United States v. Patricia Foreman , 905 F.2d 1335 ( 1990 )

BOOCHEVER, Circuit Judge:

Patricia Foreman challenges the district court's imposition of a two-level upward adjustment of offense level for "abuse of position of trust" pursuant to § 3B1.3 of the Guidelines.¹ We find that the adjustment was warranted and affirm the district court's decision.

FACTS AND PROCEDURAL HISTORY

On July 20, 1988, Foreman was a Well-ston, Missouri police officer. On that date she was questioned by Los Angeles Police Department officers and Drug Enforcement Agency agents in the Los Angeles International Airport after the officers observed what they considered suspicious behavior on her part. When they identified themselves and asked for her identification, she showed them her police badge and stated that she was an active police officer. The officers continued with their questioning and eventually arrested her for possession of a controlled substance.

Foreman was indicted August 5, 1988, and pled guilty on November 14, 1988, to one count of possession with intent to distribute 310 grams of cocaine in violation of 21 U.S.C. § 841(a)(1) (1982). In determining her sentence under the Guidelines, the district court included a two-level upward adjustment for abuse of a position of trust, concluding that Foreman had “used her position as a police officer to attempt to dissuade the investigating officers from proceeding further with their investigation.” The court concluded that her range of sentence was 33 to 41 months and found no basis for departure from that range because of Foreman’s strong standing in her community and the great sense of shame and embarrassment she felt from her betrayal of her position in the community. In its calculation of the sentence range, however, the court allowed a two-level downward adjustment for “acceptance of responsibility.” On January 23, 1989, the court sentenced her to 33 months in custody followed by three years of supervised release.

DISCUSSION

Foreman was assessed a two-level upward adjustment for abuse of a position of trust “in a manner that significantly facilitated the commission or concealment of [her] offense.” United States Sentencing Commission, Guidelines Manual § 3B1.3. Specifically, the district court found she abused a position of trust by showing her badge and police identification to the investigating officers during their initial questioning. She challenges this adjustment, claiming that the use of her police identification did not abuse her position of trust “in a manner that significantly facilitated” her crime.

The statute establishing appellate review of sentencing decisions under the Guidelines provides that the court of appeals “shall give due deference to the district court’s application of the guidelines to the facts.” 18 U.S.C.A. § 3742(e) (West Supp. 1989) (emphasis added); accord United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir.1989).

This standard is intended to give the court of appeals flexibility in reviewing an application of a guideline standard that involves some subjectivity. The deference due a distirct [sic ] court’s determination will depend upon the relationship of the facts found to the guidelines standard being applied. If the particular determination involved closely resembles a finding of fact, the court of appeals would apply a clearly erroneous test. As the determination approaches a purely legal determination, however, the court of appeals would review the determination more closely.

134 Cong.Rec. H11257 (daily ed. Oct. 21, 1988). This definition of “due deference” parallels the standard of review for mixed questions of law and fact we announced in United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). United States v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir.1989) (citing McConney).

If application of the rule of law to the facts requires an inquiry that is “essentially factual,” one that is founded “on the application of the fact-finding tribunal’s experience with the mainsprings of human conduct,” ... the district court’s determination should be classified as one of fact reviewable under the clearly erroneous standard. If, on the other hand, the question requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles, ... the question should be classified as one of law and reviewed de novo.

McConney, 728 F.2d at 1202 (quoting Commissioner v. Duberstein, 363 U.S. 278, 289, 80 S.Ct. 1190, 1199, 4 L.Ed.2d 1218 (1960)) (citations omitted).

In using the statutory due deference standard, we distinguish our recent statement in United States v. Restrepo, 884 F.2d 1294, 1295 (9th Cir.1989), that application of the Guidelines is reviewed de novo. In Restrepo we reviewed the district court’s construction of the Guidelines themselves, clearly a question of law. We therefore accorded no deference, the practical equivalent of de novo review, to the district court's interpretation. We construe Restrepo's unmodified assertion that application of the Guidelines is reviewed de novo as applicable only to legal determinations of the Guideline's provisions.

Foreman raises both legal and factual issues. The legal issues are whether an abuse of a position of trust must implicate a special privilege accorded someone in that position and whether an upward adjustment under § 3B1.3 is proper for use of a position of trust in a manner that significantly facilitated the attempted concealment of that offense. We review the district court's legal interpretation of the Guidelines de novo. See Restrepo, 884 F.2d at 1295. The factual issue is whether Foreman's conduct significantly facilitated the concealment of her crime. We defer to the factual determinations made by the district court in the course of its application of the Guidelines unless they are clearly erroneous. See United States v, Wills, 881 F.2d 823, 827 (9th Cir.1989).

Section 3B1.3 states: "If the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels." Guidelines Manual, § 3B1.3. Foreman argues that § 3B1.3 applies only to abuses of trust that involve use of a special privilege accorded someone in that position of trust. She claims that § 3B1.3 is therefore inapplicable to her because she did not abuse any special privilege accorded her as a police officer by showing her badge and police identification to the investigating officers. We find no merit in this argument. The adjustment in § 3B1.3 is for "abuse of a position of trust." The guideline does not expressly limit such abuse to special privileges accorded to one with a position of trust, nor do we believe that such a limitation can be implied. More specifically, police officers are accorded public trust to enforce the law. The public, including fellow law enforcement agents, tend to trust that police officers will not violate the laws they are charged with enforcing. Foreman attempted to take advantage of that trust to conceal her criminal activity. We believe that this is precisely the type of situation contemplated by § 3B1.3 as an abuse of position of public trust.

Foreman also contends that any efforts on her part to use her position as a police officer to avoid investigation were unsuccessful and thus could not have "significantly facilitated" her crime. She claims that mere attempts to use a position of trust to significantly facilitate a crime do not come within the Guidelines and therefore do not justify the upward adjustment imposed here. While Foreman correctly asserts that the language of § 3B1.3 does not include "attempts," her focus on the success of her efforts, or lack thereof, is misplaced.

Initially we note that the language of § 8B1.3 does not require the abuse of a position of trust to result in the successful commission or concealment of the offense. Rather, § 3B1.3 requires only that the abuse of position of trust occur "in a manner that significantly facilitated" the crime (emphasis added). "Facilitate" is defined as "to make easier or less difficult." Webster's Third New International Dictionary 812 (1976). Thus, the guideline's use of the word "facilitated" implies that the drafters of this section intended it to apply to any abuse of a position of trust which significantly made it easier to commit or conceal a crime, regardless of the success of that abuse.²

Before drawing such an implication, we recognize that the Sentencing Commission has specifically provided for attempts in other sections of the Guidelines. See, e.g., Guidelines Manual § 3C1.1 (providing an adjustment “[i]f the defendant willfully impeded or obstructed, or attempted to impede or obstruct the administration of justice”). Under general principles of statutory construction, “[w]hen some statutory provisions expressly mention a requirement, the omission of that requirement from other statutory provisions implies that [the Commission] intended both the inclusion of the requirement and the exclusion of the requirement.” West Coast Truck Lines, Inc. v. Arcata Community Recycling Center, Inc., 846 F.2d 1239, 1244 (9th Cir.), cert. denied, 488 U.S. 856, 109 S.Ct. 147, 102 L.Ed.2d 119 (1988) (emphasis in original). Section 3B1.3’s exclusion of any provision for attempts, therefore, would generally preclude the implication of such a provision in this guideline. In ascertaining the Commission’s intent, however, “we strive to interpret language in one section of a statute consistently with the language of other sections and with the purposes of the entire statute considered as a whole.” Adams v. Howerton, 673 F.2d 1036, 1040 (9th Cir.), cert. denied, 458 U.S. 1111, 102 S.Ct. 3494, 73 L.Ed.2d 1373 (1982). Refusing to allow for attempts in § 3B1.3 would be inconsistent with the Commission’s overall Guidelines policy on attempts.

The Guidelines treat attempts that are not covered by a specific offense guideline the same as completed offenses when “the defendant completed all the acts the defendant believed necessary for successful completion of the offense or the circumstances demonstrate that the defendant was about to complete all such acts but for the apprehension or interruption by some similar event beyond the defendant’s control.” Guidelines Manual § 2Xl.l(b)(l); see id. § 2F1.1 (Application Note 7) (“In keeping with the Commission’s policy on attempts, if a probable or intended loss that the defendant was attempting to inflict can be determined, that figure would be used if it was larger than the actual loss.”). Here, Foreman completed all the acts she believed necessary to conceal her offense. Consistent with the Guidelines’ position on attempts, therefore, her attempt to conceal her offense should be treated the same as a successful concealment. Abuse of a position of trust is not a substantive offense, but we believe the Guidelines’ approach to attempts in general lends support to our interpretation of § 3B1.3.

The dissent argues that the Commission’s policy on attempts is inapplicable in these circumstances because it “addresses only the determination of base offense levels, and says nothing about adjustments.” Dissent at 1343 (emphasis in original). Thus, according to the dissent, we improperly apply principles governing the sort of crime the defendant committed (established in Chapter Two of the Guidelines) to the harm caused by the means the defendant employed to commit the crime (established in Chapter Three).

The dissent misconstrues our decision. We do not interpret § 3B1.3 to include attempts to facilitate the crime. Rather, we believe the Commission intended to include facilitation of attempts to conceal the crime within the provisions of this guideline. In applying an adjustment for abuse of a position of trust, therefore, our inquiry is analogous to determining the proper offense level: we must assess the defendant’s criminal culpability. “This adjustment applies to persons who abuse their positions of trust ... to facilitate significantly the commission or concealment of a crime. Such persons generally are viewed as more culpable.” Guidelines § 3B1.3 (Background) (emphasis added). In the words of the dissent, we find “there is little difference in criminal culpability between one who [conceals] crime A and one who commits all the acts necessary to the [concealment] of a crime A but is unexpectedly foiled." Dissent at 1343 n. 4. Without deciding whether the Commission’s policy on attempts applies to any other adjustment, we believe that policy applies to an abuse of a position of trust which significantly facilitated a defendant’s attempt to conceal the crime with which he is charged. We hold, therefore, that § 3B1.3 may be read to provide an adjustment for abuse of position of trust that significantly facilitated the attempted concealment of the offense.

Foreman’s final argument is that, as a factual matter, her conduct did not significantly facilitate her crime. She claims that she showed her badge in response to police questioning and had no intention of using it to deflect their investigation. The district court made the following findings and conclusions:

The facts are that when defendant was first approached by the police at the Los Angeles Airport, she displayed her badge and police identification to the officers. Given the circumstances of the display of police identification and badge, the court is satisfied that the defendant then used her position as a police officer to attempt to dissuade the investigating officers from proceeding further with their investigation. This attempt was not successful. However, it was an abuse of the position of trust for the defendant to use her employment as a police officer to attempt to deflect the investigation of her, and thus attempt to escape responsibility for her criminal activity.

We interpret this language as a finding that Foreman’s conduct significantly facilitated her attempt to conceal her offense. Foreman does not dispute the fact that she showed her badge to the investigating officers after they began questioning her. This action and the circumstances surrounding it lead to a strong inference that Foreman’s conduct was intentional and that it significantly facilitated her attempt to conceal her crime, even though her efforts were ultimately unsuccessful. While we recognize that other inferences might be drawn from these same facts, the findings of the district court were not clearly erroneous.

CONCLUSION

Abuse of a position of trust under § 3B1.3 is not limited to abuse of a special privilege accorded to one with a position of trust. Moreover, the enhancement provided in that section applies to an abuse of a position of trust that significantly facilitated the attempted concealment of the convicted offense. The district court, therefore, properly assessed a two-level upward adjustment in Foreman’s sentence.

AFFIRMED.

1 . Foreman also challenges the constitutionality of the Guidelines, claiming they violate due process by limiting the sentencing discretion of district courts and infringing defendants' rights to individualized sentences. We recently upheld the constitutionality of the Guidelines on these grounds in United States v. Brady, 895 F.2d 538 (9th Cir.1990). Foreman's constitutional challenge, therefore, is precluded by our decision in Brady.

2 . The dissent claims that we ignore § 3B1.3's use of the term "significantly," which the dissent argues "plainly requires the sentencing judge to assess the effect of the abuse, and to determine whether the effect was of sufficient magnitude: it must have furthered the crime or concealment ``significantly.'" Dissent at 1341-1342 (emphasis in original). "Significantly," however, does not modify "commission or concealment," but modifies "facilitated.' Thus, the inquiry is not the extent to which the abuse of trust furthered the crime or concealment, but whether the abuse made the crime significantly easier to commit or conceal.

The Commentary to the guideline is to the same effect. "The position of trust must have contributed in some substantial way to facilitat- ing the crime and not merely have provided an opportunity that could as easily have been afforded to other persons.” Guidelines § 3B1.3 (Application Note l)(emphasis added). In the Commentary, as in the text of the guideline itself, the focus is on the extent to which the abuse of trust contributed to the ease of the crime's commission or concealment. Neither the guideline nor the Commentary says anything about the extent to which the abuse of trust must contribute to the efficacy of the crime’s commission or concealment.