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U.S. v. Georgiadis

filed: May 23, 1991.

UNITED STATES OF AMERICA
v.
BASIL G. GEORGIADIS, APPELLANT



On Appeal from the United States District Court for the Western District of Pennsylvania; D.C. Criminal Action No. 90-00008-1.

Becker, Nygaard and Alito, Circuit Judges.

Author: Nygaard

Opinion OF THE COURT

NYGAARD, Circuit Judge

Basil G. Georgiadis appeals two sentences imposed on him under the United States Sentencing Guidelines ("Guidelines" or "U.S.S.G.") after he pleaded guilty to four counts of bank embezzlement in violation of 18 U.S.C. § 656. Only the sentencing on counts three and four is at issue, because the embezzlements alleged in counts one and two pre-date the Guidelines. Georgiadis was sentenced under the Guidelines to eighteen months' imprisonment, and to three years of supervised release.

Georgiadis alleges two sentencing errors. First, he claims the district court did not expressly consider and reject his request for a discretionary downward departure on the record. Second, he claims it was error to enhance his offense level by two for "abuse of a position of trust".

We reject Georgiadis' allegations of error and will affirm the district court's judgment of sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

I.

From March 1985 until January 1989, Georgiadis was employed by North Side Deposit Bank in Pittsburgh, Pennsylvania. His last position was Assistant Vice President/Mortgage Department. His job was to administer the Bank's mortgage settlement closings.

The Bank began investigating Georgiadis' work related activity when a Bank director questioned the low amount of income derived from loan origination fees (points) on mortgages made by the Bank. The investigation revealed Georgiadis had diverted $284,104.89 of mortgage settlement monies into two of his own accounts by encoding otherwise properly labeled deposit slips with his personal account numbers. To avoid suspicion, Georgiadis altered the Bank's copies of settlement sheets.

Georgiadis committed the first of his many embezzlements the same month he was hired by the Bank, and they continued until discovered and Georgiadis was discharged. He admitted taking the money, and pleaded guilty to four counts of embezzlement under a plea agreement with the government.

At Georgiadis' sentencing hearing, the district court calculated a total offense level of fourteen (14) as follows: under U.S.S.G. § 2B1.1(a), the court fixed the base offense level at four (4); under § 2B1.1(b)(1), the court increased the offense level by eight (8), to reflect the total financial loss from Georgiadis' embezzlements under counts three and four; under § 2B1.1(b)(5)*fn1, the court made a two (2) level increase for "more than minimal planning"; under § 3B1.3, the court added two (2) levels for "abuse of a position of trust"; and last, pursuant to § 3E1.1(a), the court made a two (2) level reduction for Georgiadis' acceptance of responsibility for his crimes. Given Georgiadis' criminal history category, the total offense level of fourteen (14) indicated a Guidelines term of imprisonment of 15 to 21 months.

During the sentencing hearing and when objecting to the presentence report, Georgiadis challenged the propriety of the upward adjustment for abuse of a position of trust sought by the government, and also requested a downward departure from the Guidelines-calculated sentencing range. Nevertheless, the district court sentenced Georgiadis to eighteen months imprisonment on counts three and four, to be served concurrently with the sentence on counts one and two, the non-Guidelines counts. The district court did not make the discretionary downward departure from the Guidelines requested by Georgiadis.

II.

Georgiadis claims the district court erred by not expressly commenting upon and rejecting his request for a downward departure. He also argues it is not clear that the district court actually considered his request.

We have jurisdiction to consider these claims, because they allege the district court committed legal (i.e., procedural) errors when imposing Georgiadis' sentence. See 18 U.S.C. § 3742(a)(1) and (e)(1). If we determine the district court was aware of its authority to depart from the Guidelines, and chose not to, we are without power to inquire further into the merits of its refusal to grant Georgiadis' request. See United States v. Denardi, 892 F.2d 269, 272 (3d Cir. 1989). Stated differently, we have jurisdiction to decide whether a sentencing court erred legally when not making a requested discretionary downward departure, but we cannot hear a challenge to the merits of a sentencing court's discretionary decision not to depart downward from the Guidelines. Id.

A.

Georgiadis contends that when a defendant requests a discretionary downward departure from Guidelines sentencing ranges, a sentencing court must always indicate on the record that it knows it has authority to depart, considered the defendant's request to do so, and decided not to depart. Georgiadis claims the district court erred by not making those statements at his sentencing hearing.

Georgiadis contends that express judicial statements demonstrating a district court's exercised discretion when refusing to depart downward are needed in order to permit a court of appeals to determine whether it has jurisdiction in light of Denardi ; to facilitate appellate review of sentencing; and to ...


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