United States v. Kenneth Douglas

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 at

173–74. 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