                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           FEB 11 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 96-6164
                                                    (D.C. No. CR-95-41-C)
    VICTOR L. JOYCE,                                     (W.D. Okla.)

                Defendant-Appellant.




                             ORDER AND JUDGMENT *



Before TACHA, EBEL, and BRISCOE, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
      Defendant Victor L. Joyce, the vice president, chief financial officer,

treasurer, and secretary of Barton Industries, Inc., was charged with securities

fraud in connection with a scheme to manipulate the price of Barton Industries’

stock. On December 14, 1995, he entered a plea of guilty to (1) making false

financial statements, in violation of 15 U.S.C. §§ 78m(b)(2)(A), 78ff(a) and 18

U.S.C. § 2 (Counts 2-6); and (2) entering into a scheme to report manipulative

and deceptive information to the public, in violation of 15 U.S.C. §§ 78j(b),

78ff(a), 17 C.F.R. § 240.10b-5 and 18 U.S.C. § 2 (Count 13).

      The district court sentenced defendant to forty-six months of imprisonment

and two years of supervised release on each count, all to run concurrently.

Defendant appeals the sentence, asserting two points of error: (1) the calculation

of the amount of loss to the investing public at more than $20 million, resulting in

a sixteen-level enhancement of his sentence, see United States Sentencing

Guidelines (U.S.S.G.) § 2F1.1(b)(1)(Q); and (2) the finding that he had abused a

position of trust, resulting in a two-level enhancement, see id. at § 3B1.3.

I.    CALCULATION OF LOSS

      We review the district court’s factual findings regarding calculation of loss

under the clearly erroneous standard. United States v. Moore, 55 F.3d 1500, 1501

(10th Cir. 1995). Defendant’s argument that the applicable figure should be $5.8

million, the amount of the falsified entries on the books and records of Barton


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Industries, disregards the other aspects of the stock manipulation scheme. The

scheme was not confined to the alteration of Barton’s books. It also involved

publicizing false or misleading information about the status of the company. The

record on appeal contains more than sufficient evidence to support the district

court’s finding that the entire stock manipulation scheme inflicted a loss of

approximately $24.6 million on the investing public.

II.   ABUSE OF POSITION OF TRUST

      “Whether a defendant occupied a position of trust within the meaning of

USSG § 3B1.3 is a factual question, and we will affirm the sentencing court

unless we find its decision clearly erroneous.” United States v. Koehn, 74 F.3d

199, 201 (10th Cir. 1996). The primary concern of the guideline is “to penalize

defendants who take advantage of a position that provides them freedom to

commit or conceal a difficult-to-detect wrong.” Id. (citing United States v.

Queen, 4 F.3d 925, 928-29 (10th Cir. 1993)); see also U.S. Sentencing Guidelines

Manual § 3B1.3, Application Note 1 (1995).

      The following factors determine whether a particular position constitutes a

position of trust:

      [T]he 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.


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United States v. Queen, 4 F.3d at 928-29 (quoting United States v. Williams, 966

F.2d 555, 557 (10th Cir. 1992)).

      Examination of these factors shows that defendant, as the principal

financial officer of a publicly-traded company, held a position of trust.

Moreover, he used this position to falsify the company’s books and disseminate

misleading information to the public. The district court’s determination that

defendant abused a position of trust is amply supported by the evidence.

Defendant’s sentence was properly enhanced under U.S.S.G. § 3B1.3.

      The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED.

                                                     Entered for the Court



                                                     Deanell Reece Tacha

                                                     Circuit Judge




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