499 P.2d 335 (1972)
Marlowe C. TREIT, Appellant,
v.
OREGON AUTOMOBILE INSURANCE CO., Respondent.
Supreme Court of Oregon.
Argued and Submitted March 1, 1972.
Decided July 13, 1972.
Raul Soto-Seelig, Portland, argued the cause for appellant. With him on the briefs was Paul J. Rask, Portland.
James P. Wall, Portland, argued the cause for respondent. With him on the brief were Thomas H. Tongue, and Morrison, Bailey, Dunn, Cohen & Miller, Portland.
Before O'CONNELL, C.J., and McALLISTER, DENECKE, HOLMAN, and HOWELL, JJ.
HOLMAN, Justice.
Plaintiff brought this action to recover the value of a trailer, which he had insured with defendant against theft. The trial judge, who tried the case without a *336 jury, found for defendant. The judge ruled that, on the basis of plaintiff's failure to satisfy the court that he was an innocent purchaser of the vehicle, plaintiff failed to prove by a preponderance of the evidence that he possessed an insurable interest in the trailer. The major issue in the case is whether, under the circumstances here, there is a necessity that plaintiff be an innocent purchaser in order to establish that he had an insurable interest.
We note that neither the trial court nor the authorities cited by counsel define "innocent purchaser." But the record indicates that the judge assumed, and, we conclude, properly so, that an "innocent purchaser" is one who has no reasonable grounds to suspect that the person from whom he buys an article did not have good title.
Plaintiff testified that, being in the market for a trailer, he had noticed the vehicle in question parked on a service station lot. On an occasion when he made a closer inspection, he discovered a man he had never seen before within the trailer who purported to be the owner. In fact, the trailer belonged to someone else. Plaintiff arranged to purchase it from the person in the vehicle. Plaintiff claims he made a $500 down payment, and agreed to pay an additional $1,000 at a later date. He indicated that the seller was to have delivered to him the certificate of title, which plaintiff never saw, when the second payment was made. However, the seller disappeared long before that date arrived. Plaintiff testified that he spent considerable time and money refurbishing the trailer since its purchase. However, he did not call any witnesses nor produce any records to verify his testimony except a purported bill of sale which set forth the above terms. He claimed to have paid the $500 down payment in cash though he had a checking account.
The trial judge found that there was a "slight stench" surrounding the alleged transaction and indicated that he had little faith in the veracity of the plaintiff. Certainly, because of the paucity of plaintiff's proof of the circumstances under which he secured the trailer and of the lack of plausibility of his story, there was a basis for the trial judge's finding that plaintiff failed to prove satisfactorily that he was an innocent purchaser. If the circumstances here require plaintiff to be an "innocent purchaser" in order to have an insurable interest, the trial judge's determination of the case will have to stand.
After plaintiff took possession of the trailer, the true owner filed a conversion action against plaintiff in February of 1969, charging that he had delivered the trailer for safekeeping to the proprietor of the service station from whence plaintiff said he secured the trailer and that the proprietor wrongfully delivered the trailer to plaintiff. In April of 1969 plaintiff insured the trailer with defendant. In May the trailer was stolen. The conversion case was subsequently tried and resulted in a judgment for $2,100 against plaintiff.
Many authorities do hold that in order to have an insurable interest, the purchaser must be "innocent."[1] Some courts even say that an innocent purchaser does not have an insurable interest if the article is purchased from a thief.[2]
In Fenter v. Gen. Acc. Fire & Life Assur., 92 Or.Adv.Sh. 757, 484 P.2d 310 (1971), this court pointed out that an insurable *337 interest is a prerequisite to recovery because such a requirement prevents wagering on insurance contracts and eliminates the temptation to the insured to destroy the property. An insurable interest is described in Fenter in the following manner:
"* * * We have never held that an interest in property, to be insurable, must be legally enforceable. We seem to have inquired only whether the insured had a direct pecuniary interest in the preservation of the insured property. In Bird v. Central Mfg. Ins. Co., 168 Or. 1, 6, 120 P.2d 753, 755 (1942), we said
"`* * * It is well settled that any one has insurable interest in property who derives a benefit from its existence or would suffer loss from its destruction. It is sufficient to constitute an insurable interest in property that the insured is so situated with reference to the property that he would be liable to loss should it be injured or destroyed by the peril against which it is insured. * * *'" 92 Or.Adv.Sh. at 761-762, 484 P.2d at 312.
It follows that an insurable interest should be defined in the terms of the insured's economic interest in the article covered, rather than depend on whether the insured is an "innocent purchaser." It is the insured's economic interest in the article which prevents the insurance contract from becoming a wager or an arrangement which encourages fraud. Such a rule provides adequate protection so long as contracts of insurance are treated as ones of indemnity, and recovery is allowed solely on the basis of the extent of the insured's economic interest in the insured article. If a sufficient economic interest is present to prevent the insurance policy from becoming a wagering contract and to prevent the goods from being intentionally destroyed by the insured, there is no necessity that the purchaser be "innocent."
The rule is further stated as follows in Harnett and Thornton, "Insurable Interest in Property: A Socio-Economic Reevaluation of a Legal Concept," 48 Colum.L.Rev. 1162, 1185 (1948):
"Based on economic analysis it is submitted that there is only one true concept of insurable interest, and that is the factual expectation of damage. Restated, this conception is that insurable interest exists if the insured, independently of the policy of insurance, will gain economic advantage from the continued existence of the insured property, or will suffer economic disadvantage on damage to the property * * *."
At the time plaintiff insured the trailer and at the time of the loss there was no temptation on plaintiff's part to destroy the trailer (other than the temptation to which every insured is subject to convert an insured article into cash). His possession of the vehicle had already been discovered by the true owner and the action of conversion had been brought against him. At that time plaintiff could not possibly have been benefited by the destruction or disappearance of the trailer. If he lost the conversion case (he did), he owed the value of the trailer to the owner; if he won the case, his right to the trailer would be confirmed. In either event, his interest in the trailer was such that he would suffer the loss of its value by its destruction or disappearance.
In the present case, plaintiff's economic interest in the insured article is not the amount he paid for it plus his cost of renovation, but it is the actual value of the trailer at the time of its loss. At that time, the risk of such loss was his and there was no monetary advantage or risk of discovery which could conceivably induce fraud on his part. Consequently, the "innocent purchaser" rule has no proper application in this case.
Finally, the trial court ruled that the defendant met its burden of proof on its affirmative defense that plaintiff and his wife knowingly concealed a material fact *338  the pendency of the conversion action  when the wife made the application for the insurance. Representatives of the defendant testified that they would not issue a policy on an article when the applicant was a defendant in a conversion action concerning the item. However, there is no reasonable ground for refusing insurance in such a case because, as the agent who actually issued the policy indicated, a dispute over ownership of the vehicle would not increase the hazard of loss because the "exposure would be there no matter who owned it."
Nevertheless, there is a dispute in the testimony whether plaintiff's wife, who made the application for insurance by telephone, informed the agent of a "legal matter" concerning the trailer. But there is agreement that she informed him that she and plaintiff did not have "title," although the agent took this to mean they did not have a certificate of title. Nothing in this evidence indicates an intentional concealment of the conversion action. We held in McDaniel v. Insurance Co. of Oregon, 243 Or. 1, 410 P.2d 814 (1966), that absent a written application or other means of placing the insured on notice that a condition was considered material by the insurer, the insured could not be expected to know that a condition was material. There is no requirement that the insured take the initiative in bringing matters to the attention of the insurer in the absence of a showing that the insured should have been cognizant of their materiality. The record cannot be held to support a finding that defendant insurer met its burden of proof as to intentional concealment of a material fact by plaintiff and his wife.
The judgment of the trial court is reversed and the case is remanded to the trial court for entry of a judgment in favor of plaintiff in accordance with the terms of the policy and in such sum as the trial court shall determine the value of the insured property to have been at the time of its loss.
McALLISTER, Justice (concurring).
In my view this case does not turn on whether plaintiff was an innocent purchaser. When the true owner discovered that plaintiff wrongfully had possession of his trailer and elected to bring a conversion action against plaintiff he vested plaintiff with an insurable interest in the trailer. If the true owner prevailed in the conversion action plaintiff would be liable for the value of the trailer at the time of the conversion, even though the trailer was lost or destroyed during the pendency of the action. If plaintiff prevailed in the conversion action his right to possession of the trailer would be judicially established. In the event of either outcome of the conversion action plaintiff had a pecuniary interest in the trailer and would suffer a loss by its destruction.
When the true owner filed the conversion action the "innocent purchaser" question was no longer material. I concur in the result of the majority opinion.
HOWELL, Justice (dissenting).
The majority opinion states that there was evidence supporting the trial court's finding that plaintiff was not an innocent purchaser of the trailer. However, as I understand the majority opinion, it holds that, under the circumstances of this case, plaintiff was not required to sustain the burden of proving himself to be an innocent purchaser in order to have an insurable interest because (1) an insurable interest is an "economic" interest, and (2) plaintiff had an "economic" interest in the trailer because the true owner had brought a conversion action against him.
To the best of my knowledge, this is the first time a court has decided the question of whether a person who purchases goods from a thief has an insurable interest in the goods on some grounds other than the status of the purchaser. If the purchaser is an innocent purchaser he has an insurable interest in the article; if he is not an *339 innocent purchaser he does not have an insurable interest.[1]
The result of the majority opinion is that one who knowingly purchases from a thief, or the thief himself, can insure the object, and if it is stolen again from him he has an insurable interest because he has an "economic" interest in the article. His case for recovery against his insurer is made even stronger if the true owner finds him and files a conversion action before his action on his insurance policy has been litigated. As a result it could be to the advantage of the purchaser from a thief, or the thief, to have the goods stolen again, or destroy them himself, because it would result in converting the goods into cash, thereby relieving himself of the dangers of possession.
Plaintiff's right to recover in this case should be decided on the basis of whether he was an innocent purchaser. It should not be decided on the basis of an economic interest in the trailer and whether or not the true owner brought an action of conversion against him. Even one who knowingly purchases from a thief, or, for that matter, the thief himself, could be said to have an economic interest in the article to some extent. The fact that the true owner brought a conversion action is not relevant. Would plaintiff have an insurable interest if the true owner had failed to find him and sue him for conversion? What would be the result if plaintiff had sued defendant on his policy and the conversion action was brought after the action on the policy had been litigated?
As there was substantial evidence to support the trial court's finding that plaintiff failed to sustain his burden of proof, I would affirm.
NOTES
[1]  Nelson v. New Hampshire Fire Ins. Co., 263 F.2d 586 (9th Cir.1959); Perrotta v. Empire Mutual Ins. Co., 35 A.D.2d 961, 317 N.Y.S.2d 779 (1970); Lindner v. Hartford Ins. Co., 33 A.D.2d 686, 306 N.Y.S.2d 255 (1969).
[2]  See, e.g., Napavale v. United National Indemnity Co., 169 Cal. App.2d 119, 336 P.2d 984 (1959); Gordon v. Gulf American Fire & Casualty Co., 113 Ga. App. 755, 149 S.E.2d 725 (1966); Hessen v. Iowa Automobile Mutual Insurance Co., 195 Iowa 141, 190 N.W. 150 (1922); Friscia v. Safeguard Insurance Co., 57 Misc.2d 759, 293 N.Y.S.2d 695 (1968); Annot., 33 A.L.R.3d 1417, 1419, 1421-1423 (1970).
[1]  Smith v. State Farm Mutual Automobile Insurance Co., 231 So.2d 193 (Fla. 1970); Skaff v. United States Fidelity & Guaranty Co., 215 So.2d 35 (Fla.App. 1968); Barnett v. London Assurance Corp., 138 Wash. 673, 245 P. 3 (1926); Scarola v. Insurance Company of America, 67 Misc.2d 269, 323 N.Y.S.2d 999 (1970), aff'd 67 Misc.2d 437, 323 N.Y.S. 2d 1001 (1971); cf. Savarese v. Hartford Fire Insurance Co., 99 N.J.L. 435, 123 A. 763 (1924); Norris v. Alliance Ins. Co. of Philadelphia, 1 N.J. Misc. 315, 123 A. 762 (1923); Nelson v. New Hampshire Fire Ins. Co., 263 F.2d 586 (9th Cir.1959); Perrotta v. Empire Mutual Ins. Co., 35 A.D.2d 961, 317 N.Y.S.2d 779 (1970); Lindner v. Hartford Ins. Co., 33 A.2d 686, 306 N.Y.S.2d 255 (1969).


                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                            No. 98-6598

EARL N. OWENS,

                                              Plaintiff - Appellant,

          versus

PARRIS N. GLENDENING, Governor; LAMONT W.
FLANAGAN, Commissioner; WILLIAM JEDNORSKI,
Warden; OFFICER PEARSON; OFFICER KELLER,

                                           Defendants - Appellees.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CA-97-1839)

Submitted:   January 12, 1999             Decided:   March 12, 1999

Before WIDENER, WILKINS, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Earl N. Owens, Appellant Pro Se. John Joseph Curran, Jr., Attorney
General, Glenn T. Marrow, OFFICE OF THE ATTORNEY GENERAL OF MARY-
LAND, Baltimore, Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Earl Owens, a Maryland inmate, filed an action against various

prison officials alleging that they violated his constitutional

rights by not protecting him from other inmates.     He now appeals

the district court order granting Defendants’ motion for summary

judgment and dismissing Owens’ complaint filed pursuant to 42

U.S.C. § 1983 (1994).

     We have reviewed the record and the district court’s opinion

and find no reversible error.   We affirm the court’s dismissal of

Defendants Governor Parris Glendening, Commissioner of Pre-trial

Detention & Services Lamont Flanagan, Warden William Jednorski, and

Officer Mark Keller based on the reasoning of the district court.

As to Defendant Officer William Pearson, we find that Owens failed

to submit sufficient evidence cognizable on summary judgment to

show that a trial was necessary on the issue of whether Officer

Pearson knew of a substantial risk of harm to him.   See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 251 (1986) (requiring nonmoving

party to submit more than just some evidence to avoid summary judg-

ment); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (stating

that nonmoving party must allege “‘specific facts showing there is

a genuine issue for trial’”).    Accordingly, we also affirm the

court’s granting of summary judgment to Defendant Pearson. We fur-

ther deny Owens’ motion for summary remand.   We dispense with oral

argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not

aid the decisional process.

                                                         AFFIRMED


                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2097
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        *    Appeal from the United States
      v.                                *    District Court for the
                                        *    Northern District of Iowa.
Daniel Eric Beenen,                     *
                                        *    [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: September 22, 2008
                                Filed: December 31, 2008
                                 ___________

Before BYE, BEAM and COLLOTON, Circuit Judges.
                           ___________

PER CURIAM.

       Daniel Eric Beenen appeals his sentence after pleading guilty to four charges
involving the receipt and possession of child pornography. In calculating Beenen's
offense level under the United States Sentencing Guidelines (U.S.S.G.), the district
court1 imposed several enhancements, including a four-level increase for possessing
materials with sadistic, masochistic or violent content and a five-level increase for
engaging in a pattern of sexual abuse or exploitation of a minor. See U.S.S.G. §§

      1
        The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
2G2.2(b)(4) & (b)(5). After determining that Beenen's advisory Guidelines range was
210-262 months' imprisonment, the district court imposed the statutory maximum
sentence available for each offense: 240 months' imprisonment on Count 1, and three
terms of 120 months' each on Counts 2-4, to run concurrently with the sentence
imposed on Count 1. On appeal, Beenen contests the two enhancements and
challenges his sentence as substantively unreasonable.

       We review the district court's application and interpretation of the Guidelines
de novo, while findings of fact are reviewed for clear error. United States v. Johnston,
533 F.3d 972, 976 (8th Cir. 2008). Applying those standards, we have no hesitation
in concluding that the district court properly assessed the four-level enhancement for
possessing "material that portrays sadistic or masochistic conduct or other depictions
of violence." U.S.S.G. § 2G2.2(b)(4). Because the Guidelines do not define the terms
"sadistic," "masochistic," or "depictions of violence," their ordinary meanings guide
our review. United States v. Parker, 267 F.3d 839, 847 (8th Cir. 2001). Suffice it to
say that in this case, we are satisfied that certain images Beenen possessed fall within
the ordinary meaning of at least some of those terms. E.g., id. ("Given the plain
meaning of 'violence,' it is difficult to imagine that the sexual penetration with a
foreign object of a minor female would not qualify.").

      We likewise conclude that the district court properly assessed the five-level
increase for engaging in a pattern of sexual abuse or exploitation of a minor. U.S.S.G.
§ 2G2.2(b)(5). That enhancement is warranted where a defendant has engaged in two
or more instances of sexual abuse or exploitation of a minor, whether or not the
incidents occurred during the course of the instant offense, involved the same minor,
or resulted in a conviction. Id. § 2G2.2(b)(5), cmt. n.1. At Beenen's sentencing
hearing, his twenty-five-year-old nephew, M.S., testified at length about the many
instances of sexual abuse he suffered at his uncle's hands during his preteen and early
teenage years. The district court found M.S. to be a very credible witness,
notwithstanding the fact that certain details of his story were contradicted by other

                                          -2-
witnesses. The court also opined that the passage of time might account for the
witnesses' differing recollections of those details. On appeal, Beenen urges us to
discount M.S.'s testimony because of those same discrepancies, and to conclude that
the enhancement is lacking in evidentiary support. We decline to do so. As we have
often remarked, "'credibility findings are well-nigh unreviewable, so long as the
findings are not internally inconsistent or based on testimony that is incoherent,
implausible, or contradicted by objective evidence in the case.'" Johnston, 533 F.3d
at 976 (emphasis added) (quoting United States v. Jones, 254 F.3d 692, 695 (8th Cir.
2001)). As the district court's finding with regard to M.S.'s credibility suffers from
no such deficiencies, this case is no exception. And in light of that testimony, the
district court did not clearly err in finding that Beenen engaged in a pattern of sexual
abuse or exploitation of a minor within the meaning of section 2G2.2(b)(5).

       Finally, Beenen argues that his 240-month sentence is unreasonable and that a
downward variance was warranted based on his community involvement, familial
obligations, lack of criminal history and other circumstances. We review the
substantive reasonableness of a sentence for an abuse of discretion, and accord a
presumption of reasonableness to a sentence within the advisory range. United States
v. Zastrow, 534 F.3d 854, 855-56 (8th Cir. 2008). Here, we find nothing in Beenen's
arguments to rebut that presumption. See United States v. Peck, 496 F.3d 885, 891
(8th Cir. 2007) (describing the showing required to rebut the presumption), cert.
denied, 128 S. Ct. 1271 (2008). While the circumstances cited by Beenen indicate
that another sentence might also have been reasonable in this case, it does not follow
that the sentence he actually received is unreasonable. The record reflects that the
district court considered the parties' arguments, carefully weighed the relevant
sentencing factors delineated in 18 U.S.C. § 3553(a), and gave detailed reasons for

                                          -3-
selecting this sentence from the range of permissible alternatives. As such, we
conclude that Beenen's 240-month sentence is within the bounds of the district court's
considerable sentencing discretion.

      For the foregoing reasons, the judgment of the district court is affirmed.
                          ______________________________

                                         -4-


815 F.2d 711
Bursonv.Hanover Ins. Co.
86-1600
United States Court of Appeals,Eighth Circuit.
2/5/87

1
E.D.Mo.

AFFIRMED


94 F.3d 645
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Charles McBRIDE, Plaintiff-Appellant,v.CITY OF JACKSON;  Claude Martin, individually and in hisofficial capacity as City Engineer of the City ofJackson, Defendants-Appellees.
No. 95-6382.
United States Court of Appeals, Sixth Circuit.
Aug. 9, 1996.

Before:  LIVELY, KENNEDY, and SILER, Circuit Judges.

ORDER

1
Charles McBride appeals a district court order enforcing a settlement agreement in his civil rights action filed pursuant to 42 U.S.C. § 1983.  Counsel for both parties have waived oral argument and this panel unanimously agrees that oral argument is not needed.  Fed.R.App.P. 34(a).

2
Seeking monetary and injunctive relief, McBride sued the City of Jackson and the City Engineer, alleging that the defendants violated his due process rights when they terminated his employment with the city.  On May 1, 1995, a magistrate judge conducted a settlement conference with the parties and their attorneys, at which conference McBride accepted defendants' offer.  However, McBride subsequently refused to execute the settlement papers and the defendants filed a motion for enforcement of the settlement agreement.  Following a hearing, the district court granted the defendants' motion.  McBride has filed a timely appeal from this order.

3
The district court properly enforced the settlement agreement in this case.  The district court retains the power to enforce settlement agreements entered into between the parties during pending litigation.  Bamerilease Capital Corp. v. Nearburg, 958 F.2d 150, 152 (6th Cir.), cert. denied, 506 U.S. 867 (1992).  Although this court may freely review the district court's legal conclusions concerning the existence of an enforceable oral contract, the underlying factual determinations must be upheld unless they are clearly erroneous.  Roth Steel Prods. v. Sharon Steel Corp., 705 F.2d 134, 143 (6th Cir.1983).

4
After hearing the testimony at the hearing on the defendants' motion, the district court properly determined that the parties entered into a valid settlement agreement.  The testimony of the magistrate judge clearly indicates that McBride agreed to the settlement in this case.  Indeed, McBride's own testimony at the hearing supports this conclusion.  Further, the testimony at the hearing does not support McBride's contentions that he was too ill to understand the settlement conference proceedings or that his acceptance of the settlement was contingent upon waiting a twenty-four hour period.

5
Accordingly, this court affirms the district court's judgment.


199 F.2d 219
SCHUMANN,v.ROSS.
No. 10574.
United States Court of Appeals, Seventh Circuit.
Oct. 16, 1952.

Samuel Morgan, Leslie E. Salter, Morgan, Salter & Sellery, Chicago, Ill., for plaintiff-appellant.
James W. Breen, Chicago, Ill., for appellee.
Before DUFFY, LINDLEY and SWAIM, Circuit Judges.
SWAIM, Circuit Judge.

1
This is an appeal from a judgment denying the plaintiff, A. H. Schumann, overtime compensation, damages and attorneys' fees which the plaintiff claimed under § 16(b) of the Fair Labor Standards Act, 29 U.S.C.A. § 216(b), because of the alleged failure of the defendants to pay him for overtime pursuant to § 7(a)(3) of the Act, 29 U.S.C.A. § 207(a)(3).  This latter section of the Act prohibited the employer from employing any employee, engaged in the production of goods for commerce, for more than 40 hours per week without paying such employee at least time-and-one-half for the hours worked in excess of 40 hours.  Section 16(b) of the Act made an employer violating § 7(a)(3) of the Act liable to the employee for unpaid overtime compensation, for an equal amount as liquidated damages and for a reasonable fee for the employee's attorney.  29 U.S.C.A. § 216(b).

2
The defendants alleged that during the entire period of his employment the plaintiff was an employee exempt from the requirements of § 7 of the Act, within the meaning of § 13(a)(1) of the Act, 29 U.S.C.A. 213(a)(1), in that the plaintiff was employed in a 'bona fide executive' capacity as that term was defined by the Administrator of the Wage and Hour Division of the Department of Labor, pursuant to the express authorization to the Administrator in § 13(a) (1).

3
The individual defendants, as partners, were engaged in the business of packaging and selling olives and other food products under the firm name of Kitchen-Ease Food Products Company from September 29, 1947 to December 31, 1947.  The business was then taken over and operated by the corporate defendant, Kitchen-Ease Food Products Company, Inc., the corporate defendant continuing the operation of the business during the remainder of the time here in question.

4
The plaintiff was employed on September 29, 1947, as plant superintendent.  He worked under this title until some time in January 1949 when he was elected president of the corporation, in which office he served until he left the company in May 1949.  The plaintiff contended that his election to the office of president did not result in any change in the duties assigned to him in his employment.  He contended that during the entire period of his employment he worked 80 hours per week, and that much of his work was manual labor which he performed in the plant where he worked, with the nonexempt employees, at work of the same type which the nonexempt employees were performing.

5
The Administrator defined an 'employee employed in a bona fide executive * * * capacity', 29 Code Federal Regulations, Ch. 5, Pt. 541; 29 U.S.C.A.Appendix, § 541.1, as meaning any employee-

6
'(A) whose primary duty consists of the management of the establishment in which he is employed or of a customarily recognized department or subdivision thereof, and

7
'(B) who customarily and regularly directs the work of other employees therein, and

8
'(C) who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of statute of other employees will be given particular weight, and

9
'(D) who customarily and regularly exercises discretionary powers, and

10
'(E) who is compensated for his services on a salary basis at not less than $30 per week (exclusive of board, lodging, or other facilities), and

11
'(F) whose hours of work of the same nature as that performed by nonexempt employees do not exceed 20 percent of the number of hours worked in the workweek by the nonexempt employees under his direction; * * * .'

12
Since these six requirements are in the conjunctive, the employee must meet each of the requirements before he can be considered as exempt from the provisions of § 207 of the Act.  George Lawley & Son Corporation v. South, 1 Cir., 140 F.2d 439, 151 A.L.R. 1081.  There is no real question but that the plaintiff here met the first five of these requirements.  It is admitted that, his primary duty was the management of the production department of the defendant's plant.  The plaintiff did continuously and regularly direct the work of the other employees in that department.  He had the authority to hire and fire other employees in that department and such action by him was ordinarily recognized.  He did customarily and regularly exercise discretion in planning and directing the work of the other employees in the department.  His compensation was at no time less than three times the required $30 per week.  The plaintiff now contends, however, that his 'hours of work of the same nature as that performed by the nonexempt employees' far exceeded '20 per cent of the number of hours worked in the workweek by the nonexempt employees under his direction.'

13
The plaintiff testified that in arranging the work for the employees in the plant it was necessary for him to get the supplies ready and that this sometimes included moving barrels of oilves about the plant and helping to fill orders.  Plaintiff says that he sometimes started fires in the furnace, sometimes swept and cleaned the floor, and did heavy work for the plant employees under his direction when no other man was available.  The heavy work, he explained, consisted, for the most part, of loading and unloading trucks and moving barrels of olives.  The plaintiff testified that he loaded or unloaded trucks 'at least once a day' and 'many days, more often then once.'  He did not testify as to what percentage of the time worked by the nonexempt employees under his direction he spent in performing such manual labor.

14
Three former employees who had worked in the plant under the plaintiff's direction testified that he spent from 75 per cent to 95 per cent of his time working in the plant unloading trucks and helping to load trucks and doing other manual labor.  One girl who worked in the plant office said that the plaintiff did not spend very much time in the office but that he spent about 80 per cent of the time each day out in the plant.

15
On the other hand, Roland D. Ross, who for a time was president of the corporation and who, prior to the formation of the corporation, had been in a supervisory capacity over the plaintiff, testified that the plaintiff spent less than 5 per cent of his time in doing manual labor of any kind.  Ross said that the plaintiff was hired as general superintendent of the plant in charge of production, and that the plaintiff was 'in charge of operating personnel, and in charge of all of their various equipment, on the production end of the business.'

16
Sylvester Keith, an electrician and maintenance man who worked in the plant about eight months during the period of the plaintiff's employment, testified that the plaintiff did manual labor, such as starting fires and unloading and loading trucks, 'ten per cent, if anything' of the entire time.

17
Irwin Smith, who was in the trucking business, testified that his trucks did all of the hauling to and from the defendants' plant.  He said that trucks went to the plant 'an average of twice a week at the most' and that 'then there were months there was no hauling out there.'

18
John O'Neal, who worked at the plant seven or eight months during the time in question, said that he saw the plaintiff occasionally do manual labor, 'maybe half an hour to an hour a day.'

19
Considering the entire evidence in this case, much of it conflicting, we cannot say that the finding of the District Court that the plaintiff was an 'exempt employee within the meaning of the Act' was clearly erroneous.  We are, therefore, not permitted to draw inferences and conclusions contrary to those drawn by the District Court.

20
While this finding appears in the Findings of Fact and Conclusions of Law of the District Court under Conclusions of Law, the judgment entered by the District Court recites that:

21
' * * * the Court having heard the testimony of witnesses in open Court, having heard the arguments of counsel, and having read the Briefs submitted by the attorneys * * * and being fully advised in the premises, Finds, As A Matter of Law:

22
'2. That the plaintiff was an exempt employee within the meaning of the Act, and not entitled to the relief and protection accorded to employees performing manual labor.'

23
This clearly indicates that the trial court, after considering the evidence and the entire record, found that the plaintiff was an exempt employee.

24
The authorities seem to uniformly hold that the question of whether an employee is exempt under the Act and Regulations is an ultimate question of fact to be determined in the first instance by the trial court.  Walling, Wage & Hour Administrator v. General Industries Co., 330 U.S. 545, 550, 67 S.Ct. 883, 91 L.Ed. 1088; Fletcher v. Grinnell Bros., 6 Cir., 150 F.2d 337, 340; George Lawley & Son Corporation v. South, 1 Cir., 140 F.2d 439, 445.

25
The mere fact that this Finding of Fact was recited by the District Court as a Conclusion of Law and the further fact that in the judgment order it was stated that this finding was found 'as a matter of law' does not prevent the finding from actually being a Finding of Fact which was supported by substantial evidence and, therefore, binding upon this court.

26
We think that the evidence was also sufficient to support a finding that the plaintiff was 'employed in a bona fide * * * administrative capacity,' within the meaning of the definition of the Administrator, 29 U.S.C.A.App. § 541.2, and that for that reason also the provisions of § 7 of the Act were, therefore, not applicable to him.

27
Since we have held above that the evidence was sufficient to support a finding by the trial court that the plaintiff was an exempt employee as an employee working in a bona fide executive capacity, we deem it unnecessary to extend this opinion unduly by discussing in detail the evidence tending to support an inference by the trial court that the plaintiff was an employee employed in a bona fide administrative capacity.  It is sufficient on this point to say that the plaintiff's salary was more than the $200 per month minimum fixed by the Administrator's definition, § 541.2(A), and that there was evidence from which the trial court could properly find that the plaintiff's work involved the execution, under only general supervision, of special non-manual assignments and directions directly related to management policies or general business operations involving the exercise of discretion and independent judgment as required by subd.  (B)(3) of the definition.  29 U.S.C.A.App. § 541.2.

28
Unlike the definition concerning work in an executive capacity, the Administrator's definition for an employee working in an administrative capacity is in the disjunctive.  In the latter definition it was, therefore, only necessary that the employee meet the minimum requirement of $200 per month salary and meet the requirements of one of the subparagraphs under paragraph B of the definition.  We think the evidence here was sufficient to meet the requirements of subparagraph (B)(3).

29
The plaintiff also complained that paragraph 1 of the Conclusions of Law of the District Court and paragraphs 1 and 2 of the Findings of Fact were modeled on the language of Sec. 2 of the Portal to Portal Act of 1947, 29 U.S.C.A. § 252.

30
When the judgment was entered against the plaintiff in the District Court he filed a motion to vacate the judgment, contending that it was based on § 2 of the Portal to Portal Act, that § 2 did not apply to the type of services performed by the plaintiff, and that it was not necessary for the plaintiff to plead or prove a contract or practice or custom as required by § 2 of the Portal to Portal Act.  These findings of the trial court were probably induced by the allegation in paragraph XI of the complaint that,

31
'The activities of the plaintiff during his employment as aforesaid in excess of the maximum hours provided by Section 7 of the Act were compensable by the express provisions of nonwritten contracts then in effect between the plaintiff and the defendant corporation.'

32
In the absence of any evidence of such contracts it was proper for the court to decide this issue presented by the plaintiff against him.  In view of the above it is unnecessary for us to consider whether the provisions of the Portal to Portal Act were applicable to plaintiff's work.

The judgment of the District Court is

33
Affirmed.


389 F.2d 379
Brent L. SELLICK, Appellant,v.Theodore William BELL, Sr., and Myrtle Watson Harris Bell, Appellees.
No. 21640.
United States Court of Appeals Ninth Circuit.
Feb. 6, 1968.

Brent Sellick, in pro. per.
James J. Biggins, Jr.  (argued) of Smith, Biggins & Crockett, San Diego, Cal., for appellee.
Before BARNES, JERTBERG and ELY, Circuit Judges.
PER CURIAM:

1
Appellant appeals from an order of the District Court affirming the order of the referee in bankruptcy declaring null and void a judgment lien on real property belonging to bankrupts.

2
The lien arose out of money judgment obtained by appellant against the bankrupts in a state court action on a conditional sales contract for the unpaid balance of the purchase price of a seagoing vessel sold by appellant to bankrupts.  The action was in personam and not in rem against the vessel.

3
Appellant contends that the lien voided by the order of the referee is a maritime lien which the bankruptcy court is without jurisdiction to pass upon.  Appellant's contention is without merit.  See Foust v. Munson Steamship Lines, 299 U.S. 77, 57 S.Ct. 90, 81 L.Ed. 49 (1936), and Sellick v. Sun Harbor Marina, Inc., 9 Cir., 384 F.2d 870, decided October 27, 1967.

4
Affirmed.


08-2077-ag
National Labor Relations Board v. E-Z Supply Corp., et. al.

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document
filed with this court, a party must cite either the Federal Appendix or an electronic database
(with the notation “summary order”). A party citing a summary order must serve a copy of it
on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 31st day of August, two thousand and ten.

PRESENT:

          RALPH K. WINTER,
          ROGER J. MINER ,
          JOSÉ A. CABRANES,
                       Circuit Judges.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
NATIONAL LABOR RELATIONS BOARD ,

                               Petitioner,

          v.                                                                               No. 08-2077

E-Z SUPPLY CORP., SUNRISE PLUS CORP., ALTER EGOS,

                               Respondents.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

FOR PETITIONER:                                                          DAVID H. MORI, National Labor Relations
                                                                         Board, Washington, DC.

FOR RESPONDENTS:                                                         No Appearance

                                                               1
      Motion by National Labor Relations Board (“NLRB”) for adjudication in civil contempt of
E-Z Supply Corp. and Sunrise Plus Corp., alter egos.

       UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that The Hon. Brian M. Cogan, United States District Judge for
the Eastern District of New York, be appointed as special master to (1) examine the claims of
respondent’s counsel and (2) oversee enforcement of the NLRB order.

         We consider a motion for adjudication in civil contempt brought by petitioner NLRB against
E-Z Supply Corp. and Sunrise Plus. Corp., alter egos (jointly, “respondent”).
         On March 3, 2008, following alleged unfair labor practices, the NLRB issued an order (“the
order”) directed at respondent to take certain actions in accordance with the National Labor
Relations Act, 29 U.S.C. § 151-159. The order required respondent to, among other things: (1)
“cease and desist” from various activities meant to encourage workers to “abandon” the Union, (2)
“on request, bargain” with representatives of the Industrial Workers of the World (“the Union”),
and (3) compensate a group of workers through “reinstatement to their former jobs” or through
making them “whole for any loss of earnings and other benefits suffered as a result of the
discrimination against them.” On June 26, 2008, this Court issued a judgment to enforce the NLRB
order. On June 8, 2010, the NLRB filed a motion to have us adjudge the respondents in civil
contempt for having repeatedly failed or refused to comply with the order.
         When respondent did not file a response to the civil contempt motion, the Clerk of Court
contacted respondent’s counsel. Counsel explained that he has been temporarily suspended from the
practice of law and that both E-Z Supply Corp. and Sunrise Plus Corp. are no longer in business.
         In these circumstances, we appoint The Hon. Brian M. Cogan, United States District Judge
for the Eastern District of New York, to serve as special master to (1) examine the claims of
respondent’s counsel and (2) report to this Court on any steps appropriate or necessary to effectuate
the order of the NLRB, or to hold respondents in civil contempt. Judge Cogan shall have full
authority to review the record of this case before the NLRB and before this Court, and to hold such
hearings (evidentiary and otherwise) as may be appropriate in the circumstances. We encourage
Judge Cogan to report to us as soon as possible, preferably no later than sixty days from the date of
the filing of this order.
         The mandate shall issue forthwith.

                                                    FOR THE COURT,

                                                    Catherine O’Hagan Wolfe, Clerk of Court

                                              2


877 F.2d 159
Robert E. CURTIS, Plaintiff, Appellee,v.Al NOEL, et al., Defendants, Appellants.
No. 89-1139.
United States Court of Appeals,First Circuit.
Heard May 1, 1989.Decided June 21, 1989.Rehearing and Rehearing En Banc Denied July 26, 1989.

1
Richard W. Benka, with whom, Paul V. Lyons, Joseph Halpern and Foley, Hoag & Eliot were on brief, for defendants, appellants.

2
John N. Lewis, with whom Ravech, Aronson & Shuman, P.C., was on brief, for plaintiff, appellee.

3
Before BOWNES and BREYER, Circuit Judges, and GRAY,* Senior District Judge.

4
GRAY, Senior District Judge.

5
This is an appeal from a summary judgment granted by the district court to the plaintiff, which required the defendant administrator of a retirement plan to recalculate upward the retirement benefits to which the plaintiff was entitled.  We reverse.

6
The plaintiff, Robert E. Curtis, was employed in Massachusetts by Patriot General Life Insurance Company from 1968 until his retirement in 1981, and he was its chief executive officer until 1976.  In 1972, the board of directors of Patriot General, of which the plaintiff was a member, voted that the plaintiff would receive, in addition to his annual salary of $35,000, "incentive compensation" in the amount of two percent of the insurance premiums paid to the company.  These additional compensation payments were to be made throughout the balance of the plaintiff's employment and for five years after his retirement.

7
At the time that this new basis for compensation of Mr. Curtis was adopted, a statute of Massachusetts provided that:

8
"No domestic [insurance] company ... shall make any agreement with any of its officers, trustees or employees whereby it agrees that for any services rendered or to be rendered he shall receive any salary, compensation or emolument that will extend beyond a period of three years from the date of such agreement;  provided, however, that the payment of an amount not in excess of twelve and one half per cent of such annual salary, compensation or emolument, or a larger percentage if approved by the commissioner [of insurance], may by contract be deferred beyond such period;  ..."

9
Mass.G.L. c. 175, Sec. 35.

10
In 1974, the Sentry Group acquired the stock of Patriot General, and Mr. Curtis became eligible for the Sentry Insurance Employee Retirement Plan.  In due course, officials of the company concluded that the Curtis compensation agreement was illegal because the provisions for payment were to extend beyond three years, the increase above regular salary was not limited to twelve and one half per cent, and the approval of the commissioner had not been obtained.  This determination of illegality resulted in a new agreement between Mr. Curtis and the Sentry Group, under which Mr. Curtis retained his office as president of Patriot General and was accorded a salary of $35,000 without the additional "incentive compensation."

11
Mr. Curtis retired, effective January 1, 1982, and the administrator of the Sentry Insurance Employee Retirement Plan, Mr. Al Noel, a defendant in this action, undertook to determine the retirement compensation to which Mr. Curtis was entitled.  Under the Sentry Plan, the amount of benefits is set by reference to the three highest consecutive earnings of the employee's last ten years of employment.

12
During the years 1972, 1973 and 1974, when the "incentive compensation" was in effect, the plaintiff's employment earnings were $56,740.57, $71,845.48 and $77,981.21, respectively, which were the highest compensation years during the ten year period.  However, the administrator of the Plan declined to use those years in calculating the plaintiff's benefits because of what he concluded to be the illegal nature of the plan from which the compensation stemmed.  Instead, he computed the plaintiff's retirement benefits on the earnings received in 1975, 1976 and 1977, which were $50,409.96, $46,363.98 and $46,363.98, respectively.

13
Mr. Curtis requested the higher benefits;  the Plan representatives denied the request;  and this litigation followed.

14
In the proceedings before the district court, the administrator relied upon a provision in the Sentry Plan that defines "annual earnings" as:  "an employee's total compensation as reported by the Company or participating Company for Federal income tax purposes (W-2 earnings), but exclusive of:

15
a. any special remuneration which would not ordinarily be considered compensation for job-related services ..." Record Appendix at 173.

16
The administrator took the position that the special remuneration at issue had been paid illegally and, therefore, could not "ordinarily be considered compensation for job-related services."

17
In granting summary judgment for the plaintiff, the district court found that "[t]he interpretation of the Sentry Plan as to the plaintiff's retirement benefits was an isolated one, without precedent or prior notice, and whose only proffered rationale was not in furtherance of any legitimate Plan purpose."    He therefore ruled that the exclusion of the "allegedly" improper compensation payment had been arbitrary and unreasonable and directed that the administrator retroactively "recalculate the plaintiff's retirement benefits on the basis of compensation paid in 1972, 1973 and 1974 including the payments referred to as 'incentive compensation,' ..."

18
We are unable to agree with the district court.  In Firestone Tire & Rubber Co. v. Bruch, 488 U.S. ----, ----, 109 S.Ct. 948, 952, 103 L.Ed.2d 80 (1989), the Supreme Court said that in actions pursuant to 29 U.S.C. Sec. 1132(a)(1)(B), under which this case was brought, "[t]rust principles make a deferential standard of review appropriate when a trustee exercises discretionary powers....  A trustee may be given power to construe disputed or doubtful terms, and in such instances the trustee's interpretation will not be disturbed if reasonable."    The Sentry Plan provides that the administrator, among many other responsibilities, shall determine "which Employees are eligible to participate in the Plan," and shall "provide all parties dealing with the Plan an interpretation of Plan provisions on request."    We believe that it clearly is within the discretionary authority of the administrator to conclude that illegal payments are not and should not "ordinarily be considered compensation for job-related services ..." within the meaning of the Plan.

19
In addition to being supportable as a matter of interpreting the formal wording of the Plan, we believe that the administrator's decision is in accord with principles of trust law.  The scheme that gave to the plaintiff the incentive compensation was, as the district judge said, "almost certainly in violation of Mass.G.L. c. 175, Sec. 35."    In other words, the increased payments that formed the three highest years of compensation were illegal.  Principles of trust law demand that a trustee not pay retirement benefits to an employee that are based upon illegal contributions.  This doctrine is well illustrated by the case of Thurber v. Western Conference of Teamsters Pension Plan, 542 F.2d 1106 (9th Cir.1976).  There, the employee, in anticipation of retirement, had made an illegal contribution to the pension fund in an effort to heal a "break" in his employment.  The opinion of the court of appeals said, "We agree with the district court that it was illegal for the Pension Fund to receive the retroactive contribution in an attempt to heal the break in service.  It would likewise be illegal for the Fund to pay benefits to Thurber based upon the illegal retroactive contribution."    The administrator here, like the trustees in Thurber, "has the obligation to guard the assets of the trust from improper claims...."  LeFebre v. Westinghouse Electric Corp., 747 F.2d 197, 207 (4th Cir.1984).

20
A trustee or administrator also has the obligation to deal with all beneficiaries in an even-handed manner.  If the administrator here were to accord increased benefits to the plaintiff as a result of the "incentive compensation" scheme, it would constitute discrimination against the employees whose retirement benefits were not illegally enhanced.

21
For the foregoing reasons, we conclude that the defendant administrator was fully justified in his interpretation of the Plan and the allocation of benefits to the plaintiff.  Accordingly, the judgment of the district court is reversed and the case remanded with instructions to render judgment for the defendant.

*
 Of the Central District of California, sitting by designation


                                                                      [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________            FILED
                                                  U.S. COURT OF APPEALS
                                                    ELEVENTH CIRCUIT
                               No. 11-12054
                                                        APRIL 5, 2012
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________         CLERK

                D.C. Docket No. 4:10-cr-00029-RLV-WEJ-1

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                   versus

ANDREW JACKSON CHITWOOD,

                                                          Defendant-Appellant.

                         ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                       ________________________

                               (April 5, 2012)

Before CARNES, BARKETT, and ANDERSON, Circuit Judges.

CARNES, Circuit Judge:
      Andrew Chitwood appeals his 188-month sentence, which was imposed after

he pleaded guilty to and was convicted of possession with intent to distribute

methamphetamine and obstruction of an officer. The sentence was based in part on

the district court’s ruling that Chitwood’s previous conviction for violating

Georgia’s false imprisonment statute qualified as a crime of violence for purposes

of career offender treatment under United States Sentencing Guidelines § 4B1.1.

He contends that was error.

                                          I.

      A police informant arranged to buy $5,200 worth of methamphetamine from

Chitwood. They met at a gas station, and the informant confirmed that Chitwood

had the drugs in his car. Police officers then pulled cars in front of and behind

Chitwood’s car, identified themselves as law enforcement, and asked Chitwood to

exit his car. Instead of exiting, Chitwood put his car in reverse and hit an officer’s

vehicle, causing minor damage. Police then arrested him without further incident.

Searches of Chitwood and his car yielded 150.68 grams of methamphetamine and a

9mm pistol.

      A federal grand jury indicted Chitwood on three counts: possession with

intent to distribute more than 50 grams of methamphetamine, in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(B); possession of a firearm by a convicted felon, in

                                           2
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and obstruction of an officer, in

violation of 18 U.S.C. § 111(a)(1) and (b). As part of a written plea agreement,

Chitwood pleaded guilty to the first and third counts, and the second count was

dismissed.

      The presentence investigation report recommended a base offense level of

26 because Chitwood possessed between 50 and 200 grams of methamphetamine.

See U.S.S.G. § 2D1.1(c)(7) (Nov. 2010). The report added 2 levels because

Chitwood possessed a firearm, see id. § 2D1.1(b)(1), and subtracted 3 levels for

acceptance of responsibility, see id. § 3E1.1(a), (b). It also recommended 24

criminal history points, placing Chitwood in criminal history category VI. With an

adjusted offense level of 25 and a criminal history category of VI, Chitwood’s

guidelines range would have been 110 to 137 months. See id. § 5A (Sentencing

Table).

      The PSR recommended, however, that the court sentence Chitwood as a

career offender under § 4B1.1(a) of the guidelines. That recommendation was

premised on the view that he had previously been convicted of committing two

predicate crimes of violence—false imprisonment and aggravated assault—which

made him a career offender within the meaning of § 4B1.1(a). As a career

offender, Chitwood’s offense level would be bumped up to 34 because one of his

                                         3
offenses had a statutory maximum sentence of 25 years or more. See 21 U.S.C. §

841(b)(1)(B); U.S.S.G. § 4B1.1(b)(B).1 He would, however, still be eligible for the

3-level reduction for acceptance of responsibility. See U.S.S.G. § 4B1.1(b). The

net result of treating Chitwood as a career offender would be a guidelines range of

188–235 months instead of 110–137 months.

       Chitwood objected to the PSR’s recommendation that he be treated as a

career offender. He argued that a violation of Ga. Code Ann. § 16-5-41, Georgia’s

false imprisonment statute, was not a crime of violence under the categorical

approach. He also objected to any factual description of the offense in the PSR to

the extent it was based on documents other than those approved by Shepard v.

United States, 544 U.S. 13, 125 S.Ct. 1254 (2005).

       At the sentence hearing, the government conceded that this Court had never

addressed whether violation of Georgia’s false imprisonment statute was a crime of

violence but argued that it was. Chitwood took the position that because false

imprisonment is not an enumerated offense in § 4B1.2(a)(2) of the sentencing

guidelines and there is no “physical force” element to the offense, see U.S.S.G. §

4B1.2(a)(1), as it is defined under Georgia law, see Ga. Code Ann. § 16-5-41, the

       1
        As a career offender, Chitwood’s criminal history category would automatically be VI, see
§ 4B1.1(b), but that made no difference because it already was VI even without consideration of his
career offender status.

                                                4
crime can be a crime of violence only if it falls within the scope of the residual

clause of § 4B1.2(a)(2). He argued that, applying our test from United States v.

Harrison, 558 F.3d 1280, 1287 (11th Cir. 2009) abrogated by Sykes v. United

States, __ U.S. __, 131 S.Ct. 2267 (2011), the underlying offense of false

imprisonment is not a crime of violence.2

       The district court adopted the PSR, including the finding that false

imprisonment was a crime of violence. Although the record is somewhat unclear

on this point, the court appears to have applied the modified categorical approach,

see United States v. Pantle, 637 F.3d 1172, 1176 (11th Cir. 2011), in determining

that the crime of false imprisonment for which Chitwood had been convicted was a

crime of violence under § 4B1.2. As a result, it set Chitwood’s total offense level

at 31, and with a criminal history category of VI, his guidelines range was 188–235

months. The court imposed a sentence of 188 months imprisonment.

                                                II.

       “We review de novo whether a prior conviction qualifies as a ‘crime of

violence’ under the Sentencing Guidelines.” United States v. Lockley, 632 F.3d

1238, 1240 (11th Cir. 2011). And “we may affirm ‘for any reason supported by

       2
         In determining whether a conviction is a crime of violence under U.S.S.G. § 4B1.2, we also
rely on cases interpreting the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e),
because the § 4B1.2 definition of “crime of violence” and ACCA’s definition of “violent felony”
are substantially the same. See United States v. Archer, 531 F.3d 1347, 1350 n.1 (11th Cir. 2008).

                                                 5
the record, even if not relied upon by the district court.’” United States v. Al-

Arian, 514 F.3d 1184, 1189 (11th Cir. 2008) (quoting Williams v. Bd. of Regents,

477 F.3d 1282, 1284 (11th Cir. 2007)).

      Under § 4B1.2 of the guidelines, any state or federal offense that is

punishable by more than one year of imprisonment can be a crime of violence if it

fits within one of three categories. The first category includes crimes that have “as

an element the use, attempted use, or threatened use of physical force against the

person of another . . . .” U.S.S.G. § 4B1.2(a)(1). The second category includes the

enumerated crimes of “burglary of a dwelling, arson, or extortion” and those

involving the “use of explosives.” § 4B1.2(a)(2). The third category, sometimes

referred to as residual clause crimes, includes those that “otherwise involve[]

conduct that presents a serious potential risk of physical injury to another.” Id.

      The use, attempted use, or threatened use of physical force is not an element

of false imprisonment under Ga. Code Ann. § 16-5-41, so the first category of

violent crimes is out. Nor is false imprisonment one of the enumerated offenses in

§ 4B1.2(a)(2), so the second category is out too. That leaves the third category,

residual clause crimes.

      There are two ways in which a crime can fall within the residual clause of §

4B1.2(a)(2). The first way is the categorical approach, under which “‘we consider

                                          6
whether the elements of the offense are of the type that would justify its inclusion

within the residual provision, without inquiring into the specific conduct of this

particular offender.’” Sykes v. United States, __ U.S. __, __,131 S.Ct. 2267, 2272

(2011) (quoting James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 1594

(2007)). If the elements of an offense are such that any conviction for violating

that statute will fall within the scope of the residual clause, then we can say

categorically that the offense is a crime of violence under the residual clause.

      The second way that a crime can come within the residual clause is the

modified categorical approach, which can be applied where some, but not all, of

the violations of a particular statute will involve the requisite violence. See Pantle,

637 F.3d at 1175. Stated another way, courts apply the modified categorical

approach “when the law under which a defendant has been convicted contains

different statutory phrases—some of which qualify as ‘crimes of violence’ and

some of which do not . . . .” Id. In that statement, “different statutory phrases”

means different statutory elements or ways of violating the statute.

                                          III.

      At sentencing in this case, the district court cited Pantle and stated that it was

applying the modified categorical approach to conclude that Chitwood’s Georgia

false imprisonment conviction was for a crime of violence. Using that approach to

                                           7
“determine which statutory phrase was the basis for the conviction” involves

consulting “a narrow universe of ‘Shepard documents’ that includes any charging

documents, the written plea agreement, the transcript of the plea colloquy, and any

explicit factual finding by the trial judge to which the defendant assented.” Id.; see

Shepard, 544 U.S. at 26, 125 S.Ct. at 1263 (“We hold that enquiry under the

ACCA to determine whether a plea of guilty to burglary defined by a nongeneric

statute necessarily admitted elements of the generic offense is limited to the terms

of the charging document, the terms of a plea agreement or transcript of colloquy

between judge and defendant in which the factual basis for the plea was confirmed

by the defendant, or to some comparable judicial record of this information.”). The

problem is, as Chitwood argues, the government concedes, and we agree, that the

district court did not consult any Shepard documents when deciding that

Chitwood’s Georgia conviction for false imprisonment was for a crime of violence.

                                         IV.

      The government argues, however, that the error in the district court’s

application of the modified categorical approach to Chitwood’s Georgia false

imprisonment conviction does not require setting aside his career-offender-

enhanced sentence because that conviction is a crime of violence under the

categorical approach, which the district court did not apply. The government had

                                          8
argued at the sentence hearing that false imprisonment was categorically a crime of

violence. Because we can affirm for any reason supported by the record, “[e]ven

though the district court did not reach the residual clause issue, we can still decide

it.” United States v. Harris, 608 F.3d 1222, 1227 (11th Cir. 2010). That is true

where, as here, the alternative route for affirming does not facts that remain to be

found by the district court.

      In James v. United States, 550 U.S. 192, 201–02, 127 S.Ct. 1586, 1593–94

(2007), the Supreme Court instructed federal courts to use a “categorical approach”

to analyze whether a crime creates sufficient risk of physical injury to another to fit

within the residual clause. We were told that under that approach we should “look

only to the fact of conviction and the statutory definition of the prior offense,” and

not to the “particular facts disclosed by the record of conviction.” Id. at 202, 127

S.Ct. at 1594 (quotation marks omitted). It is “the elements of the offense” and not

“the specific conduct of this particular offender” we examine. Id.; see also

Chambers v. United States, 555 U.S. 122, 125, 129 S.Ct. 687, 690 (2009). And it

is the “ordinary” or “generic” case that counts. Harrison, 558 F.3d at 1285; see

also Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 1584 (2008) (“In

determining whether [a] crime is a violent felony, we consider the offense

generically, that is to say, we examine it in terms of how the law defines the

                                           9
offense and not in terms of how an individual offender might have committed it on

a particular occasion.”); James, 550 U.S. at 208, 127 S.Ct. at 1597 (“[T]he proper

inquiry is whether the conduct encompassed by the elements of the offense, in the

ordinary case, presents a serious potential risk of injury to another.”). Applying

this categorical approach, the Supreme Court in James looked at whether attempted

burglary “posed the same ‘serious potential risk of physical injury’ that a

completed burglary did.” Harrison, 558 F.3d at 1285 (quoting James, 550 U.S. at

203, 127 S.Ct. at 1594). The Court concluded that it did. See James, 550 U.S. at

203–09, 127 S.Ct. at 1594–98

      In Begay, the Supreme Court added to the residual clause analysis when it

examined whether driving under the influence was “‘roughly similar, in kind as

well as in degree of risk posed,’” to any of the enumerated offenses. Harrison, 558

F.3d at 1285 (quoting Begay, 553 U.S. at 143, 128 S.Ct. at 1585). The Begay

Court reasoned that the presence of the enumerated offenses as examples implied

that the ACCA covered “only similar crimes, rather than every crime that ‘presents

a serious potential risk of physical injury to another.’” Begay, 553 U.S. at 142,

128 S.Ct. at 1585 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). The court noted that

“[t]he listed crimes all typically involve purposeful, violent, and aggressive

conduct.” Begay, 553 U.S. at 144–45, 128 S.Ct. at 1586 (quotation marks

                                          10
omitted). It followed that to be similar in kind to those listed crimes—burglary,

arson, extortion, and the use of explosives— offenses that were violent crimes

under the residual provision must also involve “purposeful, violent, and aggressive

conduct.” Chambers, 555 U.S. at 128, 129 S.Ct. at 692; see also Begay, 553 U.S.

at 144–45, 128 S.Ct. at 1586; Harrison, 558 F.3d at 1295 (“Begay requires courts

to further address whether the crime is similar ‘in kind’ to burglary, arson,

extortion, and the use of explosives. For [an offense] to be ‘similar in kind’ to

those enumerated offenses, the conduct underlying the crime must be ‘purposeful,

violent, and aggressive.’” (citations omitted)). Because it concluded that DUI was

not “purposeful, violent, and aggressive” in that sense, the Court held that it was

not a violent felony. Begay, 553 U.S. at 144–45, 148, 128 S.Ct. at 1586–88.

      In our Harrison decision we synthesized James and Begay into a three-part

test for determining whether a state offense is a crime of violence under the

categorical approach:

      First, what is the relevant category of crime, determined by looking to
      how the crime is ordinarily committed? Second, does that crime pose
      a “serious potential risk of physical injury” that is similar in degree to
      the risks posed by the enumerated crimes? Third, is that crime similar
      in kind to the enumerated crimes?

558 F.3d at 1287. To determine whether a crime is “similar in kind” to an

enumerated offense, “we ask whether the conduct at issue in the statute is

                                          11
‘purposeful, violent and aggressive,’ or, whether it is a more passive crime of

inaction.” United States v. Harris, 608 F.3d 1222, 1227 (11th Cir. 2010).

       Last year, however, the Supreme Court revisited the residual clause in Sykes

v. United States, __ U.S. __, 131 S.Ct. 2267 (2011), and the ever-shifting sands of

the residual clause shifted again.3 The previous conviction at issue in Sykes was

knowingly or intentionally fleeing in a vehicle from a law enforcement officer in

violation of Ind. Code § 35-44-3-3. The Court noted that, “[i]n general, levels of

risk divide crimes that qualify [under the residual clause] from those that do not,”

and that the only decision “in which risk was not the dispositive factor is Begay.”

Sykes, 131 S.Ct. at 2275. The Court reasoned that Begay’s “purposeful, violent,

and aggressive” language had “no precise textual link to the residual clause” and

was “an addition to the statutory text.” Id. Further, it stated that crimes that are

       3
          Justice Scalia’s dissent in Sykes asserts that the residual clause of the ACCA is
unconstitutional because it is so vague that it “does not ‘give a person of ordinary intelligence fair
notice’ of its reach.” Sykes, 131 S.Ct. at 2287 (Scalia, J., dissenting) (quoting United States v.
Batchelder, 442 U.S. 114, 123, 99 S.Ct. 2198, 2203–04 (1979)). See generally Sykes, 131 S.Ct. at
2284–88 (Scalia, J., dissenting). His dissent notes that Sykes is the Court’s fourth attempt in four
years to clarify which crimes qualify as violent felonies under the ACCA residual clause. Id. at
2284. However logical Justice Scalia’s reasoning, and however appealing the result of that logic
might be to courts like our own with caseloads enhanced by residual clause enhancement issues, the
majority opinion in Sykes took the position that the ACCA residual clause “states an intelligible
principle and provides guidance that allows a person to ‘conform his or her conduct to the law.’”
Id. at 2277 (majority opinion) (quoting Chicago v. Morales, 527 U.S. 41, 58, 119 S.Ct. 1849, 1860
(1999) (plurality opinion)). That position appears to foreclose a conclusion, at least by a lower
federal court such as our own, that the residual clause is unconstitutionally vague. In any event, the
parties in this case have not raised that issue.

                                                 12
“purposeful, violent, and aggressive” and crimes that “present serious potential

risks of physical injury to others tend to be one and the same.” Id. Therefore, “[i]n

many cases the purposeful, violent and aggressive inquiry will be redundant with

the inquiry into risk . . . .” Id. The Court concluded in Sykes that risk level

provided a better categorical standard than the purposeful, violent, and aggressive

standard it had articulated in Begay just two years earlier. Id. at 2275–76.

      Another explanation the Sykes court gave for retreating from the

Begay standard, or at least curtailing its reach, is that the focus on “purposeful,

violent, and aggressive” was useful primarily to explain the result in Begay, which

had involved DUI, “a crime akin to strict liability, negligence, and recklessness

crimes.” Id. at 2276. The vehicle flight to avoid law enforcement statute at issue

in Sykes, by contrast, required knowing or intentional flight, and therefore was

“not a strict liability, negligence, or recklessness crime.” Id. Because of that

distinction and because the statute involved in Sykes was categorically similar in

risk to the offenses named in the residual clause, the Sykes Court concluded that

knowingly or intentionally fleeing in a vehicle from a law enforcement officer is a

violent crime under the residual clause. Id. at 2275–76.

      Of our sister circuits that have spoken to the issue, a majority have

concluded that Sykes means that Begay’s “purposeful, violent, and aggressive”

                                          13
analysis is useful only when dealing with strict liability, negligence, or

recklessness crimes. See, e.g., United States v. Meeks, __ F.3d __, __, No. 10-

5336, 2012 WL 15169, at *2 (6th Cir. Jan. 5, 2012) (“The Supreme Court has

recently suggested that Begay’s purposeful, violent, and aggressive conduct

inquiry should be limited to crimes based on strict liability, negligence, and

recklessness because it is not based on statutory language and is often redundant

with the inquiry into risk. In other cases, levels of risk will generally divide crimes

that qualify as crimes of violence from those that do not.” (citations and quotation

marks omitted)); United States v. Rodriguez, 659 F.3d 117, 119 (1st Cir. 2011)

(“According to Sykes, Begay’s purposeful, violent, and aggressive formulation

will be redundant with the inquiry into risk when the felony at issue is not a strict

liability, negligence, or recklessness crime. Where the prior felony has a stringent

mens rea requirement—as is the case here—Begay provides no shelter.” (citations

and quotation marks omitted)); United States v. Watson, 650 F.3d 1084, 1093 (8th

Cir. 2011) (“Thus, provided the felony at issue is not ‘akin to strict liability,

negligence, or recklessness crimes,’ it qualifies as a crime of violence under the

residual clause if it is ‘as a categorical matter, similar in risk to the listed crimes.’”

(quoting Sykes, 131 S.Ct. at 2275–76)); United States v. McMurray, 653 F.3d 367,

376 n.9 (6th Cir. 2011) (“[T]he Supreme Court retreated to some degree from

                                            14
Begay’s ‘purposeful violent, and aggressive’ standard. Nevertheless, the Court

indicated that the Begay standard remains applicable when the felony is a strict

liability, negligence, or recklessness crime.”); United States v. Armijo, 651 F.3d

1226, 1237 n.14 (10th Cir. 2011) (noting similarity of risk as dispositive and

applying Sykes to U.S.S.G. § 4B1.2); United States v. Hill, 645 F.3d 900, 910 (7th

Cir. 2011). But see United States v. Koufos, __ F.3d __, __, Nos. 10-2195, 10-

2199, 10-2200, 2011 WL 6778133, at *5–8 (10th Cir. Dec. 27, 2011) (not

addressing the Sykes/Begay question explicitly, but analyzing for “purposeful,

violent, and aggressive conduct” post-Sykes); United States v. Park, 649 F.3d

1175, 1177–78, 1180 (9th Cir. 2011) (not addressing the Sykes/Begay question

explicitly, but finding post-Sykes that California first-degree burglary was

“roughly similar” to the enumerated generic burglary in part because it typically

involved “purposeful, violent, and aggressive conduct”).

      Because Sykes makes clear that Begay’s “purposeful, violent, and

aggressive” analysis does not apply to offenses that are not strict liability,

negligence, or recklessness crimes, we join the general consensus of the circuits

recognizing as much. Offenses that are not strict liability, negligence, or

recklessness crimes qualify as crimes of violence under U.S.S.G. § 4B1.2(a)(2)’s

residual clause if they categorically pose a serious potential risk of physical injury

                                           15
that is similar to the risk posed by one of the enumerated crimes. See Sykes, 131

S.Ct. at 2275–76. At least where the previous conviction required knowing or

intentional conduct, it is enough if that conviction was for a crime that generally

creates as much risk of physical injury as one of the enumerated crimes.

                                           V.

      Therefore, we compare the risk of serious physical injury that violations of

Georgia’s false imprisonment statute pose to that posed by the closest analog

among the enumerated offenses—burglary of a dwelling. See id. at 2273. The risk

need not be present in every conceivable violation of the false imprisonment

statute, just as it is not present in every burglary of a dwelling, but it must be

present “in the ordinary case.” Harris, 608 F.3d at 1228 (quoting James, 550 U.S.

at 208, 127 S.Ct. at 1597).

      “Burglary is dangerous because it can end in confrontation leading to

violence.” Sykes, 131 S.Ct. at 2273; see also James, 550 U.S. at 199–200, 127

S.Ct. at 1592 (noting that all of the enumerated offenses “create significant risks of

bodily injury or confrontation that might result in bodily injury”). Or, as the

Supreme Court has explained: “The fact that an offender enters a building to

commit a crime often creates the possibility of a violent confrontation between the

offender and an occupant, caretaker, or some other person who comes to

                                           16
investigate. And the offender’s own awareness of this possibility may mean that

he is prepared to use violence if necessary to carry out his plans or to escape.”

Taylor v. United States, 495 U.S. 575, 588, 110 S.Ct. 2143, 2153 (1990).4

       Under Georgia law, “[a] person commits the offense of false imprisonment

when, in violation of the personal liberty of another, he arrests, confines, or detains

such person without legal authority.” Ga. Code Ann. § 16-5-41(a). As Georgia

cases make clear, false imprisonment ordinarily creates risks of physical injury to

another similar to the risks created by burglary which were discussed in Taylor.

See, e.g., Parson v. State, 711 S.E.2d 398, 400 (Ga. Ct. App. 2011) (finding false

imprisonment where defendant pulled victim back into her car, pushed her into the

driver’s seat, held her by her throat, and hit her in the chest); Bearfield v. State, 699

S.E.2d 363, 365 (Ga. Ct. App. 2010) (explaining that to avoid discovery of his

false imprisonment and attempted rape of a 9-year-old girl, the defendant “ran to

[the victim], picked her up, and threw her off his second story rear balcony”

resulting in “injuries to her lip, legs, and stomach”); Pierce v. State, 687 S.E.2d

185, 190 (Ga. Ct. App. 2009) (involving a defendant who, while holding the victim

       4
          The quotation from the Taylor opinion speaks of a burglar entering a building instead of
entering a dwelling because the ACCA definition of “violent felony,” which was involved in that
case, lists “burglary” as one of the violent crimes, not “burglary of a dwelling,” as § 4B1.2(a)(2) of
the guidelines does in defining “crime of violence.” Of course, burglary of a dwelling poses a risk
of serious physical injury at least as great, and probably greater, than the burglary of a building that
is not a dwelling.

                                                  17
in her apartment against her will, “grabbed the victim by the hair and dragged her

from room to room in the apartment while beating her. . . . took her clothes off and

‘threw’ her in the shower”); Williams v. State, 670 S.E.2d 828, 832–33 (Ga. Ct.

App. 2008) (“[T]he false imprisonment occurred when Williams forced the victim

into the prayer room closet after he raped her, bound the closet doors closed with a

cord, and ordered the victim under threat of death to remain there until he left.”).

Arresting, confining, or detaining someone against his or her will presents a risk of

serious physical injury to another similar to the risk that burglary of a dwelling

presents: the risk of a violent confrontation between the offender and the person

being falsely imprisoned, including the risk that the offender will have to inflict

serious physical injury to detain the victim. And, just as with burglary, the

offender’s awareness that such a violent confrontation is possible and could be

necessary indicates that he may be prepared to use violence if necessary to

complete the crime or to escape.

      The decisions of other circuits addressing similar statutes support our

conclusion that Georgia false imprisonment creates risks similar to those created

by burglary of a dwelling and is, therefore, a crime of violence. See, e.g., United

States v. Capler, 636 F.3d 321, 322, 324, 329 (7th Cir. 2011) (concluding that

Illinois’ crime of unlawful restraint is a crime of violence within the meaning of §

                                          18
4B1.2(a)(2)); United States v. Billups, 536 F.3d 574, 576, 578–82 (7th Cir. 2008)

(concluding the same about Wisconsin’s crime of false imprisonment); United

States v. Riva, 440 F.3d 722, 723, 725 (5th Cir. 2006) (concluding the same about

Texas’ crime of unlawful restraint of a child younger than 17 years); United States

v. Stapleton, 440 F.3d 700, 703–04 (5th Cir. 2006) (concluding that Louisiana’s

crime of false imprisonment with a dangerous weapon is a violent felony within

the meaning of the ACCA); United States v. Zamora, 222 F.3d 756, 763–65 (10th

Cir. 2000) (concluding that New Mexico’s crime of false imprisonment is a crime

of violence within the meaning of § 4B1.2(a)(2)).

      And we have held that “kidnapping is a crime of violence.” United States v.

Salemi, 26 F.3d 1084, 1087 (11th Cir. 1994); see also U.S.S.G. § 4B1.2 cmt. n.1.

That holding is particularly relevant because under Georgia law the crime of false

imprisonment is identical to the crime of kidnapping, except false imprisonment

does not require movement of the victim. See, e.g., Hall v. State, 709 S.E.2d 348,

352 (Ga. Ct. App. 2011) (“And significantly, the only difference between the crime

of kidnapping and the crime of false imprisonment is the element of asportation.”).

Although the additional element of movement might increase the risk of physical

injury some, the similarity of the two offenses lends support to our conclusion that

false imprisonment is also a crime of violence.

                                         19
      Chitwood correctly points out that both the Supreme Court and this Court

have sometimes relied on statistics when determining whether offenses are crimes

of violence. But we have never held that statistical evidence is required. When, as

here, “we are without the benefit of empirical evidence . . . we are left to rely on

our own common-sense analysis of whether [the] conduct poses a serious potential

risk of physical injury.” United States v. Alexander, 609 F.3d 1250, 1257 (11th

Cir. 2010). Being without the benefit of empirical evidence, we rely on our

common sense, which leads us to conclude that the conduct involved in violating

Georgia’s false imprisonment statute generally poses a risk of serious physical

injury comparable to burglary of a dwelling. Violations of Georgia’s false

imprisonment statute are crimes of violence as defined in § 4B1.2(a) and for the

purpose of sentencing under the career offender provision of U.S.S.G. § 4B1.1.

The district court did not err in sentencing Chitwood as a career offender.

      AFFIRMED.

                                          20


97 Wn.2d 237 (1982)
643 P.2d 439
In the Matter of the Disciplinary Proceeding Against JOSEPH T. MOYNIHAN, an Attorney at Law.
No. C.D. 8227.
The Supreme Court of Washington, En Banc.
April 8, 1982.
*238 Caroline D. Davis, for Bar Association.
Walsh, Margolis & Brousseau, by Robert L. Brousseau and Daniel L. Rader, for respondent.
BRACHTENBACH, C.J.
The Bar Association filed a complaint against Joseph T. Moynihan, charging three counts of neglect of legal matters entrusted to him, one count of failure to cooperate in a disciplinary investigation and violation of rules governing trust accounts.
The hearing panel officer found neglect of one matter, failure to cooperate and misappropriation of trust funds. This conduct violates the Code of Professional Responsibility DR 6-101(A)(3), Discipline Rules for Attorneys 2.6 and CPR DR 9-102 respectively. The hearing panel officer recommended disbarment. The Disciplinary Board adopted the hearing panel officer's findings, conclusions and recommendation.
The findings of fact have not been objected to by respondent attorney. Those facts reveal that over an extended period of time, respondent appropriated trust funds for his personal use. There were repeated violations, e.g., withdrawal of $1,250 on October 20, 1978, then $1,400 was taken in December 1978, by writing three checks on two occasions. There is no doubt of the intentional nature of respondent's acts. He deposited personal funds to cover his misappropriations, but subsequently took trust funds again.
Respondent urges that we impose discipline other than disbarment. The only mitigating factors suggested are lack of prior misconduct and no ultimate loss to clients.
[1] These so-called mitigating factors are not sufficient to prevent disbarment. Once again we emphasize that the rules governing trust account funds mean what they say. Lawyers must preserve the integrity of entrusted funds. Their failure to do so leads to disbarment absent extraordinary mitigating circumstances. In re Deschane, 84 Wn.2d *239 514, 516, 527 P.2d 683 (1974).
Neglect of a legal matter and failure to cooperate justify discipline but the repeated misappropriation of trust funds fully justifies disbarment and we so hold. Costs of $349.98 are awarded.
Joseph T. Moynihan is hereby disbarred, and his name shall be stricken from the roll of attorneys in this state.
STAFFORD, UTTER, DOLLIVER, DORE, DIMMICK, and PEARSON, JJ., concur.
ROSELLINI, J. (dissenting)
The findings in this proceeding show that the respondent was admitted to the bar in 1973. In 1979, he was hired by Eileen Smith to foreclose a lien of judgment arising from her dissolution. The respondent did some initial research on the chain of title, obtained a title report for the property, and considered getting the opinion of a second attorney. He took no further action on this case. The findings do not reflect that the client suffered any loss as a result of this failure. The findings also show that two additional claims, which were without merit, were filed against the respondent, and that he failed to cooperate with the bar in the investigation of the negligence claims.
With regard to the misappropriation of clients' funds, the findings show that the respondent made a number of withdrawals of trust funds over a 2-year period totaling $5,000. He voluntarily returned these funds to the trust account with deposits in varying amounts over that 2-year period. The respondent cooperated with the bar association in the investigation of his mishandling of trust funds.
There can be no question but that these were very serious defalcations, reflecting discredit upon the bar. It does not follow, however, that the respondent must be disbarred in order to prevent reoccurrence, discourage similar conduct on the part of other lawyers and restore public confidence in the bar. In re Salvesen, 94 Wn.2d 73, 614 P.2d 1264 (1980); In re Kumbera, 91 Wn.2d 401, 588 P.2d 1167 *240 (1979). In Kumbera we said that restitution, repentance and temporary personal disability are relevant in considering the proper discipline to be imposed. The findings here are silent as to the elements of repentance and temporary disability, but they do reflect voluntary restitution. They also show that no prior disciplinary actions had been taken against the respondent.
Disbarment is a devastating penalty and for the young lawyer who has not established a great number of friendships within the bar, reinstatement may be difficult, even though he has achieved complete rehabilitation in the interim. For this reason, I believe the court should exercise some hesitation in disbarring a lawyer where the findings do not show that clients have suffered any loss as a result of the lawyer's conduct. Suspension is also a very strong deterrent to future misconduct and is severe enough in a case such as this, I think, to restore public confidence in the profession. Certainly a 1- or 2-year suspension should have that effect.
I would so order.
WILLIAMS, J., concurs with ROSELLINI, J.


525 Pa. 498 (1990)
581 A.2d 1377
Evelyn MORGANSTEIN, Executrix of the Last Will and Testament of Morton Morganstein, Deceased,
v.
Benjamin HOUSE, M.D., Appellant.
Supreme Court of Pennsylvania.
Argued October 23, 1990.
Decided November 9, 1990.
Stanley P. Stahl, Allan C. Molotsky, Barbara S. Magen, Philadelphia, for appellant.
Keith S. Erbstein, Philadelphia, for appellee.
Before NIX, C.J., and LARSEN, FLAHERTY, ZAPPALA, PAPADAKOS and CAPPY, JJ.

ORDER
PER CURIAM:
Appeal dismissed as having been improvidently granted.
McDERMOTT, J., did not participate in the consideration or decision of this case.
FLAHERTY and CAPPY, JJ., dissent.