United States v. England ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5333
TAMMY SELLARS ENGLAND,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Shelby.
Lacy H. Thornburg, District Judge.
(CR-94-48)
Submitted: April 30, 1996
Decided: June 10, 1996
Before MURNAGHAN and WILKINS, Circuit Judges, and
CHAPMAN, Senior Circuit Judge.
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Affirmed in part and dismissed in part by unpublished per curiam
opinion.
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COUNSEL
Thomas J. Ashcraft, Charlotte, North Carolina; Stephen T. Daniel,
DANIEL & LECROY, P.A., Morganton, North Carolina, for Appel-
lant. Mark T. Calloway, United States Attorney, Peter Crane Ander-
son, Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Tammy S. England entered a guilty plea to an information charging
her with bank embezzlement, 18 U.S.C.A. § 656 (West Supp. 1996),
and was sentenced to serve twelve months imprisonment. She appeals
her sentence, contending that the district court clearly erred in adjust-
ing her offense level upward for abuse of a position of trust, USSG
§ 3B1.3,* and more than minimal planning, USSG§ 2B1.1(b)(5)(A).
She also contests the court's decision not to depart on the basis of
diminished capacity, USSG § 5K2.13. We affirm in part and dismiss
in part.
England worked at Wachovia Bank in Morganton, North Carolina,
for ten years, first as a teller and later as a customer service represen-
tative. In the latter position, she embezzled around $70,000 from the
bank between February 1989 and September 1993. An audit of the
Safe Deposit Income Account in August 1993 revealed numerous
transfers of funds from that account to England's personal account.
When the fraud was discovered, England entered a guilty plea and
made restitution before she was sentenced. She explained that her
embezzlement was caused by an overwhelming desire to shop and
spend money. The probation officer recommended 2-level enhance-
ments for more than minimal planning, USSG § 2B1.1(b)(5)(A), and
for abuse of a position of trust, USSG § 3B1.3.
England argued at sentencing that she suffered from an obsessive
compulsive disorder similar to kleptomania. Thus, her attorney
argued, she had diminished capacity to control her actions, which pre-
sumably made each separate instance of embezzlement an unpremedi-
tated action. England submitted three letters from a psychiatrist who
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*United States Sentencing Commission, Guidelines Manual (Nov.
1994).
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stated that she had "a rather diminished capacity to control her behav-
ior," as well as impaired judgment due to stress. The district court
overruled her objection. The court's factual finding that she had
engaged in more than minimal planning is reviewed under the clearly
erroneous standard. United States v. Pearce, 65 F.3d 22, 26 (4th Cir.
1995).
More than minimal planning is defined in the guidelines as "more
planning than is typical for commission of the offense in a simple
form." USSG § 1B1.1, comment. (n.1(f)). The commentary states that
more than minimal planning is "deemed present in any case involving
repeated acts over a period of time, unless it is clear that each instance
was purely opportune." Id. An embezzlement committed by a single
false book entry shows minimal planning. Id. England's offense
involved multiple false book entries spanning a number of years and
clearly falls within the definition. The district court did not clearly err
in finding that England had not shown that she was mentally impaired
to such an extent that the enhancement should not apply.
Defense counsel also argued that England did not have a position
of trust because her job was one step above that of bank teller. Rather
than having control over the Safe Deposit Income Account, as stated
in the presentence report, counsel asserted that she functioned as sec-
retary to the retail banking manager. After considering the statement
England gave to the bank's investigator, in which she said that she
was the custodian of the Safe Deposit Income Account and made the
credit and debit entries, the court found that England had abused a
position of trust.
The district court's decision on this factual issue is reversible only
if it is clearly erroneous. United States v. Helton, 953 F.2d 867, 869
(4th Cir. 1992). The factors to be considered in determining whether
a defendant abused a position of trust are: (1) whether the defendant
had special duties or special access to information not available to
other employees; (2) what level of supervision or degree of manage-
rial discretion was present; and (3) whether the particular defendant
is more culpable than others who hold similar positions. United States
v. Gordon, 61 F.3d 263, 269 (4th Cir. 1995). The question of whether
a defendant held a position of trust must be approached from the per-
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spective of the victim. Id. The answer does not depend on formalistic
definitions of job type. Id.The commentary to USSG § 3B1.3 describes embezzlement by an
attorney serving as a guardian as an example of an abuse of a position
of trust, while a bank teller's embezzlement would not qualify for the
adjustment because a teller is closely supervised and lacks profes-
sional discretion. England argues that her position was analogous to
a bank teller's. From the information provided about her position it
does appear that she had little or no professional discretion, a factor
that weighs heavily against the finding that she had a position of trust.
However, England had a special duty in that she was responsible for
the day-to-day operation of the Safe Deposit Income Account, and
she had access to those accounts. Most importantly, unlike a closely-
supervised bank teller, England appears to have worked with little or
no supervision, and was thus able to carry on her embezzlement for
several years without its being discovered, even though she took no
particular steps to conceal it. Thus, in practice, the victim bank seems
to have reposed considerable trust in her. Although it is a close ques-
tion, we cannot say that the district court's determination that England
held a position of trust was clearly erroneous.
England also maintains that the district court did not make "a prin-
cipled exercise of discretion" concerning departure and improperly
considered the issue to be intertwined with its previous rulings. She
does not argue that the district court failed to understand its authority
to depart, nor would the record support such an argument. It is clear
that the district court exercised its discretion in deciding against a
departure. Consequently, its decision is not reviewable. United States
v. Bayerle, 898 F.2d 28, 31 (4th Cir.), cert. denied, 498 U.S. 819(1990).
We therefore affirm the sentence imposed. We dismiss that portion
of the appeal in which England seeks to appeal the district court's
decision not to depart. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED IN PART, DISMISSED IN PART
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