                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                            No. 09-15867
                                                          AUGUST 28, 2012
                        Non-Argument Calendar
                                                             JOHN LEY
                      ________________________                CLERK

                  D. C. Docket No. 09-20416-CR-DLG



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

SHAWN M. HERNANDEZ,

                                                         Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     _________________________

                            (August 28, 2012)

Before CARNES, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
      Shawn M. Hernandez appeals his total 195-month sentence, imposed at the

low end of the guideline range, after pleading guilty to 6 counts of drug- and

firearm-related offenses without a plea agreement. On appeal, Hernandez argues

that the district court clearly erred by imposing the abuse-of-trust enhancement

under U.S.S.G. § 3B1.3, and by not adequately stating its reasons for imposing the

given sentence at the particular point in the guideline range, as required by 18

U.S.C. § 3553(c)(1).

                                          I.

      We review for clear error a district court’s factual determination that a

defendant abused a position of public trust, but we review de novo the district

court’s legal conclusion that the defendant’s conduct justified the abuse-of-trust

enhancement. United States v. Garrison, 133 F.3d 831, 837 (11th Cir. 1998). A

district court’s finding is clearly erroneous when “the entire record leaves us with

the definite and firm conviction that a mistake has been committed.” United States

v. McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003). The government must establish

by a preponderance of the evidence that Hernandez abused a position of public

trust. See United States v. Kummer, 89 F.3d 1536, 1545 (11th Cir. 1996)

(explaining that “the standard for a sentencing court on a disputed fact involved in

sentencing is a preponderance of the evidence”).


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      The Sentencing Guidelines impose a two-level enhancement where “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 that this enhancement requires the

government to establish that the defendant (1) held a place of public or private

trust, (2) abused that position in a way that significantly facilitated the commission

or concealment of the offense, and (3) was in the position of trust with respect to

the victim of the crime. United States v. Britt, 388 F.3d 1369, 1371-72 (11th Cir.

2004), vacated on other grounds, 546 U.S. 390, 126 S. Ct. 411 (2005), opinion

reinstated in part and aff’d in part, 437 F.3d 1103 (11th Cir. 2006). “The

determination of whether a defendant occupied a position of trust is extremely fact

sensitive.” Id. at 1372.

      To qualify as a position of trust, it is insufficient that the defendant occupied

a position generally trusted by society. See United States v. Hall, 349 F.3d 1320,

1324 (11th Cir. 2003) (noting that the defendant’s status as a pastor did not

necessarily create a trust relationship with the victims that justified the

abuse-of-trust enhancement). In another case, we explained that the defendant’s

      status as an attorney . . . does not necessarily mean he abused a
      position of trust. Although attorneys are expected to abide by ethical
      standards, it is simply not the case that an attorney holds a position of
      trust with respect to all people with whom he comes into contact

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      solely by virtue of his status as an attorney.

United States v. Morris, 286 F.3d 1291, 1297 (11th Cir. 2002). In Morris, we

emphasized that even where the attorney, who also purported to be a trader, had

complete control over the victims’ money and where he promised a large return

based on his abilities, there were insufficient facts to establish that a bona fide

relationship of trust existed between the defendant and the investors, as required to

impose the enhancement. Id. at 1298-99. In a different case, we specifically

rejected a district court’s application of the enhancement when it “summarily

concluded that the public ‘trusted’ [a federal firearms licensee] ‘to be the first line

of defense in preventing criminals from accessing dangerous weapons.’” United

States v. Louis, 559 F.3d 1220, 1228 (11th Cir. 2009).

      Instead, we have adopted the Guidelines’ definition of “positions of public

or private trust,” which relies on the professional discretion of the defendant.

Specifically, the Guidelines state that the term

      “[p]ublic 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.

U.S.S.G. § 3B1.3, comment. (n.1). The key inquiry under the first prong of the test

under § 3B1.3 is therefore whether the defendant had sufficient professional or

                                            4
managerial discretion. United States v. Ward, 222 F.3d 909, 911-13 (11th Cir.

2000). While employees who exercise considerable discretion may be subject to

the enhancement, “[l]ower-level, closely supervised employees who exercise little

discretion are not.” Louis, 559 F.3d at 1226-27. In Louis, we held that the federal

firearms licensee was not subject to the enhancement because the government did

not review his professional judgment, the defendant had no discretion about how to

comply with federal requirements, and firearms dealers are not afforded

professional deference because they are subject to periodic inspections by law

enforcement. Id. at 1227. In particular, we focused on the defendant’s exercise of

professional judgment, his or her discretion over specific job duties, and the

deference given to his or her decisions. Id.

      We have repeatedly overturned the imposition of a § 3B1.3 enhancement

where the defendant did not exercise discretion sufficient to establish that he or she

was in a position of trust. For example, in Ward, we held that an armored car

guard was not subject to the § 3B1.3 enhancement because he did not exercise

discretion, as he had no influence over the armored car’s pick-ups, deliveries,

cargo, route, or schedule. Ward, 222 F.3d at 912-13. Further, Ward “was closely,

albeit not constantly, supervised by his employer.” Id. at 913. We rejected the

idea that the § 3B1.3 enhancement applied to “positions with as little discretion and


                                          5
managerial authority as armored car guards” because doing so would improperly

extend the enhancement to “practically every position that facilitated the

commission or concealment of the offense.” Id. (quotation omitted). In United

States v. Long, we held that the defendant, a prison cook, did not exercise sufficient

discretion as a food service foreman to permit him to bring cocaine into the prison.

122 F.3d 1360, 1365-66 (11th Cir. 1997). We rejected the government’s

contention that the prison’s trust in Long as an employee, as evidenced by the fact

that Long could enter the premises without being searched, was sufficient to

establish a position of trust. Doing so would have expanded § 3B1.3 beyond its

scope to include nearly every employment situation, as employers generally trust

their employees. Id.

      In contrast, where an employee of the Social Security Administration

(“SSA”) decided whether to accept documentary evidence submitted with

applications for new social security cards, and where she was so loosely supervised

that she could approve fraudulent applications for four years without detection, the

employee had sufficient discretion to qualify for the abuse-of-trust enhancement.

Britt, 388 F.3d at 1372. In another case, we affirmed the district court’s imposition

of the abuse-of-trust enhancement where the defendant’s position as a deputy

registrar “significantly aided her in fraudulently registering” voters. United States


                                           6
v. Smith, 231 F.3d 800, 819-20 (11th Cir. 2000). In United States v. Brenson, we

held that a grand jury foreman convicted of improperly revealing confidential

information to the target of a grand jury investigation held a position of trust

because grand jurors

      are specially selected to perform a vital function of the judicial
      process by serving as the small representative sample of the
      community at large assigned to listen to evidence of criminal activity,
      impartially weigh this evidence and determine if there is sufficient
      evidence to support an indictment of an individual.

104 F.3d 1267, 1287 (11th Cir. 1997).

      The second requirement under § 3B1.3 is that the defendant abused the

position of trust in a way that significantly facilitated the commission or

concealment of the offense. Id. at 1371. To determine if this prong is met, “the

court should inquire as to whether or not the defendant used any special knowledge

or access provided by his position of public trust to facilitate or conceal the

offense.” Brenson, 104 F.3d at 1287. There must be a nexus between the offense

of conviction and the abuse of the position such that the defendant uses the

“particular position of trust to give him an advantage in the commission or

concealment of the offense.” United States v. Barakat, 130 F.3d 1448, 1455-56

(11th Cir. 1997). In Barakat, we reversed the § 3B1.3 enhancement because the

defendant’s status as the head of the Broward County Housing Authority did not


                                           7
give him an advantage when he committed tax evasion, as the crime of tax evasion

was neutral as to the method by which the defendant obtained the income. Id.

Again, in Long, we held that, even if the defendant had discretion as a food service

foreman, he did not abuse the specific discretion given to him in that position to

bring drugs into the prison, and that, therefore, the enhancement did not apply.

Long, 122 F.3d at 1366. Therefore, this enhancement requires that the defendant

abuse the specific discretion that qualified the position as one of trust in order to

commit the charged offense. See id.

      Indeed, where the defendant is able to commit the crimes because of the

position of trust he holds due to his occupation, the enhancement applies. United

States v. Hoffer, 129 F.3d 1196, 1204 (11th Cir. 1997). In Hoffer, we noted that

“[i]t was because Hoffer was a physician, and was entrusted as a physician with

prescription writing authority, that he was able to commit the [drug conspiracy]

crimes for which he was convicted.” Id. Similarly, we upheld the enhancement

where the defendant-police officer drove his patrol car by a park where his

codefendant was conducting drug transactions with an undercover police officer.

United States v. Terry, 60 F.3d 1541, 1545 (11th Cir. 1995). There, Terry

facilitated the commission and concealment of the crime by monitoring the police

radio and ensuring that no other officers interrupted the transaction. Id.


                                            8
      Finally, § 3B1.3 requires that the question of whether the defendant held a

position of trust enhancement be “assessed from the perspective of the victim of

the crime.” Garrison, 133 F.3d at 837. Indeed, “[a] breach-of-trust enhancement

under § 3B1.3 is not appropriate unless the victim of the breach itself conferred the

trust.” United States v. Mills, 138 F.3d 928, 941 (11th Cir.), opinion modified on

reh’g, 152 F.3d 1324 (11th Cir. 1998). In Britt, we briefly addressed the issue of

the identity of the “victim” in cases involving crimes committed by a government

employee. Britt, 388 F.3d at 1372. Citing a Sixth Circuit opinion that held that the

general public may be the “victims” of a public employee’s crimes for § 3B1.3

purposes, we noted that our prior holding in Smith, where we upheld the

enhancement for a county voter registrar, “suggest[ed] that the United States

government, or more specifically, the SSA, [was] the victim of Britt’s offense.” Id.

at 1371-72 (citation omitted). Because Britt did not raise the identifiable-victim

issue in the district court, however, we reviewed the issue for plain error and

concluded that the error was not plain or obvious where no binding precedent on

the issue existed. Id. at 1373.

      The district court erred by imposing the § 3B1.3 enhancement without

engaging in the proper legal analysis. Here, Hernandez worked as a corrections

officer at a county jail. While at work, he made contact with an inmate, who was


                                          9
also a confidential informant, to find out if he could make money transporting

narcotics; Hernandez, however, had known the inmate since childhood. Hernandez

told the inmate that he could use his uniform and the Sheriff’s Association sticker

on his vehicle to help elude detection. He also told an undercover officer that he

would use his law enforcement credentials should he be stopped by the police. In

determining that Hernandez had abused a position of trust, the district court stated

that many of the acts of the conspiracy were committed when there was a

corrections officer/inmate relationship. It also stated that Hernandez’s comments

that he would be less likely to be stopped or searched because of his uniform

demonstrated that Hernandez’s job was crucial to the conspiracy. The court did

not determine if Hernandez held a place of public or private trust, abused that

position in a way that significantly facilitated the commission or concealment of

the offense, and was in the position of trust with respect to the victim of the crime.

Although we express no opinion on the ultimate application of the enhancement

vel non, because the court failed to consider those factors, we vacate and remand

so that court can conduct the proper analysis and make any necessary findings.

                                          II.

      We review de novo the district court’s compliance with § 3553(c)(1), even if

the defendant did not object before the district court. United States v. Bonilla, 463


                                          10
F.3d 1176, 1181 (11th Cir. 2006). In doing so, we look to the entire record, with

particular focus on the sentencing transcripts and the parties’ arguments

concerning the factors established in § 3553(a), to determine if the district court’s

decision meets the requirements of § 3553(c)(1). See id.

      Where the guideline range exceeds 24 months, the district court is statutorily

required to state in open court “the reason for imposing a sentence at a particular

point within the range.” 18 U.S.C. § 3553(c)(1). Where the district court fails to

provide the required explanation, “the sentence was imposed in violation of the law

and must be vacated.” United States v. Veteto, 920 F.2d 823, 827 (11th Cir. 1991).

Where the district court has imposed a sentence without any consideration or

mention of the § 3553(a) factors, we have disapproved of the sentence. Bonilla,

463 F.3d at 1181. Section 3553(a) requires that sentences reflect the purposes

listed in 18 U.S.C. § 3553(a)(2), which include the need to reflect the seriousness

of the offense, promote respect for the law, provide just punishment for the

offense, deter criminal conduct, and protect the public from the defendant’s future

criminal conduct. 18 U.S.C. § 3553(a)(2)(A)-(C). However, § 3553(c)(1) does not

require that the sentencing court articulate its consideration of each individual

§ 3553(a) factor. Bonilla, 463 F.3d at 1182.




                                          11
      The district court sufficiently articulated its reasons for Hernandez’s

195-month sentences, as required under § 3553(c)(1). Specifically, it stated that it

had “considered the statements of all parties, the presentence report which contains

the advisory guidelines, and the statutory factors.” Further, taken as a whole, the

transcript indicates that the court had considered the parties’ arguments as they

were made, and that it considered the arguments made before it. For example, the

court considered and apparently rejected arguments about the sentencing disparity

between Hernandez and Jacox when sentencing Hernandez.

      Upon review of the record and consideration of the parties’ briefs, we vacate

Hernandez’s sentence and remand for further proceedings as to the § 3B1.3 issue.

      VACATED AND REMANDED.




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