United States v. Douglas

• Citation: 885 F.3d 124
• Decision Date: 15 March 2018
• Docket Number: No. 15-1754,15-1754
• Parties: UNITED STATES of America v. Kenneth R. DOUGLAS, Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

885 F.3d 124

UNITED STATES of America

v.Kenneth R. DOUGLAS, Appellant

No. 15-1754

United States Court of Appeals, Third Circuit.

Argued on March 23, 2016 before Merits Panel

Argued En Banc on October 18, 2017

Opinion Filed: March 15, 2018

Arnold P. Bernard, Jr. [Argued], 437 Grant Street, Suite 407, Frick Building, Pittsburgh, PA 15219, Counsel for Appellant

Michael L. Ivory [Argued], Rebecca R. Haywood, Office of United States Attorney, 700 Grant Street, Suite 4000, Pittsburgh, PA 15219, Counsel for Appellee

Before: SMITH, Chief Judge, MCKEE, AMBRO, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., VANASKIE, SHWARTZ, KRAUSE, and RESTREPO, Circuit Judges

OPINION

GREENAWAY, JR., Circuit Judge.

When Congress created the Federal Sentencing Guidelines system, its purpose was to increase uniformity by establishing consistency between the actual conduct defendants committed and the sentences courts imposed. Although the Guidelines are now advisory, the goal remains the same: to channel sentencing discretion in order to produce consistent, disciplined decisions and avoid excessive sentencing disparities. The realization of this purpose requires principled application of the Guidelines. The system works only if courts interpret the Guidelines in a manner faithful to the text the Sentencing Commission has promulgated.

In this case, we are charged with examining whether our interpretation of a particular Sentencing Guideline has comported with the Guideline’s text and advanced the system’s purpose. Under Guideline § 3B1.3, courts are to impose a two-level enhancement "[i]f the defendant abused a position of public or private trust ... in a manner that significantly facilitated the commission or concealment of the offense." The commentary to § 3B1.3 in turn defines "position of public or private trust" as one "characterized by professional or managerial discretion (i.e., substantial discretionary judgment that is ordinarily given considerable deference)." U.S.S.G. § 3B1.3 cmt. n.1. After Kenneth Douglas was convicted of conspiracy to distribute cocaine and conspiracy to engage in money laundering, the District Court in this case imposed the § 3B1.3 enhancement, reasoning that Douglas had abused the special access granted to him by virtue of his position as an airline mechanic at the San Francisco International Airport. We, however, conclude that Douglas is not subject to the enhancement. In so doing, we clarify our approach to cases involving § 3B1.3 and reiterate that the Guideline requires courts to first determine whether a defendant’s position was characterized by "professional or managerial discretion" before asking whether he abused the position to facilitate his crime. Because Douglas's position as an airline mechanic did not involve the requisite "professional or managerial discretion," the enhancement does not apply in his case. We will remand to the District Court for resentencing.

I. BACKGROUND

Sometime in 2008, Douglas approached his friend, Tywan Staples, and asked him if he had a way for Douglas to make some extra money. Douglas and Staples had first met in 1991, when they both worked at the Oakland International Airport Maintenance Base. By 2008, both men were working aircraft maintenance for United Airlines at the San Francisco International Airport. Staples worked at the airport’s maintenance base, and Douglas served as a mechanic at the terminal.

Staples knew of a potential way for Douglas to earn additional money. For years, Staples and his cousin, Robert Russell Spence, had been operating a drug distribution scheme that transported cocaine from the Bay Area to Pittsburgh. At first, Staples used the U.S. Postal Service and common carriers to ship cocaine to Spence in Pittsburgh, and Spence shipped the proceeds from the subsequent drug sales back to California. But after law enforcement intercepted two packages in 2007, the conspiracy began to transport the drugs and money using couriers on commercial airline flights in and out of Oakland International Airport.

This new system soon ran into trouble as well. In February 2008, a shipment of nineteen kilograms of cocaine was lost during a layover in Las Vegas. The following month, police seized from couriers two packages containing a total of $235,360.

With these recent setbacks fresh in his mind, Staples thought it might be wise to begin using the San Francisco airport as the base of operations. So he asked Douglas if he was able to get bags through the San Francisco airport without being searched. Douglas responded that he was. Douglas in fact had an Airport Operation Authority ("AOA") badge, which allowed him to access the terminal without going through a Transportation Security Administration ("TSA") checkpoint. To enter the terminal, Douglas swiped his badge through a card reader and placed his palm and fingers on a biometric hand pad. After the reader approved his badge and all five fingers matched up with his identity from the badge, the door to the terminal would unlock. On a random basis, the TSA would search employees entering the terminal through these secured employee entrances, but generally, Douglas was able to enter the terminal without being screened.

Staples did not have similar access to the terminal at the San Francisco airport, so he knew Douglas would be a significant addition to the conspiracy. Staples offered to pay Douglas to smuggle cocaine into the terminal. Douglas agreed to do so.

Staples and Douglas subsequently developed a straightforward arrangement. Typically, Staples would deliver between ten and thirteen kilograms of cocaine to Douglas's house in a sports bag filled with clothing. Douglas would subsequently take the bag to the airport and enter through the secured employee entrance to the terminal. Inside the terminal, Douglas would sit down next to the courier and place the bag on the ground between them. Douglas would then leave, and the courier would take the bag and continue onto an eastbound flight. Staples later testified that Douglas smuggled cocaine into the terminal this way roughly forty to fifty times. On some of those occasions, Douglas also served as the courier, taking the drugs to Pittsburgh himself. Each time Douglas got the cocaine into the airport, he was paid $5,000. He earned an additional $5,000 when he flew with the drugs to Pittsburgh.

Relying on airline records, the Government eventually identified forty-six flights departing from the San Francisco airport that were involved with the drug scheme. Douglas was a passenger on seventeen of those flights, sometimes using employee benefit tickets. In several instances, Douglas returned to San Francisco between twelve and twenty-four hours after his original departure flight, spending mere hours at the other destination. The timing of Douglas's flights also coincided with the timing of telephone calls with Staples and deposits into Douglas's bank account.

A grand jury ultimately returned an indictment against Douglas and twenty-one co-defendants. Douglas was charged with conspiracy to distribute and to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846, and conspiracy to engage in money laundering, in violation of 18 U.S.C. § 1956(h). After a bench trial, Douglas was convicted on both counts.

Prior to sentencing, the Probation Office submitted a pre-sentence investigation report ("PSR") that recommended Douglas be held responsible for 450 kilograms of cocaine, resulting in a base offense level of 38. The PSR then called for three two-level enhancements for (1) money laundering in violation of 18 U.S.C. § 1956, pursuant to U.S.S.G. § 2S1.1(b)(2)(B) ; (2) abuse of a position of public or private trust, pursuant to U.S.S.G. § 3B1.3 ; and (3) obstruction of justice, pursuant to U.S.S.G. § 3C1.1. The PSR explained that the enhancement for abuse of a position of trust applied because Douglas had taken advantage of his security clearance and employment as an airline mechanic to smuggle drugs into the airport.

Douglas objected to the calculation of the amount of drugs and the enhancements for abuse of a position of public or private trust and obstruction of justice. The District Court, however, overruled those objections at sentencing. It concluded that Douglas used his "position of trust with the airlines" and his security clearance to aid him in his role in the conspiracy. App. 411. The District Court concluded that Douglas' total offense level was 43, which is the maximum under the Guidelines and corresponds to a sentence of life imprisonment. The District Court ultimately decided to vary downward from the Guidelines recommendation and imposed a sentence of 240 months.

On appeal, a Panel of this Court affirmed Douglas's sentence with respect to the drug quantity calculation and the enhancement for abuse of a position of public or private trust, but it reversed the obstruction of justice enhancement. The full Court subsequently granted Douglas's petition for rehearing en banc solely on the issue of whether he was subject to the enhancement for abuse of a position of trust.¹

II. JURISDICTION & STANDARD OF REVIEW

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Whether a defendant occupied a position of public or private trust for purposes of U.S.S.G. § 3B1.3 is a legal question over which we exercise plenary review. United States v. DeMuro , 677 F.3d 550, 567 (3d Cir. 2012). If we determine the defendant held such a position, we review for clear error whether he abused the position. Id.

III. DISCUSSION

In relevant part, U.S.S.G. § 3B1.3 states: "If the defendant abused a position of public or private trust ... in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels." Application Note 1 to the Guideline adds that a "position of public or private trust" is "characterized by professional or managerial...