Abuse of position of trust sentence enhancement does not apply to employee whose duties are merely ministerial and directed by standard office rules

SENTENCING United States v. Spear, No. 06-1296, ___ F.3d ___ (10th Cir. Jun 26, 2007)(Colorado). Appeal of sentence for embezzlement of government funds in excess of $1,000 in violation of 18 U.S.C. § 641. HELD: District court erred by applying abuse of position of trust sentence enhancement under U.S.S.G. § 3B1.3 to government employee who embezzled money orders accompanying immigration applications. Sentence enhancement for abuse of position of trust requires that defendant hold position involving exercise of professional or managerial discretion (i.e., substantial discretionary judgment that is ordinarily given considerable deference). As “examinations assistant” for United States Citizenship and Immigration Services Bureau, defendant’s position required nothing more than engaging in ministerial tasks directed by standard office protocols. That is, defendant merely processed new immigration applications and put them in pipeline for substantive review. Defendant did not have discretion to approve or deny applications, nor could she reject applications that were incomplete or inaccurate. Therefore, because embezzlements did not flow from any discretionary authority on defendant’s part and there was no evidence in record showing that defendant used any discretionary authority to facilitate or conceal her crimes, abuse of position of trust sentence enhancement was improper. Read the opinion here.