[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
_________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCTOBER 26, 2004
No. 04-10151
THOMAS K. KAHN
Non-Argument Calendar CLERK
_________________________
D.C. Docket No. 03-80087-CR-JCP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SYLENA BRITT,
Defendant-Appellant.
_________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(October 26, 2004)
Before BLACK, CARNES and HULL, Circuit Judges.
PER CURIAM:
Sylena Britt appeals her sentence imposed after pleading guilty to
conspiracy to unlawfully produce Social Security Account Number (SSAN) cards,
in violation of 18 U.S.C. § 1028(a)(1), (f). Specifically, Britt challenges her two-
level enhancement for abuse of a position of trust under U.S.S.G. § 3B1.3, arguing
the enhancement was inappropriate because: (1) she did not hold a position of
trust with the SSA as there was no identifiable victim of her offense; (2) the abuse-
of-trust enhancement only applies to offenders who have exercised managerial
judgment and discretion, which necessarily excludes a mere data clerk or forms
processor such as herself; (3) her position as part-time clerk did not give her the
“freedom to commit or conceal a difficult-to-detect wrong;” (4) not every
employment position constitutes a position of trust, for such a position is generally
a type of “fiduciary relationship” that did not exist between herself and the SSA;
and (5) the abuse-of-trust enhancement is inappropriate when, as here, the conduct
comprising her offense of conviction was itself the abuse of trust. The district
court did not err in imposing the enhancement. We affirm.
I. BACKGROUND
Britt pled guilty to one count of conspiracy to produce without lawful
authority United States identification documents, SSAN cards, in violation of 18
U.S.C. § 1028(a)(1), (f). At Britt’s plea hearing, the Government made the
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following proffer: As a clerk for the SSA, Britt’s responsibilities included
processing applications for SSAN cards. Britt worked part-time from June
through August 1998, and then again from January 1999 until June 2003. An
agent from the Office of Inspector General (OIG) of the SSA discovered Britt had
processed several SSAN applications using alien identification numbers “it would
not have been possible” for her to have verified “in the manner in which she
represented.” In a statement provided to OIG agents, Britt admitted to agreeing
with three other individuals to fraudulently process applications for illegal aliens.
The district court accepted Britt’s guilty plea.
In the presentence investigation report, the probation officer recommended,
inter alia, that Britt’s sentence be enhanced two levels pursuant to U.S.S.G. §
3B1.3 because she had abused her position of trust as a part-time clerk with the
SSA by approving approximately 423 SSAN cards for illegal aliens who did not
qualify for the cards. Britt objected to the abuse-of-trust enhancement, asserting
her position as a part-time clerk was not a position of trust as contemplated in the
Sentencing Guidelines. At sentencing, Britt argued the abuse-of-trust
enhancement was “geared . . . to someone who is characterized by professional or
managerial discretion,” not a part-time clerk at the SSA. The district court
disagreed, stating “the fact that [Britt] certified these documents without ever
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having seen the applicants . . . shows that she was given a important position of
trust, and I don’t think she has to be on a board of directors to have such position.”
The district court overruled Britt’s objection to the abuse-of-trust enhancement
and sentenced her. Britt timely appealed.
II. 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. United States v. Ward, 222 F.3d 909, 911 (11th Cir.
2000).
III. DISCUSSION
The Sentencing Guidelines provide a defendant*s sentencing level shall be
increased two levels “[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. We have held the abuse-of-trust
enhancement only applies if the government has established the following two
elements: “(1) that the defendant held a place of public or private trust; and
(2) that the defendant abused that position in a way that significantly facilitated
the commission or concealment of the offense.” Ward, 222 F.3d at 911.
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Furthermore, the commentary to § 3B1.3 explains that a position of trust is
“characterized by professional or managerial discretion (i.e., substantial
discretionary judgment that is ordinarily given considerable deference),” and a
person in such a position ordinarily is “subject to significantly less supervision
than employees whose responsibilities are primarily non-discretionary in nature.”
U.S.S.G. § 3B1.3, comment. (n.1). A position of trust significantly facilitates the
commission or concealment of an offense when “the person in the position of trust
has an advantage in committing the crime because of that trust and uses that
advantage in order to commit the crime.” United States v. Barakat, 130 F.3d
1448, 1455 (11th Cir. 1997).
The determination of whether a defendant occupied a position of trust is
extremely fact sensitive. For example, in Ward, we held a security guard who
stole money being transported in an armored car he was hired to protect did not
hold a position of trust with his employer because he “had very little discretion in
performing his duty as a security guard,” and “he was closely, albeit not
constantly, supervised by his employer. The money he guarded was processed . . .
upon delivery, and any discrepancy between the money received and delivered
would be—and was—noticed.” Ward, 222 F.3d at 912–13. We also held a food
service foreman who smuggled drugs into the prison where he worked did not
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hold a position of trust with the Bureau of Prisons, even though as a prison
employee he was exempted from being searched upon entering the prison, because
holding otherwise “would extend [the application of § 3B1.3] to virtually every
employment situation because employers ‘trust* their employees.” United States v.
Long, 122 F.3d 1360, 1365–66 (11th Cir. 1997).
On the other hand, we held a deputy county registrar, who was responsible
for registering qualified voters, abused her position of trust when she
conspired “to knowingly and willfully give false information as to a voter*s name
and address for the purpose of establishing the voter*s eligibility to vote.” United
States v. Smith, 231 F.3d 800, 804–05, 819–20 (11th Cir. 2000). In upholding the
§ 3B1.3 enhancement, we noted the appellant “was convicted of offenses
involving [another individual*s] vote, offenses which were dependent upon his
having been registered to vote, and she used her position as deputy registrar to
bring that about (fraudulently).” Id. at 820. Accordingly, we could not conclude
“that the district court erred in finding that [appellant*s] position significantly
aided her commission of an offense for which she was convicted.” Id.
The facts of this case most closely resemble those of Smith. Given the
amount of independent judgment Britt exercised, Britt held a position of trust with
the SSA and abused that position to facilitate her crime. Britt was not a closely
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supervised employee who had little discretion in performing her duties. To the
contrary, she had a great deal of discretion, including whether to accept, reject, or
report for further investigation the documentary evidence submitted to her in
support of applications for SSAN cards. Indeed, she was so loosely supervised
that she was able, over a period spanning more than four years, to approve
fraudulent SSAN applications without detection despite the fact the documents
upon which she purportedly relied did not exist. Accordingly, the district court
did not err in concluding Britt held and abused a position of trust.
In addition to the two elements of the abuse-of-trust enhancement noted
above, “[f]or 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) (quoting United States v. Ragland, 72 F.3d
500, 502 (6th Cir. 1996)). Although we have not addressed this requirement
specifically with respect to a crime committed by a government employee, our
conclusion in Smith suggests the United States government, or more specifically
the SSA, is the victim of Britt’s offense. See also United States v. White, 270 F.3d
356, 371 (6th Cir. 2001) (persuasive authority holding “the general public may be
victims of a government employee’s crimes for purposes of deciding whether the
employee’s sentence may be enhanced pursuant to § 3B1.3"). Furthermore, Britt
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did not raise this identifiable-victim issue in the district court. Accordingly, we
address this issue only “under the plain error doctrine to avoid ‘manifest
injustice.” United States v. Neely, 979 F.2d 1522, 1523 (11th Cir. 1992). We have
not made a definitive ruling on this issue, so the alleged error cannot be plain or
obvious. See United States v. Gerrow, 232 F.3d 831, 835 (11th Cir. 2000)
(reaffirming “where neither the Supreme Court nor this Court has ever resolved an
issue, and other circuits are split on it, there can be no plain error in regard to that
issue”).
Finally, Britt relies on our alternate holding in Garrison, that because the
appellant’s “base fraud crime was the submission of false statements on cost
reports . . . she [could not] receive an enhancement for abuse of a position of
public trust based on the same conduct under the specific terms of section 3B1.3.”
Garrison, 133 F.3d at 843. We recently concluded, however, this alternate
holding in Garrison was dicta. United States v. Bracciale, 374 F.3d 998, 1007–
09 (11th Cir. 2003).
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IV. CONCLUSION
Because Britt used her position as a clerk with the SSA to facilitate the
commission and concealment of her illegal acts, the district court did not err by
enhancing her sentence under § 3B1.3.
AFFIRMED.
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