United States v. Patricia Foreman

905 F.2d 1335, 1990 WL 81445
CourtCourt of Appeals for the Ninth Circuit
DecidedJune 19, 1990
Docket89-50038
StatusPublished
Cited by18 cases

This text of 905 F.2d 1335 (United States v. Patricia Foreman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth 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. Patricia Foreman, 905 F.2d 1335, 1990 WL 81445 (9th Cir. 1990).

Opinions

BOOCHEVER, Circuit Judge:

Patricia Foreman challenges the district court's imposition of a two-level upward adjustment of offense level for "abuse of position of trust" pursuant to § 3B1.3 of the Guidelines.1 We find that the adjustment was warranted and affirm the district court's decision.

FACTS AND PROCEDURAL HISTORY

On July 20, 1988, Foreman was a Well-ston, Missouri police officer. On that date she was questioned by Los Angeles Police Department officers and Drug Enforcement Agency agents in the Los Angeles International Airport after the officers observed what they considered suspicious behavior on her part. When they identified themselves and asked for her identification, she showed them her police badge and stated that she was an active police officer. The officers continued with their questioning and eventually arrested her for possession of a controlled substance.

[1337]*1337Foreman was indicted August 5, 1988, and pled guilty on November 14, 1988, to one count of possession with intent to distribute 310 grams of cocaine in violation of 21 U.S.C. § 841(a)(1) (1982). In determining her sentence under the Guidelines, the district court included a two-level upward adjustment for abuse of a position of trust, concluding that Foreman had “used her position as a police officer to attempt to dissuade the investigating officers from proceeding further with their investigation.” The court concluded that her range of sentence was 33 to 41 months and found no basis for departure from that range because of Foreman’s strong standing in her community and the great sense of shame and embarrassment she felt from her betrayal of her position in the community. In its calculation of the sentence range, however, the court allowed a two-level downward adjustment for “acceptance of responsibility.” On January 23, 1989, the court sentenced her to 33 months in custody followed by three years of supervised release.

DISCUSSION

Foreman was assessed a two-level upward adjustment for abuse of a position of trust “in a manner that significantly facilitated the commission or concealment of [her] offense.” United States Sentencing Commission, Guidelines Manual § 3B1.3. Specifically, the district court found she abused a position of trust by showing her badge and police identification to the investigating officers during their initial questioning. She challenges this adjustment, claiming that the use of her police identification did not abuse her position of trust “in a manner that significantly facilitated” her crime.

The statute establishing appellate review of sentencing decisions under the Guidelines provides that the court of appeals “shall give due deference to the district court’s application of the guidelines to the facts.” 18 U.S.C.A. § 3742(e) (West Supp. 1989) (emphasis added); accord United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir.1989).

This standard is intended to give the court of appeals flexibility in reviewing an application of a guideline standard that involves some subjectivity. The deference due a distirct [sic ] court’s determination will depend upon the relationship of the facts found to the guidelines standard being applied. If the particular determination involved closely resembles a finding of fact, the court of appeals would apply a clearly erroneous test. As the determination approaches a purely legal determination, however, the court of appeals would review the determination more closely.

134 Cong.Rec. H11257 (daily ed. Oct. 21, 1988). This definition of “due deference” parallels the standard of review for mixed questions of law and fact we announced in United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). United States v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir.1989) (citing McConney).

If application of the rule of law to the facts requires an inquiry that is “essentially factual,” one that is founded “on the application of the fact-finding tribunal’s experience with the mainsprings of human conduct,” ... the district court’s determination should be classified as one of fact reviewable under the clearly erroneous standard. If, on the other hand, the question requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles, ... the question should be classified as one of law and reviewed de novo.

McConney, 728 F.2d at 1202 (quoting Commissioner v. Duberstein, 363 U.S. 278, 289, 80 S.Ct. 1190, 1199, 4 L.Ed.2d 1218 (1960)) (citations omitted).

In using the statutory due deference standard, we distinguish our recent statement in United States v. Restrepo, 884 F.2d 1294, 1295 (9th Cir.1989), that application of the Guidelines is reviewed de novo. In Restrepo we reviewed the district court’s construction of the Guidelines themselves, clearly a question of law. We [1338]*1338therefore accorded no deference, the practical equivalent of de novo review, to the district court's interpretation. We construe Restrepo's unmodified assertion that application of the Guidelines is reviewed de novo as applicable only to legal determinations of the Guideline's provisions.

Foreman raises both legal and factual issues. The legal issues are whether an abuse of a position of trust must implicate a special privilege accorded someone in that position and whether an upward adjustment under § 3B1.3 is proper for use of a position of trust in a manner that significantly facilitated the attempted concealment of that offense. We review the district court's legal interpretation of the Guidelines de novo. See Restrepo, 884 F.2d at 1295. The factual issue is whether Foreman's conduct significantly facilitated the concealment of her crime. We defer to the factual determinations made by the district court in the course of its application of the Guidelines unless they are clearly erroneous. See United States v, Wills, 881 F.2d 823, 827 (9th Cir.1989).

Section 3B1.3 states: "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, increase by 2 levels." Guidelines Manual, § 3B1.3. Foreman argues that § 3B1.3 applies only to abuses of trust that involve use of a special privilege accorded someone in that position of trust. She claims that § 3B1.3 is therefore inapplicable to her because she did not abuse any special privilege accorded her as a police officer by showing her badge and police identification to the investigating officers. We find no merit in this argument.

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905 F.2d 1335, 1990 WL 81445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-patricia-foreman-ca9-1990.