In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-2728

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CARMEN CRUZ,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 CR 1083—Harry D. Leinenweber, Judge.

____________

ARGUED DECEMBER 10, 2002—DECIDED JANUARY 30, 2003

____________

Before FLAUM, Chief Judge, and POSNER, and WILLIAMS,

Circuit Judges.

FLAUM, Chief Judge. Defendant Carmen Cruz pleaded

guilty to one count of bank fraud under 18 U.S.C. § 1344

for forging and cashing false checks in the name of her

employer’s company. The district court enhanced her sentence by two levels under U.S.S.G. § 3B1.3 because it

found Cruz had abused a position of trust in committing

her crime. Cruz appeals the enhancement and argues she

did not have the requisite discretion and authority in her

office manager position to warrant the abuse of trust

enhancement. For the following reasons we affirm the

district court’s decision to impose the enhancement.
2 No. 02-2728

BACKGROUND

In February 2002 Carmen Cruz pleaded guilty to one

count of bank fraud after her employer discovered she

had forged company checks and used the company’s credit

card for her own financial gain. Cruz worked as the office

manager for Professional Elevator Services, Inc. (“PES”), a

small company owned and operated by Kenneth Mason.

Cruz’s office manager position required her to draft checks

to pay company expenses, purchase office supplies with

the company credit card, supervise two employees, and

perform other common bookkeeping and administrative tasks. Cruz did not have signature authority for PES

accounts (only Mason could authorize payment), and an

outside accountant periodically audited the company’s

finances, including Cruz’s transactions.

Cruz accomplished her fraud by forging Mason’s signature on checks drawn on PES accounts and made out to

a conspiring co-worker, Kenneth Jackson, who also is

Mason’s son. Jackson cashed the checks at local currency

exchanges and split the proceeds with Cruz. To conceal the

forgery from Mason, Cruz recorded these checks in the

company ledger under the name of a false payee and destroyed the canceled forged checks when the banks returned them to PES. Cruz also used the PES company

credit card to pay her mortgage, make a down payment

on a car, and buy plane tickets, furniture, jewelry, and

other personal items. When the credit card bill arrived

at PES, Cruz drafted a check from the company account

to pay the balance and then threw away the statement

detailing the charges. Over the two years Cruz worked her

fraud, she stole about $121,000 from PES.

After admitting her fraudulent activities to the FBI

during an interview in March 2001, Cruz pleaded guilty

to one count of bank fraud under 18 U.S.C. § 1344. At

sentencing the district court applied a two-level enhance-
No. 02-2728 3

ment pursuant to U.S.S.G. § 3B1.3 because it found she

had abused a position of trust in her commission of the

crime. The court sentenced Cruz to 15 months in prison

with three years supervised release and ordered her to

pay $113,986 restitution and a $100 special assessment.

Cruz argues on appeal that her job as office manager

did not provide her with sufficient discretion and authority to warrant the abuse of trust enhancement.

ANALYSIS

We review the district court’s interpretation and application of the Sentencing Guidelines de novo, but we defer

to the court’s finding that Cruz did in fact abuse a position of trust unless the finding was clearly erroneous.

United States v. Sonsalla, 241 F.3d 904, 908 (7th Cir.

2001). Sentencing Guideline § 3B1.3 applies a two-level

enhancement to the offense level when a “defendant abused

a position of public or private trust, or used a special skill,

in a manner that significantly facilitated the commission or concealment of the offense.” United States Sentencing Commission, Guidelines Manual, § 3B1.3 (Nov.

2000). This court employs a two-part test to determine

whether the abuse of trust guideline is appropriate under a particular set of facts: (1) whether the defendant

occupied a position of trust, and (2) whether the defendant’s abuse of that position of trust significantly facilitated her commission of the crime. Sonsalla, 241 F.3d

at 909.

Cruz argues she did not deserve the abuse of trust

enhancement for two reasons. First, Cruz claims she did

not occupy a position of trust in relation to the “victim”

of her crime. See United States v. Hathcoat, 30 F.3d 913,

919 (7th Cir. 1994) (analyzing position of trust from victim’s perspective). Cruz argues the relevant position of

trust for the purpose of applying § 3B1.3 is her relation-
4 No. 02-2728

ship to the drawee banks, which were the direct victims

of her charged bank fraud conduct, and not her employer,

PES. Since she neither actually nor constructively stood

in a position of trust to the defrauded banks, Cruz insists

she is ineligible for the abuse of trust enhancement. We

disagree.

Courts may apply the abuse of trust enhancement even

if the defendant did not occupy a position of trust in

relation to the victim of the offense of conviction; it is

enough if the defendant also harmed the person whose trust

she did abuse. See United States v. Bhagavan, 116 F.3d 189,

193 (1997) (finding that majority shareholder and president of corporation charged with federal tax fraud abused

the trust of minority shareholders even though he committed his crime against federal government). Similarly,

a “vulnerable victim” enhancement may apply where

the vulnerable victim was not the victim of the offense

of conviction, but was harmed by conduct involved in the

commission of that offense. See, e.g., United States v.

Stewart, 33 F.3d 764, 770 (7th Cir. 1994); United States v.

Firment, 296 F.3d 118, 120-21 (2d Cir. 2002). Of course,

courts do not have unfettered discretion in deciding whether to apply sentencing enhancements. Rather, the guidelines make an enhancement available only in those cases

where a defendant’s charged or relevant conduct included

a specific aggravating factor, such as an abuse of trust.

See U.S.S.G. § 3B1.3, comment. (n.2) (confining abuse of

trust enhancement to situations where defendants assume position of trust relative to victim), and Ch. 3, Pt. B,

intro. comment. (instructing court to consider all relevant

conduct in determining whether defendant abused a position of trust).

Here, the district court properly applied the abuse of

trust enhancement to Cruz’s sentence because her check

forgery and bookkeeping deception vis-a-vis her employer

constituted relevant conduct to her bank fraud convic-
No. 02-2728 5

tion. The sentencing guidelines define relevant conduct

as criminal activity “that occur[s] during the commission

of the offense of conviction, in preparation for that offense,

or in the course of attempting to avoid detection or responsibility for that offense.” U.S.S.G. § 1B1.3(a)(1). Cruz’s

fraud against PES not only occurred “during the commission” of her bank fraud, as she caused PES to suffer

a direct financial loss of $121,000 when she kept the

money from the forged checks for her own personal gain,

it also occurred “in the course of attempting to avoid detection or responsibility” for her crime, as she entered

false information into the PES accounting ledgers to

hide her scheme. Furthermore, punishing Cruz for her

fraudulent conduct, which was aggravated by her abuse

of her employer’s trust, serves the purpose of the relevant

conduct guideline, which is “to free the [sentencing] court

from the strict confines of the indictment so that it may

hold the defendant accountable for the full range of harms

that stemmed from [her] offense conduct.” United States

v. Ritsema, 31 F.3d 559, 567 (7th Cir. 1994).

Next, Cruz argues she had insufficient discretionary

authority in her job as office manager to warrant the

abuse of trust enhancement. In particular, she claims

she is more like the ordinary bank teller or hotel clerk

whom the Sentencing Guidelines suggest is not within

reach of the enhancement than the skilled professional

whose position of trust facilitates the commission of the

crime. See U.S.S.G. § 3B1.3, comment. (n.1). Unfortunately

for Cruz, our case law does not support her position. We

have consistently, and very recently, affirmed abuse of

trust enhancements in cases like this one where an employee takes advantage of her job position to defraud her

employer. See United States v. Tiojanco, 286 F.3d 1019,

1021 (7th Cir. 2002) (collecting cases).

Employees may hold a position of trust even when they

do not occupy upper-level or even supervisory positions.
6 No. 02-2728

See Tiojanco, 286 F.3d at 1022. Job title and credentials

alone cannot fully inform the court whether a person held

a position of trust. United States v. Hernandez, 231 F.3d

1087, 1089 (7th Cir. 2000). Instead, the relevant inquiry

in deciding whether to apply § 3B1.3 is one that “assesses

the actual amount of access an employee has to ‘items

of value.’ ” Id. (quoting United States v. Lamb, 6 F.3d

415, 419 (7th Cir. 1993)); United States v. Deal, 147 F.3d

562 (7th Cir. 1998). In Deal we held that a shopping center comptroller who was subject to direct supervision in

submitting checks for payment held sufficient authority

in his position to garner the trust of his supervisors,

which then enabled him to evade detection while he

stole money from the company. Id., 147 F.3d at 563. We

explained that “the fact that [the defendant] was able to

steal so much and escape detection for so long is evidence . . . that he had a position of trust in which he

could get away with more money and for a longer time

than a hotel clerk or a bank teller would be likely to be

able to do.” Id. Similarly, in Hernandez we held that a

staff accountant who had no managerial authority and

who had to submit forms for approval in order to facilitate his fraud nevertheless held a position of trust for

purpose of applying § 3B1.3. Id., 231 F.3d at 109.

Here, Cruz held a position of limited authority at PES

very similar to the positions held by the defendants in

Deal and Hernandez. And like those defendants, Cruz

abused the trust to work her fraud. Although Cruz argues she had no discretion to make payments and no

authority to sign checks, her position in the company

allowed her to steal nearly $121,000 over two years. Cruz

not only earned the trust of her supervisor, Mason, so that

he did not question her ledger entries or the propriety of

the checks submitted to him for approval, she also used

her position to destroy the forged checks when they were

returned to PES from the defrauded banks and to de-
No. 02-2728 7

stroy the itemized credit card statements which would

have revealed her fraud. Had Cruz not been entrusted

with significant authority by virtue of her position in the

company, she could not have defrauded Mason, PES, and

the payee banks to such a degree. There is ample evidence to support the inference that Cruz held substantial

autonomy and used it to commit her crime, and so the

district court’s decision to apply the abuse of trust enhancement was not clearly erroneous.

CONCLUSION

We AFFIRM the application of the abuse of trust enhancement to Cruz’s sentence.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-30-03