United States v. Barrilleaux

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-31241
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KATHLEEN BARRILLEAUX,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 01-CR-144-B
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June 14, 2002
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Kathleen Barrilleaux appeals her sentence following her
guilty-plea conviction of bank fraud. Barrilleaux argues that
the district court erred in applying a two-level sentencing
adjustment under U.S.S.G. § 3B1.3 because a secretarial position
such as hers typically is not characterized by professional or
managerial discretion and the Government did not present any
evidence of discretionary duties of that caliber.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-31241
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Section 3B1.3 provides for a two-level adjustment “[i]f the
defendant abused a position of public or private trust . . . in a
manner that significantly facilitated the commission or
concealment of the offense.” U.S.S.G § 3B1.3. “[P]ublic or
private trust” refers to professional or managerial discretion,
i.e., substantial discretionary judgment that is ordinarily given
considerable deference. U.S.S.G. § 3B1.3, comment. (n.1).
We review the application of § 3B1.3 under the clearly
erroneous standard. See United States v. Iloani, 143 F.3d 921,
922 (5th Cir. 1998). “[T]he district court need be convinced of
the relevant facts only by a preponderance of the evidence.”
United States v. Reeves, 255 F.3d 208, 212 (5th Cir. 2001).
A district court may apply U.S.S.G. § 3B1.3 if (1) the
defendant occupied a position of trust and (2) the defendant
abused her position in a manner that significantly facilitated
the commission or concealment of the offense. See Iloani, 143
F.3d at 922. Although some might infer from her title of
secretary that Barrilleaux was an employee with little or no
discretion, the record evidence reflects that she was not merely
an ordinary secretary, but rather one who occupied a position of
trust within the meaning of U.S.S.G. § 3B1.3. Barrilleaux was
authorized to sign her employer’s name to certain checks, open
and review her employer’s mail, and pay her employer’s personal
and professional bills. We also note that Barrilleaux failed to
No. 01-31241
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argue that she did not use her position to significantly
facilitate the offense.
There is nothing in the record to suggest that the district
court clearly erred in applying the adjustment. See United
States v. Fisher, 7 F.3d 69, 71 (5th Cir. 1993). The judgment of
the district court is AFFIRMED.