* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 23 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. BOBBY O’NEAL NEGRI, JR.,

Defendants-Appellant. No. 98-6178 (W. Dist. of Oklahoma ) (D.C. No. 97-CR-208)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and MURPHY , Circuit Judges.

INTRODUCTION A federal grand jury handed down a three-count indi ctment charging Bobby Negri with stealing approximately $2.6 million froma Loomis/Fargo Armored Carriers (“Loomis”) armored car. In particular, th e indictment alleged that Negri conspired to steal the money and transport it in interstate commerce in violation-2-

of 18 U.S.C. § 371; stole money belonging to the Ok lahoma City, Oklahoma, Federal Reserve Bank in violation of 18 U.S.C. § 21 13(b); and transported the stolen money in interstate commerce in violation of 18 U.S.C. § 2314. Negri entered a plea of guilty to all three counts of the indictment. Pursuant to the sentencing calculations set out in the Presentence Report (“PSR”), the district court sentenced Negri to a term of imp risonment of sixty months on count one, sixty-three months on count two, and sixty-three months on count three, all to run concurrently with one another. N egri appeals the sentence imposed, contending the district court erred in the following particulars: (1) increasing Negri’s base offense level by two points pursuant to United States Sentencing Guideline (“U.S.S.G.”) § 2B1.1(b)(4) bec ause Negri engaged in “more than minimal planning”; (2) increasing Negri’s base offense level by four points pursuant to U.S.S.G. § 2B1.1(b)(6)(B) because Negri derived more than $1,000,000 and the theft “affected a financial inst itution”; and (3) adjusting Negri’s base offense level upward by two points pur suant to U.S.S.G. § 3B1.3 because Negri abused a position of “private trust.” This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U. S.C. § 3742 and affirms

.-3- BACKGROUND The facts leading up to Negri’s prosecution, plea o f guilty, and sentencing are as follows. On June 25, 1997, Negri arrived fo r work at Loomis, where he was employed as an armored car driver and guard. H e was assigned that day to guard a $2.9 million shipment of Federal Reserve no tes destined for various banks in Oklahoma. Usually, Loomis shipments were transp orted in an armored car staffed by three employees. On the night of June 2 4 th , however, Negri spoke to one of his co-workers and learned that he was calli ng in sick the next day. Accordingly, Negri and co-worker Greg Stroud were a lone in the armored car. En route to their deliveries, Negri and Stroud made an unscheduled but routine stop for breakfast at a McDonald’s. Stroudwent into the McDonald’s to buy breakfast while Negri remained in the back of t he armored car, supposedly to guard the money. When Stroud returned a few minute s later, Negri and approximately $2.6 million were missing. Negri’s r evolver and a postcard with a handwritten note containing the following language were found in the back of the armored car: “Is Paris nice this time of year? OUI By[e] now.” Some four months after the theft, Negri and his acc omplice Michael Lutz were arrested in Ft. Lauderdale, Florida. As FBI a gents questioned Negri and Lutz, details of their plan began to unfold. Durin g deliveries prior to the June
25 ththeft, Negri reminded bank employees that they wou ld need extra cash on-4-

hand for the July 4 thholiday weekend and told them to “order heavy.” N egri undertook these actions for the purpose of ensuring there would be plenty of money in the shipment he planned to steal. A few d ays prior to the theft, Negri and Lutz drove to Tulsa and left Lutz’s truck at th e airport. Negri and Lutz planned to leave their vehicles at different airports in the hope of confusing the police. Negri then rented a getaway van in Shawnee , where Lutz was maintaining a hotel room so he could be closer to the route of the armored car. On the morning of the theft, Lutz drove Negri to wo rk and parked Negri’s truck at the Oklahoma City airport. Lutz then tooka cab to pick up the rented getaway van, which was parked near the Loomis offic e. As the armored car left the Loomis office, Lutz followed. When the armored car stopped at the McDonald’s, Lutz pulled into the parking lot. WhenStroud went inside, Negri and Lutz quickly unloaded the bags of money into th e van and fled the scene. While Lutz drove the getaway van, Negri changed outof his guard uniform into street clothes he had previously placed in the van. The pair drove to Shawnee where they purchased another van and dumpedthe rented getaway van at an apartment complex. They then drove to Shreveport, Louisiana, and eventually made their way to Florida, spending money freely an d changing vehicles every so often. Negri and Lutz lived on the stolen money in Florida for the next four-5-

months, spending it on luxurious items and moving f rom one resort hotel to another.

ANALYSIS 1. U.S.S.G. § 2B1.1(b)(4) Sentencing Guideline § 2B1.1(b)(4) mandates a two-l evel upward adjustment in a defendant’s base offense level for larceny, embezzlement, and other forms of theft if the offense “involved more than minimal planning.” U.S. Sentencing Guidelines Manual § 2B1.1(b)(4) [hereina fter U.S.S.G.]. Under the Guidelines, “‘More than minimal planning’ means mor e planning than is typical for commission of the offense in a simple form. “M ore than minimal planning” also exists if significant affirmative steps were t aken to conceal the offense . . . . U.S.S.G. § 1B1.1 appl’n note 1(f). The district co urt’s conclusion that the offenses committed by Negri involved more than mini mal planning is a factual determination reviewed by this court under the high ly deferential clear-error standard. See United States v. Orr , 68 F.3d 1247, 1253 (10 th Cir. 1995). Negri argued before the district court that the § 2 B1.1(b)(4) enhancement was inappropriate because of the failure of the “ov erall scheme,” particularly the bumbling manner in which Negri and Lutz traveled fr om Oklahoma to Florida,-6-

and because the measuring offense was the theft of a large sum of money from an armored car. The district court rejected these arg uments, finding as follows: There was more than minimal planning here. The wayin which this issue is stated in the guidelines is important. We ’re not making an inquiry as to whether there was extensive planning, we’re not making an inquiry whether there was successful plan ning, the adjustment is applicable if you can determine what would be kind of a rock-bottom minimum, and if the government shows that something was done beyond that minimum. In support of its finding that the offense had been accompanied by more than minimal planning, the district court made the following subsidiary factual findings. First, the district court noted that aft er Negri decided to commit the theft, he concluded that he needed the assistance o f another. Accordingly, Negri recruited Lutz into the conspiracy. Second, the di strict court found that the planning for the offense extended over a period of several days. In particular, Lutz and Negri rented a van, which they intended to use as a getaway vehicle, several days before the theft. In addition, the co nspirators purchased a footlocker, in which they intended to store the loo t, and placed it in the rented van. Negri also stored some street clothes in the rental van so that he could immediately change out of his Loomis uniform upon c ompletion of the theft. Third, the planning included a series of actions un dertaken to cover the conspirators’ tracks. In particular, Negri and Lut z formulated a plan to leave the impression that they had split up and fled the coun try immediately after the theft.-7-

Several days before the theft, Lutz abandoned his v ehicle at the airport in Tulsa. Furthermore, on the morning of the crime, Lutz drov e Negri to work in Negri’s vehicle, drove Negri’s vehicle to the airport in Ok lahoma City, and then took a cab back to a spot near the Loomis company to pick up the rented getaway van. In addition, upon completion of the theft, Negri le ft a note in the armored car leaving the impression he had gone to France. Fourth, and finally, Negri utilized inside information obtained over several days priorto the theft to maximize the chances of success and the amount of money which wa s likely to be on hand in the armored car. In particular, in the days before the theft, Negri told his contacts at the banks to order heavy for the Fourth of July weekend, thus ensuring that there would be plenty of money in the armored car. Negri and Lutz committed the theft on a day when one of Negri’s co -workers had called in sick, so that there were only two, rather than the normal three, guards in the armored1 During the sentencing hearing, the United States pr esented testimony that

Negri had manipulated the third guard over several days prior to the theft to ensure that the third guard called in sick on the d ay of the planned theft. In response to this testimony, the district court made the following findings: The Court . . . is not prepared to find that the de fendant actually manipulated the third guard not to come to work that day, but the success of the theft depended upon the defendant’s knowledge of who was going to be there. The knowledge came to h im because of his status as custodian. In putting it all togethe r, it is not a spontaneous spur of the moment matter. -8- car. 1 Furthermore, Negri stationed Lutz in the rental c ar on the armored vehicle’s route in order to facilitate the theft. In light of the district court’s detailed subsidiary factual findings, the district court did not commit clear error in determ ining that the offenses at issue were accompanied by more than minimal planning. In particular, we agree that the conspirators’ use of inside information and ext ensive planning to avoid detection after the theft is more than “is typical for commission of the offense in a simple form.” U.S.S.G. § 1B1.1 appl’n note 1(f); cf. United States v. Dougherty , Nos. 95-6110, -6113, -6114, 1995 WL 539524, at *1 (10 th Cir. Sept. 11, 1995) (unpublished disposition) (holding that u se of gloves during crimes “indicates a measure of planning in the commission of the burglaries and an affirmative step to conceal the offenses”). In add ition, although not specifically relied on by the district court, Negri’s exhortatio n to Loomis customers to “order heavy” for the Fourth of July weekend and commissio n of the theft on the2Negri summarily asserts that a § 2B1.1(b)(4) enhanc ement is never proper

unless the district court makes specific findings o n the record as to what acts would be necessary in order to commit the offense i n question in its most simple form and what additional acts defendant undertook i n committing the offense. This argument fails for any number of reasons. In particular, Negri did not raise this argument before the district court. Instead, he simply asserted, without disputing the district court’s factual findings, th at his commission of the offense was too bumbling and haphazard to qualify as accomp anied by even adequate planning. See The Post Office v. Portec, Inc. , 913 F.2d 802, 806 (10 th Cir. 1990) (holding that failure to raise an issue in the dist rict court precludes any review except for the most manifest error). More importantly, however, Negri has not cited, and this court has not found, a single autho rity standing for the proposition that the United States must prove, and the court mu st find with specificity, what hypothetical acts are necessary, at a bare minimum, to commit the offenses at issue. This court rejects Negri’s rigid proposed f ramework for analyzing § 2B1.1(b)(4) enhancements and notes, instead, thatin support of the enhancement the United States must simply prove by a preponderance of the evidence that the planning present in a particular case was more than is “typical for the commission of the offense in a simple form. ” U.S.S.G. § 1B1.1 appl’n note 1(f). The district court’s decision that the United States met its burden in this case is not clearly erroneous. -9- particular date upon which there might be more mone y than ususal in the armored car supports the application of the enhancement. See U.S.S.G. § 1B1.1 appl’ note 1(f) (providing that “obtaining information on delivery dates so that an especially valuable item [can] be obtained . . . co nstitute[s] more than minimal planning”). 2

2. U.S.S.G. § 2B1.1(b)(6)(B) a. Standard of Review-10-

Sentencing Guideline § 2B1.1(b)(6)(B) provides for a four-point increase in a defendant’s base offense level if the offense of conviction “affected a financial institution and the defendant derived mor e than $1,000,000 in gross receipts from the offense.” U.S.S.G. § 2B1.1(b)(6) (B). Negri contends the district court erred in applying the § 2B1.1(b)(6)( B) for the following two reasons: (1) the “affected a financial institution” language of the guideline is ambiguous, rendering § 2B1.1(b)(6)(B) unconstitutio nally vague; and (2) § 2B1.1(b)(6)(B) does not apply because he stole the money from an armored car rather than one of the financial institutions liste d in the commentary to the Sentencing Guidelines. See id. appl’n note 9. “‘[T]he district court’s application of the Sentenc ing Guidelines to the facts of a particular case is entitled to due defer ence and its factual findings will not be reversed unless clearly erroneous.’” United States v. Flores-Flores , 5 F.3d 1365, 1367 (10 th Cir. 1993) (quoting United States v. Urbanek , 930 F.2d 1512, 1514 (10 th Cir. 1991)). This court reviews the district court’s legal interpretation of the Guidelines de novo

. Id. Negri’s vagueness challenge to § 2B1.1(b)(4) poses an ultimate question of constitutional law, to which this court applies a de

novo standard of review. See United States v. Wynne , 993 F.2d 760, 764 (10 th Cir. 1993). b. Applicability of § 2B1.1(b)(6)(B)3 Actually, the court in Johnson was analyzing U.S.S.G. § 2F1.1(b)(6)(B).

See United States v. Johnson , 130 F.3d 1352, 1354 (9 th Cir. 1997). Nevertheless, -11- Negri’s challenge to the applicability of § 2B1.1(b )(6)(B) is, at the same time, both narrow and cursory. After setting out the statutory definition of “financial institution” from 18 U.S.C. § 20 and the guideline definition of the term from the commentary to § 2B1.1, he simply note s as follows:

Neither the statute nor the Sentencing Guideline de fining “financial institution” include an armored car comp any within the definition. Thus, counsel for Mr. Negri contends the theft from the Loomis/Fargo armored car should not be considered a s having “affected a financial institution” and the four lev el enhancement was an improper application of the guideline. This court finds Negri’s argument unconvincing. Fi rst, nothing in § 2B1.1(b)(6)(B) limits its application to thefts o f money directly from a bank vault. Instead, the guideline speaks in terms of thefts “affect[ing]” a financial institution, a term with the potential for broad application. See United States v. Johnson , 130 F.3d 1352, 1354 (9 th Cir. 1997) (discussing potential breadth of word “affect”). Nevertheless, the term’s potential for broad applicability exists only within a very narrow category of circumstances : the defendant must have committed a theft and “derived more than $1,000,000 in gross receipts from the offense.” U.S.S.G. § 2B1.1(b)(6)(B). The Ninth Ci rcuit has noted that a broad reading of “affected” furthers Congress’ purpose: e nhancing penalties for crimes affecting financial institutions even if the effect on the institution is attenuated. 3the language of and commentary to the two provisions are identical. Compare

U.S.S.G. § 2B1.1(b)(6)(B) with U.S.S.G. § 2F1.1(b)(6)(B). -12- Id. In this vein, the Fifth Circuit has applied U.S.S .G. § 2F1.1(b)(6), an identically worded parallel of § 2B1.1(b)(6)(B), in a case where the crime’s effect on the financial institution was far more attenuated than in this case. See United States v. Schinnell , 80 F.3d 1064, 1069-70 (5 th Cir. 1996) (holding that wire fraud committed against business by its own employee affected a financial institution because business had contractual right to sue its bank to recover lost funds). Ultimately, this court need not decide how broadly to read the term “affect’ in § 2B1.1(b)(6)(B) because the facts of this case fall well within the heartland of the term. Count two of the indictment charged thatNegri “did knowingly take and carry away with intent to steal approximately $ 2,632,000 in money belonging to and in the care, custody, control, management, and possession of the Federal Reserve Bank, Oklahoma City, Oklahoma, a banking in stitution organized and operating under the laws of the United States.” Ne gri pleaded guilty to this count. That the money was stolen from a common carrier while in transit, rather than directly from a bank, is of no moment to the applicability of § 2B1.1(b)(6)(B). Cf. United States v. Millar , 79 F.3d 338, 345-46 (2 dCir. 1996) (upholding application of § 2B1.1(b)(6)(B) to theftof funds from armored car).-13-

Furthermore, the district court specifically found that the customer banks’ balance sheets and administrative processes were ne gatively affected by the theft. Accordingly, the district court did not err in enh ancing Negri’s base offense level on the ground that his crime “affected a financial institution.” U.S.S.G. § 2B1.1(b)(6)(B).

c. Vagueness Challenge to § 2B1.1(b)(6)(B) Negri contends the district court should have refus ed to apply § 2B1.1(b)(6)(B) because it is unconstitutionally vag ue. This court begins by noting a serious doubt as to whether a vagueness ch allenge can be properly lodged against the Sentencing Guidelines. See United States v. Wivell , 893 F.2d 156, 160 (8 th Cir. 1990) (“Because there is no constitutional ri ght to sentencing guidelines–or, more generally, to a less discretion ary application of sentences than that permitted prior to the Guidelines–the lim itations the Guidelines place on a judge’s discretion cannot violate a defendant’ s right to due process by reason of being vague.”); United States v. Brierton , 165 F.3d 1133, 1139 (7 th Cir. 1999) (citing Wivell for proposition that Sentencing Guidelines “are no t susceptible to attack under the vagueness doctrine”); United States v. Salas , No. 93-5897, 1994 WL 24982, at *1-*2 (6 th Cir. Jan. 27, 1994) (unpublished disposition) (same). But see Johnson , 130 F.3d at 1354 (noting Wivell but undertaking vagueness analysis of Sentencing Guidel ines on basis of binding4 As noted above, the Johnson court was actually analyzing U.S.S.G. §

2F1.1(b)(6)(B). Nevertheless, § 2B1.1(b)(6)(B) is identical to § 2F1.1(b)(6)(B). See supra note 3. -14- Ninth Circuit precedent). Nevertheless, because ne ither party has briefed this issue and because § 2B1.1(b)(6)(B) is not ambiguous or vague in any sense, we need not resolve whether the Sentencing Guidelines can ever be vague in the constitutional sense. Because § 2B1.1(b)(6)(B) does not implicate First A mendment freedoms, Negri’s challenge to the provision cannot be based on an assertion the guideline is vague on its face or in its hypothetical applications. See United States v. Walker , 137 F.3d 1217, 1219 (10 th Cir. 1998); Johnson , 130 F.3d at 1354. Instead, Negri must show that the guideline is vagu e as applied to the facts of his particular case. See Chapman v. United States , 500 U.S. 453, 467 (1991); Walker , 137 F.3d at 1219. Accordingly, the ultimate testis whether the provision at issue fails to give a person of ordinary intelli gence fair warning that it applies to the conduct contemplated. See Walker , 137 F.3d at 1219 (citing Kolender v.
Lawson , 461 U.S. 352, 357 (1983)). Although Negri recognizes that the only court to un dertake a vagueness analysis of the affects-a-financial-institution lan guage rejected the notion that the term is vague, see Johnson , 130 F.3d at 1354, 4he argues his case is distinguishable because he thieved the money from an armored car, rather than-15-

directly from a bank. We disagree. As noted above , this court rejects Negri’s claim that § 2B1.1(b)(6)(B) only applies to thefts directly from a bank vault. Furthermore, this court has no difficulty concludin g § 2B1.1(b)(6)(B) gives fair warning to a person of ordinary intelligence that i t would apply given the facts of this case: the theft from an armored car of $2.6 mi llion that is being transported from the care, custody, and control of a Federal Re serve Bank to individual customer banks of the Federal Reserve.

3. U.S.S.G. § 3B1.3 Sentencing Guideline § 3B1.3 provides for a two-poi nt increase in a defendant’s base offense level if the following two conditions are met: (1) “the defendant abused a position of public or private tr ust”; and (2) that abuse “significantly facilitated the commission or concea lment of the offense.” U.S.S.G. § 3B1.3. On appeal, Negri concedes that h is position as a Loomis security guard facilitated the commission of the th eft, but asserts that he did not occupy a position of private trust. In defining th e term “private trust,” the application notes provide as follows: [Private trust] “refers to a position . . . charact erized by professional or managerial discretion ( i.e. , substantial discretionary judgment that is ordinarily given considerable deference). Perso ns holding such positions ordinarily are subject to significantly l ess supervision than employees whose responsibilities are primarily non- discretionary in nature. . . . This adjustment would not apply in the case of an-16-

embezzlement or theft by an ordinary bank teller orhotel clerk because such positions are not characterized by the above-described factors. U.S.S.G. § 3B1.3 appl’n note 1. “This court review s the question of whether an individual occupied a position of trust in a partic ular transaction for clear error.” United States v. Trammell , 133 F.3d 1343, 1355 (10 th Cir. 1998). This court has noted the following nonexclusive lis t of factors that courts have considered in determining whether a particularposition constitutes a position of trust: the extent to which the position provides the freed om to commit a difficult-to-detect wrong, and whether an abuse cou ld be simply or readily noticed; defendant’s duties as compared to those of other employees; defendant’s level of specialized knowled ge; defendant’s level of authority in the position; and the level o f public trust. United States v. Williams , 966 F.2d 555, 557 (10 th Cir. 1992). Applying these factors, we conclude the district court did not cle arly err in finding that Negri occupied a position of trust. Negri’s supervisor testified that Negri was in char ge of the armored car on the date of the theft. Although Negri’s supervisory powers that day were not extensive, Negri’s supervisor testified that Negri was in “complete control of the funds” and empowered to alter the route upon the happening of certain contingencies. This level of authority supports th e district court’s conclusion that Negri occupied a position of private trust. Id. The testimony of Negri’s-17-

supervisor that Negri’s pre-employment screening an d post-employment training were extensive further support the enhancement. See id. In addition, because Negri’s position involved traveling with the armore d car around the state of Oklahoma, his activities, unlike the activities of a simple bank teller, were hidden from the view of his direct supervisors. See United States v. Hill , 915 F.2d 502, 506-07 (9 th Cir. 1990) (affirming § 3B1.3 adjustment where tru ck driver stole household items entrusted to his care during family ’s cross-country move in part because his “activities as a long-distance truck dr iver, almost by definition, were difficult, if not impossible, to observe during his cross-country trek”). Finally, and perhaps most importantly, in light of the fact that almost $3 million was in the armored car, the level of private trust between Negri and Loomis was

enormous. See United States v. Banks , No. 98-1040, 1998 WL 870363, at *2-*3 (7 th Cir. Dec. 14, 1998) (affirming § 3B1.3 adjustment for theft by armored car guard based exclusively on large sum of money in armored car); see also United
States v. Bennett , 161 F.3d 171, 195 (3 dCir. 1998) (noting that where there has been reliance on the integrity of person occupying the position, the person likely occupies a position of trust). When these factors are viewed in combination, it becomes clear that the district court correctly det ermined that Negri occupied a position of trust and properly enhanced his sentenc e pursuant to §3B1.3.-18- CONCLUSION For all of the reasons set out above, the sentence imposed by the district court is hereby AFFIRMED

.

ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge