Appeal from the United States District Court for the District of Columbia (No. 96cr00120-01)
Before: Ginsburg, Sentelle and Henderson, Circuit Judges.
Karen LeCraft Henderson, Circuit Judge
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Opinion for the court filed by Circuit Judge Henderson.
Dissenting opinion filed by Circuit Judge Ginsburg.
On April 29, 1996 appellant Donna Becraft entered a guilty plea to one count of interstate transportation of stolen property in violation of 18 U.S.C. Section(s) 2314. The Information alleges that Becraft unlawfully transported from the District of Columbia to Maryland 11 checks totaling $37,854.25-the proceeds from one of four schemes Becraft employed to defraud her employer, the Institute of International Economics (Institute), of $108,844.75 over a five-year period. On August 8, 1996 Becraft was sentenced to twenty-four months' imprisonment to be followed by three years of supervised release. She appeals her sentence insofar as it reflects an upward adjustment for abuse of a position of trust under section 3B1.3 of the United States Sentencing Guidelines (guidelines), primarily on the ground that she did not occupy a "position of trust" at the Institute within the meaning of section 3B1.3. We defer, as we must, to the district court's application of section 3B1.3 and affirm the abuse of trust adjustment.
The Congress has expressly directed that in reviewing sentences the court "shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. Section(s) 3742(e) (emphasis added); see also United States v. Kim, 23 F.3d 513, 517 (D.C. Cir. 1994) ("Congress crafted a trichotomy: purely legal questions are reviewed de novo; factual findings are to be affirmed unless 'clearly erroneous'; and we are to give 'due deference' to the district court's application of the guidelines to facts."). We have described the statutory "due deference" standard as "presumably ... meant to fall somewhere between de novo and 'clearly erroneous,' a standard of review that reflects an apparent congressional desire to compromise between the need for uniformity in sentencing and the recognition that the district courts should be afforded some flexibility in applying the guidelines to the facts before them." Id. at 517. Under this standard we "should not ask whether we would decide the issue the same way but rather provide something akin to the review we give administrative agency determinations of such mixed questions." Id. (reviewing district court's determination that undisputed facts constituted "more than minimal planning" under guidelines Section(s) 2F1.1(b)(2)(A)). *fn1 We have already applied the due deference standard to the district court's determination that a particular set of facts constitutes abuse of a position of trust. See United States v. Broumas, 69 F.3d 1178, 1180 (D.C. Cir. 1995), cert denied, 116 U.S. 1447 (1996); United States v. Barrett, 111 F.3d 947, 954 (D.C. Cir. 1997) (citing Broumas). We do so again here.
The record establishes that between 1990 and 1995 Becraft, who was hired as the Institute's office manager in 1985 and assumed the responsibilities of marketing director in 1994, employed various schemes to defraud her employer. Specifically, she prepared and submitted to the Institute (1) 11 false purchase orders in 1990 and 1991 for office supplies, for which the Institute issued $4,370 in checks that Becraft herself cashed; (2) 22 travel expense reports in 1993 and 1994 for $57,320.50 worth of discount airline tickets that Becraft falsely claimed to have purchased with her own credit card for other employees' travel and for which the Institute reimbursed her; (3) 11 phony purchase orders in 1994 and 1995 for $37,854.25 worth of prepaid postage and stationery, for which the Institute issued checks that Becraft deposited in her own bank accounts; and (3) fictitious orders in 1994 and 1995 for $1.2 million worth of Institute publications, for which Becraft received $9,300 in performance raises and bonuses. Based on these facts, the district court stated:
Well, I will first find that the defendant did occupy a position of trust and that she abused her position of trust in a manner that significantly facilitated the commission of the offense. I think that her position as Director of Marketing and Publication is the most clear to the Court, because in that position she was manipulating the publication sales figures so that she received performance bonuses and pay increases based on fictitious sales figures that she was manipulating. But, in addition, I think as an office manager, in the position she was in, that was itself a position of trust. And certainly the position she held facilitated the concealment of the offenses that she committed.
Sentencing Transcript at 16. Given the "due deference" standard discussed above, and the closeness of the question with which it was presented, we do not believe the district court committed reversible error in its application of the language of section 3B1.3 and its commentary to the facts here.
Guidelines Section(s) 3B1.3 provides: "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." The guidelines commentary explains:
"Public or private trust" refers to a position of public or private trust characterized by professional or managerial discretion (i.e., substantial discretionary judgment that is ordinarily given considerable deference). Persons holding such positions ordinarily are subject to significantly less supervision ...