Immigration Clerk Who Embezzled Processing Fees Did Not Occupy Position of Trust

U.S. v. Spear, --- F.3d ----, 2007 WL 1821028 (10th Cir. June 26, 2007)

Defendant, who as a processing clerk for the US Citizens and Immigration Bureau embezzled application fees paid by change of status applicants, pleaded guilty to embezzlement but, because in her job position she did not exercise professional or managerial discretion she did not occupy a position of trust (and supervisor’s letter opining that Defendant was in a position of trust did not change that reality). The district court incorrectly added 2 points for abuse of a position of trust to her guidelines, requiring a reversal and remand. ALSO, sentencing occurred before Atencio decision, so court’s failure to give notice it was increasing the GL sentence by 2 months required reversal.