United States v. Sicher

United States Court of Appeals
For the First Circuit

No. 07-2414

UNITED STATES OF AMERICA,

Appellee,

v.

KAREN L. SICHER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Morris E. Lasker, U.S. District Judge]

Before

Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.

Syrie D. Fried, Office of the Massachusetts Federal Defender,
for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, and Linda M. Ricci,
Assistant United States Attorney, were on brief, for appellee.

August 7, 2009
 LYNCH, Chief Judge. This sentencing appeal primarily

raises the question of what evidence is sufficient to establish

that the defendant held a position of trust for purposes of

U.S.S.G. § 3B1.3 to support the imposition of a sentencing

enhancement.

Defendant Karen Sicher, who was the sole employee of a

surgeon and the charitable foundation for children's medical care

he started, pled guilty to ten counts of uttering forged

securities, in violation of 18 U.S.C. § 513, ten counts of health

care program theft, in violation of 18 U.S.C. § 669, and six counts

of income tax evasion, in violation of 26 U.S.C. § 7201. The

district court imposed a sentence of 36 months' imprisonment on

each count to be served concurrently, followed by 36 months of

supervised release, and restitution in the amount of $334,639.

Sicher challenges her sentence on two grounds. First,

she contends that the district erred in imposing a two-level

sentencing enhancement for abuse of a position of trust, U.S.S.G.

§ 3B1.3. That enhancement increased her Guidelines sentencing

range from 24 to 30 months to 30 to 37 months. Second, she argues

the district court failed to consider evidence of her mental

health, which she claims merits a downward variance. Finding no

error, we affirm.

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 I.

The following evidence was part of the record before the

district court at sentencing. The district court at sentencing is

entitled to draw "fair inference[s]," United States v.

Tejada-Beltran, 50 F.3d 105, 113 (1st Cir. 1995), from the evidence

before it.1 United States v. Marceau, 554 F.3d, 24 (1st Cir. 2009)

("A sentencing court is entitled to rely on circumstantial evidence

and draw plausible inferences therefrom." (internal citations

omitted)).

For ten years, Sicher worked as an administrative

assistant and secretary to Dr. David S. Walton, a surgeon in

ophthalmology specializing in children's glaucoma, a leading cause

of blindness for infants and toddlers. Dr. Walton was a "busy and

focused surgeon" who had a heavy load of clinical duties and

significant teaching responsibilities at Harvard Medical School,

where he was a Professor of Ophthalmology. He spent long hours

tending to his medical responsibilities.2

1
The court is not restricted to drawing only those
inferences compelled by the evidence. See United States v.
Olivero,552 F.3d 34, 38-39 (1st Cir. 2009) ("If the facts plausibly
support competing inferences, as here, a sentencing court cannot
clearly err in choosing one.").
2
Dr. Walton's testimony was that the practice was "special
place" in a unique environment that focused on particularly
"complex and difficult patients." While ophthalmologists
ordinarily see 50 to 60 patients a day, Dr. Walton saw five to six
patients on a busy day, spending considerable time with each. This
close-knit medical practice had a small roster of patients whom Dr.
Walton treated more intensively. Patients began seeing Dr. Walton

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 Dr. Walton relied heavily upon the defendant, his sole

employee and "trusted representative," to run his medical office

while he focused on these other demands. Indeed, Sicher perceived

herself as having essential managerial responsibilities. She told

the government in interviews that she took care of Dr. Walton on a

day-to-day basis and that, for example, Dr. Walton did not know how

to use an ATM. Utilizing her position as his assistant, Sicher

stole at least $150,000 from payments to his medical practice.

In addition, Sicher played a second role which is

particularly significant to the question of whether the enhancement

was correctly applied. For seven of those ten years, for an

additional monthly payment, she also handled all administrative

tasks for the Children's Glaucoma Foundation ("CGF"). CGF was a

non-profit organized by Dr. Walton initially and dedicated to

supporting programs for children's glaucoma sufferers. The

organization raises money and provides grants in support of

programs to increase awareness of children's glaucoma, two

university based research studies on childhood glaucoma, and

support of physician training in the care of affected children.

The record before us does not show how many funds were raised for

CGF, but the records show Sicher stole approximately $193,000 of

those funds. Many families whose children were treated by Dr.

as newborns, and he continued treating them through their teenage
years.

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Walton also devoted their financial and personal energies to

supporting CGF.

The foundation had only two functions: fundraising and

distributing the funds it raised through grants. Only two people

were involved in the day-to-day management of CGF: Dr. Walton and

Sicher. As said, Dr. Walton spent almost all of his time and

energies in providing medical treatment to his patients, as well

as fulfilling his academic and teaching responsibilities. This

meant that the other responsibilities for CGF, particularly the

management of fundraisers, fell largely on Sicher.

A. Sicher's Dual Job Responsibilities

Hired in 1995, Sicher was Dr. Walton's sole employee and

was responsible for managing his medical practice. Her job

responsibilities in Dr. Walton's practice included welcoming

patients, scheduling appointments, doing the bookkeeping, accepting

and depositing co-payments and medical reimbursement checks, and

receiving the practice's bank account statements. While he was

busy providing medical services, Dr. Walton relied on the

defendant, his "trusted representative in the office environment,"

to manage all the financial and administrative functions of the

office. Through her position, she became personally close with

many of the families of Dr. Walton's patients.

In 1998, upon the founding of CGF, Dr. Walton asked

Sicher to take on all administrative responsibilities for CGF. Her

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formal duties included accepting and depositing donations for CGF,

informing Dr. Walton of any donations, and opening and reviewing

CGF's monthly bank statements. In practice, Sicher's activities

went well beyond her formal duties. Her duties were essential to

the management of CGF; she effectively acted as the director of

CGF. As said, Dr. Walton did not perform these tasks. She was the

"face" of CGF, together with Dr. Walton, because of her active role

at fundraisers and personal relationships with members of the

foundation. The PSR also makes clear that she was "very visible

and took an active role in certain fundraising events by selling

tickets, playing host during the events and performing a meet and

greet." She also acted as the "point person" for the CGF annual

charity golf tournament, working closely with a sports celebrity.

This "very visible" role she played over a number of years was not

that of a person performing ordinary clerical duties.

She did not merely accept monies raised by the foundation

and act as the keeper of the accounts and books. There is evidence

she was engaged with persons who did fundraising activities for CGF

and then stole the money they had raised. She was installed in a

position in which she developed significant relationships with the

families and was the point of contact for fundraising events. For

example, a former CGF board member and parent of two patients

testified that it was Sicher who gave her two daughters, then 11

and 13 years old, wrist bands to sell in their neighborhood in

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Connecticut as a fundraising effort. The girls went door-to-door,

raising $300 in cash, which they gave to the defendant in a plastic

bag. The defendant then took the money.

Moreover, in at least one instance Sicher was engaged

with a family having a fundraising event about which Dr. Walton

knew nothing. A former CGF board member testified that she had

held a fundraising birthday party for CGF at her house, working

with Sicher, who never told Dr. Walton about the event. Sicher

received the money from the event but pocketed it for herself. The

district court was certainly rational in not inferring that money

raising drives originated and were managed sua sponte without any

involvement by a representative of the charity.

B. Sicher's Thefts

In these two roles, in which Sicher admittedly received

minimal supervision, the defendant was able to steal from both Dr.

Walton and CGF.

1. Thefts from Dr. Walton's Practice

Beginning no later than September 2000, the defendant

began to steal from Dr. Walton's medical practice. She stole

reimbursement checks sent to Dr. Walton from public and private

health insurance programs for medical services by indorsing them

with the forged signature of Dr. Walton and depositing them into

her personal bank account. She took patient payments made by check

to Dr. Walton as well as patient co-payments made in cash. She

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told one patient he owed an additional $1000 not covered by the

insurance payment received and then, when the patient paid,

pocketed the money. Dr. Walton did not monitor Sicher's

representations to patients about the sums owed or himself review

the deposits to see that the accounts were correct.

Over the course of five years of thefts from Dr. Walton's

practice, Sicher stole more than 160 checks from more than 40

different insurers, totaling over $150,000. To carry out her

thefts, the defendant made, without Dr. Walton's authorization or

knowledge, a signature stamp, which she used to forge Dr. Walton's

signature in indorsing the checks. Dr. Walton did not review the

checks, and so did not observe this. The defendant also deleted

various records of the surgeries Dr. Walton had performed for which

payments were still due from the practice's computer files.

2. Thefts from CGF

Sicher was also able to use her position to encourage

fundraising for CGF, to steal from CGF's bank account, and to steal

funds meant to be deposited to the accounts. She took blank,

unsigned checks for CGF, which were intended for funding research

grants and for which Dr. Walton was the sole authorized signatory.

Sicher made 61 of those checks payable to herself from CGF and

deposited them into her personal bank account, taking a total of

$172,995 from the CGF account. She also stole at least seven

donations made by check from third parties for a total of $9,850.

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She used the signature stamp she had made of Dr. Walton's signature

to indorse the checks in order to carry out these thefts. She also

took cash donations made to CGF, which the defendant told the

government totaled approximately $10,170. These actions were

admittedly taken without the authorization of Dr. Walton. They

were also taken without his knowledge or permission. But it is not

the formal job description which is at issue but the actual

responsibilities of her job.

Sicher was able to conceal these actions because of the

scope of her duties. For example, she, not Dr. Walton, was

responsible for opening and reviewing CGF's monthly bank

statements, and presumably reconciling accounts. For at least five

years, she showed Dr. Walton only the first page of the statements

which show the balance for the CGF account. She destroyed the

remaining pages that showed the cleared, forged checks. Dr. Walton

deferred to Sicher's representations about the finances of both his

practice and CGF after seeing only the first page of the bank

statements and did not conduct a supervisory review of her

accounting.

Sicher was given increased responsibilities over the

years because, Dr. Walton said, he trusted her and had confidence

in her. His office essentially had no checks and balances on the

discretion she had in both of her roles.

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C. Dr. Walton's Discovery of Sicher's Thefts

In November 2005, Dr. Walton discovered the first

evidence of Sicher's thefts totally by chance. He was in the

office on a Saturday and received and opened the office mail, which

included a bank statement showing that a $25,000 check from CGF to

a University of Georgia professor had been returned for

insufficient funds. Dr. Walton knew that there should have been

enough money in the CGF account for the check to clear; also he had

been surprised not to have received an acknowledgment of the check

from the professor. When Dr. Walton asked Sicher about the check,

she stated that the check had been sent and that the professor had

called to thank Dr. Walton. Dr. Walton then confronted Sicher

about the check discrepancy, and she admitted to stealing $4,000

from the CGF account. Investigation established that the defendant

had stolen at least $350,000.

D. District Court Proceedings

On January 16, 2007, defendant pled guilty to the 26-

count information.

The pre-sentence report ("PSR") submitted to the district

court calculated an offense level of 22 under the Guidelines. The

PSR recommended a two-level enhancement for abuse of a position of

trust, U.S.S.G. § 3B1.3, a two-level enhancement for a

misrepresentation that the defendant was acting on behalf of a

charitable organization, U.S.S.G. § 2B1.1, and a three-level

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downward adjustment for acceptance of responsibility, U.S.S.G.

§ 3E1.1. Sicher's criminal history was calculated at Category I.

The PSR's recommendation that the abuse of trust

enhancement should be applied was based on the discretion the

defendant exercised in administering the medical practice and in

managing CGF's activities. The relevant facts included: that the

defendant had an "extremely high level of trust based upon her ten-

year professional relationship with Dr. Walton"; that she "was

given substantial professional discretion to manage the financial

and administrative functions of the office"; that Dr. Walton "gave

the defendant considerable deference and relied upon her to conduct

his daily affairs"; that Sicher "regularly attended and hosted

fundraisers by the CGF" and was the "face" of CGF along with Dr.

Walton; and that she had strong personal relationships with

patients and families "who visited [Dr. Walton's] office in hopes

of finding a cure." The PSR concluded that "the defendant was

insulated from scrutiny, which contributed significantly to her

ability to facilitate the theft and conceal it on an ongoing basis

thereafter." Defendant filed an objection to the PSR's conclusion

that the enhancement applied, but did not dispute the underlying

factual assertions.3

3
Defendant argued that she was "a secretary who worked
without any clerical support and who was poorly and loosely
supervised" and therefore did not occupy a position of trust. She
further argued that her "ability to accomplish the thefts [was not]
facilitated by the nature of the position she held." The defendant

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 Sicher chose not to present any contrary facts with

respect to her role at CGF and the medical practice to the district

court. She only submitted evidence regarding her mental health

disorders. In the mental health evidence, she told Dr. Reade, who

evaluated her, that she "knew what records Dr. Walton scrutinized

and which he ignored." Sicher knew precisely how to take advantage

of the discretion and minimal supervision she received.

During the pre-sentence hearing on July 12, 2007,

defendant again objected that she did not hold a position of trust.

Importantly, Sicher conceded that in fact she was not supervised.

She attempted to blame Dr. Walton for this, saying he was too busy

and should have hired more staff.

Before hearing the witnesses at the sentencing hearing,

on August 2, 2007, the district court stated it had given

considerable time and thought to what the sentences would be.4

objected that "[i]n the ordinary course in a well-run medical
office, her position is not one in which the employee enjoys great
discretion and 'significantly less supervision' than the usual
clerical worker."
The Probation Officer responded to the objection, stating
that as Dr. Walton's sole employee, Sicher "was given substantial
professional discretion to manage the financial and administrative
functions of the office and the foundation." Her claims that she
was poorly supervised or that Dr. Walton's office was poorly run
were "unfounded." The Probation Officer maintained the
recommendation that the enhancement applied based on the evidence
of Sicher's discretionary responsibilities and the trust that Dr.
Walton and the patients had placed in her.
4
The district court declined to impose the enhancement for
misrepresentation that she was acting on behalf of a charitable
organization.

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During the sentencing hearing and before defense counsel argued,

defense counsel asked the judge how he had resolved the disputed

Guidelines issue, as it would affect her argument. The court

responded that "I find that the defendant did violate a position of

trust." Defense counsel did not ask for a greater explanation, nor

did defense counsel present any evidence or any oral argument at

the sentencing hearing that the position Sicher held was not a

position of trust.

The district court found that both Dr. Walton and CGF

were victims. The court heard statements from Dr. Walton as well

as four current and former CGF board members, all of whom had

children who were patients of Dr. Walton, and all of whom described

their views that she was trusted by them, and that they took

actions in reliance on that trust, and she had abused the trust.

Sicher did not testify.

At sentencing, the district court also rejected

defendant's requested a downward departure or variance based on the

evidence she had submitted of her mental health conditions and

announced the 36-month sentence.

Defendant now appeals her sentence.

II.

Sicher's first argument is that the district court erred

in applying the enhancement for abuse of a position of trust under

U.S.S.G. § 3B1.3 because she did not hold a position of trust.

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Defendant contends that on the factual record presented in the

district court, there was insufficient evidence for the court to

conclude that defendant exercised the kind of "substantial

professional or managerial discretion" necessary to support the

enhancement.5 We disagree. The government's burden is to show the

facts supporting the enhancement by a preponderance of the

evidence. United States v. Connell, 960 F.2d 191, 197 (1st Cir.

1992).

Our caselaw has reviewed the propriety of a § 3B1.3

enhancement under different standards. See United States v.

Gonzalez-Alvarez, 277 F.3d 73, 81 (1st Cir. 2002) (giving due

deference to the district court's application of § 3B1.3 to the

facts). In other cases, we have described the standard of review

as de novo. United States v. O'Connell, 252 F.3d 524, 528 (1st

Cir. 2001); see also United States v. Parrilla Roman, 485 F.3d 185,

190 (1st Cir. 2007). To the extent that determination depends upon

findings of fact, we review the district court's factual

determinations for clear error. O'Connell, 252 F.3d at 528. These

determinations may be made by drawing reasonable inferences from

the evidence. Marceau, 554 F.3d at 32.

5
Defendant argues, citing United States v. Garrison, 133
F.3d 831, 838 (11th Cir. 1998), that there must be a fiduciary or
fiduciary-like relationship between the defendant and victim of the
defendant's fraud. This is not the law of our circuit, and we
reject the argument.

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 Certainly, questions about interpretation of a guideline

are reviewed de novo. Marceau, 554 F.3d at 29. Questions of

application of a guideline tend more to be on a sliding scale.6

For the present case, it makes no difference. Even if our review

were purely de novo, we would affirm.

6
While we have used the language of "de novo" review to
apply to a trial judge's legal conclusion from the facts, we think
this is more like a mixed question of law and fact, with a sliding
scale of review depending on whether the trial judge's conclusion
is more law-oriented or more fact-driven. Recently the D.C.
Circuit, recognizing that it had used different standards of
review, stated that "insofar as the district court applied the
'abuse of trust' Guideline to the facts of [the defendant's] case,
due deference is the appropriate standard of review." United
States v. Tann, 532 F.3d 868, 875 n.**** (D.C. Cir. 2008).
Several circuits state that they review the application
of the Guidelines de novo and the district court's factual findings
for clear error. United States v. Spear, 491 F.3d 1150, 1153 (10th
Cir. 2007); United States v. Andrews, 484 F.3d 476, 478 (7th Cir.
2007); United States v. Brave Thunder, 445 F.3d 1062 (8th Cir.
2006); United States v. Ebersole, 411 F.3d 517, 535-36 (4th Cir.
2005); United States v. Britt, 388 F.3d 1369, 1371 (11th Cir. 2004)
(per curiam), vacated on other grounds, 546 U.S. 930 (2005); see
also United States v. Brogan, 238 F.3d 780, 783 (6th Cir. 2001)
(reviewing de novo decision of a district court to apply § 3B1.3)
Other circuits have framed the standard of review
somewhat differently. See United States v. Dullum, 560 F.3d 133,
140 (3d Cir. 2009) (district court's determination that defendant
occupied a position of trust reviewed de novo; the court's
determination that defendant abused that position in a manner that
significantly facilitated the offense is a question of fact
reviewed for clear error); United States v. Hirsch, 239 F.3d 221,
227 (2d Cir. 2001) (same); see also United States v. Ollison, 555
F.3d 152, 164 (5th Cir. 2009) ("The application of . . . § 3B1.3 is
a sophisticated factual determination reviewed under the clearly
erroneous standard." (quoting United States v. Fisher, 7 F.3d 69,
70-71 (5th Cir. 1993))); cf. United States v. Thornton, 511 F.3d
1221, 1227 n.4 (9th Cir. 2008) ("Before Booker, we reviewed the
application of the abuse of trust enhancement -- a mixed question
of law and fact -- de novo . . . Although the same standard of
review may well apply after Booker, we need not decide the issue."
(citation omitted)).

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 To apply the enhancement, "the district court must first

decide that the defendant occupied a position of trust and then

find that [she] used that position to facilitate or conceal the

offense." United States v. Gill, 99 F.3d 484, 489 (1st Cir. 1996).

These steps are distinct. Parrilla Roman, 485 F.3d at 191.

The district court did not specify the precise basis for

the application of the enhancement, nor did it need to do so.

"[W]e note once more that 'a [sentencing] court's reasoning can

often be inferred by comparing what was argued by the parties or

contained in the pre-sentence report with what the judge did."

United States v. Hoey, 508 F.3d 687, 694 (1st. Cir. 2007) (quoting

United States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006)

(en banc)). Indeed, in Rita v. United States, 551 U.S. 338, 359

(2007), the Supreme Court affirmed where there was cursory

reasoning by the trial judge, on the basis of inferences as to the

sentencing judge's likely reasoning where "context and the record

make clear that this, or similar, reasoning underlies the judge's

conclusion."

In reviewing the district court's conclusion, we review

all of the information before the court. That evidence must be

viewed as a whole and not atomized. United States v. Hilario-

Hilario, 529 F.3d 65, 78-79 (1st Cir. 2008) (examining district

court evidence including the PSR to evaluate whether the § 3B1.3

sentencing enhancement applied). Special weight is given to those

-16-
portions of the PSR to which no countervailing proof is offered.

United States v. Prochner, 417 F.3d 54, 66 (1st Cir. 2005) ("The

defendant may object to facts in the PSR, but 'if [his] objections

to the PSR are merely rhetorical and unsupported by countervailing

proof, the district court is entitled to rely on the facts in the

PSR.'" (alteration in original) (quoting United States v. Cyr, 337

F.3d 96, 100 (1st Cir. 2003))).

A. Guidelines Requirement

We begin with whether the government has shown by a

preponderance of the evidence that Sicher occupied a position of

trust. The Guideline states: "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. § 3B1.3. Commentary illuminates the

meaning of the Guidelines. The commentary states that a "position

of public or private trust" is "characterized by professional or

managerial discretion." U.S.S.G. § 3B1.3 cmt. n.1. "Persons

holding such positions ordinarily are subject to significantly less

supervision than employees whose responsibilities are primarily

non-discretionary in nature." Id. The Guidelines commentary

further explains that the enhancement would apply to "a bank

executive's fraudulent loan scheme," but does "not apply in the

case of an embezzlement or theft by an ordinary bank teller or

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hotel clerk" because such positions lack the required discretion.7

Id. The plain language of the Guideline thus covers a spectrum of

positions. At one end, the enhancement applies to a supervisor to

whom substantial discretion is delegated; at the other end, an

ordinary bank teller with no discretion is excluded.

In evaluating the first step of the § 3B1.3 enhancement

analysis, "the relevant inquiry . . . is whether a person in fact

occupied a position of trust, rather than whether the person's

title or official job description contained a discretionary

element." United States v. Chanthaseng, 274 F.3d 586, 589 (1st

Cir. 2001) (emphasis in original); see also United States v. Allen,

201 F.3d 163, 166 (2d Cir. 2000) ("An employee need not have a

fancy title or be a 'big shot' in an organization to qualify for an

enhancement for abuse of a position of trust."); United States v.

Barrett, 178 F.3d 643, 646 (2d Cir. 1999) (noting that § 3B1.3

enhancement has been applied to police officers, security guards,

babysitters, custodians, and truck drivers). The fact that

Sicher's title was only that of secretary and administrative

assistant is beside the point.

7
The application note to § 3B1.3 was amended in 1993 to
emphasize managerial or professional discretion and minimal
supervision. See Parrilla Roman, 485 F.3d at 191; United States v.
Reccko, 151 F.3d 29, 33 (1st Cir. 1998). There is no dispute that
we are dealing with the post-1993 version of the Guideline and we
consider relevant cases applying the Guideline with the amended
application note.

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 Under our precedent, the district court's implicit

conclusion that Sicher held a position of trust characterized by

managerial discretion cannot be reversed. The record shows that

Sicher, through her roles in the medical practice and at CGF, in

fact exercised a great deal of discretion and had little

supervision. These roles must be considered together for purposes

of the enhancement. What is conclusive for us is her role in CGF.

Were the enhancement based on Sicher's secretarial role

in Dr. Walton's medical practice alone, this might be considered a

more difficult issue. Cf. United States v. Tann, 532 F.3d 868,

874-76 (D.C. Cir. 2008) (no enhancement where office manager's

responsibilities limited to payroll and entering checks into

ledger). Whether Sicher's secretarial role alone in the medical

practice is enough to support the enhancement is a question we do

not need to reach. In light of the additional role Sicher

performed at CGF, the evidence firmly supports the district court's

conclusion that she occupied a position of trust.

The record is clear that Sicher in fact exercised

considerable authority and discretion as to CGF; this is

necessarily so, as she was unsupervised in a number of tasks as to

receipt and disbursement of funds. First, Sicher opened and

reviewed CGF's monthly bank statements and then selectively gave

information to Dr. Walton, who was only shown the bottom line of

the account (i.e. only the first page, which only showed the total

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account balance). Indeed, she exercised autonomy over incoming

donations, the payments of grants to researchers (as evidenced by

the non-payment to one researcher), and maintenance of the

accounting logs. She was essentially unsupervised by Dr. Walton as

to these responsibilities and has never claimed otherwise.

Second, as the public face of CGF, she was entrusted to

host CGF fundraisers and to take steps to facilitate the

fundraisers such as dealing with celebrities and distributing items

for sale. She also exercised discretion as to what fundraisers

would be held in CGF's name, not even disclosing them to Dr.

Walton. Regardless of the defendant's title, she essentially took

over as the de facto manager and director of CGF.

Where a supervisor fails to review the financial

transactions carried out by an employee, as here, effectively

giving the employee significant discretion, we have held that the

enhancement applies. Chanthaseng, 274 F.3d at 590 ("Although it

was against bank regulations for appellant to countersign rapid

deposit tickets at will, the bank manager's laxity effectively made

that a central element of [defendant's] position.").

Other courts have applied the enhancement to employees

who, despite their title, were in fact entrusted with substantial

discretion. For example, in United States v. Laljie, 184 F.3d 180,

195-96 (2d Cir. 1999), the Second Circuit upheld an abuse of trust

enhancement for a personal secretary who altered checks made

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payable to cash and tricked her employer into signing checks made

payable to her personal accounts. There, the court explained that

"the proper characterization of the secretarial position for [§

3B1.3] purpose[s] will depend" on the responsibilities the employer

delegates to the employee and the discretion the employer confers.

Id. at 195; see also United States v. Tiojanco, 286 F.3d 1019,

1021-22 (7th Cir. 2002) (enhancement applies to hotel clerk in

accounts receivable department who was responsible for handling

telephone calls from hotel guests who disputed charges made to

their credit card account).

We recognize that testimony by individuals that they

trusted someone who betrayed their trust does not itself establish

that the position was a position of trust. The testimony, however,

is not irrelevant. With growing trust by the employer and/or

victim, an employee may be in fact given increasing levels of

responsibility and discretion over time which such that the

position becomes one "characterized by professional or managerial

discretion" without any change in title. That is true here. Our

caselaw recognizes this as grounds to sustain a § 3B1.3

enhancement. In United States v. O'Connell, this court concluded

that the closeness of the relationship between the defendant and

the victim supported the district court's finding that the

defendant occupied a position of trust. O'Connell applied the

enhancement to a bookkeeper who had forged the business owner's

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name to the checks. 252 F.3d at 528-29. In upholding the

enhancement, O'Connell stated that "mere[] access to the

[business's] checkbook and accounting software" was insufficient to

trigger the application of the enhancement. Id. Rather, "two

other aspects of O'Connell's employment . . . 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

[business owners]." Id. at 529. This is a very different point

than saying no more than the defendant lacked supervision.

The testimony at Sicher's sentencing hearing repeatedly

emphasized the high level of trust Dr. Walton and others had in the

defendant, which resulted in her having an even more important role

in CGF.8

Although Sicher is correct to argue that "trust" has a

"special meaning" under the Guidelines, United States v. Reccko,

151 F.3d 29, 31 (1st Cir. 1998), it is also evident from the

testimony that the particular level of trust Dr. Walton and the

patients and families had in Sicher "result[ed] in less supervision

of and more autonomy" for her. O'Connell, 252 F.3d at 529. And

whatever the reason Sicher was given such a significant role, she

was in fact in a position of trust as defined in the Guideline.

8
Sicher was particularly close to the patients and trusted
by them. For example, the secretary of the CGF board described how
the defendant "latched onto us when we were perhaps the most
vulnerable we've ever been." Sicher was described as "accepted as
a member of [the CGF board's] family" and would call his wife six
times a day.

-22-
 The cases upon which Sicher relies to argue that she does

not occupy a position of trust, Reccko and Parrilla Roman, are

easily distinguished. In Reccko, this court rejected the

application of the enhancement to a police station

receptionist/switchboard operator who possessed "no discernable

discretion." Reccko, 151 F.3d at 32. There, the defendant was

closely supervised; her telephone lines were "continuously"

monitored; and although she announced visitors, "she did not have

discretion either to screen them or to admit them to the non-public

areas of the stationhouse." Id. In Parrilla Roman, 485 F.3d at

192, we rejected an enhancement for airport baggage handlers where

there was no evidence of discretion or that defendants "toiled

under minimal supervision." Sicher did not have a "menial

position," id., on par with the closely supervised

receptionist/switchboard operator or baggage handler.

As to the second step, the record clearly shows that

defendant used her position of trust to conceal her offenses.9

There is no dispute that Sicher was able to carry out her offenses

for at least five years by showing Dr. Walton only the first page

of the monthly bank statements and deleting the remaining pages

showing her illegal activity. The trusted, familial role that

defendant held in Dr. Walton's practice and CGF facilitated the

9
On appeal defendant does not contest that her position
enabled her to conceal her offense.

-23-
thefts. In addition, she used her vast array of responsibilities

with CGF to perform and to conceal her thefts from the foundation.

Finally, we reject Sicher's second claim of error that

the district court failed to consider and to grant a downward

variance on the basis of evidence of her mental health problems,

including diagnoses of borderline personality disorder, major

depression, and compulsive gambling disorder.

The record demonstrates that the district court in fact

did consider the defendant's mental health evidence, but simply did

not find it persuasive. The district court stated, "Frankly, while

I understand that, I regard it as an explanation rather than a

justification . . . . Not the kind of mental state to excuse this

criminal behavior." Further, the district court did recommend that

defendant receive mental health treatment in prison. The record

thus refutes defendant's second claim of error.

III.

The sentence is affirmed.

-Dissenting Opinion Follows-

-24-
 LIPEZ, Circuit Judge, dissenting. The majority opinion

is a curious blend of intimations and unjustified inferences. With

its invocation of our authority to infer the reasoning of the able

and experienced district court judge, who said that he "had given

considerable time and thought to what the sentences would be," the

majority intimates that we should defer to the decision of the

judge even in the absence of any explanation of his decision that

appellant occupied a position of trust within the meaning of the

guidelines. With its repeated invocation of the conclusory

assertion of the PSR that Sicher exercised managerial discretion in

carrying out her work for the CGF, an essential characteristic of

a position of trust, the majority intimates that there is evidence

in the record to support that assertion. Yet when the majority

tries to identify specific instances of the exercise of such

discretion, there is only an empty record. Therefore, I

respectfully dissent.

In Part I of the dissent, I set forth the law that

applies to the position of trust enhancement. In Part II, I apply

the law to the facts of this case, first addressing appellant's

work as a secretary for Dr. Walton's medical office and then her

work for the Children's Glaucoma Foundation ("CGF"). Although the

majority chooses not to discuss appellant's work as secretary to

the medical office, I must do so because of my view that the

position of trust enhancement was improperly applied. In my

-25-
discussion of the application of the law to Sicher's work with the

CGF, I focus on the errors in the majority's analysis.10

I.

United States Sentencing Guidelines section 3B1.3 calls

for a two-level upward adjustment when "the defendant abused a

position of public or private trust . . . in a manner that

significantly facilitated the commission or concealment of the

offense." The application notes to this provision explain that a

position of public or private trust refers to one "characterized by

professional or managerial discretion (i.e., substantial

discretionary judgment that is ordinarily given considerable

deference)." U.S.S.G. § 3B1.3 cmt. n.1. The notes further explain

that:

Persons holding such positions ordinarily are
subject to significantly less supervision than
employees whose responsibilities are primarily
non-discretionary in nature. For this
adjustment to apply, the position of public or
private trust must have contributed in some
significant way to facilitating the commission
or concealment of the offense (e.g., by making
the detection of the offense or the
defendant's responsibility for the offense
more difficult). 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.

10
I concur with the majority's rejection of appellant's claim
that the district court failed to consider the evidence about her
mental health.

-26-
 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.

Id.

We require sentencing courts to conduct a two-step

inquiry to determine whether the section 3B1.3 enhancement applies

to a particular defendant. See United States v. Reccko, 151 F.3d

29, 31 (1st Cir. 1998). First, a court must determine whether a

defendant occupied a "position of trust" within the meaning of the

guideline. We have called this the "status question." United

States v. Parilla-Román, 485 F.3d 185, 190-91 (1st Cir. 2007). If

the defendant's job does not meet that description, the inquiry

ends and the enhancement does not apply. If, however, a court

answers the status question affirmatively, it should proceed to the

second step of the inquiry and ask whether the defendant used her

position of trust to facilitate or conceal her offense. Reccko,

151 F.3d at 31; Parilla-Román, 485 F.3d at 190. It is error to

conflate these two steps by determining that a defendant "held a

position of trust precisely because her job enabled her to commit

the crime." Reccko, 151 F.3d at 32; see also Parilla-Román, 485

F.3d at 191 ("[I]t does not follow that, merely because a

defendant's position enables him to commit an offense, the position

must have been unsupervised and, thus, a position of trust.").

-27-
 With respect to the status inquiry, our cases -- and the

guideline itself -- reveal that the requirement of managerial or

professional discretion is "paramount." United States v.

Chanthaseng, 274 F.3d 586, 589 (1st Cir. 2001). Labels do not

matter; it is the defendant's actual degree of discretion, not his

or her job title, that controls the applicability of section 3B1.3.

United States v. Gill, 99 F.3d 484, 489 (1st Cir. 1996). Although

positions of trust exist in many different settings, they all

involve:

. . . situation-specific decisionmaking that is given
considerable deference precisely because it cannot be
dictated entirely by established protocol. All of these
individuals are charged with exercising their judgment in
the best interest of another person or entity; this is
the essence of the "professional or managerial
discretion" to which the guideline refers.

United States v. Tiojanco, 286 F.3d 1019, 1021 (7th Cir. 2002)11;

see also id. at 1020-21 (describing "positions of trust" as falling

into two categories: 1) "people like doctors, lawyers, and

investment advisors who have (or hold themselves out as having

specialized expertise that leaves the average layman ill-equipped

to monitor their job performance," and 2) employees in

organizational settings who are charged with "deciding, on a case-

by-case basis, whether a particular expenditure or transfer of

11
The full quotation from this decision refers to "complex,
situation-specific decisionmaking." Id. at 1021 (emphasis added).
I think that the use of the adjective "complex" overstates this
otherwise useful proposition.

-28-
company funds or other valuables is necessary or beneficial to the

organization").

This focus on the presence of managerial or professional

discretion is necessarily fact-intensive, and the fact patterns

will vary widely from case to case. Nevertheless, our precedent

provides useful guidance. For example, in Chanthaseng, 274 F.3d at

589-90, we found that a mid-level bank manager occupied a position

of trust when she stole from the bank through a scheme of making

false "rapid deposit" tickets for fictional large cash deposits.

The defendant's supervisor gave her the authority (against

corporate rules) to countersign her own deposit tickets and failed

to review her tickets, "essentially making her the branch's sole

decision-maker for those transactions." Id. at 589. The same

supervisor had also asked the defendant to look into an odd entry

in the bank's records -- one which the defendant in fact created to

conceal her theft -- without providing any oversight for the

defendant's subsequent investigation. Id. at 590.

We also found the position of trust enhancement applicable in

United States v. O'Connell, 252 F.3d 524, 528-29 (1st Cir. 2001),

where the defendant was an office manager with access to an

$850,000 line of credit that he could use to transfer funds into

his employer's checking account. We concluded that "the authority

to draw off the account suggests significant managerial

discretion." Id.

-29-
 By contrast, we were not able to identify the presence of

professional or managerial discretion in other cases. In Reccko,

151 F.3d at 30-32, we found that the section 3B1.3 enhancement was

inappropriately applied to a police station receptionist and

switchboard operator who was closely supervised and whose phone

calls were monitored, even though her position made her privy to

secret police information that she used to tip a friend to a

planned drug bust. Although the defendant's job at the station

"afforded her access to information," it "reposed in her no

discernable discretion." Id. at 32.

We also rejected the application of the enhancement in

Parilla-Román, 485 F.3d at 191, where we found that defendants had

not occupied positions of trust as baggage handlers for an airline

even though they had received special security clearance in

connection with their employment. We noted that the defendants'

positions did not afford them discretion. Id. As our cases

demonstrate, mere access to finances, secure space, or secret

information does not amount to a position of trust unless the

access is accompanied by the exercise of professional or managerial

discretion.

Distinguishing positions with managerial authority from those

without it can be difficult in the office setting, where employees

often have a wide range of duties that must be scrutinized

carefully to determine if they truly encompass managerial

-30-
discretion. The difficult line-drawing that may be necessary in

the office setting is illustrated by United States v. Tann, 532

F.3d 868 (D.C. Cir. 2008). The defendant there was an office

manager who was convicted of fraud for embezzling from three

successive employers. Id. at 870. Her duties over the course of

the three jobs included ordering equipment, scheduling travel,

maintaining a check ledger (she was not authorized to sign checks),

ensuring that monthly bank statements matched the ledger, making

out payroll checks, handling cost records, and preparing checks to

be signed by her supervisors. Id. at 870-71. Although the

district court had found that Tann was "trusted to handle the

finances of the organization[s]," it failed to identify any

specific tasks requiring managerial discretion. Id. at 875

(modification in original) (internal quotation marks and citation

omitted). In the absence of proof of such tasks, the enhancement

was not applicable.12 Id.

In United States v. Edwards, 325 F.3d 1184, 1185-86 (10th Cir.

2003), the enhancement did not apply to an administrative assistant

who handled accounts receivable, received customer checks in the

12
I note that some of Tann's responsibilities -- such as
hiring employees and managing expenditures, id. at 870-71, -- might
amount to managerial discretion under some circumstances. Such
tasks are not at issue in this case, and I therefore need not
decide whether they would reflect "managerial discretion" in the
context of appellant's job. Nonetheless, managing expenditures
might well amount to "managerial discretion" of the kind
contemplated by the guideline, and I am uneasy with Tann to the
extent that it concludes otherwise.

-31-
mail and prepared them for deposit, calculated the balance of

customer accounts, posted payments to customer accounts, and

prepared cash receipts reports that were incorporated into the

company's ledgers and financial statements. The Tenth Circuit

stated that "the adjustment under § 3B1.3 is not intended to be

routinely applied to every employee fraud or embezzlement

case. . . . [T]he fact is that in every successful fraud the

defendant will have created confidence and trust in the victim, but

the sentencing enhancement is not intended to apply to every case

of fraud." Id. at 1187 (internal quotation marks and citation

omitted). Because Edwards's job "was purely ministerial and did

not entail substantial discretionary judgment," the section 3B1.3

enhancement was inappropriate. Id.

II.

In imposing the abuse of trust enhancement in this case, the

district court made no factual findings on the record concerning

the nature of appellant's position and whether it required the

exercise of professional or managerial discretion. The court had

before it, however, the charging document to which appellant pled

guilty, victim impact letters written by Dr. Walton on behalf of

himself and the CGF, the victim impact testimony of Dr. Walton and

parents of some of his patients, appellant's psychiatric and

compulsive gambling evaluations and, most importantly, the PSR.

Appellant did not contest the objective facts set forth in any of

-32-
these sources. The district court was entitled to accept those

uncontested facts as true. United States v. Prochner, 417 F.3d 54,

66 (1st Cir. 2005).

In contrast to the objective facts (which include, for

example, the specific tasks Sicher performed, the descriptions of

events occurring during the course of her fraud, and the amount of

money she stole), appellant did contest a critical conclusion drawn

from those facts that would, if true, support the imposition of the

position of trust enhancement. Namely, she contested the PSR's

assertion that she "was given substantial professional discretion

to manage the financial and administrative functions of the

office," arguing in her sentencing memorandum that her job "was not

one that was 'characterized by professional or managerial

discretion.'" Defendant's Sentencing Memorandum at 2 (quoting

U.S.S.G. § 3B1.3). Unlike the majority, I do not merely accept

the PSR's conclusion that appellant was given substantial

discretion, or the district court's unexplained finding that "the

defendant did violate a position of trust." The district court

made no subsidiary findings of fact about whether appellant's

position afforded her managerial discretion. "In a case such as

this one, in which the district court announced its decision to

adjust upward without any subsidiary findings of fact, we 'review

the evidence and the result, [but] not the reasoning by which the

result was reached by the district court.'" Chanthaseng, 274 F.3d

-33-
at 589 (quoting United States v. Tracy, 36 F.3d 199, 203 (1st Cir.

1994)).

The majority invokes the ability of the district court to make

factual determinations by drawing reasonable inferences from the

evidence, and our ability to infer a sentencing court's reasoning

under certain circumstances. Those propositions, while

unquestionably correct, are irrelevant to this case. Whatever the

intricacies of the review process here,13 my conclusion is that any

inferences fairly drawn from the record simply do not support the

conclusion that appellant occupied a position of trust.

A. Administrative Assistant to Dr. Walton's Medical Office

The PSR states that Dr. Walton relied on appellant to "conduct

his daily affairs," giving her "substantial professional discretion

to manage the financial and administrative functions of the office."

These generalities, repeated by the government in its brief, draw

no support from the specific responsibilities attributed to Sicher.

Her specific duties, as set forth in the PSR, included ministerial

tasks such as opening mail, welcoming patients, scheduling

appointments, bookkeeping, and collecting and depositing payments.

These kinds of ministerial tasks do not normally require

"substantial discretionary judgment that is ordinarily given

13
I do agree with the majority's suggestion in footnote 6 of
its opinion that our review of the imposition of the position of
trust enhancement ordinarily involves a "mixed question of law and
fact, with a sliding scale of review depending on whether the trial
judge's conclusion is more law-oriented or more fact-driven."

-34-
considerable deference," U.S.S.G. § 3B1.3 cmt. n.1, and the record

gives us no reason to conclude that they did in this situation.

Notably, the record does not reveal that appellant had authority to

make spending decisions for the medical office, prepare a budget,

approve or deny spending requests, or conduct any other

discretionary task with respect to the "financial and administrative

functions of the office." While is true that appellant's

responsibilities gave her the opportunity to commit her crimes, they

"reposed in her no discernable discretion." Reccko, 151 F.3d at 32;

see also United States v. Spear, 491 F.3d 1150, 1154 (10th Cir.

2007) ("'The fact that [the defendant] was trusted by her employer

with significant responsibility . . . is not determinative.'"

(alterations in original) (quoting Edwards, 325 F.3d at 1187)).

B. Administrative Assistant to the Children's Glaucoma Foundation

The following two paragraphs are the core of the majority's

erroneous reasoning about the significance of appellant's work for

the CGF:

The record is clear that Sicher in fact exercised
considerable authority and discretion as to CGF; this is
necessarily so, as she was unsupervised in a number of
tasks as to receipt and disbursement of funds. First,
Sicher opened and reviewed CGF's monthly bank statements
and then selectively gave information to Dr. Walton, who
was only shown the bottom line of the account (i.e. only
the first page, which only showed the total account
balance). Indeed, she exercised autonomy over incoming
donations, the payments of grants to researchers (as
evidenced by the non-payment to one researcher), and
maintenance of the accounting logs. She was essentially
unsupervised by Dr. Walton as to these responsibilities
and has never claimed otherwise.

-35-
 Second, as the public face of CGF, she was entrusted
to host CGF fundraisers and to take steps to facilitate
the fundraisers such as dealing with celebrities and
distributing items for sale. She also exercised
discretion as to what fundraisers would be held in CGF's
name, not even disclosing them to Dr. Walton. Regardless
of the defendant's title, she essentially took over as
the de facto manager and director of CGF.

These paragraphs contain both factual and legal errors. I will deal

with the factual errors first, setting forth the assertions at issue

in bold print.

1. Factual Errors

a. "Sicher opened and reviewed CGF's monthly bank
statements and then selectively gave information to Dr. Walton, who
was only shown the bottom line of the account (i.e. only the first
page, which only showed the total account balance)."

This statement only describes the technique of Sicher's crime;

her concealment of illicit transactions does not show that she was

authorized to exercise managerial discretion on behalf of the CGF.

While Sicher, as a bookkeeper, may have been the only one to review

the itemized record of the bank account's activity, that fact does

not indicate that she was authorized to exercise discretion over the

transactions reported there.

b. Sicher "exercised autonomy over incoming
donations . . . ."

Sicher "exercised autonomy" over incoming donations only to the

extent that she was the sole person responsible for depositing them

in the CGF's bank account.14 She exercised no authority over the

14
The majority cites Chanthaseng, 274 F.3d at 590, for the
proposition that "when a supervisor fails to review the financial

-36-
funds in that account, however, because she was not permitted to

choose where they should be deposited or how they should be spent.

She had no authority to write checks from the CGF's bank account.15

c. Sicher "exercised autonomy over . . . the payments of
grants to researchers."

If this statement were true -- for example, if Sicher had the

authority to decide which researchers were to be paid, how much, or

even when -- that fact would indeed support the majority's position

that she exercised discretion in her role. However, there is no

evidence to support that proposition. Certainly, the episode on

which the majority relies to make the assertion (when Dr. Walton

discovered appellant's thefts because a check to a researcher was

transactions carried out by an employee, as here, effectively
giving the employee significant discretion, we have held that the
enhancement applies." The facts of that case, however, are quite
different. The defendant in Chanthaseng became the "sole decision-
maker" for certain financial transactions. Id. at 589. By
contrast, appellant was not authorized to make any decisions about
financial transactions for the CGF and the medical office. She was
not authorized to write checks, manage, or move money; she was only
authorized to deposit it in a specified account. As with the case
of an embezzling bank teller, the fact that she did otherwise does
not make hers a position of trust.
15
The PSR explains:

The CGF had a supply of blank, unsigned checks at Dr.
Walton's office, which were drawn off of the CGF account
and intended primarily for use in funding research
grants. During all relevant periods, Dr. Walton was the
named trustee and sole authorized signatory on the CGF
bank account. He neither delegated signature authority
to Sicher, nor authorized, directed, or otherwise
suggested that Sicher obtain a signature stamp with his
name.

-37-
returned for insufficient funds) does not support the contention.

Dr. Walton discovered the theft when, to his surprise, he saw that

the check to the researcher had bounced; he knew that there should

have been enough money in the account to cover it. That episode

only supports the conclusion that Sicher, without the authorization

or knowledge of Dr. Walton, drained the account of money. It cannot

support the inference that Sicher had "complete autonomy" over

research grant payments. While she might possibly have prepared the

check to the researcher (a fact the record does not provide), she

was, without question, unauthorized to sign it on her own.

d. Sicher "exercised autonomy over . . . maintenance of
the accounting logs."

This statement is probably true. Sicher was the bookkeeper for

the CGF as well as the medical office. As we indicated in

O'Connell, 252 F.3d at 528-29, however, that ministerial task does

not indicate the use of discretionary judgment. See id. (noting

that "[t]here is some support for O'Connell's argument that his

position as a bookkeeper . . . did not place him within the

Guideline definition of a position of a trust," but finding support

for the imposition of the enhancement in other aspects of the

defendant's job).

-38-
 e. "[A]s the public face of CGF, [Sicher] was entrusted
to host CGF fundraisers and to take steps to facilitate the
fundraisers such as dealing with celebrities and distributing items
for sale."

Sicher was a "host" of CGF events only in the sense that she

was a greeter and a "face" of the charity. The record shows that

she was called on to use her social skills on behalf of the

organization, not her managerial discretion. For example, the

majority focuses on an episode, described at sentencing by the

mother of a patient, when Sicher gave wristbands to two girls who

sold them to raise money for the charity. The disbursement of a

fundraising item, and the subsequent theft of the money raised, does

not reflect the use, especially not the authorized use, of

managerial discretion. Nothing in the record indicates that Sicher

planned, designed, or developed the bracelet fundraiser.

f. Sicher "also exercised discretion as to what
fundraisers would be held in CGF's name, not even disclosing them
to Dr. Walton."

Nowhere does the record support the contention that Sicher

exercised discretion about what fundraisers would be held. The

majority apparently draws this conclusion from the testimony about

a birthday party held by a former member of the CGF's Board of

Directors, who said at sentencing:

[M]y husband and I had a birthday party in our home and
every guest there donated money to the foundation,
directly to the foundation. But, Dr. Walton never heard
of this. Because, the defendant decided rather than to
give this money to research and to study, she would put
it in her own pocket. She would steal from my children,
from all of these children.

-39-
This testimony describes Sicher's use of the birthday party to steal

money, not her exercise of discretion in planning and implementing

the party. Nor does the testimony support the more general

conclusion that anything about Sicher's position -- explicitly or

implicitly -- gave her authority to use discretion about what

fundraisers to hold.

g. "Regardless of defendant's title, she essentially
acted as the director of the CGF."

As I have indicated, the facts belie this wishful

characterization. Strikingly, Sicher was paid only an additional

$150 per month for her work on behalf of the CGF. That modest

increment is not surprising. Contrary to the majority's

suggestions, the record does not indicate that appellant made any

decisions on behalf of the CGF, such as determining how to

fundraise, setting financial goals, or choosing how to spend its

money. She did not have authority to write checks, prepare the

budget, or supervise employees. Appellant's position at the CGF

afforded her access to the funds she ultimately stole, but it did

not require the exercise of managerial discretion.

2. Legal Errors

The majority's opinion attempts to draw too certain a

connection between the lack of supervision and the exercise of

discretion. The government makes the same error in its brief,

suggesting that the section 3B1.3 enhancement was appropriate

because of Sicher's lack of supervision and her close relationship

-40-
with Dr. Walton and the families who visited his office. It is true

that lack of supervision often characterizes positions that require

the exercise of managerial discretion. The guideline commentary

makes that very point: "[p]ersons holding such positions ordinarily

are subject to significantly less supervision than employees whose

responsibilities are primarily non-discretionary in nature."

U.S.S.G. § 3B1.3 cmt. n.1. It does not follow from that

observation, however, that lack of supervision of an employee means

that the employee is necessarily authorized or expected to exercise

professional or managerial discretion. In some circumstances, the

ministerial nature of the task may not justify much supervision.

Although the guideline requires the exercise of managerial or

professional discretion to apply the enhancement, it only suggests

that lack of supervision is one way to detect whether that

discretion exists. The majority asserts the opposite, concluding

that Sicher "in fact exercised considerable authority and discretion

as to CGF; this is necessarily so, as she was unsupervised in a

number of tasks as to receipt and disbursement of funds."

Likewise, the majority makes the error of equating simple trust

with a section 3B1.3 "position of trust," a link long rejected by

this circuit. See Reccko, 151 F.3d at 31. The majority states

that, "[w]ith growing trust by an employer, and/or victim, an

employee may be in fact given increasing levels of responsibility

and discretion over time [] such that the position becomes one

-41-
'characterized by professional or managerial discretion' without any

change in title.'" That observation may be apt in some

circumstances, but the record does not support it here. Sicher had

access to the finances of the CGF and the medical office because she

was trusted, but she was not permitted to exercise her discretion

over those finances.16

The majority also embraces the government's argument that our

decision in O'Connell, 252 F.3d 524, supports its contention that

Sicher's close relationships with Dr. Walton and the families of his

patients transformed her role into a "position of trust" within the

meaning of section 3B1.3. The majority describes O'Connell as

holding that "the closeness of the relationship between the

defendant and the victim supported the district court's finding that

the defendant occupied a position of trust." While that is true,

our decision in that case critically depended on the trusted

relationship in combination with the defendant's "unfettered access

to an $850,000 line of credit" which he had "authority to transfer

16
The Second Circuit has more recently relied on the
proposition that "applicability of a § 3B1.3 enhancement turns on
'the extent to which the position provides the freedom to commit a
difficult-to-detect wrong.'" United States v. Allen, 201 F.3d 163,
166 (2d Cir. 2000) (quoting United States v. Viola, 35 F.3d 37, 45
(2d Cir. 1994); see also United States v. Laljie, 184 F.3d 180,
195-96 (2d Cir. 1999). We have explicitly rejected that
proposition. See Parilla-Román, 485 F.3d at 191; Reccko, 151 F.3d
at 33 ("It is true that in dealing with the position-of-trust
enhancement courts occasionally have emphasized the employee's
freedom to commit wrongs that defy facile detection. But these
decisions deal with earlier versions of § 3B1.3 and, thus, antedate
the Sentencing Commission's emphasis on managerial or professional
discretion . . . .").

-42-
. . . to the checking account." Id. at 529. We stated that "the

authority to draw off the account suggests significant managerial

discretion," a conclusion that was bolstered by the district court's

finding that the defendant had a close personal relationship that

led to "more autonomy for O'Connell." Id. We can accept that

Sicher's close, trusted relationships with Dr. Walton and the

families of his patients were comparable to the family-like

relationship of O'Connell with his employer, and that this closeness

gave Sicher access to money that she could embezzle. However,

unlike O'Connell, appellant had no ability to exercise decision-

making authority in her position as administrative assistant to the

CGF.17

III.

There is no question that appellant committed a terrible

"betrayal of trust" within the colloquial understanding of that

phrase. Dr. Walton trusted her to deposit income into the medical

office's account, and his young patients and their families trusted

that the CGF would benefit from the donations they gave to her for

safekeeping and deposit. At sentencing, Dr. Walton and parents of

17
Importantly, we remarked in O'Connell that, taken alone,
O'Connell's lack of legal signatory authority on the company's
checking account, and the fact that he clearly exceeded his
authority by writing checks to himself, would have suggested "that
it was not professional discretion that facilitated the commission
of O'Connell's crimes, but merely his access to the [company]
checkbook." 252 F.3d at 528. In this sense, Sicher's situation is
comparable to O'Connell's: she had access to the office and CGF
checking accounts, but no signatory authority on either account.

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his patients described the detrimental effect of appellant's

betrayal on their ability to trust others. The district court

described her breach of trust as "egregious" and "an amazing

violation of trust," and I agree.

"The sentencing guidelines, however, create their own

vocabulary -- and the guidelines sometimes define terms in ways that

might strike lay persons as peculiar. So it is here: in the idiom

of the sentencing guidelines, the term 'position of public or

private trust' has a special meaning." Reccko, 151 F.3d at 31. As

the application notes explain, the position-of-trust enhancement

applies only to those positions "characterized by professional or

managerial discretion (i.e., substantial discretionary judgment that

is ordinarily given considerable deference)." U.S.S.G. § 3B1.3 cmt.

n.1. Even accepting all of the objective facts set forth in the PSR

and elsewhere in the record as true (as the district court was

entitled to do in the absence of any challenge to them), the facts

are insufficient to support the imposition of the position of trust

enhancement because they do not indicate that appellant had a

position that afforded her discretion. If one looks beyond the

PSR's conclusory assertion that appellant had discretion "to run the

financial and administrative affairs of the office," and the

district court's unexplained application of the position of trust

enhancement, the record does not reveal any tasks requiring the

exercise of judgment and the decisionmaking authority that are the

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essence of managerial discretion within the meaning of the

guideline. See Tiojanco, 286 F.3d at 1021. Instead, one finds only

ministerial tasks and the exercise of social skills.

Unfortunately, in an effort to affirm the district court, the

majority has significantly diluted the guidelines' concept of

professional and managerial discretion. Moreover, contrary to our

precedent, the majority comes perilously close to equating lack of

supervision with the exercise of discretion. Thus, the majority's

conclusion that the application of the position of trust enhancement

was proper in this case represents a sharp departure from our

precedent and the once coherent body of law that applied to this

issue. I respectfully dissent.

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