UNITED STATES COURT OF APPEALS FIFTH CIRCUIT
_________________
No. 99-11138
(Summary Calendar) _________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MITCHELL SCOTT GASSIOT,
Defendant-Appellant.
Appeal from the United States District Court For the Northern District of Texas USDC No. 5:99-CR-20-C
April 18, 2000
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges. PER CURIAM:*
Mitchell Scott Gassiot appeals the sentence arising from his guilty plea to embezzlement of
bank funds in violation of 18 U.S.C. § 656. For the reasons set forth below, we affirm the sentence
of the district court.
Gassiot pled guilty pursuant to a plea agreement to the embezzlement of funds from the
Snyder National Bank (the “bank”) and criminal forfeiture. As part of the plea agreement, Gassiot
stipulated that the factual resume supporting his plea was true and correct. The resume stated that,
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. beginning in 1994, while employed at the bank as a vice-president and cashier, Gassiot began
removing cash from the main vault of the bank, generally in amounts of $1,000. Gassiot also
removed mutilated bills that were in poor condition but still usable as currency. Between January 1,
1994 and March 8, 1999, Gassiot embezzled a total of $427,689.50 from the bank.
The resume further provided that while employed at the bank, Gassiot was responsible for
balancing the vault and for counting the cash in the vault. Bank president and CEO Joe Jackson also
testified that Gassiot was in charge of internal controls of cash, tellers, and the vault. When
independent auditors—acting under Gassiot’s supervision—would audit the vault at the bank, they
would only operate off of the reports that Gassiot had prepared.1
In calculating Gassiot’s offense level, the probation officer preparing the presentence report
(“PSR”) recommended a two-level upward adjustment under U.S.S.G. § 3B1.3 based upon Gassiot’s
abusing his position of trust to commit the embezzling offense. Gassiot filed an objection to the
recommended adjustment in which he acknowledged that he had held a position of trust at the bank
but argued that he had not used this position to facilitate the commission of the crime. The district
court overruled Gassiot’s objection to the PSR, finding that Gassiot’s supervisory position at the bank
was a position of trust and that he had abused that position to facilitate and conceal the commission
of the offense for five years.
On appeal, Gassiot argues that the district court erred in applying a two-point upward
adjustment in his offense level pursuant to U.S.S.G. § 3B1.3. More specifically, he contends that the
1 Gassiot’s plea agreement also contained a paragraph entitled “Waiver of Right to Appeal” which stated that “[e]xcept as otherwise provided, the defendant hereby expressly waives the right to appeal his conviction and/or sentence on any ground . . . The defendant, however, reserves the right to appeal the following: (a) any punishment imposed in excess of a statutory maximum; (b) any punishment to the extent it constitutes an upward departure from the guideline range deemed most applicable by the sentencing court, and an improper computation of the applicable guideline range . . ..” While is clear that a defendant may, as part of a valid plea agreement, waive his statutory right to appeal his sentence, in order to be valid, the waiver must be an informed one. see United States v. Melancon, 972 F.2d 566, 568 (5th Cir. 1992). It is unclear whether Gassiot was specifically admonished that he was waiving his right to appeal during the plea colloquy. However, since neither party raises the issue of whether Gassiot knowingly waived his right to appeal his sentence in the plea agreement, and because we do not need to resolve this issue in order to decide this case, we will not discuss the potential waiver issue here.
-2- district court erred in finding (1) that he occupied a position of trust at the bank, and, more
significantly, (2) that Gassiot’s position significantly facilitated his embezzlement. We review the
district court’s application of § 3B1.3 to the facts for clear error. See United States v. Smith, __ F.3d
__, 2000 WL 1162408, at *9 (5th Cir. Feb. 14, 2000); United States v. Iloani, 143 F.3d 921, 922
(5th Cir. 1998).2
Section 3B1.3 provides for a two level enhancement if 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. Thus, an abuse-of-trust enhancement was appropriate if Gassiot (1)
held a position of trust at the bank, and (2) used that position of trust to facilitate significantly the
commission or concealment of the embezzlement of funds from the bank. See Iloani, 143 F.3d at
922. Here, both the factual resume and the evidence presented at Gassiot’s sentencing hearing
support the district court’s findings that both of these prerequisites were satisfied.
“‘Public or private trust’ refers to a position of public or private trust characterized by
professional or managerial discretion . . . Persons holding such positions ordinarily are subject to
significantly less supervision than employees whose responsibilities are primarily non-discretionary
in nature.” U.S.S.G. §3B1.3, commentary (n.1). A person in a position of trust can be distinguished
from one who is not by “the extent to which the position provides the freedom to commit a difficult-
to-detect wrong.” United States v. Brown, 7 F.3d 1155, 1161 (5th Cir. 1993) (citing United States
v. Hill, 915 F.2d 502, 506 (9th Cir. 1990)); see also Iloani, 143 F.3d at 922 (“A position of trust is
characterized by substantial discretionary judgment that is ordinarily given considerable deference.”)
(internal quotations omitted). Gassiot’s argument that he was no t acting in his capacity as a bank
2 On appeal, Gassiot contends that our prior “enunciation of the appropriate standard of review is unclear.” Accordingly, he suggests that we “harmonize our differing pronouncements” and (1) review de novo what constitutes a “position of public or private trust,” and (2) review for clear error whether a defendant occupied a position of trust and/or whether that position of trust facilitate the commission or concealment of Gassiot’s offense. However, Gassiot conceded in his objections to the PSR that he held a position of trust at the bank. Similarly, on appeal, he focuses his argument on the premise that his position did not facilitate the commission or concealment of his offense. Therefore, the issue of the proper standard of review for determining whether a particular position is one of public or private trust need not be determined in order to resolve this appeal.
-3- officer when he embezzled funds from the bank is unpersuasive in light of the facts presented in the
PSR and the factual summary. The evidence presented here reflects that Gassiot, without
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UNITED STATES COURT OF APPEALS FIFTH CIRCUIT
_________________
No. 99-11138
(Summary Calendar) _________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MITCHELL SCOTT GASSIOT,
Defendant-Appellant.
Appeal from the United States District Court For the Northern District of Texas USDC No. 5:99-CR-20-C
April 18, 2000
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges. PER CURIAM:*
Mitchell Scott Gassiot appeals the sentence arising from his guilty plea to embezzlement of
bank funds in violation of 18 U.S.C. § 656. For the reasons set forth below, we affirm the sentence
of the district court.
Gassiot pled guilty pursuant to a plea agreement to the embezzlement of funds from the
Snyder National Bank (the “bank”) and criminal forfeiture. As part of the plea agreement, Gassiot
stipulated that the factual resume supporting his plea was true and correct. The resume stated that,
* 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. beginning in 1994, while employed at the bank as a vice-president and cashier, Gassiot began
removing cash from the main vault of the bank, generally in amounts of $1,000. Gassiot also
removed mutilated bills that were in poor condition but still usable as currency. Between January 1,
1994 and March 8, 1999, Gassiot embezzled a total of $427,689.50 from the bank.
The resume further provided that while employed at the bank, Gassiot was responsible for
balancing the vault and for counting the cash in the vault. Bank president and CEO Joe Jackson also
testified that Gassiot was in charge of internal controls of cash, tellers, and the vault. When
independent auditors—acting under Gassiot’s supervision—would audit the vault at the bank, they
would only operate off of the reports that Gassiot had prepared.1
In calculating Gassiot’s offense level, the probation officer preparing the presentence report
(“PSR”) recommended a two-level upward adjustment under U.S.S.G. § 3B1.3 based upon Gassiot’s
abusing his position of trust to commit the embezzling offense. Gassiot filed an objection to the
recommended adjustment in which he acknowledged that he had held a position of trust at the bank
but argued that he had not used this position to facilitate the commission of the crime. The district
court overruled Gassiot’s objection to the PSR, finding that Gassiot’s supervisory position at the bank
was a position of trust and that he had abused that position to facilitate and conceal the commission
of the offense for five years.
On appeal, Gassiot argues that the district court erred in applying a two-point upward
adjustment in his offense level pursuant to U.S.S.G. § 3B1.3. More specifically, he contends that the
1 Gassiot’s plea agreement also contained a paragraph entitled “Waiver of Right to Appeal” which stated that “[e]xcept as otherwise provided, the defendant hereby expressly waives the right to appeal his conviction and/or sentence on any ground . . . The defendant, however, reserves the right to appeal the following: (a) any punishment imposed in excess of a statutory maximum; (b) any punishment to the extent it constitutes an upward departure from the guideline range deemed most applicable by the sentencing court, and an improper computation of the applicable guideline range . . ..” While is clear that a defendant may, as part of a valid plea agreement, waive his statutory right to appeal his sentence, in order to be valid, the waiver must be an informed one. see United States v. Melancon, 972 F.2d 566, 568 (5th Cir. 1992). It is unclear whether Gassiot was specifically admonished that he was waiving his right to appeal during the plea colloquy. However, since neither party raises the issue of whether Gassiot knowingly waived his right to appeal his sentence in the plea agreement, and because we do not need to resolve this issue in order to decide this case, we will not discuss the potential waiver issue here.
-2- district court erred in finding (1) that he occupied a position of trust at the bank, and, more
significantly, (2) that Gassiot’s position significantly facilitated his embezzlement. We review the
district court’s application of § 3B1.3 to the facts for clear error. See United States v. Smith, __ F.3d
__, 2000 WL 1162408, at *9 (5th Cir. Feb. 14, 2000); United States v. Iloani, 143 F.3d 921, 922
(5th Cir. 1998).2
Section 3B1.3 provides for a two level enhancement if 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. Thus, an abuse-of-trust enhancement was appropriate if Gassiot (1)
held a position of trust at the bank, and (2) used that position of trust to facilitate significantly the
commission or concealment of the embezzlement of funds from the bank. See Iloani, 143 F.3d at
922. Here, both the factual resume and the evidence presented at Gassiot’s sentencing hearing
support the district court’s findings that both of these prerequisites were satisfied.
“‘Public or private trust’ refers to a position of public or private trust characterized by
professional or managerial discretion . . . Persons holding such positions ordinarily are subject to
significantly less supervision than employees whose responsibilities are primarily non-discretionary
in nature.” U.S.S.G. §3B1.3, commentary (n.1). A person in a position of trust can be distinguished
from one who is not by “the extent to which the position provides the freedom to commit a difficult-
to-detect wrong.” United States v. Brown, 7 F.3d 1155, 1161 (5th Cir. 1993) (citing United States
v. Hill, 915 F.2d 502, 506 (9th Cir. 1990)); see also Iloani, 143 F.3d at 922 (“A position of trust is
characterized by substantial discretionary judgment that is ordinarily given considerable deference.”)
(internal quotations omitted). Gassiot’s argument that he was no t acting in his capacity as a bank
2 On appeal, Gassiot contends that our prior “enunciation of the appropriate standard of review is unclear.” Accordingly, he suggests that we “harmonize our differing pronouncements” and (1) review de novo what constitutes a “position of public or private trust,” and (2) review for clear error whether a defendant occupied a position of trust and/or whether that position of trust facilitate the commission or concealment of Gassiot’s offense. However, Gassiot conceded in his objections to the PSR that he held a position of trust at the bank. Similarly, on appeal, he focuses his argument on the premise that his position did not facilitate the commission or concealment of his offense. Therefore, the issue of the proper standard of review for determining whether a particular position is one of public or private trust need not be determined in order to resolve this appeal.
-3- officer when he embezzled funds from the bank is unpersuasive in light of the facts presented in the
PSR and the factual summary. The evidence presented here reflects that Gassiot, without
supervision, conducted a daily count of cash in the vault and prepared written ledgers of the amount
of cash on hand. Independent auditors and bank employees did not physically count the cash in the
vault largely because they relied upon Gassiot’s representations of the amount of money in the vault.
This evidence clearly demonstrates that Gassiot was not acting as a “mere bank teller” when he
embezzled bank funds. Cf. United States v. Ehrlich, 902 F.2d 327, 331 (5th Cir. 1990) (finding that
“[p]erhaps any number of [bank] employees could have obtained and executed the same instruments,
debit and credit slips, and then routed them to EDS for pro cessing, but Ehrlich’s position of trust
gave her specialized knowledge of the EDS system, as well as information about non-reconciled
[bank] accounts, that few other employees shared”).
Gassiot further contends that, even if he did occupy a position of trust at the bank, his position
did not significantly facilitate the commission of concealment of the offense because other employees
at the bank had the same opportunities to embezzle funds that Gassiot had. See Iloani, 143 F.3d at
923 (“The position of public 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.”). In fact, the evidence presented supports the district court’s finding that Gassiot used his
position both to facilitate and to conceal his embezzlement of funds. Specifically, Gassiot was able
to provide false reports to the independent auditors and draft false ledger sheets that hid his activities
largely because he knew that, because of his managerial position, no one was checking over his daily
computations of cash on hand. Cf. Ehrlich, 902 F.2d at 331 (“More importantly, Ehrlich’s position
gave her the authority to routinely initiate loan balancing transactions, which facilitated her
embezzlements. Ehrlich was given the authority to balance the loan suspense account, which she
debited to effect three of the six embezzlements.”).
In sum, we cannot find that, under the facts of this case, the district court clearly erred in
applying the abuse of trust enhancement to Gassiot’s sentence. Accordingly, we AFFIRM the
-4- sentence of the district court.
-5-