                Case: 12-12497        Date Filed: 09/23/2013       Page: 1 of 5


                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 12-12497
                               ________________________

                      D.C. Docket No. 8:09-cr-00585-SCB-TBM-2

UNITED STATES OF AMERICA,


                                                                            Plaintiff-Appellee,

                                             versus

MARIAN I. MORGAN,


                                                                        Defendant-Appellant.

                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                            ________________________

                                    (September 23, 2013)

Before BARKETT and MARCUS, Circuit Judges, and HUCK, * District Judge.

PER CURIAM:



       *
          Honorable Paul C. Huck, United States District Judge for the Southern District of
Florida, sitting by designation.
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      Following a jury trial, Marian Morgan was convicted of one count of

conspiracy to defraud the United States, seven counts of wire fraud, five counts of

transfer of funds taken by fraud, six counts of engaging in a monetary transaction

involving criminally derived property, and three counts of making false statements

on income tax returns. She received a total sentence of 420 months’ imprisonment,

below the advisory guideline range of 264 years. Morgan appeals her conviction

arguing that the district court erred by allowing the government to introduce

evidence of her husband’s guilty plea through the testimony of his attorney. As to

her sentence, she argues that it is substantively unreasonable and that the district

court erred in applying three separate sentencing enhancements: (1) four levels for

being an organizer or leader of criminal activity under U.S.S.G. § 3B1.1(a); (2)

two levels for abuse of a position of trust under U.S.S.G. § 3B1.3; and (3) two

levels for obstruction of justice under U.S.S.G. § 3C1.1.

      Having carefully reviewed the parties’ briefs and the record and having the

benefit of oral argument, we find no reversible error in the district court’s rulings

with the exception of the application of the abuse of trust enhancement. The

evidence failed to establish that Morgan occupied a position of trust distinct from

that which this Court has found inadequate to justify the abuse of trust

enhancement. The abuse of trust enhancement requires more than a showing of an




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arms-length transaction or commercial relationship that one would find in any

investment fraud case, which we find to be the situation here.



      Under U.S.S.G. § 3B1.3, a two-level enhancement is applied 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.” U.S.S.G. § 3B1.3. In order for the abuse of a position of trust

enhancement to apply, the government must establish that: (1) “the defendant held

a place of private or public trust,” (2) the victim conferred the trust, and (3) the

defendant “abused that position in a way that significantly facilitated the

commission or concealment of the offense.” United States v. Walker, 490 F.3d

1282, 1300 (11th Cir. 2007).

      In United States v. Mullens, 65 F.3d 1560, 1566-67 (11th Cir. 1995), where

the defendant operated an elaborate Ponzi scheme that tricked investors into giving

the defendant unfettered control over their funds, which were never invested, this

Court held that the defendant did not occupy a position of trust simply by

developing ordinary social relationships with some of his investors, and the abuse

of trust enhancement did not apply.

      Likewise in United States v. Morris, 286 F.3d 1291, 1292 (11th Cir. 2002),

the conspirators obtained investors’ funds by purporting to offer high-yield


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investment opportunities and then using wire transfers to send the funds to other

persons or entities. One conspirator, Morris, represented himself as an attorney

and professional trader and used these representations to encourage investors to

transfer him their funds. Id. at 1295-96. Morris “contacted and maintained

contact” with the investors directly and called one victim numerous times and

falsely assured that the victim’s money was on the way. Id. at 1296. We stated,

“Morris may have abused the trust of the victims, but that is not the inquiry here.

The initial question is whether or not Morris occupied a position of trust.” Id. at

1297. We held that although Morris may have used his status as an attorney to

develop the trust of his victims and represented himself as a professional trader,

more was required than control or discretion to justify the § 3B1.3 enhancement.

Id. at 1298. “Something more akin to a fiduciary function is required.” Id. at

1299. Thus, we held that the abuse of trust enhancement was improper. Id. at

1300.

        Neither the PSI nor the district court identified any particular investor or

group of investors with whom Morgan had any association, much less a bona fide

relationship of private trust, other than to perpetrate MEH’s investment fraud.

While Morgan fraudulently induced the investors to trust her and MEH with their

money, the government failed to establish that she abused a bona fide relationship

of trust as contemplated by U.S.S.G. § 3B1.3. See Mullens, 65 F.3d at 1567


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(“Fraudulently inducing trust in an investor is not the same as abusing a bona fide

relationship of trust with that investor.”). Thus, the district court erred in applying

the two-level enhancement for abuse of trust under U.S.S.G. § 3B1.3.

      Accordingly, we hereby AFFIRM Morgan’s conviction, and VACATE the

sentence imposed and REMAND for resentencing.




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