would receive the enhancement notwithstanding the

-17-
fact they would not otherwise qualify under the standards set by Application Note

1 as employees in a position of trust. This means postal employees are subject to

the enhancement for different reasons than defendants who meet the requisites of

Application Note 1. Therefore, postal employees should not be used in a

comparative analysis that attempts to determine whether a defendant wielded

sufficient professional or managerial discretion to qualify for the § 3B1.3

enhancement.

Finally, Spear was no more or less responsible for office monies than the

defendant in Edwards. She did not have authority to dispose of, accept, or reject

applications, just as Edwards had no authority to post credits. 4 She only had the

power to determine whether an applicant had checked the necessary boxes, filled

in the necessary blanks, provided the requisite information, and paid the necessary

fees.

In sum, Spear occupied a position similar to the defendant in Edwards.

W hile their conduct was certainly abusive, by virtue of their job responsibilities

neither qualifies for an enhancement for abuse of trust under § 3B1.3.

Accordingly, the district court erred in applying the enhancement in this instance.

4
Spear’s inability to approve applications is significant here. If she could
approve or deny applications, then she might exhibit the type of decision-making
authority sufficient to qualify for the enhancement. See United States v. Britt,
388 F.3d 1369, 1371 (11th Cir. 2004), judgment vacated by 126 S. Ct. 411 (2005),
and reinstated in relevant part by 437 F.3d 1103 (11th Cir. 2006) (upholding
application of § 3B1.3 where clerk for Social Security Administration had
discretion to approve applications for Social Security Account N umber cards).

-18-
 C. Reasonableness of the Sentence

Spear also challenges the reasonableness of her sentence. She claims that

the district court erred by (1) sentencing her to two months above the advisory

Guidelines range and employing improper considerations in reaching its decision,

and (2) failing to provide notice before imposing the enhancement.

Sentencing in this case occurred before our recent decision in United States

v. Atencio, 476 F.3d 1099, 1103–04 (10th Cir. 2007), which held that advance

notice is required for varying above or below the relevant sentencing range. Since

we are reversing the applicability of the abuse of trust enhancement under

§ 3B1.3, we need not review the substantive reasonableness of her sentence or the

lack of notice regarding the district court’s sua sponte variance.

On remand, the district court will apply Atencio and notify the parties if the

court plans to sentence above or below the relevant sentencing range suggested by

the Guidelines.

III. Conclusion

Accordingly, we REVERSE the district court finding that Spear occupied a

position of trust subject to the enhancement of § 3B1.3 of the U.S. Sentencing

Guidelines and REM AND to the district court for sentencing consistent with this

opinion.

-19-