United States v. Patricia Foreman

ORDER

The above-entitled opinion found at 905 F.2d 1335 (9th Cir.1990) is amended per the attached. With these amendments Judges Browning and Boochever vote to deny the petition for rehearing. Judge Reinhardt votes to grant it. Judges Browning and Reinhardt reject the suggestion for rehearing en banc and Judge Boochever so recommends.

The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. (Fed.R.App.P. 35.)

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

AMENDED OPINION

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…

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…

926 F.2d 792 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. As Amended on Denial of Rehearing and Rehearing En Banc Feb. 26, 1991. 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. ORDER 1 The above-entitled opinion found at 905 F.2d 1335 (9th Cir.1990) is amended per the attached. With these amendments Judges Browning and Boochever vote to deny the petition for rehearing. Judge Reinhardt votes to grant it. Judges Browning and Reinhardt reject the suggestion for rehearing en banc and Judge Boochever so recommends. 2 The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. (Fed.R.App.P. 35.) 3 The petition for rehearing is denied and the suggestion…