United States v. Patricia Foreman

905 F.2d 1335 UNITED STATES of America, Plaintiff-Appellee, v. Patricia FOREMAN, Defendant-Appellant. No. 89-50038. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 7, 1989. Decided June 19, 1990. Carlton F. Gunn, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant. Jeffrey C. Eglash and Peter Morris, Asst. U.S. Attys., Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before BROWNING, BOOCHEVER and REINHARDT, Circuit Judges. BOOCHEVER, Circuit Judge: 1 Patricia Foreman challenges the district court's imposition of a two-level upward adjustment of offense level for "abuse of position of trust" pursuant to Sec. 3B1.3 of the Guidelines. 1 We find that the adjustment was warranted and affirm the district court's decision. FACTS AND PROCEDURAL HISTORY 2 On July 20, 1988, Foreman was a Wellston, Missouri police officer. On that date she was questioned by Los Angeles Police Department officers and Drug Enforcement Agency agents in the Los Angeles International Airport after the officers observed what they considered suspicious behavior on her part. When they…

Patricia Foreman challenges the district court's imposition of a two-level upward adjustment of offense level for "abuse of position of trust" pursuant to § 3B1.3 of the Guidelines. 1 We find that the adjustment was warranted and affirm the district court's decision.

FACTS AND PROCEDURAL HISTORY

On July 20, 1988, Foreman was a Well-ston, Missouri police officer. On that date she was questioned by Los Angeles Police Department officers and Drug Enforcement Agency agents in the Los Angeles International Airport after the officers observed what they considered suspicious behavior on her part. When they identified themselves and asked for her identification, she showed them her police badge and stated that she was an active police officer. The officers continued with their questioning and eventually arrested her for possession of a controlled substance.

*1337 Foreman was indicted August 5, 1988, and pled guilty on November 14, 1988, to one count of possession with intent to distribute 310 grams of cocaine in violation of 21 U.S.C. § 841 (a)(1) (1982). In determining her sentence under the Guidelines, the district court included a two-level upward adjustment for abuse of a position…

dissenting:

In affirming the district court’s two-level upward adjustment of Foreman’s sentence, the majority enlarges the scope of section 3B1.3 far beyond anything the language of that provision can reasonably bear. I have expressed elsewhere my reservations about the restrictions which the Sentencing Guidelines place on the discretion of the sentencing judge. United States v. Brady, 895 F.2d 538, 544 (9th Cir.1990) (Reinhardt, J., concurring specially). Nevertheless, since we must apply the Guidelines, we should apply them as they are written. Because I cannot acquiesce in the strained interpretation rendered by the majority, I dissent.

I begin with the language of the applicable guideline:

§ 3B1.3. Abuse of Position of Trust or Use of Special Skill

United States Sentencing Commission, Guidelines Manual, § 3B1.3 (Nov. 1989) (emphasis added). The majority concedes that Foreman’s offense was complete by the time she showed her badge, and that this section is applicable only if Foreman’s act of identifying herself as a police officer constituted an abuse of a position of public trust, which “significantly facilitated the ... concealment of the offense.” Id. (emphasis…