United States v. Gilliam

315 F.3d 613
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 10, 2003
DocketNo. 00-6365
StatusPublished

This text of 315 F.3d 613 (United States v. Gilliam) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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. Gilliam, 315 F.3d 613 (6th Cir. 2003).

Opinion

OPINION

KEITH, Circuit Judge.

Defendant-Appellant, Anthony Gilliam (“Gilliam”), appeals his sentence following a guilty plea to charges of attempting to possess with intent to distribute a total of approximately 1.5 kilograms of cocaine. Gilliam argues on appeal that the district court erred in imposing upon him a two-level enhancement for “abuse of a position of trust” pursuant to U.S.S.G. § 3B1.3. For the reasons set forth below, we AFFIRM the district court’s enhancement of Gilliam’s sentence by two levels for abuse of a position of trust.

I. BACKGROUND AND FACTUAL SUMMARY

Gilliam was indicted by the Federal Grand Jury for the Western District of Tennessee on March 16, 2000. (J.A. at 8). The two-count indictment charged Gilliam with attempting to possess with intent to distribute a total of approximately 1.5 kilograms of cocaine, in violation of 21 U.S.C. § 846. On June 15, 2000, Gilliam entered a plea of guilty to both counts of the indictment. (J.A. at 10).

A sentencing hearing was held on September 28, 2000 wherein Gilliam was sentenced to seventy-eight months of imprisonment to be followed by four years of supervised release. (J.A. at 13). The district court held that Gilliam had abused a position of trust and increased his Guideline base offense level by two, while also imposing a $12,500.00 fine and a $200.00 special assessment. Judgment was entered on September 29, 2000. Gilliam’s timely notice of appeal was filed on October 6, 2000. (J.A. at 17).

A factual account of the offense conduct perpetrated by Gilliam is contained in paragraphs 5-16 of the presentence report (PSR) prepared by the United States Probation Office. (J.A. at 86-89). The salient portion of this summary revolves around a scheme hatched by Gilliam to surreptitiously obtain a quantity of cocaine on consignment through a “reliable” confidential informant (“Cl”) to whom he had been assigned to counsel. At the time of the instant offense, Gilliam was employed as a part-time alcohol and drug counselor for Janet Scott, Ph.D.1 In his capacity as a counselor, Gilliam had been assigned to provide counseling to an individual currently on federal probation supervision. This unnamed individual is also the Cl involved in the caper planned by Mr. Gilliam.

According to the facts detailed in the PSI, the Cl reported that over the span of three weeks Gilliam had contacted him in an effort to obtain several kilograms of cocaine “on consignment”. (J.A. at 86). Gilliam wished to be “set up” with the drugs by the Cl in order to conduct a transaction with potential buyers. Apparently, Gilliam was persistent in his desire to recruit the Cl for this illicit purpose. He even indicated to the Cl that he had previous experience in the sale and distribution of illegal drugs and knew of people who would probably buy the drugs. (J.A. at 87). Unbeknownst to Gilliam, the Cl decided to apprize authorities with the Organized Crime Unit of the Drug Enforcement Agency (OCU) of the particulars of Gilliam’s proposition. At this point, the OCU launched an operation in order to investigate Gilliam’s role in this alleged conspiracy. To this end, the Cl was in[616]*616structed to feign cooperation with Gilliam. (J.A. at 86-89).

After participating in several meetings and telephone conversations regarding the conspiracy, the Cl and Gilliam arranged for a final meeting, at which point Gilliam would take possession of the drugs. On February 22, 2000, the Cl phoned Gilliam with instructions to meet a female named “Cookie” in front of a neighborhood grocery store. The Cl informed Gilliam that Cookie would have in her possession a package containing a quantity of cocaine, which she would give to him upon his arrival. Cookie was, in fact, an undercover agent with the OCU.

Upon meeting the undercover agent, Gilliam took possession of two marked bundles of imitation cocaine which had been placed in a plastic shopping bag. (J.A. at 88). Gilliam was taken into custody a short time later.

II. STANDARD OF REVIEW

The decision of a lower court to apply U.S.S.G. § 3B1.3 is treated as a question of law by our Court. We review de novo the district court’s determination that a defendant occupied a position of trust for the purposes of the Sentencing Guidelines. United States v. Tribble, 206 F.3d 634, 635 (6th Cir.2000). See also United States v. Ragland, 72 F.3d 500, 502 (6th Cir.1996).

A “position of trust” under the Guidelines is one “characterized by professional or managerial discretion.” U.S.S.G. § 3B1.3, comment (n. 1). Moreover, “[pjersons holding such positions ordinarily are subject to significantly less supervision than employees whose responsibilities are primarily non-discretionary in nature.” Ibid. Our Court held in Tribble that “the level of discretion accorded an employee is to be the decisive factor in determining whether his position was one that can be characterized as a trust position.” 206 F.3d at 637.

III. ANALYSIS

We find that the district court did not err in enhancing Gilliam’s sentence for abuse of a position of trust under U.S.S.G. § 3B1.3. Gilliam argues that he did not abuse -the public trust because he was employed by a government contractor and not the government; however, we do not find his argument convincing. Gilliam worked as a drug counselor for an employer that was under contract with the United States Probation Office to provide counseling services to individuals placed under probation supervision. In this capacity, Gilliam occupied a position which implied that he served an essentially public function involving considerable responsibility with respect to both the government and society at large.

In essence, we find that the general public is the victim in a situation such as the instant case. Accordingly, Gilliam’s argument that he was a government contractor instead of a government employee and therefore not bound to “uphold the public trust” is a matter of mere semantics. This rationale in no way diminishes the fact that Gilliam was performing a public function at the behest of the government.

The Guidelines state that “[i]f the defendant abused a position of public or private trust, or used a specific skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by two levels [the defendant’s base offense level].” U.S.S.G. § 3B1.3. As a probation counselor contracted by the United States Probation Office, Gilliam was without question employed in a position of considerable trust, which he abused by attempting to engage in illicit drug transactions with a client. Accordingly, we find [617]*617that the enhancement was properly applied in this case.

We have previously indicated that the rationale for the sentencing enhancement at issue here is virtually analogous to the type of punishment routinely administered for violating a fiduciary duty, which involves a higher duty than is placed upon persons that do not occupy positions of trust. Ragland, 72 F.3d at 503.

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Related

United States v. Brown
7 F.3d 1155 (Fifth Circuit, 1993)
United States v. Linda Gail Stamps Ragland
72 F.3d 500 (Sixth Circuit, 1996)
United States v. Michael Lynn Tribble
206 F.3d 634 (Sixth Circuit, 2000)
United States v. Kevin Thomas Brogan
238 F.3d 780 (Sixth Circuit, 2001)

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Bluebook (online)
315 F.3d 613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gilliam-ca6-2003.