dissenting:
In affirming the district court’s two-level upward adjustment of Foreman’s sentence, the majority enlarges the scope of section 3B1.3 far beyond anything the language of that provision can reasonably bear. I have expressed elsewhere my reservations about the restrictions which the Sentencing Guidelines place on the discretion of the sentencing judge. United States v. Brady, 895 F.2d 538, 544 (9th Cir.1990) (Reinhardt, J., concurring specially). Nevertheless, since we must apply the Guidelines, we should apply them as they are written. Because I cannot acquiesce in the strained interpretation rendered by the majority, I dissent.
I begin with the language of the applicable guideline:
§ 3B1.3. Abuse of Position of Trust or Use of Special Skill
If 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, increase by 2 levels. This adjustment may not be employed in addition to that provided for in § 3B1.1, nor may it be employed if an abuse of trust or skill is included in the base offense level or specific offense characteristic.
United States Sentencing Commission, Guidelines Manual, § 3B1.3 (Nov. 1989) (emphasis added). The majority concedes that Foreman’s offense was complete by the time she showed her badge, and that this section is applicable only if Foreman’s act of identifying herself as a police officer constituted an abuse of a position of public trust, which “significantly facilitated the ... concealment of the offense.” Id. (emphasis added).
The majority gives short shrift to Foreman’s argument that her conduct was not an “abuse” of her position as an officer. Foreman suggests that section 3B1.3 applies only when the offender abuses a “special privilege” enjoyed by virtue of her position of public trust, and I can agree with the majority that this interpretation is unsatisfactory. Still, it must be conceded that section 3B1.3 applies to offenders who abuse positions of public trust; not merely to those who occupy such positions or even to those who use such positions. To abuse is “[t]o use improperly, to misuse; to make a bad use of, to pervert, or misemploy; to take a bad advantage of.” Oxford English Dictionary 11 (Compact Ed.1971). This seems to me to require something more than merely responding to a request for identification in precisely the way in which *798police officers are expected to respond. In this case, the something more is intent: if we accept the district court’s finding that Foreman flashed her badge in a conscious attempt to deflect suspicion and conceal her offense, then we must conclude that this attempt was an abuse, rather than merely a use, of her position of public trust.1 However, I need not resolve the intent question because Foreman’s conduct, whether or not it was an “abuse” of her position, clearly did not satisfy the rest of section 3B1.3.
Section 3B1.3 does not permit or direct the sentencing judge to enhance the sentence of everyone who abuses a position of public trust. Instead, it provides for enhancement only if the defendant’s abuse “significantly facilitated the ... concealment of the offense” (emphasis added). The majority notes that facilitating a crime or concealment means making it easier, not necessarily making it successful; that is true enough, as far as it goes. However, the majority then proceeds to commit several serious errors. First, it virtually ignores the word “significantly,” which modifies “facilitated.” On its face, this term plainly requires the sentencing judge to assess the effect of the abuse, and to determine whether that effect was of sufficient magnitude: it must have furthered 'the crime or concealment “significantly.” Furthermore, the use of the past tense, i.e., “facilitated,” renders indisputable the proposition that the abuse must have actually had some effect. The abuse must have significantly facilitated (a matter of historical fact); it is not sufficient to say merely that the act in question constitutes the sort of act that, conceivably or in general, has a tendency to significantly facilitate.2
The majority notes, as I do, that “significantly” modifies “facilitated” rather than “commission or concealment.” Based upon this observation, the majority asserts that “the inquiry is not the extent to which the abuse of trust furthered the crime or concealment, but whether the abuse made the crime significantly easier to commit or conceal.” Ante, at 796 n. 2. I see no difference between these two inquiries, unless the majority believes that “furthered” connotes ultimate success in a way that “facilitated” does not.3 In any event, even tak*799ing the majority’s preferred formulation as the authoritative version of the test, there is simply no conceivable argument that it was satisfied here. In this case Foreman’s showing of her badge did not serve to make her crime easier to commit, nor did it have any practical effect upon her effort to conceal the offense. In fact, Foreman’s actions had no practical effect whatsoever. Contrary to the majority’s assertion, not even the district court found that her actions had any effect on the criminal activity involved,4 and the majority provides no argument for adopting a different view of the facts on appeal.
Since the majority makes no argument whatsoever that Foreman’s use of her police badge altered, let alone “significantly” altered, her situation in any way, the plain meaning of section 3B1.3 should foreclose any further inquiry and preclude any enhancement based upon this section. Only thus can we honor the venerable principle that if the language of a statute is clear, that language must ordinarily be given its plain meaning. Immigration and Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421, 432 n. 12, 107 S.Ct. 1207, 1213 n. 12, 94 L.Ed.2d 434 (1987); id. at 452, 107 S.Ct. at 1223 (Scalia, J., concurring in the judgment) (citing United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95-96, 5 L.Ed. 37 (1820) (Marshall, C.J.); United States v. Hartwell, 73 U.S. (6 Wall.) 385, 18 L.Ed. 830 (1868); Bate Refrigerating Go. v. Sulzberger, 157 U.S. 1, 34, 15 S.Ct. 508, 515, 39 L.Ed. 601 (1895) (Harlan, J.); Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917); Packard Motor Car Co. v. NLRB, 330 U.S. 485, 492, 67 S.Ct. 789, 793, 91 L.Ed. 1040 (1947) (Jackson, J.); United States v. Sullivan, 332 U.S. 689, 693, 68 S.Ct. 331, 334, 92 L.Ed. 297 (1948) (Black, J.); Unexcelled Chemical Corp. v. United States, 345 U.S. 59, 64, 73 S.Ct. 580, 583, 97 L.Ed. 821 (1953) (Douglas, J.)).
Disregarding this rule, the majority looks past the unambiguous language of section 3B1.3 in order to justify its rather odd “implication” that an unsuccessful effort to facilitate is the same as having “significantly facilitated,” or is somehow included within the latter phrase. Here, the majority repeats its first error, this time misconstruing the most pertinent aid to construction of the guideline: the official Commentary that was adopted along with it. See ante, at 796 n. 2. This Commentary, properly read, is devastating to my colleagues’ construction. The degree of facilitation necessary for enhancement is virtually the only aspect of the “abuse of trust” portion of section 3B1.3 that receives any attention in the Application Notes that were adopted as part of the official Commentary — which should tell us something about the importance of this requirement. According to the Commentary, “[t]he position of trust must have contributed in some substantial way to facilitating the crime and not merely have 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.” Guidelines Manual § 3B1.3, Commentary (Application Note 1) (emphasis added). This Commentary, like the guideline it amplifies, clearly calls for an inquiry into the extent to which the abuse of trust contributed — actually contributed — to the concealment of the offense. The majority settles instead for enhancement based upon an alleged bare and unsuccessful attempt to conceal, without any evaluation of efficacy. Yet an intent to use one’s position to facilitate concealment is inherent in the very concept of “abuse”; the majority’s approach gives no effect to the further requirement that the abuse have significantly facilitated or substantially contributed to the concealment. The phrase “in connection with” could be substituted for “in a manner that significantly facilitated” and the result, as the majority reads the statute, would be identical in every case.
In summary, the guideline applies only to an abuse of trust that significantly facilitated the concealment of a crime. No one could suggest that any such event occurred *800here.5 All that happened is that Foreman showed her badge in response to a request for identification from federal and local law enforcement agents whose suspicion she had aroused. Her doing so had absolutely no effect on subsequent occurrences. The investigating authorities were completely unimpressed and proceeded to question Foreman regarding the unusual bulge around her waist. The incredulous officers ignored her answer and asked to feel the bulge; when Foreman consented to this search, the narcotics were discovered and she was arrested.
Although Foreman’s conduct clearly did not facilitate anything, the majority refuses to apply the plain meaning of the statute. The result is a guideline covering something which could be called “attempted concealment,” which was not covered before, and which the majority apparently believes is not subject to the clearly expressed statutory command that the sentencing judge assess the efficacy of the conduct in question by determining whether it significantly facilitated the concealment. Honesty, uniformity, and proportionality — the justifications which the Sentencing Commission advances for the Guidelines, Guidelines Manual, Ch. 1, Pt. A (“Introduction”), n. 3 (“The Basic Approach”) — are not fostered by such an approach to the Commission’s language. Accordingly, I dissent.
.The district court reached this conclusion despite Foreman’s uncontradicted representation at the sentencing hearing that she showed her badge only because it was on top of her driver's license in her wallet — precisely where she had been trained to keep it. This was an eminently reasonable explanation for her conduct, and I strongly suspect that nearly all police officers are trained to keep their badges in a similar location. It is also likely Foreman was trained to identify herself as a police officer on all occasions involving public contact with government officials, as well as on any occasions where contact with private citizens might lead to controversy or official action. We should not lightly infer an improper motive when an officer of the law merely follows orders.
It is of course true that Foreman was not "trained to carry her badge and police identification while smuggling cocaine." Ante at 795 (emphasis added). However, my colleagues miss the point of Foreman’s argument. She contends that she was trained to carry her badge and to identify herself as a police officer as a matter of course, regardless of the specific activity in which she was engaged. Thus, she recognizes that she had a criminal motive in smuggling cocaine, but argues that she had no further criminal motive in identifying herself as a police officer. That, she contends, was a mere reflex. In any event, in doing so she complied with the instructions she had been given by her superiors.
. The majority refuses to look at the effect of Foreman’s attempted abuse of her position because the majority believes that it would be "unreasonable” for the severity of a defendant’s punishment to depend on anything but her mental state. Ante at 797. As support for this sweeping conclusion, the majority cites the Background statement to section 3B1.3. But that statement provides only that those "who abuse their positions of trust ... to facilitate significantly the ... concealment of a crime ... generally are viewed as more culpable.” Where is the prohibition on looking to effects? I would respectfully suggest that what is unreasonable is the majority’s decision to ignore the plain language of the Guidelines. After all, both the United States Code and the Guidelines are filled with instances where a defendant’s treatment depends in part on the effects of his conduct.
. Such a connotation is certainly unintended, and lacks objective support as well. To "further" is ”[t]o help forward, assist (usually things, less frequently persons); to promote, favour (an action or movement).” Oxford English Dictionary 1099 (Compact Ed.1971).
. See note 5 infra.
. The majority concludes: "the enhancement [of section 3B1.2] applies to an abuse of a position of trust that significantly facilitated the concealment of the offense, whether successful or not. The district court’s factual finding that Foreman used her position as a police officer to deflect a criminal investigation was not clearly erroneous." Ante at 797. It bears emphasizing that all the district court actually said was that Foreman "attempt[ed] to dissuade the investigating officers from proceeding further with their investigation. This attempt was not successful.” The district judge plainly thought it was sufficient to find that Foreman intended to facilitate the concealment of her crime; he did not address the efficacy of Foreman’s conduct at all. By relying on the district judge’s assessment of the case, the majority simply repeats his error.