United States v. Kimble , 70 F. App'x 113 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4096
MICHAEL F. KIMBLE, SR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CR-02-549)
Submitted: July 10, 2003
Decided: July 17, 2003
Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
COUNSEL
William B. Moffitt, L. Barrett Boss, Peter B. Paris, ASBILL, MOF-
FITT & BOSS, CHTD., Washington, D.C., for Appellant. Paul J.
McNulty, United States Attorney, Michael J. Elston, Assistant United
States Attorney, D. Kyle Sampson, Special Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
2 UNITED STATES v. KIMBLE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Michael F. Kimble, Sr., pled guilty to identification theft, 18
U.S.C. § 1028(a)(7), (b)(1)(D) (2000), and the district court sentenced
him to twelve months and one day imprisonment. Kimble appeals the
imposition of a two-level upward adjustment for abuse of a position
of trust under U.S. Sentencing Guidelines Manual § 3B1.3 (2002),
and the sentencing court’s failure to grant him a downward departure.
We affirm in part and dismiss in part.
Kimble argues the district erred when it applied a two-level
enhancement for abuse of a position of trust under USSG § 3B1.3.
We review the application of the enhancement for clear error. United
States v. Godwin, 272 F.3d 659, 671 (4th Cir. 2001). The determina-
tion of whether a defendant held a position of trust is examined from
the victim’s perspective. Id. The district court properly concluded
Kimble held a position of trust with respect to the recruits who gave
confidential and identifying information to the Army recruiting sta-
tion Kimble commanded and with respect to the enlisted personnel
who served under him. The district court did not clearly err in finding
Kimble was in charge of the records and the confidentiality of those
records. We further find that Kimble misled the postal inspector
investigating the identity thefts, failed to report the investigation to
the proper Army authorities and attempted to conceal his crime by
paying the debts he created anonymously. Therefore, the district court
did not clearly err in applying an upward adjustment for abuse of
trust.
Kimble asserts that the district court abused its discretion in failing
to grant a downward departure. We can review a district court’s deci-
sion whether to depart downward only if the district court mistakenly
believed it was without authority to depart. United States v. Shaw, 313
F.3d 219, 222 (4th Cir. 2002); United States v. Bayerle, 898 F.2d 28,
UNITED STATES v. KIMBLE 3
30-31 (4th Cir. 1990). There is nothing in this record to suggest that
the court was unaware of its authority to grant a downward departure;
therefore we conclude that this claim is not subject to appellate
review. This portion of the appeal must be dismissed.
Accordingly, we affirm Kimble’s sentence. We dismiss the portion
of the appeal which contests the district court’s decision not to depart.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART; DISMISSED IN PART