United States v. Vickie Sue Clause ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-3842
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Vickie Sue Clause, *
* [UNPUBLISHED]
Appellant. *
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Submitted: April 7, 1997
Filed: April 25, 1997
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Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.
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PER CURIAM.
Vickie Sue Clause pleaded guilty to defrauding FirsTier Bank, a
federally-insured bank, in violation of 18 U.S.C. § 1344. She challenges
the district court’s1 refusal to allow her to withdraw her guilty plea, and
the court's application of a two-level enhancement under U.S. Sentencing
Guidelines Manual § 3B1.3 (1995) for abusing a position of private trust.
We affirm.
The section 3B1.3 enhancement applies when a district court
determines a defendant has abused a position of private trust in a manner
that significantly facilitated the commission or concealment
1
The HONORABLE WILLIAM G. CAMBRIDGE, Chief Judge, United
States District Court for the District of Nebraska.
of the offense. We give great deference to a district court's assessment
of the enhancement, and will not reverse absent clear error. See United
States v. Johns, 15 F.3d 740, 744 (8th Cir. 1994).
The undisputed facts in the presentence report (PSR) show that over
a period of three years, Clause, the victim bank's currency vault teller,
removed cash from the vault reserve box for her personal use. Each time
she did so, Clause created a ticket for the amount of embezzled proceeds
then outstanding, adding the amount back to the vault total each evening
so that the vault appeared to be in balance. Before she left on maternity
leave in June 1995, she trained a teller to perform the vault duties,
instructing her to add the amount noted on a slip of paper to the vault
total each day so the amounts would balance. When another teller--who was
filling in for the teller whom Clause had trained--forgot to add in the
amount noted on the slip of paper, the embezzlement was discovered. Based
on these facts, we do not believe the district court clearly erred in
assessing the enhancement. See United States v. Fisher, 7 F.3d 69, 71 (5th
Cir. 1993) (per curiam); United States v. Johnson, 4 F.3d 904, 916 (10th
Cir. 1993), cert. denied, 510 U.S. 1123 (1994); United States v. Brelsford,
982 F.2d 269, 271-73 (8th Cir. 1992). Because neither party objected to
any factual matter in the PSR, we reject Clause’s argument that the
district court was required to hold an evidentiary hearing before assessing
the enhancement. See United States v. LaRoche, 83 F.3d 958, 959 (8th Cir.
1996) (per curiam).
Clause's argument as to withdrawal of her guilty plea also fails.
A district court may permit withdrawal of a guilty plea before sentencing
"if the defendant shows any fair and just reason." Fed. R. Crim. P. 32(e).
In support of her Rule 32(e) motion--which she made on the day of
sentencing--Clause argued that
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her guilty plea was involuntary as unknown persons had repeatedly
telephoned her after her initial not-guilty plea, threatening to harm her
family if she did not plead guilty.
The district court concluded that Clause had not established a fair
and just reason to withdraw her plea, given her assurances at the change-
of-plea hearing that her guilty plea was not the result of any threats, and
that it was given freely and voluntarily. The court also noted that Clause
was not asserting her legal innocence, and that five and one-half months
had passed since the time she tendered her guilty plea. We conclude the
district court did not abuse its discretion in denying Clause's Rule 32(e)
motion, or in refusing to grant her a continuance to garner evidence to
present at an evidentiary hearing. See United States v. Yell, 18 F.3d 581,
582-83 (8th Cir. 1994); United States v. Abdullah, 947 F.2d 306, 311 (8th
Cir. 1991), cert. denied, 504 U.S. 921 (1992); United States v. Thompson,
906 F.2d 1292, 1298-99 (8th Cir.), cert. denied, 498 U.S. 989 (1990).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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