Crime & Federalism

Under U.S.S.G. § 3B1.3 the defendant faces a two-level enhancement “[i]f the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense.” The Eleventh Circuit has read a third element into this: “For the enhancement to apply, [the] defendant must have been in a position of trust with respect to the victim of the crime.” United States v. Garrison, 133 F.3d 831, 837 (11th Cir. 1998).

Today, in United States v. Britt, The Eleventh Circuit Court of Appeals provided us further guidance. In United States v. Britt , No. 04-10151, the Eleventh Circuit took this one step further, holding that the United States can be a victim of the defendant’s offense. Id. at *7 (“[T]he United States government, or more specifically [a federal agency can be the] victim of Britt’s offense.”) Moreover, facts that the court will rely upon in determining whether a person held a position of trust the amount of discretion in performing one’s official duties, and the power “to accept, reject, or report for further investigation the” suspicious activity relating to her duties. Id. at *6-7. The appellate wonks can take note of the standard of review.

In assessing a district court's application of the abuse-of-trust enhancement under U.S.S.G. § 3B1.3, we review the district court's findings of fact for clear error, but review de novo the district court's determination that the facts justify an abuse-of-trust enhancement.