UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

ROBINSON, JEFFREY M.


98-3100a

D.C. Cir. 2000


*	*	*


Randolph, Circuit Judge: Lacking schools for emotionally  disturbed
teenagers, the District of Columbia contracted for a  new school to be
run by someone with a criminal record and  without any educational
credentials. The someone was Jef- frey Robinson, a 26-year-old
insurance broker. Despite hav- ing no college degree and no experience
in education, he  obtained a contract to found the Kedar Day School.
His  qualifications? He had once been a special education student 
himself. The District canceled the contract after discovering  that
Robinson had paid for fancy cars, a lavish party and  other personal
luxuries with city money earmarked for the  school. A jury found
Robinson guilty of ten counts of wire  fraud, 18 U.S.C. ss 2 and 1343,
and one count of bank fraud,  18 U.S.C. s 1344. The district court
imposed a sentence of  37 months, including a two-level upward
adjustment for  "abuse of a position of trust," U.S.S.G. s 3B1.3. It
ordered  restitution totaling $301,910.63. Robinson has appealed his 
sentence, contesting the abuse of trust enhancement to his  sentencing
level and the amount of restitution.


I


In August 1995, Robinson signed a contract with the Dis- trict of
Columbia Public Schools ("DCPS") to set up and  operate a school for
up to fifty emotionally disturbed stu- dents. Pursuant to its policy
of providing appropriate, public- ly supported education for
emotionally disturbed students  residing in the District, DCPS places
such students in private  schools when no adequate special education
program is avail- able within the school system. In such cases, DCPS
pays the  costs of tuition and related services for the private
placement.  See Presentence Report p 4, at 3.


Under the contract with DCPS, Kedar was to educate the  students and
provide related services, including speech thera- py, occupational
therapy, physical therapy, clinical psychology  and social work. See
Presentence Report p 6, at 4. Robinson 


negotiated for the school--which he named the Kedar Day  School--to
receive $15,000 per year for each student attend- ing. Under the
agreement, Robinson would bill DCPS for  tuition costs by submitting
invoices listing the number of  students Kedar educated each month.


From the beginning, Robinson's agreement with DCPS was  laced with
fraud. To get the contract, he indicated that he  had already secured
a location for the school, when in fact no  such agreement existed.
Days before the school was set to  open, Robinson arranged to lease
part of a former DCPS  school building. Robinson was able to secure
that lease by  having Kedar's business manager represent that Kedar
had  obtained the necessary liability insurance, another complete 


To pay expenses the school incurred before receiving pay- ment,
Robinson contracted with the Prinvest Corporation, a  financing
company, which allowed him to borrow money  against the invoices
submitted to DCPS. Prinvest would give  Robinson 80% of the invoice
amount, less its fees and DCPS  would forward the checks directly to
Prinvest. DCPS would  turn over the remaining 20% to Robinson.


Robinson sent the first invoice to DCPS in September 1995,  claiming 49
students attended Kedar that month. In fact,  Kedar had at most 25 to
30 students that month but Robinson  told the secretary who prepared
the invoice to raise the  number so that the school would have "start
up funds." For  each of the invoices that followed, Robinson also had
the  secretary inflate the number of students. Invoices submitted  by
Kedar during the months it was in operation totaled  $407,900, all of
which DCPS duly paid.


Very little of that money went to school expenses. Two  days after
Prinvest wired its first payment of approximately  $60,000 to Kedar's
account, Robinson withdrew nearly three  quarters of that amount for
personal expenditures, including  lease payments on two Mercedes Benz
automobiles, a Fer- rari, and a BMW. Meanwhile, Robinson told the
Kedar staff  he lacked the money to pay them, blaming the D.C. govern-
ment for the hold up, and refused to hire the professional 


counseling staff the contract required. In October, Prinvest  wired
about $48,000 into the Kedar account, more than half of  which
Robinson spent on expenses unrelated to the Kedar  School. In the
months that followed, Robinson continued the  pattern of siphoning off
Kedar funds for his own expendi- tures. In December, he used money
from the Kedar account  to throw himself an expensive birthday party
at the Four  Seasons Hotel, inviting the Kedar staff to come and meet
his  "millionaire friends." School funds also went toward paying  rent
and a security deposit on an office for Robinson's  insurance


Kedar's expenses continued to go unpaid; the staff began  to leave and
the students went unfed. On some occasions the  children were sent
home because of understaffing. At other  times, the supervision was
poor, so poor one student was seen  leaving via an open window. At no
time did Kedar provide  the educational and counseling services
required under the  DCPS contract. The students at Kedar had severe
psycho- logical problems; among them were victims of sexual abuse, 
physical abuse and others suffering from a variety of behav- ioral
disorders. In need of long term, intensive psychological  services,
they were supposed to receive psychological counsel- ing, speech
language therapy, and occupational and physical  therapy. But unlike
the idealized biblical village that must  have inspired the school's
name, see Song of Solomon 1:5  (King James); Isaiah 21:16 (King
James), Kedar--as the  government aptly describes it--was basically a
"warehouse"  for the children, with students and teachers "just
sitting  around." Brief for Appellee at 20.


Robinson's scheme finally fell apart in March 1996 after he  persuaded
Prinvest to allow him to pick up Prinvest's check  for $47,000 from
DCPS and deliver it to Prinvest's D.C. office.  The check never
arrived. Instead, Robinson convinced a  teller at Industrial Bank that
Prinvest was one of the compa- nies he owned and deposited the check
in Kedar's account.  Failing to receive the check as promised,
Prinvest ended its  agreement with Robinson. Shortly thereafter, DCPS
learned  of the Prinvest incident, terminated its contract with Robin-
son, and took over operation of the Kedar school.


A federal grand jury indicted Robinson on eleven counts of  defrauding
the District school system. Ten counts related to  the wire transfers
to Kedar's account and one related to his  theft of the Prinvest
check. After a few hours of deliberation,  a jury found Robinson
guilty on the ten counts of wire fraud  and on the following day,
reached a guilty verdict on the bank  fraud charge. At sentencing, the
district court adjusted  Robinson's base offense level upward nine
levels, because the  loss amount exceeded $350,000, see U.S.S.G. s
2F1.1(b)(1)(J),  and another two levels for more than minimal
planning, see  U.S.S.G. s 2F1.1(b)(2)(A). Finding that Robinson had 
abused a position of trust, see U.S.S.G. s 3B1.3, the court  added a
two-level increase, bringing the total adjusted level to  19, with a
range of 30 to 37 months. The judge sentenced  Robinson at the top of
the range, noting with regret, "I think  that 37 months for this, for
the crimes that were committed,  is not significant enough.... If I
had had the authority ...  your sentence would be substantially more
than 37 months-- substantially more." As for restitution, the district
court  ordered Robinson to pay $301,910.63.


II


To comprehend Robinson's complaint about the two-level  upward
adjustment for abuse of a position of trust, we need  to look at the
sentencing transcript. The critical passage is  the one in which the
sentencing judge adds up each of the  enhancements to arrive at
Robinson's adjusted offense level.  Citing paragraph 27 of the
presentence report, the judge  imposed the two-step adjustment to the
base offense level  "because of Mr. Robinson's unique position as
president of  Kedar School, and because of that unique position, that 
significantly facilitated the commission of that bank-fraud  count."
The statement can only be interpreted in reference  to the section of
the presentence report the judge cited and  earlier exchanges during
the sentencing hearing. Although  the presentence report is under
seal, we can reveal that  paragraph 27 recommends an adjustment
pursuant to  U.S.S.G. s 3B1.3 based on Robinson's abuse of his


the Kedar School. Elsewhere the report strikes the same  theme.


The government argued that Robinson should receive a  two-level
increase because of his unique position with the  Prinvest
Corporation, which facilitated theft of the $47,000  check. The judge
went on to distinguish the government's  position from that taken by
the probation office in the presen- tence report, remarking that the
two were not inconsistent.  Later, when questioning the probation
officer, the judge again  inquired and was told that the two theories
were not inconsis- tent. The phrasing of the judge's reasoning in
imposing the  enhancement makes sense in view of his focus on ensuring
 that the two theories were not at odds. His specific reference  to
the presentence report further signifies his reliance on the 
probation office's sentencing recommendations. We are  therefore
persuaded that the statement, imposing the adjust- ment "because of
Mr. Robinson's unique position as president  of Kedar School, and
because of that unique position, that  significantly facilitated the
commission of that bank-fraud  count," was intended to encompass both


The question is whether the enhancement was justified on  either
account. A two-level upward adjustment must be  entered "[i]f 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.  s 3B1.3. Application of the provision
requires the sentencing  judge to inquire "(1) whether the defendant
occupied a posi- tion of trust; and (2) whether the defendant abused
that  position in a manner that significantly facilitated the commis-
sion or concealment of the offense." United States v. West,  56 F.3d
216, 219 (D.C. Cir. 1995).


"Public or private trust," the commentary guidelines ex- plain, "refers
to a position of public or private trust character- ized by
professional or managerial discretion." U.S.S.G.  s 3B1.3 application
note 1. The position of trust must have  made the detection of the
offense or the defendant's responsi- bility for the offense more
difficult. See id. It would apply, 


for example, to "a bank executive's fraudulent loan scheme"  but not to
a "theft by an ordinary bank teller" because that  position is not
characterized by professional or managerial  discretion. Id. In United
States v. Shyllon, we embraced  the following factors to guide us in
determining whether a  particular position constitutes a position of
trust:


The 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; defendants' level  of specialized knowledge; defendant's
level of authority  in the position; and the level of public trust.


10 F.3d 1, 5 (D.C. Cir. 1993) (citing United States v. Queen, 4  F.3d
925, 928-29 (10th Cir. 1993)). Using this approach, we  conclude that
as president of the Kedar School, Robinson did  occupy a position of
public trust.


The D.C. Public Schools selected Robinson to found and  operate a
school for its most severely emotionally disturbed  students.1 Paid
for with city funds, the school was expected  to fulfill the
District's obligation to provide a free public  education to all local
school children. Parents of students  attending Kedar rightly expected
that their children would  receive the education and counseling
services they sorely  needed. Because Robinson was the founder and
director of  the school, he gained the public trust of the community
that  Kedar served. See United States v. Booth, 996 F.2d 1395,  1397
(2d Cir. 1993) (finding that status as a public school  teacher
constitutes a position of trust); United States v.  Pigno, 922 F.2d
1162, 1164 (5th Cir. 1991) (holding that school  superintendent
occupied a position of trust, making adjust- ment for abuse of public




__________

n 1 Students attending the Kedar School were classified by the 
District of Columbia State Education Agency as seriously emotion- ally
disturbed. Categorized as Level 4 DCPS special education  students,
they had needs that could not be accommodated by  traditional
neighborhood schools. See Presentence Report p 5, at 3.


In that regard, the extraordinary level of discretion given  to
Robinson in managing the day-to-day operations and fi- nances at Kedar
is hard to believe, particularly in light of his  non-existent
qualifications. Kedar was located in a building  separate from any of
the District's other public schools. As a  result, supervision of
operations at Kedar occurred only  through periodic visits from DCPS
special education moni- tors. These monitors, who visited Kedar a
total of three or  four times, were responsible for assessing the
school's compli- ance with federal law mandating that disabled
students re- ceive the educational and counseling services they
require.  See 20 U.S.C. s 1412. Monitoring did not include a review of
 Kedar's financial records. Robinson had full control over the 
invoices he submitted, enabling him to inflate the number of  students
with little fear of discovery. Further facilitating his  scheme,
Robinson had sole access to Kedar's checking ac- count at Industrial
Bank. He had complete discretion in  hiring staff for Kedar and in
setting its curriculum. His  authority over the school's employees was
absolute. In his  capacity as president of Kedar School, and in view
of the  broad managerial discretion that afforded, we find Robinson 
did occupy a position of public trust within the meaning of  U.S.S.G.
s 3B1.3. See, e.g., United States v. Becraft, 117  F.3d 1450, 1452-53
(D.C. Cir. 1997) (affirming abuse of trust  enhancement where office
manager's final authority over  ordering and marketing activities


Robinson abused that trust by misappropriating school  funds and
cheating emotionally disturbed children out of an  education. Instead
of paying for textbooks and school  lunches, the DCPS money went
toward promoting Robinson's  profligate lifestyle. His scheme to
defraud the District of  Columbia government could not have been
completed but for  Robinson's position as president and founder of the
Kedar  School. He controlled the billing process, was subject to
little  supervision from DCPS, and was the only person with access  to
Kedar's account. By diverting the school's money to  expenditures
unrelated to Kedar, Robinson exploited the role  entrusted to him, to
the detriment of both the D.C. public 


schools and its neediest students. See id.; United States v.  Broumas,
69 F.3d 1178, 1181-82 (D.C. Cir. 1995) (holding  bank director abused
position of trust by using privileges of  position to execute
check-kiting scheme).


We are obliged to give due deference to the district court's 
application of the Sentencing Guidelines to the facts of this  case.
See 69 F.3d at 1180-81 (citing United States v. Kim, 23  F.3d 513, 517
(D.C. Cir. 1994)). Doing so, we find the district  court's decision to
impose an abuse of trust adjustment on  account of Robinson's position
at the Kedar School wholly  appropriate. Because affirmance on this
ground is sufficient,  we do not decide whether the circumstances
surrounding  conversion of the Prinvest check would similarly warrant
a  two-step adjustment.


III


The district court awarded restitution in the amount of  $301,910.63 to
compensate the losses of DCPS and thirteen  individuals. That amount,
the government concedes, should  be decreased by $13,000 to reflect
money Robinson withdrew  but later returned to the Kedar checking
account. See Brief  for Appellee at 45. Before oral argument, Robinson
with- drew his objection with respect to the sum used for his 
personal expenses but still objects to the amount designated  for
unpaid rent and for victims other than DCPS. Robinson  believes the
money owed to Kedar employees and vendors  should be paid out of the
restitution awarded to DCPS;  otherwise he claims, the court double
counts these expenses.


His objections were never raised at sentencing. When he  argued against
restitution in the district court, Robinson  objected only to his
having to reimburse money that actually  went toward Kedar School's
expenses. That amount was not  included in the restitution award
approved by the district  court. Robinson failed to refute the
restitution figures, recit- ed in the presentence report, regarding
the individual parties  and he did not contest the inclusion of unpaid
rent and  salaries. The judge was therefore permitted to rely on the 
figures set out in the presentence report without requiring 


the government to present additional evidentiary support.  See United
States v. Booze, 108 F.3d 378, 381-82 (D.C. Cir.  1997). As a result,
Robinson's objections on appeal are  subject only to plain error
review. See Fed. R. Crim. P. 52(b);  United States v. Wolff, 195 F.3d
37, 40 (D.C. Cir. 1999);  United States v. Saro, 24 F.3d 283, 287-88
(D.C. Cir. 1994).


Robinson's double counting argument does not make out a  case of plain
error. The DCPS contract was for educational  services; hiring staff
and procuring supplies was Robinson's  responsibility. By violating
that contract, Robinson now owes  DCPS the amount it paid that was not
used to provide the  contracted-for-services. In other words, he must
reimburse  DCPS for all funds not used to educate students referred to
 the Kedar School. DCPS, by contrast, has no obligation nor  agreement
with Kedar's staff or vendors. Robinson alone is  responsible for the
losses of DCPS and Kedar's employees.  It does not follow that DCPS
should then pay the salaries and  expenses of the Kedar School. For
similar reasons, the  unpaid rent should not be deducted from the
diverted school  expenses. The lease contract was independent of the
school  contract. As the government's brief rightly points out, had 
Robinson chosen to lease property not owned by the District,  surely
DCPS would not be held accountable for that property  owner's loss.
See Brief for Appellee at 17 n.12. Because  Robinson cannot establish
plain error, we uphold the order of  restitution but direct that it be
reduced by $13,000 to correct  a computational error the government
admirably has brought  to our attention.


Affirmed in part, modified in part.