Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-24-2006

USA v. Rhoades
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3273




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Recommended Citation
"USA v. Rhoades" (2006). 2006 Decisions. Paper 1049.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1049


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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 05-3273


                           UNITED STATES OF AMERICA

                                            vs.

                              GARY DEAN RHOADES,
                      d/b/a RHOADES CAPITAL MANAGEMENT,
                                     Gary Dean Rhoades, Appellant
                                  ____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                           (D.C. Crim. No. 04-cr-00051E )
                 District Judge: Honorable Maurice B. Cohill, Jr.
                                   ____________

                   Submitted Under Third Circuit L.A.R. 34.1(a)
                                  May 17, 2006
          Before: RENDELL, Van ANTWERPEN and WEIS, Circuit Judges.
                             (Filed: May 24, 2006)
                                 ____________


                                        OPINION


WEIS, Circuit Judge

              Plaintiff pleaded guilty to two counts of mail fraud and one count of wire

fraud. He was sentenced to forty-six months of imprisonment to be followed by three

years of supervised release. His appeal contends that the District Court erred in deciding

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that he occupied a position of trust for purposes of section 3B1.3 of the United States

Sentencing Guidelines. The District Court concluded that “there is no doubt in the

Court’s mind here that Mr. Rhoades did occupy a position of trust and that he violated

that trust.”

               The defendant acted as a financial advisor to Venango County and

Northwestern School District. Because this opinion is not precedential, we need not

review the details of his criminal scheme, which were adequately developed in the

evidentiary hearing prior to sentencing. By misusing the authority the County and School

District granted him to place funds for investment, he caused heavy losses to both

governmental agencies.

               Section 3B1.3 provides, in relevant part, that “if the defendant abused a

position of public or private trust ... in a manner that significantly facilitated the

commission or concealment of the offense, increase by 2 levels." U.S.S.G. § 3B1.3.

“Professional or managerial discretion (i.e. substantial discretionary judgment that is

ordinarily given considerable deference)” characterize positions of trust for purposes of

section 3B1.3. U.S.S.G. § 3B1.3 cmt.1. Our Court has established a three-prong test to

determine whether an individual occupies a position of trust for the purposes of section

3B1.3: “(1) whether the position allows the defendant to commit a difficult-to-detect

wrong; (2) the degree of authority which the position vests in defendant vis-a-vis the

object of the wrongful act; (3) whether there has been reliance on the integrity of the

person occupying the position.” United States v. Pardo, 

, 1192 (3d Cir.

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1994).

               The district judge found that the defendant’s position “allowed him to

commit a difficult to detect wrong,” he had authority to carry out the wrongful act, and

that Venango County and Northwestern School District relied on his integrity.

               We conclude that the District Court did not err in finding that the defendant

occupied a position of trust under the Guidelines and therefore an enhancement was

proper. In any event, the sentence was reasonable and was not “‘imposed in violation of

the law.’” United States v. Cooper, 

(3d Cir. 2006) (quoting 18 U.S.C. §

3742(a)(1)).

               Accordingly, the Judgment of Sentence will be affirmed.




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