United States Court of Appeals
For the First Circuit
No. 99-1904
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL M. O’CONNELL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Lynch, Circuit Judges.
Lois M. Farmer, with whom Garnick & Scudder, P.C., was on brief,
for appellant.
Joshua S. Levy, Assistant U.S. Attorney, with whom Donald K.
Stern, United States Attorney, was on brief, for appellee.
June 12, 2001
TORRUELLA, Chief Judge. Appellant Michael M. O'Connell
appeals the sentence imposed pursuant to his plea of guilty for five
counts of making, possessing, and uttering counterfeit and forged
securities in violation of 18 U.S.C. § 513(a). Specifically, he
alleges that he was denied his right to allocution during the
sentencing hearing, that the district court erred in applying a two-
point enhancement for abuse of trust, and that the district court
abused its discretion in sentencing him at the high end of the
Guideline range. We reject each of these claims and affirm the
sentence imposed by the district court.
BACKGROUND
Michael M. O'Connell worked as an office manager and
bookkeeper for Pyramid Textiles (Pyramid), an international fabric
wholesale company located in Billerica, Massachusetts. O'Connell was
hired by Pyramid in 1993, because the owners, John and Deborah Leavitt,
were close family friends. John Leavitt, also the president of
Pyramid, traveled extensively on business, and delegated much of the
responsibility for the financial operations to O'Connell. While
O'Connell did not have the authority to sign Pyramid checks, he would
prepare them for Leavitt's signature. In addition, O'Connell was
authorized to transfer funds from an $850,000 line of credit to
Pyramid's checking account.
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On January 21, 1998, Leavitt held a meeting with a Fleet Bank
representative about increasing Pyramid's line of credit to $2 million.
The Fleet representative informed Leavitt that the checking account was
overdrawn by $140,000 and the entire $850,000 line of credit was
exhausted. Shocked, Leavitt confronted O'Connell, who ultimately
admitted that he had been stealing from Pyramid since 1995 in order to
finance his gambling addiction. Through a scheme of making out Pyramid
checks to himself, and forging Leavitt's signature, O'Connell had
stolen $723,107.97 from Pyramid in the three-year period.
After an information was filed against O'Connell charging him
with five counts of making, possessing, and uttering forged and
counterfeit securities in violation of 18 U.S.C. § 513(a), he
negotiated a plea agreement with the government. Pursuant to that
agreement, O'Connell elected to waive indictment and to plead guilty to
the five counts. The government recommended a sentence of twenty-one
months, which fell in the middle of the Guideline range of eighteen to
twenty-four months of the agreed-upon offense level of 15. At a
hearing on March 25, 1999, the district court accepted O'Connell's
guilty plea, ordered a presentence report to be prepared, and set
sentencing for June 22, 1999.
At the disposition hearing on June 22, the district court
informed O'Connell and the government that he had read the presentence
report and concluded that an additional two levels should be added to
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the offense level calculation for abuse of a position of trust.
U.S.S.G. Manual § 3B1.3 (2000). The district court also noted that he
was considering an upward departure based on a letter from Deborah
Leavitt detailing the additional harm that O'Connell's actions had
caused. For one, the Leavitts had to pay interest and penalties for
late payment of real estate taxes -- as O'Connell had delayed the
forwarding of these tax payments at various times. The Leavitts were
also in the process of trying to restore their line of credit and had
undergone several audits of their finances. Finally, the Leavitts were
at a risk of losing the business, which would result in fourteen
employees losing their jobs. From this, the district court suspected
that the actual monetary loss was much greater than the $723,000-plus
that had been counted for purposes of sentencing. The district court
rescheduled sentencing and offered both sides the opportunity to
respond to both the abuse-of-trust increase and the upward departure.
The rescheduled sentencing hearing was held on July 28, 1999.
The government, pursuant to the plea agreement, declined to take a
position on the abuse-of-trust increase or the upward departure.
O'Connell's counsel argued against the abuse-of-trust enhancement,
stating that O'Connell did not fall within the Guideline definition of
position of trust, because (1) he was not authorized to sign Pyramid
checks in either his or John Leavitt's name; and (2) his actions were
overseen by an accountant. As such, O'Connell's counsel characterized
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his status as comparable to that of a bank teller, in having access to
sensitive documents but not the authority to take the actions (forging
Leavitt's signature) that O'Connell did. The district court rejected
this argument and applied the two-point adjustment. This put O'Connell
at an offense level of 17, which provides for a range of twenty-four to
thirty months imprisonment.
Turning to the upward departure, the district court informed
the parties that further communication with the Leavitts had revealed
that they were not interested in pursuing additional punishment of
O'Connell. Based on that, on the possibility that other factors may
have contributed to Pyramid's demise, and on the fact that O'Connell's
actions were precipitated by his gambling addiction, the district court
decided not to make an upward departure from the Guidelines.
Then the government and counsel for O'Connell offered their
views on an appropriate sentence, both advocating a sentence at the
bottom of the range. In conclusion, O'Connell's stated: "Mr. O'Connell
would like to address the Court." The district court replied: "Mr.
O'Connell, I will hear from you, please." O'Connell accepted
responsibility for his actions, apologized to his family and to Mr.
Leavitt, pledged to repay the money that he took, and thanked his
attorneys. He also thanked the court for giving them (he and his
attorneys) the opportunity "to address the issues that we felt that we
wanted to address." The court thanked O'Connell and sentenced him to
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thirty months imprisonment, the highest sentence under the Guidelines.
The district court commented that the sentence reflected an "intuitive
feeling" that more than $723,000 had been lost as a result of
O'Connell's actions.
DISCUSSION
O'Connell appeals his sentence on three bases: (1) the
district court denied him his right of allocution prior to sentencing;
(2) the district court committed legal error in applying the two-point
abuse-of-trust enhancement; and (3) the district court considered
improper factors in sentencing at the high end of the Guideline range.
A. Right of Allocution
The right of allocution, while "ancient in law," United
States v. De Alba Pagán, 33 F.3d 125, 129 (1st Cir. 1994), is currently
articulated in Federal Rule of Criminal Procedure 32(c)(3)(C), which
states that before imposing sentence, the court must "address the
defendant personally and determine whether the defendant wishes to make
a statement and to present any information in mitigation of the
sentence." Rule 32(c)(3)(C) has not been found to require that any
specific language be used by the district court, Green v. United
States, 365 U.S. 301, 303-04 (1961), provided that "the court, the
prosecutor, and the defendant must at the very least interact in a
manner that shows clearly and convincingly that the defendant knew he
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had a right to speak on any subject of his choosing prior to the
imposition of sentence." De Alba Pagán, 33 F.3d at 129.
Although we have cautioned that "functional equivalency
should not lightly be assumed," id., we hold that O'Connell did
exercise his right of allocution at the time of his sentencing. After
O'Connell's counsel expressed his views on an appropriate sentence, he
announced that: "Mr. O'Connell would like to address the Court." The
court replied, "Mr. O'Connell, I will hear from you, please."
O'Connell made his apologies, pledged to reform himself and repay the
Leavitts, and thanked his attorneys and the district court for
assisting him and giving him the opportunity to "address the issues
that we felt that we wanted to address."
This sequence of events, as we read it in the transcript,
implies a full awareness on the part of O'Connell of his right to
allocution. The fact that the district court did not specifically
invite O'Connell to speak on any subject of his choice is irrelevant in
this instance, particularly since it appears that O'Connell's counsel
seized the opportunity before the district court had the chance to
address O'Connell unprompted. We hold that the record demonstrates
"clearly and convincingly," id., that O'Connell knew of his right to
speak prior to the imposition of his sentence and that he took
advantage of that opportunity by communicating those things that he
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found important to say. Accordingly, the district court committed no
error in this regard.
B. Abuse-of-Trust Adjustment
The district court increased O'Connell's offense level by two
levels pursuant to § 3B1.3 of the Sentencing Guidelines: "If the
defendant abused a position of public or private trust . . . in a
manner that significantly facilitated the commission or concealment of
the offense, increase by 2 levels." U.S.S.G. Manual § 3B1.3.
O'Connell argues that the district court committed legal error in
concluding that he occupied a "position of trust." Our review of the
legal question, that is, what qualifies as a position of trust under
the Guidelines, is de novo. United States v. Reccko, 151 F.3d 29, 31
(1st Cir. 1998).
The Guideline Commentary defines a "position of public or
private trust" as "characterized by professional or managerial
discretion." U.S.S.G. Manual § 3B1.3, cmt. n.1. Under this
definition, a bank executive would qualify, but a bank teller would
not. Id. In light of this "special meaning," we have held that a
receptionist/switchboard operator at police headquarters, although
entrusted with sensitive information, did not hold a position of trust,
because the job afforded "no discernible discretion." Reccko, 151 F.3d
at 31-33.
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There is some support for O'Connell's argument that his
position as a bookkeeper at Pyramid did not place him within the
Guideline definition of a position of trust. He was not a legal
signatory on the Pyramid checking account, and clearly exceeded the
bounds of his authority when he forged John Leavitt's name to the
checks that he made out to himself. Further, an outside accountant was
responsible for overseeing much of O'Connell's work at Pyramid. Both
of these factors suggest that it was not professional discretion that
facilitated the commission of O'Connell's crimes, but merely his access
to the Pyramid checkbook and accounting software. The Commentary and
our caselaw emphasize that this would not qualify for a § 3B1.3
increase.
The district court, however, pointed to two other aspects of
O'Connell's employment that enabled his thefts: O'Connell's authority
to transfer funds from the line of credit to the checking account and
his close, personal relationship with the Leavitts. There is no
question that O'Connell's unfettered access to an $850,000 line of
credit facilitated his taking as much money undetected as he did. And
the authority to draw off the account suggests significant managerial
discretion.1 The district court also believed that O'Connell's personal
relationship led John Leavitt to put more trust in O'Connell than he
1 That O'Connell was afforded managerial discretion is unsurprising
given his role at Pyramid as "office manager."
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would have in a stranger, resulting in less supervision of and more
autonomy for O'Connell. This is consistent with the uncontested
finding of the presentence report that John Leavitt increasingly relied
on O'Connell to manage Pyramid's financial affairs. The district court
surmised that O'Connell's treatment by the Leavitts as "basically" that
of a son enabled his criminal efforts. We review the district court's
factual determinations for clear error, United States v. Tardiff, 969
F.2d 1283, 1289 (1st Cir. 1992), and discern none with reference to
these findings.
Because O'Connell had the authority to access the line-of-
credit account and because we uphold the district court's conclusion
that O'Connell's relationship with the Leavitts rendered him uniquely
trusted as an employee, we hold O'Connell did occupy a position of
trust for purposes of the Sentencing Guidelines. As to the second step
of the inquiry, whether O'Connell used his position of trust to
facilitate commission of the criminal acts, see United States v. Gill,
99 F.3d 484, 489 (1st Cir. 1996), we agree with the district court that
O'Connell's access to the line of credit and professional/personal
relationship with the Leavitts did in fact improve his chance of
success and contributed to the long period of time during which he was
able to conceal the thefts. The two-level increase under § 3B1.3 to
O'Connell's offense level is affirmed.
C. O'Connell's Thirty-Month Sentence
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O'Connell appeals the district court's decision to sentence
him at the high end of the twenty-four to thirty-month Guideline range,
alleging that the district court's sentencing decision was imposed in
violation of the law. The district court commented that one of the
reasons for the high sentence was a continued belief that more than
$723,000 was lost as a result of O'Connell's actions. O'Connell
accuses the district court of "offend[ing] fundamental fairness" in
violation of due process in relying on "intuition" that much more
monetary damage had occurred than was reflected in the sentencing
figure.
According to 18 U.S.C. § 3553(c), a district court does not
have to provide any reason for a particular sentence, provided that the
sentence falls within the Guidelines range and the range does not span
more than twenty-four months. This is the case here, as the district
court did not depart from the Guidelines and the sentencing range was
only six months. Even more importantly, we have repeatedly held that
when a district court sentences within the appropriate Guideline range,
we have no authority to review that sentence. United States v.
Rosario-Peralta, 199 F.3d 552, 569 (1st Cir. 1999); United States v.
Rodríguez, 162 F.3d 135, 151 (1st Cir. 1998); United States v. Panet-
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Collazo, 960 F.2d 256, 261 (1st Cir. 1992). We conclude, then, that
there is no appellate jurisdiction as to this issue.2
CONCLUSION
O'Connell was not denied his right of allocution. The
district court properly determined O'Connell's Guideline offense level
and sentenced him within that sentencing range. The sentencing
decision of the district court is affirmed.
2 We have not addressed the question, presented in United States v.
McDavid, 41 F.3d 841 (2d Cir. 1994), of whether we have jurisdiction to
review a sentence that is within the applicable Guidelines range but
that is based on a material misstatement of fact. We do not think this
case fairly presents that situation, making consideration of the issue
inappropriate and unnecessary.
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