                            UNITED STATES of America, Plaintiff-Appellee,

                                                      v.

                                Kelly D. HARNESS, Defendant-Appellant.

                                                No. 98-6157.

                                      United States Court of Appeals,

                                              Eleventh Circuit.

                                                July 12, 1999.

Appeal from the United States District Court for the Northern District of Alabama. (No. CR 97-S0203-NE),
C. Lynwood Smith, Jr., Judge.

Before BARKETT, Circuit Judge, and KRAVITCH and MAGILL*, Senior Circuit Judges.

        MAGILL, Senior Circuit Judge:

        Kelly Harness was sentenced to twenty-seven months' imprisonment for his role in the illegal

diversion of federal funds intended to benefit needy individuals facing eviction from their homes. The district

court increased Harness's offense level two levels for his aggravating role, pursuant to U.S.S.G. § 3B1.1(c),

and two levels for his abuse of a position of trust, pursuant to U.S.S.G. § 3B1.3. The court also declined to

grant the government's motion for a downward departure for substantial assistance pursuant to U.S.S.G. §

5K1.1. Because the two level enhancement for an aggravating role was improper, we vacate the sentence and

remand for resentencing.

                                                I. Background

        The City of Huntsville, Alabama received funds from the United States Department of Housing and

Urban Development (HUD) via the Emergency Shelter Grant Program, which was designed to assist

individuals in temporary financial trouble facing eviction from their homes. The City of Huntsville

contracted with the American Red Cross (Red Cross) to provide administrative services related to the HUD

funding. The Red Cross managed this responsibility through a program called Project Happen.




   *
    Honorable Frank J. Magill, Senior U.S. Circuit Judge for the Eighth Circuit, sitting by designation.
        Kelly Harness was an accountant employed by the Red Cross who served as Director for Project

Happen. Harness had check signing authority over Project Happen accounts and was responsible for

maintaining the records related to these accounts. Harness was also responsible for submitting reimbursement

claims to the City of Huntsville for Project Happen expenditures.

        To receive assistance from Project Happen, an individual having trouble making rental payments

would apply for rental assistance through Advocacy for the Homeless (Advocacy). If the application was

approved by James Holland, Executive Director of Advocacy, it was forwarded to Harness at Project Happen

for his approval. Project Happen would then issue a check directly to the applicant's landlord to cover his

or her rental payment. Project Happen would then submit the application, an eviction notice, a photocopy

of the check, and a reimbursement request form to the City of Huntsville for reimbursement.

        Between December 1995 and June 1997, Harness and his co-defendants, James and Jill Holland (the

Hollands), misapplied over 150 checks from the Project Happen accounts. Harness made numerous payments

to cover his personal obligations, including mortgage payments and credit card debts. One of the more

egregious diversions by Harness involved a $24,000 payment to Advocacy, which was diverted by James

Holland to purchase a van for Harness's personal use. To hide their fraudulent diversion of funds, Harness

and the Hollands fabricated payments to landlords that were supposedly made on behalf of needy applicants

and falsified records in Project Happen's books. The Hollands were also actively engaged in the conspiracy,

and wrote numerous fraudulent checks and created false documentation to cover their activities. The FBI

estimated that the defendants illegally diverted in excess of $100,000.

        Harness and the Hollands were charged in an eight-count indictment that alleged numerous violations

of federal law. Harness pleaded guilty to five of the counts and testified on behalf of the government against

the Hollands. The district court accepted Harness's guilty plea and sentenced him to twenty-seven months'

imprisonment followed by twenty-four months' supervised release. The court enhanced Harness's offense

level two levels for his aggravating role and two levels for his abuse of a position of trust. The court also



                                                      2
declined to grant the government's motion for a downward departure for substantial assistance. Harness did

not object to the probation officer's findings of fact and sentencing recommendations in his presentence

investigation report (PSR) and did not object after the district court imposed the sentence. Harness now

appeals his sentence, arguing that the district court's adjustments and refusal to depart downward were

erroneous.

                                            II. Standard of Review

         We review the district court's application and interpretation of the Sentencing Guidelines under the

de novo standard, but review its findings of fact only for clear error. See United States v. Barakat, 130 F.3d

1448, 1452 (11th Cir.1997); United States v. Williams, 51 F.3d 1004, 1011 (11th Cir.1995). Because

Harness did not object to the probation officer's or the district court's findings of fact and sentencing

calculations, we are limited to reviewing his claims of error for the first time on appeal under the plain error

standard to avoid manifest injustice. See United States v. Stevenson, 68 F.3d 1292, 1294 (11th Cir.1995) (per

curiam). "For the Court to correct plain error: (1) there must be error; (2) the error must be plain; and (3)

the error must affect substantial rights." Id.

                                                 III. Discussion

                                             A. Aggravating Role

        Harness first argues that the district court erred by increasing his offense level two levels pursuant

to U.S.S.G. § 3B1.1(c) for his aggravating role in the offense. We agree.

        Section 3B1.1(c) requires a sentencing court to enhance a defendant's offense level two levels if he

was "an organizer, leader, manager, or supervisor in any criminal activity...." U.S.S.G. § 3B1.1(c). "To

qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager,

or supervisor of one or more other participants." Id. comment. (n.2) (emphasis added).

         The probation officer recommended that the court enhance Harness's offense level two levels because

he "exercised management responsibility over the property and assets of the victim organization as



                                                       3
contemplated by U.S.S.G. § 3B1.1(c), Application Note 2." PSR at 6, ¶ 25. This was an incorrect application

of section 3B1.1(c) because the enhancement requires that the defendant organize, lead, manage, or supervise

another participant in the criminal scheme. See U.S.S.G. § 3B1.1, comment. (n.2). In contrast, the

sentencing court has the discretion to depart upward from the otherwise applicable sentencing range if the

defendant "did not organize, lead, manage, or supervise another participant, but who nevertheless exercised

management responsibility over the property, assets, or activities of a criminal organization." Id. The

probation officer's recommendation that the court enhance Harness's offense level because he had

management responsibility over the assets of the victim was error, because these facts support only a

discretionary decision to depart, not a mandatory enhancement under section 3B1.1(c). See, e.g., United

States v. Bapack, 129 F.3d 1320, 1324 & n. 6 (D.C.Cir.1997) (recognizing that enhancement requires control

over a participant in the scheme, not only control over the scheme itself); United States v. Gort-DiDonato,

109 F.3d 318, 321 (6th Cir.1997) (recognizing that enhancement required only when defendant exerts control

over another participant, whereas upward departure may be appropriate if defendant controls only assets or

activities of the criminal enterprise); United States v. Jobe, 101 F.3d 1046, 1068 (5th Cir.1996) (same);

United States v. Cali, 87 F.3d 571, 576-77 (1st Cir.1996) (same); United States v. McFarlane, 64 F.3d 1235,

1239 (8th Cir.1995) (same); United States v. Fones, 51 F.3d 663, 668 (7th Cir.1995) (same); United States

v. Greenfield, 44 F.3d 1141, 1146 (2d Cir.1995) (same).

        Perhaps recognizing the probation officer's error, the district court amended the PSR to state that it

was imposing a two level adjustment under section 3B1.1(c) "because [Harness] was an organizer, leader,

manager or supervisor of a criminal activity involving at least three participants."1 Sentencing Tr. at 29.

Even this conclusory statement does not indicate that Harness had the requisite control over another

participant in the criminal activity to support an enhancement under section 3B1.1(c). Indeed, the findings



   1
    There is no indication that the district court intended to exercise its discretion to depart from the
sentencing range. Rather, every indicator suggests that the court was applying a mandatory adjustment
under section 3B1.1(c).

                                                     4
of fact in the PSR and our review of the limited record before us reveal no evidence that would support a

conclusion that Harness had any control over any of the other participants who engaged in the criminal

activities. We conclude that the complete absence of any evidence or findings of fact that would support a

conclusion that Harness was an organizer, leader, manager, or supervisor of one or more participants renders

the district court's enhancement under section 3B1.1(c) erroneous. Furthermore, we conclude that this error

was plain and that it affected Harness's substantial rights because he was sentenced at the maximum of the

applicable sentencing range. See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d

508 (1993) (error is plain when it is clear or obvious; error affects substantial rights when it affects the

outcome of the proceeding). We, therefore, vacate the sentence and remand for resentencing.2

                                              B. Position of Trust

        Harness next contends that the district court erred in enhancing his offense level two levels pursuant

to U.S.S.G. § 3B1.3 for abusing a position of trust. We disagree.

         Section 3B1.3 requires a sentencing court to increase a defendant's offense level two levels if he

"abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated

the commission or concealment of the offense." U.S.S.G. § 3B1.3. "For the enhancement to apply, [the]

defendant must have been in a position of trust with respect to the victim of the crime, and the position of trust

must have contributed in some significant way to facilitating the commission or concealment of the offense."

United States v. Garrison, 133 F.3d 831, 837 (11th Cir.1998) (internal quotation marks and citations omitted).

Furthermore, the position abused by the defendant must be one characterized by professional or managerial

discretion, see U.S.S.G. § 3B1.3, comment. (n.1), and the relationship between the defendant and the victim

must be more significant than that of an arm's-length business transaction. See Garrison, 133 F.3d at 839.

   2
    We note that the record in this case is rather limited because it involved a guilty plea. The district
court presided over the trial of Harness's co-defendants and undoubtedly was very familiar with the facts
of this case. We recognize that the government may be able to show that Harness had the requisite role in
the offense to support the enhancement, and the district court remains free to impose the enhancement if
the facts support it. If the court determines that the enhancement does not apply, it may still consider
whether the facts support a discretionary upward departure.

                                                        5
         Harness contends that the district court erred in enhancing his offense level for abusing a position

of trust because the relevant victim in this case was the United States government, and he did not occupy or

abuse a position of trust with respect to the government.3 While Harness may be correct in arguing that he

did not occupy or abuse a position of trust with respect to the government, his argument ignores the fact that

the PSR identified the victim in this case as the Red Cross. The PSR states that Harness was responsible for

diverting approximately $20,000 from the Red Cross. See PSR at 5, ¶ 16. This fact supports the district

court's conclusion that the Red Cross was a victim in this case. In any event, Harness did not object to the

PSR's conclusion that the Red Cross was the victim of the offense, see id. at 5, ¶ 17, and the district court was

entitled to rely on that conclusion for purposes of applying the enhancement. See United States v. Hedges,

175 F.3d 1312 (11th Cir.1999) (holding that a district court may rely on undisputed conclusory statements

in the PSR even in the absence of supporting evidence).

         Having concluded that the Red Cross was a victim of the offense, we now conclude that Harness

occupied and abused a position of trust with respect to this victim. Harness was employed by the Red Cross,

which was responsible for the distribution of HUD funds via the Project Happen program. The Red Cross

named Harness to serve as Director of Project Happen and gave him check signing authority over Project

Happen's accounts. Harness used his position to illegally divert Project Happen funds and used his position

to conceal his and his co-defendants' fraudulent activity. Based on these facts, we are satisfied that the district

court did not commit error, let alone plain error, in concluding that Harness abused a position of trust. The

court's two level enhancement under section 3B1.3 was therefore proper.

                                           C. Downward Departure




   3
    Harness also argues that the district court erred in enhancing his offense level under the "special skill"
provision of U.S.S.G. § 3B1.3. There is no indication that the district court relied on the special skill
provision to support the enhancement. Regardless of whether Harness used a special skill to further his
crime, we conclude that the court's decision to enhance was proper under the abuse of position of trust
provision, so we need not consider this alternative basis to sustain the enhancement.

                                                        6
        Harness finally argues that the district court erred in denying the government's motion for a

downward departure pursuant to U.S.S.G. § 5K1.1. We conclude that we lack jurisdiction to consider this

claim of error.

        Upon motion by the government, a sentencing court may depart downward when the defendant has

"provided substantial assistance in the investigation or prosecution of another person...." U.S.S.G. § 5K1.1.

The government filed such a motion in this case. The district court recognized that it had the discretion to

depart, but concluded that a departure was not warranted in this case.

         "This Court has held that a district court's discretionary refusal to depart downward is not appealable,

unless the refusal was based on an erroneous belief that the court did not have the statutory authority to depart

from the guideline range." United States v. Sanchez-Valencia, 148 F.3d 1273, 1274 (11th Cir.1998) (per

curiam). In this case, the district court explicitly stated that it recognized that it had the discretion to depart,

but specifically declined to do so. See Sentencing Tr. at 37-38. Under these circumstances, we lack

jurisdiction to review this claim of error.

                                                 IV. Conclusion

        Although our review is limited to identifying plain error, we cannot identify any evidence or findings

of fact that would support the district court's adjustment under U.S.S.G. § 3B1.1(c) for an aggravating role

in the offense. We, therefore, VACATE Harness's sentence and REMAND for resentencing consistent with

this opinion.




                                                         7
