United States v. Blazej Wasilewski , 703 F.3d 373 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2664
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
B LAZEJ M. W ASILEWSKI,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 11 CR 575-1—Charles R. Norgle, Judge.
A RGUED O CTOBER 23, 2012—D ECIDED D ECEMBER 19, 2012
Before F LAUM and S YKES, Circuit Judges, and R ANDA,
District Judge. Œ
R ANDA, District Judge. Blazej Wasilewski (“Wasilewski”)
stole over $40,000 from the bank he worked for as an
assistant branch manager. Wasilewski pled guilty to one
count of embezzlement, and at sentencing the district
Œ
The Honorable Rudolph T. Randa, United States Court for
the Eastern District of Wisconsin, sitting by designation.
2 No. 12-2664
court applied a two-level enhancement for abusing a
position of trust under U.S.S.G. § 3B1.3. The district court
then sentenced Wasilewski to six months’ imprisonment,
followed by two years of supervised release with six
months of home confinement.
On appeal, Wasilewski argues that the district court
erred by applying the abuse of trust enhancement.
Wasilewski also argues that the district court erred by
treating the sentencing guidelines as mandatory and
requiring a prison sentence. Neither argument has
merit, so we affirm the district court’s sentence.
I. Background
Wasilewski was an assistant vice-president and
assistant manager at a Chase Bank branch in Glenview,
Illinois. Wasilewski was generally responsible for the
daily operations of the bank, which included assigning
teller drawers and safes, maintaining codes for the
drawers and safes, and performing audits on teller
drawers and teller cash dispensers (“TCDs”). Wasilewski
had a key to the bank’s front door and a PIN to deactivate
the perimeter and vault alarms. Wasilewski performed
closing procedures at the bank with the assistance of
another employee. He also had one-half of a multi-
digit code that could be combined with another em-
ployee’s code to open a TCD.
On August 26, 2011, at 4:15 p.m., Wasilewski entered the
employee break room where the bank’s electrical closet
was located and momentarily shut off the bank’s power
No. 12-2664 3
supply before turning the power back on. At 6:47 p.m.,
Wasilewski switched the power off again, but this time
he did not switch it back on. That evening while per-
forming the closing procedures, Wasilewski entered the
bank’s server room where the backup switch was located
and unplugged the cords to the bank’s master power
supply boxes. At 7:30 p.m., Wasilewski contacted the
bank’s corporate security department to remotely reset
the alarm. However, the bank remained without power
until the next morning, during which time the bank’s
video surveillance was unable to record images inside
the bank.
Wasilewski left and later returned to the bank, using
his PIN to deactivate the perimeter alarm. At 1:56 a.m.,
Wasilewski again used his PIN to deactivate the vault
alarm, which also protected the TCDs. At some point
before entering the bank that morning, Wasilewski came
to possess another employee’s four-digit TCD code.
Wasilewski used that code and his own to open the
TCD. Wasilewski removed $40,988.78 in cash and fled
the bank.
At 7:44 a.m. that morning, Wasilewski boarded a flight
to the Dominican Republic. Upon arrival, customs
officials searched Wasilewski’s laptop bag and found
$39,765 in United States currency. Wasilewski was
arrested and detained by the Dominican National Police,
then deported to Puerto Rico where he was appre-
hended by the FBI. Wasilewski was sent back to Chicago
and charged with embezzlement in violation of 18 U.S.C.
§ 656. He entered a guilty plea on February 10, 2012.
4 No. 12-2664
II. Abuse of Trust Enhancement
Section 3B1.3 provides for a two-level increase if the
defendant “abused a position of public or private trust, or
used a special skill, in a manner that significantly facili-
tated the commission or concealment of the offense . . . .”
The district court’s interpretation of § 3B1.3 is subject to
de novo review, but its factual findings are entitled to
deference unless clearly erroneous. United States v. Fuchs,
635 F.3d 929, 933 (7th Cir. 2011). We agree with the
district court that Wasilewski occupied a position of
private trust at Chase Bank, which he abused in a
manner that helped him facilitate and conceal his theft.
A “position of public or private trust” is “characterized
by professional or managerial discretion (i.e., substantial
discretionary judgment that is ordinarily given consider-
able deference).” U.S.S.G. § 3B1.3, n.1. As the district
court recognized, Wasilewski’s formal job title—vice-
president and assistant branch manager—is important,
but not dispositive. Courts should “look beyond labels, to
the nature of the position the defendant is in and the
responsibilities entrusted to him.” United States v. Fife,
471 F.3d 750, 753 (7th Cir. 2006). Accordingly, this court
has found the enhancement applicable to a wide variety
of positions, including an office manager, United States
v. Cruz, 317 F.3d 763, 765 (7th Cir. 2003), a mayor’s
special assistant, Fife, 471 F.3d at 751, the elected chair-
man of a Democratic precinct committee, United States v.
Thomas, 510 F.3d 714, 717 (7th Cir. 2007), and a hotel
clerk, United States v. Tiojanco, 286 F.3d 1019, 1019-20
(7th Cir. 2002). No matter the label, a position of trust
No. 12-2664 5
“carries with it an assumption that the person entrusted
with the position will act in accordance with the law.”
Thomas, 510 F.3d at 725.
Chase Bank entrusted Wasilewski with access to
large sums of money and the responsibility for keeping
that money safe and secure. It was his job to account for
all of the money in the vault and the TCDs. Wasilewski
argues that he was not given greater access to money
than an ordinary bank teller because he could not open
a TCD without another employee’s code. Wasilewski’s
argument ignores all the other things that allowed him
to steal from the bank, including keys to the bank and
PIN codes to deactivate alarms. Wasilewski needed
another TCD code, but once he had it, he was able to
enter the bank in the middle of the night, steal the
money, and leave on a trip the next morning before
anyone knew the money was gone. While the abuse
of trust enhancement “does not apply in the case of
an embezzlement or theft by an ordinary bank teller,”
U.S.S.G. § 3B1.3, n.1, Wasilewski had far more responsi-
bility than an ordinary bank teller.
Many of this court’s abuse of trust cases involve em-
ployees who are charged with “deciding, on a case-by-
case basis, whether a particular expenditure or transfer
of company funds or other valuables is necessary or
beneficial to the organization.” Tiojanco, 286 F.3d at 1021.
Accordingly, the enhancement applied to the hotel clerk
in Tiojanco because he was given “primary responsibility
for issuing well over $50,000 in customer refunds each
year,” id. at 1022, and to the office manager in Cruz
6 No. 12-2664
whose position “required her to draft checks to pay
company expenses.” 317 F.3d at 765. See also United
States v. Anderson, 259 F.3d 853, 863 (7th Cir. 2001) (en-
hancement applied to assistant branch manager who
“had the authority to withdraw funds from TCF
accounts in amounts over $1,000 without obtaining a
supervisor’s permission”); United States v. Hernandez, 231
F.3d 1087, 1088-89 (7th Cir. 2000) (enhancement applied
to staff accountant whose duties included “calculating
Zenith’s sales and use tax liabilities for jurisdictions
across the country and preparing check request forms
that authorized the Payables Department to generate
payment checks”); United States v. Deal, 147 F.3d 562,
563 (7th Cir. 1998) (applying enhancement to shopping
center comptroller who “approved invoices for pay-
ment”). However, the enhancement is not limited to
situations where the defendant is given the authority
to transfer funds or authorize expenditures. Wasilewski
still had “access and authority over valuable things,”
even if he was not authorized to disburse money or
transfer money between accounts. Hernandez, 231 F.3d
at 1090. A defendant’s “authority over the victim’s valu-
ables and the degree of discretion given to the defendant
by the victim are simply indicia of the victim’s special
trust and reliance, and that is the common thread in
these decisions.” Fuchs, 635 F.3d at 935 (emphasis
in original). By giving Wasilewski unfettered access to
the bank and control over its security measures, Chase
Bank placed “more than the ordinary degree of reliance
on [Wasilewski’s] integrity and honesty.” Id. The en-
hancement was justified on that basis.
No. 12-2664 7
Finally, Wasilewski argues that because he was
captured so soon after the theft, his position did not
make the crime more difficult to detect. As explained
in Deal, the fact that a defendant is “able to steal so
much and escape detection for so long is evidence . . . that
he had a position of trust in which he could get away
with more money and for a longer time than a hotel clerk
or a bank teller would be likely to be able to do.” 147
F.3d at 564. However, Wasilewski’s immediate capture
due to an alert customs agent does not prove the
opposite proposition. If anything, Wasilewski’s position
of trust enabled him to get away with the theft long
enough to flee the country with a bag of cash. An
ordinary bank teller could not have stolen money when
the bank was closed and no one else was present.
III. Sentencing Procedure
A sentencing court commits procedural error by “failing
to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to
consider the [18 U.S.C.] § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence . . . .” United
States v. Hill, 645 F.3d 900, 905 (7th Cir. 2011) (citing Gall
v. United States, 552 U.S. 38, 51 (2007)). Aside from the
abuse of trust issue, Wasilewski does not quarrel with
the district court’s calculation of his guideline range (12
to 18 months). Instead, Wasilewski argues that the
district court committed procedural error by treating
the guideline range as mandatory.
8 No. 12-2664
The district court prefaced its sentencing decision with
the following comments:
One of the sentences available here would be a sen-
tence of imprisonment that includes a term of super-
vised release with a condition that substitutes
home confinement or home detention, provided that
at least one-half of the minimum term is satisfied
by imprisonment. And also the possibility that if
home confinement is ordered, that the judgment
order would include a period of home detention,
which would include the wearing of an electronic
device.
Sentencing Transcript at 30.
Here, the district court was referring to U.S.S.G.
§ 5C1.1(d)(2),1 which provides that a sentence can be
split between prison and home confinement. The court
continued: “Would the law be satisfied, from the
probation officer’s position, if the Court imposed a sen-
tence of 12 months, and a term of supervised release
with a condition that substitutes home detention of at
least one-half of the minimum term?” Sent. Tr. at 30. In
1
“If the applicable guideline range is in Zone C of the Sentenc-
ing Table, the minimum term may be satisfied by —(1) a
sentence of imprisonment; or (2) a sentence of imprisonment
that includes a term of supervised release with a condition
that substitutes community confinement or home detention
according to the schedule in subsection (e), provided that
at least one-half of the minimum term is satisfied by impris-
onment.”
No. 12-2664 9
response, the probation officer confirmed the court’s
understanding that the “initial commitment” would be
for six months to the Bureau of Prisons. Id. at 30-31.
Later, after announcing Wasilewski’s sentence, the
district court stated:
with respect to those six months in the Bureau of
Prisons, this is not a case that necessarily cries out
for six months behind steel bars. The Bureau of
Prisons has the ability to make an appropriate place-
ment with respect to persons that have been com-
mitted to them as the Bureau of Prisons. It may well
be that the defendant may spend that six months
behind bars, so to speak, or it may well be that the
placement would be in some lesser form under dif-
ferent circumstances. But in order to satisfy the law
in the first instance, the commitment is to the Bureau
of Prisons.
Id. at 35-36.
Viewing these comments in their proper context, we
are easily convinced that the district court did not treat
the guidelines as mandatory. The district court’s state-
ment that this case does not “cr[y] out for six months
behind steel bars” was made after the district court pro-
nounced its sentence, and it was simply a prediction
that Wasilewski would be placed in a low- to medium-
security setting by the Bureau of Prisons. 18 U.S.C.
§ 3621(b) (“The Bureau of Prisons shall designate the
place of the prisoner’s imprisonment”). Moreover, the
district court’s reference to “the law be[ing] satisfied” by a
split sentence under § 5C1.1(d)(2) does not reflect an
10 No. 12-2664
assumption that prison is required in the first instance.
Rather, the district court explained that a split sentence
is “one of the sentences available,” then sought clarifica-
tion from the probation officer regarding how such a
sentence would be executed with respect to the Bureau
of Prisons.
The district court considered all of the relevant factors
under § 3553(a), including the nature and circumstances
of the offense, the history and characteristics of the de-
fendant, and the need to provide just punishment and
adequate deterrence. After considering these factors,
the district court decided to impose a 12-month sen-
tence, evenly split between prison and home confine-
ment. There is nothing to suggest that it did so reluctantly.
IV. Conclusion
The district court correctly calculated Wasilewski’s
guideline range and treated that range as advisory, not
mandatory. Therefore, Wasilewski’s sentence is A FFIRMED.
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