Eleventh Circuit Reverses Abuse of "Public Trust" Enhancement for Federal Licensee
United States Sentencing Guideline § 3B1.3 provides for a 2 level increase in a defendant's offense level "[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." U.S.S.G. § 3B1.3. The comments to § 3B1.3 further define "public or private" trust as:
[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.
U.S.S.G. § 3B1.3 cmt. n. 1.
The defendant in United States v. Louis, No. 08-10916, 2009 WL 485239 (11th Cir., Feb. 27, 2009), Jacquelin Louis, was a federally-licensed firearms dealer in Orlando, Florida. The Bureau of Alcohol, Tobacco and Firearms decided to test Louis' compliance with federal regulations restricting the sale of firearms to purchasers who are not convicted felons by arranging for a paid informants to contact Lewis, representing that they were convicted felons, and arrange to purchase firearms through straw purchasers. Id. at *1. The ATF conducted several controlled purchases, and Louis was arrested and indicted for two counts of selling a firearm to a convicted felon. Id. at *2. Louis was convicted and, at sentencing, the district court increased his offense level by two for abuse of position of trust pursuant to § 3B1.3, finding that firearms dealers occupied a position of public trust on the alleged ground that the public "trusted" him to prevent criminals from obtaining dangerous weapons. Id. at *2, *7. Louis appealed the enhancement. Id.
On review, the Eleventh Circuit recognized that "'[t]he determination of whether a defendant occupied a position of trust is extremely fact sensitive.'” Id. at *3 (citing United States v. Britt, 388 F.3d 1369, 1372 (11th Cir. 2004). It also recognized the importance of discretion on the part of the defendant. Id. at *4. The Court concluded, pursuant to the Guideline, that:
Fiduciaries and employees of a public or private agency who exercise considerable discretion are subject to the enhancement. Lower-level, closely supervised employees who exercise little discretion are not. The enhancement also requires that the offender occupy a position of trust in relation to the victim, not another party.
Id.
The Court proceeded to rely on the Seventh Circuit's decision in United States v. Podhorn, 549 F.3d 552, 560-61 (7th Cir.2008) to conclude that the mere fact that a firearms dealer is licensed by the federal government does not mean that the dealer occupies a position of public trust under § 3B1.3. Id. at *5, *6. The Court noted that the federal government "does not review or warrant the “professional judgment” of a prospective licensee; to receive a license, an applicant must merely submit an application to the Bureau, supply fingerprints and a photograph, pay a fee, and pass a background check." Id. at *6 (citing § 923(d)(1)). It also noted that the ATF had no discretion to deny an application if the licensee met the statutory requirements, and that firearms dealers exercised no discretion in regard to their compliance with federal law. Id. The Court then reversed Louis' conviction and remanded for resentencing, holding that the district court applied an erroneous legal standard in enhancing his sentence for abuse of position of trust. Id. at *7.
Louis also contains a comprehensive summary of the types of positions for which the Court has upheld or reversed applications of enhancements for abuse of a position of trust. Id. at *4 (citing cases).
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