The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 15-1754
______________
UNITED STATES OF AMERICA
v.
KENNETH R. DOUGLAS,
Appellant
______________
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT OF
PENNSYLVANIA
(D.C. No. 2-09-cr-00105-009)
District Judge: Hon. David S. Cercone
______________
Argued March 23, 2016
______________
Before: GREENAWAY, JR., VANASKIE, and SHWARTZ,
Circuit Judges.
(Filed: February 22, 2017)
Arnold P. Bernard, Jr., Esq. [ARGUED]
437 Grant Street
Suite 407
Frick Building
Pittsburgh, PA 15219
Counsel for Appellant
Michael L. Ivory, Esq. [ARGUED]
Rebecca R. Haywood, Esq.
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
______________
OPINION OF THE COURT
______________
SHWARTZ, Circuit Judge.
Kenneth Douglas appeals his sentence, arguing that the
District Court incorrectly held him responsible for trafficking
more than 450 kilograms of cocaine, erroneously applied
sentencing enhancements for abuse of a position of trust
under U.S.S.G. § 3B1.3 and obstruction of justice under
U.S.S.G. § 3C1.1, and failed to appropriately consider the
disparity between his sentence and those imposed on his co-
conspirators. For the reasons discussed below, we will affirm
the sentence with respect to the drug calculation and
enhancement for abuse of a position of trust, but reverse the
obstruction of justice enhancement.
2
I
Douglas participated in a conspiracy to distribute
cocaine. The conspiracy began years before he joined it,
when Tywan Staples, who lived in the San Francisco area,
began supplying marijuana to his cousin Robert Russell
Spence in Pittsburgh. Staples and Spence went from selling
small amounts of marijuana to shipping four to six kilograms
of cocaine across the country several times a month. After
law enforcement intercepted several packages containing
money and drugs, the conspirators began using couriers to
carry drugs and money on commercial flights. By 2008, six
different couriers were transporting cocaine out of the
Oakland, California airport. After two of the couriers were
arrested, the conspirators began using San Francisco
International Airport (“SFIA”) instead.
Staples, who worked at the “maintenance base” at
SFIA, knew Douglas, who was an airline mechanic for United
Airlines. Douglas had an Airport Operation Authority
(“AOA”) badge that enabled him to enter the airport terminal
without being screened at a Transportation Security
Administration (“TSA”) checkpoint. 1 Unlike Douglas,
Staples did not have the ability to enter the terminal without
1
Douglas’s supervisor described the way Douglas
would access the terminal. To enter the terminal through a
secured employee entrance, an employee has to use his AOA
badge as well as place his hand on a biometric scanner.
However, to leave the terminal, only the AOA badge is
required. On a random basis, the TSA would search
employees entering the terminal.
3
inspection. For that reason, when Douglas asked Staples if he
had “any way [Douglas] could make some extra money,”
Staples invited him to join the conspiracy. Douglas accepted.
Staples and Douglas facilitated the movement of
cocaine in a simple way. Staples would deliver the cocaine to
Douglas packed in a bag with clothing. Douglas would then
smuggle the bag into the terminal and either transfer it to a
courier once inside the secured area of the terminal, or board
the plane as a passenger with the drugs.
Staples testified that Douglas assisted with the
movement of the cocaine “40 to 50 times,” transporting ten to
thirteen kilograms of cocaine on each occasion. App. 102.
Douglas transported drugs himself on seventeen occasions.
Unlike the couriers, he was not required to bring cash back to
California, so as to avoid any risk of being caught, which
would, in turn, shut down the conspiracy’s San Francisco
distribution activities. Staples testified that Douglas was paid
$5,000 each time that he smuggled cocaine into the airport,
and another $5,000 each time he delivered a shipment
himself.
Using airline records, the Government identified forty-
six specific flights departing from SFIA between January and
November of 2009 that were associated with the conspiracy,
including seventeen flights on which Douglas personally
transported drugs, sometimes using his employee benefit
tickets. These flights included very short round trips that
were inconsistent with personal travel, and corresponded to
phone calls among the conspirators, the use of pre-paid credit
cards, and the timing of deposits into Douglas’s bank account.
4
Following an investigation, a grand jury 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). Douglas was arrested and released on bail, subject
to several conditions, including travel restrictions and a
requirement that he appear for court proceedings. While
Douglas was on bail, the Probation Office discovered that he
had booked a flight to Jamaica without permission. At his
bail revocation hearing, Douglas claimed he had mistakenly
booked a flight for himself while booking a flight for his
wife. The District Court did not revoke his bail, but modified
his conditions of release to require him to call probation daily
to verify his whereabouts.
Douglas’s trial was scheduled to begin on January 8,
2014. He failed to appear for the first day of trial. The next
day, he filed a motion for a continuance claiming that he “was
receiving medical attention on January 8, 2014 and was
unable [to be] in court for that reason.” Supp. App. 47. In
connection with the motion, Douglas submitted documents
showing that he was admitted to the emergency room around
2:00 a.m. on January 8, complaining of chest pain. The
records show that he was treated with aspirin and intravenous
insulin, transported via ambulance to an urgent care facility,
and had a series of tests in both medical facilities. Douglas’s
EKG revealed possible heart blockage, and his blood tests
indicated he had an abnormal white blood cell count, as well
as an elevated enzyme level that can be indicative of a heart
attack. He received instructions for taking eight over-the-
counter and prescription medications, in addition to the
5
medication he was already taking for diabetes. Douglas was
also instructed to schedule follow-up testing and
appointments with several specialists. Douglas was also
given a doctor’s note bearing the time 4:12 p.m. asking that
he be excused from court on January 8.
Based on this evidence, the Government argued that it
was “possible that [Douglas] went there [at] 2:00 in the
morning faking this illness, so he wouldn’t have to be here
today. It is also possible that that was a legitimate illness. I
don’t think that anything in the records tells us one way or the
other.” App. 388. Despite the hospital records, the District
Court stated that “[t]here’s no solid evidence, at least
presented, that he was suffering from a medical condition that
warranted him not to appear. It’s really sort of ambiguous.”
App. 390–91. Expressing concern that Douglas would not
appear for jury selection the following Monday, the District
Court revoked his bail.
On January 13, 2014, a jury was selected for the joint
trial of Douglas and a codefendant, but the next day,
Douglas’s attorney withdrew, Douglas’s case was severed,
and his trial was adjourned. His bail was reinstated but
modified to require home detention and electronic
monitoring.
Douglas obtained new counsel and later waived his
right to a jury trial. At the bench trial, the Government
offered testimony from several coconspirators, law
enforcement officers, and a United Airlines supervisor. The
Government also presented documents corroborating their
testimony. Following the trial, the District Court convicted
Douglas of both charges.
6
Before sentencing, the Probation Office submitted a
pre-sentence investigation report (“PSR”) recommending that
Douglas be held responsible for 450 kilograms of cocaine,
resulting in a base offense level of 38. Applying the grouping
rules, the PSR recommended a two-level enhancement
pursuant to U.S.S.G. § 2S1.1(b)(2)(B), because Douglas had
been convicted of conspiracy to engage in money laundering.
The PSR also recommended a two-level enhancement for
abuse of a position of trust, pursuant to U.S.S.G. § 3B1.3, and
a two-level enhancement for obstruction of justice, pursuant
to U.S.S.G. § 3C1.1, for a total offense level of 44, which is
treated as a 43, the maximum offense level under the
Guidelines, which corresponds to a Guidelines sentence of
life imprisonment. Douglas objected to the drug quantity as
well as to the upward adjustments for obstruction of justice
and abuse of a position of trust.
At sentencing, the District Court overruled Douglas’s
objections, citing Staples’s testimony that Douglas smuggled
between 10 and 13 kilograms of cocaine between 40 and 50
times, and concluding based on the number of trips that “there
is ample evidence to show that [he] was responsible for more
than 450 kilograms of cocaine.” Supp. App. 236, 393, 403
(noting that his involvement was not an “anomaly”), 411
(observing that the evidence against him was
“overwhelming”).
The District Court also noted the presence of
“aggravating factors,” including that Douglas “use[d] [his]
position of trust with the airlines and, more specifically, [his]
level of security clearance to aid [him] in being part of th[e]
conspiracy to distribute controlled substances and the amount
of drugs that . . . [was] transported with [his] assistance was
7
enormous.” App. 411. As to the obstruction of justice
enhancement, the District Court relied upon Douglas’s failure
to appear on the first day of trial, but made no findings
beyond those it made in its tentative findings, in which it
deemed the objection to the enhancement to be “without
merit.” Supp. App. 237-47.
After determining the total offense level to be 43, the
District Court noted that it had “gone through all of the 3553
factors[,] [ ] looked at them all to determine a sentence that
[wa]s sufficient but not greater than necessary,” decided to
vary downward from the Guidelines sentence of life
imprisonment, App. 411-12, and imposed a sentence of 240
months’ imprisonment for each count, to be served
concurrently, followed by five years of supervised release.
Douglas appeals.
II 2
2
The District Court had jurisdiction under 18 U.S.C. §
3231. We have jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a). We exercise plenary review over the
construction of the Sentencing Guidelines themselves.
United States v. Greene, 212 F.3d 758, 760 (3d Cir. 2000).
We review the factual determinations underlying a sentence
for clear error. “A finding is ‘clearly erroneous’ when,
although there is evidence to support it, the reviewing body
on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” United States
v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc)
(alterations and citations omitted).
8
We review sentences for both procedural and
substantive reasonableness. United States v. Tomko, 562
F.3d 558, 567 (3d Cir. 2009) (en banc). At the first stage, in
which we review for procedural reasonableness, we seek to
ensure that the district court committed no
significant procedural error, such as failing to
calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain
the chosen sentence—including an explanation
for any deviation from the Guidelines range.
Id. (alteration omitted) (quoting Gall v. United States, 552
U.S. 38, 50-51 (2007)). If the district court’s sentencing
procedure “passes muster, we then, at stage two, consider its
substantive reasonableness,” based on the totality of the
circumstances. Tomko, 562 F.3d at 567 (internal quotation
marks omitted); see also Gall, 552 U.S. at 51. Absent
significant procedural error, “we will affirm [the sentence as
substantively reasonable] unless no reasonable sentencing
court would have imposed the same sentence on th[e]
particular defendant for the reasons the district court
provided.” Tomko, 562 F.3d at 568.
We will first review Douglas’s challenge to the drug
quantity calculation and then address his arguments
concerning the two Guidelines enhancements.
A
At sentencing, “the government bears the burden of
9
[proving drug quantity] by a preponderance of the evidence.”
United States v. Paulino, 996 F.2d 1541, 1545 (3d Cir. 1993).
While “some degree of estimation must be permitted,” United
States v. Collado, 975 F.2d 985, 998 (3d Cir. 1992), the
district court must satisfy itself that the evidentiary basis for
its estimate has sufficient indicia of reliability. See United
States v. Miele, 989 F.2d 659 (3d Cir. 1993) (drug quantity
estimation based solely on grand jury testimony of single
drug-addicted witness who had contradicted himself was not
sufficiently reliable). “‘Indicia of reliability may come
from . . . corroboration by or consistency with other evidence
. . . .’” United States v. Freeman, 763 F.3d 322, 337 (3d Cir.
2014) (quoting United States v. Smith, 674 F.3d 722, 732 (7th
Cir. 2012)).
The evidence supports the District Court’s factual
determination that Douglas was responsible for more than
450 kilograms of cocaine. Staples testified that Douglas
smuggled “[10] or 13 kilograms” of cocaine through SFIA
“40 to 50 times,” App. 102, which totals between 400 and
650 kilograms of cocaine. Staples knew the amount of drugs
because he provided Douglas with the cocaine, and nothing in
the record suggests that his perception or memory was
impaired in any way or that he provided inconsistent
information on this topic. Cf. Miele, 989 F.2d at 666.
Furthermore, the Government corroborated Staples’s
testimony with flight records, telephone toll records, and bank
deposits. It identified forty-six flights taken out of SFIA by
various drug couriers, including Douglas, all of which
depended on Douglas to smuggle drugs past security into the
terminal. Even if each flight involved only the minimum 10
kilograms of cocaine, this would justify an estimate of over
10
450 kilograms. The fact that the number of flights was
established through circumstantial evidence does not mean
that reliance on it was error. See, e.g., United States v. Jones,
531 F.3d 163, 175 (2d Cir. 2008) (“The quantity of drugs
attributable to a defendant is a question of fact. As such, if
the evidence—direct or circumstantial—supports a district
court's preponderance determination as to drug quantity, we
must sustain that finding.”).
Furthermore, the fact that Douglas used employee
benefit tickets for some of the trips does not undermine the
conclusion that the trips were taken for the conspiracy.
Staples testified that Douglas sometimes used his benefits for
these flights, despite the fact that doing so was riskier because
he might be required to wait longer to board a flight.
Douglas’s argument that cash deposits into his bank
account could have come from gambling is also unavailing.
The regularity of the deposits and the correspondence
between the dates of the deposits and the suspicious flights
provides a reasonable basis to infer that the flights were
related to the conspiracy. 3
3
Douglas attempts to argue in the alternative that the
District Court should have calculated the total drug quantity
based only on the seventeen flights he personally took
because the Government presented more specific evidence
concerning its identification of these flights. While these
flights were substantiated in more detail at trial, Staples’s
testimony, combined with the flight records for the other drug
couriers and the deposits into Douglas’s bank account,
provide a sufficient basis for the District Court to conclude
11
In sum, Staples’s testimony and the documentary
evidence provide ample support for the determination that
Douglas was responsible for more than 450 kilograms of
cocaine, and the District Court did not err in so finding.
B
We next address the District Court’s application of a
two-level enhancement for abuse of a position of trust.
U.S.S.G. § 3B1.3 calls for such an 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.”
To determine whether a defendant occupies a position
of trust for the purposes of § 3B1.3, we 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 the] defendant vis-à-vis [sic] the object
of the wrongful act; and (3) whether there has been a reliance
on the integrity of the person occupying the position.” United
States v. DeMuro, 677 F.3d 550, 567-68 (3d Cir. 2012)
(quoting United States v. Pardo, 25 F.3d 1187, 1192 (3d Cir.
1994)). We apply these factors mindful of the purpose of the
enhancement, which 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 DeMuro, 677
F.3d at 567-68.
that Douglas was involved in smuggling drugs approximately
forty-six, rather than seventeen, times.
12
The application note to § 3B1.3 also 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
ones that] ordinarily are subject to significantly less
supervision than employees whose responsibilities are
primarily non-discretionary in nature.” 4 § 3B1.3 cmt. n.1.
4
The full note provides:
‘[p]ublic 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
13
Such discretion, however, is not necessarily contingent on the
defendant holding a professional or managerial job title. See,
e.g., United States v. Thomas, 315 F.3d 190, 204 (3d Cir.
2002) (home health aide was in position of trust because she
opened the victim’s mail and paid bills for her, and “[t]hese
tasks clearly invested [the aide] with 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). Whatever the defendant’s title, our analysis focuses
on whether the position grants the defendant the requisite
degree of discretion “vis-à-vis [sic] the object of the wrongful
act.” Pardo, 25 F.3d at 1192. 5
because such positions are not characterized by
the above-described factors.
U.S.S.G. § 3B1.3 cmt. n.1.
5
In contrast, the Court of Appeals for the First Circuit
uses “a two-step process” wherein a sentencing court must
“first pos[e] the status question—asking whether the
[defendant’s] position was characterized by professional or
managerial discretion and minimal supervision—” before
moving “to the conduct question” of whether that position
was abused. United States v. Parrilla Roman, 485 F.3d 185,
190-91 (1st Cir. 2007). Critically, the First Circuit evaluates
whether a position is one of discretion and minimal
supervision overall, as opposed to reviewing it in the context
of the wrong that was committed. See id. at 192 (reasoning
that the defendants were not “afforded discretion to establish
policies or to supervise co-workers” but rather completed
tasks “typically required of fleet service clerks (e.g., loading
and unloading cargo, cleaning cabin interiors, and guiding
taxiing aircraft),” which “almost invariably require
14
The level of discretion vested in a defendant may also
be influenced by the context in which they perform their
work. For instance, defendants who are entrusted with access
to highly secured areas, such as prison workers, may hold
positions of trust regardless of their work duties. 6 Other
oversight”). Because this approach is so different from the
Pardo test, we find the First Circuit precedent offered by
Douglas, holding that airport employees who could bypass
security did not hold positions of trust, to be largely
inapposite to our analysis. See Parrilla Roman, 485 F.3d at
190-91 (baggage handlers who used their ability to bypass
airport security to load drugs onto flights undetected were not
in a position of trust because the mere presence of “security
clearance . . . cannot transmogrify a menial position into a
position of trust.”); United States v. Correy, 570 F.3d 373,
395 (1st Cir. 2009) (citing Parrilla Roman, and concluding
that airport janitor who transported drugs into the airport
using his security clearance lacked the managerial discretion
needed for a position of trust).
6
Courts have warned that the enhancement cannot be
so expanded as to apply to “every bank teller who has access
to the bank’s money and every janitor who cleans an office
where desk drawers are left unlocked.” United States v.
Tann, 532 F.3d 868, 870-71, 875-76 (D.C. Cir. 2008)
(defendant who stole money from employer by forging
checks to herself did not abuse a position of trust because “to
apply the enhancement to a defendant merely because he or
she is entrusted with valuable things and has little or no
supervision while performing his or her duties would stretch
the abuse-of-trust enhancement to cover endless number of
jobs involving absolutely no professional or managerial
discretion, in clear contravention of the plain language of the
15
courts of appeals have held that prison workers who abuse
their ability to enter a prison without being searched to
conspire with inmates and smuggle contraband hold positions
of trust under § 3B1.3. See United States v. Gilliam, 315
F.3d 614, 618 (6th Cir. 2003) (prison counselor who
smuggled contraband to prisoners); United States v. Brown, 7
F.3d 1155, 1162 (5th Cir. 1993) (prison food service manager
who smuggled contraband to inmates); United States v.
Armstrong, 992 F.2d 171, 172-73 (8th Cir. 1993) (prison
instructor who solicited inmates to obtain illegal items). 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 (internal quotation marks,
citation, and alteration omitted).
Because of the paramount public importance of airport
security, the discretion that comes with security access at an
airport can be viewed through a similar lens as prisons.
Airport security in the United States is run by the TSA, a
government entity created in the aftermath of September 11 to
ensure the safety of those who fly. To this end, 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
cleared security or have security clearances. Airport security
is now considered a critical component of national security,
commentary to section 3B1.3”) (alteration and citation
omitted). As a general matter, we do not disagree with these
sentiments, but we conclude that Douglas does not fall in the
same category given the unique trust the public and the
government place in employees who can bypass TSA security
restrictions in airports.
16
and it is axiomatic that government authorities granting
access to secured areas expect those with such access to act
with integrity, and that the public trusts airport employees not
to use their positions to circumvent security measures to
smuggle weapons or other contraband. For this reason, 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); cf.
United States v. Roberts, 660 F.3d 149, 165 n.6 (2d Cir.
2011) (applying § 3B1.3 to airline employee on the basis of
his managerial position of private trust, and declining to
consider whether the “enhancement was further warranted by
[his] abuse of a position of public trust, specifically, his abuse
of access to restricted airport areas, a trust conferred by
federal . . . authorities, to facilitate his drug trafficking
scheme”). 7
Bearing in mind the critical importance of airport
security, and the expansive nature of Douglas’s access to
7
Roberts was an airline crew chief charged with
assigning crews to load and unload airplanes who used this
position to facilitate drug trafficking. Roberts, 660 F.3d at
153-54. He abused his position by assigning crew members
who were part of the conspiracy to offload airplanes carrying
drugs while diverting crews that were not connected to the
conspiracy to other jobs to prevent them from discovering the
illicit activity. Id.
17
secured areas at SFIA, including the planes themselves, we
cannot say that the District Court erred in concluding that
Douglas held a position of public trust. While the record does
not indicate that Douglas held a supervisory position or
disclose the amount of supervision he received when
performing his mechanic duties, it is evident that he was
vested with significant discretion, as he was permitted
unfettered access to planes, which airports go to great lengths
to protect, screening every passenger who seeks to board
them and inspecting each bag placed on them. This freedom
allowed Douglas to “commit a difficult-to-detect wrong”
because it permitted him to bypass security measures,
dramatically reducing the likelihood that luggage containing
the drugs would be searched. 8 Pardo, 25 F.3d at 1192
(emphasis omitted). He 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 the purposes of airport security. Id.
Douglas’s argument that his job did not relate to
preventing drug smuggling, and thus did not vest him with
authority relating to the “object of the wrongful act,” Pardo,
25 F.3d at 1192, is unpersuasive. The fact that he was not
8
That Douglas could have been subjected to random
searches does not alter this conclusion, as Douglas was still
trusted to move past security at will without inspection the
vast majority of the time, which gave him the means to
commit the crime.
18
specifically tasked with preventing the type of wrong that he
committed does not undermine the conclusion that he was
able to commit it 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 took advantage of his largely unfettered access at the
airport to surreptitiously move contraband, and thereby
abused his position of public trust. See Gilliam, 315 F.3d at
618; Brown, 7 F.3d at 1162; Armstrong, 992 F.2d at 172-73.
For these reasons, the District Court did not err in
applying a two-level enhancement to his offense level
pursuant to § 3B1.3.
C
We next examine the application of the § 3C1.1
enhancement for obstruction of justice. Section 3C1.1
provides a two-level increase in the offense level where “the
defendant willfully obstructed or impeded . . . the
administration of justice with respect to the . . . prosecution . .
. of the instant offense of conviction, and [ ] the obstructive
conduct related to . . . the defendant’s offense of conviction .
. . .” U.S.S.G. § 3C1.1. “[W]illfully failing to appear, as
ordered, for a judicial proceeding” is covered conduct. Id. §
3C1.1 cmt. n.4(E). “Willfully” in this context means
“deliberately or intentionally; in other words, not negligently,
inadvertently, or accidentally.” United States v. Jenkins, 275
F.3d 283, 287 (3d Cir. 2001) (internal quotation marks
omitted). The word “willful . . . when used in a criminal
statute . . . generally means an act done with a bad purpose.”
United States v. Belletiere, 971 F.2d 961, 965 (3d Cir. 1992)
(internal quotation marks omitted). The government bears the
19
burden of proving that the defendant “willfully obstructed or
impeded . . . the administration of justice” by a preponderance
of the evidence. Id.
The District Court adopted the PSR’s recommendation
to impose the obstruction of justice enhancement based on
Douglas’s “fail[ure] to appear for trial on January 8, 2014.”
PSR ¶ 27. During the hearing addressing his failure to
appear, the District Court was provided with medical records
and informed that Douglas had been in the hospital. The
District Court considered the records and arguments and said
that “[t]here’s no solid evidence, at least presented, that he
was suffering from a medical condition that warranted him
not to appear. It’s really sort of ambiguous.” App. 390-91.
As a result, the District Court concluded that there was a
“substantial risk” that Douglas would not appear at trial and
thereby disrupt the administration of justice. App. 391. In
connection with sentencing, the District Court relied on these
facts to impose the § 3C1.1 enhancement, making no
additional factual findings on the subject, and declared the
objection to the enhancement to be “without merit.” 9 Supp.
App. 236.
9
At the sentencing hearing, the District Court
requested clarification for the basis on which the Government
sought the enhancement, asking that it “[b]e more specific
with regard to obstruction” and whether its basis was
“[f]ailure to appear for court.” App. 407. The Government
said it was but also listed several allegedly false statements
Douglas made that caused law enforcement to waste
investigatory effort. Douglas’s attorney then stated that he
had been under the impression the obstruction of justice
enhancement “was predicated on failure to appear for trial.”
20
Douglas asserts that the District Court erred in
imposing the enhancement. He points out that he provided a
medical explanation for his absence from trial, notes that the
District Court made no findings that he willfully failed to
appear for trial, and argues that the subsequent reinstatement
of his bail and the granting of travel requests shows that the
District Court “did not find that the Appellant’s failure to
appear on his jury selection date was willful.” Appellant’s
Br. at 35.
While there is no question that Douglas was aware of
the date of trial and he intentionally did not appear in court,
the record does not show that he willfully failed to appear.
Douglas provided medical documentation that explained his
absence. These records show that he awoke the morning of
trial with chest pain and went to the emergency room at 2:00
a.m., underwent tests showing a possible heart blockage,
abnormal white blood cell count, and elevated heart enzyme
levels, and was treated with insulin and aspirin. His
complaints were taken seriously, as reflected by the fact that
he was transported by ambulance to the hospital’s urgent care
facility for tests. Most significantly, the documentation
included a page entitled “verification of treatment” signed by
a medical doctor at 4:12 p.m. on January 8, 2014, which
stated that Douglas received care and requested that the court
“[p]lease excuse Mr. Douglas’ absence from court today.”
Given this documentation, we are unable to determine why
App. 408. The Government repeated that there were multiple
reasons but that “[b]oth the probation office and [the Court]
already ruled on them.” App. 408-09. The District Court then
stated “I agree. That matter has already been thoroughly
covered. The Court has ruled on it.” App. 409.
21
the District Court viewed his medical excuse skeptically or
described the documentation as “ambiguous.” App. 391.
Moreover, the Government bears the burden of proof
and offered no evidence to show Douglas’s conduct was
willful, in the sense that Douglas deliberately schemed not to
appear in court by feigning illness. See United States v.
Batista, 483 F.3d 193, 195-97 (3d Cir. 2007) (five mental
health evaluations showed defendant was feigning a mental
illness to avoid being found competent). In fact, during the
bail review hearing the Government stated it was “possible
that he went to the [hospital] faking this illness, so he would
not have to be here. It is also possible that that was a
legitimate illness. I don’t think that anything in the records
tell us one way or the other.” App. 388. The Government
therefore viewed the record as being in equipoise. This is not
proof by a preponderance of the evidence that Douglas
willfully failed to appear. Absent such proof from the
Government showing willfulness, and in light of the medical
documentation presented indicating a lack of willfulness, the
application of a § 3C1.1 enhancement was improper. 10
10
Because we will remand for resentencing due to the
erroneous application of the enhancement, we need not
address the substantive reasonableness of the sentence.
United States v. Merced, 603 F.3d 203, 214 (3d Cir. 2010).
We do note, however, that with respect to substantive
reasonableness, Douglas argued only that the District Court
did not consider § 3553(a)(6)’s mandate that courts avoid
unwarranted sentencing disparities among codefendants. He
asserts that his 240-month sentence is excessive in
comparison with his coconspirators who he claims held
managerial roles and participated in the conspiracy for a
22
By improperly applying the obstruction of justice
enhancement, the District Court did not accurately calculate
Douglas’s Guidelines range. See United States v. Wright,
642 F.3d 148, 152 (3d Cir. 2011) (noting that the application
of sentence enhancements is used in calculating a defendant’s
Guidelines range). Failure to make a “correct computation of
the Guidelines range” constitutes procedural error. Id. (citing
United States v. Langford, 516 F.3d 205, 214 (3d Cir. 2008)).
Here, Douglas’s total offense level with the
enhancement was 43, which corresponds to life
imprisonment. Without the § 3C1.1 enhancement, Douglas’s
total offense level corresponds to 360 months to life
imprisonment. Ultimately, the District Court applied a
downward variance and imposed a sentence of 240 months.
While the District Court may still have imposed a sentence of
240 months absent the § 3C1.1 enhancement, we cannot be
sure. See, e.g., Vazquez-Lebron, 582 F.3d at 446 (“[W]e
cannot be sure that the district court would have imposed the
longer time. Putting aside the fact that Douglas was a
lynchpin of the conspiracy’s San Francisco activities and that
he played a more significant role than other conspirators, and
thus he does not share “exactly parallel[ ]” circumstances
with them, United States v. Iglesias, 535 F.3d 150, 161 n.7
(3d Cir. 2008), his parity complaint would not entitle him to
any relief. “Congress’s primary goal in enacting § 3553(a)(6)
was to promote national uniformity in sentencing rather than
uniformity among co-defendants in the same case.” United
States v. Parker, 462 F.3d 273, 277 (3d Cir. 2006). As a
result, Douglas “cannot rely upon § 3553(a)(6) to seek a
reduced sentence” based on alleged disparity between his
sentence and those imposed on his co-defendants. Id.
23
same sentence if not for the error.”); Langford, 516 F.3d at
219 (“[This] is not that rare case where we can be sure that an
erroneous Guidelines calculation did not affect the sentencing
process and the sentence ultimately imposed.”); see also
Molina-Martinez v. United States, 136 S. Ct. 1338, 1345
(2016) (“When a defendant is sentenced under an incorrect
Guidelines range—whether or not the defendant’s ultimate
sentence falls within the correct range—the error itself can,
and most often will, be sufficient to show a reasonable
probability of a different outcome absent the error.”). We
will therefore reverse the application of the § 3C1.1
enhancement and remand for resentencing.
III
For the foregoing reasons, we will affirm the District
Court’s conclusion regarding drug quantity and its application
of the enhancement for abuse of a position of trust, reverse
the enhancement for obstruction of justice, and remand for
resentencing.
24
USA v. DOUGLAS, 15-1754
GREENAWAY, JR., Circuit Judge, concurring in part,
dissenting in part,
The Sentencing Guidelines are meant to constrain
judicial discretion, focusing and channeling decisions about
criminal punishment in order to provide consistent,
disciplined conclusions. I fear that my colleagues have shed
those constraints. By disregarding the binding source of law
here—the Sentencing Guidelines themselves—the majority
has left the abuse of a position of public trust enhancement
without limits on its scope. The Guidelines, and our
consistent precedent in applying them, delineate particular
sorts of abuse of trust which trigger this enhancement. The
majority’s interpretation sweeps those textual and
precedential distinctions away, rendering the enhancement
indiscriminately applicable to a panoply of criminal actors. I
am compelled to dissent. 1
Some violations of trust—but not all—are crimes.
And when they are crimes, violations of trust are
sometimes—but not always—subject to increased
punishment. The Sentencing Guidelines provide a two-level
enhancement for defendants who “abused a position of public
or private trust . . . in a manner that significantly facilitated
the commission or concealment of the offense.” U.S.S.G.
§ 3B1.3. In this case, Douglas undoubtedly violated the trust
placed in him by his employer, by the airport, and implicitly
by the traveling public. The majority rightfully recoils at that
breach. But Douglas’s crime did not abuse a position of trust,
1
I join Parts I, II.A, and II.C of the majority opinion.
1
as defined by the Guidelines, and it is the Guidelines we are
called upon to apply here. 2
I begin my analysis of § 3B1.3 with the text of the
Guideline and its accompanying note. The commentary to
the Guidelines is authoritative and must be given “controlling
weight” unless plainly erroneous or in violation of the
Constitution or a federal statute. United States v. Keller, 666
F.3d 103, 108 (3d Cir. 2011) (quoting Stinson v. United
States, 508 U.S. 36, 45 (1993)). The commentary to the
Guidelines are binding on federal courts and supersede even
prior judicial interpretations of the Guidelines. Id. Note 1 to
Guidelines § 3B1.3—worth quoting in full—provides that:
“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
2
This conduct could, of course, be considered as part of the
sentencing court’s analysis under 18 U.S.C. § 3553(a).
2
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, Note 1.
The plain meaning of this Note makes clear that the
sentencing enhancement is not meant to apply to cases like
this one. The Sentencing Commission limited the
enhancement to the abuse of positions characterized by
“professional or managerial discretion.” The majority would
write these terms out of the Guidelines entirely. After
correctly observing that those without professional or
managerial job titles can nevertheless abuse positions of trust,
the majority goes further than the Guidelines allow, reducing
the analysis only to whether the defendant has discretion “vis-
à-vis the object of the wrongful act.” Maj. Slip. Op. at 13
(citing United States v. Pardo, 25 F.3d 1187, 1192 (3d Cir.
1994). Never again does the majority ask nor mention
whether that discretion is the variety specified by the
Guidelines: professional or managerial discretion. These
terms modify the word “discretion” and must be given effect.
See United States v. Cheape, 889 F.2d 477, 480 (3d Cir.
1989) (applying rule against superfluities to Sentencing
Guidelines). Any interpretation of § 3B1.3 that provides an
enhancement for discretion generally, rather than only
professional or managerial discretion, is broader than what
the Guidelines provide.
3
Nor does the majority address the remainder of the
Note. The Sentencing Commission further explained exactly
what sort of discretion characterizes a position of trust:
“substantial discretionary judgment that is ordinarily given
considerable deference.” Deference is at the core of the
Guidelines’ definition of a position of trust, but is nowhere to
be found in this case. The paradigmatic examples of
positions of trust provided for by the Sentencing Commission
are characterized by this sort of deference. A patient defers to
a doctor’s medical expertise and allows him to set a course of
treatment; she substitutes his judgment for her own. U.S.S.G.
§ 3B1.3, Note 1. In “the case of an embezzlement of a
client’s funds by an attorney serving as a guardian,” the client
has delegated financial decisionmaking to his attorney; her
embezzlement relies on that substitution of judgment.
U.S.S.G. § 3B1.3, Note 1.
Who defers to Douglas’s discretionary judgments? No
one. The majority asserts that Douglas’s discretion was
manifest in his ability “to move freely into the terminal
without inspection.” Maj. Slip. Op. at 16. But that freedom
of movement pertains to Douglas himself. He did not
exercise decisionmaking power on behalf of others who
deferred to his position or expertise. This is not the kind of
discretion specified by the Guidelines.
In fact, Douglas is more akin to the “ordinary bank
teller or hotel clerk” whom the Guidelines expressly specify
are not covered. U.S.S.G. § 3B1.3, Note 1. A bank teller has
physical access to highly sensitive locations—cash tills,
vaults, perhaps safe deposit boxes—and may be permitted to
move through the bank freely, without inspection. But bank
tellers are not subject to the abuse of a position of trust
enhancement. Freedom of movement is a form of discretion,
4
but it is not the managerial or professional discretion that is
subject to this enhancement.
The history of § 3B1.3 only underscores the
importance of these provisions. Prior to a set of 1993
amendments, Note 1 provided only that “The position of trust
must have contributed in some substantial way to facilitating
the crime and not merely have 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). The Sentencing
Commission added its discussion of “professional or
managerial discretion” and of deference to the defendant’s
judgment to its Commentary in 1993. These qualifications
cannot be ignored, minimized, or flattened into a general
discussion of abuse of trust; the Commission acted
specifically to include them. 3 Cf. Stone v. I.N.S., 514 U.S.
386, 397 (1995) (“When Congress acts to amend a statute, we
presume it intends its amendment to have real and substantial
effect.”).
3
Other courts have recognized that the specific addition of
these terms “places a significant limit on the types of
positions subject to the abuse-of-trust enhancement,” even
compared to the pre-1993 version of the statute. United
States v. West, 56 F.3d 216, 220 (D.C. Cir. 1995). See also
United States v. Contreras, 581 F.3d 1163, 1166 (9th Cir.
2009), opinion adopted in part, vacated in part, 593 F.3d
1135 (9th Cir. 2010) (en banc) (comparing pre- and post-
amendment tests).
5
In addition to the express terms of Note 1, the
provisions of Note 2 offer further reason not to apply the
§ 3B1.3 sentencing enhancement to Douglas. Note 2
provides that “[n]otwithstanding Application Note 1 . . . an
adjustment under this guideline shall apply to the following.”
It then lists specific contexts in which physical access suffices
for § 3B1.3 to apply, including cases in which postal workers
engage in the theft or destruction of undelivered mail or in
which defendants abuse their position to obtain identification
information, as when a hospital orderly misappropriates
information from a patient’s chart. § 3B1.3 Note 2. Thus,
Note 2 carves out certain exceptions in which the
enhancement applies where it would not otherwise. Were
these low-level workers covered by the definitions in Note 1,
there would be no cause to single them out separately in Note
2.
The principle of expressio unius est exclusio alterius
instructs us that because the Sentencing Commission singled
out two areas where low-level workers who abuse their
physical access are subject to the enhancement—theft of mail
by postal workers and identity theft—the Commission did not
mean to cover other low-level employees who abuse their
physical access. See United States v. Jankowski, 194 F.3d
878, 884 (8th Cir. 1999) (“the enhancement for postal
employees is an exception to the general definition as stated
in the first paragraph of note 1. . . the exception is limited and
meant only to protect the delivery of the mail.”)
Airports may be, as the majority writes, a special and
sensitive context, in which all employees are held to a higher
standard. If so, the Sentencing Commission has the power to
single out airport employees for coverage based only on
access, just as it did postal workers. But the Sentencing
6
Commission did not do so. The Sentencing Commission
singled out postal workers. 4 It is not for the courts to impose
their own substantive beliefs in place of those of the expert
body tasked with preparing the Guidelines. Cf. Mistretta v.
United States, 488 U.S. 361, 379, 393 (describing Sentencing
Commission as “expert body” making “political
judgment[s].”); United States v. Frank, 864 F.2d 992, 1015
(3d Cir. 1988) (comparing Commission’s “extrajudicial task
of delegated substantive rulemaking” with “judicial function”
of imposing sentences).
We are bound to follow the Sentencing Commission’s
notes in interpreting the Guidelines. United States v. Savani,
733 F.3d 56, 62 (3d Cir. 2013) (“guidelines commentary,
interpreting or explaining the application of a guideline, is
binding on us when we are applying that guideline because
we are obligated to adhere to the Commission’s definition”).
The majority, however, barely engages with the Guidelines’
text. Rather, their analysis rests almost entirely on the
judicially-created tests we have previously elaborated. I do
not believe that the text of the Guidelines allows us to impose
the § 3B1.3 sentencing enhancement on Douglas. If our
precedent compelled such an outcome, I would conclude that
our precedent needed to be brought into line with the
authoritative interpretations set forth in the notes to the
Guidelines. But our cases are entirely consistent with the
principles set forth above – at least until now.
4
Identity theft was added in 2005 amendments, in response to
a new statutory mandate. U.S.S.G. § 3B1.3 note (Historical
Notes, 2005 Amendments). See Identity Theft Penalty
Enhancement Act, Pub. L. 108-275, 118 Stat. 831 (2004).
7
The majority laid out the three-part Pardo test which
structures our determination of whether a defendant occupies
a position of trust. United States v. Pardo, 25 F.3d 1187,
1192 (3d Cir. 1994). And the majority properly noted that
this test must be applied purposively, steered by the “guiding
rationale of the section—to punish ‘insiders' who abuse their
position rather than those who take advantage of an available
opportunity.” Id. See also United States v. DeMuro, 677
F.3d 550, 567-68 (3d Cir. 2012) (restating standard).
However, the majority failed to heed its own
admonition about the section’s purpose. Indeed, at one point
the majority summed up Douglas’s crime by stating that he
“took advantage of his largely unfettered access at the airport
to surreptitiously move contraband.” Maj. Slip Op. at 17.
While we eschew “magic words” formalisms in our analysis,
it is revealing that the majority described Douglas using
precisely the language that our precedent uses to describe
when § 3B1.3 is inapplicable. Douglas did, in fact, only “take
advantage” of an opportunity for criminality. For this reason,
§ 3B1.3 does not cover him.
Our jurisprudence has also consistently recognized that
the § 3B1.3 sentencing enhancement only applies in the
specific context laid out in the Guidelines. For example, we
have described the enhancement as applying to
“relationships.” DeMuro, 677 F.3d at 568 (including “a
mother/daughter relationship and a babysitter/child
relationship” as well as a parishioner/church advisor
relationship (citations omitted)). Positions of trust, under the
Guidelines, are relational, existing between defendants and
those who defer to their judgment.
8
Likewise, although we do not limit the enhancement to
“formal” fiduciary relationships, we routinely ask whether
relationships were “analogous to the fiduciary relationship” or
“fiduciary-like.” United States v. Iannone, 184 F.3d 214, 225
(3d Cir. 1999). See also United States v. Bennett, 161 F.3d
171, 196 (3d Cir. 1998) (“It was this fiduciary position that
Bennett occupied . . . that caused the District Court to find
Bennett held a position of trust relative to his victims.”);
United States v. Sokolow, 91 F.3d 396, 413 (3d Cir. 1996)
(“Sokolow argues that no fiduciary relationship existed with
NIBA members in connection with the submission of
premiums. . . . We disagree.”).
We have also looked specifically for professional or
managerial discretion, in the particular sense provided for by
the Guidelines: that clients defer to the considered judgment
of the defendant, who operates outside effective supervision.
See United States v. Babaria, 775 F.3d 593, 597 (3d Cir.
2014) (“there was no one supervising Dr. Babaria’s position
as the medical director and manager of Orange”); United
States v. Kennedy, 554 F.3d 415, 425 (3d Cir. 2009)
(“Kennedy’s claim that neither Ursuline nor its clients placed
special reliance upon her is specious because she was
responsible for managing her clients' finances.”) (emphasis
added); United States v. Hart, 273 F.3d 363, 377 (3d Cir.
2001) (categorizing stockbrokers based on discretion to freely
trade granted by their customers, and assessing § 3B1.3
applicability accordingly); Iannone, 184 F.3d at 225
(describing defendant’s managerial position); United States v.
Nathan, 188 F.3d 190, 206 (3d Cir. 1999) (“Nathan held the
highest position in the company”); United States v. Sherman,
160 F.3d 967, 970 (3d Cir. 1998) (finding physicians not
subject to effective supervision because of “their education
9
and training and analysis . . . inherent in the profession”);
Bennett, 161 F.3d at 196 (defendant “exercised unlimited
managerial discretion over the organizations and their
staffs”).
Indeed, the only case the majority cites with respect to
the nature of professional or managerial discretion, United
States v. Thomas, 315 F.3d 190, 204 (3d Cir. 2002), involved
a home health aide who used her influence over her elderly
patient, who “appeared to rely on her judgment and integrity,”
in order to fraudulently cash checks. The aide was
empowered to open her patient’s mail “without supervision”
and was given “authority to pay bills for her.” Id. While a
home health aide is not inherently trusted with professional
discretion like a doctor or attorney might be, we found that
this particular home health aide was given the same power to
substitute her judgment for that of her ward.
Douglas’s crime displays none of the features that we
have looked for in our past applications of § 3B1.3. His
criminal behavior is not rooted in any particular trust-based
relationship akin to doctor/patient or parent/child. He owed
no fiduciary obligation to the airline, airport or public, nor
even something analogous to a fiduciary obligation. He was
not supposed to place any third party’s interests above his
own, nor did he imply that he would do so. Rather, his
obligations were those of everyone else: not to smuggle
drugs. And the record does not show Douglas exercising
managerial or professional discretion, whether by operating at
the top of his company’s organization chart or by deploying
specialized knowledge not easily second-guessed.
All our past cases comport with the text of § 3B1.3,
emphasizing that the abuse of a position of trust must always
10
involve a relationship of deference. We have never before
found mere physical access, even in a restricted setting, to
demonstrate a position of trust. We should not do so here.
Bearing this in mind, a proper application of the Pardo
three-part test should not cover Douglas’s behavior. I agree
with the majority that his ability to move through the airport
with limited security screening enabled him to “commit a
difficult-to-detect wrong,” the first Pardo factor. Pardo, 25
F.3d at 1192.
But Douglas lacked “authority . . . vis-à-vis the object
of the wrongful act.” Id. In Pardo, we observed that the
defendant “had no authority over anyone or anything.” Id.
Authority means more than simply the right to be somewhere.
Authority, as we recognized, is exercised with respect to
another, who is ordered, controlled, or affected by that
authority. See Authority, Black’s Law Dictionary (10th ed.
2014) (“1. The official right or permission to act, esp. to act
legally on another’s behalf . . . the power delegated by a
principal to an agent.”). Like Pardo, Douglas did not have
authority over someone or something other than himself, even
if he had certain privileges within the airport.
As for the third factor, “whether there has been
reliance on the integrity of the person occupying the
position,” the record offers little information. Pardo, 25 F.3d
at 1192. The majority claims that we can infer that the airport
and government authorities trusted Douglas because they
granted him a security clearance. Maj. Slip. Op. at 16. This
is tautological. If this were the test, then every cashier given
access to a register would have been hired in “reliance on
[his] integrity.” All employers must trust their employees to
some extent; the third Pardo factor asks how and why that
11
trust is manifested. Properly understood, this third factor
contrasts those who can be trusted due to their independent
professional obligations or their own personal virtues from
those who can only be trusted if supervised or regulated. Cf.
Iannone, 184 F.3d at 225 (finding third factor met because
victims relied on “resume listing years of experience,”
“posing as a decorated Vietnam veteran,” and “perceived
integrity as owner and CEO.”); Sherman, 160 F.3d at 970
(“[T]he insurance company relied on the integrity of Sherman
as a doctor holding a medical license.”).
As the majority admits, the record simply does not
disclose what supervision Douglas received as a mechanic –
nor does it demonstrate what factors secured Douglas his
access to the airport. This is insufficient to determine
whether he was trusted because of his integrity, or simply
because an airline has no option other than to trust someone
to fix their aircrafts. 5 The third Pardo factor, therefore,
cannot support the application of the § 3B1.3 sentencing
enhancement.
The experience of other courts of appeals supports this
conclusion. As the D.C. Circuit has stated, Douglas “may
have occupied a position of trust in the colloquial sense that
[he] was trusted not to use [his] access for nefarious purposes;
in that sense, so is every bank teller who has access to the
5
Of course, this analysis would be entirely different had
Douglas used his expertise as a mechanic to somehow
purposefully damage or endanger the safety or integrity of an
aircraft. Such a circumstance might more logically be
denoted an abuse of a position of trust pursuant to the
Guidelines.
12
bank’s money and every janitor who cleans an office where
desk drawers are left unlocked.” United States v. Tann, 532
F.3d 868, 875 (D.C. Cir. 2008). See also United States v.
Edwards, 325 F.3d 1184, 1187 (10th Cir. 2003) (“the fact that
Ms. Edwards was trusted by her employer with significant
responsibility-even to the point of allowing her to bypass
usual accounting controls and pick up customer checks from
incoming mail-is not determinative.”).
The majority distinguishes Tann based upon “the public
safety dimension” of airport employment, “the nature of the
access he had, and how he used it.” Maj. Slip. Op. at 14 n.6.
Put simply, they assert that airports are special, such that
physical access across an airport per se converts a job into a
position of public trust. Without minimizing the importance
of airport security, I cannot agree. There is simply no
limiting principle.
As noted by the majority, airport security took on new
significance in the wake of the September 11 attacks, the
deadliest terrorist incident in American history. The second
deadliest terrorist attack was the Oklahoma City bombing,
which took place at a federal office building. Associated
Press, Service Held to Mark 20 Years since Oklahoma City
Bombing, Chi. Tribune, Apr. 19, 2015. Are we to hold that
anyone with security access to a large office building—say a
janitor trafficking in drugs in the building’s basement—also
holds a position of trust? What about those with access to
subway systems, nightclubs, hotels, or schools—all sites of
recent mass violence? Deciding that certain large facilities
are so important that everyone in them holds a position of
trust is a policy determination, one properly left to the
Sentencing Commission or Congress. As already noted, the
Commission has singled out certain institutions as per se
13
involving the public trust—most notably the mail—and
airports are not among them.
The only reasoned opinions addressing whether access
to secured areas of an airport makes a position one of public
trust, both from the First Circuit, have found that airport
employment must be subjected to the same “professional or
managerial discretion” analysis as any other job. United
States v. Parrilla Roman, 485 F.3d 185, 190-91 (1st Cir.
2007) (involving airport baggage handlers who helped
smuggle drugs); United States v. Correy, 570 F.3d 373, 395
(1st Cir. 2009) (involving airport janitor who helped smuggle
drugs). The majority suggests that the First Circuit’s
approach to § 3B1.3 diverges so greatly from our own that
these cases are entirely inapposite. I am unpersuaded. 6 But
regardless of the differences or similarities between our tests,
the First Circuit opinions have at least some persuasive
6
According to the majority, the First Circuit uses a “two-step
process” that asks first the “status question” of whether the
defendant’s position was characterized by professional or
managerial discretion and only then asks the “conduct
question” of whether that position was abused. Parrilla
Roman, 485 F.3d at 190-91. But our own Court has held that
“[i]n applying § 3B1.3, a court must initially determine
whether the defendant occupied a position of public or private
trust. If he did occupy such a position, then the court must
determine whether the defendant abused this position of trust
in a way that significantly facilitated his crime.” Iannone,
184 F.3d at 222. If our two-step inquiry is distinct from that
of the First Circuit, it is a distinction without any substantial
difference. Certainly, our tests are similar enough that we can
learn from the First Circuit’s reasoning.
14
power, for at the end of the day, they interpret the same
Guideline.
The First Circuit looked to see whether the defendants
could establish policies or supervise co-workers and whether
they were in fact unsupervised. Parrilla Roman, 485 F.3d at
192. The First Circuit hewed to the instructions of the
Guidelines and focused on professional and managerial
discretion; the majority here fails entirely to engage with
these issues. Likewise, the First Circuit properly
distinguished between mere physical access—the same
privileges enjoyed by bank tellers—and authority. As they
held, “the security clearance awarded to [defendant] cannot
transmogrify a menial position into a position of trust.” Id. at
191.
The other airport cases cited by the majority do not
carry any persuasive weight as to whether § 3B1.3 applies to
anyone abusing their security access to an airport. The
Second Circuit expressly declined to consider “whether a
§ 3B1.3 enhancement was further warranted by Roberts’s
abuse of a position of public trust, specifically, his abuse of
access to restricted airport areas, a trust conferred by federal
CBP [Customs and Border Patrol] authorities, to facilitate his
drug trafficking scheme.” United States v. Roberts, 660 F.3d
149, 165 n.6 (2d Cir. 2011). As the majority correctly notes,
the enhancement was applied to Roberts on the basis of his
abuse of the private trust imparted to him by the airline. He
served in a managerial position, assigning employees under
his supervision to load airplanes. He used this managerial
power to further his drug trafficking operation by assigning
those who were part of the scheme to unload airplanes with
drugs and keeping away those who were not in on the
operation. Roberts, 660 F.3d at 153-54. This supervisory
15
role serves as a valuable contrast to Douglas’s case, where no
such managerial powers were employed.
The Ninth Circuit has upheld the application of
§ 3B1.3 to an airline customer service representative who, to
further a drug conspiracy, “used his position with the airline
to ‘gain entry into areas where others could not.’” United
States v. Higa, 55 F.3d 448, 453 (9th Cir. 1995). But the
Ninth Circuit did not seriously engage with this question; its
cursory treatment was focused on whether the defendant’s
acquittal on two counts precluded the application of § 3B1.3
on two other offenses. Id. Unlike the First Circuit’s analysis,
which engages with the substance of the Guidelines, Higa
lacks any power to persuade on this issue.
In support of its contention that certain institutions are
so sensitive that anyone with access can be found to be in a
position of trust with respect to the general public, the
majority cites a trio of cases—all from outside this circuit—
concerning prison staff. These involve a drug counselor who
attempted to buy cocaine from his counselee, United States v.
Gilliam, 315 F.3d 614 (6th Cir. 2003); a food manager who
participated in a scheme to alter money orders, United States
v. Brown, 7 F.3d 1155 (5th Cir. 1993); and a prison instructor
who conspired with inmates to manufacture and pass
counterfeit bills, United States v. Armstrong, 992 F.2d 171
(8th Cir. 1993).
As the majority observes, these cases do appear to
carve out a special status for prisons, based on the public’s
“right to expect and trust that those in the employ of the
government for the purpose of rehabilitating criminals will
refrain from entering into the kind of criminal enterprises that
necessitated such rehabilitation in the first place.” Gilliam,
16
315 F.3d at 619. This is true as far as it goes. Other courts
(not ours) have found that one context (not airports) should be
treated specially under § 3B1.3.
But our sister circuits are far from uniform in their
application of § 3B1.3 to prison staff. The Ninth Circuit, for
example, rejected the application of § 3B1.3 to a prison cook
who enjoyed access to inmates without being required to be
thoroughly searched upon entry. United States v. Contreras,
581 F.3d 1163, 1168-69 (9th Cir. 2009), opinion adopted in
part, vacated in part, 593 F.3d 1135 (9th Cir. 2010) (en
banc). The Eleventh Circuit decided likewise in another case
involving a food service worker granted access to the prison
without searches, observing that a contrary reading would
“extend to virtually every employment situation because
employers ‘trust’ their employees.” United States v. Long,
122 F.3d 1360, 1365-66 (11th Cir. 1997).
Moreover, the grounds on which prisons have been
singled out do not extend to airports. The Gilliam counselor
was supposed to help inmates avoid drug abuse; instead, he
recruited them into a trafficking scheme. Gilliam, 315 F.3d at
617. He violated his specific duties to the public and those
under his care. In contrast, airline mechanics have no greater
obligation to prevent drug smuggling than anyone else. In
Armstrong, the court analogized correctional officials to
police officers, on whom abuse of trust enhancements are
routinely and easily applied. 992 F.2d at 173. Cf. United
States v. Brann, 990 F.2d 98, 282-83 (3d Cir. 1993)
(“Needless to say, a police officer occupies a position of
public trust, and the commission of a crime by a police officer
constitutes an abuse of that trust. . .” (internal citations
omitted)). Does it behoove us to equate airline mechanics
with law enforcement officers in our jurisprudence?
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It is also well-established that prisons are a “unique
context.” Johnson v. California, 543 U.S. 499, 541 (2005)
(Thomas, J., dissenting); see also Burns v. Pa. Dep’t of Corr.,
642 F.3d 163, 173 (3d Cir. 2011) (discussing “unique
institutional concerns that arise in the prison setting”). The
fact that some courts have taken prisons out from the ordinary
§ 3B1.3 analysis does not mean that we should single out
airports.
I cannot take fault with the majority’s conviction that
Douglas violated the trust placed in him by the traveling
public. An airplane mechanic’s ability to walk contraband
onto a commercial flight threatens the confidence we each try
to maintain in the security of our aviation system. But not
every violation of trust, in that everyday sense, triggers the
sentencing enhancement of § 3B1.3. The Sentencing
Commission has specified that only certain acts—those
violating positions of trust characterized by professional or
managerial discretion and by deference to the defendant’s
judgment rather than abuse of his access—qualify. Douglas’s
acts do not.
I am compelled to dissent because the majority’s
departure from both the Guidelines and our own precedent
leaves us without any principled limitation on the scope of
§ 3B1.3. Under the majority’s approach, I see no way to
restrict § 3B1.3 to airport employees using their security
access to commit crimes but not to workers at other facilities
with areas off-limits to the general public. The Guidelines do
not warrant, or permit, such an expansion, and its
commentary is binding upon us. I respectfully dissent.
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