United States v. Kenneth Douglas , 885 F.3d 124 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-1754
_____________
UNITED STATES OF AMERICA
v.
KENNETH R. DOUGLAS,
Appellant
______________
APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(No. 2-09-cr-00105-009)
District Judge: Hon. David S. Cercone
______________
Argued on March 23, 2016 before Merits Panel
Argued En Banc on October 18, 2017
______________
Before: SMITH, Chief Judge, MCKEE, AMBRO,
CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR.,
VANASKIE, SHWARTZ, KRAUSE, and RESTREPO,
Circuit Judges
(Opinion Filed: March 15, 2018)
Arnold P. Bernard, Jr. [Argued]
437 Grant Street
Suite 407
Frick Building
Pittsburgh, PA 15219
Counsel for Appellant
Michael L. Ivory [Argued]
Rebecca R. Haywood
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
______________
OPINION
______________
GREENAWAY, JR., Circuit Judge.
When Congress created the Federal Sentencing
Guidelines system, its purpose was to increase uniformity by
establishing consistency between the actual conduct
defendants committed and the sentences courts imposed.
Although the Guidelines are now advisory, the goal remains
the same: to channel sentencing discretion in order to produce
consistent, disciplined decisions and avoid excessive
sentencing disparities. The realization of this purpose requires
2
principled application of the Guidelines. The system works
only if courts interpret the Guidelines in a manner faithful to
the text the Sentencing Commission has promulgated.
In this case, we are charged with examining whether our
interpretation of a particular Sentencing Guideline has
comported with the Guideline’s text and advanced the system’s
purpose. Under Guideline § 3B1.3, courts are to impose a two-
level enhancement “[i]f the defendant abused a position of
public or private trust . . . in a manner that significantly
facilitated the commission or concealment of the offense.” The
commentary to § 3B1.3 in turn defines “position of public or
private trust” as one “characterized by professional or
managerial discretion (i.e., substantial discretionary judgment
that is ordinarily given considerable deference).” U.S.S.G.
§ 3B1.3 cmt. n.1. After Kenneth Douglas was convicted of
conspiracy to distribute cocaine and conspiracy to engage in
money laundering, the District Court in this case imposed the
§ 3B1.3 enhancement, reasoning that Douglas had abused the
special access granted to him by virtue of his position as an
airline mechanic at the San Francisco International Airport.
We, however, conclude that Douglas is not subject to the
enhancement. In so doing, we clarify our approach to cases
involving § 3B1.3 and reiterate that the Guideline requires
courts to first determine whether a defendant’s position was
characterized by “professional or managerial discretion”
before asking whether he abused the position to facilitate his
crime. Because Douglas’s position as an airline mechanic did
not involve the requisite “professional or managerial
discretion,” the enhancement does not apply in his case. We
will remand to the District Court for resentencing.
3
I. BACKGROUND
Sometime in 2008, Douglas approached his friend,
Tywan Staples, and asked him if he had a way for Douglas to
make some extra money. Douglas and Staples had first met in
1991, when they both worked at the Oakland International
Airport Maintenance Base. By 2008, both men were working
aircraft maintenance for United Airlines at the San Francisco
International Airport. Staples worked at the airport’s
maintenance base, and Douglas served as a mechanic at the
terminal.
Staples knew of a potential way for Douglas to earn
additional money. For years, Staples and his cousin, Robert
Russell Spence, had been operating a drug distribution scheme
that transported cocaine from the Bay Area to Pittsburgh. At
first, Staples used the U.S. Postal Service and common carriers
to ship cocaine to Spence in Pittsburgh, and Spence shipped
the proceeds from the subsequent drug sales back to California.
But after law enforcement intercepted two packages in 2007,
the conspiracy began to transport the drugs and money using
couriers on commercial airline flights in and out of Oakland
International Airport.
This new system soon ran into trouble as well. In
February 2008, a shipment of nineteen kilograms of cocaine
was lost during a layover in Las Vegas. The following month,
police seized from couriers two packages containing a total of
$235,360.
With these recent setbacks fresh in his mind, Staples
thought it might be wise to begin using the San Francisco
airport as the base of operations. So he asked Douglas if he
4
was able to get bags through the San Francisco airport without
being searched. Douglas responded that he was. Douglas in
fact had an Airport Operation Authority (“AOA”) badge,
which allowed him to access the terminal without going
through a Transportation Security Administration (“TSA”)
checkpoint. To enter the terminal, Douglas swiped his badge
through a card reader and placed his palm and fingers on a
biometric hand pad. After the reader approved his badge and
all five fingers matched up with his identity from the badge,
the door to the terminal would unlock. On a random basis, the
TSA would search employees entering the terminal through
these secured employee entrances, but generally, Douglas was
able to enter the terminal without being screened.
Staples did not have similar access to the terminal at the
San Francisco airport, so he knew Douglas would be a
significant addition to the conspiracy. Staples offered to pay
Douglas to smuggle cocaine into the terminal. Douglas agreed
to do so.
Staples and Douglas subsequently developed a
straightforward arrangement. Typically, Staples would deliver
between ten and thirteen kilograms of cocaine to Douglas’s
house in a sports bag filled with clothing. Douglas would
subsequently take the bag to the airport and enter through the
secured employee entrance to the terminal. Inside the terminal,
Douglas would sit down next to the courier and place the bag
on the ground between them. Douglas would then leave, and
the courier would take the bag and continue onto an eastbound
flight. Staples later testified that Douglas smuggled cocaine
into the terminal this way roughly forty to fifty times. On some
of those occasions, Douglas also served as the courier, taking
the drugs to Pittsburgh himself. Each time Douglas got the
5
cocaine into the airport, he was paid $5,000. He earned an
additional $5,000 when he flew with the drugs to Pittsburgh.
Relying on airline records, the Government eventually
identified forty-six flights departing from the San Francisco
airport that were involved with the drug scheme. Douglas was
a passenger on seventeen of those flights, sometimes using
employee benefit tickets. In several instances, Douglas
returned to San Francisco between twelve and twenty-four
hours after his original departure flight, spending mere hours
at the other destination. The timing of Douglas’s flights also
coincided with the timing of telephone calls with Staples and
deposits into Douglas’s bank account.
A grand jury ultimately returned an indictment against
Douglas and twenty-one co-defendants. Douglas was charged
with conspiracy to distribute and to possess with intent to
distribute five kilograms or more of cocaine, in violation of 21
U.S.C. § 846, and conspiracy to engage in money laundering,
in violation of 18 U.S.C. § 1956(h). After a bench trial,
Douglas was convicted on both counts.
Prior to sentencing, the Probation Office submitted a
pre-sentence investigation report (“PSR”) that recommended
Douglas be held responsible for 450 kilograms of cocaine,
resulting in a base offense level of 38. The PSR then called for
three two-level enhancements for (1) money laundering in
violation of 18 U.S.C. § 1956, pursuant to U.S.S.G.
§ 2S1.1(b)(2)(B); (2) abuse of a position of public or private
trust, pursuant to U.S.S.G. § 3B1.3; and (3) obstruction of
justice, pursuant to U.S.S.G. § 3C1.1. The PSR explained that
the enhancement for abuse of a position of trust applied
because Douglas had taken advantage of his security clearance
6
and employment as an airline mechanic to smuggle drugs into
the airport.
Douglas objected to the calculation of the amount of
drugs and the enhancements for abuse of a position of public
or private trust and obstruction of justice. The District Court,
however, overruled those objections at sentencing. It
concluded that Douglas used his “position of trust with the
airlines” and his security clearance to aid him in his role in the
conspiracy. App. 411. The District Court concluded that
Douglas’ total offense level was 43, which is the maximum
under the Guidelines and corresponds to a sentence of life
imprisonment. The District Court ultimately decided to vary
downward from the Guidelines recommendation and imposed
a sentence of 240 months.
On appeal, a Panel of this Court affirmed Douglas’s
sentence with respect to the drug quantity calculation and the
enhancement for abuse of a position of public or private trust,
but it reversed the obstruction of justice enhancement. The full
Court subsequently granted Douglas’s petition for rehearing en
banc solely on the issue of whether he was subject to the
enhancement for abuse of a position of trust.1
1
The order granting rehearing en banc vacated the
original panel opinion in its entirety, but the full Court did not
rehear the drug quantity calculation or obstruction of justice
enhancement issues. The Panel has issued a new opinion that
reinstates the original Panel opinion except for the issue
addressed here. That new Panel opinion is filed
contemporaneously with this en banc opinion. See United
States v. Douglas, No. 15-1754, --- F.3d --- (3d Cir. ____).
7
II. JURISDICTION & STANDARD OF REVIEW
The District Court had jurisdiction pursuant to 18
U.S.C. § 3231, and we have jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a). Whether a defendant
occupied a position of public or private trust for purposes of
U.S.S.G. § 3B1.3 is a legal question over which we exercise
plenary review. United States v. DeMuro, 677 F.3d 550, 567
(3d Cir. 2012). If we determine the defendant held such a
position, we review for clear error whether he abused the
position. Id.III. DISCUSSION
In relevant part, U.S.S.G. § 3B1.3 states: “If the
defendant abused a position of public or private trust . . . in a
manner that significantly facilitated the commission or
concealment of the offense, increase by 2 levels.” Application
Note 1 to the Guideline adds that a “position of public or
private trust” is “characterized by professional or managerial
discretion (i.e., substantial discretionary judgment that is
ordinarily given considerable deference). Persons holding
such positions ordinarily are subject to significantly less
supervision than employees whose responsibilities are
primarily non-discretionary in nature.” U.S.S.G. § 3B1.3 cmt.
n.1. Note 1 also provides three examples of when the two-level
enhancement would apply: “the case of an embezzlement of a
client’s funds by an attorney serving as a guardian, a bank
executive’s fraudulent loan scheme, [and] the criminal sexual
abuse of a patient by a physician under the guise of an
examination.” Id. The Note further states that the
enhancement would “not apply in the case of an embezzlement
or theft by an ordinary bank teller or hotel clerk.” Id.
8
Application Note 2 to the Guideline likewise reinforces
the requirement of discretionary judgment by identifying two
exceptions when the enhancement would apply even in the
absence of such judgment: cases in which a postal worker
“engages in the theft or destruction of undelivered United
States mail,” and cases in which a defendant abuses “the
authority of his or her position in order to obtain, transfer, or
issue unlawfully, or without authority, any means of
identification,” as when a hospital orderly misappropriates
information from a patient’s chart. Id. cmt. n.2.
A. The Shortcomings of Our Approach to Cases
Involving the § 3B1.3 Enhancement
In determining whether a defendant is subject to the
§ 3B1.3 enhancement for abuse of a position of public or
private trust, our precedent calls for a two-part inquiry. First,
we must determine whether the defendant actually occupied a
position of public or private trust. E.g., United States v.
Iannone, 184 F.3d 214, 222 (3d Cir. 1999). Second, if we
conclude that the defendant did hold such a position, then we
“must determine whether the defendant abused this position in
a manner that significantly facilitated his crime.” Id.Separately, we have held that, when determining at step one
whether the defendant occupied a position of public or private
trust, courts are to “consider: (1) whether the position allows
the defendant to commit a difficult-to-detect wrong; (2) the
degree of authority which the position vests in defendant vis-
à-vis the object of the wrongful act; and (3) whether there has
been reliance on the integrity of the person occupying the
position.” United States v. Pardo, 25 F.3d 1187, 1192 (3d Cir.
1994).
9
For the last two decades, we have followed this
approach in a number of cases, most of which have involved
instances where the defendant had been convicted of some kind
of fraud. See, e.g., United States v. Kennedy, 554 F.3d 415,
425 (3d Cir. 2009); United States v. Thomas, 315 F.3d 190,
204–05 (3d Cir. 2002), abrogated on other grounds by
Loughrin v. United States, 134 S. Ct. 2384 (2014); United
States v. Sokolow, 91 F.3d 396, 412–13 (3d Cir. 1996).
Our application of this framework has not been entirely
uncontroversial, however. In 1999, in his concurrence in
Iannone, then-Chief Judge Becker discussed two related
problems with our focus on the three factors we identified in
Pardo. First, according to him, the Pardo factors were “better
at detecting abuses of trust . . . than defining a true ‘position’
of trust.” Iannone, 184 F.3d at 233 (Becker, C.J., concurring).
In other words, Chief Judge Becker wrote, “the use of the
[Pardo] tripartite test dilutes the concept of a ‘position’ of trust,
reducing our inquiry in practical terms to whether there was an
‘abuse of trust.’” Id. at 234. And second, because fraud
inherently involves an abuse of trust, the emphasis on the
Pardo factors meant that the § 3B1.3 enhancement would
apply in virtually every fraud case. Id. As Chief Judge Becker
explained, “[b]ecause fraud normally includes all three factors,
our description of abuse of trust works equally well as a
description of fraud.” Id. at 232.
To date, this Court has not acted on Chief Judge
Becker’s concerns. But upon examination, we find merit in the
issues he recognized, and we also see additional problems with
the Pardo factors’ place in our analysis. As a result, we are
10
convinced that our approach to cases involving the § 3B1.3
enhancement now requires refinement.
We come to this conclusion for three reasons.
First, our use of the Pardo factors has conflated the two
distinct parts of the § 3B1.3 inquiry. We have made clear that
courts must first determine whether the defendant held a
position of trust before examining whether he abused that
position in a manner that facilitated the commission or
concealment of his crime. See, e.g., Iannone, 184 F.3d at 222.
The first question directs the court’s attention to the
defendant’s status, and the second focuses on the defendant’s
conduct.
Yet the Pardo factors, while purportedly aimed at
resolving the first question, instead speak to the second. They
demonstrate how the defendant’s position enabled his conduct.
The first factor—the freedom to commit a difficult-to-detect
wrong—is relevant to whether the defendant was able to
“commi[t] or conceal[] . . . the offense,” U.S.S.G. § 3B1.3, but
it says little about whether he occupied a position of public or
private trust in the first place. The second factor leads to the
same problem: by asking whether the defendant had authority
vis-à-vis the object of the wrongful act, we inevitably end up
looking at the nature of the crime committed, rather than first
examining the defendant’s position. The third factor—whether
there has been any reliance on the defendant’s integrity—is
relevant to the extent it shows that the defendant was
unsupervised or given considerable deference. However,
factor three leads courts astray when it shifts the focus to the
victim’s susceptibility or the actions of some third party,
11
because that evidence may have nothing to do with the
defendant’s position.
Thus, the Pardo factors, taken together, “dilute[] the
concept of a ‘position’ of trust, reducing our inquiry in
practical terms to whether there was an ‘abuse of trust.’”
Iannone, 184 F.3d at 234 (Becker, C.J., concurring). Section
3B1.3 does not apply to all abuses of trust, however. The clear
text of the Guideline states that only defendants who held a
position of trust are subject to the enhancement.
The second reason our approach requires refinement is
that our use of the Pardo factors is rooted in an outdated
version of the commentary to § 3B1.3. Amended Guidelines
commentary is binding on federal courts and supersedes prior
judicial interpretations of the Guidelines. See Stinson v. United
States, 508 U.S. 36, 46 (1993); United States v. Keller, 666
F.3d 103, 108 (3d Cir. 2011). Relevant here is a 1993
amendment to § 3B1.3, Application Note 1, which added the
language referring to “professional or managerial discretion”
and “considerable deference,” as well as the three examples of
positions subject to the enhancement. Prior to the amendment,
the Note stated, in its entirety, only that “The position of trust
must have contributed in some substantial way to facilitating
the crime and not merely provided an opportunity that could as
easily have been afforded to other persons. This adjustment,
for example, would not apply to an embezzlement by an
ordinary bank teller.” U.S.S.G. § 3B1.3 note (Historical Notes,
1993 Amendments).
In Pardo, the Court acknowledged the amendment, but
it applied the pre-1993 version of the Note because the conduct
at issue had taken place prior to the amendment. 25 F.3d at
12
1190. And the Court developed the three Pardo factors based
on a “[c]ulling” of pre-1993 case law. Id. at 1192. As a result,
Pardo does not direct courts to the indicia provided in the
amended Application Note 1. The ability to commit a difficult-
to-detect wrong—which Pardo deemed “the primary trait that
distinguishes a person in a position of trust from one who is
not,” 25 F.3d at 1191 (quoting United States v. Lieberman, 971
F.2d 989, 993 (3d Cir. 1992))—says nothing about whether the
defendant exercised discretion by virtue of his position, much
less professional or managerial discretion. Nor does it speak
to whether the defendant’s status engendered considerable
deference. The significance of the 1993 amendment to Note 1
has led other circuits to conclude that pre-1993 case law is now
of little use in determining whether a defendant held a position
of trust. See, e.g., United States v. Reccko, 151 F.3d 29, 33 (1st
Cir. 1998) (“It is true that in dealing with the position-of-trust
enhancement courts occasionally have emphasized the
employee’s freedom to commit wrongs that defy facile
detection . . . . But these decisions deal with earlier versions of
§ 3B1.3 and, thus, antedate the Sentencing Commission’s
emphasis on managerial or professional discretion.” (citation
omitted)); United States v. Jankowski, 194 F.3d 878, 884 n.5
(8th Cir. 1999) (“[M]uch of the pre-1993 caselaw on section
3B1.3 is not particularly helpful to us.”). By using the Pardo
factors to guide our determination of whether the defendant
occupied a position of trust, we have failed to give proper effect
to the current version of the commentary and its emphasis on
professional or managerial discretion.
Finally, the third reason our approach requires
refinement is that, in practice, our use of the Pardo factors has
placed few limits on the scope of the § 3B1.3 enhancement.
Because of Pardo’s emphasis on the ability to commit a
13
difficult-to-detect wrong and authority vis-à-vis the object of
the wrong, mere physical access becomes sufficient. It is
therefore difficult to imagine a government employee who
would not be subject to the enhancement. The enhancement
would seemingly apply, for example, to a custodian at a
government office building who stole something off of the
desk of another government employee. The custodian would
likely have keys to every room in the building—i.e., the
authority vis-à-vis the object of the crime—and that access
would enable him to bypass security measures and commit a
difficult-to-detect wrong. For similar reasons, “ordinary bank
teller[s]” would likely qualify for the enhancement under
Pardo too, if they were not already specifically exempted by
Application Note 1. It is evident, however, that the Sentencing
Commission did not intend for the enhancement to apply this
broadly. Our approach to cases involving § 3B1.3 must
distinguish between those positions that are characterized by
professional or managerial discretion and those that are not.
B. A Refined, Discretion-Focused Approach
Resolving these issues does not require a wholesale
abandonment of our approach to cases involving the § 3B1.3
enhancement. We see no reason to alter the basic structure of
our two-part inquiry, because the text of § 3B1.3 requires both
that the defendant hold a “position of public or private trust”
and that he “abuse[]” it “in a manner that significantly
facilitated the commission or concealment of the offense.”2
2
Other circuits have also adopted similar two-part
inquiries. See, e.g., United States v. Reccko, 151 F.3d 29, 31
(1st Cir. 1998); United States v. Ollison, 555 F.3d 152, 165–66
(5th Cir. 2009); United States v. DeMarco, 784 F.3d 388, 397
14
A change is required, however, to the way we use the
three Pardo factors. Accordingly, we will no longer look to
those factors when answering the preliminary, status-focused
question of whether a defendant held a position of public or
private trust. Instead, when determining if the defendant
occupied a position of trust, we will ask whether the defendant
had the power to make decisions substantially free from
supervision based on (1) a fiduciary or fiduciary-like
relationship, or (2) an authoritative status that would lead his
actions or judgment to be presumptively accepted.3 In
answering this question, we will not consider the context of the
crime committed, because, as explained above, the text of the
Guideline requires that we first determine whether the
defendant held a position that qualifies for the enhancement.
(7th Cir. 2015); United States v. Aubrey, 800 F.3d 1115, 1134
(9th Cir. 2015); United States v. Merriman, 647 F.3d 1002,
1005 (10th Cir. 2011); United States v. Walker, 490 F.3d 1282,
1300 (11th Cir. 2007).
3
Judge Shwartz’s dissenting opinion expresses concern
over the § 3B1.3 enhancement being limited to situations
where a fiduciary relationship existed. It therefore bears
emphasis that our definition of a position of trust is disjunctive,
and a fiduciary relationship is not required for the enhancement
to apply. Nor does our definition encompass only defendants
holding professional or managerial titles. Although the
defendant’s job title may be relevant to the inquiry, it is not
dispositive.
15
The defendant’s crime is not relevant to the status-focused
inquiry.4
In addition to being consistent with the text of the
Guideline, this conception of a position of trust also comports
with the text of Application Note 1 and its instruction that
positions of trust are “characterized by professional or
managerial discretion (i.e., substantial discretionary judgment
that is ordinarily given considerable deference). Persons
holding such positions ordinarily are subject to significantly
less supervision than employees whose responsibilities are
primarily non-discretionary in nature.” U.S.S.G. § 3B1.3 cmt.
n.1.
The conception aligns, as well, with the specific
examples listed in Application Note 1. The Note states that the
enhancement would apply to “an embezzlement of a client’s
4
Our conception of a position of trust is similar, though
not identical, to that articulated by other circuits. See, e.g.,
United States v. Tiojanco, 286 F.3d 1019, 1021 (7th Cir. 2002)
(Positions of trust “involve the type of complex, situation-
specific decisionmaking that is given considerable deference
precisely because it cannot be dictated entirely by, or
monitored against, established protocol.”); United States v.
Young, 266 F.3d 468, 475 (6th Cir. 2001) (“A position of trust
is marked by substantial managerial discretion and fiduciary-
like responsibilities—a position with supervisory authority and
one which engenders considerable deference.”). Other circuits
have also more broadly emphasized the concepts of discretion,
deference, and authority. See, e.g., Aubrey, 800 F.3d at 1134;
Reccko, 151 F.3d at 34.
16
funds by an attorney serving as a guardian, a bank executive’s
fraudulent loan scheme, or the criminal sexual abuse of a
patient by a physician under the guise of an examination.”
U.S.S.G. § 3B1.3 cmt. n.1. The first two examples fall into the
category of individuals with the power to make decisions free
from supervision based on a fiduciary or quasi-fiduciary
relationship, while the physician holds an authoritative status
such that his or her actions or judgment would be
presumptively accepted. Application Note 1 further states that
the enhancement would not apply “in the case of an
embezzlement or theft by an ordinary bank teller or hotel
clerk.” Id. Neither of those positions fall within the scope of
the definition we now adopt.5
5
Notwithstanding the problems with our past use of
Pardo, the approach we now adopt is also largely reconcilable
with our post-1993 precedent. Several of those cases involve
applying the enhancement to fraud committed by a defendant
abusing a fiduciary or quasi-fiduciary relationship. See, e.g.,
Kennedy, 554 F.3d at 417–18, 425; Thomas, 315 F.3d at 193–
94, 205; United States v. Hart, 273 F.3d 363, 377–79 (3d Cir.
2001); Iannone, 184 F.3d at 217–19, 225; United States v.
Bennett, 161 F.3d 171, 174–75, 194–96 (3d Cir. 1998);
Sokolow, 91 F.3d at 400–01, 413. In three other cases, we
found subject to the enhancement defendants in particular
positions of authority whose judgment would be presumptively
accepted. See United States v. Babaria, 775 F.3d 593, 595–98
(3d Cir. 2014) (physician); United States v. Dullum, 560 F.3d
133, 135–37, 140–41 & n.5 (3d Cir. 2009) (Secret Service
agent who also served in senior leadership position at his
church); United States v. Sherman, 160 F.3d 967, 969–70 (3d
Cir. 1998) (physician).
17
Only if we find that a defendant occupied a position of
trust will we proceed to the second part of the inquiry and ask
whether the position significantly facilitated the commission or
concealment of the crime. The Pardo factors—although not
relevant to the position question—are relevant here, because
they speak to how the defendant’s position enabled his
conduct. Thus, in making this determination, courts should
consider, among other things, whether the defendant’s position
allowed him to commit a difficult-to-detect wrong, and the
defendant’s authority vis-à-vis the object of the wrongful act.
Courts may also consider whether the victim relied on the
defendant’s integrity, such that the victim became a more
susceptible target for the defendant.6 Courts need not find all
of the Pardo factors satisfied before concluding that the
enhancement applies. At the same time, however, courts
should not impose the enhancement if the defendant’s status
provided merely some assistance. The text of the Guideline
makes clear that the defendant must abuse his position in a
manner that significantly facilitated the commission or
concealment of the offense.7
6
Other factors may be relevant as well; we need not
provide an exhaustive list.
7
Contrary to the assertions of Judge Shwartz’s
dissenting opinion, we do not hold that courts should disregard
“the context in which the defendant’s actions took place” when
deciding whether to apply the § 3B1.3 enhancement.
Dissenting Op. (Shwartz, J.) at 1. This second part of the
inquiry in fact requires courts to consider the context in which
the defendant’s actions took place.
18
C. Douglas’s Case
Turning to the facts of Douglas’s case, we conclude that
he did not occupy a position of public or private trust for
purposes of § 3B1.3. Absent from the record is any evidence
that Douglas’s job as an airline mechanic for United Airlines
falls within either of the categories of positions of trust we have
identified. With regard to the first category, we have no reason
to believe that Douglas had the power to make decisions
substantially free from supervision based on a fiduciary or
fiduciary-like obligation to the airline, airport, or public.
Douglas was not required to place any third party’s interests
above his own, nor did he imply that he would do so. Douglas
may have had certain privileges within the airport, but if he
possessed any decisionmaking authority whatsoever, it is not
apparent that it extended to someone or something other than
himself. And even if Douglas did possess the requisite
decisionmaking authority, the record simply does not show that
he exercised it free from supervision.
Similarly, Douglas’s position as a mechanic does not
qualify as an authoritative status that would lead his actions or
At the same time, our holding that the defendant’s crime
is irrelevant to the initial status-focused inquiry does not mean
that the enhancement is limited to situations where the
defendant was “task[ed] . . . with preventing the type of wrong
that he committed.” Dissenting Op. (Shwartz, J.) at 10 n.7. No
such nexus is required for the defendant to have abused his
position in a manner that significantly facilitated the
commission or concealment of the offense.
19
judgment to be presumptively accepted. The record does not
establish that Douglas’s job required him to exercise any
judgment, much less judgment that others accepted. Indeed,
Douglas’s position was not the product of particularly unique
abilities or experience that would cause others to defer to him,
as they ordinarily would a doctor or a police officer. As best
we can tell, Douglas was an ordinary line mechanic. Without
some evidence that his position was characterized by
professional or managerial discretion, we are unable to
conclude that the § 3B1.3 enhancement applies.8
The Government argues that Douglas is subject to the
enhancement because he had been granted a security clearance
and an AOA badge, allowing him to move freely through the
airport. This may demonstrate that the airline and the TSA
trusted Douglas, but it does not show that he held a position of
trust, as defined by the Guideline. The mere fact that someone
trusted the defendant does not satisfy the Guideline’s
definition. Rather, as we have explained, § 3B1.3 requires
professional or managerial discretion. Other courts have
therefore termed “position of public or private trust,” as used
in § 3B1.3, “a term of art, appropriating some of the aspects of
the legal concept of a trustee or fiduciary.” United States v.
8
This conclusion is consistent with that reached by the
First Circuit, which has twice held that airport employees able
to bypass security measures do not, by that fact alone, hold
positions of trust for purposes of § 3B1.3. See United States v.
Correy, 570 F.3d 373, 395 (1st Cir. 2009) (airport janitor who
helped smuggle drugs); United States v. Parrilla Román, 485
F.3d 185, 190–92 (1st Cir. 2007) (airport baggage handlers
who helped smuggle drugs).
20
Morris, 286 F.3d 1291, 1299 (11th Cir. 2002) (quoting United
States v. Garrison, 133 F.3d 831, 839 n.18 (11th Cir. 1998));
see also United States v. Ragland, 72 F.3d 500, 502–03 (6th
Cir. 1996).
In this case, Douglas “may have occupied a position of
trust in the colloquial sense that [he] was trusted not to use [his]
access for nefarious purposes,” but physical access, on its own,
does not amount to professional or managerial discretion.
United States v. Tann, 532 F.3d 868, 876 (D.C. Cir. 2008).9 On
9
In arguing that Douglas’s unique physical access to the
airport should be sufficient to subject him to the § 3B1.3
enhancement, Judge Shwartz’s dissenting opinion relies
heavily on three cases in which other circuits “applied the . . .
enhancement to prison workers who abuse[d] positions that
gave them special access to highly secure and regulated
locations.” Dissenting Op. (Shwartz, J.) at 9–10 (citing United
States v. Gilliam, 315 F.3d 614, 618 (6th Cir. 2003); United
States v. Brown, 7 F.3d 1155, 1162 (5th Cir. 1993); and United
States v. Armstrong, 992 F.2d 171, 172–73 (8th Cir. 1993)).
Two of the cases cited, however, involved conduct predating
the 1993 amendment to Application Note 1 and therefore
contained no discussion of professional or managerial
discretion. See Brown, 7 F.3d at 1161; Armstrong, 992 F.2d at173–74. The third case involved a defendant who did not
actually work in a prison, but instead was an alcohol and drug
counselor to individuals on federal probation supervision. See
Gilliam, 315 F.3d at 616. The application of the enhancement
there could not have turned on any special, physical access
granted to the defendant, because he in fact possessed no such
access.
21
the contrary, Application Note 2 makes clear that § 3B1.3
applies in only two situations where the defendant did not
exercise such discretion and was trusted solely with physical
access: theft of mail by postal workers and identity theft.
Notably, the Sentencing Commission has not expanded this
exception to the general rule beyond those two categories,
despite amending the commentary several times since 1993,
including most recently in 2009, and despite the heightened
security at airports over that timeframe and the corresponding
trust inherent in granting physical access to airport
employees.10 Thus, in the absence of further action from the
Commission, the Government must show that Douglas
possessed more than just the right to be somewhere.
The Government also contends that we can infer
Douglas enjoyed a degree of authority and autonomy from the
fact he was able to smuggle cocaine into the airport over forty
times without being caught. This logic, however, “turns the
guideline on its head: it does not follow that, merely because a
defendant’s position enables him to commit an offense, the
position must have been unsupervised and, thus, a position of
trust.” United States v. Parrilla Román, 485 F.3d 185, 191 (1st
Cir. 2007). The Government also bears the burden of
establishing that the enhancement applies. United States v.
Napolitan, 762 F.3d 297, 309 (3d Cir. 2014). That burden is
10
The heightened risks associated with physical access
to airports and other public facilities are addressed in part by
§ 5K2.14 of the Guidelines, which provides for an upward
departure where “national security, public health, or safety”
has been “significantly endangered” by a defendant’s conduct.
U.S.S.G. § 5K2.14.
22
not met when the Government simply reiterates evidence of the
defendant’s ability to commit the underlying crime. Here, the
Government has shown only that Douglas’s access to the
airport terminal helped him commit the offense. It has not
demonstrated that Douglas’s position at the airport was
characterized by professional or managerial discretion.11
Accordingly, there is no need to proceed to the second part of
the inquiry and determine whether Douglas abused his position
in a manner that significantly facilitated the commission or
concealment of his crime. We hold that he did not occupy a
position of public or private trust for purposes of U.S.S.G.
§ 3B1.3.
IV. CONCLUSION
For the foregoing reasons, we will reverse the District
Court’s imposition of the two-level enhancement under
U.S.S.G. § 3B1.3, and remand for resentencing.
11
We recognize that we have refined our approach to
cases involving § 3B1.3 in this opinion and that the
Government did not have the benefit of knowing that approach
when it sought the enhancement before the District Court and
on appeal. Nonetheless, the Government has had ample
opportunity to develop the record fully in this case, and it has
not produced any evidence showing Douglas’s position was
characterized by professional or managerial discretion. Under
such circumstances, we have no reservations in concluding that
the Government has not met its burden of establishing that the
enhancement applies.
23
HARDIMAN, Circuit Judge, dissenting.
Because I agree with neither the Majority’s conclusion
nor the path it took to get there, I must respectfully dissent. I
write separately to reiterate my view that we should interpret
the United States Sentencing Guidelines (USSG) according to
their plain language without adding extra-textual “tests.”
Based in part on a two-level enhancement for abuse of
a position of trust under § 3B1.3 of the Guidelines, the District
Court treated Douglas’s offense level as 43 because its initial
calculation (44) was so high that it was literally “off the
charts.” Douglas’s crime was so severe that, despite the fact
that this was his first offense, the Guidelines suggested a
sentence of life imprisonment. Had the District Court disagreed
with the Probation Office’s recommendation that § 3B1.3
applied to Douglas, his offense level would have been 42,
yielding a Guidelines range of 360 months to life.
As the Majority acknowledges, the District Court
sentenced Douglas to 240 months in prison, which was a
considerable downward variance. Is there any reason to believe
that Douglas’s sentence would have been different had the
District Court denied the enhancement and fixed Douglas’s
Guidelines range at 360 months to life? I think not. After the
initial sentencing proceeding, review by a panel of this Court,
consideration of the appeal by the Court sitting en banc, and a
second round of sentencing by the District Court, I expect the
matter to end up right where it started: with a 240-month
sentence. See, e.g., United States v. Zabielski, 711 F.3d 381,
388–89 (3d Cir. 2013) (erroneous application of enhancement
was harmless where “there [wa]s a high probability that it
would have imposed the same sentence irrespective of the . . .
enhancement”).
1
Although I am not convinced that the transcript of
Douglas’s sentencing hearing reflects the same sort of
“detailed findings of fact and explanation” that justified our
application of the harmless-error doctrine in Zabielski, see id.,it’s hard to imagine why the District Court would, after giving
Douglas such a substantial downward variance, conclude on
remand that an even greater variance is appropriate simply
because Douglas did not exercise professional or managerial
discretion. Regardless of whether Douglas was a “fiduciary,” a
“professional,” or a “manager,” the fact remains that he had a
security clearance that gave him special access to sensitive
locations at an international airport, which he abused in order
to facilitate large-scale drug trafficking to the great detriment
of the public. In my view, this satisfies § 3B1.3.
Although I agree with the result she reaches, I cannot
join Judge Shwartz’s thoughtful dissent because I do not agree
that the factors we established in United States v. Pardo, 25
F.3d 1187 (3d Cir. 1994), are worth retaining. Hearing this case
en banc gave us an opportunity to scuttle this test, which strays
far from the text of § 3B1.3. Compare USSG § 3B1.3
(enhancement applies “[i]f the defendant abused a position of
public or private trust . . . in a manner that significantly
facilitated the commission or concealment of the offense”),
with Pardo, 25 F.3d at 1192 (“[c]ulling . . . from our cases” the
following factors: “(1) whether the position allows the
defendant to commit a difficult-to-detect wrong; (2) the degree
of authority which the position vests in defendant vis-a-vis the
object of the wrongful act; and (3) whether there has been
reliance on the integrity of the person occupying the position,”
to be “considered in light of the guiding rationale of the
section—to punish ‘insiders’ who abuse their positions rather
than those who take advantage of an available opportunity”).
2
In seeking to refine the Pardo test, the Majority adds
even more extra-textual requirements to what was already an
unnecessarily prolix framework. This new iteration divides the
§ 3B1.3 inquiry into a “preliminary, status-focused question of
whether a defendant held a position of public or private trust,”
which then “ask[s] whether the defendant had the power to
make decisions substantially free from supervision based on
(1) a fiduciary or fiduciary-like relationship, or (2) an
authoritative status that would lead his actions or judgment to
be presumptively accepted.” Id. at 14–15. If this new set of
prerequisites is satisfied, it is then capped off by a Pardo
analysis, which requires an examination of how the crime was
committed. I recommend we eschew this schema in favor of
one relevant question: did the District Court err in concluding
that Douglas abused a position of public trust? See USSG
§ 3B1.3.
I agree with the Majority that the Guidelines
commentary is entitled to “controlling weight.” Stinson v.
United States, 508 U.S. 36, 45 (1993) (quoting
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414
(1945)). But Judge Shwartz is correct that the relevant
application note, which explains that a position of trust is
“characterized by professional or managerial discretion (i.e.,
substantial discretionary judgment that is ordinarily given
considerable deference),” does not foreclose the application of
the § 3B1.3 enhancement to Douglas even though he did not
exercise the discretion of a “manager” or “professional.”
Shwartz Dissent at 1 (quoting USSG § 3B1.3 cmt. n.1). The
phrase “characterized by,” along with the use of “i.e.,”
confirms that such discretion is merely “typical or
characteristic of” a position of trust rather than a necessary
component. See Characterize 2, Oxford English Dictionary
3
(2017); see, e.g., United States v. Thomas, 315 F.3d 190, 204
(3d Cir. 2002) (applying § 3B1.3 enhancement to a non-
manager), abrogated on other grounds by Loughrin v. United
States, 134 S. Ct. 2384 (2014). In light of his ability to bypass
airport security and go “almost everywhere” in and around
sensitive areas of the terminal during his overnight shift,
App. 140–42, Douglas was hardly an “ordinary bank teller or
hotel clerk.” USSG § 3B1.3 cmt. n.1.
In sum, I would discard the Pardo test and review the
District Court’s analysis by applying the text of § 3B1.3, as
informed by its application notes, without further
embellishments. Accordingly, I would affirm the District
Court’s judgment sentencing Douglas to 240 months’
imprisonment, not only because its application of the § 3B1.3
enhancement was legally sound, but also because the absence
of that enhancement—which would have yielded an advisory
Guidelines range of 360 months to life—should not affect what
was already a very substantial downward variance.
Despite the additional discretion the Supreme Court
granted to district judges in United States v. Booker, 543 U.S.
220 (2005), our sentencing review has become increasingly
formalistic: the district court applies an enhancement, the
defendant appeals on procedural reasonableness grounds, and
this Court spills much ink exploring the finer points of the
enhancement instead of evaluating the more meaningful
sentencing factors stated in 18 U.S.C. § 3553(a). I fear that we
are losing the forest for the trees—and this case is a prime
example of the problem. With respect, I dissent.
4
SHWARTZ, Circuit Judge, dissenting with whom
CHAGARES and VANASKIE, Circuit Judges, join.
Our colleagues have concluded that our long-standing
test for applying the enhancement for abuse of a position of
trust under U.S.S.G. § 3B1.3 set forth in United States v.
Pardo, 25 F.3d 1187 (3d Cir. 1994), should be changed and
that, in considering whether to apply the enhancement, courts
should not take into account the context in which the
defendant’s actions took place. We disagree. As explained
below, the text of the Guideline and its application notes
support considering the context of the defendant’s actions in
determining whether he occupied a position of trust and abused
it. The Pardo test, which tracked the Guideline, appropriately
allowed sentencing courts to consider context and should not
be disturbed.
I
Section 3B1.3 calls for a two-level enhancement of a
defendant’s sentence “[i]f the defendant abused a position of
public or private trust . . . in a manner that significantly
facilitated the commission or concealment of the offense.” The
application note to § 3B1.3 states that positions of trust are
“characterized by professional or managerial discretion (i.e.,
substantial discretionary judgment that is ordinarily given
considerable deference) . . . [and are occupied by persons who]
ordinarily are subject to significantly less supervision than
employees whose responsibilities are primarily non-
discretionary in nature.”1 § 3B1.3 cmt. n.1. The use of the
1
The full note provides:
1
word “characterized” in describing “managerial or
professional discretion” demonstrates that the enhancement is
not limited to defendants who hold a professional or
managerial job title. See, e.g., United States v. Thomas, 315
F.3d 190, 204 (3d Cir. 2002) (home health aide, who opened
the victim’s mail and paid bills for her, held a position of trust
because “[t]hese tasks clearly invested [the aide] with
“Public or private trust” refers to a position of
public or private trust characterized by
professional or managerial discretion (i.e.,
substantial discretionary judgment that is
ordinarily given considerable deference).
Persons holding such positions ordinarily are
subject to significantly less supervision than
employees whose responsibilities are primarily
non-discretionary in nature. For this adjustment
to apply, the position of public or private trust
must have contributed in some significant way to
facilitating the commission or concealment of
the offense (e.g., by making the detection of the
offense or the defendant’s responsibility for the
offense more difficult). This adjustment, for
example, applies in the case of an embezzlement
of a client’s funds by an attorney serving as a
guardian, a bank executive’s fraudulent loan
scheme, or the criminal sexual abuse of a patient
by a physician under the guise of an examination.
This adjustment does not apply in the case of an
embezzlement or theft by an ordinary bank teller
or hotel clerk because such positions are not
characterized by the above-described factors.
U.S.S.G. § 3B1.3 cmt. n.1.
2
considerable discretion since [the victim] did not monitor [her]
closely and appeared to rely on her judgment and integrity”),
abrogated on other grounds by Loughrin v. United States, 134
S. Ct. 2384 (2014). Moreover, by using the signal “i.e.” (which
means “that is,” Merriam-Webster Dictionary, available at
https://www.merriam-webster.com/dictionary/i.e.), the
Commission is directing courts to focus on whether the
discretion the person has is ordinarily given significant
deference and whether the person is ordinarily subject to less
supervision. Furthermore, while a defendant who is a fiduciary
or who holds fiduciary-like status may qualify for the
enhancement, fiduciary status is not required. In fact, in
describing when the adjustment applies, the Commission
identified, “for example,” the following situations: an attorney
serving as a guardian who embezzles client funds, a bank
executive who perpetrates a fraudulent loan scheme, and a
doctor who sexually abuses a patient “under the guise of an
examination.” U.S.S.G. § 3B1.3 cmt. n.1. By using the words
“for example,” the Commission informs us that there could be
positions to which the enhancement applies where the holder
of the position has discretion but is not a fiduciary.2
2
Other language in the Guideline and its application
notes show that § 3B1.3 is not limited to defendants who are
fiduciaries or hold fiduciary-like positions or who hold
positions of authority. For instance, Application Note 2,
entitled “Application of Adjustment in Certain
Circumstances,” mentions persons who hold positions that
could impact the public at large, namely postal employees who
steal or destroy United States mail and individuals who have
access to personal identifying information, such as state motor
vehicle department employees who are authorized to issue
driver’s licenses. Neither is a fiduciary and neither holds a
3
Notably absent from the Guidelines and the
commentary is guidance concerning the meaning of the phrase
“position of public trust.” The word “public” has several
meanings, including “of or relating to people in general,”
Merriam-Webster Dictionary, available at
https://www.merriam-webster.com/dictionary/public, and the
word “trust” in this context refers to “one in which confidence
is placed,” id., available at https://www.merriam-
webster.com/dictionary/trust. Applying the dictionary
definitions, “position of public trust” under § 3B1.3 means a
position in which people in general have placed confidence.
The public expects those holding such positions to act in the
public’s interest.3
position of authority. Rather, each is an individual who has
access to something the public entrusted to them. While this
note directs that the enhancement must apply in these
situations, it is clear from later application notes that this note
is not a limitation. For example, in Application Note 5, the
Commission identified “additional illustrations” in which the
enhancement applies, such as the union context. This reflects
that the application notes provide examples that are not
exhaustive.
3
Section 3B1.3’s Application Note 2 provides two
examples that fit this definition. Each person described in the
note is one in whom the public has placed confidence based
upon their access to something valuable, such as an
individual’s mail, personal identifying information, or a
government-issued identification. In addition, these
individuals have discretion concerning how they perform their
duties within the confines of some regulation, statute, or code
of conduct. Such rules and guidelines seek to ensure that these
individuals do not misuse the authority they have been given
4
Case law also recognizes that it is proper to consider the
public’s expectations of a particular position when evaluating
whether the enhancement applies. For example, the public
expects a health care provider who submits a claim to Medicare
to provide truthful claims for reimbursement from government
funds, see, e.g., United States v. Babaria, 775 F.3d 593, 596-
97 (3d Cir. 2014), a pharmacy intern to appropriately handle
medications, United States v. Agyekum, 846 F.3d 744, 753-54
(4th Cir. 2017), a deputy marshal not to misuse his ability to
avoid searches so he can transfer a firearm to a felon, a police
officer not to use drug-buy money for his own gain, United
States v. Brann, 990 F.2d 98, 103 (3d Cir. 1993), and water
district employees not to submit false documents regarding
water quality, United States v. Kuhn, 345 F.3d 431, 436-37
(6th Cir. 2003); United States v. White, 270 F.3d 356, 371-73
(6th Cir. 2001). In each instance, the public’s expectations of
how these individuals should act stem from a code of conduct,
ordinances, oaths, regulations, and statutes that govern their
conduct given the jobs they hold or the places where they work
and inform whether they hold positions of public trust.
The same applies to an individual who works at an
airport. Airport security in the United States is run by the
Transportation Security Administration (the “TSA”), a
government entity created in the aftermath of the September 11
and meet what the public expects of them. For the letter carrier,
the public expects that the mail entrusted to him or her will be
kept safe and delivered to the intended destination. For the
DMV employee, the public expects that the employee will
neither misuse the personal information to which he has access
nor issue a valuable government identification to someone not
entitled to it.
5
terrorist attacks to secure our airports and air travel.
Vanderklok v. United States, 868 F.3d 189, 206 (3d Cir. 2017).
The TSA addresses security in many ways, including by
ensuring that anyone who works at an airport undergoes
criminal and intelligence background checks and receives
training in airport security.4 Only those individuals who
receive security clearance and complete the security training
are given access to secured areas of the airport.5 In addition,
4
See 49 C.F.R. § 1540.205(b), (d) (explaining that the
TSA performs an “intelligence-related check” and, if an
applicant “meets the security threat assessment standards,”
then the “TSA serves a Determination of No Security Threat
on the applicant”); id. § 1542.213(c) (stating that an “airport
operator may not authorize any individual unescorted access to
the [Airport Operation Authority] AOA . . . unless that
individual has been provided” various forms of training,
including in “[s]ecurity responsibilities”); id. § 1544.228(a),
(b) (providing that any individual who, among other things, has
unescorted access to cargo or performs certain functions
related to the transportation of cargo “must successfully
complete a security threat assessment”).
5
See 49 C.F.R. § 1540.5 (stating that “Secured Area
means a portion of an airport . . . in which certain security
measures specified in part 1542 of this chapter are carried out”
and that “Security Identification Display Area (SIDA) means a
portion of an airport . . . in which security measures specified
in this part are carried out”); id. § 1540.105(a) (describing the
“security responsibilities” of individuals with AOA access
badges including the prohibition from the use of AOA access
“in any other manner than that for which [the badge] was
issued”); id. § 1542.203(b) (stating that “[e]ach airport
operator required to establish an AOA must prevent and detect
6
the TSA checks the identification of and searches all
passengers. Areas that were formerly accessible to
nontravelers, such as boarding areas, are now off-limits to all
but those who have been through security or have security
clearance.
Airport security is considered a critical component of
national security, and government authorities that grant access
to secured areas expect those with access to act with integrity.
Furthermore, the public trusts that airport employees will act
in accordance with those systems and not use their positions to
circumvent security measures to smuggle weapons or other
contraband. Indeed, the public cedes its judgment to those who
are permitted in secured areas and is vulnerable to those who
misuse their security clearance. In this way, airports are unique
given the Government’s implementation of robust and
comprehensive security systems and the public’s expectation
that those who work at airports will keep them safe. Thus, an
airport employee granted a security clearance is reasonably
viewed as one who occupies a position of public trust that can
be breached by using his or her position to further a crime. See
United States v. Higa, 55 F.3d 448, 453 (9th Cir. 1995) (leaving
undisturbed the § 3B1.3 enhancement imposed on an airline
customer service representative who “used his position with
the airline to gain entry into areas where others could not” to
smuggle drugs (internal quotation marks omitted)).
the unauthorized entry, presence, and movement of individuals
and ground vehicles into or within the AOA by,” among other
things, “[p]rovid[ing] security information . . . to each
individual with unescorted access to the AOA”); id.
§ 1542.205(a)(2) (providing that each area that is regularly
used to load and unload cargo must be a SIDA).
7
Due to the critical importance of airport security and the
public’s trust in those who have clearances, and considering
the expansive nature of Douglas’s access to secured areas at an
international airport, including the planes themselves, we
cannot say that the District Court abused its discretion in
concluding that Douglas held a position of public trust. While
the record does not indicate how closely Douglas was
supervised while performing his mechanic duties, it is evident
that he was vested with significant discretion. Douglas’s
receipt of an Airport Operation Authority (“AOA”) badge
shows that the TSA and airport vested him with discretion to
access areas of the airport in ways members of the public and
other employees could not. More specifically, Douglas had
unfettered and unescorted access to planes, which the
Government goes to great lengths to protect by screening every
passenger who seeks to board and inspecting each bag placed
within. Like the pharmacist with access to controlled
substances and the health provider who submits claims for
payment from the United States Treasury, Douglas, as an
airport employee with security clearance, was governed by a
regulatory scheme imposed to protect the public. The public,
in turn, relies on people like Douglas not to misuse their special
status. In short, the context in which Douglas engaged in his
criminal activity and the public’s expectations for how
someone in his position should behave show that he occupied
a position of trust.
Thus, Douglas held a position of trust because
(a) national security and public safety concerns in the context
in which he worked are paramount, (b) the Government has
implemented significant security systems to address those
concerns, (c) the public relies upon those security measures
and trusts those with security clearances and the authority they
8
have been granted to act in a responsible fashion, and
(d) Douglas was vested with authority to access secure
locations at the airport.6
Concluding that an airport worker like Douglas holds a
position of public trust finds support in cases that have held
that prison workers hold positions of trust. Both airports and
prisons have governmentally-imposed security measures
designed to keep the location secure and to protect the public.
Prison employees are given authority to enter these secured
places, and misuse of this access can pose a risk to public
safety. For these reasons, our sister circuits have applied the
§ 3B1.3 enhancement to prison workers who abuse positions
6
While issues of national security and public safety
provide a basis for an upward departure under U.S.S.G.
§ 5K2.14, that departure provision covers a concern that differs
from that addressed by § 3B1.3. Section 5K2.14 permits an
upward departure “[i]f national security, public health, or
safety was significantly endangered” as a result of the
defendant’s conduct, regardless of where the conduct took
place. Thus, § 5K2.14 focuses on the consequences of the
defendant’s actions. Section 3B1.3 focuses on the position the
defendant held and whether he abused it. Cf. United States v.
Kikumura, 918 F.2d 1084, 1118 (3d Cir. 1990)
(acknowledging that the upward departures for conduct that
endangers the public safety under § 5K2.14 and extreme
conduct under § 5K2.8 may overlap but concluding that they
address “analytically distinct” concepts, where the national
security enhancement addresses the impact of the defendant’s
dangerous conduct on “safety and welfare of the general
public”), overruled on other grounds, United States v. Grier,
449 F.3d 558, 570 (3d Cir. 2006).
9
that gave them special access to highly secure and regulated
locations. See United States v. Gilliam, 315 F.3d 614, 618 (6th
Cir. 2003) (drug counselor used his position to engage in drug
dealing with prisoners); United States v. Brown, 7 F.3d 1155,
1162 (5th Cir. 1993) (prison food service manager who
smuggled prisoners the proceeds of a Postal Service money
order scheme); United States v. Armstrong, 992 F.2d 171, 172-
73 (8th Cir. 1993) (prison instructor who solicited inmates to
manufacture and pass counterfeit bills). This is because “the
public places tremendous trust in prison employees that they
will not conspire with inmates to violate the law.” Gilliam, 315
F.3d at 618 (alteration, citation, and internal quotation marks
omitted). Similarly, the layers of security at airports
“advance[] the public interest” in national security, United
States v. Hartwell, 436 F.3d 174, 179 (3d Cir. 2006); see also
Singleton v. C.I.R., 606 F.2d 50, 52 (3d Cir. 1979)
(recognizing the government’s “compelling reasons” for
airport and airline security),7 and those who misuse their
7
That Douglas’s job did not task him with preventing
the type of wrong that he committed does not undermine the
conclusion that he was able to commit the crime as a result of
the position of trust he held. Like the prison employees who
were not specifically tasked with preventing contraband from
moving through the prisons, Douglas used his unfettered and
unescorted access at the airport to surreptitiously move
contraband and abuse his position of trust. See Gilliam, 315
F.3d at 618; Brown, 7 F.3d at 1162; Armstrong, 992 F.2d at
172-74.
Furthermore, although Douglas was a mechanic, this
does not mean that he did not hold a position of public trust. It
is undeniable that he held a position of trust insofar as he was
given access to aircraft engines and the public would trust him
10
secured access undermine that interest and violate the public
trust.
For these reasons, the context in which Douglas
committed his crime shows that he did so by abusing a position
of public trust and he is subject to the enhancement.
II
Aside from forbidding sentencing judges from
considering context, the Majority chose to modify our decades-
old test, known as the Pardo test or Pardo factors, for applying
the enhancement. No party requested a rejection or even
modification of Pardo, the Pardo test has not resulted in either
an overuse or misuse of the enhancement, and most
importantly, the test comports with the Sentencing Guidelines.
Thus, no modification of Pardo is required.
not to use his position to tamper with the engines. To limit the
enhancement to situations only where the crime is at the
heartland of his job duties as a mechanic, however, would
enable him to avoid the enhancement where, for example, he
entered a secured area and committed a different crime, such
as slashing the plane’s tires. In short, the applicability of the
enhancement should be context-specific, rather job-specific.
Moreover, the fact he may not hold a position of
authority does not mean that he does not hold a position of
trust. A night watchman at a nuclear facility, who supervises
no one, surely holds a position of trust because he is vested
with tremendous responsibility to keep the facility secure to
protect the public.
11
Pursuant to Pardo,
the inquiry into whether a defendant was
appropriately subject to a § 3B1.3 enhancement
is twofold. First, the court must determine
whether a defendant was placed in a position of
trust, and, if he was, it must then determine
whether he abused that position in a way that
significantly facilitated his crime.
In determining whether a position of trust exists,
we consider three factors: (1) whether the
position allows the defendant to commit a
difficult-to-detect wrong; (2) the degree of
authority to which the position vests in defendant
vis-à-vis the object of the wrongful act; and
(3) whether there has been reliance on the
integrity of the person occupying the position.
Babaria, 775 F.3d at 596 (citations and internal quotation
marks omitted). The Majority says that the Pardo test does not
address whether a defendant holds a position of trust and does
not track the components of § 3B1.3—discretion, deference,
and supervision. We disagree. Pardo’s consideration of
authority and the freedom to commit a difficult-to-detect
wrong speaks to discretion and the presence or absence of
supervision. Pardo’s consideration of whether a person’s
integrity is relied on speaks to whether his judgment is worthy
of deference.
Moreover, the Pardo test ensures that sentencing courts
apply the enhancement by considering the context within
which the defendant acted and the expectations of those who
12
reposed trust in him. Under the Pardo test, neither titles nor
job descriptions dictate whether the person held a position of
trust. Rather, Pardo provides factors for applying the
enhancement, mindful that the purpose of the enhancement is
to “punish ‘insiders’ who abuse their positions rather than
those who take advantage of an available opportunity.” Pardo,
25 F.3d at 1192; see also United States v. DeMuro, 677 F.3d
550, 567-68 (3d Cir. 2012). By barring consideration of
context (which the Pardo factors appropriately considered), the
Majority has narrowed the circumstances when the text of the
Guidelines and application notes would plainly support
applying the enhancement. Particularly in the context of public
trust, whether that person abuses his position of public trust
requires consideration of context-specific matters such as the
nature of the relationship between the defendant and the public
and the public’s expectations for someone who holds a position
like the defendant, regardless of his job title or actual duties.
Considering the context and the relationship between
Douglas’s authority and the public’s expectations, which
include the fact that Douglas worked at an international airport
subject to TSA regulations that gave him unfettered access to
secured areas, his position provided him the means to “commit
a difficult-to-detect wrong” because it permitted him to bypass
security measures, which dramatically reduced the likelihood
that luggage containing the drugs he was smuggling would be
searched.8 See Pardo, 25 F.3d at 1192 (emphasis omitted). He
8
That Douglas could have been subjected to random
searches does not alter this conclusion, because Douglas was
still trusted to move past security at will without inspection the
vast majority of the time, and hence, he was largely deferred
to.
13
was vested with discretion in exactly the area that related to
“the object of the wrongful act”—he was able to move freely
into the terminal without inspection. Id. Finally, it is
reasonable to infer that airport leadership and government
authorities granted him a security clearance in “reliance on
[his] integrity,” trusting that he would not abuse it to
circumvent airport security. Id. Thus, Douglas held a position
of public trust as contemplated under § 3B1.3, which he
abused.
III
Because the Pardo test comports with the Sentencing
Guidelines, and because the Majority’s test is unduly
restrictive in its prohibition against considering the context
within which the defendant exercises discretion, and fails to
recognize the unique nature of what constitutes a position of
public trust and how it can be abused, we respectfully dissent.9
9
This case may provide an occasion for the Sentencing
Commission to review § 3B1.3. Much has changed since
§ 3B1.3 was first enacted and even since it was last amended.
For instance, when Application Note 1 excluded a bank teller
from being subjected to the enhancement, a teller did not have
computer access to a customer’s entire banking record. Now,
like the DMV employee referenced in Application Note 2, a
teller has access to and is entrusted with personal identifying
and bank information. Similarly, in this era where cyber and
national security concerns are paramount, the Commission
may wish to consider whether the enhancement should apply
to those who hold positions that provide the means to
compromise cyber or national security even where their core
job duties may not require them to interface with cyber or
14
national security matters. Finally, the Commission may wish
to define the phrase “position of public trust” and provide
guidance as to whether the context in which a defendant carried
out a crime can be considered in determining whether he holds
a position of trust.
15