                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         MAR 23 1999
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk


UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                       No. 98-6178
v.                                                (W. Dist. of Oklahoma )
                                                   (D.C. No. 97-CR-208)
BOBBY O’NEAL NEGRI, JR.,

             Defendants-Appellant.




                          ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and MURPHY, Circuit Judges.




                               INTRODUCTION

      A federal grand jury handed down a three-count indictment charging Bobby

Negri with stealing approximately $2.6 million from a Loomis/Fargo Armored

Carriers (“Loomis”) armored car. In particular, the indictment alleged that Negri

conspired to steal the money and transport it in interstate commerce in violation


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
of 18 U.S.C. § 371; stole money belonging to the Oklahoma City, Oklahoma,

Federal Reserve Bank in violation of 18 U.S.C. § 2113(b); and transported the

stolen money in interstate commerce in violation of 18 U.S.C. § 2314.

      Negri entered a plea of guilty to all three counts of the indictment.

Pursuant to the sentencing calculations set out in the Presentence Report (“PSR”),

the district court sentenced Negri to a term of imprisonment of sixty months on

count one, sixty-three months on count two, and sixty-three months on count

three, all to run concurrently with one another. Negri appeals the sentence

imposed, contending the district court erred in the following particulars: (1)

increasing Negri’s base offense level by two points pursuant to United States

Sentencing Guideline (“U.S.S.G.”) § 2B1.1(b)(4) because Negri engaged in “more

than minimal planning”; (2) increasing Negri’s base offense level by four points

pursuant to U.S.S.G. § 2B1.1(b)(6)(B) because Negri derived more than

$1,000,000 and the theft “affected a financial institution”; and (3) adjusting

Negri’s base offense level upward by two points pursuant to U.S.S.G. § 3B1.3

because Negri abused a position of “private trust.” This court exercises

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 and affirms.




                                         -2-
                                 BACKGROUND

      The facts leading up to Negri’s prosecution, plea of guilty, and sentencing

are as follows. On June 25, 1997, Negri arrived for work at Loomis, where he

was employed as an armored car driver and guard. He was assigned that day to

guard a $2.9 million shipment of Federal Reserve notes destined for various banks

in Oklahoma. Usually, Loomis shipments were transported in an armored car

staffed by three employees. On the night of June 24 th, however, Negri spoke to

one of his co-workers and learned that he was calling in sick the next day.

Accordingly, Negri and co-worker Greg Stroud were alone in the armored car.

      En route to their deliveries, Negri and Stroud made an unscheduled but

routine stop for breakfast at a McDonald’s. Stroud went into the McDonald’s to

buy breakfast while Negri remained in the back of the armored car, supposedly to

guard the money. When Stroud returned a few minutes later, Negri and

approximately $2.6 million were missing. Negri’s revolver and a postcard with a

handwritten note containing the following language were found in the back of the

armored car: “Is Paris nice this time of year? OUI By[e] now.”

      Some four months after the theft, Negri and his accomplice Michael Lutz

were arrested in Ft. Lauderdale, Florida. As FBI agents questioned Negri and

Lutz, details of their plan began to unfold. During deliveries prior to the June

25 th theft, Negri reminded bank employees that they would need extra cash on


                                        -3-
hand for the July 4 th holiday weekend and told them to “order heavy.” Negri

undertook these actions for the purpose of ensuring there would be plenty of

money in the shipment he planned to steal. A few days prior to the theft, Negri

and Lutz drove to Tulsa and left Lutz’s truck at the airport. Negri and Lutz

planned to leave their vehicles at different airports in the hope of confusing the

police. Negri then rented a getaway van in Shawnee, where Lutz was maintaining

a hotel room so he could be closer to the route of the armored car.

      On the morning of the theft, Lutz drove Negri to work and parked Negri’s

truck at the Oklahoma City airport. Lutz then took a cab to pick up the rented

getaway van, which was parked near the Loomis office. As the armored car left

the Loomis office, Lutz followed. When the armored car stopped at the

McDonald’s, Lutz pulled into the parking lot. When Stroud went inside, Negri

and Lutz quickly unloaded the bags of money into the van and fled the scene.

      While Lutz drove the getaway van, Negri changed out of his guard uniform

into street clothes he had previously placed in the van. The pair drove to

Shawnee where they purchased another van and dumped the rented getaway van at

an apartment complex. They then drove to Shreveport, Louisiana, and eventually

made their way to Florida, spending money freely and changing vehicles every so

often. Negri and Lutz lived on the stolen money in Florida for the next four




                                         -4-
months, spending it on luxurious items and moving from one resort hotel to

another.



                                     ANALYSIS

      1. U.S.S.G. § 2B1.1(b)(4)

      Sentencing Guideline § 2B1.1(b)(4) mandates a two-level upward

adjustment in a defendant’s base offense level for larceny, embezzlement, and

other forms of theft if the offense “involved more than minimal planning.” U.S.

Sentencing Guidelines Manual § 2B1.1(b)(4) [hereinafter U.S.S.G.]. Under the

Guidelines, “‘More than minimal planning’ means more planning than is typical

for commission of the offense in a simple form. “More than minimal planning”

also exists if significant affirmative steps were taken to conceal the offense . . . .

U.S.S.G. § 1B1.1 appl’n note 1(f). The district court’s conclusion that the

offenses committed by Negri involved more than minimal planning is a factual

determination reviewed by this court under the highly deferential clear-error

standard. See United States v. Orr , 68 F.3d 1247, 1253 (10    th
                                                                    Cir. 1995).

      Negri argued before the district court that the § 2B1.1(b)(4) enhancement

was inappropriate because of the failure of the “overall scheme,” particularly the

bumbling manner in which Negri and Lutz traveled from Oklahoma to Florida,




                                          -5-
and because the measuring offense was the theft of a large sum of money from an

armored car. The district court rejected these arguments, finding as follows:

      There was more than minimal planning here. The way in which this
      issue is stated in the guidelines is important. We’re not making an
      inquiry as to whether there was extensive planning, we’re not
      making an inquiry whether there was successful planning, the
      adjustment is applicable if you can determine what would be kind of
      a rock-bottom minimum, and if the government shows that
      something was done beyond that minimum.

      In support of its finding that the offense had been accompanied by more

than minimal planning, the district court made the following subsidiary factual

findings. First, the district court noted that after Negri decided to commit the

theft, he concluded that he needed the assistance of another. Accordingly, Negri

recruited Lutz into the conspiracy. Second, the district court found that the

planning for the offense extended over a period of several days. In particular,

Lutz and Negri rented a van, which they intended to use as a getaway vehicle,

several days before the theft. In addition, the conspirators purchased a

footlocker, in which they intended to store the loot, and placed it in the rented

van. Negri also stored some street clothes in the rental van so that he could

immediately change out of his Loomis uniform upon completion of the theft.

Third, the planning included a series of actions undertaken to cover the

conspirators’ tracks. In particular, Negri and Lutz formulated a plan to leave the

impression that they had split up and fled the country immediately after the theft.


                                         -6-
Several days before the theft, Lutz abandoned his vehicle at the airport in Tulsa.

Furthermore, on the morning of the crime, Lutz drove Negri to work in Negri’s

vehicle, drove Negri’s vehicle to the airport in Oklahoma City, and then took a

cab back to a spot near the Loomis company to pick up the rented getaway van.

In addition, upon completion of the theft, Negri left a note in the armored car

leaving the impression he had gone to France. Fourth, and finally, Negri utilized

inside information obtained over several days prior to the theft to maximize the

chances of success and the amount of money which was likely to be on hand in

the armored car. In particular, in the days before the theft, Negri told his

contacts at the banks to order heavy for the Fourth of July weekend, thus

ensuring that there would be plenty of money in the armored car. Negri and Lutz

committed the theft on a day when one of Negri’s co-workers had called in sick,

so that there were only two, rather than the normal three, guards in the armored




                                         -7-
car. 1 Furthermore, Negri stationed Lutz in the rental car on the armored vehicle’s

route in order to facilitate the theft.

      In light of the district court’s detailed subsidiary factual findings, the

district court did not commit clear error in determining that the offenses at issue

were accompanied by more than minimal planning. In particular, we agree that

the conspirators’ use of inside information and extensive planning to avoid

detection after the theft is more than “is typical for commission of the offense in

a simple form.” U.S.S.G. § 1B1.1 appl’n note 1(f);    cf. United States v.

Dougherty , Nos. 95-6110, -6113, -6114, 1995 WL 539524, at *1 (10       th
                                                                             Cir. Sept.

11, 1995) (unpublished disposition) (holding that use of gloves during crimes

“indicates a measure of planning in the commission of the burglaries and an

affirmative step to conceal the offenses”). In addition, although not specifically

relied on by the district court, Negri’s exhortation to Loomis customers to “order

heavy” for the Fourth of July weekend and commission of the theft on the



      1
       During the sentencing hearing, the United States presented testimony that
Negri had manipulated the third guard over several days prior to the theft to
ensure that the third guard called in sick on the day of the planned theft. In
response to this testimony, the district court made the following findings:
      The Court . . . is not prepared to find that the defendant actually
      manipulated the third guard not to come to work that day, but the
      success of the theft depended upon the defendant’s knowledge of
      who was going to be there. The knowledge came to him because of
      his status as custodian. In putting it all together, it is not a
      spontaneous spur of the moment matter.

                                          -8-
particular date upon which there might be more money than ususal in the armored

car supports the application of the enhancement.   See U.S.S.G. § 1B1.1 appl’

note 1(f) (providing that “obtaining information on delivery dates so that an

especially valuable item [can] be obtained . . . constitute[s] more than minimal

planning”).   2




      2. U.S.S.G. § 2B1.1(b)(6)(B)

                  a. Standard of Review




      2
        Negri summarily asserts that a § 2B1.1(b)(4) enhancement is never proper
unless the district court makes specific findings on the record as to what acts
would be necessary in order to commit the offense in question in its most simple
form and what additional acts defendant undertook in committing the offense.
This argument fails for any number of reasons. In particular, Negri did not raise
this argument before the district court. Instead, he simply asserted, without
disputing the district court’s factual findings, that his commission of the offense
was too bumbling and haphazard to qualify as accompanied by even adequate
planning. See The Post Office v. Portec, Inc. , 913 F.2d 802, 806 (10 th Cir. 1990)
(holding that failure to raise an issue in the district court precludes any review
except for the most manifest error). More importantly, however, Negri has not
cited, and this court has not found, a single authority standing for the proposition
that the United States must prove, and the court must find with specificity, what
hypothetical acts are necessary, at a bare minimum, to commit the offenses at
issue. This court rejects Negri’s rigid proposed framework for analyzing
§ 2B1.1(b)(4) enhancements and notes, instead, that in support of the
enhancement the United States must simply prove by a preponderance of the
evidence that the planning present in a particular case was more than is “typical
for the commission of the offense in a simple form.” U.S.S.G. § 1B1.1 appl’n
note 1(f). The district court’s decision that the United States met its burden in
this case is not clearly erroneous.

                                           -9-
       Sentencing Guideline § 2B1.1(b)(6)(B) provides for a four-point increase

in a defendant’s base offense level if the offense of conviction “affected a

financial institution and the defendant derived more than $1,000,000 in gross

receipts from the offense.” U.S.S.G. § 2B1.1(b)(6)(B). Negri contends the

district court erred in applying the § 2B1.1(b)(6)(B) for the following two

reasons: (1) the “affected a financial institution” language of the guideline is

ambiguous, rendering § 2B1.1(b)(6)(B) unconstitutionally vague; and (2) §

2B1.1(b)(6)(B) does not apply because he stole the money from an armored car

rather than one of the financial institutions listed in the commentary to the

Sentencing Guidelines.          See id. appl’n note 9.

       “‘[T]he district court’s application of the Sentencing Guidelines to the

facts of a particular case is entitled to due deference and its factual findings will

not be reversed unless clearly erroneous.’”             United States v. Flores-Flores   , 5 F.3d

1365, 1367 (10      th
                         Cir. 1993) (quoting   United States v. Urbanek , 930 F.2d 1512,

1514 (10   th
                Cir. 1991)). This court reviews the district court’s legal interpretation

of the Guidelines de novo . Id. Negri’s vagueness challenge to § 2B1.1(b)(4)

poses an ultimate question of constitutional law, to which this court applies a              de

novo standard of review.          See United States v. Wynne , 993 F.2d 760, 764 (10        th



Cir. 1993).

                 b. Applicability of § 2B1.1(b)(6)(B)


                                                 -10-
       Negri’s challenge to the applicability of § 2B1.1(b)(6)(B) is, at the same

time, both narrow and cursory. After setting out the statutory definition of

“financial institution” from 18 U.S.C. § 20 and the guideline definition of the

term from the commentary to § 2B1.1, he simply notes as follows:

              Neither the statute nor the Sentencing Guideline defining
       “financial institution” include an armored car company within the
       definition. Thus, counsel for Mr. Negri contends the theft from the
       Loomis/Fargo armored car should not be considered as having
       “affected a financial institution” and the four level enhancement was
       an improper application of the guideline.

       This court finds Negri’s argument unconvincing. First, nothing in

§ 2B1.1(b)(6)(B) limits its application to thefts of money directly from a bank

vault. Instead, the guideline speaks in terms of thefts “affect[ing]” a financial

institution, a term with the potential for broad application.        See United States v.

Johnson , 130 F.3d 1352, 1354 (9      th
                                           Cir. 1997) (discussing potential breadth of

word “affect”). Nevertheless, the term’s potential for broad applicability exists

only within a very narrow category of circumstances: the defendant must have

committed a theft and “derived more than $1,000,000 in gross receipts from the

offense.” U.S.S.G. § 2B1.1(b)(6)(B). The Ninth Circuit has noted that a broad

reading of “affected” furthers Congress’ purpose: enhancing penalties for crimes

affecting financial institutions even if the effect on the institution is attenuated.       3




       Actually, the court in
       3
                                 Johnson was analyzing U.S.S.G. § 2F1.1(b)(6)(B).
See United States v. Johnson     , 130 F.3d 1352, 1354 (9 th Cir. 1997). Nevertheless,

                                               -11-
Id. In this vein, the Fifth Circuit has applied U.S.S.G. § 2F1.1(b)(6), an

identically worded parallel of § 2B1.1(b)(6)(B), in a case where the crime’s

effect on the financial institution was far more attenuated than in this case.            See

United States v. Schinnell , 80 F.3d 1064, 1069-70 (5       th
                                                                 Cir. 1996) (holding that

wire fraud committed against business by its own employee affected a financial

institution because business had contractual right to sue its bank to recover lost

funds).

       Ultimately, this court need not decide how broadly to read the term “affect’

in § 2B1.1(b)(6)(B) because the facts of this case fall well within the heartland of

the term. Count two of the indictment charged that Negri “did knowingly take

and carry away with intent to steal approximately $2,632,000 in money belonging

to and in the care, custody, control, management, and possession of the Federal

Reserve Bank, Oklahoma City, Oklahoma, a banking institution organized and

operating under the laws of the United States.” Negri pleaded guilty to this

count. That the money was stolen from a common carrier while in transit, rather

than directly from a bank, is of no moment to the applicability of §

2B1.1(b)(6)(B).    Cf. United States v. Millar     , 79 F.3d 338, 345-46 (2      d
                                                                                     Cir. 1996)

(upholding application of § 2B1.1(b)(6)(B) to theft of funds from armored car).




the language of and commentary to the two provisions are identical.            Compare
U.S.S.G. § 2B1.1(b)(6)(B) with U.S.S.G. § 2F1.1(b)(6)(B).

                                            -12-
Furthermore, the district court specifically found that the customer banks’

balance sheets and administrative processes were negatively affected by the theft.

Accordingly, the district court did not err in enhancing Negri’s base offense

level on the ground that his crime “affected a financial institution.” U.S.S.G. §

2B1.1(b)(6)(B).

                   c. Vagueness Challenge to § 2B1.1(b)(6)(B)

      Negri contends the district court should have refused to apply §

2B1.1(b)(6)(B) because it is unconstitutionally vague. This court begins by

noting a serious doubt as to whether a vagueness challenge can be properly

lodged against the Sentencing Guidelines.           See United States v. Wivell , 893 F.2d

156, 160 (8   th
                   Cir. 1990) (“Because there is no constitutional right to sentencing

guidelines–or, more generally, to a less discretionary application of sentences

than that permitted prior to the Guidelines–the limitations the Guidelines place

on a judge’s discretion cannot violate a defendant’s right to due process by

reason of being vague.”);       United States v. Brierton , 165 F.3d 1133, 1139 (7     th
                                                                                            Cir.

1999) (citing Wivell for proposition that Sentencing Guidelines “are not

susceptible to attack under the vagueness doctrine”);         United States v. Salas , No.

93-5897, 1994 WL 24982, at *1-*2 (6         th
                                                 Cir. Jan. 27, 1994) (unpublished

disposition) (same).       But see Johnson , 130 F.3d at 1354 (noting     Wivell but

undertaking vagueness analysis of Sentencing Guidelines on basis of binding


                                             -13-
Ninth Circuit precedent). Nevertheless, because neither party has briefed this

issue and because § 2B1.1(b)(6)(B) is not ambiguous or vague in any sense, we

need not resolve whether the Sentencing Guidelines can ever be vague in the

constitutional sense.

       Because § 2B1.1(b)(6)(B) does not implicate First Amendment freedoms,

Negri’s challenge to the provision cannot be based on an assertion the guideline

is vague on its face or in its hypothetical applications.        See United States v.

Walker , 137 F.3d 1217, 1219 (10      th
                                           Cir. 1998); Johnson , 130 F.3d at 1354.

Instead, Negri must show that the guideline is vague as applied to the facts of his

particular case.   See Chapman v. United States           , 500 U.S. 453, 467 (1991);

Walker , 137 F.3d at 1219. Accordingly, the ultimate test is whether the provision

at issue fails to give a person of ordinary intelligence fair warning that it applies

to the conduct contemplated.       See Walker , 137 F.3d at 1219 (citing          Kolender v.

Lawson , 461 U.S. 352, 357 (1983)).

       Although Negri recognizes that the only court to undertake a vagueness

analysis of the affects-a-financial-institution language rejected the notion that the

term is vague, see Johnson , 130 F.3d at 1354,        4
                                                          he argues his case is

distinguishable because he thieved the money from an armored car, rather than



       As noted above, the Johnson court was actually analyzing U.S.S.G. §
       4

2F1.1(b)(6)(B). Nevertheless, § 2B1.1(b)(6)(B) is identical to § 2F1.1(b)(6)(B).
See supra note 3.

                                               -14-
directly from a bank. We disagree. As noted above, this court rejects Negri’s

claim that § 2B1.1(b)(6)(B) only applies to thefts directly from a bank vault.

Furthermore, this court has no difficulty concluding § 2B1.1(b)(6)(B) gives fair

warning to a person of ordinary intelligence that it would apply given the facts of

this case: the theft from an armored car of $2.6 million that is being transported

from the care, custody, and control of a Federal Reserve Bank to individual

customer banks of the Federal Reserve.



      3. U.S.S.G. § 3B1.3

      Sentencing Guideline § 3B1.3 provides for a two-point increase in a

defendant’s base offense level if the following two conditions are met: (1) “the

defendant abused a position of public or private trust”; and (2) that abuse

“significantly facilitated the commission or concealment of the offense.”

U.S.S.G. § 3B1.3. On appeal, Negri concedes that his position as a Loomis

security guard facilitated the commission of the theft, but asserts that he did not

occupy a position of private trust. In defining the term “private trust,” the

application notes provide as follows:

      [Private trust] “refers to a position . . . characterized by professional
      or managerial discretion ( i.e. , substantial discretionary judgment that
      is ordinarily given considerable deference). Persons holding such
      positions ordinarily are subject to significantly less supervision than
      employees whose responsibilities are primarily non-discretionary in
      nature. . . . This adjustment would not apply in the case of an

                                         -15-
       embezzlement or theft by an ordinary bank teller or hotel clerk
       because such positions are not characterized by the above-described
       factors.

U.S.S.G. § 3B1.3 appl’n note 1. “This court reviews the question of whether an

individual occupied a position of trust in a particular transaction for clear error.”

United States v. Trammell , 133 F.3d 1343, 1355 (10       th
                                                               Cir. 1998).

       This court has noted the following nonexclusive list of factors that courts

have considered in determining whether a particular position constitutes a

position of trust:

       the extent to which the position provides the freedom to commit a
       difficult-to-detect wrong, and whether an abuse could be simply or
       readily noticed; defendant’s duties as compared to those of other
       employees; defendant’s level of specialized knowledge; defendant’s
       level of authority in the position; and the level of public trust.

United States v. Williams , 966 F.2d 555, 557 (10    th
                                                          Cir. 1992). Applying these

factors, we conclude the district court did not clearly err in finding that Negri

occupied a position of trust.

       Negri’s supervisor testified that Negri was in charge of the armored car on

the date of the theft. Although Negri’s supervisory powers that day were not

extensive, Negri’s supervisor testified that Negri was in “complete control of the

funds” and empowered to alter the route upon the happening of certain

contingencies. This level of authority supports the district court’s conclusion

that Negri occupied a position of private trust.    Id. The testimony of Negri’s


                                            -16-
supervisor that Negri’s pre-employment screening and post-employment training

were extensive further support the enhancement.          See id. In addition, because

Negri’s position involved traveling with the armored car around the state of

Oklahoma, his activities, unlike the activities of a simple bank teller, were hidden

from the view of his direct supervisors.        See United States v. Hill , 915 F.2d 502,

506-07 (9   th
                 Cir. 1990) (affirming § 3B1.3 adjustment where truck driver stole

household items entrusted to his care during family’s cross-country move in part

because his “activities as a long-distance truck driver, almost by definition, were

difficult, if not impossible, to observe during his cross-country trek”). Finally,

and perhaps most importantly, in light of the fact that almost $3 million was in

the armored car, the level of private trust between Negri and Loomis was

enormous. See United States v. Banks , No. 98-1040, 1998 WL 870363, at *2-*3

(7 th Cir. Dec. 14, 1998) (affirming § 3B1.3 adjustment for theft by armored car

guard based exclusively on large sum of money in armored car);            see also United

States v. Bennett , 161 F.3d 171, 195 (3    d
                                                Cir. 1998) (noting that where there has

been reliance on the integrity of person occupying the position, the person likely

occupies a position of trust). When these factors are viewed in combination, it

becomes clear that the district court correctly determined that Negri occupied a

position of trust and properly enhanced his sentence pursuant to §3B1.3.




                                            -17-
                                CONCLUSION

     For all of the reasons set out above, the sentence imposed by the district

court is hereby AFFIRMED .



                                     ENTERED FOR THE COURT



                                     Michael R. Murphy
                                     Circuit Judge




                                      -18-
