United States v. Gunby

United States Court of Appeals,

Eleventh Circuit.

No. 94-8334.

UNITED STATES of America, Plaintiff-Appellee,

v.

Chester L. GUNBY, Defendant-Appellant.

May 22, 1997.

Appeal from the United States District Court for the Middle
District of Georgia. (No. 5:91-60-CR-MAC(WDO)), Wilbur D. Owens,
Jr., Judge.

Before TJOFLAT and BIRCH, Circuit Judges, and SMITH*, Senior
Circuit Judge.

TJOFLAT, Circuit Judge:

Appellant, Chester L. Gunby, pleaded guilty to one count of

mail fraud, 18 U.S.C. § 1341 (1994), and one count of tax fraud, 26

U.S.C. § 7206(1) (1994), for embezzling the filing fees collected

by the Magistrate Court of Baldwin County, Georgia. The district

court found that Gunby's criminal activities constituted "a

significant disruption of a governmental function" under Sentencing

Guidelines section 5K2.7, and it therefore departed upward from the

recommended sentencing range of 21 to 27 months. See United States

Sentencing Commission, Guidelines Manual, § 5K2.7, p.s. (Nov. 1,

1993). The district court sentenced Gunby to concurrent terms of

forty-one months for his mail fraud conviction and thirty-six

months for his tax fraud conviction. Gunby now appeals,

challenging the applicability of guideline section 5K2.7 to his

case and the sufficiency of the evidence supporting the upward

*
Honorable Edward S. Smith, Senior U.S. Circuit Judge for
the Federal Circuit, sitting by designation.
departure. We affirm.

I.

A.

The Georgia General Assembly established the Small Claims

Court of Baldwin County, Georgia, in 1967. See Act of Apr. 21,

1967, No. 588, § 1, 1967 Ga. Laws 3312, 3313. Gunby was appointed

by Governor Busbee as Judge of the Small Claims Court of Baldwin

County in 1975. The Small Claims Court operated on the basis of

fees collected from litigants and from the city for the use of the

court's services. These collections paid for the expenses of the

court, and judges such as Gunby were entitled to keep the surplus

for themselves. See § 5.

Popular discontent and constitutional problems 1 with the fee

system led the Georgia Assembly to phase out fees and phase in

salary compensation for Georgia's judges. With respect to Gunby,

the first step was the creation of magistrate courts. In 1977, the

legislature created a magistrate court in Baldwin County. See Act

of Mar. 23, 1977, No. 388, § 1, 1977 Ga. Laws 3197, 3198.

According to this statute, the Judge of the Small Claims Court was

1
In 1977, the Supreme Court held in Connally v. Georgia, 429
U.S. 245, 97 S.Ct. 546, 50 L.Ed.2d 444 (1977), that Georgia's
system of paying justices of the peace for the issuance of search
warrants violated the Fourth and Fourteenth Amendments to the
United States Constitution. See id. at 251, 97 S.Ct. at 549.
The Court found that justices of the peace who receive no salary
and who earn their living based on the fees they collect from
issuing criminal warrants cannot not be neutral and detached, as
the Fourth Amendment requires. See id. at 249, 97 S.Ct. at 548.
In response, the Georgia Assembly repealed the provision
authorizing the collection of a fee for issuing a warrant, and
replaced it with a provision authorizing the collection of a fee
for examining the application for a warrant. See Act of Feb. 25,
1977, No. 74, § 1, 1977 Ga. Laws 197, 197.
to serve as the Magistrate of Baldwin County. See § 2. In 1977,

Gunby was the Judge of the Small Claims Court, and he therefore

became the Magistrate of Baldwin County as well. Under the 1977

Act, Gunby was paid a salary from the treasury of Baldwin County

for serving as a magistrate. See § 7. Still, the 1977 Act

apparently left unchanged the proprietary nature of the local court

system. For example, the Magistrate of Baldwin County was required

to pay the expenses of the court from his own salary. See § 8. By

implication, Gunby could continue to profit from the court's

operations.

In 1982, however, the Georgia Assembly replaced the fee system

with a salary system for all local courts. See Courts of Limited

Jurisdiction Compensation Act of 1982, No. 1488, 1982 Ga. Laws 1737

(repealed 1983).2 The 1982 act required each county to elect one

of two systems for paying a salary to any judge who "is

compensated, in whole or in part, from fees." § 2(1). Under

compensation plan "A," the county would pay each judge a fixed

salary, and the judges would remit all the fees they collected to

the county treasury. See § 5. Under compensation plan "B," the

court would establish a trust fund from which an equal salary would

be paid to all fulltime judges. See § 6. Each judge would account

for all collected fees and remit them to the trust fund. § 6(c).

It is unclear which system of compensation Baldwin County adopted

for its small claims and magistrate courts, but neither system

2
This act applied to Baldwin County because it contained "a
court ... in which the judge ... is compensated in whole or in
part by fees charged and collected for the performance of the
duties of [the] court." § 3. The act applied to Gunby because he
was a judge of a small claims court. § 2(4).
envisioned the retention of fees by judges.

In 1983, the Georgia legislature adopted a local law

concerning the Baldwin County Magistrate Court. See Act of Mar.

14, 1983, No. 157, 1983 Ga. Laws 4027. First, the act created the

position of chief magistrate. § 2(a). Gunby was soon appointed to

this position. Second, the act provided for the creation of a

magistrate court treasury: "All fees collected by the Magistrate

Court of Baldwin County shall be paid into a depository at a

chartered bank designated by the governing authority of Baldwin

County." § 5(a). From the treasury, the chief magistrate was to

pay his own salary and the salaries of the other magistrates and

court personnel. Id. The act also stated, "The chief magistrate

shall be placed on an annual salary, the amount of which shall be

determined by the governing authority of Baldwin County." § 4(a).

In short, by March 14, 1983, Gunby's jobs as small claims court

judge and magistrate judge were both salaried positions, and Gunby

was no longer entitled to pocket the fees collected by either

court.

The 1983 Georgia Constitution abolished the small claims

courts. Article 6 of the 1983 Constitution vested state judicial

power exclusively in the magistrate courts, probate courts,

juvenile courts, state courts, superior courts, Court of Appeals,

and Supreme Court of Georgia. Ga. Const. art. 6, § 1, ¶ 1 (1983).

By implication, the small claims courts were eliminated. See

Porter v. Calhoun County Bd. of Comm'rs, 252 Ga. 446, 314 S.E.2d

649, 651 (1984). Thus, after 1983, Gunby ceased to be a judge of

the Small Claims Court and was only the Chief Magistrate of Baldwin
County.

Later in 1983, the Georgia Assembly adopted a uniform system

of compensation for the magistrate courts: "Magistrates shall be

compensated solely on a salary basis and not in whole or in part

from fees...." Act of Mar. 18, 1983, No. 429, § 2-1, 1983 Ga. Laws

884, 890 (codified as amended at O.C.G.A. § 15-10-23(d)

(Supp.1996)). The 1983 act repealed the 1982 act, see § 7-1, 1983

Ga. Laws at 928, and therefore left local courts no choice about

how to structure their salary plans. Instead of paying a fee to
the magistrate for the service of a civil complaint upon an

opposing party, for example, plaintiffs were required to pay "the

actual cost of serving each party required to be served." § 2-1,

1983 Ga. Laws at 899 (codified as amended at O.C.G.A. § 15-10-80(b)

(1994)). Under the 1983 Act, the only permissible form of

compensation for a judge was a salary from the county, and judges

were not to charge filing fees in excess of costs.3

In conclusion, Gunby started his judicial career as Judge of

the Small Claims Court of Baldwin County. In this capacity, he was

3
Gunby has continued to argue that the 1983 local law
concerning the financial structure of the Magistrate Court of
Baldwin County clothed his illicit activities in a cloak of
respectability—despite the 1983 general law prohibiting the
conversion of fees by magistrate judges. The 1983 local law,
however, simply authorizes the creation of a bank account for the
magistrate court; it does not authorize the chief magistrate to
pocket the fees of litigants.

Even assuming that it did, this local law was approved
on March 14, 1983; the 1983 general law explicitly barring
such conduct was approved on March 18, 1983, four days
later. Section 8-3 of the later statute provides that
"[a]ll laws and parts of laws in conflict with this Act are
repealed." § 8-3, 1983 Ga. Laws at 929. Thus, Gunby cannot
suggest that he was acting in good faith reliance the 1983
local law.
authorized to profit from the operation of his court by charging

fees in excess of costs and pocketing the difference. By 1983,

however, this system had changed entirely. Gunby was no longer the

Judge of the Small Claims Court. He was Chief Magistrate of the

Magistrate Court of Baldwin County. This position entitled Gunby

to no more than a salary set by Baldwin County. Gunby was no

longer authorized to profit from the operation of his court.

B.

The new arrangement apparently did not suit Gunby. He devised

two schemes to circumvent the laws limiting his compensation to a

fixed salary. Both schemes involved siphoning off the surplus

generated by the collection of fees paid by civil litigants who

filed suit in Baldwin County. The first scheme centered on a sole

proprietorship organized by Gunby that ostensibly engaged in the

business of serving process on defendants.

As Chief Magistrate of Baldwin County, Gunby set the price for

filing a civil complaint in Baldwin County at $20. The actual cost

of delivering the complaint and a summons to the defendant was

approximately $8. Under O.C.G.A. § 15-10-80(b), Gunby therefore

should have only charged $8. Instead, Gunby charged $20 and

channeled the remaining $12 into his own pocket.

Each $20 filing fee was deposited in the treasury of the

Magistrate Court of Baldwin County, as directed by the 1983 local

law. The court's treasury consisted of an account at the Citizen

and Southern Bank of Milledgeville ("C & S Bank"). Gunby and his

wife, who was also an employee of the magistrate court, were the

only persons authorized to handle the funds in the C & S Bank
account.

On June 9, 1983, Gunby and his wife opened an account in the

name of the "G & G Constable Service" ("G & GCS") at the First

Federal Savings and Loan Association ("First Federal"). On July 1,

1983, they began to withdraw funds from the court's account at C &

S Bank and to deposit them into the G & GCS account at First

Federal. From the G & GCS account, the Gunbys then paid two

constables to serve process on the parties specified in each

complaint. Gunby paid the constables $8 per complaint, leaving the

remaining $12 in the G & GCS account.

The last deposit into the First Federal account was made on

January 6, 1986. On January 15, 1986, Gunby and his wife opened a

different account in the name of G & GCS at the Exchange Bank and

began to deposit funds from the court's account into the Exchange

Bank account. In early February, 1986, the Judicial Qualifications

Commission of Georgia (the "JQC") started an investigation of Gunby

based on allegations of corruption and nepotism in the Magistrate

Court of Baldwin County. On February 25, 1986, the Gunbys closed

the First Federal account.

The JQC investigation concluded some time during the spring of

1986. The last deposit into the G & GCS account at the Exchange

Bank was made on April 2, 1986, and the Gunbys closed the Exchange

Bank account on May 9, 1986. Gunby apparently closed the G & GCS

bank accounts in response to the JQC investigation. By the time

they closed these accounts, Gunby and his wife had transferred to

the G & GCS accounts essentially all of the $20 filing fees paid by

plaintiffs in Baldwin County for a three-year period.
 In July 1983, soon after they began to transfer money from the

court's account to the G & GCS accounts, Gunby and his wife began

to withdraw money for their own personal benefit from the G & GCS

accounts. The Gunbys transferred some of the money into their

personal checking and savings accounts and some into a money market

account. Gunby financed an individual retirement account for

himself using funds from the G & GCS accounts. Other funds from

the G & GCS accounts went into the Gunbys' business ventures. They

also cashed several checks written on the G & GCS accounts. These

withdrawals continued until May 9, 1986, when Gunby transferred the

last $17,067 from the G & GCS account at the Exchange Bank to the

Gunbys' own joint checking account at the same bank. In all, from

July 1983 to May 1986, Gunby and his wife withdrew $165,967 from

the G & GCS accounts for their own personal benefit. The

withdrawals represented the difference between the amount charged

to prospective litigants and the expense of actually serving the

legal papers on behalf of those litigants.

The second scheme devised by Gunby involved two bogus

retirement accounts created once again to siphon off the resources

of the magistrate court. After the conclusion of the JQC

investigation in the spring of 1986, Gunby allowed funds to

accumulate in the treasury account of the magistrate court until

March 1988. At that time, Gunby and his wife consulted with an

attorney for the Merchants and Farmers Bank ("M & F Bank") about

opening two purported retirement accounts for court employees.

After this consultation, Gunby and his wife, as co-signatories,

opened two accounts at the M & F Bank. When Gunby and his wife
opened these two accounts, Gunby caused the bank to mail to his

personal address an Internal Revenue Service Form 1099 for the

calendar year 1989. This form was part of the paperwork required

to open the bogus retirement accounts.

The Gunbys opened the "Magistrate Court of Baldwin County

Money Purchase Pension Plan, Account No. 041," (the "qualified

account") in March 1988. Between March 28, 1988, and September 26,

1990, Gunby transferred $21,250 from the court's account at C & S

Bank to the qualified account at the M & F Bank. In May 1988, the

Gunbys opened the "Magistrate Court of Baldwin County Non-Qualified

Deferred Retirement Plan, Account No. 040" (the "nonqualified

account"). Between May 1988 and September 1990, the Gunbys

transferred $216,000 from the C & S Bank account to the

nonqualified account. Thus, Gunby deposited a total of $237,250

into the two retirement accounts. The deposited funds again

represented the difference between the amount charged to

prospective litigants and the actual court costs of serving

complaints.

According to the documents establishing the qualified account,

employees of the magistrate court could participate in the plan

after one year of employment, but vesting would not occur until

after five years of employment. The only court employees that met

the vesting requirement were the Gunbys. In fact, none of the

other employees at the magistrate court knew of the existence of

the qualified plan, and no employees were ever permitted to

contribute to the plan. With regard to the nonqualified account,

Gunby had sole control of the funds in the account and directed the
bank's investment of the account's funds. In his financial

statements, Gunby listed the funds in the two accounts as personal

assets. In other words, the amounts deposited into the two

accounts were intended for the Gunbys' sole, private benefit. When

the Gunbys' two schemes are combined, they embezzled approximately

$403,217 from the taxpayers of Baldwin County.4

To hide this illicit income, Gunby filed several fraudulent

tax returns. For example, on October 31, 1990, Gunby and his wife

filed a joint tax return for the year 1989 which substantially

under-reported their income. On audit, the Internal Revenue

Service determined Gunby's joint taxable income to have been

$195,087.51, but on his return Gunby stated that his joint taxable

income was $117,709, a difference of $77,378.51. Accordingly,

Gunby cheated the government out of $25,227 in taxes in 1989 alone.

Overall, from 1984 to 1989, Gunby understated his income by an

estimated $309,361.53, thus defrauding the United States of

$86,621.23 in taxes.

C.

On September 27, 1991, a grand jury indicted Gunby and his

wife for tax fraud. See 26 U.S.C. § 7206(1) (1994). On January

21, 1993, the grand jury returned a superseding, twenty-seven count

indictment against the couple. The indictment alleged not only tax

fraud, but also conspiracy, see 18 U.S.C. § 371 (1994),

embezzlement from a recipient of federal funding, see 18 U.S.C. §

666 (1994), mail fraud, see 18 U.S.C. § 1341 (1994), money

4
The district court also found that Gunby drew a salary of
$315,735 from 1983 to 1990. Thus, Gunby himself ended up with a
total of $718,952 from the coffers of the magistrate court.
laundering, see 18 U.S.C. § 1956(a)(1)(A) (1994), racketeering, see

18 U.S.C. § 1962(c) (1994), and engaging in unlawful financial

transactions, see 18 U.S.C. § 1957(a) (1994). The defendants filed

several motions to dismiss various counts of the indictment, but

the district court denied these motions on April 8, 1993. On

November 5, 1993, Gunby entered into a plea agreement with the

Government.

The agreement provided, in pertinent part, that Gunby would

plead guilty to one count of mail fraud and one count of tax fraud.

The mail fraud count stemmed from Gunby's use of the mail to

receive the form 1099 with which he established the sham retirement

accounts at the M & F Bank. Gunby's fraudulent 1989 tax return

gave rise to the tax fraud count. The plea agreement also stated

that Gunby "understands and has discussed with his attorney that

... the Court has the authority under certain circumstances to

impose a sentence that is more severe ... than the sentence called

for by the [sentencing] guidelines." Gunby signed this agreement.

In accordance with the plea agreement, Gunby was convicted of the

two pertinent counts, and the Government dismissed the remaining

charges against him.5
Gunby was sentenced on March 17, 1994. At the sentencing

hearing, the district court made several findings of fact, based in

part on the presentence report (the "PSR") prepared by the court's

probation office.6 The court first noted the "tremendous concern"

5
Gunby's wife also pleaded guilty to one count of tax fraud.
The district court sentenced her to a term of imprisonment within
the guideline range, and she did not appeal.
6
Gunby did not object to any part of the PSR.
this case had caused in Baldwin County. The court explained that

the magistrate courts were created as part of an effort by the

Georgia legislature to abolish the fee-based compensation system,

a system which had engendered "public dissatisfaction." The court

reviewed the 1983 legislation described above, and concluded that

it clearly and unambiguously proscribed the collection of fees by

judges such as Gunby. The court found that Gunby's two schemes had

defrauded the taxpayers of Baldwin County of $403,217 and had

affected 33,601 civil complaints filed in Baldwin County. The

court then stated,

[T]he worst part of this entire case, ladies and gentlemen, in
the Court's best judgment, is that it has put a black eye upon
the public's perception of the courts in Baldwin County, in
general, and in particular, upon the magistrate's court. Can
you imagine what the 33,601 people who were sued in this court
must be thinking? They must be wondering, "Did I get
justice"?

In response to a colloquy with defense counsel, the court also

stated,

Nobody's suggesting that the papers, once they were given to
the Magistrate Court, were not processed efficiently. That's
not the issue.... The disruption I'm referring to is the
black eye that justice has received, the injury to the
reputation of the court system and the magistrate court in
particular. The public can't believe in justice when the
judge and his wife, employed by the court, themselves are
utilizing the court for their personal, illegal benefit.

The district court then departed upward from a total offense level

of 16 to an offense level of 20. This departure increased the

sentencing range from 21-27 months to 33-41 months. The court

sentenced Gunby to forty-one months.7 Gunby took this appeal,

7
The district court also sentenced Gunby to a three-year
term of supervised release and ordered him to pay a fine
($50,000), the costs of his incarceration ($127,606.40), an
amount of restitution ($167,967) to be paid to Baldwin County,
challenging the court's upward departure.

II.

A.

Under 18 U.S.C. § 3553(b), the district court may impose a

sentence outside the range established by the applicable guidelines

if the court finds "that there exists an aggravating or mitigating

circumstance of a kind, or to a degree, not adequately taken into

consideration by the Sentencing Commission in formulating the

guidelines that should result in a sentence different from that

described." 18 U.S.C. § 3553(b) (1994). This court has applied a

three-part test to determine whether an upward departure complies

with § 3553(b):

(1) Was the aggravating circumstance cited by the district

court adequately taken into consideration by the Sentencing

Commission in formulating the guidelines?

(2) If adequate consideration was not given to the

circumstance, was consideration of the circumstance consistent with

the goals of the sentencing guidelines?

(3) If the circumstance was properly taken into account, was

the extent of the departure from the guideline range reasonable?

United States v. Shuman, 902 F.2d 873, 875-76 (11th Cir.1990).8
1.

The district court here based its upward departure on the

and a special assessment ($100). Gunby does not challenge these
aspects of his sentence.
8
We view the Shuman test in this case as entirely consistent
with the Supreme Court's decision in Koon v. United States, ---
U.S. ----, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).
policy statement contained in U.S.S.G. § 5K2.7. This departure

guideline provides as follows:

If the defendant's conduct resulted in a significant
disruption of a governmental function, the court may increase
the sentence above the authorized guideline range to reflect
the nature and extent of the disruption and the importance of
the governmental function affected. Departure from the
guidelines ordinarily would not be justified when the offense
of conviction is an offense such as bribery or obstruction of
justice; in such cases interference with a governmental
function is inherent in the offense, and unless the
circumstances are unusual the guidelines will reflect the
appropriate punishment for such interference.

U.S.S.G. § 5K2.7, p.s.
The purpose of section 5K2.7, like the other seventeen

departure guidelines listed in subpart 2 of chapter 5K,9 is "to aid

the court by identifying some of the factors that the Commission

has not been able to take into account fully in formulating the

guidelines." U.S.S.G. § 5K2.0, p.s. According to policy statement

U.S.S.G. § 5K2.0, this list of factors is non-exclusive. In other

words, provided that they follow the requirements of 18 U.S.C. §

3553, sentencing courts may depart from the recommended sentencing

range for the reasons enumerated in chapter 5K or for other,

9
When reviewing a sentence on appeal, we generally apply the
guidelines in effect on the date the appellant was sentenced.
See United States v. Shields, 87 F.3d 1194, 1196 n. 2 (11th
Cir.1996) (en banc). However, subsequent amendments that clarify
a guideline, rather than make substantive changes, should be
considered on appeal regardless of the date of sentencing. See
United States v. Stinson, 30 F.3d 121, 122 (11th Cir.1994) (per
curiam).

Because Gunby was sentenced on March 17, 1994, we apply
the guidelines from the 1993 manual. We note that § 5K2.7
has not been amended since 1993. The policy statement
contained in § 5K2.0, however, has been amended, and two
departure guidelines, §§ 5K2.17 and 5K2.18, have been added
since 1993. Because we construe the changes to § 5K2.0 to
be clarifying amendments, we discuss the most recent version
of this provision.
unenumerated reasons.

Regardless of which type of departure the district court made,

this court must consider whether the guidelines used to calculate

the sentence, such as the base offense level and the upward

adjustments, adequately accounted for the reprehensibility of the

defendant's conduct. See, e.g., United States v. Kramer, 943 F.2d

1543, 1550 (11th Cir.1991) (per curiam) (holding that "the offense

of escape or instigating or assisting an escape does not adequately

take into account disruption of a governmental function"), cert.

denied, 506 U.S. 818, 113 S.Ct. 63, 121 L.Ed.2d 31 (1992). Our

review of this question, however, is much more straightforward when

the district court departs under a specific guideline such as

section 5K2.7 than when it departs under an unenumerated factor.

First, we know from the text of policy statement 5K2.0 that,

at very least, the Commission did not take the significant

disruption of a governmental function into account in calculating

the sentencing range for some offenses. Thus, the Commission might

not have taken this factor into account when calculating the

sentencing range for fraud. Second, we know from section 5K2.7

itself that the Commission did take into account the ordinary

disruption of a governmental function in calculating the sentencing

ranges for bribery and obstruction of justice. We can infer from

the mention of these two offenses that, if the Commission wanted to

preclude the application of section 5K2.7 to fraud, it could easily

have done so. It did not. Third, we know from the text of section

5K2.0 that section 5K2.7 can apply to theft that involves the

significant disruption of a governmental function. See U.S.S.G. §
5K2.0, p.s. Theft is an offense similar in many respects to fraud,

especially where, as here, the underlying conduct involved
10
embezzlement and the concealment of the ill-gotten gain.
Therefore, the text of the sentencing guidelines strongly suggests

that section 5K2.7 applies to Gunby's fraud convictions.

Nevertheless, Gunby claims that the guidelines used in

calculating his sentence fully accounted for the harmfulness of his

conduct. He contends that the base offense level for mail fraud,

see U.S.S.G. § 2F1.1(a), the specific offense characteristic of a

$403,217 loss to Baldwin County, see U.S.S.G. § 2F1.1(b)(1)(J), and

the upward adjustment for his abuse of public trust, see U.S.S.G.

§ 3B1.3, accounted for whatever disruption of a governmental

function his actions caused. He argues that the significant

disruption of a governmental function is inherent in the nature of

a large-scale fraud involving a breach of public trust. We reject

this contention.

Most fraudulent schemes do not disrupt the functioning of any

10
The guideline applicable to theft is U.S.S.G. § 2B1.1.
Thus, the statement in § 5K2.0 that § 5K2.7 can apply to theft
involving the significant disruption of a governmental function
means that the Commission did not take into account the
significant disruption of a governmental function in formulating
§ 2B1.1. Section 2B1.1 also covers embezzlement. Therefore, by
necessary implication, the Commission did not take into account
the significant disruption of a governmental function in
calculating the offense level for embezzlement. Gunby apparently
admits that pocketing the court's filing fees constituted
embezzlement, and even if he did not, we consider the elements of
embezzlement to resemble those of fraud more closely than the
elements of bribery or obstruction of justice. Compare, e.g.,
United States v. Burton, 871 F.2d 1566, 1570 (11th Cir.1989)
(listing the elements of embezzlement under 18 U.S.C. § 641) with
Pelletier v. Zweifel, 921 F.2d 1465 1498-99 (11th Cir.)
(describing the elements of mail and wire fraud), cert. denied,
502 U.S. 855, 112 S.Ct. 167, 116 L.Ed.2d 131 (1991).
governmental organization. For example, a stockbroker could

defraud investors for years without impeding the operation of any

governmental entity. Because fraud and the significant disruption

of a governmental function are analytically distinct, a sentencing

court can apply sections 2F1.1(a) and 5K2.7 simultaneously. See,

e.g., United States v. Root, 12 F.3d 1116, 1122 (D.C.Cir.1994)

(affirming a district court's application of § 5K2.7 to conduct

covered under § 2F1.1(a)). Similarly, an abuse of public trust

does not automatically entail the disruption of a governmental

function. For instance, an IRS employee could abuse her position

of trust by surreptitiously examining her neighbor's tax return,

but this crime would not necessarily involve the disruption of a

governmental function. Because an abuse of public trust and the

disruption of a governmental function are analytically distinct, a

sentencing court can apply sections 3B1.3 and 5K2.7 simultaneously.

See, e.g., United States v. Sarault, 975 F.2d 17, 22 (1st Cir.1992)

(affirming a district court's application of §§ 5K2.7 and 3B1.3 to

the same criminal conduct). Therefore, the significant disruption

of a governmental function is not inherent in the offense of

large-scale fraud involving an abuse of public trust, and sections

2F1.1(a), 3B1.3 and 5K2.7 can all apply to Gunby's fraudulent

conduct.11 See, e.g., United States v. Hatch, 926 F.2d 387, 397

11
We draw a similar conclusion regarding U.S.S.G. § 2T1.1,
the guideline used to calculate the base offense level for
Gunby's tax-fraud conviction. The only case where we have
applied § 5K2.7 is United States v. Kramer, 943 F.2d 1543 (11th
Cir.) (per curiam), cert. denied, 506 U.S. 818, 113 S.Ct. 63, 121
L.Ed.2d 31 (1992). In Kramer, the appellants were convicted of
several offenses related to a failed prison escape. Using a
helicopter, one of the appellants attempted to airlift another of
the appellants from an exercise yard in the Miami Correctional
(5th Cir.1991) (affirming a district court's application of all

three sections to the same underlying conduct). We hold that the

base offense and adjustment guidelines applied to Gunby do not

adequately take into consideration the aggravating circumstance

cited by the district court and described in § 5K2.7.12

Center. The helicopter crashed into a prison fence on takeoff,
severely injuring both pilot and passenger. The district court
departed upwards based in part on § 5K2.7, and we affirmed the
appellant's sentences.

The district court in Kramer had applied § 2P1.1 to
determine the base offense level for the appellants' escape
attempt. See id. at 1547. We noted on appeal that § 2P1.1
does not provide an upward adjustment for the disruption of
a governmental function. See id. at 1550. We found, by
contrast, that § 2P1.3, a neighboring guideline, did call
for an upward adjustment when a prison riot involving the
defendant causes a major disruption in the operation of the
prison. See id. We concluded, based on negative
implication, that the Commission did not adequately take
into account the disruption of a governmental function in §
2P1.1.

None of the guidelines neighboring § 2F1.1 allows an
upward adjustment for the disruption of a governmental
function. However, one of the guidelines in the vicinity of
§ 2T1.1, the base offense guideline applied to Gunby's
tax-fraud conviction, does call for such an upward
adjustment where "the conduct was intended to encourage
persons other than or in addition to co-conspirators to
violate the internal revenue laws or impede, impair,
obstruct, or defeat the ascertainment, computation,
assessment, or collection of revenue." U.S.S.G. § 2T1.9.
Following the reasoning of Kramer, we find that the
consideration of this factor in § 2T1.9 indicates that §
2T1.1 does not adequately take into consideration the
significant disruption of a governmental function.
Therefore, §§ 2T1.1 and 5K2.7 can apply simultaneously.
12
Gunby cites Sarault for the proposition that "a 5K2.7
departure [is] inappropriate, even if there [is] governmental
disruption, unless the extent of the disruption [is]
significantly beyond that which would normally be associated with
the underlying crime." First, our acceptance of this proposition
would render § 5K2.7 superfluous, because in effect we would have
to assume that all applicable offense guidelines and adjustments
already account for the significant disruption of a governmental
function. Section 5K2.0 flatly contradicts this false
 2.

We next consider whether consideration of the significant

disruption of a governmental function would comport with the goals

of the sentencing guidelines. Where the guidelines themselves

specify the ground of departure cited by the district court, we

need not plumb the depths of other guidelines to answer this

question. The sentencing guidelines themselves listed the

significant disruption of a governmental function as a ground for

departure in section 5K2.7. Therefore, we hold that consideration

of this factor by the district court was consistent with the goals

of the sentencing guidelines. See Koon v. United States, --- U.S.

----, ----, 116 S.Ct. 2035, 2045, 135 L.Ed.2d 392 (1996).

3.

We must also decide whether the district court's upward

departure was reasonable under the circumstances. See Shuman, 902

F.2d at 876. The district court increased Gunby's offense level

from 16 to 20, which raised the sentencing range from 21-27 months

to 33-41 months. The district judge sentenced Gunby to forty-one

months in prison, an increase of fourteen months, or fifty-two

percent over the maximum sentence possible at the lower offense

level. Given the nature of Gunby's conduct, we do not find this

increase unreasonable.

Gunby was convicted of two serious offenses stemming from an

assumption. Second, Sarault itself went on to dismiss this
argument with regard to a RICO conviction: the First Circuit
concluded that the significant disruption of a governmental
function "is by no means "inherent in the offense' of
racketeering." 975 F.2d at 20. Similarly, we conclude that the
significant disruption of a governmental function is by no means
inherent in the offense of fraud.
extended pattern of reprehensible behavior. He defrauded the

taxpayers of approximately $403,217 over a five-year period—roughly

$10 per person in the entire county. He understated his income by

forty-three percent over the same five-year period. A

fourteen-month increase in Gunby's sentence may deter other judges,

especially those with supervisory authority, from ignoring the laws

applicable to their courts and turning their offices into

money-changing enterprises in this manner. The public has a right

to expect closer adherence to the law from judges, and when judges

fall from grace they should expect to land a little harder than the

rest. A fifty-two percent increase in the sentence of a chief

magistrate who embezzles and secretes the filing fees of ordinary

litigants for five years will not encourage unwarranted sentencing

disparities. We find Gunby's sentence to be proportionate to the

gravity of his offense.

B.

Gunby also attacks the factual predicate for the court's

sentence, arguing that there was insufficient evidence to warrant

an upward departure. Gunby contends that there was no evidence

that his embezzlement impeded the operation of the Magistrate Court

of Baldwin County: "There was no evidence that a single litigant

or a single case out of the thousands that went through this court

during the years in question was ever affected in its handling in

any way." In other words, Gunby argues that the word "disruption"

in section 5K2.7 cannot mean diminished respect for the legal

system and the judiciary. He asks us to limit the term

"disruption" to a work stoppage or a decline in the operating
efficiency of the Government.

We review the district court's interpretation of the word
13
"disruption" in section 5K2.7 for an abuse of discretion. See

Koon, --- U.S. at ---- - ----, 116 S.Ct. at 2047-48. The most

basic function of a court system is to promote the rule of law.

Courts promote the rule of law by earning the respect of the people

as the fair and dispassionate arbiters of society's disputes, both

large and small. A court system cannot operate effectively without

the respect of the people. If the people do not respect the

judiciary, the people will disobey its edicts and flout its

commands. The people will resort to self-help. Court personnel

who cause people to question the integrity and impartiality of the

judiciary therefore undermine the rule of law and disrupt the

functioning of the courts. If Gunby's fraudulent schemes caused

the people of Baldwin County to doubt the impartiality of the

magistrate court, then Gunby has significantly disrupted a

governmental function. The district court did not abuse its

discretion in concluding that guideline section 5K2.7 encompasses

this loss of confidence in government. See United States v. Khan,

53 F.3d 507, 518 (2nd Cir.1995), cert. denied, --- U.S. ----, 116

S.Ct. 697, 133 L.Ed.2d 655 (1996); United States v. Murillo, 902

F.2d 1169, 1174 (5th Cir.1990).

13
This is a legal question. The Koon Court has instructed
the courts of appeal to apply the "abuse of discretion" standard
to a district court's determination of legal questions even
though we "need not defer to the district court's resolution of
the point." Koon, --- U.S. at ----, 116 S.Ct. at 2047.
Therefore, we review the district court's determination of this
legal issue de novo in order to determine whether it has abused
its discretion. See id. at ---- - ----, 116 S.Ct. at 2047-48.
 The district court found that Gunby's crimes in fact caused

a loss of faith in the courts of Baldwin County. We must affirm

the district court's determination of the facts supporting an

upward departure unless that determination was clearly erroneous.

See United States v. Christopher, 923 F.2d 1545, 1555 (11th

Cir.1991). It was not clearly erroneous for the district court to

infer that revelations of embezzlement and tax evasion by the Chief

Magistrate of Baldwin County shook the confidence of county

residents in the integrity of the court system.14

AFFIRMED.

14
Gunby also contends that for a sentencing court to depart
upwards on the basis of no evidence violates his right to due
process under the Fifth Amendment to the United States
Constitution. We do not reach this issue because we conclude
that the district court departed on the basis of a permissible
inference, i.e., that Gunby's convictions cast doubt upon the
integrity of the Baldwin County judiciary.