United States v. Nance
United States v. Nance
Opinion of the Court
Defendant Donald Ray Nance appeals the sentence imposed under the United States Sentencing Guidelines after his conviction on tax evasion and bank fraud
I.
Nance was the chief financial officer of ServiceMax Tire and Auto Centers of Michigan. In 1993 and 1994, he prepared two sets of employment tax returns — one stating the correct amount of tax due. which he sent to corporate headquarters, and the other stating a lower amount due, which he sent to the Internal Revenue Service. Nance stole the excess paid by his employer, forged the company bookkeeper’s name, destroyed company documents, and did not report the embezzled amount on his personal income tax. Nance also defrauded Bank One by falsely claiming that he was president of his company in order to obtain a line of credit from the bank, and making false statements on a home equity loan application.
Nance pled guilty and was sentenced to 70 months incarceration plus five years of supervised release, as well as substantial monetary restitution. The initial presentence investigation report recommended that Nance receive an enhancement for obstruction of justice and a reduction for acceptance of responsibility. After the presentence report was prepared, however, probation officers discovered that Nance had provided false financial information in an attempt to conceal his assets. On that basis, the court rejected the acceptance of responsibility reduction. The sentencing judge also applied an abuse of trust enhancement on the grounds that Nance had abused the trust placed in him by his employer by taking advantage of his position as chief financial officer to embezzle money. Nance appeals both of these sentencing decisions.
II.
A. The Denial of an Acceptance of Responsibility Reduction
The Sentencing Guidelines allow a two-level reduction in total offense level “if the defendant clearly demonstrates acceptance of responsibility for his offense.” United States Sentencing Guidelines § 3El.l(a). The district court’s determination that a defendant is not entitled to an acceptance of responsibility adjustment is reviewed for clear error. United States v. Christoph, 904 F.2d 1036, 1040 (6th Cir. 1990), cert. denied, 498 U.S. 1041, 111 S.Ct. 713, 112 L.Ed.2d 702 (1991). “The determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation.” United States v. Wilson, 878 F.2d 921, 923 (6th Cir. 1989).
Nance contends that the district court denied the adjustment as a substitute punishment for obstruction of justice, rather than engaging in a genuine inquiry as to his acceptance of responsibility. The district court did note that because Nance had already received an obstruction of justice enhancement, that avenue for addressing Nance’s continuing deceptive behavior was not available to the court. However, the district court did not stop there; it linked Nance’s deception to his lack of recognition and affirmative acceptance of responsibility. Although Nance fully admitted the truth of the charges against him, the district court found that his failure to expose his assets so that the court might impose the appropriate penalty for his offense demonstrated an unwillingness to face the full ramifications of his actions.
B. The Application of an Abuse of Trust Enhancement
A defendant’s offense level will be enhanced by two levels if he abuses a position of public or private trust “in a manner that significantly facilitated the commission or concealment of the offense.” U.S.S.G. § 3B1.3. “For this adjustment to apply, the position of public or private trust must have contributed in some significant way to facilitating the commission or concealment of the offense.” U.S.S.G. § 3B1.3, cmt. n.l. The determination that a defendant occupied a position of trust is a question of law that this court reviews de novo. United States v. Young, 266 F.3d 468 (6th Cir. 2001).
The Introductory Commentary to Section 3, Part B of the Sentencing Guidelines provide that the abuse of trust enhancement should be based not only on the “elements and acts cited in the count of conviction,” but also all relevant conduct within the scope of § lB1.3(a). This includes “all acts and omissions ... that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense,” “all acts and omissions ... that were part of the same course of conduct or common scheme or plan as the offense of conviction,” as well as “all harm that resulted from [those] acts and omissions.” U.S.S.G. §§ lB1.3(a)(l)-(3). Nance admits he embezzled money from and lied to his employer, with respect to whom he did occupy a position of trust. These acts were conduct relevant to his tax evasion conviction. See United States v. Young, 266 F.3d 468 (6th Cir. 2001) (embezzlement of employer’s funds is relevant conduct to money laundering charge and therefore abuse of trust enhancement applies); United States v. Cianci 154 F.3d 106 (3d Cir. 1998) (uncharged embezzlement is rel
Nance counters that the abuse of trust enhancement is double counting because he already received an enhancement under U.S.S.G. § 2T1.1(b)(l) for failing to report income received from criminal activity.
For the forgoing reasons, we AFFIRM the sentence imposed by the district court.
. The court noted that "after [Nance] did these — committed these criminal acts for which he finally admitted his guilt, but then to go on with this pattern in an attempt or what
. Section 2Tl.l(b) provides: "If the defendant failed to report or to correctly identify the source of income exceeding $10,000 in any year from criminal activity, increase by 2 levels.”
Reference
- Full Case Name
- United States v. Donald Ray NANCE
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- 1 case
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- Published