                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-5098



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


BARBARA MAY BLACKWELL,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon, District
Judge. (3:04-cr-00040)


Submitted:   October 10, 2007          Decided:     November 16, 2007


Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Steven D. Rosenfield, Charlottesville, Virginia, for Appellant.
John L. Brownlee, United States Attorney, William F. Gould,
Assistant United States Attorney, Charlottesville, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Barbara May Blackwell appeals her sentence to forty-two

months     in   prison,   three    years    of   supervised   release,      and

restitution after pleading guilty to two counts of wire fraud in

violation of 18 U.S.C. § 1343 (2000).                On appeal, Blackwell

contends the district court erred in enhancing her sentence based

on   its   findings   that   she   obstructed    justice,   did   not    accept

responsibility, and abused a position of trust.             We affirm.

            We will affirm a sentence imposed by the district court

as long as it is within the statutorily prescribed range and

reasonable. United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).

An error of law or fact can render a sentence unreasonable.              United

States v. Green, 436 F.3d 449, 456 (4th Cir.), cert. denied, 126 S.

Ct. 2309 (2006). We review a district court’s factual findings for

clear error and its legal conclusions de novo.                United States

v. Hampton, 441 F.3d 284, 287 (4th Cir. 2006).           Issues raised for

the first time on appeal are reviewed for plain error.            Hughes, 401

F.3d at 547.      To establish plain error, the defendant must show:

(1) error; (2) that was plain or obvious; (3) the error affected

her substantial rights; and (4) this court should exercise its

discretion to notice the error.            Fed. R. Crim. P. 52(b); United

States v. Olano, 507 U.S. 725, 732 (1993).

            Blackwell contends the district court erred in finding

that she obstructed justice and applying a two-level enhancement


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under U.S. Sentencing Guidelines Manual (“USSG”) § 3C1.1 (2000),

and the court compounded its error by denying her a reduction for

acceptance of responsibility under USSG § 3E1.1.           The probation

officer recommended that Blackwell receive the enhancement for

providing    materially   false   information   during   the   presentence

investigation.    She answered “N.A.” to the question as to whether

she had been a party to any civil suits, even though she had three

civil judgments that the probation officer contended should be

included in relevant conduct. At sentencing, the Government argued

the enhancement was also supported by Blackwell’s materially false

statements during the sentencing hearing, and the district court

agreed.     The court found Blackwell had obstructed justice and

denied her a reduction for acceptance of responsibility based on

the obstruction as well as the whole tenor of her testimony.

            On appeal, Blackwell argues the district court clearly

erred in finding she obstructed justice by not revealing the three

civil judgments, because the court ultimately ruled they would be

excluded from the loss under USSG § 2F1.1(b)(1), and in finding she

falsely testified that one of her victims, Beekman Beavers, was

involved in the fraud, because she did not say he was involved in

the fraud.     However, the issue whether the judgments should be

included as relevant conduct was a close one affecting the total

offense level, and Blackwell’s initial false statement was material

because, if believed, it would tend to influence or affect the


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issue. Moreover, Blackwell objected to the loss amounts associated

with Beavers based on her assertion that he was an “accomplice,”

not a victim, and she testified he “knew about every transaction”

and authorized her to use his accounts for overcharging, double-

billing, and other fraudulent transactions.         Despite pleading

guilty, Blackwell further testified she “didn’t take any of the

money.”   Based on our review of the record, we conclude the

district court did not clearly err in finding Blackwell obstructed

justice and did not accept responsibility.

          Blackwell further contends the district court erred by

enhancing her sentence for abusing a position of trust pursuant to

USSG § 3B1.3.   Because she did not raise this issue in the district

court, our review is for plain error. The enhancement applies when

a defendant abuses a position of public or private trust in a

manner that significantly facilitated the commission or concealment

of the offense.   Such a position is characterized by professional

or managerial discretion, and persons holding such positions are

ordinarily subject to significantly less supervision than employees

whose responsibilities are primarily non-discretionary in nature.

USSG § 3B1.3 comment. (n.1).    As we have explained, “fraud alone

does not justify the enhancement.       We must carefully distinguish

between those arms-length commercial relationships where trust is

created by the defendant’s personality or the victim’s credulity,

and relationships in which the victim’s trust is based on the


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defendant’s position in the transaction.” United States v. Bollin,

264   F.3d   391,   415   (4th   Cir.    2001)   (internal   quotations   and

citations omitted).       The enhancement applies where the defendant

has broad discretion to act on behalf of the victim, and the victim

believes the defendant will act in the victim’s best interest. Id.

at 416 (quotations and citations omitted).           “[A]pplication of the

enhancement requires more than a mere showing that the victim had

confidence in the defendant.        Something more akin to a fiduciary

function is required.”      United States v. Caplinger, 339 F.3d 226,

237 (4th Cir. 2003) (internal quotations and citations omitted).

             We have reviewed the record and conclude that Blackwell

has not shown the district court plainly erred in finding she

abused a position of trust.             Blackwell, an Australian citizen,

owned, operated, and was president of Experience Australia Tours,

Inc., an independent travel broker specializing in Australian tour

packages for individuals and tour groups.             Travel agencies sent

Blackwell payments and credit card information from customers,

relying on her to use the funds in making all the specific travel

arrangements, including airline flights, hotels, and tours that

were being purchased from other businesses.           In her position with

Experience Australia Tours, Blackwell had managerial discretion and

unsupervised access to an extensive number of credit card accounts,

which she used to commit and conceal her crimes.              Based on this

record, we cannot conclude the district court plainly erred in


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applying the enhancement.    See Bollin, 264 F.3d at 416; United

States v. Akinkoye, 185 F.3d 192, 204-05 (4th Cir. 1999).

          We therefore deny Blackwell’s second motion for remand,

motion for release, and motion for expedited review, and we affirm

the district court’s judgment.    We dispense with oral argument

because the facts and legal contentions are adequately presented in

the materials before the court and argument would not aid the

decisional process.


                                                            AFFIRMED




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