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United States v. Simmerman

United States Court of Appeals, Sixth Circuit

March 9, 2017

United States of America, Plaintiff-Appellee,
v.
Kathryn Sue Simmerman, Defendant-Appellant.

          Argued: January 24, 2017

         Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:15-cr-00127-Robert Holmes Bell, District Judge.

         ARGUED:

          Donald A. Davis, SPRINGSTEAD BARTISH & BORGULA LAW, PLLC, Grand Rapids, Michigan, for Appellant.

          Clay Stiffler, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

         ON BRIEF:

          Gary K. Springstead, SPRINGSTEAD BARTISH & BORGULA LAW, PLLC, Fremont, Michigan, for Appellant.

          Clay Stiffler, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

          Before: MERRITT, CLAY, and DONALD, Circuit Judges.

          OPINION

          BERNICE BOUIE DONALD, Circuit Judge.

         The appellant, Kathryn Simmerman, pled guilty, pursuant to a plea agreement, to one count of embezzling $1, 528, 000 from Shoreline Federal Credit Union (Shoreline), in violation of 18 U.S.C. § 657 (Count 1), and one count of structuring the deposits of the money she stole to evade the reporting requirements of 31 U.S.C. § 5313(a), in violation of 31 U.S.C. § 5324(a)(3) and (d)(1) (Count 2). The district court assessed Simmerman's total offense level to be 28, based on a base offense level of seven, a sixteen-level increase for a loss amount between $1 million and $2.5 million, a two-level increase for sophisticated means, four-level increase for jeopardizing the soundness of a financial institution, a two-level increase for abuse of a position of trust, and a three-level reduction for acceptance of responsibility and a timely plea. With a criminal history category of I, Simmerman's guideline range was 78-97, months and she was sentenced to 78 months on Count 1 and 60 months on Count 2, to be served concurrently. Simmerman raised the following issues on appeal: whether the district court's sentence was in error because it assessed enhancements for (1) sophisticated means (U.S.S.G. § 2B1.1(10)(C)); (2) jeopardizing the soundness of a financial institution (U.S.S.G. § 2B1.1(b)(16)(B)(i)); and (3) abuse of a position of trust (U.S.S.G. § 3B1.3). Because the district court was not clearly erroneous when it assessed the sentencing enhancements, we AFFIRM the district court's decision.

         I.

         In 1987, at the age of twenty-six, Simmerman began working at Shoreline. In 2000 she became assistant manager, and in 2006 she became Shoreline's manager. Simmerman was responsible for making investments and preparing Shoreline's financial statements, which she presented to Shoreline's part-time board, the National Credit Union Administration (NCUA), and Shoreline's auditors, Financial Standards Group. Simmerman was also responsible for taking cash from the vault each day and giving it to the credit union tellers so they could service customers. Simmerman admitted that she first began stealing money from Shoreline in 1998. Simmerman's acts were discovered during a routine annual audit in 2014.

         Simmerman effected her scheme using the following method: Simmerman would remove cash from the "vault, " a filing cabinet located within the credit union. She would use the "teller module, " a computer program used by all employees to track monies within the credit union, to make an entry showing the amount of cash she had removed from the vault had been deposited into another teller's drawer. However, the drawer she deposited the stolen funds was a virtual, fictitious drawer denoted by a code not recognized by the system and which did not correspond to an actual teller drawer. Thus, the vault amount was accurately reflected as having been reduced, but because the teller module did not recognize the fictitious drawer designation, the deposit into the fictitious drawer was recorded by default into a "general ledger suspense account." At the end of the day wherein she made one of these transfers, she made a manual entry suggesting that a transfer from the general ledger suspense account back to the vault had occurred in order to prevent the general ...


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