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United States v. Jerome, 01-4698 (2002)

Court: Court of Appeals for the Fourth Circuit Number: 01-4698 Visitors: 39
Filed: Jun. 07, 2002
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 01-4698 TRACIE JEROME, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Chief District Judge; Albert V. Bryan, Jr., Senior District Judge. (CR-01-51-A) Submitted: May 20, 2002 Decided: June 7, 2002 Before MICHAEL, MOTZ, and KING, Circuit Judges. Affirmed in part and vacated and remanded
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                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,               
                 Plaintiff-Appellee,
                  v.                             No. 01-4698
TRACIE JEROME,
                 Defendant-Appellant.
                                        
            Appeal from the United States District Court
         for the Eastern District of Virginia, at Alexandria.
               Claude M. Hilton, Chief District Judge;
             Albert V. Bryan, Jr., Senior District Judge.
                           (CR-01-51-A)

                       Submitted: May 20, 2002

                        Decided: June 7, 2002

      Before MICHAEL, MOTZ, and KING, Circuit Judges.



Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.


                             COUNSEL

Amy L. Austin, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Richmond, Virginia, for Appellant. Paul J. McNulty, United States
Attorney, Patricia M. Haynes, Assistant United States Attorney, Mau-
rice Eitel Stucke, Special Assistant United States Attorney, Alexan-
dria, Virginia, for Appellee.
2                      UNITED STATES v. JEROME
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Tracie Jerome was charged in an eight-count indictment and con-
victed of three counts following a jury trial: Count 3, embezzlement
by a bank employee on December 7, 1996 of funds not in excess of
$1000 in violation of 18 U.S.C.A. § 656 (West 2000); Count 7, falsi-
fication of a bank entry on October 4, 1997 in violation of 18
U.S.C.A. § 1005 (West 2000); and Count 8, embezzlement by a bank
employee on July 7, 1997 of funds in excess of $1000 in violation of
18 U.S.C.A. § 656.

   The district court sentenced Jerome to twelve months in prison for
Count 3, eighteen months in prison for Count 7, and eighteen months
in prison for Count 8, to run concurrently, and four years of super-
vised release. Jerome was assessed $13,660.74 in restitution. On
appeal, Jerome argues: (1) the evidence was insufficient to support
her convictions; (2) the district court erred when it applied a two-level
enhancement for abuse of a position of trust under U.S. Sentencing
Guidelines Manual § 3B1.3 (2000); and (3) the district court erred
when it applied a two-level enhancement for obstruction of justice
under USSG § 3C1.1.

   We review the verdict to determine whether there is substantial evi-
dence, taken in the light most favorable to the Government, to support
the conviction. Glasser v. United States, 
315 U.S. 60
, 80 (1942).
When considering the sufficiency of the evidence, we do not review
the credibility of a witness’s testimony. United States v. Hobbs, 
136 F.3d 384
, 391 n.11 (4th Cir. 1998). Jerome argues the evidence was
insufficient to support her conviction of Count 3, embezzlement on
December 7, 1996, based on her mishandling a customer’s deposit.
Jerome also argues the evidence was insufficient to establish that she
made a false entry on her daily cash settlement on October 4, 1997
as charged in Count 7 and that she embezzled in excess of $1000 as
                       UNITED STATES v. JEROME                        3
charged in Count 8. We have thoroughly reviewed the evidence and
conclude without difficulty that, when viewed in the light most favor-
able to the Government, it is sufficient to support Jerome’s convic-
tion.

    Second, Jerome argues the district court improperly applied a two-
level enhancement for abuse of a position of trust under USSG
§ 3B1.3. The application of the enhancement is reviewed for clear
error. United States v. Godwin, 
272 F.3d 659
, 671 (4th Cir. 2001),
cert. denied, No. 01-9474, 
2002 WL 524554
(U.S. May 13, 2002).
Generally, the abuse of a position of trust enhancement is not applica-
ble "in the case of embezzlement or theft by an ordinary bank teller."
USSG § 3B1.3, comment. (n.1). The enhancement may be applied to
a bank teller, however, if the defendant: (1) had special duties or spe-
cial access to information not available to other employees; (2) had
little supervision or a high degree of managerial discretion; and (3)
was more culpable than others who hold similar positions and commit
similar crimes. United States v. Gordon, 
61 F.3d 263
, 269 (4th Cir.
1995). The sentencing court applied the abuse-of-trust enhancement
based on a finding that Jerome was the acting head teller in the
absence of the head teller. The trial record, however, does not estab-
lish that Jerome was assigned or actually performed the duties of a
head teller. The testimony at trial established that Jerome was
assigned the same responsibilities and treated the same as all other
non-supervisory tellers employed at the bank, that she did not have
special access to security information, and that she was supervised in
the same manner as all bank tellers. Based on the evidence at trial, we
conclude the district court erred when it applied the abuse-of-trust
enhancement.

   Finally, Jerome argues the district court erred when it applied a
two-level enhancement for obstruction of justice under USSG § 3C1.1
based on Jerome’s perjury and the suborning of her mother’s testi-
mony. To establish an obstruction of justice enhancement based on
perjury, the sentencing court must find by a preponderance of the evi-
dence that the testimony was false, that it concerned a material matter,
and that it was given with willful intent to deceive. United States v.
Smith, 
62 F.3d 641
, 646 (4th Cir. 1995). We have reviewed the trial
testimony and find no error in the district court’s application of the
sentencing enhancement.
4                      UNITED STATES v. JEROME
   We therefore affirm Jerome’s conviction. We conclude the district
court clearly erred in applying the abuse of a position of trust
enhancement, thus causing Jerome’s sentencing guidelines range to
be eighteen to twenty-four months rather than twelve to eighteen
months. We therefore vacate Jerome’s sentence and remand to the
district court for re-sentencing. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

    AFFIRMED IN PART; VACATED AND REMANDED IN PART

Source:  CourtListener

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