In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1403

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

THOMAS W. BELWOOD,

Defendant-Appellant.



Appeal from the United States District Court
for the Southern District of Illinois.
No. 99 CR 30182--William D. Stiehl, Judge.


Argued June 7, 2000--Decided July 25, 2000



  Before POSNER, Chief Judge, COFFEY and RIPPLE,
Circuit Judges.

  COFFEY, Circuit Judge. On August 20, 1999, a
federal grand jury sitting in the Southern
District of Illinois returned a three-count
indictment charging Thomas Belwood with
conspiracy to distribute and possession with
intent to distribute marijuana (Count 1), in
violation of 21 U.S.C. sec.sec. 841(a)(1) & 846,
and possession with intent to distribute
marijuana (Count 3), in violation of 21 U.S.C.
sec. 841(a)(1)./1 On October 25, 1999, Belwood
pled guilty to Counts one and three of the
indictment./2 At the sentencing hearing, the
trial judge concluded that Belwood, a Bureau of
Prisons employee, had abused a position of trust
within the meaning of U.S.S.G. sec. 3B1.3,/3 and
sentenced him to 10 months’ imprisonment on both
counts, each of his sentences to run concurrent
with each other, a $2,000 total fine, a $200
special assessment, and 2 years’ supervised
release. On appeal, Belwood challenges the trial
court’s determination that he abused a position
of trust under the guidelines. We affirm.

I.   BACKGROUND

  In October of 1998, the Federal Bureau of
Investigation ("FBI") spearheaded a joint
investigation with other federal agencies that
eventually uncovered the existence of a drug
conspiracy inside the Federal Correctional
Institute in Greenville, Illinois. The probe
began when a Greenville inmate serving as a
confidential informant revealed that drugs were
being smuggled into the prison by a staff member.
Subsequent investigation revealed Belwood was the
staff member involved in the distribution of
marijuana inside the prison.

  Belwood was employed by the Bureau of Prisons
as a prison factory foreman, a position where he
supervised inmates in the prison’s internal job
training program./4 As an employee of the
Department of Justice, he took an oath of office;
furthermore, he was authorized to arrest persons
on Bureau of Prisons premises for a number of
offenses, including (ironically) possession of
contraband. See 18 U.S.C. sec. 3050(2). Pursuant
to this authorization and as part of his job
duties, Belwood searched inmates coming and going
to the factory.

  Unlike the prisoners he was charged with
supervising, Belwood was never searched when
entering the prison. Furthermore, Belwood was not
subject to the prison’s drug detection program
that required visitors to pass through an ION
Spectometry drug detection device before entering
the prison./5 Belwood abused this freedom from
search by obtaining marijuana outside the
facility and passing it inside the prison walls
to an inmate, Kevin Hall, who later distributed
the drugs to other inmates.

  On January 28, 1999, a government informant was
fitted with a recording device, and the
government recorded the informant passing 107.3
grams of marijuana to Belwood in a restaurant
parking lot. Following his arrest, Belwood
confessed his role in the drug smuggling
operation. Belwood subsequently pled guilty, and
the trial judge ordered that a Presentence
Investigation Report ("PSR") be prepared.

  The PSR recommended that Belwood’s offense level
be increased by two levels because he had abused
a position of trust under U.S.S.G. sec. 3B1.3.
Belwood objected to the abuse of trust
adjustment, claiming that his position with the
prison was not a position of trust and that his
position did not facilitate the commission of the
offense or aid in its concealment./6 In
addition, Belwood argued that the upward
adjustment was improper because there was no
identifiable victim of his criminal conduct.

  The judge rejected Belwood’s arguments and
stated:

He was a prison employee of a Federal prison, and
which his duties involved not only his work as a
foreman in the prison industry, but that also
involved his dealings with the inmates in that he
was to prevent inmates from violating any of the
rules, including the introduction of contraband
into the institution. The trust, [sic] he
accepted his position of trust by taking an oath.
That oath provided that he faithfully discharge
the duties of his office. There is no question in
my mind but that his actions contributed directly
to the commission of this crime.

  The drugs were introduced into the institution
solely through him and his position. . . .
Without Mr. Belwood’s participation, this
conspiracy would not have worked. . . .
[Furthermore,] I do not believe that it is
necessary for the imposition of this 2 level
increase under guideline 3B1.3 that a single or
several victims be identified as such.

Belwood appeals the sentencing judge’s decision
to impose the two-level increase under section
3B1.3.

II.    ISSUES

  On appeal, Belwood concedes that his position
at the prison was a position of trust; he argues
that the judge was in error when he increased his
base offense level under section 3B1.3 because
his position with the prison did not facilitate
the smuggling of drugs into the prison./7

III.    ANALYSIS

  We review the district court’s determination
that the defendant abused his position for clear
error. See United States v. Sierra, 188 F.3d 798,
802 (7th Cir. 1999); United States v. Bhagavan,
116 F.3d 189, 192-93 (7th Cir. 1997). As mentioned
previously, courts apply a two-part test prior to
imposing an increased penalty under section
3B1.3: 1) whether the defendant occupied a
position of trust; and 2) whether his abuse of
trust significantly facilitated the crime. See
Sierra, 188 F.3d at 802. Because Belwood concedes
that his position with the prison was a position
of public trust, we are left only with the
question of whether his position significantly
facilitated his crime.

  As we stated in Sierra, 188 F.3d at 802:

A crime is significantly facilitated by a
position of trust if the position makes it more
difficult to detect the offense or the
defendant’s responsibility for the crime.
U.S.S.G. sec. 3B1.3 App. n.1. Put another way, if
the defendant’s position made it substantially
easier to commit or conceal the crime,
significant facilitation occurred. Stewart, 33
F.3d at 768.

  In this case, there can be no doubt that
Belwood’s position on the prison staff made it
substantially easier to smuggle marijuana into
the prison. Because of his position, neither
Belwood nor his belongings were searched when he
entered the prison. We are of the opinion that it
is beyond question that freedom from such
searches aided him in smuggling marijuana into
the prison; therefore, the judge did not err in
concluding that Belwood’s abuse of his position
of trust in the prison made it substantially
easier for him to smuggle marijuana into the
prison.

  The decision of the district court is

AFFIRMED.


/1 The other count in the indictment (Count 2)
charged David Johnson, a co-conspirator, with
possession with intent to distribute marijuana,
in violation of 21 U.S.C. sec. 841(a)(1). The
second count is not involved in this appeal.


/2 There was no written plea agreement in this case.

/3 Section 3B1.3. (Abuse of Position of Trust or Use
of Special Skill) states in part "[i]f the
defendant abused a position of public or private
trust . . . in a manner that significantly
facilitated the commission or concealment of the
offense, increase [the offense level] by 2
levels."

/4 Belwood’s official job title was UNICOR Fabric
Work Supervisor. "UNICOR" is the commercial or
trade name of Federal Prisons Industries, Inc.,
a government corporation within the Bureau of
Prisons whose mission is to provide work
simulation programs and training opportunities
for inmates confined in federal prisons. See 28
U.S.C. sec. 345.111(a).

/5 The IONTRACK Itemiser has the dual purpose of
drug and explosive detection. According to the
Federal Bureau of Prisons, Drug Free Prison Zone
Project (July 1998), the basis of ion drug and
explosives detection technology is the collection
and vaporization of atmospheric particulate;
ionized vapors drift through the ion mobility
spectrometer at different speeds, depending on
their structure and size, and the speed at which
the ions move provides a distinct "thumbprint"
that identifies the original substance. An alarm
alerts the machine operator when a "thumbprint"
for a known drug or explosive has been detected.

/6 To determine whether the section 3B1.3
enhancement applies, courts apply a two-part test
that tracks the Guideline: 1) whether the
defendant occupied a position of trust; and 2)
whether his abuse of the position of trust
significantly facilitated the crime. See United
States v. Sierra, 188 F.3d 798, 802 (7th Cir.
1999).

/7 On appeal, Belwood also asserts that section
3B1.3 requires that the district court identify
a specific victim of his criminal conduct. This
argument is without merit. There is nothing in
either the text of the guideline or its
application notes to suggest that Congress
intended such a requirement. Nor does such a
requirement make any sense; a person can clearly
abuse a position of trust without there being any
identifiable victim. For example, a judge or
police officer who takes a bribe clearly abuses
a position of trust and, as such, a section 3B1.3
enhancement would be warranted. Accordingly, we
need not address this argument any further.
