United States v. Simpson

Opinion

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 96-30206

UNITED STATES,

Plaintiff-Appellee,

VERSUS

MICHAEL ALAN SIMPSON,

Defendant-Appellant.

Appeal from the United States District Court For the Western District of Louisiana (95-CR-50016) October 9, 1996

Before GARWOOD, JOLLY and DENNIS, Circuit Judges.

PER CURIAM:*

Michael Alan Simpson appeals the district court’s enhancement

of his offense level under U.S.S.G. § 3B1.1. Specifically, Simpson

claims that the district court clearly erred in combining the

abuse-of-trust concept with the special-skill concept for purposes

of the two-level enhancement. Further, Simpson argues that neither

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. concept applies to his case. The government argues that the

district court properly applied the two concepts; no error occured

because § 3B1.1 was written in the disjunctive.

We find that no evidence supports a contention that Simpson’s

“skill” as a real estate agent signficantly facilitated his offense

of conviction. Although the government argued at sentencing that

Simpson had collected real estate commissions in several

transactions in which his companies participated in the sales of

the properties, the skills used by Simpson during the transactions

did not significantly facilitate his offense of conviction.

We also find that Simpson had no relationship of trust with

the victims of this case, HUD and the FHA. Thus, he could not have

abused a positions of trust. As to the sellers of property Simpson

came in contact with, the mere fact that he had a real estate

license did not put him in a position of trust as a buyer of

properties.

Accordingly, because Simpson neither held a position of trust

nor used a special skill with respect to the offense of conviction,

we find that the district court clearly erred in assessing the

adjustment pursuant to § 3B1.3. This finding renders Simpson’s

alternative argument that the combination of these concepts is

impermissible moot. Simpson’s sentence is VACATED and REMANDED to

the district court for resentencing.