     Case: 15-41749      Document: 00514089124         Page: 1    Date Filed: 07/26/2017




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

                                    No. 15-41749
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                            July 26, 2017
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


              Plaintiff - Appellee

v.

GERARDO VINALAY,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:15-CR-428-1


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       Gerardo Vinalay, federal prisoner # 87065-379, was convicted by a jury
of stealing from the United States Postal Service (USPS) in violation of 18
U.S.C. § 641. At sentencing, the Government sought an enhancement under
U.S.S.G. § 3B1.3, which applies when a defendant has “abused a position of
public or private trust . . . in a manner that significantly facilitated the



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 15-41749
commission or concealment of the offense.” “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.” United States v. Ollison, 555 F.3d 152, 166 (5th Cir. 2009) (citing
U.S. SENTENCING GUIDELINES MANUAL 3B1.3 cmt. n.1 (2006)).                   Vinalay
committed his offense while employed as a postal window clerk; the
Government argued that due to the lax auditing procedures employed by
Vinalay’s USPS superiors, Vinalay had been entrusted with the “professional
discretion” to audit himself.
      The district court found that the enhancement was appropriate,
reasoning that “the evidence in this case made it clear that Mr. Vinalay was a
very trusted employee.”         The enhancement increased Vinalay’s advisory
sentencing range from between zero and six months’ imprisonment to between
six and twelve months’ imprisonment. The court imposed a sentence of twenty-
four months’ imprisonment.          On appeal, Vinalay challenges both the
enhancement and the upward departure.
      All sentences are reviewed for reasonableness under an abuse-of-
discretion standard. See Gall v. United States, 552 U.S. 38, 51 (2007). In
reviewing a sentence, this court first determines whether the district court
committed any “significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range.”          Id.     We then consider
“substantive reasonableness . . . under an abuse-of-discretion standard.” Id.
      In determining whether to apply the position-of-trust enhancement, a
court must first “determine whether the defendant occupied a position of trust
at all” and then must “ascertain the extent to which the defendant used that
position to facilitate or conceal the offense.” Ollison, 555 F.3d at 165 (quoting
United States v. Reccko, 151 F.3d 29, 31 (1st Cir. 1998)). Application of the
position-of-trust enhancement “is a sophisticated factual determination
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                                  No. 15-41749
reviewed under the clearly erroneous standard.” Id. at 164–65 (quoting United
States v. Fisher, 7 F.3d 69, 70–71 (5th Cir. 1993)).
      The parties have cited no binding authority on the precise question of
whether a postal window clerk occupies a position of trust, and we have found
none. Nevertheless, an examination of our caselaw discussing the application
of U.S.S.G. § 3B1.3 leads us to the conclusion that the district court clearly
erred by applying the position of trust enhancement in this case. The district
court principally relied on lack of supervision to conclude that Vinalay was a
“trusted employee.” We rejected this “colloquial definition” of trust in Ollison,
observing that it would render “most if not all employees who stole from their
employers . . . subject to the enhancement because the employers ‘trusted’ that
their employees would not steal.” 555 F.3d at 166.
      Our caselaw also demonstrates that Vinalay’s lack of close supervision—
a fact relied on by the Government—is not dispositive. Lack of supervision is
a necessary, but not sufficient, basis for imposing the position of trust
enhancement. See id.; United States v. Brown, 7 F.3d 1155, 1161 (5th Cir.
1993) (“[L]ax supervision alone does not convert one’s job into a ‘position of
trust’ under § 3B1.3.” (quoting United States v. Helton, 953 F.2d 867, 870 (4th
Cir. 1992)). And trusting that an employee will carry out his ministerial duties
as required is not the same as endowing him with professional or managerial
discretion. See Ollison, 555 F.3d at 166 (“Opportunity and access do not equate
to authority, or to the kind of substantial discretionary judgment that is
ordinarily given considerable deference.” (quoting United States v. Edwards,
325 F.3d 1184, 1187 (10th Cir. 2003)) (internal quotation marks omitted)). Cf.
United States v. Smith, 203 F.3d 884, 893 (5th Cir. 2000) (“[G]enerally a bank
teller engaged in the activity of taking cash from the till and putting it in is not
utilizing a position of trust.”). Thus, while we do not hold that a postal window
clerk could never occupy a position of trust, there is nothing in this record that
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permits a conclusion that Vinalay’s position “involved the type of complex,
situation-specific decisionmaking that is given considerable deference
precisely because it cannot be dictated entirely by, or monitored against,
established protocol.” United States v. St. Junius, 739 F.3d 193, 209 (5th Cir.
2013). We therefore hold that the scope of Vinalay’s duties as a postal window
clerk clearly do not justify an enhancement under U.S.S.G. § 3B1.3.
      The Government argues that even if the enhancement was clearly
erroneous, the error was harmless because the district court chose to depart
from the advisory range. To show harmless error, the Government has the
burden of a proving “beyond a reasonable doubt that the district court would
have imposed the same sentence under the lower Guidelines range.” United
States v. Lopez-Urbina, 434 F.3d 750, 765 (5th Cir. 2005). “Although it may
well be that the same explanation the court gave for imposing a sentence
outside the miscalculated range could also support a sentence outside the
correctly calculated range,” the Government’s burden is “to convincingly
demonstrate that the court actually would have followed the very same
reasoning absent the error.” United States v. Ibarra-Luna, 628 F.3d 712, 717
(5th Cir. 2010). The Government has not shown beyond a reasonable doubt
that, regardless of the position-of-trust enhancement, the court would have
imposed a twenty-four-month sentence.
      For these reasons, we VACATE and REMAND to the district court for
resentencing. Vinalay’s unopposed motion to expedite his appeal is DENIED
as moot.




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