In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3086
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
THOMAS ANDERSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 850--Elaine E. Bucklo, Judge.
ARGUED JUNE 4, 2001--DECIDED August 6, 2001
Before RIPPLE, EVANS and WILLIAMS, Circuit
Judges.
RIPPLE, Circuit Judge. Thomas Anderson
was charged with embezzling and wilfully
misapplying $30,650 belonging to TCF
National Bank ("TCF") in Hickory Hills,
Illinois, in violation of 18 U.S.C. sec.
656. Mr. Anderson pleaded guilty to the
indictment. The district court sentenced
him to 41 months’ imprisonment, four
years’ supervised release, and a $100
special assessment. The court also
ordered him to make restitution in the
amount of $62,627.58. Mr. Anderson now
appeals various aspects of his sentence.
For the reasons set forth in the
following opinion, we affirm the judgment
of the district court.
I
BACKGROUND
A. Facts
Mr. Anderson was employed as an
assistant branch manager at TCF from
January 1999 through May 1999. In that
position, he had access to and control
over all TCF customer accounts and access
to information relating to bank
customers, such as their addresses, dates
of birth, account activity and account
balances. Additionally, as an assistant
branch manager, Mr. Anderson also was
able to withdraw amounts in excess of
$1,000 from TCF accounts without
permission from a supervisor. Ordinary
bank tellers had no such authority. While
at the bank, Mr. Anderson also supervised
a number of bank tellers, including
Laurie Mullen and Alia Shehadi. During
this time period, Shehadi was seventeen
years old.
On March 26, 1999, Lottie Wasserbauer,
an 85-year-old TCF customer, came to the
bank to withdraw money from her account.
Mr. Anderson processed this withdrawal
personally. Wasserbauer wished to
withdraw only $1,000 from the account,
but Mr. Anderson altered the withdrawal
slip so that $7,000 was withdrawn instead
and kept the extra money for himself.
Over a period of time lasting until May
20, 1999, Mr. Anderson made eight more
unauthorized withdrawals from
Wasserbauer’s account. To do so, Mr.
Anderson would take a cash deposit
received from a customer and credit it to
the appropriate account, but would
actually embezzle the money in whole or
in part and, in order to balance the TCF
general ledger, would debit Wasserbauer’s
account in the amount that he had
embezzled. In total, Mr. Anderson
withdrew $30,650 from the account.
Mr. Anderson hid the proceeds from these
unauthorized withdrawals in two ways. He
opened a TCF account in the name of his
brother, Joel Anderson, and deposited
some of the money in that account. He
then wire transferred a portion of those
funds to an account in the name of Joel
Anderson at the First National Bank of
Omaha in Omaha, Nebraska. Additionally,
Mr. Anderson deposited a portion of the
Wasserbauer funds into a CD account that
he established in a friend’s name. In
pleading guilty, Mr. Anderson admitted
that he used all of the proceeds from
these unauthorized withdrawals for his
personal benefit.
B. District Court Proceedings
After Mr. Anderson pleaded guilty to the
charge in the indictment, the district
court held a sentencing hearing on August
2, 2000. At that time, the Government
presented as relevant conduct evidence of
two types of additional unauthorized
withdrawals, both of which it claimed
were made by Mr. Anderson. First, the
Government presented evidence that Mr.
Anderson, on his own or with the help of
unsuspecting tellers, made unauthorized
withdrawals from the CD accounts of
another elderly TCF customer, 88-year-old
Bertha Kern. Additionally, the Government
presented evidence that Mr. Anderson used
unwitting TCF tellers to make two
additional withdrawals from the
Wasserbauer account and then kept the
money for himself.
At the sentencing hearing, Mr. Anderson
testified that from March 26, 1999 to May
20, 1999, he took $30,650 from
Wasserbauer’s account. He explained that
he used his teller identification number
to make each of the unauthorized
withdrawals and that he performed the
transactions on his own. Mr. Anderson
explained that, while processing
Wasserbauer’s withdrawal when she visited
the bank on March 26, 1999, he asked if
she would like to move her money to an
account that would produce a greater
return. Wasserbauer declined the offer.
Nevertheless, Mr. Anderson stated that he
then determined to move Wasserbauer’s
money into higher-yielding CD and
brokerage accounts. He testified that he
intended only to keep the interest that
those accounts generated and that he
planned to eventually return all of the
money that he had taken from Wasserbauer
to her account at TCF. Mr. Anderson
further explained that the FBI met with
him on June 9, 1999, and informed him
that they suspected that he had embezzled
the Wasserbauer funds. After that
meeting, Mr. Anderson returned all of the
money he had taken from Wasserbauer’s
account to the bank. He claimed that he
was not responsible for either the
unauthorized withdrawals from the Kern
accounts or the two additional
unauthorized $1,000 withdrawals from the
Wasserbauer account that involved the use
of bank tellers.
At the conclusion of the sentencing
hearing, the district court determined
that the Government had proven by a
preponderance of the evidence that Mr.
Anderson was responsible for the
unauthorized withdrawals from the Kern
account and the two additional
unauthorized withdrawals from the
Wasserbauer account. It therefore treated
these actions as relevant conduct for
sentencing purposes. Additionally, the
court found that Mr. Anderson had lied
under oath when he (1) denied that he was
responsible for that relevant conduct and
(2) testified that he always had intended
to return the funds from the unauthorized
Wasserbauer withdrawals that were charged
in the indictment. As a result, the court
imposed a two-level enhancement for
obstruction of justice under U.S.S.G.
sec. 3C1.1. Due to its finding of
perjury, the court also declined to grant
Mr. Anderson a three-level reduction in
his sentence for acceptance of
responsibility under U.S.S.G. sec. 3E1.1.
Next, the court determined that it also
would enhance Mr. Anderson’s sentence two
levels for the abuse of a position of
trust under U.S.S.G. sec. 3B1.3. It noted
that Mr. Anderson’s position as an
assistant branch manager allowed him the
discretion to make withdrawals in excess
of $1,000 from Wasserbauer’s account
without supervision, authority that made
his crime easier to accomplish. Lastly,
the court found that a two-level
enhancement under U.S.S.G. sec. 3B1.4 for
the use of a minor to commit a crime also
was proper because Mr. Anderson had used
Shehadi, then seventeen years old, to
unwittingly make unauthorized withdrawals
for his benefit from the Wasserbauer and
Kern accounts.
As a result of these findings and other
enhancements not challenged here, the
district court sentenced Mr. Anderson to
41 months’ imprisonment, four years of
supervised release, and a $100 special
assessment. The court also directed him
to make restitution in the amount of
$62,627.58. Mr. Anderson now appeals
various aspects of his sentence.
II
DISCUSSION
A. Relevant Conduct
Mr. Anderson first challenges the
district court’s finding that he was
responsible for the withdrawals from the
Kern accounts and the two additional
withdrawals from the Wasserbauer account
that the Government offered as relevant
conduct.
1.
A district court employs a preponderance
of the evidence standard in making the
factual finding that a defendant has
engaged in relevant conduct. See United
States v. Ofcky, 237 F.3d 904, 908 (7th
Cir. 2001). However, Mr. Anderson
contends that the court should have used
a clear and convincing evidence standard
in this case because the consideration of
the relevant conduct increased his
sentencing range from 12-18 months to 41-
51 months./1
We have noted that, perhaps in extreme
circumstances, an increase in a
defendant’s sentence might be so great as
to require the use of the more demanding
clear and convincing evidence standard of
proof for sentencing factors. See id. at
907-08. Nonetheless, in Ofcky, we also
explained that, when the consideration of
relevant conduct increased a defendant’s
sentence from a range of 18-24 months to
one of 37-46 months, an increase similar
to the one Mr. Anderson faced, that
increase was not an "extreme case"
requiring a higher standard of proof.
Ofcky, 237 F.3d at 908. Moreover, this
court has approved the use of the
preponderance of the evidence standard in
instances in which a sentence was
enhanced much more significantly than in
Mr. Anderson’s case./2 As a result, Mr.
Anderson’s situation is not that extreme
case that might warrant the use of a
higher standard of proof.
2.
Mr. Anderson also argues that, even
under a preponderance of the evidence
standard, the district court erred in
finding that he was responsible for the
relevant conduct attributed to him. We
review a district court’s sentencing
determination that uncharged activity
constitutes relevant conduct with great
deference, reversing only for clear
error. See Ofcky, 237 F.3d at 907; United
States v. Sykes, 7 F.3d 1331, 1335 (7th
Cir. 1993).
a.
We turn first to the unauthorized
withdrawals made from the accounts of TCF
customer Bertha Kern. On April 9, 1999,
the address on Kern’s CD accounts was
changed to that of an incorrect address
in a trailer park. Mr. Anderson’s teller
identification number appeared as the TCF
employee who processed that change of
address./3 The address change was not
authorized by Kern or by Elaine
Parrington, who had a power of attorney
to act for her. Subsequently, from
February 1999 to May 1999, fifteen
unauthorized withdrawals, each in amounts
greater than $1,000, were made from the
Kern accounts in amounts totaling
$60,627.58. In addition to the fact that
these withdrawals were performed without
the knowledge of Kern or Parrington,
other evidence suggested that the
transactions were illegitimate.
Typically, when a TCF bank customer
withdraws funds, a withdrawal slip exists
in the bank’s records for that
transaction; however, no withdrawal slips
were retained for any of the Kern
withdrawals. Notably, significant
evidence indicates that Mr. Anderson was
responsible for making these withdrawals
from the Kern accounts on his own or by
using unwitting bank tellers to do so for
his benefit.
First, evidence directly links Mr.
Anderson to unauthorized activity
regarding the Kern accounts. As we have
noted, Mr. Anderson’s teller number
appeared as the TCF employee who, without
authorization, changed the address on the
account to that of an incorrect
address./4 Moreover, of the fifteen
unauthorized withdrawals made from the
Kern accounts, Mr. Anderson’s teller
number appeared on two of them. This
evidence supports the conclusion that Mr.
Anderson embezzled these funds using the
same method that he used in the
Wasserbauer account withdrawals.
With regard to the other thirteen
withdrawals, twelve of which were
actually processed by TCF tellers and not
by Mr. Anderson, circumstantial evidence
suggested that Mr. Anderson ultimately
took those funds as well./5 The
Government contended that, for these
withdrawals, Mr. Anderson would prepare a
withdrawal slip to be made from the TCF
general ledger account in Wasserbauer’s
name and take the slip to one of the
bank’s tellers. The tellers, assuming Mr.
Anderson was withdrawing the money for a
client who was in his office, would then
give him cash in exchange for the slip.
Mr. Anderson would then keep the money
for himself. A number of facts support
the conclusion that these withdrawals
were made at Mr. Anderson’s direction.
Mr. Anderson was present in the bank on
the days when each of these withdrawals
was made. Moreover, teller identification
numbers for employees that Mr. Anderson
supervised appeared on twelve of these
withdrawals. Each of the withdrawals
involved sums greater than $1,000, and
TCF policy mandated that tellers could
not process transactions of that amount
without authorization from a supervisor.
Additionally, Shehadi testified that
tellers could not process withdrawals
from CD accounts like Kern’s without a
special access code provided by a
supervisor. Shehadi also testified that
she often processed withdrawals for Mr.
Anderson in her role as a teller and that
she did not take any of the Kern funds
for herself.
Moreover, the Kern withdrawals were
similar in some respects to the
unauthorized withdrawals from the Wasser
bauer account for which Mr. Anderson had
pleaded guilty. Not only did both sets of
transactions occur in the same time
frame, but they each involved the
accounts of elderly women with large
balances. Additionally, evidence directly
implicates Mr. Anderson in unauthorized
activity with regard to both accounts.
Unlike the Wasserbauer transactions for
which he pleaded guilty, Mr. Anderson did
not process all of the Kern withdrawals
himself, and the money from the Kern
transactions was not traced to him.
However, the evidence is more than
sufficient to demonstrate that the
district court did not clearly err in
attributing this conduct to Mr. Anderson.
b.
Mr. Anderson also contests the district
court’s finding that he was responsible
for the two additional withdrawals from
the Wasserbauer account that were not
charged in the indictment. The Government
demonstrated that on April 5, 1999,
$1,000 was withdrawn from the Wasserbauer
account by Shehadi and that on April 23,
1999, $1,000 was withdrawn from that
account by Mullen, another teller. These
two withdrawals were not authorized by
the account holder, and no withdrawal
slips were recorded for these
transactions, indicating the transactions
were fraudulent.
Once again, circumstantial evidence
suggests that it was Mr. Anderson who
asked the unsuspecting tellers to make
the withdrawals for him, but then kept
the money himself. As with the Kern
transactions, these two withdrawals were
made by tellers supervised by Mr.
Anderson, on days in which Mr. Anderson
was working at the bank. Because the
withdrawals were in amounts of $1,000,
Shehadi and Mullen would have needed a
supervisor’s permission to make them.
Both Mullen and Shehadi indicated that as
tellers, they often made similar
withdrawals for Mr. Anderson, and Shehadi
testified that she did not take any money
for herself from the Wasserbauer account.
In light of these facts, and the reality
that Mr. Anderson admitted to personally
making unauthorized withdrawals from the
same Wasserbauer account during that time
period, the district court did not
clearly err in determining that Mr.
Anderson was responsible for these
additional two withdrawals.
B. Obstruction of Justice and Acceptance
of Responsibility
The district court also determined that
Mr. Anderson had perjured himself and
therefore should receive a two-level
enhancement for obstruction of justice
under U.S.S.G. sec. 3C1.1. Specifically,
the court found that he lied when he (1)
denied that he caused the Kern
withdrawals and the additional
Wasserbauer withdrawals that were
presented as relevant conduct and (2)
claimed that he never intended to keep
the Wasserbauer funds that he was charged
with embezzling in the indictment.
A sentencing court may enhance a
defendant’s offense level under sec.
3C1.1 if "the defendant willfully
obstructed or impeded . . . the
administration of justice during the
course of the investigation, prosecution,
or sentencing." U.S.S.G. sec. 3C1.1. An
enhancement under U.S.S.G. sec. 3C1.1 for
perjury is appropriate when a "’witness
testifying under oath or affirmation . .
. gives false testimony concerning a
material matter with the willful intent
to provide false testimony, rather than
as a result of confusion, mistake, or
faulty memory.’" United States v.
Jefferson, 252 F.3d 937, 942-43 (7th Cir.
2001) (quoting United States v. Dunnigan,
507 U.S. 87, 94 (1993)); see also United
States v. Gage, 183 F.3d 711, 715 (7th
Cir. 1999).
Although it is advisable for a district
court to address each element of the
alleged perjury in a separate and clear
finding, all that is required to impose
the obstruction of justice enhancement on
perjury grounds is that the court make a
finding that encompasses the factual
predicates for a finding of perjury. See
United States v. White, 240 F.3d 656, 662
(7th Cir. 2001); United States v.
Freitag, 230 F.3d 1019, 1026 (7th Cir.
2000). We review de novo whether the dis
trict court made the appropriate findings
to support a sec. 3C1.1 enhancement for
perjury. See United States v. Turner, 203
F.3d 1010, 1020 (7th Cir. 2000). If the
appropriate findings are made, we review
the factual findings underlying the
district court’s determination that
perjury occurred for clear error. See id.
"We fully recognize that the district
judge was in the best position to
evaluate [Mr. Anderson’s] truthfulness
and we will not disturb [his] sentence
unless we are firmly convinced that the
sentencing judge was mistaken when he
determined that [Mr. Anderson] committed
perjury." United States v. Stokes, 211
F.3d 1039, 1044 (7th Cir. 2000)
(citations and quotation marks omitted).
Mr. Anderson argues that the court
clearly erred in determining that he
committed perjury at the sentencing
hearing./6
With regard to the district court’s
finding of perjury regarding the Kern
withdrawals and the additional
Wasserbauer withdrawals presented as
relevant conduct, we have previously
indicated that the court did not clearly
err in concluding that Mr. Anderson was
responsible for taking those funds. As a
result, we cannot agree with Mr. Anderson
that the district court clearly erred in
determining that his denial of that
conduct amounted to perjury.
Mr. Anderson also testified at the
sentencing hearing that, although he had
embezzled the funds from the Wasserbauer
account charged in the indictment, he
intended only to invest those funds "in
something that would make more money,
keep the percentage, and then repay
whatever I had taken out [of the
Wasserbauer account]." Tr. II at 92. The
district court found, however, that this
claim also amounted to perjury and
warranted the obstruction enhancement.
Ample evidence supported this finding.
For example, Mr. Anderson did not return
these funds to the bank until after the
FBI had visited him and indicated that it
knew that he had taken the money without
authorization. Moreover, Mr. Anderson
admitted that he had placed these funds
in accounts set up in the names of
relatives and that he had used the money
for his personal benefit. These facts
provide sufficient evidence to support a
finding that Mr. Anderson intended to
conceal these withdrawals and to
appropriate the money on a permanent
basis, and that he only returned the
funds when the authorities indicated that
they were aware of his wrongdoing. As a
result, the court’s finding of perjury in
this regard also supports the
enhancement.
Additionally, Mr. Anderson contests the
court’s denial of a three-level reduction
in his sentence for acceptance of
responsibility under U.S.S.G. sec. 3E1.1.
The court declined to grant this
reduction because it found that Mr.
Anderson had committed perjury as to the
matters we have just discussed. Whether a
defendant has accepted responsibility for
his actions is a factual question and one
that we review for clear error. See
United States v. Utecht, 238 F.3d 882,
888 (7th Cir. 2001); United States v.
Taliaferro, 211 F.3d 412, 414 (7th Cir.
2000).
When a sentencing court properly
enhances a defendant’s offense level
under U.S.S.G. sec. 3C1.1 for obstructing
justice, the defendant is presumed not to
have accepted respon-sibility for his
actions under the meaning of U.S.S.G.
sec. 3E1.1. See U.S.S.G. sec. 3E1.1,
Application Note 4; United States v.
Branch, 195 F.3d 928, 937 (7th Cir.
1999); United States v. Ewing, 129 F.3d
430, 435 (7th Cir. 1997). There may be
"extraordinary cases in which adjustments
under both sec.sec. 3C1.1 and 3E1.1 may
apply," U.S.S.G. sec. 3E1.1, Application
Note 4, such as when a defendant
obstructed justice at an early point, but
then later accepted responsibility and
cooperated fully, see United States v.
Lallemand, 989 F.2d 936, 938 (7th Cir.
1993) (explaining that a defendant can
obstruct or attempt to obstruct justice
at time "t" and later accept
responsibility at time "t + 1"). However,
Mr. Anderson does not contend that this
is such a case. Instead, he simply argues
that, because the district court
improperly found his statements to
warrant an enhancement for obstruction of
justice, the court erred in not granting
him a reduction for acceptance of
responsibility. In line with our
conclusion that the district court did
not err when it found that Mr. Anderson
had committed perjury at the sentencing
hearing, we also determine that it did
not clearly err in denying a reduction
under U.S.S.G. sec. 3E1.1.
C. Abuse of a Position of Trust
Mr. Anderson next contests the district
court’s finding that he "abused a
position of public or private trust" in
taking funds from the bank accounts of
others, a determination that resulted in
a two-level enhancement to his sentence.
U.S.S.G. sec. 3B1.3. We review the
sentencing court’s interpretation of the
meaning of "position of trust" de novo,
United States v. Hernandez, 231 F.3d
1087, 1089 (7th Cir. 2000), but review
only for clear error the court’s factual
finding that a defendant occupied and
abused a position of trust to facilitate
his offense, see United States v. Bailey,
227 F.3d 792, 801 (7th Cir. 2000).
In order for an enhancement for an abuse
of a position of trust to apply, "the
district court must find that: (1) the
defendant occupied a position of trust,
and (2) the defendant’s abuse of that
position of trust significantly
facilitated the commission of the crime."
United States v. Sonsalla, 241 F.3d 904,
909 (7th Cir. 2001). Mr. Anderson claims
that he did not occupy a position of
trust because his illegal conduct simply
involved his actions as a bank teller.
The commentary to U.S.S.G. sec. 3B1.3
notes that a position of trust is
"characterized by professional or
managerial discretion (i.e., substantial
discretionary judgment that is ordinarily
given considerable deference)"/7 but
specifically states that "[t]he
adjustment does not apply in the case of
an embezzlement or theft by an ordinary
bank teller . . . because such [a]
position[ is] not characterized" by the
possession of such discretion. U.S.S.G.
sec. 3B1.3, Application Note 1.
However, as the Government notes, Mr.
Anderson was an assistant branch manager
at TCF, not an ordinary bank teller. In
that position, Mr. Anderson had access to
any account in the bank system. As a
result, he had access to or authority
over valuable things, an indicator that
we previously have found to be a hallmark
of a position of trust. See Hernandez,
231 F.3d at 1089; Bailey, 227 F.3d at
801. More significantly, unlike an
ordinary bank teller, Mr. Anderson had
the authority to withdraw funds from TCF
accounts in amounts over $1,000 without
obtaining a supervisor’s permission.
Additionally, as a supervisor, Mr.
Anderson had knowledge of a code to
access CD accounts (such as the Kern
accounts), which ordinary bank tellers
did not possess. These attributes of his
position gave him substantial discretion
and responsibility, allowing him to
withdraw improperly large amounts of
money from any account in the bank
without coming under the scrutiny of
other bank employees. As a result, Mr.
Anderson’s job properly was considered a
position of trust within the meaning of
the guideline and our precedent. Cf.
Sonsalla, 241 F.3d at 909-10 (holding
that defendant’s position as bank vice
president, which allowed him knowledge of
the banking system and the operations of
the bank, as well as the ability to
oversee commercial and real estate loans
and to act as a compliance officer,
qualified as a position of trust);
Hernandez, 231 F.3d at 1091 (holding that
staff accountant for electronics
corporation who had autonomy in preparing
check requests, whose supervisors
virtually rubber-stamped his work and who
had ability to use routine forms to route
large payment checks directly into his
hands, occupied position of trust);
United States v. Dion, 32 F.3d 1147, 1150
(7th Cir. 1994) (noting that installment
loan officer who wrote fraudulent loans
that he used to pay personal obligations
occupied position of trust, as his
position enabled him to misapply funds
and conceal it without approval from
anyone)./8
Mr. Anderson also maintains that the
district court erred in applying this
enhancement because U.S.S.G. sec. 3B1.3
states that the adjustment "may not be
employed if an abuse of trust or skill is
included in the base offense level or
specific offense characteristic." Mr.
Anderson claims that the charge of
embezzlement under 18 U.S.C. sec. 656
necessarily includes an abuse of trust.
However, we have "categorically" rejected
this argument. Dion, 32 F.3d at 1150
(distinguishing an abuse of trust as
defined in U.S.S.G. sec. 3B1.3 from the
simple breach of trust implicated in an
embezzlement charge under 18 U.S.C. sec.
656). As a result, the district court did
not err in applying this enhancement to
Mr. Anderson’s sentence.
D. Using a Minor to Commit a Crime
Lastly, the district court enhanced Mr.
Anderson’s sentence under U.S.S.G. sec.
3B1.4, which provides for a two-level
enhancement if "the defendant used or
attempted to use a person less than
eighteen years of age to commit the
offense." A defendant "used" a minor in
the commission of his crimes if his
affirmative actions involved minors in
his criminal activities. See United
States v. Vivit, 214 F.3d 908, 920 (7th
Cir.), cert. denied, 121 S. Ct. 388
(2000). The guideline further explains
that the phrase "’[u]sed or attempted to
use’ includes directing, commanding,
encouraging, intimidating, counseling,
training, procuring, recruiting, or
soliciting." U.S.S.G. sec. 3B1.4,
Application Note 1; see also United
States v. Brack, 188 F.3d 748, 765 (7th
Cir. 1999). Notably, the "enhancement in
section 3B1.4 focuses on whether the
defendant used a minor in the commission
of a crime, not whether the minor knew
that he was being used to commit a
crime." United States v. Ramsey, 237 F.3d
853, 861 (7th Cir. 2001), petition for
cert. filed (U.S. Apr. 18, 2001) (No. 00-
9546). We review de novo the district
court’s interpretation of U.S.S.G. sec.
3B1.4. See Ramsey, 237 F.3d at 855. The
nature of the interaction between Mr.
Anderson and Shehadi is a question of
fact that we review for clear error. See
id.
The court applied this enhancement after
finding that Mr. Anderson used Shehadi, a
TCF teller who was seventeen years old at
the time, to make three of the fifteen
withdrawals from the Kern accounts and
one of the two additional withdrawals
from the Wasserbauer account. Mr.
Anderson claims that insufficient
evidence existed to suggest that Shehadi
made these withdrawals for him. However,
Shehadi’s teller identification number
accompanied each of these withdrawals.
Although she did not recall making these
specific withdrawals for Mr. Anderson,
Shehadi testified that she often made
such withdrawals for him in her role as a
teller. Lastly, as we previously have
noted in our discussion of the district
court’s consideration of the relevant
conduct, there is sufficient evidence
suggesting that Mr. Anderson was
responsible for directing tellers like
Shehadi to make these unauthorized
withdrawals. In light of this evidence,
the district court did not clearly err in
finding that Shehadi made these
withdrawals for Mr. Anderson./9
Conclusion
For the reasons set forth in this
opinion, the district court did not err
in sentencing Mr. Anderson. Therefore,
the judgment of the district court is
affirmed.
AFFIRMED
FOOTNOTES
/1 The increase in Mr. Anderson’s sentence is large-
ly due to the district court’s finding that he
had committed perjury, a finding made in part
because he denied committing the relevant con-
duct. This determination resulted in a two-level
increase for obstruction of justice and a denial
of a three-level reduction for acceptance of
responsibility. Without considering the relevant
conduct and with an acceptance of responsibility
reduction, Mr. Anderson’s sentence would have
been in the 12-18 month range. With an acceptance
of responsibility reduction, the introduction of
the relevant conduct would have resulted in
raising Mr. Anderson’s sentence only to a range
of 24-30 months. However, the enhancement for
obstruction of justice and the resulting loss of
the acceptance of responsibility reduction in-
creased the sentence to one in the 41-51 month
range.
/2 See, e.g., United States v. Rodriguez, 67 F.3d
1312, 1323 (7th Cir. 1995) (enhancement from 51-
63 month range to sentence of life imprisonment);
United States v. Porter, 23 F.3d 1274, 1277 (7th
Cir. 1994) (enhancement from 33-41 month range to
137-month sentence); United States v. Masters,
978 F.2d 281, 286-87 (7th Cir. 1992) (enhancement
from 33-41 month range to 40-year sentence);
United States v. Schuster, 948 F.2d 313, 315-16
& n.3 (7th Cir. 1991) (enhancement from 21-27
month range to 5-year sentence); cf. United
States v. Kikamura, 918 F.2d 1084, 1089 (3d Cir.
1990) (adopting a clear and convincing standard
when the district court departed upward from a
sentencing range of 27-33 months to impose a
sentence of 30 years).
/3 A teller identification number at TCF is a unique
number that identifies the bank employee respon-
sible for transactions, accessible only by that
employee’s password.
/4 The effect of this address change was that Kern
and Parrington did not receive bank statements
regarding the CD accounts, hindering them for a
time from noticing that unauthorized activity had
occurred on those accounts.
/5 The thirteenth withdrawal was made by Tracey
Blunk, also an assistant branch manager at TCF.
At the sentencing hearing, FBI Special Agent
Maureen Reddy testified that she had interviewed
Blunk, who explained that, in her position, she
did not typically perform such withdrawals and
did not recall this particular transaction.
However, Blunk indicated that she would occasion-
ally stand in for a teller and that, if Mr.
Anderson had brought a withdrawal slip to her on
such a day, she would have performed the transac-
tion for him without question.
/6 It is possible to read Mr. Anderson’s brief as
also arguing that, even if he did lie regarding
his intention to return the Wasserbauer funds
charged in the indictment, that lie was not
material. See Appellant’s Reply Br. at 8. Howev-
er, "all that is required for a lie to be materi-
al is that it could, to some reasonable probabil-
ity, affect the outcome of the . . . sentence."
United States v. Buckley, 192 F.3d 708, 710 (7th
Cir. 1999), cert. denied, 529 U.S. 1137 (2000).
In this case, whether Mr. Anderson intended to
return these funds was material to his sentence
in that it affected whether he would receive an
acceptance of responsibility reduction.
/7 The commentary goes on to note that persons in a
position of trust "ordinarily are subject to
significantly less supervision than employees
whose responsibilities are primarily non-discre-
tionary in nature." U.S.S.G. sec. 3B1.3, Applica-
tion Note 1.
/8 Although Mr. Anderson does not explicitly contest
the point, we note that his abuse of the position
of trust also facilitated significantly the
commission of the crime. As our previous discus-
sion indicates, due to the ability to process
transactions over $1,000 without approval from
anyone, Mr. Anderson was able to make withdrawals
from the Wasserbauer account without arousing
suspicion. Had he not been granted such authori-
ty, his ability to successfully appropriate those
funds would have been impeded greatly.
/9 Mr. Anderson also suggests that because Shehadi’s
involvement related to the relevant conduct
considered by the district court, not to acts
charged in the indictment, it cannot be used to
enhance his sentence under U.S.S.G. sec. 3B1.4.
However, we have noted that "’the determination
of a defendant’s role in the offense is to be
made on the basis of all [relevant] conduct . .
. and not solely on the basis of elements and
acts cited in the count of conviction.’" United
States v. Ramsey, 237 F.3d 853, 861-62 (7th Cir.
2001), petition for cert. filed (U.S. Apr. 18,
2001) (No. 00-9546) (applying U.S.S.G. sec.
3B1.4) (quoting U.S.S.G. ch. 3, pt. B, introduc-
tory cmt.). As a result, the application of this
enhancement in this case was proper.