Unpublished Disposition, 940 F.2d 669 (9th Cir. 1991)

MEMORANDUM^* 

BACKGROUND

Beginning in November 1986, appellant Laurie Beth Onstad, a civilian employee at the United States Naval Undersea Warfare Engineering Station (NUWES) in Keyport, Washington, was the Treasurer of the NUWES recreational fund. An audit of the fund revealed that between March of 1988 and March of 1989, Onstad obtained the signatures of other Recreation Board members on blank checks, cosigned the checks, and cashed them or deposited the funds in her personal bank account.

Onstad was arrested and pleaded guilty to one count of theft of government property in violation of 18 U.S.C. § 641. The district court sentenced Onstad to five months of imprisonment, three years of supervised release, including five months of community confinement, and $20,000 restitution. We affirm.

DISCUSSION

On appeal, Onstad challenges the district court's two-point enhancement of her sentence under section 3B1.3 of the United States Sentencing Guidelines (U.S.S.G.). We review the district court's application of the guidelines de novo. United States v. Hill, 915 F.2d 502, 504-05 (9th Cir. 1990).

Under section 3B1.3, a sentencing court should increase a defendant's sentence by two points when the defendant abused a position of trust "in a manner that significantly facilitated the commission or concealment of the offense." U.S.S.G. Sec. 3B1.3 (Nov. 1, 1989). This adjustment should not be used, however, "if an abuse of trust or skill is included in the base offense level or specific offense characteristic." Id.

The Commentary to the Sentencing Guidelines add:

The position of trust must have contributed in some substantial way to facilitating the crime and not merely have provided an opportunity that could as easily have been afforded to other persons. This adjustment, for example, would not apply to an embezzlement by an ordinary bank teller.

We have distinguished the case of a bank janitor, who, although lower in the hierarchy of fiduciary duty than a teller, could be subject to an enhancement because of his special opportunity to roam about the bank with keys and his lack of supervision by others. United States v. Drabeck, 905 F.2d 1304 (9th Cir.), reh'g en banc granted, 915 F.2d 1404 (1990). Accord United States v. Georgiadis, No. 90-3224 slip op. at 10-15 (3d Cir. May 5, 1991) (sentence enhanced for Assistant Vice President of bank in charge of mortgage settlement closings).

Onstad had neither the opportunities of the bank janitor nor the special responsibilities of the bank vice president. She was supervised in the sense that a co-signature was necessary, but she was not closely monitored like an ordinary bank teller. As voluntary treasurer of a nonprofit organization she did have significant fiduciary responsibilities which she significantly abused to facilitate her crime. Accordingly, the enhancement is appropriate.

AFFIRMED.