United States v. Jerome ( 2002 )


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  •                           UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,               
    Plaintiff-Appellee,
    v.                             No. 01-4698
    TRACIE JEROME,
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the Eastern District of Virginia, at Alexandria.
    Claude M. Hilton, Chief District Judge;
    Albert V. Bryan, Jr., Senior District Judge.
    (CR-01-51-A)
    Submitted: May 20, 2002
    Decided: June 7, 2002
    Before MICHAEL, MOTZ, and KING, Circuit Judges.
    Affirmed in part and vacated and remanded in part by unpublished
    per curiam opinion.
    COUNSEL
    Amy L. Austin, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
    Richmond, Virginia, for Appellant. Paul J. McNulty, United States
    Attorney, Patricia M. Haynes, Assistant United States Attorney, Mau-
    rice Eitel Stucke, Special Assistant United States Attorney, Alexan-
    dria, Virginia, for Appellee.
    2                      UNITED STATES v. JEROME
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    PER CURIAM:
    Tracie Jerome was charged in an eight-count indictment and con-
    victed of three counts following a jury trial: Count 3, embezzlement
    by a bank employee on December 7, 1996 of funds not in excess of
    $1000 in violation of 
    18 U.S.C.A. § 656
     (West 2000); Count 7, falsi-
    fication of a bank entry on October 4, 1997 in violation of 
    18 U.S.C.A. § 1005
     (West 2000); and Count 8, embezzlement by a bank
    employee on July 7, 1997 of funds in excess of $1000 in violation of
    
    18 U.S.C.A. § 656
    .
    The district court sentenced Jerome to twelve months in prison for
    Count 3, eighteen months in prison for Count 7, and eighteen months
    in prison for Count 8, to run concurrently, and four years of super-
    vised release. Jerome was assessed $13,660.74 in restitution. On
    appeal, Jerome argues: (1) the evidence was insufficient to support
    her convictions; (2) the district court erred when it applied a two-level
    enhancement for abuse of a position of trust under U.S. Sentencing
    Guidelines Manual § 3B1.3 (2000); and (3) the district court erred
    when it applied a two-level enhancement for obstruction of justice
    under USSG § 3C1.1.
    We review the verdict to determine whether there is substantial evi-
    dence, taken in the light most favorable to the Government, to support
    the conviction. Glasser v. United States, 
    315 U.S. 60
    , 80 (1942).
    When considering the sufficiency of the evidence, we do not review
    the credibility of a witness’s testimony. United States v. Hobbs, 
    136 F.3d 384
    , 391 n.11 (4th Cir. 1998). Jerome argues the evidence was
    insufficient to support her conviction of Count 3, embezzlement on
    December 7, 1996, based on her mishandling a customer’s deposit.
    Jerome also argues the evidence was insufficient to establish that she
    made a false entry on her daily cash settlement on October 4, 1997
    as charged in Count 7 and that she embezzled in excess of $1000 as
    UNITED STATES v. JEROME                        3
    charged in Count 8. We have thoroughly reviewed the evidence and
    conclude without difficulty that, when viewed in the light most favor-
    able to the Government, it is sufficient to support Jerome’s convic-
    tion.
    Second, Jerome argues the district court improperly applied a two-
    level enhancement for abuse of a position of trust under USSG
    § 3B1.3. The application of the enhancement is reviewed for clear
    error. United States v. Godwin, 
    272 F.3d 659
    , 671 (4th Cir. 2001),
    cert. denied, No. 01-9474, 
    2002 WL 524554
     (U.S. May 13, 2002).
    Generally, the abuse of a position of trust enhancement is not applica-
    ble "in the case of embezzlement or theft by an ordinary bank teller."
    USSG § 3B1.3, comment. (n.1). The enhancement may be applied to
    a bank teller, however, if the defendant: (1) had special duties or spe-
    cial access to information not available to other employees; (2) had
    little supervision or a high degree of managerial discretion; and (3)
    was more culpable than others who hold similar positions and commit
    similar crimes. United States v. Gordon, 
    61 F.3d 263
    , 269 (4th Cir.
    1995). The sentencing court applied the abuse-of-trust enhancement
    based on a finding that Jerome was the acting head teller in the
    absence of the head teller. The trial record, however, does not estab-
    lish that Jerome was assigned or actually performed the duties of a
    head teller. The testimony at trial established that Jerome was
    assigned the same responsibilities and treated the same as all other
    non-supervisory tellers employed at the bank, that she did not have
    special access to security information, and that she was supervised in
    the same manner as all bank tellers. Based on the evidence at trial, we
    conclude the district court erred when it applied the abuse-of-trust
    enhancement.
    Finally, Jerome argues the district court erred when it applied a
    two-level enhancement for obstruction of justice under USSG § 3C1.1
    based on Jerome’s perjury and the suborning of her mother’s testi-
    mony. To establish an obstruction of justice enhancement based on
    perjury, the sentencing court must find by a preponderance of the evi-
    dence that the testimony was false, that it concerned a material matter,
    and that it was given with willful intent to deceive. United States v.
    Smith, 
    62 F.3d 641
    , 646 (4th Cir. 1995). We have reviewed the trial
    testimony and find no error in the district court’s application of the
    sentencing enhancement.
    4                      UNITED STATES v. JEROME
    We therefore affirm Jerome’s conviction. We conclude the district
    court clearly erred in applying the abuse of a position of trust
    enhancement, thus causing Jerome’s sentencing guidelines range to
    be eighteen to twenty-four months rather than twelve to eighteen
    months. We therefore vacate Jerome’s sentence and remand to the
    district court for re-sentencing. 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; VACATED AND REMANDED IN PART