[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 15, 2000
__________________________
THOMAS K. KAHN
CLERK
No. 99-11570
_________________________
D.C. Docket No. 99-00007-7-CR-J-20C
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDDIE RAY WARD, JR.,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 15, 2000)
Before BLACK, CARNES and KRAVITCH, Circuit Judges.
CARNES, Circuit Judge:
Eddie Ray Ward, Jr. appeals his sentence, contesting two enhancements
applied by the district court. First, he contends that the district court erred in
enhancing his base offense level by two pursuant to U.S.S.G. § 2B1.1(b)(4)(A),
which provides for a two-level enhancement if the committed offense involved
“more than minimal planning.” Second, he contends that the district court erred in
enhancing his sentence pursuant to U.S.S.G. § 3B1.3 for abuse of a position of
trust. We find merit in his second contention, but not in his first.
I. BACKGROUND
Eddie Ray Ward, Jr. was employed by Brinks, Inc., as an armed security
guard. He was assigned to accompany Brinks armored cars during the pick-up and
delivery of bank deposits. On November 25, 1998, a Brinks armored car picked up
money from a First Union Bank in Panama City, Florida and transported it to a
secure location in Tallahassee, Florida. The money was then transferred from
Tallahassee to Jacksonville, Florida. During this transfer, while the other guard
working with him was absent, Ward removed $20,000 from one of the unsealed
money bags in the car and placed the money in his lunch box.
On December 15, 1998, twenty days after the first theft, a Brinks armored
car picked up money from Citizen States Bank in Kingsland, Georgia and
transported the money to Jacksonville, Florida. Ward was working as the only
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security guard in the back of the car. At some point before arriving in
Jacksonville, Ward broke the seal on the money bag, removed $70,000 in currency,
and placed the money in his lunch box. Ward had somehow gotten an unbroken
seal in advance, and when the armored car arrived at the Brinks office in
Jacksonville, he obtained a crimper and used it to place the unbroken seal on the
bag.
Eight days later, on December 23, 1998, Ward was questioned by FBI agents
about the missing $90,000, and he admitted to stealing the money. He had already
spent $38,000 of the stolen money on electronics equipment, food, liquor, football
tickets and other items, but he turned over the remaining $52,000 to the FBI
agents.
In January 1999 Ward was charged in a two-count indictment with the
taking and carrying away, with intent to steal or purloin, money of a value
exceeding $1,000 belonging to a bank, in violation of
18 U.S.C. § 2113(b). He
pleaded guilty the next month to both counts of the indictment.
The initial Presentence Investigation Report (“PSI”) in Ward’s case
established a base level of 4, added 8 levels for the amount of loss, and 2 levels for
more than minimal planning. Ward objected to the two-level increase for more
than minimal planning. The government also objected to the PSI report, arguing
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that Ward’s offense level should have been enhanced two additional levels for
abuse of position of trust, pursuant to U.S.S.G. § 3B1.3. At the sentencing hearing
in May 1999, the district court overruled Ward’s objection to the enhancement for
more than minimal planning and applied that increase. The court also increased the
base offense level by two more for abuse of position of trust. Ward’s total offense
level was 14, which, with a criminal history category of I, resulted in a guideline
range of 15 to 21 months. The court sentenced Ward to 15 months imprisonment
and 3 years of supervised release as to each of the two counts, to be served
concurrently. Ward appeals his sentence.
II. DISCUSSION
A. The More than Minimal Planning Enhancement
Sentencing Guideline § 2B1.1(b)(4)(A) provides for an enhancement if the
offense involved “more than minimal planning.” Ward contends that guideline
should not have been applied to him, because he simply took advantage of being
left alone in the back of the armored truck, removed money from a bank bag, and
placed the money in his lunch box. He also contends that these two thefts, both of
which occurred within a month’s time, were not repetitive and that he took no steps
to conceal them. We review a finding of more than minimal planning only for
clear error. United States v. Tapia,
59 F.3d 1137, 1144 (11th Cir. 1995).
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The commentary to § 1B1.1 of the Sentencing Guidelines explains that an
enhancement for more than minimal planning is intended to apply to an offense
which involves “more planning than is typical for commission of the offense in a
simple form,” and it instructs that “‘[m]ore than minimal planning’ is deemed
present in any case involving repeated acts over a period of time,” except where the
acts were clearly “opportune.” U.S.S.G. § 1B1.1, comment. (n.1(f)); United States
v. Garcia,
13 F.3d 1464, 1470 (11th Cir. 1994). The commentary also explains that
“[m]ore than minimal planning” may be found when “significant affirmative steps
were taken to conceal the offense . . . .” U.S.S.G. § 1B1.1, comment. (1(f)).
Ward’s actions surrounding the two thefts evidence more planning than is
required for the commission of this crime in its simplest form, and he did take
affirmative steps to conceal his offense. In preparation for the second theft, Ward
somehow obtained in advance a seal. When he arrived at the Brinks office in
Jacksonville, he got a crimper from inside the office which he used to place the
previously obtained seal on the money bag, obviously in an attempt to prevent
anyone from noticing, as they probably would have noticed, an unsealed bag.
Moreover, Ward did not commit a single theft, but two thefts on separate
occasions, twenty days apart. Although the commission of two thefts may not
constitute “repeated acts” and thereby be sufficient by itself to justify a more than
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minimal planning enhancement, the fact that Ward committed two thefts does
weigh in favor of the enhancement. Adding to that fact Ward’s advance planning
in taking the seal with him for use in his attempt to delay or prevent detection on
the second occasion, we cannot say that the district court clearly erred in applying
a two-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(4)(A).
B. The Abuse of a Position of Trust Enhancement
We find more merit in Ward’s contention that the district court erred in
enhancing his sentence pursuant to U.S.S.G. § 3B1.3 for abuse of a position of
trust. Section 3B1.3 of the Sentencing Guidelines mandates a two-level upward
adjustment of a defendant’s base offense level “[i]f the defendant abused a position
of public or private trust . . . in a manner that significantly facilitated the
commission or concealment of the offense.” For the adjustment to apply, the
government must establish both elements: (1) that the defendant held a place of
public or private trust; and (2) that the defendant abused that position in a way that
significantly facilitated the commission or concealment of the offense. See
U.S.S.G. § 3B1.3; United States v. Kummer,
89 F.3d 1536, 1547 (11th Cir. 1996);
United States v. West,
56 F.3d 216, 219 (D.C. Cir. 1995). “We review the district
court’s fact findings for clear error, but its determination whether the facts justify
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an abuse-of-trust enhancement we review de novo.” United States v. Mills,
138
F.3d 928, 941 (11th Cir. 1998)(citation omitted).
Ward did use his position as a security guard of a Brinks armored car to
facilitate the thefts, but the question is whether the position he held and used was a
“position of public or private trust.” The commentary to § 3B1.3 tells us that the
phrase “‘[p]ublic or private trust’ refers to a position of public or private trust
characterized by professional or managerial discretion (i.e., substantial
discretionary judgment that is ordinarily given considerable deference).” U.S.S.G.
§ 3B1.3, comment. (n. 1). We are further advised that people in such positions
“ordinarily are subject to significantly less supervision than employees whose
responsibilities are primarily non-discretionary in nature.” Id. Helpfully, the
commentary gives us examples of cases in which the enhancement does and does
not apply:
This adjustment, for example, applies in the case of an embezzlement
of a client’s funds by an attorney serving as a guardian, a bank
executive’s fraudulent loan scheme, or the criminal sexual abuse of a
patient by a physician under the guise of an examination. This
adjustment does not apply in the case of an embezzlement or theft by
an ordinary bank teller or hotel clerk because such positions are not
characterized by the above-described factors.
Id. Finally, the commentary specifically provides that “[n]otwithstanding the
preceding paragraph” the adjustment shall apply “to any employee of the U.S.
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Postal Service who engages in the theft or destruction of undelivered United States
mail.” Id. As we will explain later, even though Ward was not a Postal Service
employee, that provision does have implications for this case.
This Court has never addressed the specific issue of whether § 3B1.3 may be
applied to enhance the sentence of an armored car guard, or the sentence of a
messenger of an armored car company or a courier, which are positions similar to
that of a guard. Two other circuits, however, have addressed the issue as it
involves couriers or messengers. The Eighth Circuit in United States v. Jankowski,
194 F.3d 878 (8th Cir. 1999), determined that the defendant’s position as a
messenger for an armored car company fell “far short” of being a position of public
or private trust.
Id. at 885. The court reasoned that because a messenger of an
armored car does not occupy a position with “substantial discretionary judgment
that is ordinarily given considerable deference,” as required by the commentary to
§ 3B1.3, such a messenger does not occupy a position of public or private trust.
See id. (quoting U.S.S.G. § 3B1.3, comment. (n.1)).
The D.C. Circuit also reached the same conclusion about the position of a
courier in United States v. West,
56 F.3d 216 (D.C. Cir. 1995). The Court
reasoned that if a courier could be subject to an abuse of trust enhancement
“merely because he or she is entrusted with valuable things,” the enhancement
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would eventually be extended “to cover endless numbers of jobs involving
absolutely no professional or managerial discretion, in clear contravention of the
plain language of the commentary to section 3B1.3.”
Id. at 221; but cf. United
States v. Boyle,
10 F.3d 485, 489 (7th Cir. 1993) (stating that “application of the
enhancement depends on whether the defendant has access or authority over
valuable things.” (internal marks and citations omitted)).1 The Court in West
explained that “[e]ach of [the] examples [in the commentary] contemplates a
‘professional’ or ‘manager’ who, because of his or her special knowledge,
expertise, or managerial authority, is trusted to exercise ‘substantial discretionary
judgment that is ordinarily given considerable deference.’” West,
56 F.3d at 220
(quoting U.S.S.G. § 3B1.3, comment. (n.1)). The Court concluded that the
defendant’s “duties as a courier did not involve substantial professional or
managerial discretion, and thus [] [he] did not occupy a position of trust within the
meaning of section 3B1.3.” Id.
We agree with the Eighth Circuit’s reasoning in Jankowski and the D.C.
Circuit’s reasoning in West and believe that it fits the position of armored car
1
The Court decided in Boyle that the defendant, the president of a company responsible for
storing and delivering coins for the Federal Reserve Bank, held a position of trust and affirmed the
application of a two-level enhancement under § 3B1.3. Boyle,
10 F.3d at 489. There is a world of
difference between the trust and discretion reposed in the president of a security company and that
given to one of the company’s many guards.
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guard equally well. The fact that Ward was charged by Brinks with the duty to
guard its property while it was in their armored car does not necessarily make his
position one of trust within the meaning of § 3B1.3. See United States v. Tribble,
206 F.3d 634, 637 (6th Cir. 2000) (stating that “just because we trust a person to
handle another’s property in the course of their job does not mean they occupy a
‘position of trust’ for the purpose of § 3B1.3"). Much like the defendants in
Jankowski and West, Ward had very little discretion in performing his duty as a
security guard. Essentially, Ward’s duty was to ride in the back of the armored car
and guard the money carried in the car from theft. He was given no discretion over
where the pick-up and delivery of bank deposits would occur, what would be
delivered or picked up, the route the armored car would take, or the schedule of
deliveries. Ward was closely, albeit not constantly, supervised by his employer.
The money he guarded was processed at the Brinks terminal upon delivery, and
any discrepancy between the money received and delivered would be – and was –
noticed.
An armored car guard position is comparable to “an ordinary bank teller or
hotel clerk” position which we know from the commentary to be outside the scope
of the enhancement. Such a guard does not possess any more discretion or
managerial authority than a bank teller or hotel clerk, and all three are carefully
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supervised positions. A guard on an armored car is also in a position similar to that
of a mail carrier, because they both carry property belonging to others from one
point to another. The Sentencing Commission felt it necessary in the commentary
to provide that notwithstanding the other commentary provisions, the enhancement
should be applied in the case of any employee of the United States Postal Service
who steals or destroys undelivered mail. That indicates to us that the Commission
thought that otherwise mail delivery positions would not be covered. No such
express inclusion “notwithstanding the preceding [provisions]” was included for
armored car guard positions, so they remain excluded.
If we were to interpret the § 3B1.3 enhancement to apply to those
occupying positions with as little discretion and managerial authority as armored
car guards, it would be applicable to practically every position that “facilitated the
commission or concealment of the offense.” That would be wrong. As we have
stated, “section 3B1.3 simply does not extend to every employment situation.”
United States v. Long,
122 F.3d 1360 (11th Cir. 1997).
For these reasons, we conclude that Ward’s position as a guard on an
armored car did not involve substantial professional or managerial discretion, and
therefore was not a position of public or private trust within the meaning of §
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3B1.3. As a result, the district court should not have applied that enhancement in
calculating Ward’s sentence.
CONCLUSION
The sentence in this case is VACATED and the case is REMANDED for the
limited purpose of re-sentencing without the § 3B1.3 enhancement.
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