United States v. Blackwell ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5098
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BARBARA MAY BLACKWELL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon, District
Judge. (3:04-cr-00040)
Submitted: October 10, 2007 Decided: November 16, 2007
Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven D. Rosenfield, Charlottesville, Virginia, for Appellant.
John L. Brownlee, United States Attorney, William F. Gould,
Assistant United States Attorney, Charlottesville, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Barbara May Blackwell appeals her sentence to forty-two
months in prison, three years of supervised release, and
restitution after pleading guilty to two counts of wire fraud in
violation of 18 U.S.C. § 1343 (2000). On appeal, Blackwell
contends the district court erred in enhancing her sentence based
on its findings that she obstructed justice, did not accept
responsibility, and abused a position of trust. We affirm.
We will affirm a sentence imposed by the district court
as long as it is within the statutorily prescribed range and
reasonable. United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).
An error of law or fact can render a sentence unreasonable. United
States v. Green, 436 F.3d 449, 456 (4th Cir.), cert. denied, 126 S.
Ct. 2309 (2006). We review a district court’s factual findings for
clear error and its legal conclusions de novo. United States
v. Hampton, 441 F.3d 284, 287 (4th Cir. 2006). Issues raised for
the first time on appeal are reviewed for plain error. Hughes, 401
F.3d at 547. To establish plain error, the defendant must show:
(1) error; (2) that was plain or obvious; (3) the error affected
her substantial rights; and (4) this court should exercise its
discretion to notice the error. Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 732 (1993).
Blackwell contends the district court erred in finding
that she obstructed justice and applying a two-level enhancement
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under U.S. Sentencing Guidelines Manual (“USSG”) § 3C1.1 (2000),
and the court compounded its error by denying her a reduction for
acceptance of responsibility under USSG § 3E1.1. The probation
officer recommended that Blackwell receive the enhancement for
providing materially false information during the presentence
investigation. She answered “N.A.” to the question as to whether
she had been a party to any civil suits, even though she had three
civil judgments that the probation officer contended should be
included in relevant conduct. At sentencing, the Government argued
the enhancement was also supported by Blackwell’s materially false
statements during the sentencing hearing, and the district court
agreed. The court found Blackwell had obstructed justice and
denied her a reduction for acceptance of responsibility based on
the obstruction as well as the whole tenor of her testimony.
On appeal, Blackwell argues the district court clearly
erred in finding she obstructed justice by not revealing the three
civil judgments, because the court ultimately ruled they would be
excluded from the loss under USSG § 2F1.1(b)(1), and in finding she
falsely testified that one of her victims, Beekman Beavers, was
involved in the fraud, because she did not say he was involved in
the fraud. However, the issue whether the judgments should be
included as relevant conduct was a close one affecting the total
offense level, and Blackwell’s initial false statement was material
because, if believed, it would tend to influence or affect the
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issue. Moreover, Blackwell objected to the loss amounts associated
with Beavers based on her assertion that he was an “accomplice,”
not a victim, and she testified he “knew about every transaction”
and authorized her to use his accounts for overcharging, double-
billing, and other fraudulent transactions. Despite pleading
guilty, Blackwell further testified she “didn’t take any of the
money.” Based on our review of the record, we conclude the
district court did not clearly err in finding Blackwell obstructed
justice and did not accept responsibility.
Blackwell further contends the district court erred by
enhancing her sentence for abusing a position of trust pursuant to
USSG § 3B1.3. Because she did not raise this issue in the district
court, our review is for plain error. The enhancement applies when
a defendant abuses a position of public or private trust in a
manner that significantly facilitated the commission or concealment
of the offense. Such a position is characterized by professional
or managerial discretion, and persons holding such positions are
ordinarily subject to significantly less supervision than employees
whose responsibilities are primarily non-discretionary in nature.
USSG § 3B1.3 comment. (n.1). As we have explained, “fraud alone
does not justify the enhancement. We must carefully distinguish
between those arms-length commercial relationships where trust is
created by the defendant’s personality or the victim’s credulity,
and relationships in which the victim’s trust is based on the
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defendant’s position in the transaction.” United States v. Bollin,
264 F.3d 391, 415 (4th Cir. 2001) (internal quotations and
citations omitted). The enhancement applies where the defendant
has broad discretion to act on behalf of the victim, and the victim
believes the defendant will act in the victim’s best interest. Id.
at 416 (quotations and citations omitted). “[A]pplication of the
enhancement requires more than a mere showing that the victim had
confidence in the defendant. Something more akin to a fiduciary
function is required.” United States v. Caplinger, 339 F.3d 226,
237 (4th Cir. 2003) (internal quotations and citations omitted).
We have reviewed the record and conclude that Blackwell
has not shown the district court plainly erred in finding she
abused a position of trust. Blackwell, an Australian citizen,
owned, operated, and was president of Experience Australia Tours,
Inc., an independent travel broker specializing in Australian tour
packages for individuals and tour groups. Travel agencies sent
Blackwell payments and credit card information from customers,
relying on her to use the funds in making all the specific travel
arrangements, including airline flights, hotels, and tours that
were being purchased from other businesses. In her position with
Experience Australia Tours, Blackwell had managerial discretion and
unsupervised access to an extensive number of credit card accounts,
which she used to commit and conceal her crimes. Based on this
record, we cannot conclude the district court plainly erred in
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applying the enhancement. See Bollin, 264 F.3d at 416; United
States v. Akinkoye, 185 F.3d 192, 204-05 (4th Cir. 1999).
We therefore deny Blackwell’s second motion for remand,
motion for release, and motion for expedited review, and we affirm
the district court’s judgment. 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
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