                           UNITED STATES COURT OF APPEALS
                                    FIFTH CIRCUIT

                                       _________________

                                           No. 99-11138

                                       (Summary Calendar)
                                       _________________


                UNITED STATES OF AMERICA,


                                               Plaintiff-Appellee,

                versus


                MITCHELL SCOTT GASSIOT,


                                               Defendant-Appellant.



                           Appeal from the United States District Court
                               For the Northern District of Texas
                                    USDC No. 5:99-CR-20-C

                                           April 18, 2000

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*

        Mitchell Scott Gassiot appeals the sentence arising from his guilty plea to embezzlement of

bank funds in violation of 18 U.S.C. § 656. For the reasons set forth below, we affirm the sentence

of the district court.

        Gassiot pled guilty pursuant to a plea agreement to the embezzlement of funds from the

Snyder National Bank (the “bank”) and criminal forfeiture. As part of the plea agreement, Gassiot

stipulated that the factual resume supporting his plea was true and correct. The resume stated that,


   *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
beginning in 1994, while employed at the bank as a vice-president and cashier, Gassiot began

removing cash from the main vault of the bank, generally in amounts of $1,000. Gassiot also

removed mutilated bills that were in poor condition but still usable as currency. Between January 1,

1994 and March 8, 1999, Gassiot embezzled a total of $427,689.50 from the bank.

        The resume further provided that while employed at the bank, Gassiot was responsible for

balancing the vault and for counting the cash in the vault. Bank president and CEO Joe Jackson also

testified that Gassiot was in charge of internal controls of cash, tellers, and the vault. When

independent auditors—acting under Gassiot’s supervision—would audit the vault at the bank, they

would only operate off of the reports that Gassiot had prepared.1

        In calculating Gassiot’s offense level, the probation officer preparing the presentence report

(“PSR”) recommended a two-level upward adjustment under U.S.S.G. § 3B1.3 based upon Gassiot’s

abusing his position of trust to commit the embezzling offense. Gassiot filed an objection to the

recommended adjustment in which he acknowledged that he had held a position of trust at the bank

but argued that he had not used this position to facilitate the commission of the crime. The district

court overruled Gassiot’s objection to the PSR, finding that Gassiot’s supervisory position at the bank

was a position of trust and that he had abused that position to facilitate and conceal the commission

of the offense for five years.

        On appeal, Gassiot argues that the district court erred in applying a two-point upward

adjustment in his offense level pursuant to U.S.S.G. § 3B1.3. More specifically, he contends that the

   1
         Gassiot’s plea agreement also contained a paragraph entitled “Waiver of Right to Appeal”
which stated that “[e]xcept as otherwise provided, the defendant hereby expressly waives the right
to appeal his conviction and/or sentence on any ground . . . The defendant, however, reserves the
right to appeal the following: (a) any punishment imposed in excess of a statutory maximum; (b) any
punishment to the extent it constitutes an upward departure from the guideline range deemed most
applicable by the sentencing court, and an improper computation of the applicable guideline range
. . ..” While is clear that a defendant may, as part of a valid plea agreement, waive his statutory right
to appeal his sentence, in order to be valid, the waiver must be an informed one. see United States
v. Melancon, 972 F.2d 566, 568 (5th Cir. 1992). It is unclear whether Gassiot was specifically
admonished that he was waiving his right to appeal during the plea colloquy. However, since neither
party raises the issue of whether Gassiot knowingly waived his right to appeal his sentence in the plea
agreement, and because we do not need to resolve this issue in order to decide this case, we will not
discuss the potential waiver issue here.

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district court erred in finding (1) that he occupied a position of trust at the bank, and, more

significantly, (2) that Gassiot’s position significantly facilitated his embezzlement. We review the

district court’s application of § 3B1.3 to the facts for clear error. See United States v. Smith, __ F.3d

__, 2000 WL 1162408, at *9 (5th Cir. Feb. 14, 2000); United States v. Iloani, 143 F.3d 921, 922

(5th Cir. 1998).2

        Section 3B1.3 provides for a two level enhancement if the defendant “abused a position of

public or private trust . . . in a manner that significantly facilitated the commission or concealment of

the offense.” U.S.S.G. § 3B1.3. Thus, an abuse-of-trust enhancement was appropriate if Gassiot (1)

held a position of trust at the bank, and (2) used that position of trust to facilitate significantly the

commission or concealment of the embezzlement of funds from the bank. See Iloani, 143 F.3d at

922. Here, both the factual resume and the evidence presented at Gassiot’s sentencing hearing

support the district court’s findings that both of these prerequisites were satisfied.

        “‘Public or private trust’ refers to a position of public or private trust characterized by

professional or managerial discretion . . . Persons holding such positions ordinarily are subject to

significantly less supervision than employees whose responsibilities are primarily non-discretionary

in nature.” U.S.S.G. §3B1.3, commentary (n.1). A person in a position of trust can be distinguished

from one who is not by “the extent to which the position provides the freedom to commit a difficult-

to-detect wrong.” United States v. Brown, 7 F.3d 1155, 1161 (5th Cir. 1993) (citing United States

v. Hill, 915 F.2d 502, 506 (9th Cir. 1990)); see also Iloani, 143 F.3d at 922 (“A position of trust is

characterized by substantial discretionary judgment that is ordinarily given considerable deference.”)

(internal quotations omitted). Gassiot’s argument that he was no t acting in his capacity as a bank

  2
        On appeal, Gassiot contends that our prior “enunciation of the appropriate standard of review
is unclear.” Accordingly, he suggests that we “harmonize our differing pronouncements” and (1)
review de novo what constitutes a “position of public or private trust,” and (2) review for clear error
whether a defendant occupied a position of trust and/or whether that position of trust facilitate the
commission or concealment of Gassiot’s offense. However, Gassiot conceded in his objections to
the PSR that he held a position of trust at the bank. Similarly, on appeal, he focuses his argument on
the premise that his position did not facilitate the commission or concealment of his offense.
Therefore, the issue of the proper standard of review for determining whether a particular position
is one of public or private trust need not be determined in order to resolve this appeal.

                                                  -3-
officer when he embezzled funds from the bank is unpersuasive in light of the facts presented in the

PSR and the factual summary.          The evidence presented here reflects that Gassiot, without

supervision, conducted a daily count of cash in the vault and prepared written ledgers of the amount

of cash on hand. Independent auditors and bank employees did not physically count the cash in the

vault largely because they relied upon Gassiot’s representations of the amount of money in the vault.

This evidence clearly demonstrates that Gassiot was not acting as a “mere bank teller” when he

embezzled bank funds. Cf. United States v. Ehrlich, 902 F.2d 327, 331 (5th Cir. 1990) (finding that

“[p]erhaps any number of [bank] employees could have obtained and executed the same instruments,

debit and credit slips, and then routed them to EDS for pro cessing, but Ehrlich’s position of trust

gave her specialized knowledge of the EDS system, as well as information about non-reconciled

[bank] accounts, that few other employees shared”).

        Gassiot further contends that, even if he did occupy a position of trust at the bank, his position

did not significantly facilitate the commission of concealment of the offense because other employees

at the bank had the same opportunities to embezzle funds that Gassiot had. See Iloani, 143 F.3d at

923 (“The position of public trust must have contributed in some substantial way to facilitating the

crime and not merely have provided an opportunity that could as easily have been afforded to other

persons.”). In fact, the evidence presented supports the district court’s finding that Gassiot used his

position both to facilitate and to conceal his embezzlement of funds. Specifically, Gassiot was able

to provide false reports to the independent auditors and draft false ledger sheets that hid his activities

largely because he knew that, because of his managerial position, no one was checking over his daily

computations of cash on hand. Cf. Ehrlich, 902 F.2d at 331 (“More importantly, Ehrlich’s position

gave her the authority to routinely initiate loan balancing transactions, which facilitated her

embezzlements. Ehrlich was given the authority to balance the loan suspense account, which she

debited to effect three of the six embezzlements.”).

        In sum, we cannot find that, under the facts of this case, the district court clearly erred in

applying the abuse of trust enhancement to Gassiot’s sentence. Accordingly, we AFFIRM the


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sentence of the district court.




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