                         United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                     ___________

                                   No. 00-2902WA
                                    ___________

United States of America,                 *
                                          *
             Appellee,                    * On Appeal from the United
                                          * States District Court
      v.                                  * for the Western District
                                          * of Arkansas
                                          *
Ernest J. Trice,                          * [To Be Published]
                                          *
             Appellant.                   *
                                     ___________

                             Submitted: March 13, 2001
                               Filed: March 28, 2001
                                    ___________

Before RICHARD S. ARNOLD and FAGG, Circuit Judges, and MONTGOMERY,1
      District Judge.
                           ___________

PER CURIAM.

       Ernest J. Trice pleaded guilty to making a fraudulent statement in violation of 18
U.S.C. § 1001. At sentencing, the District Court applied a two level sentence
enhancement pursuant to U.S. Sentencing Guidelines Manual § 3B1.3 for abuse of a
position of trust. On appeal, Trice challenges the application of the abuse of trust
enhancement. We remand for resentencing.


      1
      The Hon. Ann D. Montgomery, United States District Judge for the District of
Minnesota, sitting by designation.
       Trice was the President of the Board of Chaucer Street Apartments, Inc.
("CSAI"), a non-profit corporation formed to build a housing complex for handicapped
individuals. Trice, on behalf of CSAI, sought federal funding from the United States
Department of Housing and Urban Development ("HUD"). In obtaining this aid, Trice
falsely stated on a HUD form that he had never been convicted of a felony. Trice had
previously been convicted of the Arkansas Hot Check law, a felony. Trice was
indicted on two counts, making a fraudulent statement and embezzlement from a
federally funded program in violation of 18 U.S.C. § 666(a)(1)(A). Trice entered a plea
of guilty to the fraudulent statement count and the embezzlement count was dismissed
at sentencing.

        The district court's application of the Sentencing Guidelines is reviewed de novo,
and findings of fact are analyzed for clear error. United States v. Hawkey, 148 F.3d
920, 926 (8th Cir. 1998). The U.S. Sentencing Guidelines provide that if the
"defendant abused a position of public or private trust. . . in a manner that significantly
facilitated the commission or concealment of the offense," the sentence should be
increased by 2 levels. U.S.S.G. § 3B1.3. "'[T]he abuse of trust enhancement applies
only where the defendant has abused discretionary authority entrusted to the defendant
by the victim'; arm's-length business relationships are not available for the application
of this enhancement." United States v. Garrison, 133 F.3d 831, 837 (11th Cir. 1998)
(quoting United States v. Jolly, 102 F.3d 46, 48 (2d Cir. 1996)).

       Here, the victim of Trice's offense, making a fraudulent statement, was the
United States. Because Trice was not in a position of trust vis-a-vis the United States,
it was error to apply the enhancement. See id. Moreover, the relationship between
Trice and the United States was nothing more than an "arm's length business
relationship." See id. Accordingly, we remand the case for resentencing.




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A true copy.

  ATTEST:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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