In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-3343

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANTHONY H. ANDREWS,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 06 CR 5—Barbara B. Crabb, Chief Judge.

____________

ARGUED FEBRUARY 15, 2007—DECIDED APRIL 30, 2007

____________

Before EASTERBROOK, Chief Judge, and POSNER and

KANNE, Circuit Judges.

KANNE, Circuit Judge. Anthony Andrews pled guilty

to one count of mail fraud in violation of 18 U.S.C. § 1341

pursuant to a written plea agreement. In calculating his

advisory Sentencing Guidelines range, the district court

imposed a two-point increase in offense level for abuse

of a position of trust pursuant to U.S.S.G. § 3B1.3. The

district court sentenced Andrews to sixty months’ imprisonment as well as restitution in the amount of

$110,045.25. Andrews appeals the district court’s twopoint adjustment for abuse of a position of trust. We

affirm.
2 No. 06-3343

I. BACKGROUND

Anthony H. Andrews owned and operated Siren Auto

Sales, a used car dealership located in Siren, Wisconsin.

Andrews was licensed by the State of Wisconsin Department of Transportation as a retail vehicle dealer. As a

licensed dealer, Andrews was required to follow Wisconsin

Department of Transportation regulations governing the

purchase and sale of vehicles.

Wisconsin regulations require a licensed dealer to

complete a Used Motor Vehicle Purchase Contract for each

used vehicle he sells. If a trade-in vehicle is part of the

transaction, the licensed dealer enters the details of any

outstanding loan on the vehicle on a standard form,

including the relevant financial institution and the

amount due at the time of the transaction. From this

information, the dealer determines how much he is owed

upon completion of the transaction. The dealer receives

his payment for the purchased vehicle either from the

purchaser or from an institution financing the transaction.

The dealer, rather than the purchaser, is then responsible

for making sure that any lien appearing on the trade-in’s

certificate of title is paid off and for certifying such

payment to the Wisconsin Department of Transportation.

When purchasers traded in vehicles, Andrews filled out

all of the required paperwork and certified to the Wisconsin Department of Transportation that any liens had been

paid off in full. But, rather than actually paying off the

liens, Andrews made payments to the lien holders—

usually a bank. Through this scheme, Andrews could

continue using the lien holders’ funds without the lien

holder knowing that the security for the loan (the vehicle)

had actually been sold and that the lien had been fraudulently removed from the title. Andrews engaged in this

conduct from January 2000 through January 2006, stealing in the vicinity of one million dollars.
No. 06-3343 3

1 The question of whether Andrews’s sentence would still have

fallen within the guidelines range without the two-point adjustment was raised at oral argument and Andrews’s counsel

submitted a supplemental filing on the issue thereafter. Without

the adjustment, Andrews’s offense level is twenty-one, leading

to a guidelines range of forty-one to fifty-one months. As Andrews was sentenced to sixty months’ imprisonment, we need

not consider the effect that overlapping ranges might have had

on our decision.

The presentence investigation report recommended a

two-point adjustment for Andrews’s role in the offense

pursuant to U.S.S.G. § 3B1.3 due to his abuse of a position

of trust. Andrews’s counsel objected to the adjustment

and argued that Andrews’s position as a car dealer does

not qualify as a position of trust, public or private. At the

sentencing hearing, the district court found that Andrews

had held a position of trust, and that he abused it in a way

that significantly facilitated his commission or concealment of his crime. The court stated: “You were licensed as

an automobile dealer. Your customers trusted you to pay

off the liens on their trade-in vehicles as promised, and in

accordance with state regulations, and the purchasers

of those vehicles relied on your certifications that the

vehicles were not encumbered.” R. 18, p. 12.

The two-point adjustment resulted in a total offense

level of twenty-three. Paired with a criminal history

category of II, this resulted in an advisory guideline range

of fifty-one to sixty-three months’ imprisonment.1

 The

district court sentenced Andrews to sixty months’ imprisonment as well as $110,045.25 in restitution.

II. ANALYSIS

Andrews raises only one issue on appeal: whether the

district court properly applied the two-point role in the
4 No. 06-3343

offense adjustment for his abuse of a position of trust. We

review the district court’s interpretation and application of

the Guidelines de novo, and its findings of fact for clear

error. United States v. Bothun, 424 F.3d 582, 586 (7th Cir.

2005); United States v. Frykholm, 267 F.3d 604, 612 (7th

Cir. 2001) (“We review de novo the district court’s interpretation of what constitutes a ‘position of trust.’ ”).

The § 3B1.3 adjustment applies when “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

determine whether the adjustment is appropriate for a

particular defendant, we ask: “1) whether the defendant

occupied a position of trust; and 2) whether his abuse

of the position of trust significantly facilitated the crime.”

United States v. Stewart, 33 F.3d 764, 768 (7th Cir. 1994)

(citing United States v. Boyle, 10 F.3d 485, 488 (7th Cir.

1993)); see also United States v. Fife, 471 F.3d 750, 753

(7th Cir. 2006). “District courts need not be overly formal

when determining whether a given position is one of trust;

rather, they should look beyond labels, to the nature of

the position the defendant is in and the responsibilities

entrusted to him.” Fife, 471 F.3d at 753 (citing United

States v. Snook, 366 F.3d 439, 445 (7th Cir. 2004); United

States v. Mabrook, 301 F.3d 503, 510 (7th Cir. 2002)); see

also United States v. Davuluri, 239 F.3d 902, 908 (7th

Cir. 2001).

A defendant may occupy a position of trust if he has been

given “access or authority over valuable things.” United

States v. Lamb, 6 F.3d 415, 421 (7th Cir. 1993). Positions

of trust are often characterized by great discretion to act

on another’s behalf. United States v. Baldwin, 414 F.3d

791, 799 (7th Cir. 2005); Davuluri, 239 F.3d at 909 (citing

United States v. Hernandez, 231 F.3d 1087, 1091 (7th Cir.

2000); United States v. Hoogenboom, 209 F.3d 665, 671
No. 06-3343 5

(7th Cir. 2000); United States v. Gellene, 182 F.3d 578, 596

(7th Cir. 1999)). Additionally, a position of trust significantly facilitates a crime when it makes the crime either

easier to commit or more difficult for others to detect.

Stewart, 33 F.3d at 768 (citing United States v. Gould, 983

F.2d 92, 94 (7th Cir. 1993)).

The § 3B1.3 adjustment applies not only to public

positions of trust, but also to private positions of trust.

Baldwin, 414 F.3d at 797-99 (affirming application of

abuse of trust adjustment where defendant used yearslong friendship to convince victim to invest millions of

dollars); United States v. Strang, 80 F.3d 1214, 1220 (7th

Cir. 1996) (affirming application of abuse of trust adjustment where defendant, although not a licensed investment broker, befriended victims and convinced them to

invest in fraudulent scheme). While we draw no bright

line where the abuse of a position of trust begins or

ends, more than a mere contractual or arm’s length

commercial relationship is required. United States v.

Dorsey, 27 F.3d 285, 289 (7th Cir. 1994) (citing United

States v. Parker, 25 F.3d 442 (7th Cir. 1994)).

Andrews relies heavily on United States v. Dorsey where

we reversed the imposition of an abuse of trust adjustment to the sentence of a car dealer who defrauded a

bank. 27 F.3d 285. Dorsey obtained a “floor-plan” loan

from his bank for the purchase of cars directly from the

manufacturer. Id. at 287. Dorsey then sold those cars,

while representing to his bank that the cars remained

unsold at his dealership. Id. This allowed Dorsey to use

both the loan money and the proceeds from the sales for

his personal use. Id. We reversed the district court’s application of the position of trust adjustment in Dorsey,

holding that he was merely engaged in a standard commercial relationship with the bank. Id. at 289.

The circumstances in Dorsey stand in contrast with those

of United States v. Stewart. 33 F.3d at 764. Stewart, a
6 No. 06-3343

licensed insurance broker, solicited elderly customers to

purchase annuities to fund their own funerals on a preneed basis as a legal way of reducing their financial

estates in order to qualify for Medicaid funds for nursing

home expenses. 33 F.3d at 766. Rather than actually

securing payment of their funeral expenses, Stewart

converted his customers’ investments for his own use

while representing to the designated funeral directors

that the annuities had been purchased. Id. We held that

the district court clearly erred in not applying the § 3B1.3

adjustment. Id. at 770. Stewart could not have purchased

the annuities if he was not a licensed insurance broker,

and his licensed status also enabled him to convince the

funeral directors that their services would be funded.

Id. at 768-69. While licensed status does not per se place

an individual in a position of trust, it is one factor

among many to be considered in the factual context of the

case. See id. at 766-70.

The facts of this case are more akin to Stewart than to

Dorsey. Andrews was licensed by the state of Wisconsin as

a retail vehicle dealer. His licensed status subjected him to

Wisconsin Department of Transportation regulations

requiring him to pay off his customers’ prior loan obligations and to certify such payment to the Department of

Transportation. His responsibility to remove the liens

took the situation out of the purchasers’ hands, and his

certification to the Department of Transportation allowed

him to conceal his crime.

Andrews argues that the mandatory nature of his

responsibilities as a licensed dealer is precisely why he

did not hold a position of trust. Because positions of trust

are often characterized by broad discretion, Andrews

argues that his obligation to pay off his customers’ liens

cannot place him in a position of trust. But Andrews

was entrusted with his customers’ money to act on their

behalf. His customers need not have given him assets
No. 06-3343 7

and told him to do what he pleased with them. They

trusted him to act in their interests and in accordance

with law, and his licensed status fostered that trust and

his concealment of his actions.

Andrews’s licensed status and responsibility to act on

behalf of his customers placed him in a position of trust.

His abuse of that position gave him control of the assets

and allowed him to conceal his actions by certifying

payment to the Wisconsin Department of Transportation.

The district court’s application of the two-point adjustment for an abuse of a position of trust pursuant to

§ 3B1.3 was not clearly erroneous.

III. CONCLUSION

For the foregoing reasons, the judgment of the district

court is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-30-07