United States v. Guidry
2000 Colo. J. C.A.R. 16, 199 F.3d 1150, 84 A.F.T.R.2d (RIA) 7443 (1999)
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Rule of Law:
For the sentencing enhancement for abuse of a position of trust under U.S.S.G. § 3B1.3 to apply, the defendant must occupy a position of trust relative to the victim of the offense. In a tax evasion case, where the government is the victim, a defendant's position of trust with a third-party employer from whom funds were embezzled does not satisfy this requirement.
Facts:
- From 1987 to 1997, Anita L. Guidry worked as the controller for Wichita Sheet Metal, a position that gave her signatory authority on the company's checking account.
- Over several years, Guidry embezzled approximately $3 million from her employer by having the company owners co-sign checks payable to the company's bank, under the false pretense that the funds were for federal tax payments.
- Guidry structured the embezzlement by writing checks in increments of $9,000 or $10,000, which she would then cash and keep.
- To conceal the theft, Guidry altered the company’s accounting books to falsely represent that the embezzled money had been used to purchase inventory.
- As the accountant in her family, Guidry prepared and filed joint federal income tax returns for the years 1993, 1994, and 1995.
- On these returns, Guidry failed to report hundreds of thousands of dollars in embezzled income each year; for example, in 1993 she embezzled $400,000 but reported only $82,817 in total household income.
- During a search of Guidry's home, an IRS agent observed IRS tax instruction booklets; the 1993 booklet explicitly stated that embezzled income is taxable and must be reported.
Procedural Posture:
- Anita L. Guidry was charged with violations of federal law in an initial indictment.
- A jury in the United States District Court found Guidry guilty on three counts of knowingly and willfully filing a false tax return.
- Guidry filed a Motion for Judgment of Acquittal, which the district court denied.
- The district court sentenced Guidry to sixty months imprisonment, applying sentencing enhancements for 'sophisticated means' and 'abuse of a position of trust.'
- Guidry (Appellant) appealed her conviction and sentence to the United States Court of Appeals for the Tenth Circuit, with the United States (Appellee) as the responding party.
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Issue:
Does a sentencing enhancement for abuse of a position of trust under U.S.S.G. § 3B1.3 apply to a defendant convicted of filing false tax returns when their position of trust was with their employer, the source of the unreported embezzled funds, rather than with the government, the victim of the tax offense?
Opinions:
Majority - Brorby, J.
No, a sentencing enhancement for abuse of a position of trust under U.S.S.G. § 3B1.3 does not apply in this context because the position of trust must be held in relation to the victim of the offense. The court affirmed Guidry's conviction, finding the evidence sufficient to prove willfulness and upholding the jury instructions. However, it vacated the sentence and remanded for resentencing. The court reasoned that for the § 3B1.3 enhancement to apply, two conditions must be met: 1) the defendant held a position of trust, and 2) they abused it to facilitate the offense. Crucially, whether a position of trust exists is evaluated from the victim's perspective. In this case, the offense was filing false tax returns, making the government the victim. Guidry held a position of trust with her employer, Wichita Sheet Metal, but not with the government. Therefore, the enhancement was improperly applied. The court did, however, uphold the 'sophisticated means' enhancement, citing Guidry's structuring of cash withdrawals to avoid reporting requirements as evidence of a scheme designed to conceal income from the IRS.
Concurring-in-part-and-dissenting-in-part - Lucero, J.
This opinion concurs with the majority on all points except for its handling of the district court's denial of a downward departure. The dissent argues that the trial judge improperly considered race in the sentencing decision, which is a violation of law. The trial judge's comments about sending a message to the African-American community, even if well-intentioned, introduced race as a factor in the sentencing determination. U.S.S.G. § 5H1.10 explicitly prohibits the consideration of race in sentencing. Therefore, the dissent would also remand for resentencing on the basis that the district court committed a legal error by allowing race to play a role in its decision-making process.
Analysis:
This decision clarifies the application of the U.S.S.G. § 3B1.3 'abuse of trust' enhancement, firmly aligning the Tenth Circuit with other circuits that require a nexus between the position of trust and the victim of the offense of conviction. By adopting a victim-centric perspective, the court limits the enhancement's use in tax fraud cases where illegal income is sourced from a separate breach of trust against a third party. This precedent makes it more difficult for prosecutors in the Tenth Circuit to obtain this two-level sentencing increase in white-collar cases involving embezzlement followed by tax evasion, as the government is not the entity that placed the defendant in the initial position of trust.
