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United States v. Banks

United States District Court, N.D. Indiana, Hammond Division

October 15, 2019

UNITED STATES OF AMERICA
v.
TANISHA A. BANKS

         UNDER SEAL

          OPINION AND ORDER

          THERESA L. SPRINGMANN CHIEF JUDGE

         This matter is before the Court on Defendant Tanisha A. Banks' Objection to the Final Presentence Investigation Report (PSR), as set forth in the Addendum to the Final Presentence Investigation Report [ECF No. 134]. The Defendant, who is awaiting sentencing, was found guilty by a jury of one count of Conspiracy to Rob Mail, Money or Other Property of the United States in violation of 18 U.S.C. § 371 and one count of Robbery of Mail, Money or Other Property of the United States in violation of 18 U.S.C. § 2114(a). The two convictions carry a maximum penalty of five years imprisonment and ten years imprisonment, respectively. The sole issue before the Court is whether the Defendant's objection to the adjustment increasing her sentencing offense level for the abuse of a position of trust pursuant to Sentencing Guideline § 3B1.3, which is applied at paragraph 27 of the PSR, should be granted.

         BACKGROUND

         Defendant Tanisha Banks worked for the United States Postal Service as a clerk. She worked at various postal stations, on an as-needed basis, including at the Tolleston Station. PSR ¶ 5, ECF No. 133. As a postal clerk, the Defendant performed various jobs, including closing out the cash drawer. Id. ¶ 7. She learned information not commonly known by the typical postal employee. This information included specific details of the procedures for taking cash out of the post office at the end of the day, such as the color and fabric of the bag used and also that the Tolleston Station might take in as much as $10, 000 during the early days of the month. Id. ¶¶ 7- 8. The Defendant used this information to plan a robbery of the Tolleston Station. The Defendant, along with her two co-defendants, did ultimately rob the Tolleston Station, taking approximately $5, 595 and one piece of undelivered priority mail in the process. Id. ¶11.

         Based on this information, the PSR includes an adjustment to the Defendant's offense level pursuant to Sentencing Guideline § 3B1.3 for the Defendant's role in the offense, because “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; . . . .” PSR ¶ 27. This adjustment adds two levels to the calculation of the Defendant's offense level under the Guidelines.

         The Defendant submitted an objection to the adjustment, arguing that she does not qualify as having occupied a position of public or private trust. See ECF No. 134. On August 21, 2019, the Court set a schedule for additional briefing to address (i) whether knowledge of procedure alone is a sufficient indicia of the victim's trust and reliance in the Defendant, see United States v. Bradshaw, 670 F.3d 768, 770 (7th Cir. 2012) (citing United States v. Fuchs, 635 F.3d 929, 935 (7th Cir. 2011)), and (2) whether Application Note 2(A) to § 3B1.3 applies to the Defendant, given the testimony at trial. Aug. 21, 2019 Order, ECF No. 157. The Defendant filed a Memorandum in Response to Court Order of August 21, 2019 [ECF No. 159], and the Government filed a Response to Docket Entry 159 [ECF No. 160].

         LEGAL STANDARD

         When sentencing a defendant, the district court “must first calculate the Guidelines range, and then consider what sentence is appropriate for the individual defendant in light of the statutory sentencing factors, 18 U.S.C. § 3553(a), . . . .” Nelson v. United States, 555 U.S. 350, 351 (2009); see United States v. Panice, 598 F.3d 426, 441 (7th Cir. 2010) (citing Nelson and setting forth the two-step process that a sentencing court must engage in to determine a defendant's sentence). This Opinion and Order is intended to resolve the Defendant's objection related to the first step-the calculation of the Guidelines range.

         Facts relevant to sentencing should be proved by a preponderance of the evidence. United States v. England, 555 F.3d 616, 622 (7th Cir. 2009); see also United States v. Krieger, 628 F.3d 857, 863 (7th Cir. 2010) (advising that sentencing factors that do not increase the defendant's sentence beyond the statutory range may be found by the court at sentencing by a preponderance of the evidence). The Federal Rules of Evidence do not apply to sentencing, United States v. Dean, 414 F.3d 725, 730 (7th Cir. 2005), and a court may rely on hearsay as long as the information “has sufficient indicia of reliability to support its probable accuracy, ” United States v. Rollins, 544 F.3d 820, 838 (7th Cir. 2008) (citation and quotation marks omitted). See also United States v. Bradley, 628 F.3d 394, 400 (7th Cir. 2010) (“Sentencing judges necessarily have ‘discretion to draw conclusions about the testimony given and evidence introduced at sentencing,' but ‘due process requires that sentencing determinations be based on reliable evidence, not speculation or unfounded allegations.'”) (quoting England, 555 F.3d at 622). As such, “[a] district court may rely on facts asserted in the PSR if the PSR is based on sufficiently reliable information.” Rollins, 544 F.3d at 838. “The defendant bears the burden of proving that the PSR is inaccurate or unreliable, ” and “if he offers no evidence to question the PSR's accuracy, the court may rely on the PSR.” Id. However, it is the Government's burden to prove by a preponderance of the evidence that an enhancement applies. See United States v. Hines, 449 F.3d 808, 815 (7th Cir. 2006); United States v. Foutris, 966 F.2d 1158, 1160 (7th Cir. 1992).

         ANALYSIS

         The United States Sentencing Commission first introduced an adjustment for the Abuse of Position of Trust or Use of Special Skill in the 1987 version of the United States Sentencing Guidelines. U.S. Sentencing Guidelines Manual § 3B1.3 (U.S. Sentencing Comm'n 1987). Guideline § 3B1.3 stated, “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.” Id. Although the guideline instructed sentencing courts to hold individuals abusing a position of public or private trust to a higher level of culpability, it provided no definition for courts to use when determining whether a position was one of public or private trust. See id.

         The Sentencing Commission remedied this issue in 1993, when it amended the Application Notes to § 3B1.3 in order to “[reformulate] the definition of an abuse of position of trust to better distinguish cases warranting [the] enhancement.” U.S. Sentencing Guidelines Manual App. C, Vol. 1., amend. 492 (U.S. Sentencing Comm'n 2018). Specifically, the Sentencing Commission defined “Public or Private Trust” in Application Note 1 to § 3B1.3 as:

[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 ...

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