          United States Court of Appeals
                     For the First Circuit


No. 11-1974

                         UNITED STATES,

                            Appellee,

                               v.

                          DAWN ZEHRUNG,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

        [Hon. John A. Woodcock, Jr., U.S. District Judge]


                             Before

                  Howard, Stahl, and Thompson,
                         Circuit Judges.


     Alexandra Deal, with whom Stern, Shapiro, Weissberg & Garin,
LLP, was on brief, for appellant.
     Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.


                         April 18, 2013
                 THOMPSON, Circuit Judge.     Dawn Zehrung appeals her 37-

month sentence after pleading guilty to violating the federal

healthcare-fraud statute, 18 U.S.C. § 1347.            She raises one issue:

Should the district judge have enhanced her sentence under U.S.S.G.

§ 3B1.3 for abusing a position of trust?1              In what follows, we

explain why a remand for supplemental fact finding is required.

                 Because there was no trial, we draw the facts primarily

from       the   presentence   report   and   from   the    sentencing-hearing

transcript and submissions.         See, e.g., United States v. Anonymous

Defendant, 629 F.3d 68, 71 (1st Cir. 2010).                Zehrung worked in a

doctor's office in Maine, first as a billing clerk and then as a

billing manager (these are descriptive labels rather than formal

titles, apparently).           Her former boss, Robert Grover, D.O., and

former colleague, Renee Harding, R.N., sketched out the office's

billing procedure this way:          After a patient's visit, either Dr.

Grover or a nurse would take a document called a "super bill" and

circle an alphanumeric code to indicate the service provided.

Zehrung would get the super bill, enter the code into a software

program, and, with a click of the button, generate a bill that she

would then send to payers like MaineCare, Medicare, and Anthem.




       1
       The judge sentenced her in August 2011, so we, like the
judge, use the 2010 version of the sentencing guidelines.    See
United States v. Rodriguez, 630 F.3d 39, 42 (1st Cir. 2010)
(explaining which version of the guidelines customarily controls
and why).

                                        -2-
Entering the codes was pretty easy.           "[I]t's a fairly simple

system," Nurse Harding said.

           When Zehrung first came on board, an office manager

watched what she did, comparing what she had inputted into the

system with what was on the super bill, for example.           Eventually,

though, the office manager left and was not replaced, so Zehrung

got to run the billing process on her own.               Not only that,

according to Dr. Grover, she got unsupervised control over the

practice's checkbook and accounts payable, too.            She also had

access to the office's "cashbox," which contained the copayments

from   patients.   "[S]he   was   the   financial   person,"   Dr.   Grover

stressed, which freed him up to care for his 14,000 patients.

           Everything seemed to be going swimmingly with Zehrung at

the financial helm.    Monthly revenues shot up a whopping 33%.          An

obviously ecstatic Dr. Grover asked her what was going on, and she

said she had been "going through the old accounts, working the

accounts." For a while, that explanation worked, though Dr. Grover

also knew that part of the reason why revenues had jumped was

because his office had started doing some aesthetics procedures,

like laser hair removal.

           Of course appearances can be deceiving, and that was the

case here. You see, Zehrung had been carrying out an "upcode" scam

on the sly – i.e., bilking money out of MaineCare and the other

payers by changing the codes to overstate what services had been


                                    -3-
provided and thus fetch higher payments. And she profited from the

con, because she got paid bonuses based on the practice's increased

revenues.         Bad enough, but she also had been submitting bills for

services not rendered and destroying super bills to cover her

tracks.          Also, she ended up with other bonuses that were not

"authorize[d]."2

                 Zehrung's crooked scheme began to unravel when a nurse

spotted the billing "problem" and went straight to Dr. Grover.

"Dawn, how do you explain this?" he asked Zehrung.              Hoping to talk

her way out of a trip to the police station, Zehrung floated two

theories:         first, that a computer glitch had caused the upcoding;

and second, that she had been billing "what should have been done"

– whatever that means.            Dr. Grover bought none of it, and all of

this       led   to   Zehrung's   arrest    and   guilty-plea   conviction   for

healthcare fraud.

                 Which brings us to sentencing. There the parties sparred

over whether Zehrung should get a § 3B1.3 adjustment – one that is

appropriate if she used a position of trust in such a way that made

the crime easier to carry out or cover up.                 They did, however,

agree that the government had the burden of proving the enhancement

by the preponderance of the evidence, see United States v. Sicher,

576 F.3d 64, 70 (1st Cir. 2009), which is a more-likely-than-not


       2
       Just how she got these bonuses – whether she paid them to
herself with checks from the practice's account, for example – is
unclear on this record.

                                           -4-
standard, see United States v. Morgan, 384 F.3d 1, 5 (1st Cir.

2004).

            Consistent with this guideline, we ask sentencing judges

faced with this type of issue to follow a two-step process.                  First

they must see if the defendant held a position of trust.                 And, if

the answer is yes, then (and only then) they must see if the

defendant used that position in some significant way to facilitate

or conceal the offense.           See United States v. Parrilla Román, 485

F.3d 185, 191 (1st Cir. 2007) (emphasizing that "[t]he two steps

are separate" and that "care must be taken not to conflate them").

            Trust positions are ones of "professional or managerial

discretion,"    a    phrase       that    means    "substantial    discretionary

judgment    that     is    ordinarily      given    considerable      deference."

U.S.S.G. § 3B1.3 cmt. n.1.          Not surprisingly, then, people holding

trust    positions    are       usually    "subject    to    significantly   less

supervision" than those holding positions with "non-discretionary"

responsibilities.         Id.   Examples of trust-position abusers include

attorneys serving as guardians who fleece their clients, bank

executives who perpetrate fraudulent-loan schemes, and doctors who

sexually abuse patients during exams.               Id.     But not ordinary bank

tellers who embezzle – sure, they have access to all kinds of

valuable things, yet nothing they typically do (adding and taking

cash from a till, for example) involves the type of complicated,




                                          -5-
case-specific judgment calls that are given special deference, with

little (if any) supervision.       See id.

           Figuring out where a particular position falls on this

spectrum   can    be   tricky,   and    the   cases   present   an   array   of

circumstances.3    Turning back to our case, the distinguished judge

found the evidence "more than sufficient" to support the abuse-of-



     3
       Compare Sicher, 576 F.3d at 65, 72-73 (sole employee of a
doctor's charitable organization stole money by forging checks: in
addition to her authority over "incoming donations, the payments of
grants to researchers . . ., and maintenance of the accounting
logs," her autonomy over hosting and facilitating fundraisers made
her "the de facto manager and director" of the charity and thus her
position one of trust), United States v. Chanthaseng, 274 F.3d 586,
587-90 (1st Cir. 2001) (mid-level bank manager stole from the bank
through a scheme of making false "rapid deposit tickets" for
fictional large cash deposits: her supervisor had given her the
authority (against bank policy) to countersign her own deposit
tickets and did not review her tickets, which basically made "her
the branch's sole decision-maker for those transactions" – meaning
that her employment with the bank amounted to a position of trust),
and United States v. O'Connell, 252 F.3d 524, 526, 528-29 (1st Cir.
2001) (office manager stole company money by forging the name of
one of the owners on checks: access to the company's checkbook and
accounting software did not suggest that he had substantial
discretionary authority within the meaning of § 3B1.3 – but his
authority to transfer funds from the company's line of credit to
its checking account and his close personal relationship with the
owners certainly did), with Parrilla Román, 485 F.3d at 188, 190-92
(airline baggage handlers conspired with others to smuggle
contraband: even though they held security clearances giving them
"ready access to restricted areas of the airport," because they had
no discretion and, moreover, performed the types "of tasks that
almost invariably require oversight," their positions fell outside
the scope of the § 3B1.3 enhancement), and United States v. Reccko,
151 F.3d 29, 30, 32-33 (1st Cir. 1998) (switchboard operator at
police headquarters tipped off a suspect about an upcoming raid:
even though her job gave her access to important information, it
"involved no significant discretionary authority" and so was "on a
par with the bank teller" post that we know is a "non-trust
position[]").

                                       -6-
trust enhancement.      "As I understand it," the judge said, Dr.

Grover picked codes "on a super bill, and [Zehrung], when she

received those codes, deliberately and consciously upcoded them to

bill for services" that no one had "actually performed."      She did

the billing with "no supervision," the judge added – "[t]here was

no direct oversight, no review," he repeated again – and "she

assumed complete financial control within the office."       And, the

judge suggested, her position made it significantly easier for her

to commit the crime charged.

          Our standard of review is familiar.      We assess a judge's

guidelines interpretation de novo.      E.g., United States v. Cannon,

589 F.3d 514, 516-17 (1st Cir. 2009).      We check his fact findings

for clear error.   Id. at 517.   And we review his application of the

guidelines to a particular case on a "sliding scale," with the

intensity increasing the "more law-oriented" – as opposed to "fact-

driven" – the judge's conclusion is.      See Sicher, 576 F.3d at 70 &

n.6; accord United States v. Gerhard, 615 F.3d 7, 32 (1st Cir.

2010).   The parties bicker about where on the scale our judge's

decision falls.    But we need not referee their dispute, because

regardless of who is right, we are not quite sure what to make of

the judge's decision.

          For starters, the judge did not say what discretionary

authority Dr. Grover had entrusted Zehrung with.      True, the judge

did mention her role in the billing process.       But the discretion


                                  -7-
evidence there points in a couple of directions.                                  The doctor's

testimony         about picking         codes      for   Zehrung      to    enter       into the

computer seemingly suggests that her position was more like a

typical bank teller, who has access needed to commit the crime

charged       but    has     little     (if     any)     professional        or        managerial

discretion in performing her tasks.                      Cf. Parrilla Román, 485 F.3d

at 191 (stressing that "'[o]pportunity and access' do not equate

with substantial discretionary judgment" (quoting United States v.

Edwards,       325    F.3d      1184,    1187      (10th     Cir.    2003))).            Yet   the

presentence          report     whispers      hints      that      Zehrung       may    have   had

discretion to change codes – that is one way (though not the only

way) to interpret her comment to Dr. Grover, made after he had

heard about the billing mess, that she was billing for "what should

have       been    done"    –   which     might       put    her    in     the    category      of

discretionary decisionmakers covered by § 3B1.3.                             On this we are

left to speculate, however.

                  The same is true about the judge's "she assumed complete

financial control within the office" statement. Dr. Grover did say

that       Zehrung    had     "control"       of    "the    checkbook"       and        "accounts

payable."          But he did not elaborate.                So was the judge inferring

that the doctor had charged her with exercising her own judgment

over these areas4 (which might suggest she held a trust position)?


       4
       And perhaps over accounts receivable – recall how she
explained the uptick in revenues by saying that she had been
"working" "old accounts."

                                                -8-
And if yes, on what did the judge base this inference?   If only the

presentence report could straighten this all out.        See Fed. R.

Crim. P. 32(i)(3)(A) (noting that judges at sentencing "may accept

any undisputed portion of the presentence report as a finding of

fact").   Alas, the report is no help, because it based its

enhancement recommendation exclusively on her "coding and billing"

duties.

          Do not get us wrong – we know that sentencing judges need

not explain their reasoning in exquisite detail, especially when

the reasons are "evident from the record."        United States v.

Stella, 591 F.3d 23, 28 (1st Cir. 2009) (citing, among other cases,

Sicher, 576 F.3d at 71).   Obviously, they must say in "open court"

why they picked a "particular sentence," 18 U.S.C. § 3553(c),

though they need not "be precise to the point of pedantry," United

States v. Fernández-Cabrera, 625 F.3d 48, 53 (1st Cir. 2010).    And

sure, they "must – for any disputed portion of the presentence

report or other controverted matter – rule on the dispute," Fed. R.

Crim. P. 32(i)(3)(B), though "we have found that [they] implicitly

resolved the facts when [their] statements and the sentence imposed

showed that the facts were decided in a particular way," United

States v. Van, 87 F.3d 1, 3 (1st Cir. 1996).   But – and it is a big

"but" – in the end we must be able to figure out what they "found

and the basis for the findings to the extent necessary to permit

effective appellate review."   Id. (emphasis added); see also Rita


                                -9-
v. United States, 551 U.S. 338, 358 (2007) (stressing, among other

things,   that   "[b]y   articulating    reasons,   even   if    brief,    the

sentencing judge . . . assures reviewing courts (and the public)

that the sentencing process is a reasoned process").              And that,

unfortunately, we cannot do here, given how an abuse-of-trust

enhancement is not inevitable on this record.         Needing more help,

we see no choice but to vacate Zehrung's sentence and remand to the

same judge   for   further   findings    about   whether   she    should    be

punished for abusing a position of trust. See, e.g., United States

v. Montero-Montero, 370 F.3d 121, 123-24 (1st Cir. 2004); United

States v. Medina, 167 F.3d 77, 80-81 (1st Cir. 1999); Van, 87 F.3d

at 3-4.

           Sentence vacated and case remanded with instructions.




                                  -10-
