U.S.S.G. §3B1.3

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 if an

abuse of trust or skill is included in the base offense level or specific offense

characteristic. If this adjustment is based upon an abuse of a position of trust,

it may be employed in addition to an adjustment under §3B1.1 (Aggravating

Role); if this adjustment is based solely on the use of a special skill, it may not

be employed in addition to an adjustment under §3B1.1 (Aggravating Role).

Commentary

Application Notes:

1. Definition of “Public or Private Trust”.—“Public or private trust” refers to 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. For this adjustment to apply, the position of

public or private trust must have contributed in some significant way to facilitating the commission or concealment of the offense (e.g., by making the detection of the offense or the defendant’s

responsibility for the offense more difficult). This adjustment, for example, applies in the case of

an embezzlement of a client’s funds by an attorney serving as a guardian, a bank executive’s

fraudulent loan scheme, or the criminal sexual abuse of a patient by a physician under the guise

of an examination. This adjustment does not apply in the case of an embezzlement or theft by an

ordinary bank teller or hotel clerk because such positions are not characterized by the above-described factors.

2. Application of Adjustment in Certain Circumstances.—Notwithstanding Application

Note 1, or any other provision of this guideline, an adjustment under this guideline shall apply

to the following:

(A) An employee of the United States Postal Service who engages in the theft or destruction of

undelivered United States mail.

(B) A defendant who exceeds or abuses the authority of his or her position in order to obtain,

transfer, or issue unlawfully, or use without authority, any means of identification. “Means

of identification” has the meaning given that term in 18 U.S.C. § 1028(d)(7). The following are examples to which this subdivision would apply: (i) an employee of a state motor

vehicle department who exceeds or abuses the authority of his or her position by knowingly

issuing a driver’s license based on false, incomplete, or misleading information; (ii) a hospital orderly who exceeds or abuses the authority of his or her position by obtaining or misusing patient identification information from a patient chart; and (iii) a volunteer at a charitable organization who exceeds or abuses the authority of his or her position by obtaining

or misusing identification information from a donor’s file.

3. This adjustment also applies in a case in which the defendant provides sufficient indicia to the

victim that the defendant legitimately holds a position of private or public trust when, in fact,

the defendant does not. For example, the adjustment applies in the case of a defendant who

(A) perpetrates a financial fraud by leading an investor to believe the defendant is a legitimate

investment broker; or (B) perpetrates a fraud by representing falsely to a patient or employer

that the defendant is a licensed physician. In making the misrepresentation, the defendant assumes a position of trust, relative to the victim, that provides the defendant with the same opportunity to commit a difficult-to-detect crime that the defendant would have had if the position

were held legitimately.

4. “Special skill” refers to a skill not possessed by members of the general public and usually

requiring substantial education, training or licensing. Examples would include pilots, lawyers,

doctors, accountants, chemists, and demolition experts.

5. The following additional illustrations of an abuse of a position of trust pertain to theft or embezzlement from employee pension or welfare benefit plans or labor unions:

(A) If the offense involved theft or embezzlement from an employee pension or welfare benefit

plan and the defendant was a fiduciary of the benefit plan, an adjustment under this section

for abuse of a position of trust will apply. “Fiduciary of the benefit plan” is defined in

29 U.S.C. § 1002(21)(A) to mean a person who exercises any discretionary authority or control in respect to the management of such plan or exercises authority or control in respect

to management or disposition of its assets, or who renders investment advice for a fee or

other direct or indirect compensation with respect to any moneys or other property of such

plan, or has any authority or responsibility to do so, or who has any discretionary authority

or responsibility in the administration of such plan.

(B) If the offense involved theft or embezzlement from a labor union and the defendant was a

union officer or occupied a position of trust in the union (as set forth in 29 U.S.C. § 501(a)),

an adjustment under this section for an abuse of a position of trust will apply.

Background: This adjustment applies to persons who abuse their positions of trust or their special

skills to facilitate significantly the commission or concealment of a crime. The adjustment also applies

to persons who provide sufficient indicia to the victim that they legitimately hold a position of public

or private trust when, in fact, they do not. Such persons generally are viewed as more culpable.