United States v. Bailey, Robert ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2933
United States of America,
Plaintiff-Appellee,
v.
Robert Bailey,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 790--Milton I. Shadur, Judge.
Argued June 8, 2000--Decided September 12, 2000
Before Easterbrook, Kanne and Williams, Circuit
Judges.
Kanne, Circuit Judge. Robert Bailey, a cadet
with the Village of Maywood (Ill.) Park District
Police Department, joined other police officers
in an attempted robbery of a drug-dealer. The
"drug-dealer" proved to be part of an FBI sting
operation, and Bailey had succeeded only in
attempting to rob an undercover FBI agent. Bailey
was convicted of attempted robbery. He appeals
his conviction, claiming that the government
failed to prove the prerequisite jurisdictional
nexus to interstate commerce and that the
district court erred by instructing the jury on
a "depletion of assets" theory for the interstate
commerce nexus that was unsupported by the
evidence. Bailey also claims that the district
court made two errors at sentencing, wrongly
enhancing his sentence for possession of a
firearm and abuse of a position of trust. Finding
no errors, we affirm.
I. History
Bailey joined the Maywood Park District Police
Department in March 1995, as a cadet, a volunteer
training position. Cadets are not sworn police
officers, but they wear police uniforms and
patrol paired with police officers. Bailey was
assigned to patrol areas in and around various
city parks, and he worked on occasion with
Lieutenant Charles Jones and Officer Michael
Broome. Bailey, Jones and Broome had previously
conducted shakedowns of drug dealers, and in late
1995, the government confronted Broome with
evidence of his involvement in these activities
and convinced him to cooperate with the FBI. On
January 16, 1996, Broome met with Jones and
Bailey to plan another robbery, which in reality
would be a sting operation conducted by the FBI.
Broome wore a listening device to the January 16
meeting and recorded the events that transpired.
Broome told Jones and Bailey that he had an
informant who owed him a favor because Broome did
not charge him when Broome caught him with
cocaine. This unnamed informant did not exist,
but Broome produced pictures of two men to
substantiate his story. Broome claimed that the
informant would identify a larger drug source,
from whom they could steal money and/or drugs.
Broome told Bailey and Jones that his informant
paid his supplier about $1,200 per ounce of
cocaine. The officers decided that they would ask
the informant to call his supplier to buy an
ounce of cocaine, then rob the cocaine dealer of
the drug purchase money. When asked if he was
interested, Bailey responded, "Deal me in."
Later, Bailey also told Broome that he knew
sources to sell as much cocaine as they found on
the supplier, if they robbed the supplier of
drugs as well as money.
Broome told Bailey on January 25 that the plan
they had discussed was to take place that
afternoon. He asked Bailey to call Jones and to
arrange to meet near Bosco Park in Maywood so
that they could drive together to the deal
location. He also informed Bailey that the
cocaine supplier was a Mexican male. Bailey and
Broome informed Jones of the rendezvous, and
later Bailey met Broome, who was now wearing a
listening device, at the predetermined location
and drove to Bosco Park in Broome’s patrol car.
Jones failed to appear at the rendezvous, so
Bailey and Broome proceeded without him.
The FBI set up surveillance in the park, and
FBI Special Agent Miguel Del Toro (playing the
role of the drug dealer) waited in a red car.
Broome and Bailey arrived first and pulled up
behind the red car (purportedly identified by
Broome’s informant), followed shortly by Jones,
who drove a Maywood Park Animal Control Division
van. Broome and Bailey left their patrol car and
approached either side of Del Toro’s car. Bailey
went to the passenger side, and as he approached,
Del Toro noticed that Bailey’s hand rested on a
black-handled, nickel-plated firearm, which he
carried on his right hip. Broome ordered Del Toro
out of the car, and Bailey searched the car and
Del Toro’s jacket and wallet and found about
$1,200 in cash. Jones never left the van but
ordered Broome and Bailey to strip Del Toro and
search him and his car for drugs and more cash.
The search revealed no drugs. During the search,
Del Toro insisted that he was a dry-waller, not
a drug dealer. After the search, the officers met
up to split the money. While counting the money,
Broome recounted Del Toro’s insistence that he
installed dry-wall, to which Bailey responded,
"Oh yeah, a fucking dry-waller."
Two weeks later, FBI officials confronted Bailey
with pictures and other evidence of the robbery.
Bailey admitted his involvement and described the
event in great detail. However, he refused to
admit that he possessed a firearm during the
deal. Bailey was indicted on one count of robbery
under the Hobbs Act, 18 U.S.C. sec. 1951, and on
one count of use or possession of a firearm
during and in relation to a robbery, under 18
U.S.C. sec. 924(c). Jones also was charged with
these crimes, but he agreed to plead guilty to
each and to testify against Bailey. Bailey chose
a jury trial.
At trial, the government sought to prove
jurisdiction under the Hobbs Act by presenting
two types of evidence relating to criminal
conduct affecting interstate commerce. First, the
government presented the testimony of DEA Special
Agent Nancy Lane, who testified that the coca
plant, from which cocaine is derived, is not
grown in Illinois and that cocaine is
manufactured in South America. Second, the
government introduced evidence that all fuel
purchases for the Maywood police department were
made through a centralized billing location in
Oklahoma, thus implicating interstate commerce.
The government also presented tape-recorded
evidence of the January 16 meeting, photographs,
tape and video recorded evidence of the January
25 shakedown, testimony from Broome, Jones and
Del Toro, and evidence of Bailey’s confession.
Both Broome and Del Toro testified that Bailey
possessed a firearm on his right rear hip during
the shakedown, but the two disagreed about its
color. Another government witness testified that
Bailey owned a firearm but did not possess it on
the day of the robbery. Bailey called only one
witness, FBI Special Agent Gary Sebo, who took
Bailey’s confession. Bailey’s counsel examined
Sebo about Bailey’s refusal to admit, at any
point during the confession, to his possession of
a gun during the robbery.
At the close of the introduction of evidence,
the district court held a jury instruction
conference. Bailey objected to the government’s
proposed jury instruction on depletion of assets.
He also tendered an alternative depletion of
assets instruction. The district court overruled
Bailey’s objection and gave the government’s
proposed instruction.
The jury returned a guilty verdict on the Hobbs
Act charge, but acquitted Bailey on the
possession of a firearm charge. At sentencing,
the government argued that Bailey’s sentence
merited a five-level enhancement under United
States Sentencing Guidelines sec. 2B3.1(b)(2)(C)
for possession of a firearm in connection with
his offense, a two-level enhancement for abuse of
a position of trust, pursuant to U.S.S.G. sec.
3B1.3 and an enhancement for physical restraint
of Del Toro. Bailey contested each of these
enhancements and also sought a two-level decrease
for accepting responsibility. Judge Shadur
conducted a hearing and granted the enhancements
sought by the government and granted Bailey the
two-level decrease he requested. The district
judge computed Bailey’s total offense level to be
twenty-seven with a criminal history category I,
requiring a sentence of seventy to eighty-seven
months. Bailey was sentenced to seventy months
imprisonment, followed by three years supervised
release.
II. Analysis
Bailey appeals four issues arising from his
trial and sentencing. First, Bailey contends that
the government failed to prove the jurisdictional
prerequisites required to prosecute him under the
Hobbs Act. Second, Bailey argues that the
district court erred by giving a jury instruction
on the "depletion of assets" theory because that
theory was unsupported by the evidence. Third,
Bailey argues that the district court committed
clear error by finding that he possessed a gun
during the course of his criminal conduct, which
led the district court to enhance his sentence
for use of a firearm. Fourth, Bailey finds error
in the district court’s determination that he
occupied a position of trust and as such, was
eligible for that sentencing enhancement.
A. Interstate Commerce
Bailey contends that his conviction must be
reversed because the government failed to
establish that Bailey’s conduct affected
interstate commerce. A connection with interstate
commerce is a jurisdictional requirement of 18
U.S.C. sec. 1951, see United States v. Shields,
999 F.2d 1090, 1097-98 (7th Cir. 1993), and if
the government failed to present sufficient
evidence of such a connection, Bailey’s
conviction must be overturned. Nonetheless, we
grant great deference to jury verdicts and will
overturn a verdict for insufficient evidence
"only when the record contains no evidence,
regardless of how it is weighed, from which the
jury could find guilt beyond a reasonable doubt."
United States v. Morrison, 207 F.3d 962, 966 (7th
Cir. 2000) (internal quotation omitted).
The Hobbs Act prohibits any robbery or
extortion or attempt or conspiracy to rob or
extort that "in any way or degree obstructs,
delays or affects commerce or the movement of any
article or commodity in commerce." 18 U.S.C. sec.
1951(a). The Supreme Court has interpreted
jurisdiction under sec. 1851(a) to be coextensive
with the Commerce Clause, see Stirone v. United
States, 361 U.S. 212, 215 (1960), so the
government may prove the jurisdiction of its case
by showing a de minimis or otherwise slight
effect on interstate commerce. See Shields, 999
F.2d at 1098.
Because the Hobbs Act criminalizes attempts as
well as completed crimes, the government need not
even prove that interstate commerce was affected,
only that there exists a "realistic probability"
of an effect on commerce. See United States v.
Anderson, 809 F.2d 1281, 1286 (7th Cir. 1987). To
prove an attempt, the government must have shown
only that Bailey acted with specific intent to
commit the underlying offense, that is, that he
intended to perform a robbery, and took a
substantial step toward its completion. See
United States v. Dennis, 115 F.3d 524, 534 (7th
Cir. 1997). Because factual impossibility is not
a defense to an attempt crime, see United States
v. Weaver, 8 F.3d 1240, 1243 (7th Cir. 1993), we
have found an effect on interstate commerce when
the FBI provides the money extorted or stolen.
See United States v. Thomas, 159 F.3d 296, 297-98
(7th Cir. 1998); Shields, 999 F.2d at 1097-98;
United States v. Hocking, 860 F.2d 769, 777 (7th
Cir. 1988).
A commonly employed method of showing effect on
interstate commerce is the "depletion of assets"
theory. Under this theory, the government shows
that "commerce is affected when an enterprise,
which either is actively engaged in interstate
commerce or customarily purchases items in
interstate commerce, has its assets depleted
through extortion, thereby curtailing the
victim’s potential as a purchaser of such goods."
United States v. Elders, 569 F.2d 1020, 1025 (7th
Cir. 1978); see also United States v. Stillo, 57
F.3d 553, 558 (7th Cir. 1995); Shields, 999 F.2d
at 1098. In Thomas, 159 F.3d at 297-98, we
addressed the question of whether robbery of
money that the defendants believed would have
been used to purchase cocaine constitutes a
depletion of assets satisfying the jurisdictional
requirements of the Hobbs Act. Because the
government offered proof that cocaine was only
available through interstate commerce, i.e., the
cocaine originated in South America, we
determined that a robbery of the drug money
"thwarted what would have been a sale in commerce
within the meaning of the Hobbs Act." Id. at 298.
We also noted that the de minimis value of drug
money stolen was irrelevant to the determination
that the sale affected interstate commerce, since
the relevant question is whether the entire class
of cocaine sales depended on interstate commerce.
See id.
For the government to present sufficient
evidence of effect on interstate commerce under
a depletion of assets theory, it must present
evidence that (a) at the time that he attempted
to rob Del Toro, Bailey intended to rob his
victim of either cocaine or money that he
believed was used to purchase cocaine, and (b)
robbery of cocaine dealers generally has an
effect on interstate commerce. The government
presented evidence, in the form of tape-recorded
conversations between Bailey and his co-
conspirators and the testimony of his co-
conspirator Broome, that the officers planned the
robbery beforehand, specifically targeting a drug
supplier whom they expected to be in possession
of either cash from the sale of an ounce of
cocaine or an ounce of cocaine. The government
also presented Lane’s expert testimony that
cocaine is produced in South America. Therefore,
the government asserts that cocaine must enter
Illinois through interstate commerce. The result
is, the government contends, that the robbery of
cocaine dealers depleted the assets available to
purchase cocaine through interstate commerce,
thereby creating the requisite effect on
interstate commerce.
Bailey contends that the government’s evidence
was insufficient because the effect on interstate
commerce was "purely imaginary." He argues that
there was never a possibility of affecting
interstate commerce because no cocaine was
present, Del Toro did not intend to make a sale
or purchase affecting interstate commerce and the
money that Bailey took from Del Toro was FBI
money that would never be used in interstate
commerce. Bailey attempts to distinguish this
case from cases such as Thomas and Shields, in
which we held that attempts to rob FBI agents of
drug money met the jurisdictional requirements of
the Hobbs Act. See Thomas, 159 F.3d at 297;
Shields, 999 F.2d at 1097-98. In those cases the
FBI agents were planning actual transactions that
would have affected interstate commerce, rather
than fake transactions as here. That difference
is immaterial.
In Thomas, there was no cocaine present when
the FBI informant was robbed and, despite
Bailey’s contention to the contrary, no actual
transaction involving interstate commerce took
place. Nonetheless, we found a nexus to
interstate commerce on the grounds that the
potential transaction, a sale of cocaine, was of
the class that in the aggregate has an effect on
interstate commerce. See Thomas, 159 F.3d at 298.
In addition, we noted in Shields that one could
be convicted of attempt under the Hobbs Act "even
though no money has changed hands." Shields, 999
F.2d at 1098. Bailey’s conviction for attempt was
premised on the evidence showing that he had
formed a specific intent to rob a cocaine dealer,
the evidence showing that he took a significant
step toward robbing a cocaine dealer by taking
money from someone who was identified to him as
a drug dealer and the evidence showing that the
robbery of cocaine dealers has an effect on
interstate commerce. The fact that Bailey was
unable to complete the underlying acts to which
he had developed a specific intent is irrelevant
to his attempt, and the fact that the connection
to interstate commerce under these facts arises
primarily from his specific intent is equally
irrelevant. For this reason, we find that the
government presented sufficient evidence to prove
an effect on interstate commerce. Because the
government’s presentation of evidence on the
depletion of assets of cocaine dealers satisfies
its jurisdictional burden, we need not address
whether the use of gasoline in the Maywood police
vehicle affects interstate commerce.
B. Jury Instructions
Bailey also argues that the district court
erred in giving the jury a "depletion of assets"
instruction, which he claims lacked sufficient
basis in the evidence. We review de novo a
district court’s decision to give or not to give
a jury instruction. See United States v. Brack,
188 F.3d 748, 761 (7th Cir. 1999). However, we
grant great deference to the district court’s
choice of language in jury instructions,
upholding instructions that are "accurate
statements of the law and which are supported by
the record." United States v. Vang, 128 F.3d
1065, 1069 (7th Cir. 1997) (internal quotation
omitted).
At the instruction conference, Bailey objected
to the government’s instruction for jurisdiction
based on interstate commerce on the grounds that
after United States v. Lopez, 514 U.S. 549
(1995), the "depletion of assets" instruction no
longer accurately reflected the law. Bailey did
not argue that the government failed to produce
evidence of depletion of assets, and he presented
an alternative instruction that also applied the
depletion of assets basis for jurisdiction. On
this basis, the government argues that Bailey has
waived this claim, precluding us from reviewing
it on appeal. See United States v. Staples, 202
F.3d 992, 995 (7th Cir. 2000).
Waiver is the intentional relinquishment of a
known right. See id. In the context of a jury
instruction, a party must state both the matter
objected to and the grounds objected on to
preserve the objection for appellate review. See
Cefalu v. Village of Elk Grove, 211 F.3d 416, 426
(7th Cir. 2000); Fed. R. Crim. P. 30. At the
instruction conference, Bailey stated his
objection to the interstate commerce instruction,
but he based his argument on the legal accuracy
of the instruction, not on the lack of factual
support for it in the record. However, his
failure to object on the grounds he now raises
does not equate with an "intentional
relinquishment," and we have previously found in
cases where defendants objected on unstated
grounds that these objections constituted a
forfeiture, rather than a waiver. See United
States v. Griffin, 84 F.3d 912, 924-25 (7th Cir.
1996); United States v. Ross, 77 F.3d 1525, 1538-
42 (7th Cir. 1996).
For this reason and because Bailey proffered an
alternative jury instruction rather than merely
objecting to the government’s instruction, we
refuse to find a waiver in this case. However,
Bailey has forfeited his claim by failing to
raise it at the proper time, so we review only
for plain error. Under this standard, we will
reverse only if we find "particularly egregious
errors" or if we must prevent "a miscarriage of
justice." United States v. Franklin, 197 F.3d
266, 270 (7th Cir. 1999).
We find no error in allowing the interstate
commerce instruction based on the evidence
presented at trial. The government produced
evidence in support of its depletion of assets
theory. The reasonable inference of Lane’s
testimony was that cocaine only arrives in
Illinois as a result of interstate commerce. This
testimony, along with the tape recordings of
Bailey and the other officers, suggests that the
money Bailey attempted to steal from Del Toro was
money he believed was used to purchase goods
received in interstate commerce. The theft of
such money would have depleted available assets
for interstate commerce. This evidence is enough
to support the depletion of assets instruction.
C. Use of a Firearm
The district court enhanced Bailey’s sentence
five levels based on the finding that Bailey was
in possession of a firearm during the commission
of his robbery. We review for clear error the
sentencing court’s findings of fact. See United
States v. Watson, 189 F.3d 496, 501 (7th Cir.
1999). A sentencing court commits clear error
when "we are left with a definite and firm
conviction that a mistake has been made," United
States v. Strache, 202 F.3d 980, 984-85 (7th Cir.
2000) (citation omitted). Where two permissible
interpretations of the evidence are possible, a
factfinder’s choice of one is not clearly
erroneous. See United States v. McGill, 32 F.3d
1138, 1143 (7th Cir. 1994).
United States Sentencing Guidelines sec.
2B3.1(b)(2)(C) requires courts to increase a
defendant’s total offense level by five levels
when a firearm was "brandished, displayed, or
possessed" during the commission of a robbery.
U.S.S.G. sec. 2B3.1(b)(2)(C). Guidelines sec.
1B1.3(a)(1) also provides that sentencing courts
should take into account "all reasonably
foreseeable acts and omissions of others in
furtherance of a jointly undertaken criminal
activity," U.S.S.G. sec. 1B1.3(a)(1)(B), which
includes the possession of firearms by co-
conspirators during the commission of a robbery.
See United States v. Dorsey, 209 F.3d 965, 967-68
(7th Cir. 2000). Bailey does not contest the
applicability of these guidelines to his conduct,
but argues that the district court committed
clear error in finding that he possessed a
firearm and that he could have reasonably
foreseen that Jones would be in possession of a
firearm.
A sentencing court may consider whatever
information it possesses, as long as this
evidence "includes sufficient indicia of
reliability to support its probable accuracy."
Morrison, 207 F.3d at 967. Because the government
only must prove relevant conduct by a
preponderance of the evidence at sentencing,
sentencing courts may include as relevant conduct
acts for which the defendants have been
acquitted. See United States v. Kroledge, 201
F.3d 900, 908 (7th Cir. 2000). In making its
determination that Bailey possessed a firearm
during the robbery, Judge Shadur focused on the
testimony of Broome and Del Toro that Bailey
possessed a firearm and on photographs of Bailey
approaching Del Toro’s car with his hand placed
where both Del Toro and Broome testified that
Bailey kept his firearm. The district judge based
his finding that co-defendant Jones possessed a
gun on Jones’s admission in his plea agreement
that he possessed a firearm during the robbery.
There was no clear error in determining that
Bailey possessed a firearm when the robbery
occurred. Broome and Del Toro both testified that
Bailey possessed a firearm. Although the two
witnesses dispute the color and exact placement
of the firearm, both agreed that the gun was kept
at Bailey’s right rear hip. Photographs taken of
Bailey approaching the car immediately before the
robbery show him slightly crouched with his hand
placed over the area where Broome and Del Toro
testified Bailey kept his firearm. This body
language reasonably suggests that Bailey
possessed a handgun and wanted it close at hand
if complications ensued. As Bailey argues, the
evidence also could reasonably be interpreted in
an alternative manner. The witnesses’ testimony
conflicts, and neither witness had an
unobstructed view of Bailey’s firearm. The
photographic record never captures the firearm.
It might even be equally likely that Bailey would
wish to pretend to have a gun while approaching
the robbery to keep the victim in fear for his
life. However, on review our task is not to
choose between reasonable alternatives that the
sentencing court might have chosen. Our task is
to determine whether the district court made a
reasonable assessment based on the evidence
presented, see McGill, 32 F.3d at 1143, and we
believe that the evidence available for appellate
review/1 could reasonably have been determined
to show by a preponderance that Bailey was in
possession of a firearm. We find no clear error
in the conclusions of the district court. Because
we find no clear error in the court’s conclusion
that Bailey possessed a firearm, we will not
consider whether the court’s alternative basis
for the enhancement was clear error.
D. Abuse of Trust
Finally, Bailey contends that the district court
erred in enhancing his sentence pursuant to
U.S.S.G. sec. 3B1.3 for abuse of a position of
trust. He claims that, as a police cadet, he did
not occupy a position of trust. The district
court’s finding that Bailey occupied a position
of public trust is a question of fact, which we
review for clear error. See United States v.
Vivit, 214 F.3d 908, 922 (7th Cir. 2000).
Guidelines sec. 3B1.3 directs courts to increase
a defendant’s total offense level by two levels
when "the defendant abused a position of public
or private trust . . . in a manner that
significantly facilitated the commission or
concealment of the offense." U.S.S.G. sec. 3B1.3.
We employ a two-part test to determine whether
sec. 3B1.3 applies, asking (1) whether the
defendant occupied a position of trust and (2)
whether his abuse of the position of trust
significantly facilitated the commission of the
offense. See United States v. Sierra, 188 F.3d
798, 802 (7th Cir. 1999). Application note 1 to
sec. 3B1.3 clarifies that positions of public
trust are "characterized by professional and
managerial discretion," and are "subject to
significantly less supervision" than other
positions. U.S.S.G. sec. 3B1.3 application note
1. However, "[i]n determining whether the
defendant occupied a position of trust [a
defendant’s] diminutive title or lack of sweeping
power is unimportant." Sierra, 188 F.3d at 802.
Instead, we focus on whether a person had
governmental power or access to or authority over
other things of value. See id.; United States v.
Stewart, 33 F.3d 764, 768 (7th Cir. 1994).
Because of the nature of their position, the
well-settled law of this circuit holds that
police officers occupy a position of trust. See
Sierra, 188 F.3d at 802; United States v. Parker,
25 F.3d 442, 450 (7th Cir. 1994). In addition,
application note 2 to sec. 3B1.3 informs courts
that the enhancement will also apply when "the
defendant provides sufficient indicia to the
victim that the defendant legitimately holds a
position of private or public trust," even if the
defendant does not actually hold such a position.
See U.S.S.G. sec. 3B1.3 application note 2./2
The district court found that Bailey "was
someone who was armed with apparent authority of
the type that would facilitate the kind of
offense that’s involved here, even though he was
not a sworn officer." The court held that Bailey
took advantage of this position, and on this
basis, the court enhanced his sentence under sec.
3B1.3. Bailey does not contest that if we uphold
the district court’s determination that he
occupied a position of trust, his abuse of this
position significantly facilitated the commission
of his offense. Instead, Bailey focuses on
whether he occupied a position of trust, claiming
that, as a cadet, he was under close supervision
and lacked the actual authority necessary to
occupy a position of public trust.
As a cadet, Bailey was supervised closely and
had little actual authority. However, title and
lack of authority are not dispositive if the
defendant provides "sufficient indicia of
authority" to convince the victim that he
possesses authority. See U.S.S.G. sec. 3B1.3
application note 2. Police officers occupy
positions of public trust, and individuals who
have apparent authority of police officers when
facilitating the commission of an offense abuse
the trust that victims place in law enforcement.
To the general public, police cadets are not
distinguishable from police officers. In
performing the shakedown, Bailey arrived in a
police cruiser with another police officer, wore
an official police uniform, acted as if he were
a police officer and never informed Del Toro, the
purported victim, that he was not a police
officer. From Del Toro’s perspective, there was
no reason to suspect that Bailey did not occupy
the position of trust that he appeared to occupy.
Bailey argues that Del Toro knew ahead of time
that Bailey was only a cadet, and therefore, from
the perspective of the victim, the government
cannot show that Bailey occupied a position of
public trust. However, application note 2 to sec.
3B1.3 clarifies that the guideline requires only
that a defendant provide sufficient indicia to
the victim demonstrating that the defendant
occupies a position of public trust, not that the
victim must believe or accept these indicia. See
U.S.S.G. sec. 3B1.3 application note 2. Bailey
portrayed himself as a police officer in an
attempt to force Del Toro to pay him off, and by
so doing, Bailey took advantage of this apparent
authority to engage in criminal activity. On this
basis, we find no error in the district court’s
conclusion that Bailey’s behavior constituted "a
classic instance of abuse of trust."
III. Conclusion
For all the foregoing reasons, we Affirm the
decisions of the district court.
/1 Bailey referenced the government’s exhibit
photograph eight on numerous occasions in his
briefing as evidence that Bailey actually kept
handcuffs, not a firearm, on his right rear hip
during the robbery. Unfortunately, this
photograph was not included within the appellate
record, so we cannot review it. See, e.g.,
Aliwoli v. Gilmore, 127 F.3d 632, 633 (7th Cir.
1997).
/2 Bailey urges us not to consider application note
2 to sec. 3B1.3 because it was added by amendment
to the Guidelines in 1997, after Bailey had
committed the predicate conduct to his offense.
Generally, to avoid Ex Post Facto Clause
violations, we apply the sentencing guidelines in
effect at the time of commission of the offense.
See Vivit, 214 F.3d at 917. However, we consider
an amendment made to the commentary to a
guideline if the amendment is made to clarify,
rather than substantively change the Guidelines.
See U.S.S.G. sec. 1B1.11(b)(2); United States v.
Downs, 123 F.3d 637, 643 (7th Cir. 1997). An
amendment to the commentary of a Guideline serves
a clarifying purpose if the amendment leaves the
text of the guideline untouched and reasonably
interprets the existing language of the
Guidelines. Id. Amendment 580 to the Sentencing
Guidelines, which adopts sec. 3B1.3 application
note 2, does not alter the text of sec. 3B1.3.
See U.S.S.G. Appendix C, amendment 580. Moreover,
prior to the promulgation of application note 2,
this Circuit viewed the question whether a
defendant occupied a position of trust from the
viewpoint of the victim, see United States v.
Hathcoat, 30 F.3d 913, 919 (7th Cir. 1994), and
interpreted sec. 3B1.3 to include the impostor as
well as the person who legitimately abuses a
position of trust. As such, amendment 580 did not
create new substantive law. This amendment to
sec. 3B1.3 merely clarified our existing
interpretation of sec. 3B1.3, and for this
reason, we do not violate the Ex Post Facto
Clause by including application note 2 in our
analysis of Bailey’s conduct.