United States v. Ollison

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

January 6, 2009

No. 07-11029 Charles R. Fulbruge III

Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MARSHA AUGUST OLLISON

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

Before WIENER, GARZA, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Defendant-Appellant Marsha August Ollison was charged by indictment

with three counts of theft from an organization receiving federal funds, in

violation of 18 U.S.C. § 666(a)(1)(A). A jury found Ollison guilty of all three

counts, and the district court sentenced her to an eighteen-month term of

imprisonment and a three-year term of supervised release. Ollison was also

ordered to pay restitution in the amount of $64,633.

Dallas Independent School District (DISD) receives more than $10,000 in

each fiscal year from the federal government in the form of educational or block

grants. As an employee of DISD, Ollison was given a credit card, known as a

procurement card (P-Card), in order to make official purchases on behalf of

No. 07-11029

DISD. The jury found that Ollison used her P-Card to make unauthorized

personal purchases exceeding $5,000 in each of the three fiscal years alleged in

the indictment. For sentencing and restitution purposes, the district court found

that Ollison used her P-Card to make personal purchases totaling approximately

$64,633 during the relevant time period.

Ollison raises six issues challenging her conviction and sentence. Ollison

argues that: (1) there is not legally sufficient evidence that she defrauded DISD

of at least $5,000 in each fiscal year alleged in the indictment; (2) the district

court erred in refusing to dismiss the indictment because it is unconstitutional

to apply § 666 to low-level employees like herself; (3) the district court abused

its discretion in allowing Special Agent Steven Sepeda to testify as a summary

witness and to express his lay opinion regarding whether certain purchases were

official or personal; (4) the district court improperly instructed the jury that

Jimmy Talley, a defense witness, was not testifying as an expert; (5) the district

court clearly erred in determining the loss amount for sentencing purposes and

plainly erred in calculating the restitution amount; and (6) the district court

clearly erred when it found that Ollison was subject to a two-level sentencing

enhancement for abuse of a position of trust.

For the reasons explained below, we affirm the conviction but reverse the

sentence and remand with instructions not to apply the enhancement for abuse

of a position of trust.

I. FACTUAL & PROCEDURAL BACKGROUND

Ollison worked for DISD as a secretary in the office of the Superintendent.

DISD received significantly more than $10,000 in each fiscal year from the

federal government in the form of educational or block grants. The federal funds

were used to pay the day-to-day expenses of DISD, including salaries, operating

expenses, transportation, books, supplies, and equipment.

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No. 07-11029

The P-Card program began in the late 1990s and ended in July 2006.

Approximately 1,200 employees of DISD received P-Cards, which were only

intended for official DISD purchases. Ollison signed a written agreement that

the P-Card would not be used for personal purchases. This agreement stated the

following: “I understand that under no circumstances will I use the procurement

card to make personal purchases, either for others or myself.” P-Card holders

were required to maintain the original receipts for all purchases, which DISD

could audit at unspecified times. When P-Card holders received a statement,

they forwarded it to the DISD finance department, which directly paid the bill

with DISD funds.

During the fiscal year ending June 30, 2004, Ollison’s P-Card was used to

make $14,093 in purchases. During the fiscal year ending June 30, 2005, it was

used to make $52,007 in purchases, and during the fiscal year ending June 30,

2006, it was used to make $26,641 in purchases. The total amount charged on

her P-Card during the three-year period was $92,742. Ollison was required to

immediately reimburse DISD for any unauthorized personal purchases made

with her P-Card, but she never reimbursed DISD for any of her purchases.

The Superintendent terminated the P-Card program in July 2006 after the

Dallas Morning News ran a story detailing abuses in the P-Card program. This

article revealed that numerous DISD employees used their P-Cards to make

personal purchases. The Superintendent sent letters to all P-Card holders

requesting that all receipts and records for 2004 though 2006 be submitted to the

DISD legal office. Subsequently, the Superintendent expanded this disclosure

request to include receipts and records for 2003 to 2004.

Special Agent Steven Sepeda of the FBI investigated whether Ollison

violated federal law through her misuse of the P-Card. Sepeda testified at trial

that he had an M.S. degree in accounting from the University of North Texas,

and that he is a CPA. He worked in the financial departments of several private

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No. 07-11029

companies before joining the FBI approximately three years before trial, and he

received training in forensics, fraud and corporate fraud, and had taught college

accounting courses. Although Sepeda informed the jury of his professional

qualifications, which suggested that he was an expert witness, he actually

testified as a lay witness.

A comparison of the bank statements to the receipts revealed that, of a

total of 756 transactions, Ollison submitted only 360 receipts. Of the 360

receipts she submitted, some 91 had been altered. Some receipts had

information obscured with correction fluid or handwriting, some were cut to

remove information, and others were complete fabrications or did not add up to

the totals indicated. Sepeda testified that when he compared Ollison’s spending

patterns to other DISD employees with similar job positions, he did not identify

any other similarly situated employee with spending comparable to Ollison.

Many of the receipts that Ollison did submit were consistent with personal

use. These receipts included numerous clothing purchases from Dillard’s

department store, women’s clothing and accessories from Marshall’s and TJ

Maxx Stores, including several “layaway” accounts. The receipts also included

numerous grocery store and drug store purchases of items of a personal nature.

Many of these receipts indicated that the purchase occurred in the evening or

during the weekend.

On September 8, 2006, Sepeda and other investigators executed a search

warrant at Ollison’s residence. She was present and consented to speak with

investigators after being advised of her Miranda rights. She admitted to the

investigators that she had used her P-Card for personal purchases, explaining

that “it just got comfortable, it got easy.” She admitted that she used her P-Card

for “routine grocery shopping” and for buying clothes, household accessories, and

home internet service. She also acknowledged that she altered some receipts

submitted to DISD. Ollison identified items in her residence that she had

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No. 07-11029

purchased with her P-Card. The investigators seized the items identified by

Ollison and other items listed in the search warrant, including a DVD player,

clothing items, fifty-six vases, and several framed prints.

Through interviews with Ollison’s supervisors, Sepeda determined that

Ollison was responsible for buying snacks for the office, such as candy, soda and

coffee. She was also charged with purchasing condiments and flatware,

arranging for catering through approved vendors, and providing for receptions.

At trial, Sepeda categorized Ollison’s individual charges on her P-Card

into one of three categories: personal expense, DISD expense, or undetermined

expense. He considered a variety of factors in reaching his conclusions: (1) the

identity of the vendor; (2) the location of the vendor; (3) whether DISD had an

approved vendor for the item purchased; (4) the day and time of purchase; (5)

whether the receipt had been altered or fabricated; (6) whether a receipt had, in

fact, been submitted by Ollison; (7) whether there were additional items on the

same receipt; (8) whether there was a pattern of purchases; (9) whether sales tax

was paid or a tax-exempt certificate was used for the purchase; and (10) Ollison’s

admissions to investigators. Sepeda testified that he considered all these factors

when evaluating each individual charge, and that none of them were dispositive

in making his conclusions.

Based on his review, Sepeda determined that (1) during the fiscal year

ending June 30, 2004, Ollison’s P-Card was used to make $12,436 in personal

purchases; (2) during fiscal year ending June 30, 2005, it was used to make

$28,373 in personal purchases; and (3) during fiscal year ending June 30, 2006,

it was used to make $15,480 in personal purchases.

The defense presented Dr. Al Sullivan, a retired school administrator who

worked at DISD from 1970 to 2005. He testified that he was experienced in

conducting educational audits to ensure that the school district money was being

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No. 07-11029

spent properly. Sullivan identified various items that could have been

legitimately purchased by Ollison for official DISD purposes.

The defense also presented Jimmy Talley, CPA, who testified that he had

reviewed the Government’s exhibits and Ollison’s receipts. Talley stated that

it was impossible to determine if a purchase was personal based on the receipts

alone. Talley stated that in order to determine whether a purchase was official

or personal, the following steps would need to be taken: (1) call the vendor; (2)

send a confirmation to the vendor; (3) interview additional DISD employees; (4)

study internal controls of DISD; (5) determine the accuracy of the receipt; and

(6) determine what happened to the item. Talley testified that without following

these six steps, any classification of a purchase as official or personal would be

speculative.

II. ANALYSIS

A. Sufficiency of the Evidence

1. Standard of Review

Because Ollison moved for a judgment of acquittal prior to the submission

of the case to the jury, her sufficiency claim is reviewed de novo. United States

v. Alarcon, 261 F.3d 416, 421 (5th Cir. 2001). In assessing a challenge to the

sufficiency of the evidence, we must determine whether, “viewing all the

evidence in the light most favorable to the verdict,” a rational jury “could have

found that the evidence established the elements of the offense beyond a

reasonable doubt.” United States v. Villarreal, 324 F.3d 319, 322 (5th Cir. 2003).

“All reasonable inferences must be drawn, and all credibility determinations

made, in the light most favorable to the verdict.” Id. If, however, “the evidence

viewed in the light most favorable to the prosecution gives equal or nearly equal

circumstantial support to a theory of guilt and a theory of innocence, the

conviction should be reversed.” United States v. Mackay, 33 F.3d 489, 493 (5th

Cir. 1994) (citation omitted).

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No. 07-11029

2. Merits

Section 666 “prohibits theft or bribery concerning programs receiving

federal funds.”1 United States v. Westmoreland, 841 F.2d 572, 574 (5th Cir.

1988). “The Supreme Court has described the coverage of § 666 as ‘expansive,

both as to the [conduct] forbidden and the entities covered.’” United States v.

Hildenbrand, 527 F.3d 466, 477-78 (5th Cir. 2008) (quoting Fischer v. United

States, 529 U.S. 667, 678 (2000)). The legislative history indicates that § 666

was designed “to protect the integrity of federal funds by punishing theft and

1

In relevant part, 18 U.S.C. § 666 states:

(a) Whoever, if the circumstance described in subsection (b) of this section

exists—

(1) being an agent of an organization, or of a State, local, or Indian tribal

government, or any agency thereof—

(A) embezzles, steals, obtains by fraud, or otherwise without authority

knowingly converts to the use of any person other than the rightful owner or

intentionally misapplies, property that—

(i) is valued at $5,000 or more, and

(ii) is owned by, or is under the care, custody, or control of such

organization, government, or agency; . . .

....

shall be fined under this title, imprisoned not more than 10 years, or both.

(b) The circumstance referred to in subsection (a) of this section is that the

organization, government, or agency receives, in any one year period, benefits

in excess of $10,000 under a Federal program involving a grant, contract,

subsidy, loan, guarantee, insurance, or other form of Federal assistance . . . .

....

(d) As used in this section—

(1) the term “agent” means a person authorized to act on behalf of another

person or a government and, in the case of an organization or government,

includes a servant or employee, and a partner, director, officer, manager, and

representative;

....

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No. 07-11029

bribery involving Federal programs for which there is a specific statutory

scheme authorizing the Federal assistance in order to promote or achieve certain

policy objectives.”2 United States v. Marmolejo, 89 F.3d 1185, 1190 (5th Cir.

1996) (quotation omitted).

Although the district court found that Ollison made $64,633 in personal

purchases on her P-Card for sentencing and restitution purposes, the jury

instructions made clear that the jury could convict if “the value of the property

stolen, embezzled, knowingly converted, or intentionally misapplied was at least

$5,000 in any one-year period as set forth in the Indictment.”

Because Ollison admitted to using the P-Card for “routine grocery

shopping,” clothing, and home accessory purchases, it was reasonable for the

jury to infer that all purchases falling within those general categories were

personal because that inference was bolstered by the other factors identified by

Sepeda and was not rebutted by evidence to the contrary. During the fiscal year

ending on June 30, 2004, Ollison made grocery purchases and clothing purchases

that exceeded the $5,000 threshold.3 The same is true for the fiscal year ending

on June 30, 2005,4 and for the fiscal year ending on June 30, 2006.5 Given

Ollison’s admissions, Sepeda’s testimony, and the documentary evidence

2

In Westmoreland, which involved the bribery prong of the statute, we held that “the

direct involvement of federal funds in a transaction is not an essential element of bribery under

section 666(b); the [G]overnment need not prove that federal monies funded a corrupt

transaction.” 841 F.2d at 578. Rather, the Government need only prove that the agency

received federal funds during the relevant time period exceeding the statutory threshold, which

is $10,000. Id. at 576. In United States v. Lipscomb, we stated that § 666 is broadly focused

on deterring corruption in those agencies receiving substantial federal assistance, rather than

narrowly focused on deterring the direct depletion of federal funds through theft or graft. 299

F.3d 303, 309 (5th Cir. 2002). Thus, it was unnecessary for the Government to prove that

Ollison’s theft from DISD resulted in the direct depletion of federal funds.

3

Albertson’s, $2,029; Tom Thumb, $2,266; Marshall’s, $9,437.

4

Albertson’s, $5,863; TJ Maxx, $2,348.

5

Albertson’s, $3,370; Steinmart, $1,303; Target, $1,891.

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No. 07-11029

introduced at trial, the evidence certainly does not lend “equal or nearly equal

circumstantial support to a theory of guilt and a theory of innocence.” See

Mackay, 33 F.3d at 493.

Albeit de novo, sufficiency-of-the-evidence review is “highly deferential to

the verdict,” United States v. Harris, 293 F.3d 863, 869 (5th Cir. 2002), and does

not depend on whether the evidence presented at trial is direct or circumstantial.

United States v. Bryant, 770 F.2d 1283, 1288 (5th Cir. 1985). Furthermore, our

inquiry is “limited to whether the jury’s verdict was reasonable, not whether we

believe it to be correct.” United States v. Williams, 264 F.3d 561, 576 (5th Cir.

2001). Although Ollison’s witness, Sullivan, testified that various purchases

could have been official, the jury was entitled to discount or ignore that

testimony. See United States v. Fuchs, 467 F.3d 889, 904 (5th Cir. 2006). We

find that there was a legally sufficient evidentiary basis for the jury to conclude

that Ollison made personal purchases on her P-Card exceeding $5,000 in each

fiscal year alleged in the indictment. See Villarreal, 324 F.3d at 322.

B. As-Applied Constitutionality of 18 U.S.C. § 666

1. Standard of Review

The district court denied Ollison’s motion to dismiss the indictment, in

which she argued that § 666 is unconstitutional as applied to her. We review de

novo the denial of the motion to dismiss the indictment and the underlying

constitutional claim. See United States v. Kay, 513 F.3d 432, 440 (5th Cir. 2007);

Lipscomb, 299 F.3d at 318.

2. Merits

Because she was a secretary to the Superintendent, Ollison argues that

she is not the type of employee who is covered by § 666. Citing to Westmoreland

and Lipscomb, Ollison argues that § 666 is unconstitutional as applied to her

because she is a “low-level employee,” not an “administrator” who has authority

to “effect significant transactions.” See Sabri v. United States 541 U.S. 600, 608

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No. 07-11029

(2004) (stating that in passing § 666, “Congress was within its prerogative to

protect spending objects from the menace of local administrators on the take.”).

She argues that application of the theft prong of § 666 to her violates principles

of federalism and exceeds Congress’s authority under the Spending Clause, the

Necessary and Proper Clause, the Commerce Clause, and the Tenth

Amendment.

Ollison’s argument is in tension with the plain language of the statute,

which states that “the term ‘agent’ . . . in the case of an organization or

government, includes a servant or employee . . . .” See 18 U.S.C. § 666(d)(1)

(emphasis added). The statute itself does not distinguish between “high-level”

and “low-level” employees. Cf. Salinas v. United States, 522 U.S. 52, 57 (1997)

(“The statute’s plain language fails to provide any basis for limiting §

666(a)(1)(B) to bribes affecting federal funds.”). When construing § 666 in the

past, we have consistently applied the statute in accordance with its plain

language. See Westmoreland, 841 F.2d at 576. Furthermore, if we were inclined

to carve out an exception for “low-level employees,” it would create a circuit split.

See United States v. Sotomayor-Vazquez, 249 F.3d 1, 10 (1st Cir. 2001)

(“[Section] 666 has been given a wide scope, to include all employees ‘from the

lowest clerk to the highest administrator.’”) (quoting United States v. Brann, 990

F.2d 98, 101 (3d Cir. 1993)).

Despite being contrary to the plain language of the statute and persuasive

authority, Ollison’s argument is arguably supported by the following language

in Westmoreland:

[T]he statute does not encompass every local bribery as

Westmoreland suggests. Although the extent of the federal

government’s assistance programs will bring many organizations

and agencies within the statute’s scope, the statute limits its reach

to entities that receive a substantial amount of federal funds and to

agents who have the authority to effect significant transactions.

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No. 07-11029

Westmoreland, 841 F.2d at 578 (emphasis added); accord Lipscomb, 299 F.3d at

335-36. Furthermore, in Lipscomb, when evaluating a similar argument, we

identified the defendant’s “high rank and his broad influence over many

programs that receive federal funds” as a federal interest justifying application

of § 666 to his conduct. 299 F.3d at 336. 45

Ollison made a total of $92,742 in official and personal purchases over a

three-year period with her P-Card. Ollison used her P-Card to steal at least

$15,000 (according to the jury) and as much as $64,633 (according to the judge)

from DISD, which was the direct recipient of federal funds.6 Based on the

particular facts of this case, we find that Ollison’s conduct falls within the ambit

of § 666.

Section 666 is constitutional as applied to the facts of this case; the statute

does not exceed Congress’s authority under the Spending Clause, the Necessary

and Proper Clause, or the Tenth Amendment. See Lipscomb, 299 F.3d at 318-35.

Although there was a dissenting opinion in Lipscomb, the federal interest in

protecting the integrity of the DISD procurement system is more readily

apparent than the federal interest at stake in Lipscomb. Cf. id. at 369 (Smith,

J., dissenting). Because DISD used its sizable federal grants to fund day-to-day

expenses, it cannot be said that Ollison’s misuse of her P-Card “ha[s] no

relationship whatsoever to federal funds and programs.” Id. at 372.

Ollison’s conduct “is indeed reasonably related to a federal interest, and

thus is necessary and proper to Congress’s exercise of its spending power.” Id.

at 336 (italics omitted). The Tenth Amendment does not alter this conclusion.

Id. at 318. Because “Congress’ authority to enact § 666 rests on the Spending

6

Ollison cites to language suggesting that the term “agent” should be narrowly

construed based on “how organizationally removed the employee is from the particular agency

that administers the federal program.” See Lipscomb, 299 F.3d at 314 (citation omitted). In

this case, however, Ollison was not “organizationally removed” from DISD, which was the

direct recipient of federal funds.

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No. 07-11029

Clause of the Constitution,” Ollison’s Commerce Clause challenge to the statute

must also fail. United States v. Phillips, 219 F.3d 404, 414 (5th Cir. 2000).

C. Evidentiary Objections to Special Agent Sepeda’s Testimony

1. Standard of Review

“Admission of evidence, including summaries and summary testimony, is

reviewed for abuse of discretion.” United States v. Harms, 442 F.3d 367, 375

(5th Cir. 2006). Even if the district court errs in its evidentiary ruling, the error

can be excused if it was harmless. United States v. Hart, 295 F.3d 451, 454 (5th

Cir. 2002). “A nonconstitutional trial error is harmless unless it had substantial

and injurious effect or influence in determining the jury’s verdict.” Id. (internal

quotation marks omitted).

2. Merits

a. Demonstrative Exhibits

The district court not abuse its discretion in allowing the Government to

proffer demonstrative exhibits 65, 67, and 69. “[A]llowing the use of charts as

‘pedagogical’ devices intended to present the government’s version of the case is

within the bounds of the trial court’s discretion to control the presentation of

evidence under [Federal Rule of Evidence] 611(a).” Harms, 442 F.3d at 375

(quotation omitted and emphasis added). “[S]uch charts are not admitted into

evidence and should not go to the jury room absent consent of the parties.” Id.

(quotation omitted). “If a summary or chart is introduced solely as a pedagogical

device, the court should instruct the jury that the chart or summary is not to be

considered as evidence, but only as an aid in evaluating evidence.” Id. (citation

omitted).

Demonstrative exhibits 65, 67, and 69 accurately reflected Sepeda’s

opinion testimony regarding those purchases that he regarded as personal.

Summary charts premised on the Government’s assumptions are permissible as

long as supporting evidence has been presented to the jury, and the jury is

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No. 07-11029

instructed that it must determine what weight the evidence should be given.

United States v. Jennings, 724 F.2d 436, 442 (5th Cir. 1984). In this case,

demonstrative exhibits 65, 67, and 69 did not allow the Government “to assume

that which it was required to prove beyond a reasonable doubt as operative facts

of the alleged offense.” Cf. United States v. Taylor, 210 F.3d 311, 316 (5th Cir.

2000). Rather, Sepeda’s conclusions regarding whether a given purchase was

personal was based on his multi-factor test, Ollison’s admissions, his search of

Ollison’s residence, and his review of the receipts. Cf. Hart, 295 F.3d at 456

(holding that there was a “total absence of any independent testimony to support

[the witness’s] assumptions in preparing [the demonstrative exhibits]”).

Furthermore, the district court instructed the jury that “[e]xhibits 65, 67, and

69 were demonstrative aids only” and that “[t]he evidence relevant to

expenditures regarding the P-Card are Exhibits 8, 9, 10, and 11, which have

previously been admitted into evidence.”7

b. Summary Witness

Sepeda testified as a summary witness and referred to several

demonstrative exhibits during his testimony. “For complex cases, we have

allowed summary witnesses in a limited capacity.” United States v. Fullwood,

342 F.3d 409, 413 (5th Cir. 2003). After reviewing Sepeda’s testimony, we

conclude that the district court did not abuse its discretion in permitting

Sepeda’s summary testimony. The evidence presented was voluminous and

presented an appreciable degree of complexity. See Harms, 442 F.3d at 376.

Sepeda’s summary testimony was supported by the evidence, and we are not

persuaded that it implicates the concerns that we have previously expressed

about the improper use of summary testimony. See Fullwood, 342 F.3d at 413-

14.

7

The district court refused to admit demonstrative exhibits 65, 67, and 69 as

summaries under Federal Rule of Evidence 1006. See Harms, 442 F.3d at 375-76.

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No. 07-11029

c. Opinion Testimony

Sepeda gave opinion testimony as a lay witness under Federal Rule of

Evidence 701, not as an expert witness under Federal Rule of Evidence 702.

Rule 701 states:

If the witness is not testifying as an expert, the witness’ testimony

in the form of opinions or inferences is limited to those opinions or

inferences which are (a) rationally based on the perception of the

witness, (b) helpful to a clear understanding of the witness’

testimony or the determination of a fact in issue, and (c) not based

on scientific, technical, or other specialized knowledge within the

scope of Rule 702.

“[T]he distinction between lay and expert witness testimony is that lay

testimony results from a process of reasoning familiar in everyday life, while

expert testimony results from a process of reasoning which can be mastered only

by specialists in the field.” United States v. Yanez Sosa, 513 F.3d 194, 200 (5th

Cir. 2008) (internal quotations omitted).

The Government argues that Sepeda’s testimony regarding Ollison’s

admissions and his search of her residence was merely descriptive, and his

opinion testimony regarding whether the purchases were personal was based on

his common-sense application of various factors that any lay person would

consider relevant. We need not decide whether Sepeda’s testimony “exceeded

the bounds of permissible lay opinion testimony” because the error, if any, was

harmless. Id. at 200-01. Sepeda was qualified to testify as an expert, and the

district court did not abuse its discretion in determining that his opinion

testimony, whether lay or expert, would assist the jury in evaluating the

evidence.

D. District Court’s Instructions regarding Jimmy Talley

1. Standard of Review

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No. 07-11029

The district court’s decision on whether to admit expert opinion evidence

is reviewed for abuse of discretion. United States v. Norris, 217 F.3d 262, 268-69

(5th Cir. 2000).

2. Merits

During direct examination, Talley testified that Sepeda lacked sufficient

information to determine whether Ollison’s purchases were personal. Talley’s

opinion was based on four generally accepted accounting and auditing principles:

(1) checking for authenticity, (2) support, (3) accuracy, and (4) completeness.

Later on voir dire examination, Talley admitted that these four principles relate

to the verification of documents, not on how to conduct an investigation. The

Government objected to Talley providing expert testimony, arguing that Talley’s

expertise in accounting was not relevant to whether Sepeda’s investigation was

adequate. The district court sustained the objection and advised the jury as

follows:

Members of the jury, yesterday right before the break, the

government had made an objection to Mr. Talley’s testimony

concerning certain accounting principles. The court sustains the

government’s objection. Mr. Talley will be testifying, however, he

will not be testifying as an expert based upon the four accounting

principles that you heard testified about yesterday.

After instructing the jury, the district court allowed Talley’s lay opinion

testimony regarding the adequacy of Sepeda’s investigation, and the district

court allowed Talley to testify regarding his qualifications as a CPA.

Ollison argues that the district court’s instruction “degraded” Talley’s

testimony by stating that Talley was not an expert. She observes that the

district court did not give a similar instruction regarding Sepeda’s opinion

testimony.

Because the district court was ruling on the Government’s objection, we

find that the error, if any, was harmless. See United States v. Johnson, 488 F.3d

690, 697-98 (6th Cir. 2007) (“Except in ruling on an objection, the court should

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No. 07-11029

not, in the presence of the jury, declare that a witness is qualified as an expert

or to render an expert opinion, and counsel should not ask the court to do so.”)

(citation omitted). Talley testified that generally accepted accounting and

auditing principles are not directly relevant to critiquing an FBI investigation,

and the jury still heard his lay opinion regarding the adequacy of Sepeda’s

investigation. The district court’s instruction did not “degrade” Talley’s

testimony because both Talley and Sepeda testified as lay witnesses and gave

their respective opinions.

E. Loss Amount for Sentencing and Restitution Purposes

1. Standard of Review

Factual determinations regarding loss amount for guideline calculation

purposes are reviewed for clear error. United States v. Bieganowski, 313 F.3d

264, 294 (5th Cir. 2002). If a restitution award is legally permitted, it is

normally reviewed for abuse of discretion. Norris, 217 F.3d at 271. However,

because Ollison did not object to the restitution amount, it is reviewed for plain

error. United States v. Olano, 507 U.S. 725, 732 (1993).

2. Merits

The district court did not abuse its discretion in calculating the loss

amount for sentencing purposes, or commit plain error in calculating the

restitution amount. The Government was only required to prove the loss

amount by a preponderance of the evidence. See Bieganowski, 313 F.3d at 294.

The PSR set the loss amount at $64,633, which increased Ollison’s base offense

level by six. See U.S. SENTENCING GUIDELINES MANUAL § 2B1.1(b)(1) (2006).

This six-level enhancement applies when the loss amount is more than $30,000

but less than $70,000. Ollison challenges the enhancement by making the same

sufficiency-of-the-evidence argument that we previously rejected, and she claims

that the appropriate loss amount should be $15,000, which is the minimum

amount of loss sufficient to sustain her conviction.

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No. 07-11029

“Generally, a PSR bears sufficient indicia of reliability to permit the

sentencing court to rely on it at sentencing. The defendant bears the burden of

demonstrating that the PSR is inaccurate; in the absence of rebuttal evidence,

the sentencing court may properly rely on the PSR and adopt it.” United States

v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995) (internal citation omitted). According

to the PSR, the probation officer calculated the loss amount through review of

the indictment, the investigative materials provided by the FBI, and an

interview with Sepeda. We find that there is sufficient evidence for the district

court to have concluded that the loss amount exceeded $30,000 for sentencing

purposes. Sepeda’s testimony was credible and supported by documentary

evidence and Ollison’s own admissions. For similar reasons, the district court

did not plainly err in calculating the restitution amount.

F. Sentencing Enhancement for Abuse of a Position of Trust

1. Standard of Review

“The application of [U.S. Sentencing Guidelines Manual] § 3B1.3 is a

sophisticated factual determination reviewed under the clearly erroneous

standard.” United States v. Fisher, 7 F.3d 69, 70-71 (5th Cir. 1993); see also

United States v. Dial, 542 F.3d 1059, 1060 (5th Cir. 2008) (per curiam) (resolving

an intra-circuit split regarding the applicable standard of review).

2. Merits

Ollison received a two-level enhancement under § 3B1.3 for abusing a

position of public or private trust in a manner that significantly facilitated the

commission or concealment of the offense. Application Note 1 of § 3B1.3 states

the following:

“Public or private trust” refers to a position of public or private trust

characterized by professional or managerial discretion (i.e.,

substantial discretionary judgment that is ordinarily given

considerable deference). Persons holding such positions ordinarily

are subject to significantly less supervision than employees whose

responsibilities are primarily non-discretionary in nature. For this

17

No. 07-11029

adjustment to apply, the position of public or private trust must

have contributed in some significant way to facilitating the

commission or concealment of the offense (e.g., by making the

detection of the offense or the defendant’s responsibility for the

offense more difficult). This adjustment, for example, applies in the

case of an embezzlement of a client’s funds by an attorney serving

as a guardian, a bank executive’s fraudulent loan scheme, or the

criminal sexual abuse of a patient by a physician under the guise of

an examination. This adjustment does not apply in the case of an

embezzlement or theft by an ordinary bank teller or hotel clerk

because such positions are not characterized by the above-described

factors.

“[C]ommentary in the Guidelines Manual that interprets or explains a guideline

is authoritative unless it violates the Constitution or a federal statute, or is

inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v.

United States, 508 U.S. 36, 38 (1993). The district court applied the

enhancement for the following reasons: (1) although approximately 1,200 DISD

employees had P-Cards, not every employee had one; (2) P-Card holders were in

a position of trust because they used the card to make purchases on behalf of

DISD; and (3) Ollison was secretary to the Superintendent, who was a high-

ranking DISD official.8 We conclude that the district court clearly erred in

applying this enhancement to Ollison.

The § 3B1.3 enhancement is appropriate if (1) Ollison occupied a position

of trust, (2) that she used to significantly facilitate the commission or

concealment of the offense. United States v. Kay, 513 F.3d 432, 459 (5th Cir.

2007). Thus, the sentencing court must conduct a two-step inquiry when

considering whether to apply the § 3B1.3 enhancement. “First, the court must

determine whether the defendant occupied a position of trust at all. If not, the

inquiry ends and no enhancement accrues. If, however, this initial query

8

Although Ollison was secretary to the Superintendent, who was a high-ranking DISD

official, the Government does not explain why the Superintendent’s authority should be

imputed to Ollison.

18

No. 07-11029

produces an affirmative response, the court must proceed to ascertain the extent

to which the defendant used that position to facilitate or conceal the offense.”9

United States v. Reccko, 151 F.3d 29, 31 (1st Cir. 1998). The Reccko two-step

inquiry is consistent with the law of this circuit. See Kay, 513 F.3d at 459

(describing it as a “two-part test”). In United States v. Brown, we stated: “By its

terms, § 3B1.3 encompasses two [conjunctive] factors: (1) whether the defendant

occupies a position of trust, and (2) whether the defendant abused his position

in a manner that significantly facilitated the commission or concealment of the

offense.” 941 F.2d 1300, 1304 (5th Cir. 1991) (per curiam) (emphasis added).

Logically, one must occupy a position of trust before one can abuse it.

a. Position of Trust

To a lay person, it might appear that Ollison occupied a position of trust

because she had limited authority to purchase various items with her P-Card.

DISD “trusted” that Ollison would not use her P-Card to make personal

purchases. However, if the § 3B1.3 enhancement relied on this colloquial

definition of “position of trust,” then most if not all employees who stole from

their employers would be subject to the enhancement because the employers

“trusted” that their employees would not steal. See United States v. Edwards,

325 F.3d 1184, 1187 (10th Cir. 2003) (“[T]he adjustment under § 3B1.3 is not

intended to be routinely applied to every employee fraud or embezzlement

case.”); see also United States v. Garrison, 133 F.3d 831, 838 (11th Cir. 1998)

(stating that “because there is a component of misplaced trust inherent in the

concept of fraud, a sentencing court must be careful not to be ‘overly broad’ in

9

The dissent “conflate[s] the requisite inquiries. Rather than asking, first, whether

[Ollison] held a position of trust, and if so, whether she used that position to facilitate a crime,

the [dissent] essentially determine[s] that [Ollison] held a position of trust precisely because

her job enabled her to commit the crime.” Reccko, 151 F.3d at 32. We do not believe that

Ollison’s secretary position embodied the kind of professional or managerial discretion that is

the signature characteristic of a position of trust.

19

No. 07-11029

imposing the [§ 3B1.3] enhancement”) (internal citation omitted). For purposes

of this enhancement, a “position of trust” is a term of art that must be defined

through reference to the guideline commentary and our case law. See Stinson,

508 U.S. at 38. A position of trust is characterized by (1) professional or

managerial discretion (i.e., substantial discretionary judgment that is ordinarily

given considerable deference), and (2) minimal supervision. See U.S.

SENTENCING GUIDELINES MANUAL § 3B1.3 cmt. n.1 (2006); see also United States

v. Brown, 7 F.3d 1155, 1161 (5th Cir. 1993) (“The primary trait that

distinguishes a person in a position of trust from one who is not is the extent to

which the position provides the freedom to commit a difficult-to-detect wrong”).

According to the dissent, Ollison occupied a position of trust because

“Ollison was given substantial autonomy to make purchases using her P-Card

on behalf of the [Superintendent’s] office.” However, Ollison’s discretionary

authority to make official purchases on her P-Card was limited to a few discrete

categories of inexpensive items.10 The level of professional or managerial

discretion held by Ollison is not commensurate with the level of discretion held

by other defendants in this circuit who have been subject to the enhancement.

Absent proof of other aggravating circumstances, we do not think that the §

3B1.3 enhancement should apply to a secretary who made unauthorized charges

on a corporate credit card that was issued to 1,200 other employees. Ollison’s

fraud is the modern day equivalent of an ordinary bank teller who was pilfering

money from the till. See Edwards, 325 F.3d at 1187 (“Opportunity and access

10

Ollison was only authorized to buy snacks, sodas, finger foods, candy, condiments,

flatware, box lunches, coffee, treats, and arrange for catering and receptions. She was not

authorized to buy linen or decorate the office. This minimal level of purchasing authority

cannot accurately be characterized as “substantial discretionary judgment that is ordinarily

given considerable deference.”

20

No. 07-11029

do not equate to authority, or to the kind of ‘substantial discretionary judgment

that is ordinarily given considerable deference.’”) (citation omitted).11

A recent case from the D.C. Circuit explains why Ollison did not occupy a

position of trust for purposes of the § 3B1.3 enhancement. In United States v.

Tann, the defendant stole money from her former employers by forging checks

and depositing them in her personal checking account. 532 F.3d 868, 870-71

(D.C. Cir. 2008). Tann worked as the office manager for two non-profit

organizations: DCCIL and Generations. Id. At DCCIL, her duties included

“hiring, ordering equipment, scheduling travel, and managing the expenditures

and checks that were written.” Id. at 870. (ellipsis and brackets omitted). At

Generations, her duties included preparing checks, maintaining a computerized

check ledger, and reconciling monthly bank statements with the ledger. Id. at

871. In concluding that Tann did not occupy a position of trust for purposes of

the § 3B1.3 enhancement, the D.C. Circuit stated the following:

Tann may have occupied a position of trust in the colloquial sense

that she was trusted not to use her access for nefarious purposes; in

that sense, so is every bank teller who has access to the bank’s

money and every janitor who cleans an office where desk drawers

are left unlocked. Like the bank teller or the janitor, however, Tann

did not have a job that required her to exercise professional or

managerial discretion, which is the standard set forth in the

application note to the Guideline. As we have said before, to apply

the enhancement to a defendant merely because he or she is

entrusted with valuable things and has little or no supervision while

performing his or her duties would stretch the abuse-of-trust

enhancement to cover endless numbers of jobs involving absolutely

no professional or managerial discretion, in clear contravention of

the plain language of the commentary to section 3B1.3.

Id. at 875-76 (citation omitted).

11

Contrary to the position of the dissent, it is not enough that Ollison merely “had

access to an opportunity not available to the general public.”

21

No. 07-11029

Similarly, in this case, Ollison’s duties as secretary were clerical in nature.

Her limited authority to make official purchases with her P-Card is not the type

of professional or managerial discretion contemplated by the application note to

the Guidelines. Id. at 875. Ollison’s authority to purchase inexpensive, food-

related items for her office does not “involve the type of complex, situation-

specific decisonmaking that is given considerable deference precisely because it

cannot be dictated entirely by, or monitored against, established protocol.”

United States v. Tiojanco, 286 F.3d 1019, 1021 (7th Cir. 2002). Like all

employees, Ollison was trusted not to steal, but her secretary position did not

give her “substantial discretionary judgment,” the exercise of which permitted

her to perpetrate the fraud.

b. Significantly Facilitate

Under the Reccko two-step inquiry, our analysis should end once we

conclude that Ollison did not occupy a position of trust. In this case, we will

proceed to the second step in order to fully address the arguments raised by the

dissent.

Even assuming arguendo that Ollison occupied a position of trust, the

Government did not provide sufficient evidence that Ollison used her secretary

position in a manner that significantly facilitated the commission or concealment

of the theft.12 In this case, the delay in detection is properly attributable to lax

12

We have previously applied the § 3B1.3 enhancement when a defendant with

substantial discretionary judgment has abused his or her authority in a manner that

significantly facilitated the commission or concealment of the offense. See, e.g., United States

v. Dial, 542 F.3d 1059, 1060 (5th Cir. 2008) (per curiam) (insurance adjuster subject to

enhancement because he used his position to settle and pay fraudulent claims up to $25,000,

which enriched himself and others); United States v. Kay, 513 F.3d 432, 461 (5th Cir. 2007)

(president of corporation subject to enhancement because he used his position to authorize his

employees to pay bribes to foreign government officials); United States v. Wright, 496 F.3d 371,

377 (5th Cir. 2007) (mortgage broker subject to enhancement because he used his position to

submit false information on loan applications to lenders with whom he had a pre-existing

relationship); United States v. Burke, 431 F.3d 883, 889 (5th Cir. 2005) (city alderman subject

to enhancement because he used his position to assist in the smuggling of drugs through his

22

No. 07-11029

oversight of the P-Card program by DISD, not concealment by Ollison. It was

simply “blind luck that she was not discovered sooner.” See United States v.

Ragland, 72 F.3d 500, 503 (6th Cir. 1996). Although Ollison did alter some

receipts before submitting them to DISD, her amateurish effort at concealment

was not furthered by or related to her secretary position. The dissent correctly

observes that Ollison was responsible for maintaining receipts for all purchases

that she made,13 but DISD never requested those receipts until the P-Card

program was terminated in July 2006. Ollison did not evade detection through

the abuse of substantial discretionary judgment that was associated with her

secretary position.

city); United States v. Buck, 324 F.3d 786, 795 (5th Cir. 2003) (chief executive officer of

nonprofit organization subject to enhancement because her position gave her “broad discretion,

autonomy, and ability to conceal the falseness of her claims”); United States v. Deville, 278 F.3d

500, 508 (5th Cir. 2002) (police chief subject to the enhancement because he used his position

to transport marijuana on the assumption “that his badge would enable him to transport drugs

without any problems from other law enforcement officials”); United States v. Reeves, 255 F.3d

208, 213 (5th Cir. 2001) (estate planner subject to enhancement because his position “gave him

unique access to clients’ financial information, facilitating his fraudulent schemes”); United

States v. Smith, 203 F.3d 884, 893-94 (5th Cir. 2000) (bank teller subject to enhancement

because her position made her privy to the bank’s internal operating and security procedures,

which significantly facilitated her bank robbery); United States v. Dahlstrom, 180 F.3d 677,

685 (5th Cir. 1999) (president and CEO of corporation subject to enhancement because his

position contributed to the commission and concealment of the crimes by allowing him to

misallocate his company’s investment funds); United States v. Powers, 168 F.3d 741, 752 (5th

Cir. 1999) (gas marketer subject to enhancement because he used his position to circumvent

his company’s policy to sell gas only to end-users with approved credit); United States v. Iloani,

143 F.3d 921, 923 (5th Cir. 1998) (doctor subject to enhancement because he used his position

to falsify medical findings, diagnoses, prescriptions, and treatment certifications that were

submitted to various insurers); United States v. Harrington, 114 F.3d 517, 519 (5th Cir. 1997)

(attorney subject to enhancement because his position helped him secure fraudulent affidavits

and “shrouded” his actions “with a false presumption of regularity and legality”); United States

v. Kay, 83 F.3d 98, 102 (5th Cir. 1996) (defendant subject to enhancement because her position

gave her access to the victim’s private banking records and allowed her to transfer funds

between banks without detection); United States v. Scurlock, 52 F.3d 531, 541 (5th Cir. 1995)

(correctional officer subject to enhancement because her position allowed her to interact with

prisoners and smuggle money into the prison).

13

Ollison did not have supervisory or auditing authority over any other DISD employee

who used a P-Card.

23

No. 07-11029

Ollison’s position as a secretary gave her the opportunity to commit the

crime, but the discretionary authority associated with that position was not

instrumental in accomplishing the fraud.14 Because Ollison’s legitimate

spending authority was severely limited, it did not assist her in achieving her

illegitimate objective. See Tiojanco, 286 F.3d at 1021; see also Ragland, 72 F.3d

at 503 (“[T]here is no indication that what little autonomy defendant did possess

in any way facilitated her scheme . . . .”). This case is distinguishable from

United States v. Smith, where we held that a bank teller was subject to the

enhancement because her position gave her “knowledge of the inner workings

of the bank and its security measures[, which] significantly facilitated the

commission of the offense.” 203 F.3d 884, 893 (5th Cir. 2000). Ollison’s

secretary position did not give her insider knowledge or access to private records

that facilitated the commission of the theft.15 Ollison’s misuse of her P-Card,

without more, does not subject her to the § 3B1.3 enhancement. See United

14

“To determine whether the position of trust ‘significantly facilitated’ the commission

of the offense, the court must decide whether the defendant occupied a superior position,

relative to all people in a position to commit the offense, as a result of her job.” United States

v. Wright, 496 F.3d 371 376 (5th Cir. 2007) (citation omitted). The proper inquiry is whether

the superior position afforded an opportunity not enjoyed by the general public. United States

v. Powers, 168 F.3d 741, 752 (5th Cir. 1999). In order for the enhancement to apply, the

superior position must not only provide the opportunity to defraud, but also significantly

facilitate its commission or concealment. See id.; see also United States v. Brown, 941 F.2d

1300, 1305 (5th Cir. 1991).

15

In Kay, the defendant “had access to the [victims’] private banking records and,

because of her accounting related skills, was able to transfer funds from bank to bank without

detection.” 83 F.3d at 102. Similarly, in Reeves, the defendant had “unique access to clients’

financial information.” 255 F.3d at 213. “Only after gaining his clients’ trust by posing as an

estate planner did he advise them to invest in his codefendant’s company.” Id. at 212. Ollison,

an ordinary secretary who made unauthorized charges on her corporate credit card, cannot be

analogized to Reeves, a sophisticated estate planner with insider knowledge who tricked his

elderly clients into investing in sham companies, or to Kay, an accountant and bookkeeper who

used fictitious bank accounts, forgeries, and insider knowledge to embezzle approximately

$180,000 from her employer. In both Kay and Reeves, the defendant’s position not only

provided the opportunity to defraud, but also significantly facilitated its commission or

concealment.

24

No. 07-11029

States v. Hemmingson, 157 F.3d 347, 359-60 (5th Cir. 1998) (affirming the

district court’s refusal to apply the enhancement to an attorney who “never

performed legal services to facilitate or conceal the crime”).

III. CONCLUSION

We affirm Ollison’s conviction but vacate her sentence and remand with

instructions not to apply the § 3B1.3 enhancement for abuse of a position of

trust.

AFFIRMED IN PART; REVERSED IN PART; REMANDED

25

EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting in part.

Although I concur with the majority’s holdings affirming the conviction

and upholding the calculation of the loss and restitution amounts, I respectfully

dissent from the holding that the district court clearly erred in applying a two-

level sentencing enhancement under USSG §3B1.3 for abuse of a position of

trust. As we have held, a “district court’s application of § 3B1.3 is a

sophisticated factual determination that will be affirmed unless clearly

erroneous.” United States v. Ehrlich, 902 F.2d 327, 330 (5th Cir. 1990).

Accordingly, we must not substitute our views for those of the district court, and

must affirm if there is sufficient evidence to indicate that the defendant

maintained a position of private trust and abused that position in a manner that

significantly facilitated the commission of the offense. See id. Because the

record indicates that there was sufficient evidence to support the district court’s

conclusion, I would affirm the application of the two-level enhancement.

The district court did not clearly err in finding that Ollison occupied a

position of trust. As the majority notes, “[t]he primary trait that distinguishes

a person in a position of trust from one who is not is the extent to which the

position provides the freedom to commit a difficult-to-detect wrong.” See United

States v. Brown, 7 F.3d 1155, 1161 (5th Cir. 1993).1 As a secretary to the

Superintendent of the Dallas Independent School District (“DISD”), Ollison was

given substantial autonomy to make purchases using her P-Card on behalf of the

office. The majority is correct that DISD policies limited her authority to make

1

The majority also relies on language from various other Circuits interpreting § 3B1.3

that we have not adopted. Rather than focusing (as other Circuits do) on the complexity of the

employee’s duties or the governability of these duties through established protocol, our cases

focus on the level of power and freedom an employee has that might be abused and how this

power compares to that possessed by the general public. See, e.g., Brown, 7 F.3d at 1161;

United States v. Dial, 542 F.3d 1059, 1060 (5th Cir. 2008); United States v. Powers, 168 F.3d

741, 752 (5th Cir. 1999); United States v. Brown, 941 F.2d 1300, 1305 (5th Cir. 1991); Ehrlich,

902 F.2d at 331. Ollison’s situation is properly analyzed according to our interpretation of §

3B1.3 rather than the jurisprudence of other Circuits.

26

purchases to certain office-related items, but on this record the autonomy that

she had to make whatever purchases she pleased was significant. Unlike many

other DISD employees, Ollison was issued a P-card that enabled significant and

supervision-free spending. Further, Ollison was charged with the authority to

review and reconcile her own bank statements from the P-card, indicating that

she was trusted to self-police her own purchases. That DISD policies limited her

authorized purchases to arguably minor items does not change the fact that the

P-card itself and the limited oversight of her spending decisions allowed her to

exercise substantial discretionary judgment. Overall, Ollison was entrusted with

the freedom to exercise judgment when using the P-card, and her wrongful

actions proved difficult to detect because of this freedom. See id.

Moreover, the district court did not clearly err in concluding that Ollison

used her position of trust to significantly facilitate the commission or

concealment of the offense. She abused the fact that she was afforded very little

oversight in using the P-card, which allowed her to make unauthorized

purchases in the amount of $64,633. As stated in the Presentence Report,

Ollison was able to evade detection because she was responsible for maintaining

receipts for all purchases and for reviewing and reconciling the bank statements

after the P-Card purchases were made.2 Regardless of the majority’s assertions

that Ollison could have been detected sooner and that her efforts at concealment

were “amateurish,” the fact remains that her self-policing duties and freedom

from oversight facilitated her ability to purchase the personal items without

detection. Again, there is sufficient evidence to support the district court’s

conclusion that Ollison’s position significantly facilitated her crime, and we must

not substitute our own interpretation of the facts for that of the district court.

2

A crime resulting from lax supervision will not always support the application of the

§3B1.3 enhancement; however, in this case the record supports the finding that Ollison

maintained enough freedom from supervision to facilitate the commission of the offense.

27

Ollison’s discretion in using her P-Card also distinguishes her from the

situations explicitly excluded by § 3B1.3. The Commentary to § 3B1.3 clarifies

the definition of “public or private trust”:

This adjustment, for example, applies in the case of an

embezzlement of a client's funds by an attorney serving as a

guardian, a bank executive’s fraudulent loan scheme, or the

criminal sexual abuse of a patient by a physician under the guise of

an examination. This adjustment does not apply in the case of an

embezzlement or theft by an ordinary bank teller or hotel clerk

because such positions are not characterized by the above-described

factors.

Unlike the ordinary bank teller or hotel clerk, Ollison was entrusted with

the responsibility of using her P-Card to make necessary purchases))a

responsibility that was not given to every employee of the DISD. The bank teller

in the above example and the office manager in United States v. Tann cited by

the majority were not given the authority to take money or forge checks in some

situations but not others. See 532 F.3d 868, 870-71. Although in these cases the

offenders had the capability and the access necessary to commit theft, the reason

that they were not in a position of trust is that they did not have the freedom to

exercise any judgment as to when the action constituted theft and when it did

not. Here, Ollison could exercise judgment as to whether or not a purchase was

necessary for the Superintendent. She had the freedom to make the purchase

without supervision, and the purchase was only illegal if it was not for the

Superintendent and she failed to reimburse the money. In the above examples,

the bank teller pocketing money and the office employee forging checks was

illegal in all circumstances regardless of the individual’s judgment.

Ollison’s situation is unique compared to other examples from the

Sentencing Guidelines and our case law. As the majority notes, the proper

inquiry under § 3B1.3 is whether the defendant’s position affords him or her an

opportunity not enjoyed by the general public. United States v. Powers, 168 F.3d

28

741, 752 (5th Cir. 1999). As a P-Card holder who was able to charge to the

government tens of thousands of dollars in purchases, both authorized and

unauthorized, Ollison quite clearly had access to an opportunity not available

to the general public. Further, she was entrusted by the Superintendent, DISD,

and the United States government to use her judgment regarding what

purchases were necessary for the Superintendent’s office and she was afforded

wide latitude to spend large amounts of money ostensibly to those ends.

In conclusion, under the deferential review we apply to the “sophisticated

factual determination” made below I do not find that the district court clearly

erred in enhancing Ollison’s sentence for abuse of a position of trust. Although

a de novo review might reach a different conclusion, the district court’s judgment

is not unsupported by the record. Accordingly, I concur in the first parts of the

opinion, but dissent from Part II(F)(2).

29