UNITED STATES оf America, Plaintiff-Appellee, v. Eddie Ray WARD, Jr., Defendant-Appellant.
No. 99-11570.
United States Court of Appeals, Eleventh Circuit.
Aug. 15, 2000.
222 F.3d 909
Peggy Ronca, Dale Robert Campion, Jacksonville, FL, Tamra Phipps, Tampa, FL, for Plaintiff-Appellee.
Before BLACK, CARNES and KRAVITCH, Circuit Judges.
CARNES, Circuit Judge:
Eddie Ray Wаrd, Jr. appeals his sentence, contesting two enhancements applied by the district court. First, he contends that the district court erred in enhancing his base offense level by two pursuant to
Eddie Ray Ward, Jr. was employed by Brinks, Inc., as an armed security guard. He was assigned to accompany Brinks armored cars during the pick-up and delivery of bank deposits. On November 25, 1998, a Brinks armored car picked up money from a First Union Bank in Panama City, Florida and transported it to a secure location in Tallahassee, Florida. The money was then transferred from Tallahassee to Jacksonville, Florida. During this transfer, while the other guard working with him was absent, Ward removed $20,000 from one of the unsealed money bags in the car and placed the money in his lunch box.
On December 15, 1998, twenty days after the first theft, a Brinks armored car picked up money from Citizen States Bank in Kingsland, Georgia аnd transported the money to Jacksonville, Florida. Ward was working as the only security guard in the back of the car. At some point before arriving in Jacksonville, Ward broke the seal on the money bag, removed $70,000 in currency, and placed the money in his lunch box. Ward had somehow gotten an unbroken seal in advance, and when the armored car arrived at the Brinks office in Jacksonville, he obtained a crimper and used it to place the unbroken seal on the bag.
Eight days later, on December 23, 1998, Ward was questioned by FBI agents about the missing $90,000, and he admitted to steаling the money. He had already spent $38,000 of the stolen money on electronics equipment, food, liquor, football tickets and other items, but he turned over the remaining $52,000 to the FBI agents.
In January 1999 Ward was charged in a two-count indictment with the taking and carrying away, with intent to steal or purloin, mоney of a value exceeding $1,000 belonging to a bank, in violation of
The initial Presentence Investigation Report (“PSI“) in Ward‘s case established a base level of 4, added 8 levels for the amount of loss, and 2 levels for morе than minimal planning. Ward objected to the two-level increase for more than minimal planning. The government also objected to the PSI report, arguing that Ward‘s offense level should have been enhanced two additional levels for abuse of position of trust, pursuant to
II. DISCUSSION
A. The More than Minimal Planning Enhancement
Sentencing Guideline
The commentary to
Ward‘s actiоns surrounding the two thefts evidence more planning than is required for the commission of this crime in its simplest form, and he did take affirmative steps to conceal his offense. In preparation for the second theft, Ward somehow obtained in advance a seal. When he arrived at the Brinks office in Jacksonville, he got a crimper from inside the office which he used to place the previously obtained seal on the money bag, obviously in an attempt to prevent anyone from noticing, as they probably would have noticed, an unsealed bag. Moreоver, Ward did not commit a single theft, but two thefts on separate occasions, twenty days apart. Although the commission of two thefts may not constitute “repeated acts” and thereby be sufficient by itself to justify a more than minimal planning enhancement, the fact that Ward committed two thеfts does weigh in favor of the enhancement. Adding to that fact Ward‘s advance planning in taking the seal with him for use in his attempt to delay or prevent detection on the second occasion, we cannot say that the district court clearly erred in applying a two-level enhancement pursuant to
B. The Abuse of a Position of Trust Enhancement
We find more merit in Ward‘s contention that the district court erred in enhancing his sentence pursuant to
“We review the district court‘s fact findings for clear error, but its determination whether the facts justify an abuse-of-trust enhancement we rеview de novo.” United States v. Mills, 138 F.3d 928, 941 (11th Cir.1998) (citation omitted).
Ward did use his position as a security guard of a Brinks armored car to facilitate the thefts, but the question is whether the position he held and used was a “position of public or private trust.” The commentary to
This adjustment, for example, applies in the case of an embezzlement of a client‘s funds by an attorney serving as a guardian, a bank executive‘s fraudulent loan scheme, or the criminal sexual abuse of a patient by a physician under the guise of an examination. This adjustment
does not apply in the case of an embezzlement or theft by an ordinary bank teller or hotel clerk because such positions are not characterized by the above-described factors.
Id. Finally, the commentary specifically provides that “[n]otwithstanding the preceding paragraph” the adjustment shall apply “to any employee of the U.S. Postal Service who engages in the theft or destruction of undelivered United States mail.” Id. As we will explain later, even though Ward was not a Postal Service employee, that provision does have implications for this case.
This Court has never addressed the specific issue of whether
The D.C. Circuit also reached the same conclusion about the position of a courier in United States v. West, 56 F.3d 216 (D.C.Cir.1995). The court reasoned that if a courier could be subject to an abuse of trust enhancement “merely because he or she is entrusted with valuable things,” the enhancement would eventually be extended “to cover endless numbers of jobs involving absolutely no professional or managerial discretion, in clear contravention of the plain language of the commentary to section 3B1.3.” Id. at 221; but cf. United States v. Boyle, 10 F.3d 485, 489 (7th Cir.1993) (stating that “application of the enhancement depends on whether the defendant has access or authority over valuable things” (internal marks and citations omitted)).1 The court in West explained that “[e]ach of [the] examples [in the commentary] contemplates a ‘professional’ or ‘manager’ who, because of his or her speсial knowledge, expertise, or managerial authority, is trusted to exercise ‘substantial discretionary judgment that is ordinarily given considerable deference.‘” West, 56 F.3d at 220 (quoting
We agree with the Eighth Circuit‘s reasoning in Jankowski and the D.C. Circuit‘s reasoning in West and believe that it fits the position of armored car guard equally well. The fact that Ward was charged by Brinks with the duty to guard its property while it was in their armored car does not necessarily makе his position one of trust within the meaning of
An armored car guard position is comparable to “an ordinary bank teller or hotel clerk” position which we know from the commentary to be outside the scope of the enhancement. Such a guard does not possess any more discretion or managerial authority than a bank teller or hotel clerk, and all three are carefully supervised positions. A guard on an armored car is also in a position similar to that of a mail carrier, because they both carry property belonging to others from one point to another. The Sentencing Commission felt it necessary in the commentary to provide that notwithstanding the other commentary provisions, the enhancement should be applied in the case of any employee of the United States Postal Service who steals or destroys undelivered mail. That indicates to us that the Commission thought that otherwise mail delivery positions would not be covered. No such express inclusion “notwithstanding the preceding [provisions]” was included for armored car guard positions, so they remain excluded.
If we were to interpret the
For these reasons, we conclude that Ward‘s position as a guard on an armored car did not involve substantial professional or managerial discretion, and therefore was not a position of public or private trust within the meaning of
III. CONCLUSION
The sentence in this case is VACATED and the case is REMANDED for the limited purpose of re-sentencing without the