United States v. Graff

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 17, 1999
• Docket: 98-5210
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 17 1999 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 98-5210 (D. Ct. No. 98-CR-11-K) THOMAS LYNN GRAFF, (N.D. Okla.)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before TACHA , McKAY , and MURPHY , Circuit Judges.

After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th

Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

This order and judgment is not binding precedent, except under the *

doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. On June 15, 1998, defendant pled guilty to a single count of mail fraud in

violation of 18 U.S.C. §§ 1341 and 1346. On October 15, 1998, the district court

sentenced defendant to 27 months imprisonment and three years of supervised

release. Defendant contends the district court erred in enhancing his sentence

based on abuse of trust as defined in the United States Sentencing Guidelines.

We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and affirm.

I.

In September 1994, Kwikset Corporation hired defendant as a plating

engineer. His responsibilities included the general operation of the plating

division, the purchase of capital equipment for that division and the purchase of

new and better chemicals to be used in the plating process. In the past, Kwikset

had purchased equipment through product representatives who commonly charged

a sales commission. In hiring defendant, Kwikset hoped in part to eliminate

some commission expense by relying upon defendant’s purchasing expertise.

Defendant began purchasing equipment and supplies for Kwikset through a

personal friend, James Franks. Under the arrangement, defendant notified Franks

about equipment Kwikset needed, and Franks contacted the vendor to negotiate a

price. Franks included a sales commission for himself in the price quote but kept

the ultimate price within the range acceptable to Kwikset. Once the sale was

complete, Franks split the resulting commission with defendant. Kwikset was

-2- unaware that defendant received any commission on company purchases.

Defendant did not need approval from any supervisor for company expenditures

under a certain dollar amount.

In addition to generating commissions for himself, defendant obtained an

unauthorized consulting fee when he purchased a plating machine for Kwikset.

In negotiating the acquisition, defendant instructed the vendor to include an

engineering consulting fee in its price quote. Defendant then directed the vendor

to send the consulting fee to an address in Sapulpa, Oklahoma. Unbeknownst to

the vendor, this was defendant’s home address. Kwikset was unaware that any

consulting fee had been included in the price quote.

II.

Section 3B1.3 of the sentencing guidelines mandates a two-level upward

adjustment of defendant’s base offense level if “defendant abused a position of

public or private trust . . . in a manner that significantly facilitated the

commission or concealment of the offense.” We review for clear error a district

court’s determination of what constitutes an abuse of trust. United States v.

Williams , 966 F.2d 555, 557 (10th Cir. 1992).

In making an abuse-of-trust determination, the district court may consider a

number of factors, including:

the extent to which the position provides the freedom to commit a difficult- to-detect wrong, and whether an abuse could be simply or readily noticed;

-3- defendant’s duties as compared to those of other employees; defendant’s level of specialized knowledge; defendant’s level of authority in the position; and the level of public trust.

Id.

In the instant case, the district court explained its abuse-of-trust adjustment

by pointing to defendant’s position within the company, his purchasing authority

in that position and his unique ability as a company insider to perpetrate the

schemes at issue. We find that the district court faithfully applied the Williams

criteria and therefore hold that the imposition of the two-level sentence

enhancement is not clearly erroneous.

AFFIRMED.

ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge

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