United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 5, 2008 Decided July 11, 2008

No. 06-3134

UNITED STATES OF AMERICA,

APPELLEE

v.

GWENDOLYN TANN,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 04cr00392-01)

Dennis M. Hart, appointed by the court, argued the cause

and filed the brief for appellant.

Stratton C. Strand, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Jeffrey A. Taylor,

U.S. Attorney, and Roy W. McLeese, III, Elizabeth Trosman, and

Timothy G. Lynch, Assistant U.S. Attorneys.

Before: GINSBURG, ROGERS, and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.
2

*

We “[v]iew[] the evidence in the light most favorable to the

Government.” Evans v. United States, 504 U.S. 255, 257 (1992).

GINSBURG, Circuit Judge: Gwendolyn Tann was convicted

of fraud and sentenced to 40 months in prison for embezzling

thousands of dollars from three different employers. We affirm

her conviction but remand for resentencing because the district

court erred in concluding Tann occupied a “position of trust” as

that term is defined in the United States Sentencing Guidelines.

I. Background

In May 1998, Tann was hired as the office manager of the

D.C. Center for Independent Living (DCCIL), a small non-profit

organization.*

 Her duties included “hiring, ordering equipment,

scheduling travel, ... [and] managing the expenditures[] and

checks that were written.” She maintained the organization’s

check ledger, but was not authorized to write checks on behalf

of the organization. 

In May or June of 1999, Jody Wildy, the Executive Director

of the DCCIL, noticed that some of its cancelled checks did not

match the descriptions in the ledger. After performing an audit,

she discovered several checks made out to Tann and bearing

Wildy’s forged signature. In July 1999, she confronted Tann,

who responded by not returning to work. An investigation later

revealed that Tann, while at the DCCIL, had deposited

$21,134.85 in unauthorized checks into her bank account. She

spent the money primarily on clothing.

In 2001 Tann became the secretary for three small

construction companies: Utility Construction, Atlantic

Demolition, and Atlantic Craftsman, at a salary of $660 per

week. Her duties included “handl[ing] cost records, ma[king]

out the payroll checks, d[oing] the payroll.” She was not
3

*

She applied for the job by faxing her resume, which made no

mention of her employment with the construction companies. This

fax, which she sent from Virginia to Washington, DC, was later used

to support the element of interstate communication necessary to

convict Tann of wire fraud.

authorized to write checks on behalf of any of the companies.

Nevertheless, between January 1 and April 17, 2001 Tann

deposited into her bank account checks totaling $40,163.42,

each bearing the forged signature of Kenneth Swecker, a

corporate officer of two of the construction companies. She

spent much of that money on Internet gambling.

Tann later took a job with another non-profit organization,

Generations, where she started work in November 2002 as the

office and grant manager.* At Generations her duties included

preparing checks for the signature of Donna Butts, the Executive

Director, maintaining the computerized check ledger, and

ensuring monthly bank statements matched the ledger. In May

2003, when Butts became concerned about errors in the

computerized checking system, Tann resigned. After

investigating, Butts discovered Tann had deposited into her own

account several checks bearing Butts’ forged signature, some

dating back to January 2003. In all Tann took $23,833.78 from

Generations. Meanwhile, she continued to spend heavily on

Internet gambling.

In August 2004 Tann was indicted on 18 counts (one for

each forged check) of bank fraud, in violation of 18 U.S.C. §

1344; one count of wire fraud, in violation of 18 U.S.C. § 1343;

and one count of fraud in violation of the law of the District of

Columbia. A jury found her guilty on all counts. Pursuant to

the United States Sentencing Guidelines, the district court

enhanced her sentencing range by two levels on the ground that

her offenses involved abuse of a position of trust. See UNITED
4

*

See 2/27/06 Tr. at 7 (“[COUNSEL]: I have to say I was ...

persuaded ... that ... the employer’s checks ... are not being offered to

prove the truth ... o[f] the fraud”); id. at 18 (“THE COURT: ... [T]he

employer’s checks, in terms of their being [admissible], I’m assuming

that you’re not disputing that .... [COUNSEL]: That’s correct”).

STATES SENTENCING GUIDELINES MANUAL (U.S.S.G.) § 3B1.3.

The court sentenced Tann to 40 months in prison: 30 months on

each of the 19 federal counts, to run concurrently, and 10

months on the D.C. count, to run consecutively.

II. Analysis

Tann raises three challenges on appeal. First, she argues the

district court erred in admitting the forged checks into evidence.

Second, she contends there was insufficient evidence to support

her conviction for wire fraud. Third, she challenges the district

court’s enhancement of her sentence for abusing a position of

trust.

A. Admission of Forged Checks

The district court accepted into evidence copies of the 18

forged checks that formed the basis for Tann’s conviction on the

18 counts of bank fraud. Each check instructs the bank to pay

money from the account of her employer “to the order of

Gwendolyn Tann.” Tann contends those statements are

inadmissible hearsay evidence.

Tann did not, however, make this argument at trial; indeed

her lawyer repeatedly agreed in the district court that the forged

checks were admissible.*

 In its written opinion, the district court

expressly noted Tann had not objected to the admission of the

forged checks. 425 F. Supp. 2d 26, 28-29 (2006).
5

Ordinarily an objection not made in the district court is

reviewable on appeal only for plain error. See FED. R. CRIM. P.

52(b); United States v. Weaver, 281 F.3d 228, 232 (D.C. Cir.

2002) (“Plain error assumes that the court should have

intervened sua sponte because the error was so obvious”). In

this instance, however, the Government contends the objection

may not be reviewed at all because Tann’s lawyer agreed the

checks were admissible; that is, the objection was not merely

forfeit but waived. See United States v. Olano, 507 U.S. 725,

733 (“Whereas forfeiture is the failure to make the timely

assertion of a right, waiver is the intentional relinquishment or

abandonment of a known right” (internal quotation marks

omitted)); Weaver, 281 F.3d at 232 (“When defense counsel has

informed the court that he has no problem with admitting the

evidence, it may be too much to expect the trial court to secondguess defense counsel’s position”); see also United States v.

Stearns, 387 F.3d 104, 108 (1st Cir. 2004) (“Although we can

review forfeited error for plain error, arguments which have

been affirmatively waived are not normally reviewable on

appeal”). In this case, however, the statements made by Tann’s

lawyer, reviewed in context, could be understood as merely

acquiescing in rather than inviting the district court’s decision

to admit the evidence, and hence a forfeiture rather than a

waiver. Cf. In re Sealed Case, 108 F.3d 372, 373-74 (D.C. Cir.

1997).

Assuming without deciding the objection was forfeit rather

than waived, we conclude there was no plain error in the

admission of the checks. Hearsay is “a statement, other than one

made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted.”

FED. R. EVID. 801(c). Here the checks were not admitted to

prove the truth of any statement asserted thereon. Rather, the

Government offered the checks only to prove they had been

created by Tann. It proved through other evidence that the
6

checks were forged. See Anderson v. United States, 417 U.S.

211, 219-20 (1974) (holding evidence not inadmissible hearsay

because admitted “to prove that the statements were made so as

to establish a foundation for later showing ... they were false”

(footnote omitted)).

B. Sufficiency of the Evidence

Tann next contends there was insufficient evidence to

convict her of wire fraud. To prove wire fraud, the Government

must show: (1) the defendant “knowingly and willingly entered

into a scheme to defraud”; and (2) “an interstate wire

communication was used to further the scheme.” United States

v. Alston-Graves, 435 F.3d 331, 337 (D.C. Cir. 2006). 

The Government’s theory was that (1) Tann had already

formed a scheme to defraud Generations when she applied for

a position there and (2) the interstate fax of her resume was sent

in furtherance of that scheme. Tann argues the Government did

not prove she had “entered a scheme to defraud” when she sent

the fax. According to Tann, no reasonable jury could find she

intended to defraud Generations when she sent the fax because

there is no evidence she was then aware Generations would have

the lax security procedures necessary for her to perpetrate the

fraud.

We must affirm a guilty verdict if a reasonable jury could

have found the essential elements of the crime beyond a

reasonable doubt. Regalado Cuellar v. United States, 128 S. Ct.

1994, 2006 (2008). Here the Government presented more than

enough evidence to meet this standard. When she applied for

the position at Generations, Tann had recently defrauded two

similarly small organizations while working as their secretary or

office manager; almost immediately after she arrived, she began

defrauding Generations in the same way she had the others. In
7

view of this pattern of conduct, a reasonable jury could infer

Tann had the requisite intent to defraud Generations when she

faxed it her resume.

C. Sentence Enhancement 

The district court enhanced by two Tann’s Sentencing

Guidelines base offense level in light of its finding that Tann

had abused a “position of trust” while working at the DCCIL

and at Generations. The court then gave Tann the maximum

sentence in the applicable range. Tann challenges the

enhancement.

1. Standard of review

In United States v. Booker, 543 U.S. 220 (2005), the

Supreme Court held the United States Sentencing Guidelines

violated the Sixth Amendment to the Constitution of the United

States because they authorized (and indeed required) the court

to enhance a sentence beyond the statutory maximum based

upon a fact not found beyond a reasonable doubt by a jury. Id.

at 244; see also id. at 232 (“[T]he ‘statutory maximum’ ... is the

maximum sentence a judge may impose solely on the basis of

the facts reflected in the jury verdict or admitted by the

defendant” (internal quotation marks and emphasis omitted)).

The Court’s remedy was to “make[] the Guidelines ... advisory”

in all cases: It “requires a sentencing court to consider

Guidelines ranges ... but permits the court to tailor the sentence

in light of other statutory concerns as well.” Id. at 245. In

accordance with Booker and its sequel, Gall v. United States,

128 S. Ct. 586 (2007), our review of a sentence proceeds in two

steps:

[The court] first ensures that the district court committed no

significant procedural error, such as ... improperly
8

calculating[] the Guidelines range .... Assuming that the

district court’s sentencing decision is procedurally sound,

the ... court ... then consider[s] the substantive

reasonableness of the sentence imposed under an

abuse-of-discretion standard. 

Id. at 597; see also United States v. Olivares, 473 F.3d 1224,

1226 (D.C. Cir. 2006) (“[Procedural] error encompasses ...

incorrect applications of the Guidelines to the facts”). 

In this case Tann contends the district court committed an

error of law in calculating the Guidelines range, rendering the

sentence per se unreasonable. In particular, Tann argues the

district court erred by applying the enhancement for abusing a

“position of trust” on the facts of her case. Before reaching the

merits of her argument, we consider the standard by which we

review a district court’s application of the now-advisory

Guidelines to the facts of the case.

Prior to Booker, appellate review of a sentence was

governed by 18 U.S.C. § 3742(e), one provision of which

required us to give “due deference to the district court’s

application of the guidelines to the facts.” We interpreted the

“due deference” standard as lying “presumably ... somewhere

between de novo and ‘clearly erroneous.’” United States v. Kim,

23 F.3d 513, 517 (D.C. Cir. 1994). In Booker, the Supreme

Court held § 3742(e) unconstitutional to the extent it required an

appellate court to reverse a sentence that fell outside the

mandatory Guidelines range. 543 U.S. at 245. Since Booker we

have assumed without deciding that § 3742(e) continued to

govern our review in other respects and have given “due

deference” to the district court’s application of the Guidelines to

facts when we determined whether it correctly computed the

advisory Guidelines range. See United States v. Day, 524 F.3d

1361, 1367, 1373-74 (2008). In this case we hold the due
9

deference standard is still operative.

The “due deference” standard survives Booker because that

case did “not change[] how the Guidelines range is to be

calculated.” United States v. Dorcely, 454 F.3d 366, 375 n.6

(D.C. Cir. 2006). Accordingly, when we apply the first step of

the two-step process outlined in Gall and Olivares, we do

precisely what we did prior to Booker -- determine whether the

district court correctly calculated the Guidelines range and

remand for resentencing if it did not. We therefore see no

reason to think Booker displaced the congressionally mandated

standard of review of a district court’s application of the

Guidelines to facts. As we noted in Olivares, every circuit to

have considered the matter has arrived at the same conclusion.

473 F.3d at 1227-28.

2. “Position of trust”

The applicable Guidelines base offense level is enhanced by

two if the court finds the defendant “abused a position of public

or private trust ... in a manner that significantly facilitated the

commission or concealment of the offense.” U.S.S.G. § 3B1.3.

In order to prevent the enhancement from applying to virtually

every fraud and theft case, the application note to that provision

provides a rather specialized and narrow definition of the phrase

“position of trust”:

“[T]rust” refers to a position of ... 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 .... This adjustment, for example, applies in the case

of an embezzlement of a client’s funds by an attorney
10

*

We have not been consistent on the standard of review of a

district court’s determination whether a defendant occupied a position

of trust within the meaning of U.S.S.G. § 3B1.3. Compare United

States v. Day, 524 F.3d 1361, 1374 (2008), and United States v. West,

56 F.3d 216, 219 (1995) (de novo review), with United States v.

Robinson, 198 F.3d 973, 978 (2000), United States v. Becraft, 117

F.3d 1450 (1997), United States v. Barrett, 111 F.3d 947, 954 (1997),

and United States v. Broumas, 69 F.3d 1178, 1180 (1995) (due

deference review). We conclude that, insofar as the district court

applied the “abuse of trust” Guideline to the facts of Tann’s case, due

deference is the appropriate standard of review. “A district judge’s

determination [about] a given set of facts ... will typically not be

exactly replicated in any other case. And therefore there is less reason

to insist on the uniformity that a question of law typically requires.”

Becraft, 117 F.3d at 1451 n.1 (quoting United States v. Kim, 23 F.3d

513, 517 (D.C. Cir. 1994)) (internal quotation marks omitted).

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.

Tann contends she did not occupy a position of trust within

the meaning of U.S.S.G. § 3B1.3. She characterizes her position

as “ministerial” and argues she was able to commit fraud only

because of lax supervision. The Government argues Tann

occupied a position of trust because she “exercised significant

professional judgment.”

 We appreciate the care with which the district court

reached its decision that Tann occupied a position of trust.

Giving due deference to that court’s decision in favor of the

Government,*

 we are nonetheless constrained to agree with
11

Tann; the facts simply do not support the conclusion that Tann

occupied a position of trust as defined in the Guidelines. Tann’s

responsibilities consisted of preparing checks, entering

information into a computerized check ledger, and determining

whether the cancelled checks received from her employer’s bank

matched the information in the ledger. She was able to

perpetrate her fraud by forging false checks, entering false

information into the ledger, and disposing of cancelled checks

she had made payable to herself. All her tasks were clerical in

nature; none required her to exercise the type of “professional or

managerial discretion” contemplated by the application note to

the Guidelines. The district court stated that Tann was “trusted

to handle the finances of the organization[s],” but the court

neither identified any specific task that required the exercise of

professional or managerial discretion nor explained how her

exercise of discretion permitted her to perpetrate the fraud.

In reaching its contrary conclusion, the district court

emphasized that Tann had access to her employer’s blank

checks and ledger and was not closely supervised: “There was

some supervision but not a great deal.... Ms. Butts was

supposed to ... review[] ledgers[, but] didn’t do it during this

period of time for the most part.” The court said her employers

believed she occupied a position of trust for precisely -- and

solely -- that reason: “[T]he directors of those two organizations

... viewed her position as one of trust because of the access they

gave her to the blank checks, the bank statements, cancelled

checks, ledgers.”

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
12

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.

United States v. West, 56 F.3d 216, 221 (D.C. Cir. 1995); accord

United States v. Edwards, 325 F.3d 1184, 1187 (10th Cir. 2003)

(employee “trusted by her employer with significant

responsibility -- even to the point of allowing her to bypass

usual accounting controls and pick up customer checks from

incoming mail” did not occupy position of trust because she

lacked “authority to make substantial discretionary judgments

regarding company revenues or expenses”); United States v.

Helton, 953 F.2d 867, 870 (4th Cir. 1992) (“[B]eing subject to

lax supervision alone does not convert one’s job into a ‘position

of trust’”). 

Our decision in United States v. Becraft, 117 F.3d 1450

(1997), which the Government invokes, is not to the contrary.

In that case we affirmed the district court’s decision that an

office manager who submitted numerous false purchase orders

and travel expense reports occupied a position of trust. We

based our conclusion upon the district court’s findings that the

defendant “occupied a trusted supervisory position ... entailing

substantial spending and reporting authority” and her supervisor

“permitted [her] to determine which purchases should be made

and accepted her decision without question.” Id. at 1452-53. In

other words, the defendant exercised managerial discretion --

she decided what to buy for the organization -- and was able to
13

perpetrate her fraud because her supervisor deferred to her

judgment. Here, the fraud did not arise out of the exercise of

discretionary judgment in any comparably meaningful sense.

On remand, the district court may conduct additional factfinding to determine whether Tann occupied a position of trust

as defined in the Guidelines. Regardless of its conclusion in that

regard, of course, the court retains broad discretion to impose a

sentence based upon the factors identified in 18 U.S.C. §

3553(a)(2). The advisory Guidelines range is only one such

factor. See Gall, 128 S. Ct. at 596-97.

III. Conclusion

For the foregoing reasons, we affirm Tann’s convictions,

and remand this case for resentencing.

So ordered.