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United States v. McMillen

argued: June 21, 1990.

UNITED STATES OF AMERICA, APPELLANT,
v.
ROBERT J. MCMILLEN



On Appeal From the United States District Court For the Western District of Pennsylvania; D.C. Criminal Action No. 89-00136.

Stapleton, and Greenberg, Circuit Judges, and Louis H. Pollak,*fn* District Judge. Louis H. Pollak, concurs and dissents in part.

Author: Stapleton

Opinion OF THE COURT

STAPLETON, Circuit Judge

The United States appeals the sentence imposed on Robert J. McMillen under the United States Sentencing Guidelines (the "U.S.S.G."), following a guilty plea, for misapplication of funds by a Savings and Loan employee in violation of 18 U.S.C. § 657. The Government argues that the district court erred in not adjusting McMillen's sentence upward pursuant to U.S.S.G. § 3B1.3 because he abused a position of private trust in a manner that significantly facilitated the commission of the offense. We agree and will vacate the sentence and remand to the district court for further proceedings consistent with this opinion.

I.

McMillen was indicted for misapplying the funds of the First Federal Savings and Loan Association in violation of 18 U.S.C. § 657. At all relevant times he was employed by the Savings and Loan Association as a branch manager. The indictment alleged that McMillen willfully misapplied funds by obtaining loans in the fictitious name of Edwin Thurmond. To collateralize the loans, McMillen issued a savings certificate in the name of Edwin Thurmond without the bank's receiving any consideration therefore. In addition, he opened a checking account, also in the name of Edwin Thurmond, and deposited the loan proceeds in that account. After completing the fraudulent loan applications, McMillen approved them himself as branch manager.

McMillen pled guilty to one count of misapplication of funds by a Savings and Loan employee. The district court, in applying the sentencing guidelines, found U.S.S.G. § 3B1.3 inapplicable. In the district court's view, McMillen was not employed in a position of trust; the opportunity to commit this crime was equally available to other employees, and McMillen's position as branch manager did not contribute in a substantial way to facilitating the commission of the crime. App. at 56-57. The court sentenced McMillen to a three-year term of probation. As a condition of the probation, the court ordered McMillen confined to a Community Treatment Center for a period of thirty days to be followed by five months of home detention. The Government's timely appeal followed.

II.

A. Jurisdiction

This Court has jurisdiction over the appeal pursuant to 28 U.S.C.A. § 1291 and 18 U.S.C.A. § 3742(b)(2).

B. Standard of Review

Congress has provided us with guidance concerning the appropriate standard for appellate review of a sentence under the Sentencing Guidelines. "The court of appeals . . . shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. § 3742(e). The relevant legislative history is also instructive.

This standard of review is intended to give the court of appeals flexibility in reviewing an application of a guideline standard that involves some subjectivity. The deference due a district court's determination will depend upon the relationship of the facts found to the guidelines standard being applied. If a particular determination involved closely resembles a finding of fact, the court of appeals would apply a clearly erroneous test. As the ...


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