U.S. v. Brack (Lawyers Weekly No. 11-01-0685, 13 pp.) (Agee, J.) No. 10-4493, July 5, 2011; USDC at Durham, N.C. (Schroeder, J.) 4th Cir. Click here for the full-text opinion.
Holding: Although defendant says North Carolina does not recognize licensed bail bondsmen as having a position of trust, the 4th Circuit upholds a sentencing enhancement for “abuse of trust” for a woman who posed as a bail bondsman to bilk an 80-year-old man out of his savings and real estate when he tried to post bond for his granddaughter.
At sentencing, defendant did not challenge the recommendation for a two-level abuse-of-trust enhancement under ¤ 3B1.3 of the federal sentencing guidelines, so the court reviews the appellate claim for plain error. The court upholds defendant’s sentence of 94 months’ imprisonment on her convictions for wire fraud and for aggravated identity theft, which carried a mandatory 24-month sentence.
Defendant does not contest the fact that she provided the victim with sufficient indicia for him to conclude she was a duly licensed bail bondsman. Her sole argument on appeal is that bail bondsmen in North Carolina do not occupy a position of public or private trust as a matter of law. Our precedent makes clear that a defendant’s lack of complete discretion does not preclude application of the enhancement, provided the defendant holds some substantial degree of trust.
From an overview of the relevant legal framework, it is clear that licensed bail bondsmen in North Carolina hold a position of public trust that entails the assumption of certain fiduciary duties to their clients. This fact is most clearly evident when one considers the North Carolina statutes related to bail bondsmen’s handling of collateral. One traditional hallmark of a “fiduciary” relationship is the exercise of a high standard of care in managing another’s money or property. North Carolina law holds bail bondsmen to just such a standard in the handling of collateral deposited to secure their services. Indeed, the standard is remarkably similar to the standard imposed on lawyers as fiduciaries.
Defendant also used her position of trust to facilitate commission or concealment of her offense, as required by USSG ¤ 3B1.3. Not only did her purported position as a bail bondsman provide a seemingly valid basis for her to make initial contact with the victim at the jail, it also allowed defendant to secure the victim’s identifying information without revealing her criminal intent to complete fraudulent credit applications.
The district court did not err in applying the sentencing enhancement.