UNITED STATES of America, Plaintiff-Appellee, v. Patricia FOREMAN, Defendant-Appellant.
No. 89-50038.
United States Court of Appeals, Ninth Circuit.
Decided June 19, 1990.
As Amended on Denial of Rehearing and Rehearing En Banc Feb. 26, 1991.
926 F.2d 792
The five pieces of evidence that support a birth date in 1925 were recorded just previous to, or after, appellant filed his application for benefits. This is too recent to overcome the force of the older evidence. The ALJ and the Secretary clearly were entitled to accord greater weight to the documentation that was recorded many years earlier.
Although the evidence supports several possible birth dates, an examination of this evidence in its entirety demonstrates that the Secretary‘s decision was supported by substantial evidence and was free of legal error. Where there is substantial evidence to support the decision made by the ALJ, as well as evidence to support a contrary determination, this court will not substitute its judgment for that of the ALJ. See Key v. Heckler, 754 F.2d at 1549.
AFFIRMED.
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. (
The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.
Carlton F. Gunn, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.
Jeffrey C. Eglash and Peter Morris, Asst. U.S. Attys., Los Angeles, Cal., for plaintiff-appellee.
Before BROWNING, BOOCHEVER and REINHARDT, Circuit Judges.
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
FACTS AND PROCEDURAL HISTORY
On July 20, 1988, Foreman was a Wellston, 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.
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
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
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.”
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,
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 (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
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,
We find no merit in this argument. Notwithstanding that having a police badge itself may be a special privilege, the adjustment in
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
“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
We hold, therefore, that the district judge properly applied
CONCLUSION
Abuse of a position of trust under
AFFIRMED.
REINHARDT, Circuit Judge, dissenting:
In affirming the district court‘s two-level upward adjustment of Foreman‘s sentence, the majority enlarges the scope of section 3B1.3 far beyond anything the language of that provision can reasonably bear. I have expressed elsewhere my reservations about the restrictions which the Sentencing Guidelines place on the discretion of the sentencing judge. United States v. Brady, 895 F.2d 538, 544 (9th Cir. 1990) (Reinhardt, J., concurring specially). Nevertheless, since we must apply the Guidelines, we should apply them as they are written. Because I cannot acquiesce in the strained interpretation rendered by the majority, I dissent.
I begin with the language of the applicable guideline:
§ 3B1.3. Abuse of Position of Trust or Use of Special Skill 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. This adjustment may not be employed in addition to that provided for in § 3B1.1, nor may it be employed if an abuse of trust or skill is included in the base offense level or specific offense characteristic.
United States Sentencing Commission, Guidelines Manual,
The majority gives short shrift to Foreman‘s argument that her conduct was not an “abuse” of her position as an officer. Foreman suggests that section 3B1.3 applies only when the offender abuses a “special privilege” enjoyed by virtue of her position of public trust, and I can agree with the majority that this interpretation is unsatisfactory. Still, it must be conceded that section 3B1.3 applies to offenders who abuse positions of public trust; not merely to those who occupy such positions or even to those who use such positions. To abuse is “[t]o use improperly, to misuse; to make a bad use of, to pervert, or misemploy; to take a bad advantage of.” Oxford English Dictionary 11 (Compact Ed. 1971). This seems to me to require something more than merely responding to a request for identification in precisely the way in which
Section 3B1.3 does not permit or direct the sentencing judge to enhance the sentence of everyone who abuses a position of public trust. Instead, it provides for enhancement only if the defendant‘s abuse ”significantly facilitated the ... concealment of the offense” (emphasis added). The majority notes that facilitating a crime or concealment means making it easier, not necessarily making it successful; that is true enough, as far as it goes. However, the majority then proceeds to commit several serious errors. First, it virtually ignores the word “significantly,” which modifies “facilitated.” On its face, this term plainly requires the sentencing judge to assess the effect of the abuse, and to determine whether that effect was of sufficient magnitude: it must have furthered the crime or concealment “significantly.” Furthermore, the use of the past tense, i.e., “facilitated,” renders indisputable the proposition that the abuse must have actually had some effect. The abuse must have significantly facilitated (a matter of historical fact); it is not sufficient to say merely that the act in question constitutes the sort of act that, conceivably or in general, has a tendency to significantly facilitate.2
The majority notes, as I do, that “significantly” modifies “facilitated” rather than “commission or concealment.” Based upon this observation, the majority asserts that “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.” Ante, at 796 n. 2. I see no difference between these two inquiries, unless the majority believes that “furthered” connotes ultimate success in a way that “facilitated” does not.3 In any event, even tak-
Since the majority makes no argument whatsoever that Foreman‘s use of her police badge altered, let alone “significantly” altered, her situation in any way, the plain meaning of section 3B1.3 should foreclose any further inquiry and preclude any enhancement based upon this section. Only thus can we honor the venerable principle that if the language of a statute is clear, that language must ordinarily be given its plain meaning. Immigration and Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421, 432 n. 12 (1987); id. at 452 (Scalia, J., concurring in the judgment) (citing United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95-96 (1820); United States v. Hartwell, 73 U.S. (6 Wall.) 385 (1868); Bate Refrigerating Co. v. Sulzberger, 157 U.S. 1, 34 (1895); Caminetti v. United States, 242 U.S. 470, 485 (1917); Packard Motor Car Co. v. NLRB, 330 U.S. 485, 492 (1947); United States v. Sullivan, 332 U.S. 689, 693 (1948); Unexcelled Chemical Corp. v. United States, 345 U.S. 59, 64 (1953)). Disregarding this rule, the majority looks past the unambiguous language of section 3B1.3 in order to justify its rather odd “implication” that an unsuccessful effort to facilitate is the same as having “significantly facilitated,” or is somehow included within the latter phrase. Here, the majority repeats its first error, this time misconstruing the most pertinent aid to construction of the guideline: the official Commentary that was adopted along with it. See ante, at 796 n. 2. This Commentary, properly read, is devastating to my colleagues’ construction. The degree of facilitation necessary for enhancement is virtually the only aspect of the “abuse of trust” portion of section 3B1.3 that receives any attention in the Application Notes that were adopted as part of the official Commentary—which should tell us something about the importance of this requirement. According to the Commentary, “[t]he 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. This adjustment, for example, would not apply to an embezzlement by an ordinary bank teller.” Guidelines Manual
In summary, the guideline applies only to an abuse of trust that significantly facilitated the concealment of a crime. No one could suggest that any such event occurred
Although Foreman‘s conduct clearly did not facilitate anything, the majority refuses to apply the plain meaning of the statute. The result is a guideline covering something which could be called “attempted concealment,” which was not covered before, and which the majority apparently believes is not subject to the clearly expressed statutory command that the sentencing judge assess the efficacy of the conduct in question by determining whether it significantly facilitated the concealment. Honesty, uniformity, and proportionality—the justifications which the Sentencing Commission advances for the Guidelines, Guidelines Manual, Ch. 1, Pt. A (“Introduction“), n. 3 (“The Basic Approach“)—are not fostered by such an approach to the Commission‘s language. Accordingly, I dissent.
Notes
It is of course true that Foreman was not “trained to carry her badge and police identification while smuggling cocaine.” Ante at 795 (emphasis added). However, my colleagues miss the point of Foreman‘s argument. She contends that she was trained to carry her badge and to identify herself as a police officer as a matter of course, regardless of the specific activity in which she was engaged. Thus, she recognizes that she had a criminal motive in smuggling cocaine, but argues that she had no further criminal motive in identifying herself as a police officer. That, she contends, was a mere reflex. In any event, in doing so she complied with the instructions she had been given by her superiors.
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
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.
The majority refuses to look at the effect of Foreman‘s attempted abuse of her position because the majority believes that it would be “unreasonable” for the severity of a defendant‘s punishment to depend on anything but her mental state. Ante at 797. As support for this sweeping conclusion, the majority cites the Background statement to section 3B1.3. But that statement provides only that those “who abuse their positions of trust ... to facilitate significantly the ... concealment of a crime ... generally are viewed as more culpable.” Where is the prohibition on looking to effects? I would respectfully suggest that what is unreasonable is the majority‘s decision to ignore the plain language of the Guidelines. After all, both the United States Code and the Guidelines are filled with instances where a defendant‘s treatment depends in part on the effects of his conduct.