United States v. Ernest J. Trice ( 2001 )


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  •                          United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 00-2902WA
    ___________
    United States of America,                 *
    *
    Appellee,                    * On Appeal from the United
    * States District Court
    v.                                  * for the Western District
    * of Arkansas
    *
    Ernest J. Trice,                          * [To Be Published]
    *
    Appellant.                   *
    ___________
    Submitted: March 13, 2001
    Filed: March 28, 2001
    ___________
    Before RICHARD S. ARNOLD and FAGG, Circuit Judges, and MONTGOMERY,1
    District Judge.
    ___________
    PER CURIAM.
    Ernest J. Trice pleaded guilty to making a fraudulent statement in violation of 
    18 U.S.C. § 1001
    . At sentencing, the District Court applied a two level sentence
    enhancement pursuant to U.S. Sentencing Guidelines Manual § 3B1.3 for abuse of a
    position of trust. On appeal, Trice challenges the application of the abuse of trust
    enhancement. We remand for resentencing.
    1
    The Hon. Ann D. Montgomery, United States District Judge for the District of
    Minnesota, sitting by designation.
    Trice was the President of the Board of Chaucer Street Apartments, Inc.
    ("CSAI"), a non-profit corporation formed to build a housing complex for handicapped
    individuals. Trice, on behalf of CSAI, sought federal funding from the United States
    Department of Housing and Urban Development ("HUD"). In obtaining this aid, Trice
    falsely stated on a HUD form that he had never been convicted of a felony. Trice had
    previously been convicted of the Arkansas Hot Check law, a felony. Trice was
    indicted on two counts, making a fraudulent statement and embezzlement from a
    federally funded program in violation of 
    18 U.S.C. § 666
    (a)(1)(A). Trice entered a plea
    of guilty to the fraudulent statement count and the embezzlement count was dismissed
    at sentencing.
    The district court's application of the Sentencing Guidelines is reviewed de novo,
    and findings of fact are analyzed for clear error. United States v. Hawkey, 
    148 F.3d 920
    , 926 (8th Cir. 1998). The U.S. Sentencing Guidelines provide that if the
    "defendant abused a position of public or private trust. . . in a manner that significantly
    facilitated the commission or concealment of the offense," the sentence should be
    increased by 2 levels. U.S.S.G. § 3B1.3. "'[T]he abuse of trust enhancement applies
    only where the defendant has abused discretionary authority entrusted to the defendant
    by the victim'; arm's-length business relationships are not available for the application
    of this enhancement." United States v. Garrison, 
    133 F.3d 831
    , 837 (11th Cir. 1998)
    (quoting United States v. Jolly, 
    102 F.3d 46
    , 48 (2d Cir. 1996)).
    Here, the victim of Trice's offense, making a fraudulent statement, was the
    United States. Because Trice was not in a position of trust vis-a-vis the United States,
    it was error to apply the enhancement. See 
    id.
     Moreover, the relationship between
    Trice and the United States was nothing more than an "arm's length business
    relationship." See 
    id.
     Accordingly, we remand the case for resentencing.
    -2-
    A true copy.
    ATTEST:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -3-
    

Document Info

Docket Number: 00-2902

Filed Date: 3/28/2001

Precedential Status: Precedential

Modified Date: 10/13/2015