PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 10-4493
TIFFANIE ANITA BRACK,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Thomas D. Schroeder, District Judge.
(1:08-cr-00471-TDS)
Argued: May 10, 2011
Decided: July 5, 2011
Before TRAXLER, Chief Judge, and AGEE and
DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opin-
ion, in which Chief Judge Traxler and Judge Diaz joined.
COUNSEL
ARGUED: Leslie Carter Rawls, Charlotte, North Carolina,
for Appellant. Frank Joseph Chut, Jr., OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Caro-
lina, for Appellee. ON BRIEF: John W. Stone, Jr., Acting
2 UNITED STATES v. BRACK
United States Attorney, Greensboro, North Carolina, for
Appellee.
OPINION
AGEE, Circuit Judge:
By posing as a bail bondsman at a North Carolina jail, Tif-
fanie Brack secured identifying information, cash, and the
title to two properties from William Sapp, an octogenarian
attempting to post bond for his granddaughter. Using Sapp’s
identifying information, Brack obtained multiple lines of
credit that she used to make various purchases. Brack was
subsequently arrested and pled guilty to one count of wire
fraud and one count of aggravated identity theft. See 18
U.S.C. §§ 1343 & 1028A(a)(1). At sentencing, the district
court applied an abuse-of-trust enhancement to Brack’s
Guidelines offense level based on her purported position as a
bail bondsman. See United States Sentencing Guidelines
("U.S.S.G.") § 3B1.3. Brack now challenges that ruling on
appeal. For the reasons stated herein, we affirm the judgment
of the district court.
I.
William Sapp traveled to a jail in Greensboro, North Caro-
lina to post bail for his granddaughter, Renee Staton. Once
there, Sapp was approached by Tiffanie Brack, who falsely
presented herself as a licensed bail bondsman in North Caro-
lina. Brack offered to help Sapp obtain Staton’s release but
stated that she first required Sapp’s social security card, driv-
er’s license, and ATM card. Sapp provided these items to
Brack with the expectation that she would return them after
making copies.
On two subsequent occasions, Brack requested Sapp pro-
vide collateral to secure his granddaughter’s bond. Sapp first
UNITED STATES v. BRACK 3
gave Brack "a bag full of money" containing at least $16,568
in cash. Joint Appendix ("J.A.") at 157. Brack later indicated
to Sapp that more collateral was required in order to bond out
Staton. When Sapp explained that his savings were exhausted,
Brack asked whether he owned any real property. She then
accepted the deeds to two properties Sapp owned in lieu of a
second cash payment. Although Brack then attempted to sell
both properties, her efforts were unsuccessful.
Brack’s dealings with Sapp continued after these initial
transfers of assets. Brack began to call Sapp "daddy" or
"granddaddy" and occasionally asked him to accompany her
on shopping trips. On one occasion, Sapp accompanied Brack
when she used a line of credit opened in Sapp’s name to pur-
chase a Chihuahua for herself. Sapp also traveled with Brack
to a meeting with a car salesman during which Sapp signed
a $49,937 loan agreement that Brack used to buy a Land
Rover. At the time authorities interviewed Sapp about these
later transactions, he was eighty years old and did not remem-
ber either event. Sapp clearly stated, however, that he "never
gave [Brack] permission to use his identity or other informa-
tion to apply for, obtain, or use any credit cards, lines of
credit, or automobile loans." Id.
Authorities obtained a warrant to search Brack’s residence
and uncovered a record of Sapp’s social security number and
date of birth, as well as the deeds to Sapp’s two properties.
Evidence in the home revealed that Brack used Sapp’s identi-
fying information to establish two lines of credit on which she
incurred $9,398.31 in charges. In addition, investigators dis-
covered that Brack made $1,058.27 in purchases using a
fraudulently obtained debit card linked to Sapp’s checking
account. Further evidence demonstrated that Sapp was not
Brack’s only victim, as she had obtained and used identifying
and financial information belonging to a number of other per-
sons.
4 UNITED STATES v. BRACK
II.
A grand jury ultimately issued a superseding indictment
charging Brack with nine counts of aggravated identity theft,
see 18 U.S.C. § 1028A(a)(1), four counts of bank fraud, see
18 U.S.C. § 1344(1), one count of social security fraud, see 42
U.S.C. § 408(a)(7)(B), four counts of unauthorized use of an
access device, see 18 U.S.C. § 1029(a), and two counts of
wire fraud, see 18 U.S.C. § 1343. Pursuant to a written plea
agreement, Brack agreed to plead guilty to one count of wire
fraud and one count of aggravated identity theft. Both of these
charges were predicated on Brack’s transmission of a fraudu-
lent credit application containing Sapp’s identifying informa-
tion. In return, the Government moved to dismiss the
remaining counts of the superseding indictment.
As the crime of aggravated identity theft carries a manda-
tory, two-year sentence consecutive to "any other term of
imprisonment . . . under any other provision of law," 18
U.S.C. § 1028A(b)(2), the Presentence Investigation Report
("PSR") focused solely on calculating Brack’s offense level
for purposes of the wire fraud count. That count carries a base
offense level of 6, which the PSR adjusted upward on three
separate grounds: (1) a 12-level enhancement based on the
amount of loss, (2) a 2-level vulnerable-victim enhancement,
and (3) a 2-level enhancement for abusing a position of public
or private trust. Brack then received a 3-level downward
adjustment based on her acceptance of responsibility, result-
ing in a total offense level of 19. In tandem with Brack’s
criminal history category of IV, an offense level of 19
resulted in an advisory Guidelines range of 46 to 57 months’
imprisonment.
At sentencing, Brack made several objections to the PSR’s
calculation of the appropriate amount of loss.1 She did not,
1
The district court accepted one of Brack’s arguments after the Govern-
ment stipulated that Sapp transferred $16,568, rather than $34,000, in cash
to Brack. Because this amendment of the PSR is not relevant to the issue
presented on appeal, we do not further discuss it.
UNITED STATES v. BRACK 5
however, challenge the PSR’s inclusion of the 2-level,
offense-level enhancement for abusing a position of public or
private trust. The district court subsequently adopted the
PSR’s recommended Guidelines range on the wire fraud
count of 46 to 57 months’ imprisonment.
After considering the 18 U.S.C. § 3553(a) factors, the dis-
trict court varied upward, imposing a 70-month sentence on
the wire fraud count. The court based this 13-month increase
above the top of the applicable Guidelines range on "the
extensive breadth of [Brack’s] fraudulent activity," her "total
disregard for the rights of others," and "the enormity of the
financial loss" resulting from her crimes, which "includ[ed]
the taking of properties from an 80-year-old man under false
pretenses." J.A. at 131. Brack consequently received a total
sentence of 94 months’ imprisonment, as her conviction for
aggravated identity theft carried the mandatory, consecutive
term of imprisonment of 24 months.
III.
On appeal, Brack recognizes that an abuse-of-trust
enhancement may apply to an imposter, provided she claims
to hold a position of public or private trust. Brack disputes,
however, that a bail bondsman occupies such a position. She
contends that a bail bondsman in North Carolina "engages in
an arms-length commercial relationship with [her] customers,
and does not occupy a position of trust." Opening Br. at 8.
Accordingly, Brack argues that "[a]ny trust between Ms.
Brack and Mr. Sapp" is attributable to "Ms. Brack’s personal-
ity and Mr. Sapp’s credulity," not Brack’s purported position
as a licensed bail bondsman. Id. Brack accordingly requests
that we vacate her sentence and remand for "resentencing
without the two-level offense level increase" for abusing a
position of public or private trust. Id. at 15.
In response, the Government notes that Brack failed to
challenge the applicability of the abuse-of-trust enhancement
6 UNITED STATES v. BRACK
before the district court. It consequently argues that our
review is only for plain error. Under these facts, the Govern-
ment contends no error, plain or otherwise, occurred because
"the adjustment [was] appropriate." Response Br. at 9. The
Government makes two primary arguments in support of its
position. First, "[i]n North Carolina, [a] bail bondsman’s rela-
tionship with h[er] client [has] some of the legal aspects of a
fiduciary or trustee." Id. at 12.
Second, "the issue of whether a defendant held a position
of trust must be examined from the perspective of the victim."
Id. The Government contends that Sapp believed "Brack held
a position of trust as a licensed bail bondsman — one who
had the ability to help him secure the release of his grand-
daughter." Id. Thus, the relationship Brack formed with Sapp
was predicated on her purported role as a bail bondsman, not
extraneous considerations such as "Brack’s personality or
Sapp’s credulity." Id. at 14. For example, "Brack was able to
approach Sapp because she presented herself as a bail bonds-
man" and Sapp later "provided cash, property and his personal
information" to Brack only after she "told him [these items]
were needed [to secure a] bond." Id. The Government accord-
ingly requests we affirm Brack’s sentencing enhancement for
abuse of trust.
IV.
We normally review de novo the district court’s legal con-
clusion regarding the application of an abuse-of-trust
enhancement, whereas we review the court’s accompanying
factual findings only for clear error. See United States v.
Caplinger, 339 F.3d 226, 235-36 (4th Cir. 2003). Appellate
review of a sentence is generally waived, however, "when [a]
defendant fails to object to [her] sentence calculation in the
district court." United States v. Grubb, 11 F.3d 426, 440 (4th
Cir. 1993). In this case, Brack failed to object to application
of the abuse-of-trust enhancement at sentencing.
UNITED STATES v. BRACK 7
Our review of the district court’s application of the abuse-
of-trust enhancement is consequently for plain error, a stan-
dard which requires Brack to establish (1) an error, (2) that is
plain, that not only (3) affects her substantial rights, but also
(4) seriously affects the fairness, integrity, or public reputa-
tion of judicial proceedings. See United States v. Dawson, 587
F.3d 640, 645 (4th Cir. 2009). An error is "plain" when it is
"obvious or clear under current law." United States v. Knight,
606 F.3d 171, 177 (4th Cir. 2010). To prevail on appeal,
Brack must consequently show that "the settled law of the
Supreme Court or this circuit establishes" the district court
erred in imposing a sentencing enhancement for abuse of
trust. United States v. Neal, 101 F.3d 993, 998 (4th Cir. 1996)
(quotation omitted).
V.
Under § 3B1.3 of the Sentencing Guidelines, a 2-level,
offense-level enhancement applies if a defendant "abuse[s] a
position of public or private trust . . . in a manner that signifi-
cantly facilitate[s] the commission or concealment of the
offense." The abuse-of-trust enhancement applies to impos-
ters, so long as "the defendant provides sufficient indicia to
the victim that the defendant legitimately holds a position of
private or public trust."2 U.S.S.G. § 3B1.3 cmt. n.3. This is so
because "[i]n making the misrepresentation, the defendant
assumes a position of trust, relative to the victim, that pro-
vides the defendant with the same opportunity to commit a
difficult-to-detect crime that the defendant would have had if
the position were held legitimately." Id.
2
"The Guidelines’ policy statements and commentary are generally enti-
tled to treatment as authoritative guides with controlling weight, unless
they are inconsistent with a statute or the Sentencing Guidelines them-
selves." United States v. Abdelshafi, 592 F.3d 602, 611 n.9 (4th Cir. 2010)
(quotation and alteration omitted). We accordingly give due weight to
§ 3B1.3’s application note 1.
8 UNITED STATES v. BRACK
A.
In this case, Brack does not contest the fact that she pro-
vided Sapp with sufficient indicia for him to conclude she was
a duly licensed bail bondsman. Her sole argument on appeal
is that bail bondsmen in North Carolina do not occupy a posi-
tion of public or private trust as a matter of law. Such a posi-
tion of trust is generally "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. Our precedent makes clear, however, that a
defendant’s lack of "complete discretion" does not preclude
the application of an abuse-of-trust enhancement, provided
she "holds some substantial degree of trust." United States v.
Gordon, 61 F.3d 263, 269 (4th Cir. 1995).
We have long since "rejected a mechanistic approach to the
abuse of trust enhancement that excludes defendants from
consideration based on their job titles." United States v.
Akinkoye, 185 F.3d 192, 203 (4th Cir. 1999). Instead, our
inquiry consists of "an individualized determination of each
defendant’s culpability." United States v. Moore, 29 F.3d 175,
179 (4th Cir. 1994). In assessing individual culpability under
§ 3B1.3, we adopt "the perspective of the victim," not that of
the defendant. United States v. Abdelshafi, 592 F.3d 602, 611
(4th Cir. 2010).
Two requirements must be met before the abuse-of-trust
enhancement can be properly said to apply to a given defen-
dant. First, the defendant must occupy and "abuse[ ] a posi-
tion of public or private trust." U.S.S.G. § 3B1.3. If the nature
of the defendant’s position is in doubt, three primary factors
inform our inquiry as to whether the defendant held a position
of trust: (1) whether the defendant had special duties or access
to information not available to other employees, (2) the extent
of the defendant’s discretion, and (3) whether the defendant’s
acts indicate she is more culpable than similarly situated crim-
inal actors. See Akinkoye, 185 F.3d at 203.
UNITED STATES v. BRACK 9
Second, the defendant’s abuse of trust must "significantly
facilitate[ ] the commission or concealment of the offense."
U.S.S.G. § 3B1.3. In other words, the "position of public or
private trust must . . . contribute[ ] in some significant way to
facilitating the commission or concealment of the" defen-
dant’s underlying crime. Id. § 3B1.3 cmt. n.1. A position of
trust may "significantly contribute" to the defendant’s execu-
tion or obfuscation of the offense simply "by making the
detection of the offense or the defendant’s responsibility for
the offense more difficult." Id.
Indeed, the central purpose of § 3B1.3 is to "penalize[ ]
defendants who take advantage of a position that provides
them with the freedom to commit a difficult-to-detect wrong."
United States v. Bollin, 264 F.3d 391, 415 (4th Cir. 2001)
(quotation omitted). The abuse-of-trust enhancement accord-
ingly applies when a "victim’s trust is based on the defen-
dant’s [unique] position," but not when "trust is created" in an
"arms-length commercial relationship[ ]" based on "the defen-
dant’s personality or the victim’s credulity." Id. (quotation
omitted). It is thus clear that "fraud alone does not justify the
enhancement." Id. Before imposing a § 3B1.3 enhancement,
courts consequently look for evidence indicating "a fiduciary
or personal trust relationship" exists between the victim and
the defendant. Caplinger, 339 F.3d at 237 (quotation omitted).
B.
To determine whether Brack assumed a position of trust in
relation to Sapp by posing as a licensed bail bondsman, we
first examine the legal responsibilities North Carolina
imposes upon members of that field. Our review of the rele-
vant statutory provisions makes clear that bail bondsmen in
North Carolina are subject to a comprehensive system of state
regulation. Professional bail bondsmen, for example, are
required to apply for and obtain a license from the North Car-
olina Commissioner of Insurance ("the Commissioner"), who
is entitled to "propound any reasonable interrogatories to an
10 UNITED STATES v. BRACK
applicant" concerning "the applicant’s qualifications, resi-
dence, prospective place of business, and any other matters
that the Commissioner considers necessary to protect the pub-
lic and ascertain the qualifications of the applicant." N.C.
Gen. Stat. § 58-71-40(b). Qualifications for licensure are
established by statute and require applicants to undergo a
criminal history check and meet other requirements related to
age, education, residency, and training. See id. § 58-71-50.
Once an individual acquires a bail bondsman license, she
is required to "maintain a deposit of securities with . . . the
Commissioner of a fair market value of at least one-eighth the
amount of all bonds or undertakings written in th[e] State." Id.
§ 58-71-145. Any collateral a bail bondsman accepts must
similarly be assured by "a written receipt" and must "be held
and maintained in trust." Id. § 58-71-100. If collateral takes
the form of a "cash or check or other negotiable instrument,"
it must be deposited "within two banking days after receipt,
in an established, separate noninterest-bearing trust account in
any bank located in North Carolina." Id. Bail bondsmen are
prohibited from "commingl[ing]" these "trust account funds
. . . with other operating funds," id., and must keep "[a]ll
records related to" their business separate and intact "for not
less than three years." Id. § 58-71-168.
From this brief overview of the relevant legal framework,
it is clear that licensed bail bondsmen in North Carolina hold
a position of public trust that entails the assumption of certain
fiduciary duties to their clients. This fact is most clearly evi-
dent when one considers the North Carolina statutes related to
bail bondsmen’s handling of collateral. One traditional hall-
mark of a "fiduciary" relationship is the "exercise [of] a high
standard of care in managing another’s money or property."
Black’s Law Dictionary (9th ed. 2009). North Carolina law
holds bail bondsmen to just such a standard in the handling
of collateral deposited to secure their services.
Indeed, bail bondsmen in North Carolina are held to a stan-
dard of care that is remarkably similar to the standard attor-
UNITED STATES v. BRACK 11
neys, as fiduciaries, must adhere to in managing the property
of clients. The American Bar Association’s Model Rule of
Professional Conduct 1.15, for instance, requires not only that
a lawyer "hold property of clients . . . separate from the law-
yer’s own property. . . . in a separate account maintained in
the state where the lawyer’s office is situated," but also that
"[c]omplete records of such account funds and other property
. . . be kept by the lawyer and . . . preserved for" five years.
Licensed bail bondsmen in the State of North Carolina occupy
a position that carries essentially the same fiduciary obliga-
tions. Cf. N.C. Gen. Stat. §§ 58-71-100 & 58-71-168. We
therefore conclude that Brack represented herself to Sapp as
holding "a position of public or private trust" within the
meaning of U.S.S.G. § 3B1.3.
Of course, the fact that Brack assumed a position of trust
in relation to Sapp is not alone sufficient to justify a § 3B1.3
sentencing enhancement. That position must also have "sig-
nificantly facilitated the commission or concealment of
[Brack’s] offense." U.S.S.G. § 3B1.3. Under the facts of this
case, we conclude that standard is met. Not only did Brack’s
purported position as a bail bondsman provide a seemingly
valid basis for her to make initial contact with Sapp at the jail,
it also allowed Brack to secure Sapp’s identifying information
without revealing her criminal intent. Brack later used that
identifying information to complete the fraudulent credit
application that formed the factual predicate for her wire-
fraud offense. Claiming the office of a licensed bail bondsman
thus "contributed in [a] significant way to facilitating the
commission [and] concealment of [Brack’s] offense," as it
made "detection of the offense" considerably "more difficult."
U.S.S.G. § 3B1.3 cmt. n.1.
To circumvent this conclusion, Brack analogizes the facts
of this case to those of United States v. Caplinger, 339 F.3d
226 (4th Cir. 2003). Caplinger involved a defendant who
induced his victims to invest in a fraudulent pharmaceutical
scheme by posing as an accomplished physician. See id. at
12 UNITED STATES v. BRACK
229-30. The district court applied a § 3B1.3 enhancement
based on the conclusion that Caplinger thereby abused a posi-
tion of trust. See id. at 232. On appeal, this Court concluded
that "the fact that Caplinger posed as a physician d[id] not by
itself mean that he occupied a position of trust." Id. at 237.
"Caplinger did not assume a physician-patient relationship
with any of the victims." Id. The investors’ trust in Caplinger
therefore could not have been "based on a[ny] special rela-
tionship he had with them as a physician;" instead, it derived
from Caplinger’s "entrepreneurial" representations concerning
the "project’s potential for success." Id. Because these repre-
sentations took place in the context of an "arms-length com-
mercial" transaction, they did not implicate "a fiduciary or
personal trust relationship." Id. (quotation omitted). This
Court therefore concluded that Caplinger did not abuse a
"‘position of trust’" within the meaning of § 3B1.3. Id. at 238.
We find Brack’s reliance on Caplinger misplaced.
Caplinger never entered into a physician-client relationship
with his victims and thus avoided forming a "fiduciary or per-
sonal trust relationship." Id. at 237 (quotation omitted). Con-
sequently, we could not conclude that Caplinger took
advantage of a fiduciary or trust relationship "to perpetrate or
conceal [his] offense." Id. (quotation omitted).
Conversely, Brack’s initial relationship with Sapp was
predicated solely on her purported position as his bail bonds-
man, a position we have already recognized entails certain
fiduciary obligations. Brack then actively employed the legiti-
macy conferred by this unique position to commit and conceal
her offense. Under these facts, the rationale of Caplinger sim-
ply does not apply.
We also reject Brack’s suggestion that subsequent events
demonstrate her trust relationship with Sapp was predicated
on her "personality" and Sapp’s "credulity," not her purported
position as a licensed bail bondsman. Id. (quotation omitted).
UNITED STATES v. BRACK 13
Section 3B1.3 does not require that a position of trust further
a defendant’s every unlawful act. The guideline simply
requires that a position of trust "significantly facilitate[ ] the
commission or concealment of the offense." U.S.S.G. § 3B1.3
(emphasis added). Because it is undisputed that Brack gained
initial access to Sapp’s personal information by posing as a
bail bondsman and later used this information to commit her
wire-fraud offense, that standard is clearly met here. Accord-
ingly, the district court did not err, plainly or otherwise, in
imposing a § 3B1.3 enhancement for abuse of trust.
VI.
For all of the foregoing reasons, we affirm the judgment of
the district court.
AFFIRMED