     Case: 11-20872     Document: 00511984304         Page: 1     Date Filed: 09/12/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 12, 2012
                                     No. 11-20872
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ESTEFANY DANELIA MARTINEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-377-1


Before BENAVIDES, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Estefany Danelia Martinez appeals the sentences imposed following her
guilty plea convictions for one count of aiding and abetting theft or
embezzlement by a bank officer or employee and one count of bank robbery. She
contends that the district court erred in applying the two-level enhancement
under U.S.S.G. § 3B1.3, which applies if “the defendant abused a position of
public or private trust . . . in a manner that significantly facilitated the
commission or concealment of the offense.”

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-20872    Document: 00511984304       Page: 2   Date Filed: 09/12/2012

                                   No. 11-20872

      The facts underlying the criminal activity are not in dispute. Martinez
and Anna Margarita Rivera helped plan a staged robbery of the bank where they
worked as tellers.     They recruited Ricky Gonzalez, who was Martinez’s
boyfriend, and Arturo Solano, who was Rivera’s brother, to participate as the
purported robbers. To minimize the likelihood of customers being present,
Martinez and Rivera planned for the staged robbery to occur close to the bank’s
closing time on a day when they were both scheduled to work the late shift.
Martinez, Rivera, Gonzalez, and Solano were the only ones inside the bank at
the time of the staged robbery.
      For § 3B1.3 to apply, the defendant must have (1) occupied a position of
trust and (2) used that position to significantly facilitate the commission or
concealment of the offense. § 3B1.3; United States v. Ollison, 555 F.3d 152, 165
(5th Cir. 2009). Martinez disputes only whether she occupied a position of trust.
“A position of trust is characterized by (1) professional or managerial discretion
(i.e., substantial discretionary judgment that is ordinarily given considerable
deference), and (2) minimal supervision.” Ollison, 555 F.3d at 166 (citing
§ 3B1.3, comment. (n.1)). Section 3B1.3, comment (n.1) instructs that the
requirements for the enhancement are not met in the case of “an embezzlement
or theft by an ordinary bank teller.”
      The district court found that Martinez’s responsibilities at the bank
exceeded those of an ordinary bank teller for purposes of § 3B1.3. The district
court’s application of § 3B1.3 is reviewed for clear error, including its finding
that Martinez held a position of trust. See United States v. Dial, 542 F.3d 1059,
1060 (5th Cir. 2008). A finding is not clearly erroneous if “it is plausible in light
of the record as a whole.” United States v. Miller, 607 F.3d 144, 148 (5th Cir.
2010).
      Martinez asserts that she lacked professional or managerial discretion in
her position as the lowest level teller, had worked at the bank for less than a
year, made only $7.00 per hour, and was only 18 years old at the time of the

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                                  No. 11-20872

criminal activity. She does not dispute that the bank trusted her not to steal
from it, she participated in planning the staged robbery, she advised the
purported robbers of the general layout of the bank, she advised the purported
robbers that she would place a tracking device into the bag of stolen money so
that the staged robbery would seem real, she had the code to the vault and was
able to access the vault, and she had the duty to close the bank. However, she
asserts that even the most lowly of tellers had the knowledge and duties
involved in those circumstances and that none of those circumstances involved
professional or managerial discretion.
      While a bank teller generally does not utilize a position of trust when
simply adding and removing cash to and from the till, “the same teller certainly
may engage in other activities in the course of her job that do involve aspects of
trust which may be exploited to facilitate a crime.” United States v. Smith, 203
F.3d 884, 893 (5th Cir. 2000). In addition to knowing the layout of the bank, the
time the staged robbery should occur, and the location of tracking devices,
Martinez was given access to the vault and was responsible, along with Rivera,
for closing the bank for the day. The district court’s finding that Martinez
occupied a position of trust for purposes of § 3B1.3 was plausible based on the
record as a whole and, thus, not clearly erroneous. See Smith, 203 F.3d at 892-
94.
      AFFIRMED.




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