01-3170 U.S. v. Tiojanco

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“We think Tiojanco fits comfortably within the class of discretionary decisionmakers covered by the guideline and are unpersuaded by his argument that he is more like the ‘ordinary bank teller or hotel clerk’ who is exempted from the adjustment. See U.S.S.G. sec.3B1.3, comment. (n.1) (‘adjustment does not apply in the case of an embezzlement or theft by an ordinary bank teller or hotel clerk’). Certainly he was a ‘clerk’ who worked in a ‘hotel,’ but the Palmer House obviously contemplated that he would have primary responsibility for issuing well over $50,000 in customer refunds each year; otherwise, the average of $50,000 Tiojanco tacked on for himself and his accomplices in each of the 5 years he carried out his fraud could not have gone unnoticed. This is not the type of responsibility granted to a typical hotel desk clerk.

“Tiojanco also suggests he could not have occupied a position of trust because he was a ‘low-level’ employee earning a modest salary ($26,000 to $27,000) and has no professional degree or even formal training in accounting. But as we have explained before, a defendant’s ‘educational or other credentials … are of little significance in assessing whether the position he occupied was one of trust.’ Deal, 147 F.3d at 563; see also Frykholm, 267 F.3d at 612 (whether defendant was licensed broker does nothing to answer the position of trust question). Practical experience and a long track record with the company are other factors that lead employers to entrust employees with responsibilities that might otherwise go to someone with more formal education (and thus a higher salary). See Deal, 147 F.3d at 563. This is precisely what happened to Tiojanco, who was promoted to the Palmer House’s accounting department after 5 years’ work as a ‘storeroom clerk.'”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Castillo, J., Evans, J.