# United States v. Chris Hickman > Court of Appeals for the Third Circuit · April 16, 1993 · 991 F.2d 1110 URL: https://www.frixlaw.com/law-library/cases/9484172 ## Case - **Full name:** UNITED STATES OF AMERICA, Appellee v. CHRIS HICKMAN, Appellant - **Court:** Court of Appeals for the Third Circuit - **Decided:** April 16, 1993 - **Citations:** 991 F.2d 1110; 28 V.I. 298; 1993 U.S. App. LEXIS 7908; 1993 WL 114742 - **Precedential status:** Published - **Opinion:** Concurring in part by Roth - **Judges:** Becker, Cowen, Roth - **Cited by:** 56 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9484172 ## How later opinions describe it (automated extraction) - finding that a building contractor did not use his special skill to facilitate a “garden variety fraud” when he received payment on a contract to construct a home that he never built - explaining that abuse of private trust contemplates a “trust relationship between [defendant] and his victim” - noting that court should move “horizontally,” use guideline range for a defendant with a higher or lower criminal history category, as applicable ## Opinion text ROTH, Circuit Judge, concurring in part and dissenting in part. I agree with the majority that Hickman's conviction should be affirmed and that the sentence should be vacated for the reasons set forth in Part II of the opinion. However, I cannot join in the majority's decision in Part I to vacate the sentence because of the two level upward adjustment under § 3B1.3 of the Sentencing Guidelines. I find that the district court judge adequately considered the issue of a two level increase for an abuse of a position of *307 trust, that the judge expressed the reason and the grounds for the upward adjustment, and that for us now to vacate the sentence she imposed would transform the application of the Guidelines into a process requiring the incantation of a necromancer's spell with the result that, if the district judge did not chant every magic word correctly, then the case would have to be remanded for resentencing. In fairness to the majority, a reading of the transcript of the sentencing hearing does demonstrate that the language used by the district judge in deciding to apply the § 3B1.3 upward adjustment is somewhat equivocal as to whether she based the two level increase upon the "use of a special skill" or "abuse of trust" prong: MS. DE PAIEWONSKY: The next point is on page four of our comments, Your Honor, under offense level computation, adjustment for the role in the offense, the guideline which covers position of special skill. We then understand that the probation officer's position that since Mr. Hickman was licensed and not contrary to what the government attorney has said, he held himself out to be licensed. He was in fact a licensed contractor duly and legitimately licensed under the laws of the Virgin Islands and had been so for a number of years prior to this incident. We suggest to the Court that the examples that are given in the guidelines as what is complained under this particular factor of special skill are those skills that are highly specialized such as, and the specific examples are given, pilots, lawyers, doctors, accountants, chemists and demolition experts. And, it gives a negative example that a bank teller who probably as a law person, we would consider certainly a person who occupies a position of trust. It was not — would not occupy a quote, unquote, "position of trust" under these guidelines as are explained. And, we suggest to the Court that merely because Mr. Hickman was a licensed contractor does not automatically catapult him into this special role of responsibility. THE COURT: Sorry, counsel. I've had an opportunity to review that. And, based upon his license as a contractor, his special expertise, these persons trusted him. It was his training and that license, I'm persuaded, that enabled him to perpetrate this scheme. *308 He just didn't go out and find somebody to do a few things for them. They gave him the total responsibity [sic] for the construction of a home. And, he held out his special skill and his license, assuring them that he was qualified and responsible and would do so. Without that, I don't think that any of this would have happened. And, he would, based on my research, be an individual that was explained within the guidelines. And, we must adjust upward for that position of special skill. I think the guidelines make that clear, counsel. So, he gets two points added for that. Appellee's Supplemental App. at 396-98 (emphasis added). Although the district judge's recitation does not expressly state whether she based the upward adjustment on the "abuse of trust" or "use of a special skill" prong of § 3B1.3 (or both), I find from a fair reading of her statement a sufficient invocation of the abuse of a position of trust to support the increase on that ground. My conclusion is warranted considering that under this Court's interpretation of § 3B1.3, the position of construction contractor, which Hickman held, placed him in a position of trust, see United States v. Lieberman, 971 F.2d 989, 993 (3d Cir. 1992) ("[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," quoting United States v. Hill, 915 F.2d 502, 506 (9th Cir. 1990)), and that the sentencing judge adequately explained her determination that Hickman abused such a position, see supra ("It was his training and that license, I am persuaded, that enabled him to perpetrate this scheme."). A construction contractor customarily receives large cash advances from clients to cover future construction costs. There are normally periodic accountings and approvals before the next advance is made. By virtue of his position and their arrangement, the contractor is permitted to use the client's money with the client's expectation that the contractor will use the money in connection with the completion of the project. The sentencing judge here clearly understood this reliance that the clients had placed upon defendant's exercising good faith. Moreover, under the particular facts of this case, the clients placed an even greater trust upon the contractor's faithful performance of the contract because the clients were not present in the Virgin Islands to inspect the progress being made on the project. *309 Defendant sent them photographs to establish that construction was moving forward. Unfortunately, the photographs were of someone else's residence. However, the clients relied on the photographs as being an accurate representation of defendant's good faith. In my opinion, these actions of defendant demonstrate a clear abuse of a position of trust. See United States v. Brann, No. 92-7257, slip op. at 11 (3d Cir. March 30, 1993) (abuse of a position of trust present where defendant used his position to facilitate the commission and concealment of his offense). As the sentencing judge also pointed out, "these people trusted [the defendant]." They gave him the total responsibility to construct their home; he assured them he was qualified and responsible. Therefore, I can only conclude based upon common sense and logic that without such assurances the clients would not have entrusted defendant with the large sums of money given him in advance payment for completion of their residence. From my own experience as a district judge, I do not believe that you can require exquisite clarity in every pronouncement made from the trial bench. It should be sufficient for the district judge to make clear the reason for applying the upward adjustment and state the grounds upon which the increase in offense level is based. From my review of the record in this case I find that the explanation given by the district judge at the sentencing hearing supports a two level upward adjustment for abuse of a position of trust under § 3B1.3 and satisfies that standard. For the above reasons, I would not vacate the sentence imposed insofar as it incorporated a two level increase for abuse of a position of trust. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9484172. Public record. Not legal advice.