United States v. Reccko, 151 F.3d 29, 1st Cir. (1998)

151 F.
3d 29
UNITED STATES of America, Appellee,

v.
Shirley P. RECCKO, Defendant, Appellant.
No. 98-1176.
United States Court of Appeals,

First Circuit.
Heard July 28, 1998.
Decided Aug. 10, 1998.
Thomas G. Briody, by appointment of the court, for appellant.

Richard W. Rose, Assistant United States Attorney, with whom Margaret
E. Curran, United States Attorney, was on brief, for appellee.
Before SELYA, BOUDIN and LIPEZ, Circuit Judges.
SELYA, Circuit Judge.
This single-issue sentencing appeal requires us to decide whether the district

court properly applied the two-level enhancement for abuse of a position of
trust, USSG 3B1.3 (1997), in calculating the defendant's guideline sentencing
range (GSR). Concluding, as we do, that the court erred, we vacate the
defendant's sentence and remand for resentencing.
I. BACKGROUND
2
The relevant facts are not seriously disputed. The defendant, Shirley P. Reccko,
was a civilian employee of the city of Warwick, Rhode Island. She toiled as a
receptionist/switchboard operator at police headquarters, handling incoming
telephone calls and notifying persons in authority when visitors arrived at the
stationhouse.
On December 14, 1995, several groups of Drug Enforcement Administration

(DEA) agents came to the station to see a narcotics detective. The defendant
observed the influx and told her drug-dealer friend, Patrick Vigneau, what she
had seen. After receiving the tip, Vigneau directed his supplier to cancel a
sizable marijuana delivery that had been scheduled to take place that evening at
a Warwick motel. As matters turned out, one of the participants in the planned
transaction was a government informant, and the DEA agents had gathered at
the police station preparatory to interceding in that very delivery. Its abrupt
cancellation thwarted their stratagem.
4
In the long run, however, the DEA prevailed. Agents soon arrested Vigneau's
supplier, who cooperated with the government and inculpated Vigneau. The
supplier-turned-cooperating-witness also confirmed the link between the
defendant's tip and the cancellation of the delivery--a piece of information that
the authorities easily corroborated, as the defendant had spoken with Vigneau
on a monitored line.
Reccko ultimately pled guilty to a charge that she unlawfully gave notice of an
impending search and seizure. See 18 U.S.C.A. 2232(b) (West Supp.1994).
At the disposition hearing, the parties quarreled over the GSR. As relevant
here, the defendant asseverated that her offense level should not be elevated
pursuant to USSG 3B1.3 because she did not hold a position of trust. The
district court nonetheless applied the enhancement, thereby boosting the
offense level and yielding a GSR of 15-21 months.1 The district court then
imposed an incarcerative sentence at the bottom of the range. This appeal
ensued.
II. DISCUSSION
6
The defendant, ably represented by appointed counsel, contends that the district
court misinterpreted 3B1.3 by expanding the "position of trust" rubric to
include a receptionist/switchboard operator whose duties included no
significant discretionary functions. We review the district court's interpretation
of the sentencing guidelines, and, thus, its handling of this interpretive question,
de novo. See United States v. Tardiff, 969 F.2d 1283, 1289 (1st Cir.1992)
("The court of appeals must determine for itself the legal meaning of terms
such as 'position of public or private trust.' ").
The disputed guideline provides in pertinent part:
8 the defendant abused a position of public or private trust ... in a manner that
If
significantly facilitated the commission or concealment of the offense, increase [the
defendant's offense level] by 2 levels.
9
USSG 3B1.3. The commentary indicates that the enhancement "applies to
persons who abuse their positions of trust ... to facilitate significantly the
commission or concealment of a crime." Id., comment (backg'd).
10
On a superficial reading of this language, a receptionist/switchboard operator

position at police headquarters might well seem to be a position of trust. After
all, police headquarters is the nerve center of local law enforcement, and one
ought to be able to "trust" any person employed there. The sentencing
guidelines, however, create their own vocabulary--and the guidelines
sometimes define terms in ways that might strike lay persons as peculiar. So it
is here: in the idiom of the sentencing guidelines, the term "position of public or
private trust" has a special meaning. The application notes, as amended in 1993,
explain that positions of trust are characterized by significant discretion and
minimal supervision:
11
"Public
or private trust" refers to a position of public or private trust characterized by
professional or managerial discretion (i.e., substantial discretionary judgment that is
ordinarily given considerable deference). Persons holding such positions ordinarily
are subject to significantly less supervision than employees whose responsibilities
are primarily non-discretionary in nature. For this enhancement to apply, the
position of 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). This
adjustment, for example, would apply in the case of an embezzlement of a client's
funds by an attorney serving as a guardian, a bank executive's fraudulent loan
scheme, or the criminal sexual abuse of a patient by a physician under the guise of
an examination. This adjustment would not apply in the case of an embezzlement or
theft by an ordinary bank teller or hotel clerk because such positions are not
characterized by the above-described factors.
12
Id., comment. (n.1).
13
Consistent with this application note's stated method, we have directed

sentencing courts to conduct a two-step inquiry into the possible applicability of
an enhancement under 3B1.3. First, the court must determine whether the
defendant occupied a position of trust at all. If not, the inquiry ends and no
enhancement accrues. If, however, this initial query produces an affirmative
response, the court must proceed to ascertain the extent to which the defendant
used that position to facilitate or conceal the offense. See United States v. Gill,
99 F.3d 484, 489 (1st Cir.1996); United States v. Santiago-Gonzalez, 66 F.3d 3,
8 (1st Cir.1995).
14
Here, the lower court noted that the defendant's particular situation was not
14
covered explicitly either by the guideline commentary or by existing precedent,

and so proceeded to "discern from the guidelines themselves what the intent of
the Sentencing Commission was." In the course of this exercise, the court
concluded that, because the defendant was exposed to sensitive information in
her public employment and used that information illicitly, she abused a position
of public trust. The court reasoned:
15
This Defendant, although she did not hold a position as a police officer or as a
police dispatcher, held a position of trust. She was in a unique position to take
incoming phone calls and to route individuals [from] outside of the Warwick
Police Department to the appropriate location within the building for purposes
of their massing for what was to be a drug raid. She had the ability to take those
calls. She knew who was calling. She had to ask people who they were in order
to send them to the right place within the building. And so she was uniquely
situated to receive extremely sensitive information, which she then took upon
herself and initiated the contact with [the drug-dealer] to give him the very
sensitive information which he needed....
******
16
17
So I find that on this unique set of facts, with an individual who is employed by
a public agency, a public agency that happens to be the police department
whose responsibilities are public safety, and where she was in the significant
and unique position to tak[e] in sensitive information, that she abused the trust
that was placed in her by taking that very information and taking the initiative
to call [the drug-dealer] to head off the raid.
18
We do not believe that the district court's analysis squares with the special
meaning of "position of public or private trust" that the guidelines prescribe. In
essence, the court eschewed the two-step approach specified by our cases and
instead conflated the requisite inquiries. Rather than asking, first, whether the
defendant held a position of trust, and if so, whether she used that position to
facilitate a crime, the court essentially determined that the defendant held a
position of trust precisely because her job enabled her to commit the crime. We
conclude that this was error.
19
The foremost flaw in the court's reasoning is that it ignores the attributes of a
position of trust limned in the controlling application note. This omission is
telling, as guideline commentary is binding unless it violates federal law, is
inconsistent with the guidelines themselves, or is based upon a plainly
erroneous reading of a guideline provision. See Stinson v. United States, 508
U.S. 36, 42-43, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993); United States v. Fiore,
983 F.2d 1, 2 (1st Cir.1992). The commentary here suffers from none of these
vices. Thus, the sentencing court should have adhered to the application note.
The court did not do so. Instead, the court deviated from it by failing to account
for whether the receptionist/switchboard operator position embodied the kind
of "professional or managerial discretion" that the Sentencing Commission has
made the signature characteristic of a position of trust. See USSG 3B1.3,
comment. (n.1); see also United States v. Becraft, 117 F.3d 1450, 1452-53
(D.C.Cir.1997); United States v. McMillen, 917 F.2d 773, 775 (3d Cir.1990).
20
When a sentencing court erroneously applies a guideline, we often remand for

the court to make a new finding. See, e.g., United States v. Jackson, 30 F.3d
199, 204 (1st Cir.1994); United States v. Mariano, 983 F.2d 1150, 1157 (1st
Cir.1993). Here, however, the undisputed facts indicate quite plainly that the
defendant's position was not invested with any substantial degree of discretion.
21
Reccko answered the telephone and relayed calls. She also announced visitors,
but she did not have discretion either to screen them or to admit them to the
non-public areas of the stationhouse. She was closely supervised, and the
telephone lines that she regularly used were monitored. All in all, Reccko's
position afforded her access to information, but reposed in her no discernible
discretion. Indeed, at oral argument in this court the prosecutor admitted that
the receptionist/switchboard operator position involved no significant
discretionary authority. Under these circumstances, we deem the
receptionist/switchboard operator job to be on a par with the bank teller and
hotel clerk positions that the Sentencing Commission identified as non-trust
positions. See USSG 3B1.3, comment. (n.1). By like token, the job is a fair
congener of other non-professional, non-managerial posts in public and private
employment that courts routinely have found not to be positions of trust. See,
e.g., United States v. Ragland, 72 F.3d 500, 503 (6th Cir.1996) (customer
service representative at bank); United States v. West, 56 F.3d 216, 220
(D.C.Cir.1995) (courier); United States v. Smaw, 22 F.3d 330, 332
(D.C.Cir.1994) (time-and-attendance clerk for federal agency).
22
The government's counter-arguments lack force. It asserts, first, that despite the
Commission's apparent insistence that positions of trust are characterized by
significant discretion and minimal supervision--attributes that the government
concedes are absent here--our decisions have expanded the contours of the
Commission's definition. To substantiate this claim, the government cited at
oral argument our opinion in United States v. Innamorati, 996 F.2d 456 (1st
Cir.1993). Innamorati cannot bear the weight that the government loads upon
it.
23
To the extent relevant, the Innamorati case involved a defendant, one

Thompson, who had been a police officer at the Registry of Motor Vehicles and
had employed that position to obtain access to information later used to
facilitate a drug-trafficking conspiracy. See id. at 490. Police officers regularly
exercise significant discretion, and, thus, Thompson occupied a position of
trust. See id. (citing United States v. Rehal, 940 F.2d 1, 5 (1st Cir.1991)). It
made no difference that Thompson was assigned to desk duty. See id. From this
brief account, it is readily apparent that the Innamorati decision does not in any
way, shape, or form support the claim that a closely supervised position which
lacks meaningful discretion nevertheless can be regarded as "a position of
public or private trust" under 3B1.3 merely because occupying the position
makes it easier for the holder to gain access to facilitative information.
24
It is true that in dealing with the position-of-trust enhancement courts

occasionally have emphasized the employee's freedom to commit wrongs that
defy facile detection. See, e.g., Tardiff, 969 F.2d at 1289; United States v. Hill,
915 F.2d 502, 506 (9th Cir.1990). But these decisions deal with earlier versions
of 3B1.3 and, thus, antedate the Sentencing Commission's emphasis on
managerial or professional discretion (which was inserted into the application
note by an amendment that took effect on November 1, 1993). In all events, the
paradigm has no bearing here. The defendant's position did not furnish her with
any such freedom, as most of the telephone lines at the station--including the
line that she used when speaking to Vigneau--were continuously monitored.
This circumstance virtually ensured that her tip would be easily detected (as,
indeed, it was).
25
The United States also suggests that the general public safety function of the
police department transforms the receptionist/switchboard operator position to
one of public trust. We think not. Although this court, as in Innamorati, 996
F.2d at 490 and Rehal, 940 F.2d at 5, has not hesitated to affirm 3B1.3
enhancements as applied to police officers who commit certain offenses, we see
no principled basis for extending the enhancement to civilian employees of a
municipality, assigned to work at police headquarters or comparable venues,
whose jobs do not possess the requisite accouterments of positions of trust.
Accord United States v. Long, 122 F.3d 1360, 1365-66 (11th Cir.1997)
(holding that prison food service foreman was not in a position of trust for
purposes of 3B1.3).
26
We have one more bridge to cross. The commentary to USSG 3B1.3 contains
an express exception for postal workers, rendering the position-of-trust
enhancement applicable to any postal employee committing certain enumerated
offenses, regardless of the incidence vel non of discretion. The Sentencing

Commission has explained that "because of the special nature of the United
States mail, an adjustment for an abuse of a position of trust will apply to any
employee of the U.S. Postal Service who engages in the theft or destruction of
undelivered United States mail." USSG 3B1.3, comment. (n.1). The district
court apparently believed that this exception strengthened the case for applying
3B1.3 to Reccko,2 and the government indicates its agreement with this
proposition. We demur. There is simply no basis, either in language or in
policy, for expanding the postal workers' exception beyond its terms. The
maxim "expressio unius est exclusio alterius " is a useful interpretive tool in
construing the sentencing guidelines. See Smaw, 22 F.3d at 332-33; United
States v. Newman, 982 F.2d 665, 673-74 (1st Cir.1992). If the Sentencing
Commission had intended additional types of public employees to be subject to
the position-of-trust enhancement without regard to their level of professional
or managerial discretion, it doubtless would have said so.
III. CONCLUSION
27
We need go no further.3 We recognize that there may well be sound arguments

for enhancing the sentence of a public employee who, though supervised and
lacking in discretion, is peculiarly situated to imperil law enforcement activities
and even to jeopardize the safety of police officers through unlawful conduct.
Withal, the guidelines say what they say--and rewriting them is a matter for the
Sentencing Commission, not for the courts. Consistent with the guidelines as
written and explained by the Sentencing Commission, we conclude that the
defendant did not hold a position of trust within the meaning of USSG 3B1.3.
Because the district court erroneously ruled to the contrary, we vacate the
defendant's sentence and remand for resentencing.
28
Vacated and remanded.
Without the position-of-trust enhancement, the GSR would have been 10-16
months
The court acknowledged that a bank teller who embezzles would not merit the
enhancement. See USSG 3B1.3, comment. (n.1). The court then added:
We also have a special notation in the application notes dealing with letter
carriers. And letter carriers are treated differently than bank tellers because of
the special nature of the United States mail. And I found that the reference to
letter carriers was instructive here.
Because resentencing is required, we need not address Reccko's alternative

argument that the trial judge violated Fed.R.Crim.P. 32(c)(1) by failing to
resolve disputed factual questions germane to the imposition of the position-oftrust enhancement

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151 F.

UNITED STATES of America, Appellee,

United States Court of Appeals,

Thomas G. Briody, by appointment of the court, for appellant.

This single-issue sentencing appeal requires us to decide whether the district

On December 14, 1995, several groups of Drug Enforcement Administration

The disputed guideline provides in pertinent part:

USSG 3B1.3. The commentary indicates that the enhancement "applies to

On a superficial reading of this language, a receptionist/switchboard operator

Id., comment. (n.1).

Consistent with this application note's stated method, we have directed

covered explicitly either by the guideline commentary or by existing precedent,

When a sentencing court erroneously applies a guideline, we often remand for

To the extent relevant, the Innamorati case involved a defendant, one

It is true that in dealing with the position-of-trust enhancement courts

offenses, regardless of the incidence vel non of discretion. The Sentencing

We need go no further.3 We recognize that there may well be sound arguments

Vacated and remanded.

Because resentencing is required, we need not address Reccko's alternative

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