United States v. Barrilleaux

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 17, 2002
• Docket: 01-31241
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-31241 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KATHLEEN BARRILLEAUX,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 01-CR-144-B -------------------- June 14, 2002

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

Kathleen Barrilleaux appeals her sentence following her

guilty-plea conviction of bank fraud. Barrilleaux argues that

the district court erred in applying a two-level sentencing

adjustment under U.S.S.G. § 3B1.3 because a secretarial position

such as hers typically is not characterized by professional or

managerial discretion and the Government did not present any

evidence of discretionary duties of that caliber.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-31241 -2-

Section 3B1.3 provides for a two-level adjustment “[i]f the

defendant abused a position of public or private trust . . . in a

manner that significantly facilitated the commission or

concealment of the offense.” U.S.S.G § 3B1.3. “[P]ublic or

private trust” refers to professional or managerial discretion,

i.e., substantial discretionary judgment that is ordinarily given

considerable deference. U.S.S.G. § 3B1.3, comment. (n.1).

We review the application of § 3B1.3 under the clearly

erroneous standard. See United States v. Iloani, 143 F.3d 921,

922 (5th Cir. 1998). “[T]he district court need be convinced of

the relevant facts only by a preponderance of the evidence.”

United States v. Reeves, 255 F.3d 208, 212 (5th Cir. 2001).

A district court may apply U.S.S.G. § 3B1.3 if (1) the

defendant occupied a position of trust and (2) the defendant

abused her position in a manner that significantly facilitated

the commission or concealment of the offense. See Iloani, 143

F.3d at 922. Although some might infer from her title of

secretary that Barrilleaux was an employee with little or no

discretion, the record evidence reflects that she was not merely

an ordinary secretary, but rather one who occupied a position of

trust within the meaning of U.S.S.G. § 3B1.3. Barrilleaux was

authorized to sign her employer’s name to certain checks, open

and review her employer’s mail, and pay her employer’s personal

and professional bills. We also note that Barrilleaux failed to No. 01-31241 -3-

argue that she did not use her position to significantly

facilitate the offense.

There is nothing in the record to suggest that the district

court clearly erred in applying the adjustment. See United

States v. Fisher, 7 F.3d 69, 71 (5th Cir. 1993). The judgment of

the district court is AFFIRMED.