United States v. Blazej Wasilewski

703 F.3d 373, 2012 U.S. App. LEXIS 25849, 2012 WL 6601315
CourtCourt of Appeals for the Seventh Circuit
DecidedDecember 19, 2012
Docket12-2664
StatusPublished
Cited by1 cases

This text of 703 F.3d 373 (United States v. Blazej Wasilewski) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Blazej Wasilewski, 703 F.3d 373, 2012 U.S. App. LEXIS 25849, 2012 WL 6601315 (7th Cir. 2012).

Opinion

RANDA, District Judge.

Blazej Wasilewski (“Wasilewski”) stole over $40,000 from the bank he worked for as an assistant branch manager. Wasilew-ski pled guilty to one count of embezzlement, and at sentencing the district court applied a two-level enhancement for abusing a position of trust under U.S.S.G. § 3B1.3. The district court then sentenced Wasilewski to six months’ imprisonment, followed by two years of supervised release with six months of home confinement.

On appeal, Wasilewski argues that the district court erred by applying the abuse of trust enhancement. Wasilewski also argues that the district court erred by treating the sentencing guidelines as mandatory and requiring a prison sentence. Neither argument has merit, so we affirm the district court’s sentence.

I. Background

Wasilewski was an assistant vice-president and assistant manager at a Chase Bank branch in Glenview, Illinois. Wasi-lewski was generally responsible for the daily operations of the bank, which included assigning teller drawers and safes, *375 maintaining codes for the drawers and safes, and performing audits on teller drawers and teller cash dispensers (“TCDs”). Wasilewski had a key to the bank’s front door and a PIN to deactivate the perimeter and vault alarms. Wasilew-ski performed closing procedures at the bank with the assistance of another employee. He also had one-half of a multi-digit code that could be combined with another employee’s code to open a TCD.

On August 26, 2011, at 4:15 p.m., Wasi-lewski entered the employee break room where the bank’s electrical closet was located and momentarily shut off the bank’s power supply before turning the power back on. At 6:47 p.m., Wasilewski switched the power off again, but this time he did not switch it back on. That evening while performing the closing procedures, Wasilewski entered the bank’s server room where the backup switch was located and unplugged the cords to the bank’s master power supply boxes. At 7:30 p.m., Wasi-lewski contacted the bank’s corporate security department to remotely reset the alarm. However, the bank remained without power until the next morning, during which time the bank’s video surveillance was unable to record images inside the bank.

Wasilewski left and later returned to the bank, using his PIN to deactivate the perimeter alarm. At 1:56 a.m., Wasilewski again used his PIN to deactivate the vault alarm, which also protected the TCDs. At some point before entering the bank that morning, Wasilewski came to possess another employee’s four-digit TCD code. Wasilewski used that code and his own to open the TCD. Wasilewski removed $40,988.78 in cash and fled the bank.

At 7:44 a.m. that morning, Wasilewski boarded a flight to the Dominican Republic. Upon arrival, customs officials searched Wasilewski’s laptop bag and found $39,765 in United States currency. Wasilewski was arrested and detained by the Dominican National Police, then deported to Puerto Rico where he was apprehended by the FBI. Wasilewski was sent back to Chicago and charged with embezzlement in violation of 18 U.S.C. § 656. He entered a guilty plea on February 10, 2012.

II. Abuse of Trust Enhancement

Section 3B1.3 provides for a two-level increase 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.... ” The district court’s interpretation of § 3B1.3 is subject to de novo review, but its factual findings are entitled to deference unless clearly erroneous. United States v. Fuchs, 635 F.3d 929, 933 (7th Cir.2011). We agree with the district court that Wasilewski occupied a position of private trust at Chase Bank, which he abused in a manner that helped him facilitate and conceal his theft.

A “position of public or private trust” is “characterized by professional or managerial discretion (i.e., substantial discretionary judgment that is ordinarily given considerable deference).” U.S.S.G. § 3B1.3, n.l. As the district court recognized, Wasilewski’s formal job title — vice-president and assistant branch manager— is important, but not dispositive. Courts should “look beyond labels, to the nature of the position the defendant is in and the responsibilities entrusted to him.” United States v. Fife, 471 F.3d 750, 753 (7th Cir.2006). Accordingly, this court has found the enhancement applicable to a wide variety of positions, including an office manager, United States v. Cruz, 317 F.3d 763, 765 (7th Cir.2003), a mayor’s special assistant, Fife, 471 F.3d at 751, the elected chairman of a Democratic precinct commit *376 tee, United States v. Thomas, 510 F.3d 714, 717 (7th Cir.2007), and a hotel clerk, United States v. Tiojanco, 286 F.3d 1019, 1019-20 (7th Cir.2002). No matter the label, a position of trust “carries with it an assumption that the person entrusted with the position will act in accordance with the law.” Thomas, 510 F.3d at 725.

Chase Bank entrusted Wasilewski with access to large sums of money and the responsibility for keeping that money safe and secure. It was his job to account for all of the money in the vault and the TCDs. Wasilewski argues that he was not given greater access to money than an ordinary bank teller because he could not open a TCD without another employee’s code. Wasilewski’s argument ignores all the other things that allowed him to steal from the bank, including keys to the bank and PIN codes to deactivate alarms. Was-ilewski needed another TCD code, but once he had it, he was able to enter the bank in the middle of the night, steal the money, and leave on a trip the next morning before anyone knew the money was gone. While the abuse of trust enhancement “does not apply in the case of an embezzlement or theft by an ordinary bank teller,” U.S.S.G. § 3B1.3, n.l, Wasi-lewski had far more responsibility than an ordinary bank teller.

Many of this court’s abuse of trust cases involve employees who are charged with “deciding, on a case-by-case basis, whether a particular expenditure or transfer of company funds or other valuables is necessary or beneficial to the organization.” Tiojanco, 286 F.3d at 1021. Accordingly, the enhancement applied to the hotel clerk in Tiojanco because he was given “primary responsibility for issuing well over $50,000 in customer refunds each year,” id. at 1022, and to the office manager in Cruz whose position “required her to draft checks to pay company expenses.” 317 F.3d at 765. See also United States v. Anderson, 259 F.3d 853

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Alberta Pierce
520 F. App'x 477 (Seventh Circuit, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
703 F.3d 373, 2012 U.S. App. LEXIS 25849, 2012 WL 6601315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-blazej-wasilewski-ca7-2012.