                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________                     FILED
                                                        U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                            No. 04-15500                      August 18, 2005
                        Non-Argument Calendar              THOMAS K. KAHN
                      ________________________                   CLERK

                   D.C. Docket No. 04-60029-CR-WJZ

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                  versus

KRYSTAL THOMPSON,

                                                     Defendant-Appellant.

                     __________________________

            Appeal from the United States District Court for the
                       Southern District of Florida
                      _________________________
                            (August 18, 2005)




Before TJOFLAT, BLACK and MARCUS, Circuit Judges.

PER CURIAM:
      Krystal Thompson appeals her sentence for trafficking in at least one or

more unauthorized access devices, in violation of 18 U.S.C. §§ 2, 1029(a)(2).

Thompson asserts: (1) the district court’s application of an abuse-of-trust

enhancement was error, and (2) her sentence violates United States v. Booker, 125

S. Ct. 738 (2005). We vacate and remand for resentencing.

                                  I. DISCUSSION

A.    Abuse of Trust

      Thompson asserts the district court erred by imposing an abuse-of-trust

enhancement because she had little, if any, managerial or professional discretion, a

necessary element to qualify as one with a public or private position of trust. She

contends she did not occupy a position of trust with respect to customers or credit

card companies.

      “In assessing a district court’s application of the abuse-of-trust enhancement

under U.S.S.G. § 3B1.3, we review the district court’s findings of fact for clear

error, but review de novo the district court’s determination that the facts justify an

abuse-of-trust enhancement.” United States v. Britt, 388 F.3d 1369, 1371 (11th

Cir. 2004), petition for cert. filed, No. 04-9748 (April 13, 2005). Section 3B1.3

directs district courts to increase a defendant’s sentencing level two levels “[i]f the

defendant abused a position of public or private trust, or used a special skill, in a

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manner that significantly facilitated the commission or concealment of the

offense.” U.S.S.G. § 3B1.3. The government must prove “(1) that the defendant

held a place of public or private trust; and (2) that the defendant abused that

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

the offense.” Britt, 388 F.3d at 1371 (quotation omitted). A position of trust is

“characterized by professional or managerial discretion (i.e., substantial

discretionary judgment that is ordinarily given considerable deference),” and a

person in such a position ordinarily is “subject to significantly less supervision

than employees whose responsibilities are primarily non-discretionary in nature.”

U.S.S.G. § 3B1.3, comment. (n.1).

      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.

Id. “A position of trust significantly facilitates the commission or concealment of

an offense when the person in the position of trust has an advantage in committing

the crime because of that trust and uses that advantage in order to commit the

crime.” Britt, 388 F.3d at 1371 (quotation omitted).




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      The breach-of-trust enhancement is not appropriate unless the victim of the

breach itself conferred the trust. United States v Garrison, 133 F.3d 831, 837

(11th Cir. 1998). In the fraud context, this Court has found a position of trust to

exist under two circumstances: “(1) where the defendant steals from his employer,

using his position in the company to facilitate the offense, and (2) where a

fiduciary or personal trust relationship exists with other entities, and the defendant

takes advantage of the relationship to perpetrate or conceal the offense.” Id. at

837–38 (quotation omitted). “Since the primary concern of § 3B1.3 is to penalize

defendants who take advantage of a position that provides them freedom to

commit or conceal a difficult-to-detect wrong, only such a defendant whose

position enables or significantly facilitates the offense is eligible for this

enhancement.” Id. at 838 (emphasis in original) (quotation omitted).

      “The determination of whether a defendant occupied a position of trust is

extremely fact sensitive.” Britt, 388 F.3d at 1372. We have held that

      a security guard who stole money being transported in an armored car
      he was hired to protect did not hold a position of trust with his employer
      because he had very little discretion in performing his duty as a security
      guard, and he was closely, albeit not constantly, supervised by his
      employer. The money he guarded was processed . . . upon delivery, and
      any discrepancy between the money received and delivered would
      be—and was—noticed.




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Id. (quotation omitted). A food service foreman who smuggled drugs into the

prison where he worked did not hold a position of trust “because holding

otherwise would extend [the application of § 3B1.3] to virtually every

employment situation because employers ‘trust’ their employees.” Id. (quotation

omitted).

        The district court erred by enhancing Thompson’s sentence for abuse of

trust.1 As a waitress, Thompson did not have professional or managerial

discretion, other deference, or less supervision; rather, she had little discretion in

the execution of her duties as a server. Her position is more akin to a bank teller,

hotel clerk, or security guard who steals money from his armored car. Although

Thompson’s employer and customers trusted her not to steal credit card

information, that trust alone does not create a fiduciary relationship or provide her

position as a waitress with the “freedom to commit or conceal a difficult-to-detect

wrong.” See Garrison, 133 F.3d at 838. Therefore, the district court erred by

imposing the two-level enhancement for abuse of trust.




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         Post-Booker, the district court is still required to calculate the Guidelines range accurately.
United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005) (quotation omitted).

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B.    Booker

      Thompson preserved her Booker objection by objecting on Blakely v.

Washington, 124 S. Ct. 2531 (2004), grounds to the district court’s imposition of

the abuse-of-trust enhancement. See United States v. Dowling, 403 F.3d 1242,

1246 (11th Cir. 2005). When a defendant preserves her objection, we review the

sentence de novo. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). We

will reverse the district court only if the error was harmful. Id.

      The Government concedes the district court committed Booker error, and

that error was not harmless. We agree. The district court committed constitutional

Booker error by sentencing Thompson based on facts not admitted by her or

proven beyond a reasonable doubt under a mandatory guidelines system. See

United States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir.), cert. denied, 73

U.S.L.W. 3730 (2005). This error is not harmless because the Government cannot

show beyond a reasonable doubt that the error did not contribute to the sentence,

and the record does not reveal any such evidence. See Paz, 405 F.3d at 948

(stating a constitutional error is harmless when it is clear beyond a reasonable

doubt the error did not contribute to the sentence imposed).




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                                II. CONCLUSION

       Accordingly, we vacate and remand with instructions that the district court

calculate an Guidelines advisory range that does not include the abuse of trust

enhancement. On remand, the district court is required to sentence Thompson

according to Booker, considering the Guidelines advisory range and “other

statutory concerns as well, see [18 U.S.C.] § 3553(a) (Supp. 2004).” Booker, 125

S. Ct. at 757.

      VACATED AND REMANDED.




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