The defendant worked as the branch office representative for a federal credit union. She was in charge of cash and negotiable instruments. An audit revealed she had embezzled over $ 96,000 from the credit union she managed over the years, breaching the trust vested in her by her employer.
The US Court of Appeals affirmed judgment on enhancement for abuse of trust and conviction of embezzlement.
The U.S. Sentencing Guidelines Manual § 3B1.3 provides following: “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. This adjustment may not be employed if an abuse of trust or skill is included in the base offense level or specific offense characteristic. If this adjustment is based upon an abuse of a position of trust, it may be employed in addition to an adjustment under §3B1.1 (Aggravating Role); if this adjustment is based solely on the use of a special skill, it may not be employed in addition to an adjustment under §3B1.1 (Aggravating Role).”
U.S. Sentencing Guidelines Manual § 3B1.3, Commentary, Application Note 1: “For this adjustment to apply, the position of public or private trust must have contributed in some significant way to facilitating the commission or concealment of the offense (e.g., by making the detection of the offense or the defendant’s responsibility for the offense more difficult).”
Whether there was a case of embezzlement and enhancement of the sentence for abuse of trust of reasonably justified under statutory provisions.
The US Court of Appeals determined that the punishment can be enhanced when the breach of trust is conspicuously bad. According to the court’s view defendant’s conduct appeared reasonably malicious because she misused position of trust at her company. “Appellant’s position of trust contributed in a substantial way to facilitating the crime, in a manner not accounted for in the underlying offense”.