United States v. Brack
2011 U.S. App. LEXIS 13649
| 4th Cir. | 2011Background
- Brack posed as a North Carolina licensed bail bondsman at a Greensboro jail to obtain Sapp's identifying information, cash, and deeds to two properties.
- Sapp, an elderly man, provided his social security number, driver's license, and ATM card to Brack to secure release of his granddaughter.
- Brack used Sapp's information to open lines of credit and to make purchases, including a Chihuahua and a Land Rover loan, without Sapp's permission.
- Investigators later found Sapp's information and the property deeds in Brack's residence, and evidence showed Brack used the information to incur nearly $9,400 in credit charges and related debit-card purchases.
- Brack pled guilty to one count of wire fraud and one count of aggravated identity theft; the district court applied a 2-level abuse-of-trust enhancement under U.S.S.G. § 3B1.3 based on Brack's alleged position as a bail bondsman.
- The district court upwardly varied to a 70-month sentence on the wire-fraud count, for a total of 94 months due to the mandatory 24-month term for aggravated identity theft.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Brack held a position of trust for § 3B1.3 | Government: bail bondsman status creates trust position in victim's view | Brack: NC bail bondsman lacks position of public/private trust | Yes; Brack held a position of trust for § 3B1.3 |
| Whether Brack's position significantly facilitated the offense | Brack used trust to obtain Sapp's information and facilitate fraud | Brack: no significant facilitation given arms-length relationship | Yes; position significantly facilitated the offense |
| What standard of review applies where no objection was raised at sentencing | Plain error standard applies; enhancement appropriate | Need not address on appeal due to lack of objection | Plain-error review applied; district court's enhancement upheld |
| Whether Caplinger controls the outcome | Caplinger supports no trust relationship because it was an arms-length venture | Caplinger distinguishable; Brack's relationship is fiduciary under § 3B1.3 | Caplinger distinguished; Brack's case fits § 3B1.3 |
Key Cases Cited
- United States v. Caplinger, 339 F.3d 226 (4th Cir. 2003) (Caplinger rejected imposter physician holding a position of trust; not controlling here)
- United States v. Gordon, 61 F.3d 263 (4th Cir. 1995) (fact that defendant lacks complete discretion does not preclude § 3B1.3)
- United States v. Moore, 29 F.3d 175 (4th Cir. 1994) (individualized culpability in abuse-of-trust analysis)
- United States v. Akinkoye, 185 F.3d 192 (4th Cir. 1999) (three-factor test for whether defendant held position of trust)
- United States v. Bollin, 264 F.3d 391 (4th Cir. 2001) (purpose of § 3B1.3 to penalize exploiting a trusted position)
- United States v. Abdelshafi, 592 F.3d 602 (4th Cir. 2010) (perspective from the victim; controlling interpretation of trust)
- United States v. Dawson, 587 F.3d 640 (4th Cir. 2009) (plain-error standard elements in appellate review of sentencing)
- United States v. Caplinger, 339 F.3d 226 (4th Cir. 2003) (distinguishes occupying a professional role from arms-length fraud)