INTRODUCTION :: In a national issue of first impression for the circuit courts, the Eleventh Circuit, in United States v. Louis, held that a federally licensed firearm dealer who knowingly sells a firearm to a convicted felon should not receive additional punishment for abusing a position of public or private trust under the Federal Sentencing Guidelines (Guidelines). Under Louis, a licensed firearm dealer does not occupy a position of trust as defined in Guidelines § 3B1.3. The court relied upon the limited discretion the victim-the federal government, as a representative of the people-gave to the dealer to sell firearms. Citing the government’s extensive oversight and documentation of firearm dealers, the Eleventh Circuit reasoned that highly regulated firearm dealers lack discretion on how to exercise many aspects of their businesses. Therefore, the firearm dealer lacks a position of trust.
The issue is narrow in scope. Because the Guidelines provide a specific base offense level for anyone who sells a firearm to a convicted felon, a licensed dealer and a black market dealer would receive the same recommended sentence if not for the imposition of the abuse of trust enhancement under Guidelines § 3B1.3. Although the result of both crimes is a convicted felon unlawfully possessing a firearm, licensed dealers enjoy legal access and authority to import, manufacture, and deal in firearms, while unlicensed dealers lack such authority. Thus, due to the legal sanction and ease with which licensed dealers may access firearms, repeated licensed dealer violations present a greater threat to society. Why, then, does the Eleventh Circuit not hold a licensed firearm dealer, who enjoys the reliance of the community as a gatekeeper of illegal firearm disbursement, more accountable than an unlicensed citizen who enjoys no such reliance? Does such a dealer not violate public trust?
If this issue had been presented to the Third Circuit, the outcome would probably differ. In a factually analogous 2009 case, United States v. Starnes, the Third Circuit subjected a subcontractor performing asbestos demolition to the abuse of trust enhancement for falsifying air monitoring reports required by the federal government. Instead of following the Eleventh Circuit’s approach-which relied exclusively on the professional discretion the victim gave the defendant-Starnes used a hybrid approach. To define a position of trust, the Starnes court considered: “‘(1) whether the position allows the defendant to commit a difficult-to-detect wrong; (2) the degree of authority which the position vests in [the] defendant vis-a-vis the object of the wrongful act; and (3) whether there has been reliance on the integrity of the person occupying the position.”’ In its conclusion, the Starnes court heavily referenced the defendant’s personal authority over the jobsite that made the defendant’s crimes difficult to detect by the victim. However, Starnes omitted analysis of the strong oversight of asbestos subcontractors exercised by the federal government through the Environmental Protection Agency (EPA) and other federal agencies. Therefore, the Starnes court failed to consider the key-and exclusive-factor in determining the existence of a position of trust-the level of discretion the victim afforded the defendant.
Although the courts reached different conclusions, the facts of both cases stood very similar. Because no direct individual victim existed, the government, as a representative of the people, was the theoretical victim of both crimes. Also, both defendants (1) specialized in vocations involving dangerous products; (2) engaged in professions subject to extensive oversight by the government; (3) knowingly violated criminal regulations governing their trades; (4) enjoyed legal access to specifically regulated vocations; and (5) exercised authoritative control, as owners, over their businesses. Despite the similarities, the Eleventh and Third Circuits reached opposite conclusions.
As the above cases illustrate, courts have struggled to find a consistent approach to define “position of trust.” In each case, the defendant presents to the court specific responsibilities and duties unique to his individual circumstance. Accordingly, in deciding whether to impose the enhancement, courts must look beyond the defendant’s formal title. Thus, the courts must apply an approach to enhancement determination based on the case’s facts. Currently, most circuits apply the professional discretion approach exclusively, similar to Louis. However, the Second and Fourth Circuits join the Third Circuit and employ hybrid approaches similar to Starnes.
Although the courts remain divided on the issue, two circuit courts have recently refocused their attention on the commentary text of § 3B1.3 as amended in 1993, overruled their own precedent, and adopted the professional discretion approach to enhancement imposition. Because the remaining approaches rest on precedent established before the U.S. Sentencing Commission’s 1993 Amendment, the Second, Third, and Fourth Circuits should abandon their hybrid approaches and adopt the professional discretion approach exclusively.
This Note analyzes the prevalent judicial approaches to § 3B1.3 and explains how some courts erred by advancing the hybrid approach after the 1993 Amendment to § 3B1.3. Part II examines the role of trust in guideline sentencing. Part III discusses the policy behind the Guidelines, including the continuing application of the Guidelines despite the Supreme Court’s 2005 United States v. Booker decision. Part IV explains different approaches employed by the circuit courts to define a position of trust. Part V highlights the effect of the approach by contrasting the Third Circuit’s hybrid with the Eleventh Circuit’s professional discretion approach. Finally, Part VI analyses the history of the enhancement and endorses the recent trend towards the application of the professional discretion approach.