United States v. Patricia Foreman , 926 F.2d 792 ( 1991 )

ORDER

The above-entitled opinion found at 905 F.2d 1335 (9th Cir.1990) is amended per the attached. With these amendments Judges Browning and Boochever vote to deny the petition for rehearing. Judge Reinhardt votes to grant it. Judges Browning and Reinhardt reject the suggestion for rehearing en banc and Judge Boochever so recommends.

The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. (Fed.R.App.P. 35.)

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

AMENDED OPINION

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. Specifically, as it was a warm summer evening, Foreman’s wearing of a heavy, denim jacket captured the officers’ attention. They noticed her approach the United Airlines ticket counter, purchase a ticket for a flight to St. Louis, and begin to run toward the departure gate.

They approached her, identified themselves as police officers, and asked if they could speak with her. In response to their request for identification, she showed them her Wellston badge and police identification and stated that she was an active sworn police officer. The officers asked her if she was carrying any drugs to which she replied, “No.” They asked if they could search the small carry-on bag she carried. She answered, “What for?” The officers advised her that she was acting suspiciously. She responded that she did not have anything in her bag and started to walk toward the security screening checkpoint.

As she approached the checkpoint, the officers noticed an unusual bulge in her stomach area, around her belt line. They asked her to stop so they could speak with her again. She told them she had nothing in the bag and unzipped it to show them. The officers asked her about the bulge around her stomach area. She said it was a belt. She consented to allowing one of them to feel the bulge. An officer determined that it was a plastic bag containing a soft, powdery substance later chemically identified as cocaine. Another bag was found in her jacket. The officers 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. Instead, in its calculation of the sentence range, 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 as she “abused a position of public ... trust ... in a manner that significantly facilitated the ... 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 constitute an abuse of her position of trust “in a manner that significantly facilitated” concealment of 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 district 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, 1198, 4 L.Ed.2d 1218 (1960)) (citations omitted).

Foreman raises both factual and legal issues. The factual issue is whether Foreman flashed her badge hoping to thwart the officers’ investigation. 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). 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 abuse of a position of trust in a manner that significantly facilitated the concealment of an offense which was not successfully concealed. We review the district court’s legal interpretation of the Guidelines de novo.

Foreman argues, as a factual matter, that she showed her badge in response to police questioning and had no intention of using it to deflect their investigation. The district court, however, 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.

Foreman does not dispute the fact that she showed her badge to the investigating officers after they began questioning her. A police officer knows the power of her badge. Symbolizing the power of the state, a badge invests its possessor with control over people and access to places. This action and the circumstances surrounding it lead to a strong inference that Foreman’s conduct was intentional and that she hoped to conceal her cocaine possession.

Foreman argues she was trained to identify herself as a police officer and was merely following orders when she flashed her badge. She further represents that she showed her badge only because it was on top of her driver’s license in her wallet. We doubt that Foreman was trained to carry her badge and police identification while smuggling cocaine. Likewise she was not compelled to tell the investigating officers that she was an active sworn police officer. Certainly one reasonable inference is that she kept her badge with her for the very purpose she used it, to exhibit to officers in the event she was stopped, and thus deflect questioning. Accordingly, we hold the district court’s finding that Foreman used her badge to deflect police questioning was not clearly erroneous.

Turning to the legal issues on appeal, 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. Notwithstanding that having a police badge itself may be a special privilege, 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 inferred. More specifically, police officers are accorded public trust to enforce the law. The public, including fellow law enforcement agents, expect that police officers will not violate the laws they are charged with enforcing. Foreman took advantage of that trust to make it easier for her to conceal criminal activity. We believe that this is precisely the type of situation contemplated by § 3B1.3 as an abuse of position of public trust. We hold, therefore, that the district court correctly concluded that Foreman’s use of her position as a police officer constituted an abuse of a 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” concealment of 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. The district court found, however, that she did not merely attempt to use her position, but that she actually abused it. Moreover, Foreman’s focus on the success of her efforts, or lack thereof, is misplaced.

The language of § 3B1.3 does not require the abuse of a position of trust to result in the successful concealment of the offense. If that were case § 3B1.3 would have read, “[i]f the defendant abused a position of ... trust ... in a manner that resulted in the commission or concealment of the offense” instead of requiring only that the abuse of position of trust occur “in a manner that significantly facilitated the ... concealment.”

“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 Identifying oneself as a police officer and using the symbols of that position make it significantly easier to conceal possession of a controlled substance. It was significantly easier for Foreman to conceal her possession of cocaine because she identified herself as a police officer and used the symbols of that position.

Any other reading of § 3B1.3 would make enhancement of Foreman’s sentence because of her abuse of her position of trust depend entirely upon the gullibility of the police officers rather than upon Foreman’s own culpability, as the Guidelines intend. See Background § 3B1.3. If the officers had discontinued their investigation and waved Foreman on in reliance on her badge, and discovered her guilt only later, Foreman’s breach of her position of trust would have resulted in an enhancement of her offense since it would have concealed her offense, albeit temporarily. To make the enhancement applicable in that situation but not in the present one would treat her degree of culpability differently for exactly the same conduct. Such a reading of § 3B1.3 would be unreasonable.

We hold, therefore, that the district judge properly applied § 3B1.3 in adjusting upward Foreman’s sentence as her use of her badge and police identification to deflect police questioning made it significantly easier for her to conceal her cocaine possession.

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 concealment of the offense, whether successful or not. The district court’s factual finding that Foreman used her position as a police officer to deflect a criminal investigation was not clearly erroneous and, therefore, the court 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 798 (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 facilitating the crime and not merely have provided an opportunity that could as easily have been afforded to other persons.” Guidelines § 3B1.3 (Application Note 1) (emphasis added).

In contrast to the use of the badge to board a plane more speedily which would slightly facilitate concealment, here, Foreman used it to deflect investigation of her criminal activity. Thus, the district court's finding that such use significantly facilitated concealment of Foreman’s crime was not clearly erroneous. See McConney, 728 F.2d at 1204.