227 F.3d 792 (7th Cir. 2000)
United States of America, Plaintiff-Appellee,v.Robert Bailey, Defendant-Appellant.
No. 99-2933
In the  United States Court of Appeals  For the Seventh Circuit
Argued June 8, 2000Decided September 12, 2000

Appeal from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 98 CR 790--Milton I. Shadur, Judge.[Copyrighted Material Omitted][Copyrighted Material Omitted]
Before Easterbrook, Kanne and Williams, Circuit  Judges.
Kanne, Circuit Judge.


1
Robert Bailey, a cadet  with the Village of Maywood (Ill.) Park District  Police Department, joined other police officers  in an attempted robbery of a drug-dealer. The  "drug-dealer" proved to be part of an FBI sting  operation, and Bailey had succeeded only in  attempting to rob an undercover FBI agent. Bailey  was convicted of attempted robbery. He appeals  his conviction, claiming that the government  failed to prove the prerequisite jurisdictional  nexus to interstate commerce and that the  district court erred by instructing the jury on  a "depletion of assets" theory for the interstate  commerce nexus that was unsupported by the  evidence. Bailey also claims that the district  court made two errors at sentencing, wrongly  enhancing his sentence for possession of a  firearm and abuse of a position of trust. Finding  no errors, we affirm.

I.  History

2
Bailey joined the Maywood Park District Police  Department in March 1995, as a cadet, a volunteer  training position. Cadets are not sworn police  officers, but they wear police uniforms and  patrol paired with police officers. Bailey was  assigned to patrol areas in and around various  city parks, and he worked on occasion with  Lieutenant Charles Jones and Officer Michael  Broome. Bailey, Jones and Broome had previously  conducted shakedowns of drug dealers, and in late  1995, the government confronted Broome with  evidence of his involvement in these activities  and convinced him to cooperate with the FBI. On  January 16, 1996, Broome met with Jones and  Bailey to plan another robbery, which in reality  would be a sting operation conducted by the FBI.  Broome wore a listening device to the January 16  meeting and recorded the events that transpired.


3
Broome told Jones and Bailey that he had an  informant who owed him a favor because Broome did  not charge him when Broome caught him with  cocaine. This unnamed informant did not exist,  but Broome produced pictures of two men to  substantiate his story. Broome claimed that the  informant would identify a larger drug source,  from whom they could steal money and/or drugs.  Broome told Bailey and Jones that his informant  paid his supplier about $1,200 per ounce of  cocaine. The officers decided that they would ask  the informant to call his supplier to buy an  ounce of cocaine, then rob the cocaine dealer of  the drug purchase money. When asked if he was  interested, Bailey responded, "Deal me in."  Later, Bailey also told Broome that he knew  sources to sell as much cocaine as they found on  the supplier, if they robbed the supplier of  drugs as well as money.


4
Broome told Bailey on January 25 that the plan  they had discussed was to take place that  afternoon. He asked Bailey to call Jones and to  arrange to meet near Bosco Park in Maywood so  that they could drive together to the deal  location. He also informed Bailey that the  cocaine supplier was a Mexican male. Bailey and  Broome informed Jones of the rendezvous, and  later Bailey met Broome, who was now wearing a  listening device, at the predetermined location  and drove to Bosco Park in Broome's patrol car.  Jones failed to appear at the rendezvous, so  Bailey and Broome proceeded without him.


5
The FBI set up surveillance in the park, and  FBI Special Agent Miguel Del Toro (playing the  role of the drug dealer) waited in a red car.  Broome and Bailey arrived first and pulled up  behind the red car (purportedly identified by  Broome's informant), followed shortly by Jones,  who drove a Maywood Park Animal Control Division  van. Broome and Bailey left their patrol car and  approached either side of Del Toro's car. Bailey  went to the passenger side, and as he approached,  Del Toro noticed that Bailey's hand rested on a  black-handled, nickel-plated firearm, which he  carried on his right hip. Broome ordered Del Toro  out of the car, and Bailey searched the car and  Del Toro's jacket and wallet and found about  $1,200 in cash. Jones never left the van but  ordered Broome and Bailey to strip Del Toro and  search him and his car for drugs and more cash.  The search revealed no drugs. During the search,  Del Toro insisted that he was a dry-waller, not  a drug dealer. After the search, the officers met  up to split the money. While counting the money,  Broome recounted Del Toro's insistence that he  installed dry-wall, to which Bailey responded,  "Oh yeah, a fucking dry-waller."


6
Two weeks later, FBI officials confronted Bailey  with pictures and other evidence of the robbery.  Bailey admitted his involvement and described the  event in great detail. However, he refused to  admit that he possessed a firearm during the  deal. Bailey was indicted on one count of robbery  under the Hobbs Act, 18 U.S.C. sec. 1951, and on  one count of use or possession of a firearm  during and in relation to a robbery, under 18  U.S.C. sec. 924(c). Jones also was charged with  these crimes, but he agreed to plead guilty to  each and to testify against Bailey. Bailey chose  a jury trial.


7
At trial, the government sought to prove  jurisdiction under the Hobbs Act by presenting  two types of evidence relating to criminal  conduct affecting interstate commerce. First, the  government presented the testimony of DEA Special  Agent Nancy Lane, who testified that the coca  plant, from which cocaine is derived, is not  grown in Illinois and that cocaine is  manufactured in South America. Second, the  government introduced evidence that all fuel  purchases for the Maywood police department were  made through a centralized billing location in  Oklahoma, thus implicating interstate commerce.  The government also presented tape-recorded  evidence of the January 16 meeting, photographs,  tape and video recorded evidence of the January  25 shakedown, testimony from Broome, Jones and  Del Toro, and evidence of Bailey's confession.  Both Broome and Del Toro testified that Bailey  possessed a firearm on his right rear hip during  the shakedown, but the two disagreed about its  color. Another government witness testified that  Bailey owned a firearm but did not possess it on  the day of the robbery. Bailey called only one  witness, FBI Special Agent Gary Sebo, who took  Bailey's confession. Bailey's counsel examined  Sebo about Bailey's refusal to admit, at any  point during the confession, to his possession of  a gun during the robbery.


8
At the close of the introduction of evidence,  the district court held a jury instruction  conference. Bailey objected to the government's  proposed jury instruction on depletion of assets.  He also tendered an alternative depletion of  assets instruction. The district court overruled  Bailey's objection and gave the government's  proposed instruction.


9
The jury returned a guilty verdict on the Hobbs  Act charge, but acquitted Bailey on the  possession of a firearm charge. At sentencing,  the government argued that Bailey's sentence  merited a five-level enhancement under United  States Sentencing Guidelines sec. 2B3.1(b)(2)(C)  for possession of a firearm in connection with  his offense, a two-level enhancement for abuse of  a position of trust, pursuant to U.S.S.G. sec.  3B1.3 and an enhancement for physical restraint  of Del Toro. Bailey contested each of these  enhancements and also sought a two-level decrease  for accepting responsibility. Judge Shadur  conducted a hearing and granted the enhancements  sought by the government and granted Bailey the  two-level decrease he requested. The district  judge computed Bailey's total offense level to be  twenty-seven with a criminal history category I,  requiring a sentence of seventy to eighty-seven  months. Bailey was sentenced to seventy months  imprisonment, followed by three years supervised  release.

II.  Analysis

10
Bailey appeals four issues arising from his  trial and sentencing. First, Bailey contends that  the government failed to prove the jurisdictional  prerequisites required to prosecute him under the  Hobbs Act. Second, Bailey argues that the  district court erred by giving a jury instruction  on the "depletion of assets" theory because that  theory was unsupported by the evidence. Third,  Bailey argues that the district court committed  clear error by finding that he possessed a gun  during the course of his criminal conduct, which  led the district court to enhance his sentence  for use of a firearm. Fourth, Bailey finds error  in the district court's determination that he  occupied a position of trust and as such, was  eligible for that sentencing enhancement.

A.  Interstate Commerce

11
Bailey contends that his conviction must be  reversed because the government failed to  establish that Bailey's conduct affected  interstate commerce. A connection with interstate  commerce is a jurisdictional requirement of 18  U.S.C. sec. 1951, see United States v. Shields,  999 F.2d 1090, 1097-98 (7th Cir. 1993), and if  the government failed to present sufficient  evidence of such a connection, Bailey's  conviction must be overturned. Nonetheless, we  grant great deference to jury verdicts and will  overturn a verdict for insufficient evidence  "only when the record contains no evidence,  regardless of how it is weighed, from which the  jury could find guilt beyond a reasonable doubt."  United States v. Morrison, 207 F.3d 962, 966 (7th  Cir. 2000) (internal quotation omitted).


12
The Hobbs Act prohibits any robbery or  extortion or attempt or conspiracy to rob or  extort that "in any way or degree obstructs,  delays or affects commerce or the movement of any  article or commodity in commerce." 18 U.S.C. sec.  1951(a). The Supreme Court has interpreted  jurisdiction under sec. 1851(a) to be coextensive  with the Commerce Clause, see Stirone v. United  States, 361 U.S. 212, 215 (1960), so the  government may prove the jurisdiction of its case  by showing a de minimis or otherwise slight  effect on interstate commerce. See Shields, 999  F.2d at 1098.


13
Because the Hobbs Act criminalizes attempts as  well as completed crimes, the government need not  even prove that interstate commerce was affected,  only that there exists a "realistic probability"  of an effect on commerce. See United States v.  Anderson, 809 F.2d 1281, 1286 (7th Cir. 1987). To  prove an attempt, the government must have shown  only that Bailey acted with specific intent to  commit the underlying offense, that is, that he  intended to perform a robbery, and took a  substantial step toward its completion. See  United States v. Dennis, 115 F.3d 524, 534 (7th  Cir. 1997). Because factual impossibility is not  a defense to an attempt crime, see United States  v. Weaver, 8 F.3d 1240, 1243 (7th Cir. 1993), we  have found an effect on interstate commerce when  the FBI provides the money extorted or stolen.  See United States v. Thomas, 159 F.3d 296, 297-98  (7th Cir. 1998); Shields, 999 F.2d at 1097-98;  United States v. Hocking, 860 F.2d 769, 777 (7th  Cir. 1988).


14
A commonly employed method of showing effect on  interstate commerce is the "depletion of assets"  theory. Under this theory, the government shows  that "commerce is affected when an enterprise,  which either is actively engaged in interstate  commerce or customarily purchases items in  interstate commerce, has its assets depleted  through extortion, thereby curtailing the  victim's potential as a purchaser of such goods."  United States v. Elders, 569 F.2d 1020, 1025 (7th  Cir. 1978); see also United States v. Stillo, 57  F.3d 553, 558 (7th Cir. 1995); Shields, 999 F.2d  at 1098. In Thomas, 159 F.3d at 297-98, we  addressed the question of whether robbery of  money that the defendants believed would have  been used to purchase cocaine constitutes a  depletion of assets satisfying the jurisdictional  requirements of the Hobbs Act. Because the  government offered proof that cocaine was only  available through interstate commerce, i.e., the  cocaine originated in South America, we  determined that a robbery of the drug money  "thwarted what would have been a sale in commerce  within the meaning of the Hobbs Act." Id. at 298.  We also noted that the de minimis value of drug  money stolen was irrelevant to the determination  that the sale affected interstate commerce, since  the relevant question is whether the entire class  of cocaine sales depended on interstate commerce.  See id.


15
For the government to present sufficient  evidence of effect on interstate commerce under  a depletion of assets theory, it must present  evidence that (a) at the time that he attempted  to rob Del Toro, Bailey intended to rob his  victim of either cocaine or money that he  believed was used to purchase cocaine, and (b)  robbery of cocaine dealers generally has an  effect on interstate commerce. The government  presented evidence, in the form of tape-recorded  conversations between Bailey and his co-  conspirators and the testimony of his co-  conspirator Broome, that the officers planned the  robbery beforehand, specifically targeting a drug  supplier whom they expected to be in possession  of either cash from the sale of an ounce of  cocaine or an ounce of cocaine. The government  also presented Lane's expert testimony that  cocaine is produced in South America. Therefore,  the government asserts that cocaine must enter  Illinois through interstate commerce. The result  is, the government contends, that the robbery of  cocaine dealers depleted the assets available to  purchase cocaine through interstate commerce,  thereby creating the requisite effect on  interstate commerce.


16
Bailey contends that the government's evidence  was insufficient because the effect on interstate  commerce was "purely imaginary." He argues that  there was never a possibility of affecting  interstate commerce because no cocaine was  present, Del Toro did not intend to make a sale  or purchase affecting interstate commerce and the  money that Bailey took from Del Toro was FBI  money that would never be used in interstate  commerce. Bailey attempts to distinguish this  case from cases such as Thomas and Shields, in  which we held that attempts to rob FBI agents of  drug money met the jurisdictional requirements of  the Hobbs Act. See Thomas, 159 F.3d at 297;  Shields, 999 F.2d at 1097-98. In those cases the  FBI agents were planning actual transactions that  would have affected interstate commerce, rather  than fake transactions as here. That difference  is immaterial.


17
In Thomas, there was no cocaine present when  the FBI informant was robbed and, despite  Bailey's contention to the contrary, no actual  transaction involving interstate commerce took  place. Nonetheless, we found a nexus to  interstate commerce on the grounds that the  potential transaction, a sale of cocaine, was of  the class that in the aggregate has an effect on  interstate commerce. See Thomas, 159 F.3d at 298.  In addition, we noted in Shields that one could  be convicted of attempt under the Hobbs Act "even  though no money has changed hands." Shields, 999  F.2d at 1098. Bailey's conviction for attempt was  premised on the evidence showing that he had  formed a specific intent to rob a cocaine dealer,  the evidence showing that he took a significant  step toward robbing a cocaine dealer by taking  money from someone who was identified to him as  a drug dealer and the evidence showing that the  robbery of cocaine dealers has an effect on  interstate commerce. The fact that Bailey was  unable to complete the underlying acts to which  he had developed a specific intent is irrelevant  to his attempt, and the fact that the connection  to interstate commerce under these facts arises  primarily from his specific intent is equally  irrelevant. For this reason, we find that the  government presented sufficient evidence to prove  an effect on interstate commerce. Because the  government's presentation of evidence on the  depletion of assets of cocaine dealers satisfies  its jurisdictional burden, we need not address  whether the use of gasoline in the Maywood police  vehicle affects interstate commerce.

B.  Jury Instructions

18
Bailey also argues that the district court  erred in giving the jury a "depletion of assets"  instruction, which he claims lacked sufficient  basis in the evidence. We review de novo a  district court's decision to give or not to give  a jury instruction. See United States v. Brack,  188 F.3d 748, 761 (7th Cir. 1999). However, we  grant great deference to the district court's  choice of language in jury instructions,  upholding instructions that are "accurate  statements of the law and which are supported by  the record." United States v. Vang, 128 F.3d  1065, 1069 (7th Cir. 1997) (internal quotation  omitted).


19
At the instruction conference, Bailey objected  to the government's instruction for jurisdiction  based on interstate commerce on the grounds that  after United States v. Lopez, 514 U.S. 549  (1995), the "depletion of assets" instruction no  longer accurately reflected the law. Bailey did  not argue that the government failed to produce  evidence of depletion of assets, and he presented  an alternative instruction that also applied the  depletion of assets basis for jurisdiction. On  this basis, the government argues that Bailey has  waived this claim, precluding us from reviewing  it on appeal. See United States v. Staples, 202  F.3d 992, 995 (7th Cir. 2000).


20
Waiver is the intentional relinquishment of a  known right. See id. In the context of a jury  instruction, a party must state both the matter  objected to and the grounds objected on to  preserve the objection for appellate review. See  Cefalu v. Village of Elk Grove, 211 F.3d 416, 426  (7th Cir. 2000); Fed. R. Crim. P. 30. At the  instruction conference, Bailey stated his  objection to the interstate commerce instruction,  but he based his argument on the legal accuracy  of the instruction, not on the lack of factual  support for it in the record. However, his  failure to object on the grounds he now raises  does not equate with an "intentional  relinquishment," and we have previously found in  cases where defendants objected on unstated  grounds that these objections constituted a  forfeiture, rather than a waiver. See United  States v. Griffin, 84 F.3d 912, 924-25 (7th Cir.  1996); United States v. Ross, 77 F.3d 1525, 1538-  42 (7th Cir. 1996).


21
For this reason and because Bailey proffered an  alternative jury instruction rather than merely  objecting to the government's instruction, we  refuse to find a waiver in this case. However,  Bailey has forfeited his claim by failing to  raise it at the proper time, so we review only  for plain error. Under this standard, we will  reverse only if we find "particularly egregious  errors" or if we must prevent "a miscarriage of  justice." United States v. Franklin, 197 F.3d  266, 270 (7th Cir. 1999).


22
We find no error in allowing the interstate  commerce instruction based on the evidence  presented at trial. The government produced  evidence in support of its depletion of assets  theory. The reasonable inference of Lane's  testimony was that cocaine only arrives in  Illinois as a result of interstate commerce. This  testimony, along with the tape recordings of  Bailey and the other officers, suggests that the  money Bailey attempted to steal from Del Toro was  money he believed was used to purchase goods  received in interstate commerce. The theft of  such money would have depleted available assets  for interstate commerce. This evidence is enough  to support the depletion of assets instruction.

C.  Use of a Firearm

23
The district court enhanced Bailey's sentence  five levels based on the finding that Bailey was  in possession of a firearm during the commission  of his robbery. We review for clear error the  sentencing court's findings of fact. See United  States v. Watson, 189 F.3d 496, 501 (7th Cir.  1999). A sentencing court commits clear error  when "we are left with a definite and firm  conviction that a mistake has been made," United  States v. Strache, 202 F.3d 980, 984-85 (7th Cir.  2000) (citation omitted). Where two permissible  interpretations of the evidence are possible, a  factfinder's choice of one is not clearly  erroneous. See United States v. McGill, 32 F.3d  1138, 1143 (7th Cir. 1994).


24
United States Sentencing Guidelines sec.  2B3.1(b)(2)(C) requires courts to increase a  defendant's total offense level by five levels  when a firearm was "brandished, displayed, or  possessed" during the commission of a robbery.  U.S.S.G. sec. 2B3.1(b)(2)(C). Guidelines sec.  1B1.3(a)(1) also provides that sentencing courts  should take into account "all reasonably  foreseeable acts and omissions of others in  furtherance of a jointly undertaken criminal  activity," U.S.S.G. sec. 1B1.3(a)(1)(B), which  includes the possession of firearms by co-  conspirators during the commission of a robbery.  See United States v. Dorsey, 209 F.3d 965, 967-68  (7th Cir. 2000). Bailey does not contest the  applicability of these guidelines to his conduct,  but argues that the district court committed  clear error in finding that he possessed a  firearm and that he could have reasonably  foreseen that Jones would be in possession of a  firearm.


25
A sentencing court may consider whatever  information it possesses, as long as this  evidence "includes sufficient indicia of  reliability to support its probable accuracy."  Morrison, 207 F.3d at 967. Because the government  only must prove relevant conduct by a  preponderance of the evidence at sentencing,  sentencing courts may include as relevant conduct  acts for which the defendants have been  acquitted. See United States v. Kroledge, 201  F.3d 900, 908 (7th Cir. 2000). In making its  determination that Bailey possessed a firearm  during the robbery, Judge Shadur focused on the  testimony of Broome and Del Toro that Bailey  possessed a firearm and on photographs of Bailey  approaching Del Toro's car with his hand placed  where both Del Toro and Broome testified that  Bailey kept his firearm. The district judge based  his finding that co-defendant Jones possessed a  gun on Jones's admission in his plea agreement  that he possessed a firearm during the robbery.


26
There was no clear error in determining that  Bailey possessed a firearm when the robbery  occurred. Broome and Del Toro both testified that  Bailey possessed a firearm. Although the two  witnesses dispute the color and exact placement  of the firearm, both agreed that the gun was kept  at Bailey's right rear hip. Photographs taken of  Bailey approaching the car immediately before the  robbery show him slightly crouched with his hand  placed over the area where Broome and Del Toro  testified Bailey kept his firearm. This body  language reasonably suggests that Bailey  possessed a handgun and wanted it close at hand  if complications ensued. As Bailey argues, the  evidence also could reasonably be interpreted in  an alternative manner. The witnesses' testimony  conflicts, and neither witness had an  unobstructed view of Bailey's firearm. The  photographic record never captures the firearm.  It might even be equally likely that Bailey would  wish to pretend to have a gun while approaching  the robbery to keep the victim in fear for his  life. However, on review our task is not to  choose between reasonable alternatives that the  sentencing court might have chosen. Our task is  to determine whether the district court made a  reasonable assessment based on the evidence  presented, see McGill, 32 F.3d at 1143, and we  believe that the evidence available for appellate  review1 could reasonably have been determined  to show by a preponderance that Bailey was in  possession of a firearm. We find no clear error  in the conclusions of the district court. Because  we find no clear error in the court's conclusion  that Bailey possessed a firearm, we will not  consider whether the court's alternative basis  for the enhancement was clear error.

D.  Abuse of Trust

27
Finally, Bailey contends that the district court  erred in enhancing his sentence pursuant to  U.S.S.G. sec. 3B1.3 for abuse of a position of  trust. He claims that, as a police cadet, he did  not occupy a position of trust. The district  court's finding that Bailey occupied a position  of public trust is a question of fact, which we  review for clear error. See United States v.  Vivit, 214 F.3d 908, 922 (7th Cir. 2000).


28
Guidelines sec. 3B1.3 directs courts to increase  a defendant's total offense level by two levels  when "the defendant abused a position of public  or private trust . . . in a manner that  significantly facilitated the commission or  concealment of the offense." U.S.S.G. sec. 3B1.3.  We employ a two-part test to determine whether  sec. 3B1.3 applies, asking (1) whether the  defendant occupied a position of trust and (2)  whether his abuse of the position of trust  significantly facilitated the commission of the  offense. See United States v. Sierra, 188 F.3d  798, 802 (7th Cir. 1999). Application note 1 to  sec. 3B1.3 clarifies that positions of public  trust are "characterized by professional and  managerial discretion," and are "subject to  significantly less supervision" than other  positions. U.S.S.G. sec. 3B1.3 application note  1. However, "[i]n determining whether the  defendant occupied a position of trust [a  defendant's] diminutive title or lack of sweeping  power is unimportant." Sierra, 188 F.3d at 802.  Instead, we focus on whether a person had  governmental power or access to or authority over  other things of value. See id.; United States v.  Stewart, 33 F.3d 764, 768 (7th Cir. 1994).  Because of the nature of their position, the  well-settled law of this circuit holds that  police officers occupy a position of trust. See  Sierra, 188 F.3d at 802; United States v. Parker,  25 F.3d 442, 450 (7th Cir. 1994). In addition,  application note 2 to sec. 3B1.3 informs courts  that the enhancement will also apply when "the  defendant provides sufficient indicia to the  victim that the defendant legitimately holds a  position of private or public trust," even if the  defendant does not actually hold such a position.  See U.S.S.G. sec. 3B1.3 application note 2.2


29
The district court found that Bailey "was  someone who was armed with apparent authority of  the type that would facilitate the kind of  offense that's involved here, even though he was  not a sworn officer." The court held that Bailey  took advantage of this position, and on this  basis, the court enhanced his sentence under sec.  3B1.3. Bailey does not contest that if we uphold  the district court's determination that he  occupied a position of trust, his abuse of this  position significantly facilitated the commission  of his offense. Instead, Bailey focuses on  whether he occupied a position of trust, claiming  that, as a cadet, he was under close supervision  and lacked the actual authority necessary to  occupy a position of public trust.


30
As a cadet, Bailey was supervised closely and  had little actual authority. However, title and  lack of authority are not dispositive if the  defendant provides "sufficient indicia of  authority" to convince the victim that he  possesses authority. See U.S.S.G. sec. 3B1.3  application note 2. Police officers occupy  positions of public trust, and individuals who  have apparent authority of police officers when  facilitating the commission of an offense abuse  the trust that victims place in law enforcement.  To the general public, police cadets are not  distinguishable from police officers. In  performing the shakedown, Bailey arrived in a  police cruiser with another police officer, wore  an official police uniform, acted as if he were  a police officer and never informed Del Toro, the  purported victim, that he was not a police  officer. From Del Toro's perspective, there was  no reason to suspect that Bailey did not occupy  the position of trust that he appeared to occupy.


31
Bailey argues that Del Toro knew ahead of time  that Bailey was only a cadet, and therefore, from  the perspective of the victim, the government  cannot show that Bailey occupied a position of  public trust. However, application note 2 to sec.  3B1.3 clarifies that the guideline requires only  that a defendant provide sufficient indicia to  the victim demonstrating that the defendant  occupies a position of public trust, not that the  victim must believe or accept these indicia. See  U.S.S.G. sec. 3B1.3 application note 2. Bailey  portrayed himself as a police officer in an  attempt to force Del Toro to pay him off, and by  so doing, Bailey took advantage of this apparent  authority to engage in criminal activity. On this  basis, we find no error in the district court's  conclusion that Bailey's behavior constituted "a  classic instance of abuse of trust."

III.  Conclusion

32
For all the foregoing reasons, we Affirm the  decisions of the district court.



Notes:


1
 Bailey referenced the government's exhibit  photograph eight on numerous occasions in his  briefing as evidence that Bailey actually kept  handcuffs, not a firearm, on his right rear hip  during the robbery. Unfortunately, this  photograph was not included within the appellate  record, so we cannot review it. See, e.g.,  Aliwoli v. Gilmore, 127 F.3d 632, 633 (7th Cir.  1997).


2
 Bailey urges us not to consider application note  2 to sec. 3B1.3 because it was added by amendment  to the Guidelines in 1997, after Bailey had  committed the predicate conduct to his offense.  Generally, to avoid Ex Post Facto Clause  violations, we apply the sentencing guidelines in  effect at the time of commission of the offense.  See Vivit, 214 F.3d at 917. However, we consider  an amendment made to the commentary to a  guideline if the amendment is made to clarify,  rather than substantively change the Guidelines.  See U.S.S.G. sec. 1B1.11(b)(2); United States v.  Downs, 123 F.3d 637, 643 (7th Cir. 1997). An  amendment to the commentary of a Guideline serves  a clarifying purpose if the amendment leaves the  text of the guideline untouched and reasonably  interprets the existing language of the  Guidelines. Id. Amendment 580 to the Sentencing  Guidelines, which adopts sec. 3B1.3 application  note 2, does not alter the text of sec. 3B1.3.  See U.S.S.G. Appendix C, amendment 580. Moreover,  prior to the promulgation of application note 2,  this Circuit viewed the question whether a  defendant occupied a position of trust from the  viewpoint of the victim, see United States v.  Hathcoat, 30 F.3d 913, 919 (7th Cir. 1994), and  interpreted sec. 3B1.3 to include the impostor as  well as the person who legitimately abuses a  position of trust. As such, amendment 580 did not  create new substantive law. This amendment to  sec. 3B1.3 merely clarified our existing  interpretation of sec. 3B1.3, and for this  reason, we do not violate the Ex Post Facto  Clause by including application note 2 in our  analysis of Bailey's conduct.


