                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                        U.S. COURT OF APPEALS
                             No. 08-15515                 ELEVENTH CIRCUIT
                                                              JULY 1, 2009
                         Non-Argument Calendar
                                                           THOMAS K. KAHN
                       ________________________
                                                                CLERK

                D. C. Docket No. 07-00314-CR-1-CLS-PWG

UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee
                                                      Cross-Appellant,

                                   versus

LYNDA GUY,

                                                      Defendant-Appellant
                                                      Cross-Appellee.

                       ________________________

                Appeals from the United States District Court
                   for the Northern District of Alabama
                      _________________________
                               (July 1, 2009)

Before BIRCH, HULL and COX, Circuit Judges.

PER CURIAM:
      Lynda Guy appeals her 21-month sentence for wire fraud, in violation of 18

U.S.C. § 1343. The Government cross-appeals. Guy argues that the district court

erred in applying the two-level enhancement for an abuse of trust under U.S.S.G. §

3B1.3. On cross-appeal, the Government argues that the district court erred in

ordering Guy to pay an amount of restitution ($50,000) that was less than the

calculated amount of loss attributable to her ($171,497.83).

      Upon review of the parties’ briefs and the record, we find no error in the two-

level enhancement of Guy’s custodial sentence, but conclude that the district court

erred in ordering restitution in an amount less than the calculated amount of loss

attributable to Guy. Accordingly, we vacate the entire sentence and remand for

resentencing.

                                          I.

      The Sentencing Guidelines call for a two-level enhancement if the defendant

abused a position of public or private trust. U.S.S.G. § 3B1.3. The enhancement is

proper if the government establishes that “(1) the defendant held a place of private or

public trust; and (2) abused that position in a way that significantly facilitated the

commission or concealment of the offense.” United States v. Walker, 490 F.3d 1282,

1300 (11th Cir. 2007) (citation omitted). The enhancement applies only when the

victim conferred the trust on the defendant. Id. (citation omitted).



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      Commentary to the Guidelines establishes that “‘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).” U.S.S.G. § 3B1.3, comment. (n.1). A person in a position of trust

ordinarily is “subject to significantly less supervision than employees whose

responsibilities are primarily non-discretionary in nature.”           Id.    While the

enhancement would apply in the case of “a bank executive’s fraudulent loan scheme,”

it would 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.

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

extremely fact intensive. United States v. Louis, 559 F.3d 1220, 1225 (11th Cir.), cert.

denied (U.S. May 26, 2009) (No. 08-10013).             The following factors may be

considered in determining whether a defendant was in a position of trust: (1) the

extent to which the defendant’s abuses could be readily noticed; (2) the defendant’s

duties compared to those of other employees; (3) the level of specialized knowledge

required; and (4) the level of authority of the position. United States v. Milligan, 958

F.2d 345, 346 (11th Cir. 1992) (citations omitted) (upholding the enhancement when




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applied to a post office counter clerk because he was subject to only limited

supervision and had some degree of specialized knowledge).

      The district court did not err in applying the two-level abuse-of-trust

enhancement because the record demonstrates that Guy occupied a position of trust

in her position with the Sylacauga Insurance Agency (“SIA”), which was owned by

ANB Insurance Services, Inc. (“ANB”). Specifically, Guy had little oversight from

ANB, her position involved duties different from all other employees in her office, she

reported to the president of ANB, who was headquartered in another office, she was

not subject to routine audits, and she was the only licensed insurance agent in the

office. (R.3-12 at 10-11.) In light of this, and the undisputed fact that she used her

position to facilitate her commission of wire fraud, the abuse-of-trust enhancement

was properly applied.

                                          II.

      A district court has limited discretion in calculating restitution. Cani v. United

States, 331 F.3d 1210, 1214 (11th Cir. 2003). The Mandatory Victims Restitution Act

of 1996 (“MVRA”) provides that a district court “shall order restitution to each victim

in the full amount of each victim’s losses as determined by the court and without

consideration of the economic circumstances of the defendant.             18 U.S.C. §

3664(f)(1)(A). The plain language of the statute mandates restitution in the full



                                           4
amount of the victim’s losses. United States v. Jones, 289 F.3d 1260, 1265 (11th Cir.

2002).       Although the MVRA allows the district court to apportion liability for

restitution among multiple defendants, it does not include any provision allowing the

court to attribute fault for loss to a victim and reduce the amount of restitution on that

basis. 18 U.S.C. § 3664(h).

         The district court erred in ordering Guy to pay an amount of restitution less than

the calculated amount of loss. The amount of loss, $171,497.83, was undisputed, and

negligence on the part of ANB, the victim, in supervising Guy was not a valid basis

on which to reduce the restitution amount to $50,000.

         We conclude that the custodial sentence was appropriate, but that the court’s

calculation of restitution was erroneous. We vacate the entire sentence1 and remand

to the district court for resentencing consistent with this opinion.

         We commit the decisions as to whether to conduct a resentencing hearing and

as to the scope of any such hearing to the discretion of the district court. See United

States v. Rogers, 848 F.2d 166, 169 (11th Cir. 1988) (recognizing that a district court

may properly limit the scope of a resentencing hearing on remand because “it [is] in




         1
        See United States v. Siegel, 102 F.3d 477, 482 (11th Cir. 1996) (vacating entire sentence
and remanding to district court because, “it is appropriate that an entire case be remanded for
resentencing when a sentencing scheme has been disrupted because it has incorporated an illegal
sentence.” (citations omitted)).

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the interest of judicial economy for the court not to redo that which had been done

correctly at the first hearing.”)

       VACATED AND REMANDED.




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