United States v. Berry

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS June 26, 2013

Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v. No. 11-2186

NORMAN WASHINGTON BERRY,

Defendant - Appellant.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:07-CR-01170-BB-1)

Margaret Ann Katze, Assistant Public Defender, District of New Mexico, (Brian Anthony
Pori, Assistant Federal Public Defender, on the brief) Albuquerque, New Mexico, for
Defendant – Appellant.

Gregory J. Fouratt, United States Attorney Office (Kenneth J. Gonzales, United States
Attorney; Laura Fashing, Assistant United States Attorney, on the brief) Albuquerque,
New Mexico, for Plaintiff – Appellee.

Before HOLMES, O’BRIEN, and MATHESON, Circuit Judges.

O’BRIEN, Circuit Judge.

What started as a routine inspection of Norman Washington Berry’s commercial

tractor-trailer at a New Mexico port of entry eventually revealed boxes of marijuana
nestled in with his load of cantaloupe. A jury convicted Berry of possession with intent

to distribute 100 kilograms or more of marijuana. He complains about a “permissive

inference” instruction given to the jury and claims the evidence was insufficient to

establish the weight of the marijuana to be more than 100 kilograms. He also claims his

sentence ought not have been enhanced based on his use of a special skill—commercial

truck driving—to facilitate the commission of the crime. We affirm.

BACKGROUND

We recite the facts in the light most favorable to the jury’s verdict. See United

States v. Pablo, 696 F.3d 1280, 1284 n.5 (10th Cir. 2012). At approximately 6:40 a.m.

on May 23, 2007, Berry, a commercial truck driver, stopped at the Gallup, New Mexico

port of entry in his tractor-trailer.1 He was greeted by Hermilo Lucero, an officer with

the New Mexico Department of Public Safety, Motor Transportation Police Department.

Lucero asked Berry “where he was coming from, where he was going, and what he was

carrying.” (Vol. 3, Pt. 1 at 8.) He told Lucero he was carrying cantaloupe from Phoenix,

Arizona, to Massachusetts. Lucero reviewed Berry’s logbook. It confirmed he had been

in Phoenix but contained no information about the cantaloupe or the total miles logged.

Based on these logging violations, Lucero decided to perform a Level 2 safety inspection,

1
With limited exceptions, New Mexico law requires all commercial vehicles
entering or leaving the state to stop at all ports of entry. N.M. Stat. Ann. § 65–5–1(A),
(H). It also allows agents at the ports of entry to inspect commercial vehicles and the
driver’s documentation for compliance with state and federal law. Id. §§ 65–1–9, 65–5–
1(B)-(G).

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which consists of reviewing the driver’s paperwork, including the bill of lading, and

inspecting the cargo.

The bill of lading did not indicate where the cargo had been loaded but did show

the shipper was a company in Turlock, California. When Lucero asked Berry why he had

come from Phoenix, Arizona, when the cargo came from California, Berry became

nervous and started stuttering. He explained another driver had picked up the load in

Turlock and met him in Phoenix, where they traded trailers. But the signature on the bill

of lading of the individual who picked up the cargo appeared to be Berry’s. The bill of

lading also listed the cargo’s destination as Bronx, New York, not Massachusetts. Berry

could not explain this discrepancy. According to Lucero, during this exchange, Berry

was “real nervous,” “couldn’t sit still,” and “kept standing, sitting down.” (R. Vol. 3,

Part 1 at 17.)

When Lucero went to inspect the cab of the tractor, Berry volunteered that he was

moving from California to Georgia. After looking in the cab Lucero moved to the trailer,

accompanied by Berry. There was no seal on the cargo doors. When Berry opened them,

Lucero immediately noticed the load of cantaloupe had shifted. He also noticed eight

brown boxes stamped “UPS” sitting at the rear of the trailer; they did not match the boxes

containing the cantaloupe. (R. Vol. 3, Part 1 at 19.) When Lucero asked what the eight

boxes were, Berry “became nervous,” “[h]is voice started to crack,” and said they “were

his personal household stuff, kitchen items, stuff from his house,” which he was moving

from California to Georgia. (Id. at 22.) Because there was no bill of lading for the boxes,

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Lucero opened them. They contained thirty-three bundles of marijuana wrapped in

brown contact paper, plastic wrap, and tin foil. Berry was arrested.

A more thorough inspection of the cab revealed documentation showing Berry and

his tractor-trailer had been in California on May 21 and 22 and in Kingman, Arizona, on

May 22. His logbook, however, showed he had driven from Van Horn, Texas, to

Phoenix, Arizona, on May 21 and had stayed in Phoenix until 3 a.m. on May 23.

Berry was indicted for possession with intent to distribute 100 kilograms or more

of marijuana. He was released on bond and permitted to return to his home in Georgia.

The trial was scheduled to start on May 7, 2008, but Berry failed to appear. He remained

a fugitive until April 29, 2010, when he was located in Canada after returning from

Jamaica (his home country).

The presentence report (PSR) assigned a base offense level of 26 because the

weight of the marijuana was between 100 and 400 kilograms. See USSG §2D1.1(c)(7).2

Two points were added for obstruction of justice due to Berry’s pre-trial flight. He had

no criminal history, resulting in a Criminal History Category of I. With that criminal

history and a total offense level of 28, the advisory guideline range is 78-97 months

imprisonment. The government objected to the PSR. It argued the offense level should

be increased by two under USSG §3B1.3 because Berry used a special skill—commercial

2
Berry was sentenced under the 2010 edition of the United Sentencing Guidelines
Manual. All references to the guidelines in this opinion refer to the 2010 edition unless
otherwise indicated.

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truck driving—to facilitate the commission or concealment of the offense. The probation

officer disagreed and concluded Berry did not use his commercial driver’s license in a

manner significantly facilitating the commission or concealment of the offense.

The judge decided the “special skill” adjustment applied, making the total offense

level 30 and raising the advisory guideline range to 97-121 months. He sentenced Berry

to 97 months imprisonment.

DISCUSSION

a. “Permissive Inference” Jury Instruction

“We review a district court’s decision to give a particular jury instruction for an

abuse of discretion and consider the instructions as a whole de novo to determine whether

they accurately informed the jury of the governing law.” United States v. Gwathney, 465

F.3d 1133, 1142 (10th Cir. 2006).

The key issue at trial was whether Berry knew about the marijuana in his trailer.

The judge told the jury a guilty verdict required it to find the government had proved

beyond a reasonable doubt that, inter alia, Berry knowingly or intentionally possessed a

controlled substance. The instructions also advised the jury about the meaning of the

word “knowingly,” to wit: “the act was done voluntarily and intentionally, and not

because of mistake or accident.” (R. Vol. 1 at 99.) The instructions also addressed

permitted inferences.

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 The first sentence of the “permissive inference” instruction seemingly allowed the

jury to infer criminal knowledge based solely on Berry’s exclusive possession of the

vehicle containing the drugs:

In determining whether or not the defendant knowingly possessed the controlled
substance, if you find the government has proved beyond a reasonable doubt that
the defendant had sole possession of a vehicle in which the controlled substance
was found, you may infer—but are not required to infer—that the defendant
knowingly possessed the controlled substance.

(Id. at 101.) However, the remaining sentences qualified the basis of the inference and

reminded the jury of the government’s burden:

Any inference you draw must be based upon all the evidence in the case, not
merely the defendant’s relationship to the vehicle. Although this inference is
permitted—if you believe it is justified in light of all the evidence—I caution you
that the burden of proof does not shift. The burden remains with the government
to prove beyond a reasonable doubt that the defendant knowingly possessed the
controlled substance.

(Id. at 101.) Berry objected to the instruction before it was given and continues to do so.

The challenged instruction is permissive because it allows—but does not

require—the jury to infer an elemental fact (knowledge) from Berry’s sole possession of

the vehicle in which the drugs were found. Cnty. Court of Ulster Cnty., N.Y. v. Allen, 442

U.S. 140, 157 (1979) (habeas case); see also Gwathney, 465 F.3d at 1143 (“The jury

instruction . . . is a permissive instruction because it tells the jury it may, but is not

required to, draw an inference about Gwathney’s knowledge of the marijuana stored in

his truck based on his operation of the vehicle.”); United States v. Cota-Meza, 367 F.3d

1218, 1221 (10th Cir. 2004) (“The instruction in question is permissive because it tells

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the jury that it may, but is not required to, draw the inference of Cota-Meza’s knowledge

of the cocaine, and that it is not required to convict the defendant based on this inference

alone.”). “A permissive inference instruction is valid if there is a rational connection

between the fact that the prosecution proved and the ultimate fact presumed, and the

latter is more likely than not to flow from the former.” Cota-Meza, 367 F.3d at 1221-22

(citing Ulster Cnty., 442 U.S. at 165). “We judge that likelihood not in the abstract but as

applied to the specific case in which the instruction was given.” Id. at 1222.

In Gwathney, the defendant, like Berry, was a commercial truck driver, who was

found at a New Mexico port of entry with a large amount of marijuana in his trailer. 465

F.3d at 1136-37. With respect to Gwathney’s knowledge of the contraband in his truck,

the jury was told it could—but was not required to—infer that the driver and sole

occupant of a vehicle containing drugs has knowledge of the drugs within it. Id. at 1138.

It was also told “[t]his inference [did] not relieve the government of its obligation to

prove all of the elements of the offense beyond a reasonable doubt.” Id. (citation

omitted). We concluded the trial judge did not abuse his discretion in giving the

instruction. Id. at 1143. Pertinent to, if not determinative of, our decision were facts

making the inference of Gwathney’s knowledge of the drugs more likely than not to flow

from his sole custody and control of the trailer containing them: although he did not load

the trailer, it was not sealed (giving him unrestricted access to the trailer’s contents) and

he signed the bill of lading; shoe prints and crushed boxes leading to the marijuana

suggested someone, either Gwathney or someone acting at his behest, placed the drugs in

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the trailer after it was loaded with legitimate cargo and while it was in Gwathney’s

control; and the high value of the marijuana suggested it would not be transported

without the driver’s knowledge. Id. at 1143.

Similarly, in Cota-Meza, police stopped a van driven by the defendant. 367 F.3d

at 1220. Cocaine was discovered in a hidden compartment of the van. Id. According to

the instructions, the jury was permitted, but not required, to infer Cota-Meza’s

constructive possession of the drugs if it found, beyond a reasonable doubt, his sole

possession of the van. Id. at 1221. It was cautioned, however, that the inference did not

relieve the government of its obligation to prove all of the elements of the offense beyond

a reasonable doubt. Id. Cota-Meza argued the instruction violated his due process rights

because it emphasized his sole possession of the vehicle to the exclusion of all other

evidence and impermissibly discouraged the jury from considering all of the evidence.

Id. We concluded it was not an abuse of discretion for the judge to give the instruction

because, under the facts of the case, the inference of Cota-Meza’s constructive

possession3 of the drugs hidden in the van was more likely than not to flow from his sole

3
“[C]onstructive possession exists where the defendant has the power to exercise
control or dominion over the item.” United States v. Lopez, 372 F.3d 1207, 1212 (10th
Cir. 2004). In drug cases, “constructive possession is an appreciable ability to guide the
destiny of the contraband.” United States v. Al-Rekabi, 454 F.3d 1113, 1118 (10th Cir.
2006) (quotation marks and citation omitted). Except in cases of joint occupancy,
“[d]ominion, control, and knowledge . . . may be inferred if a defendant had exclusive
possession of the premises” where the object is found. United States v. Bowen, 437 F.3d
1009, 1014 (10th Cir. 2006) (quotation marks and citation omitted). Similarly, when a
(continued. . .)

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possession of the van. Id. at 1221-22. The high value of the drugs and the easy

accessibility of the hidden compartment indicated the owner of the drugs would not have

allowed the van to be used by someone who had no knowledge of the drugs. Id. at 1222.

Moreover, Cota-Meza was paid to drive the van. Id. We decided the instruction did not

impermissibly shift the burden of proof to Cota-Meza because it required the government

to prove beyond a reasonable doubt all of the offense elements, including Cota-Meza’s

sole possession of the van, which was the critical fact permitting the inference. Id. at

1223. However, we suggested a better instruction would have permitted the jury to draw

the inference “only if in light of all of the other evidence, the defendant’s sole possession

of the vehicle convinced the jury beyond a reasonable doubt that he knew of the drugs.”

Id. at 1222-23. Nevertheless, we affirmed because the other instructions adequately

informed the jury of the government’s burden of proof, the defendant’s presumption of

innocence and the jury’s obligation to consider all of the evidence. Id. at 1223.

A leitmotif is easily discerned. In both cases evidence apart from the defendant’s

sole possession of the truck and trailer was a significant consideration. A relevant

conclusion necessarily follows—a permissive inference instruction may not be given

defendant has sole possession of the vehicle in which drugs are discovered, his
knowledge of the drugs may be inferred from that possession and other case facts.
Gwathney, 465 F.3d at 1143; Cota-Meza, 367 F.3d at 1221-22.

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unless the trial judge is first convinced it is justified by the whole of the evidence4 and the

jury must be clearly instructed on its permissible use.

The permissive inference instruction given in this case passes muster. As in

Gwathney and Cota-Meza, the totality of the evidence supports the inference of Berry’s

knowledge (actually, it provides almost overwhelming support for the inference). He

owned the truck and trailer in which the drugs were discovered. He claimed ownership

of the boxes of marijuana by telling Lucero they contained personal items he was moving

from California to Georgia.5 The trailer doors were not sealed, making for easy access to

the cargo. The boxes of marijuana were easily accessible and in plain view and were

distinguishable from those containing cantaloupe. There was no bill of lading for the

marijuana boxes (not even one containing false information about their contents). The

information Berry supplied to Lucero concerning his travels was inconsistent with the bill

of lading. His story about getting the trailer from another driver is a transparent lie.

Documentation recovered from the truck’s cab showed Berry had been in California, a

drug source area. The marijuana had a value of about $114,000, making it unlikely the

owner would entrust it to someone without knowledge of its presence. Finally, Berry

4
A jury instruction is only proper if supported by the evidence. Thompson v.
United States, 223 F.3d 1206, 1210 (10th Cir. 2000). Had Berry hooked his tractor to an
already loaded and sealed trailer, the instruction would likely have been refused. Had the
seal been unbroken at the port of entry and traceable to the shipper, the instruction could
not reasonably have been given.
5
He may have said so to avoid the bill of lading problem, but the reason matters
not. Whatever his motivation for doing so, he claimed ownership of the boxes.

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absconded before trial, indicating consciousness of guilt. See United States v. Martinez,

681 F.2d 1248, 1256 (10th Cir. 1982).

Permissive inferences have received a fair share of criticism. The chief criticism

is “that they isolate and abstract a single circumstance from the complex of circumstances

presented in any given case, and, on proof of that isolated fact, authorize an inference of

some other fact beyond reasonable doubt.” Charles R. Nesson, Reasonable Doubt and

Permissive Inferences: The Value of Complexity, 92 Harv. L. Rev. 1187, 1192 (1979); see

also United States v. Rubio-Villareal, 967 F.2d 294, 299 (9th Cir. 1992) (permissive

inference instruction allowing jury to infer defendant’s knowledge of drugs if jury found

defendant was the driver of the vehicle containing the drugs and the drugs were

concealed within the vehicle improper because, inter alia, “it focused the jury on some

rather than all the facts”). In Morissette v. United States, the Supreme Court said: “A

presumption which would permit but not require the jury to assume intent from an

isolated fact would prejudge a conclusion which the jury should reach of its own volition.

A presumption which would permit the jury to make an assumption which all the

evidence considered together does not logically establish would give to a proven fact an

artificial and fictional effect.” 342 U.S. 246, 275 (1952). In an opinion upholding the

giving of a permissive inference instruction because other instructions made clear the

judge was not implying the jury should return a guilty verdict, the Ninth Circuit

observed:

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 Our fact-intensive review makes us question the effectiveness of permissive
inference instructions. They are most effective when least appropriate: where the
evidence supporting the inference is sparse and the inference is most crucial to the
government’s case. Where extensive background facts support the inference and
reduce the likelihood that the verdict will be tainted, the instruction is far less
likely to play a significant role in the jury’s deliberations. Perhaps we are
emphasizing the opposite ends of a spectrum; there may be a middle ground where
a permissive inference instruction assists the jury without being overly intrusive or
misleading. Still, closing argument affords the government and defense counsel
ample opportunity to argue which inferences may be drawn from the evidence. By
inviting the district court to join in this process, the government risks introducing
error, without gaining much tangible benefit.

United States v. Warren, 25 F.3d 890, 899-900 (9th Cir. 1994).

The expressed concerns are reason for cautious and careful use of the instruction.

The evidence here clearly justified the charge, but the instruction could stand

improvement. The first sentence tells the jury it may infer Berry’s knowledge of the

marijuana if it finds beyond a reasonable doubt he had sole possession of the vehicle, an

undisputed fact. Elements require proof beyond a reasonable doubt. Individual facts do

not. An instruction requiring proof of a fact—sole possession of the vehicle—beyond a

reasonable doubt has the potential of confusing proof of that fact with the proof of an

element−knowledge−beyond a reasonable doubt. Moreover, the instruction makes a

broad statement (the inference is permitted) and then qualifies it (if consistent with all of

the other evidence). That approach increases the risk of confusion. We reiterate what we

said in Cota-Meza—a better instruction would have told the jury to draw the inference

“only if in light of all of the other evidence, the defendant’s sole possession of the vehicle

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convinced the jury beyond a reasonable doubt that he knew of the drugs.”6 367 F.3d at

1222-23.

That said, the instruction here did require the inference to be based on all of the

evidence, not just Berry’s relationship to the tractor-trailer. And, critically, it cautioned

that the burden of proof did not shift—the government was required to prove knowledge

beyond a reasonable doubt. See Ulster Cnty., 442 U.S. at 156 (stating a permissive

inference is constitutional if it does not undermine the jury’s duty to find guilt beyond a

reasonable doubt). Other jury instructions also reminded the jury of the government’s

burden and the jury’s duty to consider all of the evidence. We consider the jury

instructions as a whole. Gwathney, 465 F.3d at 1142. A jury is presumed to follow its

instructions. See United States v. Almaraz, 306 F.3d 1031, 1037 (10th Cir. 2002) (“We

presume jurors attend closely to the language of the instructions in a criminal case and

follow the instructions given them.”). The judge did not abuse his discretion in giving

the permissive inference instruction.

6
A permissive inference instruction might read as follows:

The government must prove beyond a reasonable doubt that the defendant
was aware of the presence of the controlled substance in the vehicle. You may
infer—but are not required to infer—his knowledge based upon his sole
possession of the vehicle. Although you are permitted to draw that inference, it
cannot be drawn without consideration of all of the facts. Ultimately you must be
convinced based upon all of the evidence and beyond a reasonable doubt, that he
knew the controlled substance was present in the vehicle.

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 Had there been error, it would have been harmless. See United States v. Barbee,

968 F.2d 1026, 1033 (10th Cir. 1992) (erroneous giving of jury instruction subject to

harmless error analysis). As set forth above, the evidence of Berry’s knowledge of the

marijuana was overwhelming. Especially damning was his claimed ownership of the

boxes containing the marijuana.

b. Weight of Marijuana

Officer Lucero testified the marijuana was packaged in brown contact paper, tin

foil and plastic wrap. His testimony along with that of DEA agents Erin Croft and David

Smith spoke to a common circumstance: bulk marijuana is often packaged in large

bundles wrapped in plastic, tin foil, or contact paper and covered with some type of

“masking agent,” such as liquid laundry detergent, tar, oil, axle grease, dryer sheets,

mustard, coffee or peanut butter, to mask the smell. (Vol. 3, Pt. 2 at 214.) Croft and

Smith also testified about DEA policy. When a large amount of marijuana (over 10

kilograms) is intercepted, the policy is to preserve a one kilogram sample and ten smaller

random samples. The remainder is destroyed unless there is an objection to its

destruction by either the government or defendant.

Croft’s testimony also established the gross weight of the marijuana—the drug

plus its packaging and any masking agent—totaled 175.25 kilograms. Croft did not

know the weight of the marijuana without packaging or masking agents. According to

Smith, when bulk amounts of marijuana are involved, the DEA does not remove any

packaging material before weighing the marijuana because it is “too tedious” and

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“mess[y]” and it compromises the safety of the agents who might inhale the marijuana.

(R. V.3, Pt. 2 at 211.) However, in cases involving large amounts of marijuana, the

government and defense counsel often agree to attribute ten percent of the gross weight to

packaging. When asked what masking agent was used in this case, Smith opined, based

on his in-court examination of the one kilogram sample of marijuana presented to the

jury, there was no masking agent, just contact paper and plastic wrap.

After the government presented its case, Berry moved for a directed verdict,

arguing the government had failed to prove the actual weight of the seized marijuana was

at least 100 kilograms. The motion was denied. Berry renews his argument here. While

the evidence showed the gross weight of the marijuana was 175.25 kilograms, he

contends its weight included the packaging materials and masking agent. He emphasizes,

correctly, that no evidence as to the weight of the packaging materials or the masking

agent was produced and the government failed to perform any analysis to determine the

masking agent used. And he claims, also correctly, that Agent Smith’s testimony about

the government and defense attorneys sometimes agreeing to attribute ten percent of the

gross weight of the marijuana to the packaging and masking agent is insufficient to

determine net weight. According to Berry, there is no DEA policy or other written policy

to that effect and there was no testimony that such reduction would be appropriate in this

case.

We review sufficiency-of-the-evidence challenges de novo. United States v.

Acosta-Gallardo, 656 F.3d 1109, 1123 (10th Cir.), cert. denied, 132 S. Ct. 540 (2011).

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We ask whether, “viewing the evidence in the light most favorable to the government, a

reasonable jury could have found the defendant guilty beyond a reasonable doubt.”

United States v. Cornelius, 696 F.3d 1307, 1316 (10th Cir. 2012) (quotation marks and

citation omitted). “We consider both direct and circumstantial evidence, together with

the reasonable inferences to be drawn therefrom.” Id. (quotation marks and citation

omitted). “We may not disturb the jury’s credibility determinations, nor weigh the

evidence in performing this analysis.” Acosta-Gallardo, 656 F.3d at 1123. “We will

reverse a conviction only if no rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Cornelius, 696 F.3d at 1316

(quotation marks and citation omitted).

The jury was instructed that to convict Berry, it had to find the government

proved beyond a reasonable doubt “the weight of the marijuana defendant possessed was

at least 100 kilograms as charged.” (R. Vol. 1 at 98.) The gross weight of the marijuana

was 175.25 kilograms. But, based on a picture of a cross-section of one of the marijuana

bundles, the description of the packaging and other evidence bearing on the issue, a jury

could find, beyond a reasonable doubt, the weight of the packaging did not exceed 43%

of the gross weight, meaning the marijuana weighed at least 100 kilograms. While Berry

claims a masking agent such as oil or peanut butter could add considerable weight to the

marijuana, Smith’s in-court examination of the one kilogram sample of marijuana (which

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was also passed around to the jury) did not indicate use of a masking agent.7 The jury

was free to accept his observation (and its own). The evidence as to the weight was

sufficient.

c. Special Skill Adjustment

The district judge applied a two-level upward adjustment to Berry’s base offense

level for use of a special skill under USSG §3B1.3. The guideline calls for such an

adjustment if the defendant used a “special skill” in a manner that “significantly

facilitated the commission or concealment of the offense.” USSG §3B1.3. In order to

impose the adjustment, “the court must find two things: (1) [d]efendant possessed a

special skill . . . and (2) [d]efendant used that skill . . . to significantly facilitate the

commission or concealment of the offense.” United States v. Burt, 134 F.3d 997, 998-99

(10th Cir. 1998). “Special skill” means “a skill not possessed by the members of the

general public and usually requiring substantial education, training or licensing.

Examples include pilots, lawyers, doctors, accountants, chemists, and demolition

experts.” USSG §3B1.3, comment. (n.4). The purpose of the special skill adjustment “is

7
In a footnote in his opening brief, Berry claims the evidence was also unclear as
to whether the marijuana included stems and stalks which should have been excluded
from the net weight. See 21 U.S.C. § 802(16) (defining marijuana for purposes of the
Controlled Substances Act as not including “the mature stalks” of the plant). We decline
to address the issue because it is raised only in a footnote and was not raised in the
district court. See United States v. Hardman, 297 F.3d 1116, 1131 (10th Cir. 2002) (en
banc) (“Arguments raised in a perfunctory manner, such as in a footnote, are waived.”);
see also United States v. Mora, 293 F.3d 1213, 1216 (10th Cir. 2002) (stating we
generally do not address arguments raised for the first time on appeal).

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to punish those individuals who use their special talents to commit crime.” United States

v. Rice, 52 F.3d 843, 851 (10th Cir. 1995). Thus, to apply the adjustment, “the skill must

be more than the mere ability to commit the offense.” Burt, 134 F.3d at 999 (quotation

marks and citation omitted).

Berry’s commercial truck driving significantly facilitated the commission of the

offense. The only question is whether commercial truck driving is a special skill. Berry

says it is not. He argues the application note to USSG §3B1.3 makes the special skill

adjustment appropriate only when the defendant utilizes skills necessitating substantial

education, training or licensing analogous to those required of the occupations listed as

examples. As the probation officer noted in disagreeing with the government regarding

the application of the adjustment, a commercial driver’s license (CDL) is granted to

anyone who passes a written and driving test and pays the required fees. Berry claims

this training cannot be equated with the training necessary to become a pilot, lawyer,

doctor, accountant, chemist or demolition expert.

We review the district court’s application of the sentencing guidelines de novo.

United States v. Haber, 251 F.3d 881, 890 (10th Cir. 2001). “We review the district

court’s factual findings that [d]efendant possessed a special skill and that he used that

special skill to facilitate the commission of his offense, for clear error.” United States v.

Gandy, 36 F.3d 912, 914 (10th Cir. 1994).

We have yet to address the issue, but the Seventh and Ninth Circuits have

concluded the skill necessary to operate a commercial tractor-trailer is a “special skill”

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under USSG §3B1.3. See United States v. Lewis, 41 F.3d 1209, 1214-15 (7th Cir. 1994);

United States v. Mendoza, 78 F.3d 460, 465 (9th Cir. 1996). The Lewis court reasoned:

Although no case has yet discussed the application of the section to truck driving,
it requires no leap of logic to conclude that the skills necessary to operate an
eighteen-wheeler justify enhancement under the section. An over-the-road
commercially-employed truck driver is required to have a special operator’s
license. Members of the general public would have more than a little trouble
successfully maneuvering a loaded eighteen-wheeler along roads and through
parking lots. Defense counsel suggested at oral argument that anyone who can
drive a car can pilot a big truck down the highway. Although ordinary driving
skills may be sufficient to keep a big rig running on limited-access expressways,
we seriously doubt whether the average citizen possesses the ability to guide a
truck through tight spaces on city streets. Truck driving requires technical
knowledge or ability that the average citizen does not possess.

41 F.3d at 1214; see also Mendoza, 78 F.3d at 465 (“[T]he driving of an 18-wheeler

without any reported mishap over several years is a skill well beyond that possessed by

the general public.”).

We agree with these courts, at least as applied to these facts. While an individual

may be able to obtain a CDL merely by taking a written and driving test and paying the

necessary fee, Berry received his CDL after a year of truck-driving school and on-the-job

training. This training is small potatoes when compared to the training necessary to

become a pilot, lawyer, doctor, accountant, chemist or demolition expert—the

professions listed in the application note to the guideline. But the listed professions are

mere examples of “special skills”; they are by no means an exhaustive list. Moreover, a

defendant need not complete formalized educational or licensing requirements to possess

a special skill; it can also come from experience or self-teaching. Gandy, 36 F.3d at 914.

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Here, Berry not only had a year of training, he also had almost five years of truck-driving

experience at the time of the offense. Furthermore, Berry offered the testimony of an

expert on truck driving at trial. The expert testified as to the specialized knowledge a

commercial truck driver must have concerning such things as legal weight limits, various

state permitting and taxing obligations, and logbook requirements. Under these

circumstances, the “special skill” finding was proper.

Berry also argues the adjustment was erroneously applied because his truck

driving skill was already accounted for in his base offense level as the base offense level

was based on the large quantity of marijuana, which only could be transported via a

commercial vehicle. USSG §3B1.3 says the adjustment “may not be employed if [a

special] skill is included in the base offense level or specific offense characteristic.”

Berry’s base offense level was based on the large quantity of marijuana involved, which

perhaps could only have been transported via a commercial vehicle. However, Berry’s

special skill as a truck driver was not factored into the determination of his base offense

level.

AFFIRMED.

Entered by the Court:

Terrence L. O’Brien
United States Circuit Judge

- 20 -
11-2186, United States v. Berry

HOLMES, J., concurring.

I join the Panel’s opinion in full. I write separately to offer additional

thoughts regarding the special-skill enhancement, U.S.S.G. § 3B1.3, and Mr.

Berry’s contention that his truck-driving skills do not qualify as a special skill.

These additional comments are fully in accord with the Panel’s opinion, as I read

it, and are meant to further clarify the application of this Guideline.

Beginning with the Guideline’s language, it states that “[i]f the defendant

. . . used a special skill[] in a manner that significantly facilitated the commission

or concealment of the offense, increase by 2 levels.” U.S.S.G. § 3B1.3. The

commentary defines “special skill” as “a skill not possessed by members of the

general public and usually requiring substantial education, training or licensing,”

and provides that “[e]xamples would include pilots, lawyers, doctors, accountants,

chemists, and demolition experts.” Id. § 3B1.3 cmt. n.4 (emphasis added).

It seems patent that the commentary’s drafters intend for us to treat these

few examples as categorically qualifying for the enhancement. In other words,

any defendant who has acquired the high level of education, training, or licensing

that is required to occupy one of these specified positions should be deemed to

possess a special skill within the meaning of § 3B1.3. However, once one departs

from this rarefied, categorical domain, the focus of the special-skill inquiry must

center on the actual capabilities possessed by a given defendant, rather than the

labels or titles that may be associated with his or her purported special skill.
 This is true because a given profession or job title can encompass a broad

range of abilities, some of which may qualify as a special skill and others of

which may not. For example, a certain level of computer skills would qualify as a

special skill, while the rudimentary ability to use a computer would most likely

not. See United States v. Petersen, 98 F.3d 502, 507 n.5 (9th Cir. 1996) (“We do

not intend to suggest that the ability to use or access computers would support a

‘special skill’ adjustment under all circumstances. Computer skills cover a wide

spectrum of ability.”). Compare id. at 506–07 (concluding that the defendant’s

“high level” computer skills qualified as a special skill), with United States v.

Lee, 296 F.3d 792, 799 (9th Cir. 2002) (holding that the defendant’s computer

skills were not a special skill because, inter alia, they did not rise to the level of

sophistication of the defendant’s special skills in Petersen, supra), and United

States v. Godman, 223 F.3d 320, 322–23 (6th Cir. 2000) (same). The Panel’s

opinion recognizes this point (albeit tacitly) because it focuses on Mr. Berry’s

particular truck-driving abilities, rather than on whether or not truck-driving skills

categorically constitute a special skill.

As for how this inquiry should be conducted on a case-by-case basis, the

commentary makes clear that, to qualify as a special skill, the skill must not only

be one that is “not possessed by members of the general public,” but it must also

“usually requir[e] substantial education, training or licensing.” U.S.S.G. § 3B1.3

cmt. n.4. This creates a two-part test, both parts of which must be met for a given

2
skill to qualify as a special skill. See Lee, 296 F.3d at 798 (“[T]his sentencing

guideline is best read[] as a two-part test. The test is not just whether the skill is

‘not possessed by members of the general public,’ but also, as a sine qua non,

whether it is a skill ‘usually requiring substantial education, training, or

licensing.’” (citation omitted)); see also Godman, 223 F.3d at 322 (noting that the

district court stressed “overmuch” on whether the defendant’s skills were not

shared by the general public and that because the commentary refers “to the

substantial training of such professionals as doctors and accountants . . . ,

emphasis is better placed on the difficulty with which a particular skill is

acquired”); United States v. Young, 932 F.2d 1510, 1512–13 (D.C. Cir. 1991)

(rejecting the proposition that the special skill enhancement “is due whenever an

offense involves some skill that the general public does not possess”). But cf.

United States v. De La Cruz Suarez, 601 F.3d 1202, 1219 (11th Cir. 2010) (“If an

‘average person off the street’ does not possess the skill, then the skill is

considered ‘special’ for the purposes of applying the [special skill] enhancement.”

(quoting United States v. Calderon, 127 F.3d 1314, 1339 (11th Cir. 1997))). A

court first undertakes the relatively straightforward inquiry into whether the skill

is possessed by members of the general public; if it is not, the court must proceed

to ensure that the second part of the test is met.

The second part of the test requires the skill to be one that “usually

requir[es] substantial education, training or licensing.” U.S.S.G. § 3B1.3 cmt.

3
n.4. Regarding this inquiry, two points are worth underscoring. First, adopting a

reading that is consistent with the evident purpose of the enhancement—to define

a relatively narrow subset of the possible universe of skills possessed by

defendants that would warrant greater sanction when employed to facilitate the

commission or concealment of crimes—the term “substantial” should be read as

modifying all three terms that come after it. 1 If this were not so, the second part

of the two-part test would be rendered essentially surplusage. See FTC v.

Accusearch, Inc., 570 F.3d 1187, 1198 (10th Cir. 2009) (“Under a long-standing

canon of statutory interpretation, one should avoid construing a statute so as to

render statutory language superfluous.” (quoting McCloy v. U.S. Dep’t of Agric.,

351 F.3d 447, 451 (10th Cir. 2003)) (internal quotation marks omitted));

3 Norman J. Singer, et al., Sutherland Statutory Construction § 59:8 (7th ed.

2012) (“Interpretations that render a statutory provision superfluous, or

insignificant, are avoided wherever possible.”).

Notably, this is true because almost every skill not possessed by the general

1
Relatedly, a panel of our court has implicitly held that the mere
possession of any licence does not necessarily mean that one has a special skill.
See United States v. Hinshaw, 166 F.3d 1222, 1999 WL 9762, at *4 (10th Cir.
Jan. 2, 1999) (holding that the defendant’s possession of a firearms license was
insufficient to qualify him for the special skill enhancement because “[t]he
special skills involved in licensing pilots, lawyers, doctors, and accountants are
not comparable to the somewhat perfunctory qualifications the law requires to
obtain a firearms license”). Although Hinshaw is not binding authority, I find its
reasoning persuasive on this point.

4
public requires some minimal level of training, and since the terms in the clause

are stated disjunctively, if the adjective “substantial” does not extend to the noun

“training,” in virtually every instance defendants would qualify for the

enhancement if they had a skill not possessed by members of the general

public—viz., it would follow virtually ineluctably from defendants’ possession of

a skill not possessed by the general public that they would also possess at least

some minimal level of training, thus satisfying the second part of the two-part

test. The effect would be to render this second part essentially surplusage and

make the not-possessed-by-the-general-public inquiry—the first part of the

test—the sole inquiry in almost all cases. This runs contrary to the clear terms of

the commentary that establish a two-part test for determining whether a defendant

possesses a special skill.

It should be acknowledged that the placement of the comma after the term

“education,” might suggest the establishment of a separate and distinct conceptual

unit in which “substantial” modifies only “education.” See, e.g., The Chicago

Manual of Style § 6.16, at 311 (16th ed. 2010) (noting that the placement of a

comma “usually denotes a slight pause”). However, contrary to the “widely

practiced usage,” the commas in the clause at issue are not used serially, id.

§ 6.18, at 312; see A Manual of Style § 8.43, at 122 (1986) (noting that commas

appear “[a]fter each member within a series of three or more words . . . used with

and, or, or nor”); Bryan A. Garner, A Dictionary of Modern Legal Usage 714 (2d

5
ed. 1995) (noting that a comma is used “[t]o separate items (including the last

from the penultimate) in a list of more than two”), from which we might more

readily infer the intent to create three separate and discrete conceptual categories.

And reading the clause to define such a category for “substantial education” is

certainly not the only grammatical way to read the language. See, e.g., Palmer v.

Martinez, 42 So.3d 1147, 1153 (La. Ct. App. 2010) (“reject[ing] [a] strained

interpretation regarding the use of the comma as unreasonable and absurd” that

would have read the word “written” in the phrase “written contract, agreement, or

permit” as only extending to the word “contract” (internal quotation marks

omitted)); cf. Flores-Figueroa, 556 U.S. 646, 652 (2009) (“The manner in which

the courts ordinarily interpret criminal statutes is fully consistent with this

ordinary English usage.”).

The context here counsels an interpretation of the modifying scope of the

term “substantial” that reaches all three terms in the series because that will avoid

rendering (contrary to the drafters’ clear intent) the second part of the special-

skill test nigh surplusage and serve to define a subset of truly “special” skills that

are worthy of an enhanced punishment. See 3 Singer, et al., supra, § 59:8

(“Although it is legitimate to consider the rules of sentence structure and

grammar in interpreting statutes, the court’s ultimate task is to interpret the

statute in accordance with the intent of the legislature.”); cf. Cabell v. Markham,

148 F.2d 737, 739 (2d Cir. 1945) (Hand, J.) (“Of course it is true that the words

6
used, even in their literal sense, are the primary, and ordinarily the most reliable,

source of interpreting the meaning of any writing: be it a statute, a contract, or

anything else. But it is one of the surest indexes of a mature and developed

jurisprudence not to make a fortress out of the dictionary; but to remember that

statutes always have some purpose or object to accomplish, whose sympathetic

and imaginative discovery is the surest guide to their meaning.”); cf. also United

States v. Hernandez, 655 F.3d 1193, 1197 (10th Cir. 2011) (“Selectively

enforcing a statute’s plain terms is not something courts generally do, and

something we cannot do in this case.”).

Second, the term “usually” should be read to describe how one obtains the

skill at issue. “Usually” means “more often than not.” Webster’s Third New

International Dictionary 2524 (1981). Thus, the commentary should be

interpreted to mean that, more often than not, one will need to undergo substantial

education, training, or licensing to obtain the special skill. However, it is clear

from our precedent that the term “usually” leaves room for the enhancement to

apply in situations where the “defendant’s special skill [was] derived from

experience or from self-teaching.” United States v. Gandy, 36 F.3d 912, 914

(10th Cir. 1994); see United States v. Burt, 134 F.3d 997, 999 (10th Cir. 1998)

(“Although formalized education, training, or licensing is usually necessary to

trigger the enhancement, we have held that special skills can be derived from

experience or from self-teaching.” (emphasis added)).

7
 Following these legal principles, in a manner consistent with the reasoning

of the Panel’s opinion, I would uphold the district court’s application of the

special-skill enhancement in this case. Truck drivers do not categorically possess

a special skill; some truck-driving skills will satisfy both parts of the test, while

others will not. 2 Here, the district court’s task was to determine whether Mr.

Berry’s truck-driving skills were sufficient to be deemed special. Because this is

a question of fact, we review its decision under the highly deferential clear-error

standard. See United States v. Merriman, 647 F.3d 1002, 1005 (10th Cir. 2011)

(“Whether a defendant occupied a position of trust under Section 3B1.3 is

generally a factual matter that we review only for clear error.”); see also United

States v. Osborne, 593 F.3d 1149, 1153–54 (10th Cir. 2010) (distinguishing

between legal conclusions and factual determinations in reviewing the district

court’s upward departure under the Guidelines).

The district court did not clearly err in making its § 3B1.3 determination.

The first requirement is certainly met: the ability to drive a commercial truck is

2
For example, it is unlikely that a defendant who is driving a
commercial truck for the first time when apprehended committing the offense and
who possesses no truck-driving training or licensing would be deemed to possess
a special skill within the meaning of § 3B1.3. Such a defendant would certainly
possess a skill not possessed by members of the general public—the ability to
drive a commercial truck—but he or she would be unlikely to possess the skill at
such a high level that it usually would need to be obtained through substantial
education, training, or licensing. Accordingly, this hypothetical defendant would
not satisfy the second part of the two-part test.

8
not a skill possessed by the general public. See United States v. Lewis, 41 F.3d

1209, 1214 (7th Cir. 1994) (“Truck driving requires technical knowledge or

ability that the average citizen does not possess.”); see also United States v.

Mendoza, 78 F.3d 460, 465 (9th Cir. 1996) (“[T]he driving of an 18-wheeler

without any reported mishap over several years is a skill well beyond that

possessed by the general public.”). As to the second requirement, there was

minimally sufficient evidence that Mr. Berry’s truck-driving skills were of such a

high level as to usually require substantial education, training, or licensing. Mr.

Berry obtained a commercial driver’s licence after one year of truck-driving

school and on-the-job training, and he had approximately five and one-half years

of truck-driving experience at the time of his arrest. A district court would not

clearly err in finding that this level of training and experience indicated that Mr.

Berry possessed the kind of skill that usually would require substantial education,

training, or licensing to acquire. In other words, it would not clearly err in

finding that Mr. Berry’s skill qualified under the second part of the

enhancement’s test.

To be sure, it is beyond peradventure that the level of skill possessed by

Mr. Berry is a far cry from that required to occupy the positions that the

Guideline’s commentary categorically qualifies for the enhancement—that is,

“pilots, lawyers, doctors, accountants, chemists, and demolition experts.”

U.S.S.G. § 3B1.3 cmt. n.4. However, as the Panel’s opinion clearly

9
acknowledges, the drafters of § 3B1.3’s commentary did not contemplate that

they were providing a comprehensive or exhaustive list of occupations that would

qualify for the special-skill enhancement. It also logically follows that they did

not envision that district courts—when operating outside this rarefied, categorical

zone—would be obliged to refrain from applying the enhancement unless they

found defendants who possessed a matrix of education, training, and licensing

that precisely correlated with the commentary’s list of occupations. Such

exactitude or symmetry is not required. In short, I cannot say that the district

court clearly erred in concluding that Mr. Berry’s truck-driving skills qualified

him for the special-skill enhancement.

Because I read the Panel’s opinion as being entirely consistent with the

foregoing analysis, I fully concur in its ruling regarding the special-skill

enhancement, as well as its ultimate determination to affirm the judgment of the

district court.

10