United States of America v. James M. Redding, Sr

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-1698
UNITED STATES OF AMERICA
v.
JAMES M. REDDING, SR.,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Criminal No. 03-cr-0071-1
(Honorable Sylvia H. Rambo)
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 22, 2007
Before: SCIRICA, Chief Judge, FUENTES and CHAGARES, Circuit Judges
(Filed: March 2, 2007)
OPINION OF THE COURT
SCIRICA, Chief Judge.
In this sentencing appeal, James M. Redding challenges application of a two-level
increase in his offense gravity score for more than minimal planning, U.S.S.G. § 2F1.1,

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and abuse of position of trust, U.S.S.G. § 3B1.3. We will affirm the judgment of
conviction and sentence.
I.
Redding was employed as a collection agent by Symphony Health Care Services.
His job included collecting delinquent accounts and negotiating settlements with various
businesses that owed Symphony money. Redding was not authorized to receive, divert or
deposit any checks payable to Symphony. Nevertheless, Redding opened an account at
PNC Bank, and deposited approximately 100 checks payable to Symphony. The checks
totalled $780,823, but Redding remitted to Symphony only $366,912. Redding kept
$413,911 for himself, using it primarily to support his and his wife’s drug addiction. To
execute this scheme, Redding caused PNC bank statements reflecting the fund deposits to
be mailed from the PNC bank in McSherrytown, Pennsylvania, to P.O. box 215 in
Hanover, Pennsylvania.
Redding pled guilty to mail fraud, 18 U.S.C. § 1341, under a plea agreement. At
his sentencing hearing, Redding raised three objections to the Presentence Investigation
Report, challenging the: (1) more than minimal planning enhancement; (2) abuse of trust
enhancement; and (3) failure to award a three-level reduction for acceptance of
responsibility. On appeal, Redding does not challenge the finding on acceptance of
responsibility. The Court rejected Redding’s objections and sentenced him to 50 months’

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The Guideline Range is 46–57 months, based on a total offense level of twenty-one
and a Criminal History Category of III. U.S.S.G. Chapter 5, Part A.
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imprisonment, restitution in the amount of $413,911, a three-year period of supervised
release following his term of imprisonment, and a special assessment of $100.00.1
Redding appealed. The sentence was vacated and remanded for resentencing in
accordance with United States v. Booker, 543 U.S. 220 (2005). See United States v.
Davis, 407 F.3d 162 (3d Cir. 2005). On remand, the District Court imposed the same
sentence as before.
This appeal followed. We have appellate jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a).
II.
Under Booker,
(1) Courts must continue to calculate a defendant’s Guidelines sentence
precisely as they would have before Booker. (2) In doing so, they must
formally rule on the motions of both parties and state on the record whether
they are granting departure and how that departure affects the Guidelines
calculation, and take into account our Circuit’s pre-Booker case law, which
continues to have advisory force. (3) Finally, they are required to exercise
their discretion by considering the relevant § 3553(a) factors in setting the
sentence they impose regardless whether it varies from the sentence
calculated under the Guidelines.
United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006) (internal quotations and
citations omitted); see also United States v. Cooper, 437 F.3d 321, 330 (3d. Cir. 2006).
We review sentences for reasonableness in light of the “relevant factors” that guide
sentencing. United States v. Charles, 467 F.3d 828, 830 (3d Cir. 2006). Appellants

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Redding’s extensive large-scale fraud involved forty-six entities, causing losses over
$413,911. Symphony may never be fully compensated. “[L]oss serves as a measure of
the seriousness of the offense and the defendant’s relative culpability and is a principal
factor in determining the offense level under this guideline.” U.S. Sentencing Guidelines
Manual § 2.B1.1 cmt. background.
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An act is “purely opportune . . . [if it is] spur of the moment conduct, intended to take
advantage of a sudden opportunity.” United States v. Monaco, 23 F.3d 793, 797–98 (3d
Cir. 1994) (quoting United States v. Rust, 976 F. 2d 55, 57 (1st Cir. 1992)); see also
United States v. Crawford, 407 F.3d 1174, 1180 (11th Cir. 2005); United States v.
McCoy, 242 F.3d 399, 405 (D.C. Cir. 2001); United States v. Lutz, 154 F.3d 581, 590 (6th
Cir. 1998).
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challenging the sentence have the burden of proving unreasonableness. At resentencing,
the court adopted the “factual findings and the guideline application in the pre-sentence
report.” The court considered statutory sentencing factors under § 3553(a), including
defendant’s criminal history and the need to provide “sufficient” punishment and
deterrence “to reflect the seriousness2 of the offense and promote respect for the law.”
A. More than Minimal Planning
Redding argues the District Court erred in granting a two-level enhancement to his
offense level under U.S.S.G. § 2F1.1 contending each instance of theft should have been
considered “purely opportune.” 3 He contends he could not have planned ahead for each
act, asserting lack of knowledge and control over which accounts were to be assigned to
him on a daily basis, and emphasizing the willingness of his employer to accept or refuse
the amount he negotiated.
Section 2F1.1(b)(2) requires a two-level increase when the offense involved more
than minimal planning. More than minimal planning “means more planning than is

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“[S]atisfaction of the repeated acts criterion requires at least three acts over a period
of time.” United States v. McCoy, 242 F.3d at 405 (D.C. Cir. 2001).
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“[W]here as a part of a plea bargain the defendant has agreed to be sentenced under
the Sentencing Guidelines, we follow our pre United States v. Brooker practice of
adhering to the Guidelines Manual’s commentary ‘unless it violates the Constitution or a
federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.’”
United States v. Newsom, 439 F.3d 181, 184 (3d Cir. 2006) (quoting Stinson v. United
States, 508 U.S. 36, 38 (1993)) (citation omitted).
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typical for commission of the offense in a simple form . . . . [It] also exists if significant
affirmative steps were taken to conceal the offense . . . . [It] is deemed present in any
case involving repeated acts4 over a period of time, unless it is clear that each instance
was purely opportune.” United States v. Cianscewsky, 894 F.2d 74, 81 (3d Cir. 1990)
(quoting U.S.S.G. §1B1.1 comment. n.1(f)). 5 Whether a defendant engaged in more than
minimal planning is a factual question reviewed for clear error. Id.
The District Court’s determination that Redding’s offense involved “more than
minimal planning” is not clearly erroneous. The scheme to defraud Symphony extended
over a period of time, from April 13, 2000, through January 23, 2002, and involved
repeated acts. Redding negotiated and reached settlements with forty-six entities owing
debts to Symphony. As a result of this scheme, he received about 100 checks payable to
Symphony, but did not report and return the full amounts to the company. He deposited
$780,823 worth of checks and misappropriated $413,911, mostly to support his and his
wife’s drug addiction.

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The substantial time period covered and number of transactions demonstrate that
Redding’s conduct was not “purely opportune.” As we previously held, there was more
than minimal planning (rather than taking advantage of a sudden opportunity) where the
“defendant asked his son to prepare inaccurate labor sheets which defendant entered into
contractor’s computer system, and repeated the scheme a total of four times.” Monaco,
23 F.3d at 79–98. See also United States v. Georgiadis, 933 F.2d 1219, 1221, 1227 (3d
Cir. 1991) (finding administrator of Bank’s mortgage settlement closing engaged in
“more than a minimal planning” when he diverted $284,104.89 in settlement funds into
his own accounts many times over a period of time (from March 1985 until January
1989)); Cianscewsky, 894 F.2d at 81 (finding defendant’s receipt of seven stolen checks
from government informant or from his wife, and his sale of them to undercover agents
on three separate occasions over a three-week period, amounted to “more than minimal
planning”).
During this period, Redding had the opportunity to consider his actions, but he
continued to wrongfully divert Symphony’s money. See United States v. Wong, 3 F.3d
667, 671 (3d Cir. 1996); Georgiadis, 933 F.2d at 1226 (more than minimal planning
adjustment “considers the deliberative aspects of a defendant’s conduct and criminal
scheme”). Redding repeated the same criminal pattern until discovered, which
demonstrates more than minimal planning. See Wong, 3 F.3d at 671; Georgiadis, 933
F.2d at 1226–27. Reiteration of the fraudulent activity indicates greater culpability.
United States v. Bush, 126 F.3d 1298, 1300 n.1 (11th Cir. 1997).

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Section 3B1.3 provides in part: “if the defendant 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, increase by two levels.” U.S.S.G. § 3B1.3.
The rationale for increased punishment is that the insider who abuses his position is
thought to be more culpable than one who simply commits the offense. See United States
v. Pardo, 25 F.3d 1187, 1192 (3d Cir. 1994); Application note 1 in the Commentary to §
3B1.3.
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B. Abuse of Position of Trust
Redding also contends the District Court erroneously applied a two-level
enhancement to his offense level under U.S.S.G. § 3B1.3 for abuse of a position of
private trust.6 Whether a defendant is subject to U.S.S.G. § 3B1.3, a court must initially
determine whether the defendant occupied a position of public or private trust. If so, the
court must determine “whether the defendant abused this position of trust in a way that
significantly facilitated his crime.” United States v. Iannone, 184 F.3d 214, 222 (3d Cir.
1999). We review de novo whether a defendant occupied a position of trust within the
meaning of § 3B1.3, as this is a legal question. Id. We review a finding that a defendant
abused a position of trust for clear error, as this is a factual question. Id.
We apply a three-pronged test: “(1) whether the position allows the defendant to
commit a difficult-to-detect wrong; (2) the degree of authority which the position vests in
defendant vis-a-vis the object of the wrongful act; (3) whether there has been reliance on
the integrity of the person occupying the position.” United States v. Nathan, 188 F.3d
190, 250 (3d Cir. 1999) (quoting United States v. Pardo, 25 F.3d 1187, 1992 (3d Cir.
1994)).

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Here, Redding’s offense was difficult to detect and was only discovered after
almost two years. Redding contends he lacked professional or managerial discretion and
was subject to a significant degree of supervision. He points out he was at the same level
of five other debt collectors and was supervised by another Symphony employee. But
Redding had considerable discretion. From April 13, 2000, until January 23, 2002,
Redding had authority to initiate and conduct negotiations with Symphony’s debtors and
negotiate monetary settlements. As noted, “the primary trait that distinguishes a person in
a position of trust from one who is not is the extent to which the position provides the
freedom to commit a difficult-to-detect wrong.” United States v. Craddock, 993 F.2d
338, 341 (3d Cir. 1993). Notwithstanding some degree of supervision, there was reliance
on his integrity. All three prongs of the Pardo test are met. Redding abused his position
as he took wrongful advantage of his position with Symphony. See United States v.
Sokolow, 91 F.3d 396, 413 (3d Cir. 1996).
III.
For these reasons, we will affirm the judgment of conviction and sentence.

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