Abusing her position as a customer marketing advisor at MBNA, America(MBNA), Defendant Sharon A. Lee (Lee) used the special skills she hadlearned on the job to steal $28,849.70 from her employer. However,because her position at MBNA was not a "position of trust" and she didnot use a "special skill" as those terms are defined in the United StatesSentencing Guidelines, this Court declines to apply the two levelenhancement under § 3B1.3 (Abuse of Position of Trust and Use ofSpecial Skill) to the guideline calculations in her case.
I. Factual Background
In April 1999, Defendant Sharon A. Lee (Lee) began work in theentry-level position of "customer marketing advisor" for MBNA, America(MBNA), Belfast, Maine. As a customer marketing advisor (CMA), Leeaddressed routine customer services inquiries, including changingaddresses, replacing lost cards, and responding to basic financialquestions. Lee was also responsible for applying payments to customeraccounts and handling transfers from customer credit card accounts tochecking accounts. Lee did not have the authority to open customeraccounts, to loan money, or to increase credit limits on accounts. MBNAhad the ability to monitor Lee's activities by her unique "user ID." MBNAemployed approximately 700-800 other persons in the same or similarpositions.
Beginning in October 2002, Lee accessed customer accounts with similarnames to her own or that of her husband, Daniel Lee. She changed thenames and addresses of the account holders; issued new credit cards;wrote checks from customers' accounts; and, made direct deposits into herpersonal checking account. In May 2003, Lee made two requests for directdeposits of funds into her personal checking account. These requeststriggered an inquiry by the MBNA Fraud Unit, which began an investigationinto Lee's activities. When confronted, Lee provided a full account ofher activities to MBNA.
A. Abuse of Position of Trust.
In its Pre-Sentence Report (PSR), the Office of Probation recommendedan upward adjustment of 2-levels pursuant to United States SentencingGuideline § 3B1.3. Section 3B1.3 states, "If the defendant abused theposition of public or private trust . . . in a manner that significantlyfacilitated the commission or concealment of the offense, increase by twolevels." U.S.S.G. § 3B1.3. Lee objects to this recommendation and theGovernment does not oppose Lee's objection.
Section 3B1.3 permits the sentencing court to increase a defendant'soffense level by two levels if the defendant (1) occupied a position oftrust vis-a-vis her employer; and (2) utilized this position of trust tofacilitate or conceal her offense. See, e.g., United States v.Chanthaseng, 274 F.3d 586, 589 (1st Cir. 2001); United States v. Reccko,151 F.3d 29, 31 (1st Cir. 1998); United States v. Gill, 99 F.3d 484, 489(1st Cir. 1996). This Court's analysis stops at the first question: Leedid not occupy a position of trust within the meaning of § 3B1.3 and,therefore, the enhancement cannot apply. Reccko, 151 F.3d at 30 (noting "[f]irst, thecourt must determine whether the defendant occupied a position of trustat all. If not, the inquiry ends and no enhancement accrues.")
According to the Federal Sentencing Guidelines, a "position of publicor private trust" is marked by professional or managerial discretion.U.S.S.G. § 3B1.3, cmt. n.1. The Guideline Commentary notes that "[t]hisadjustment does not apply in the case of an embezzlement or theft by anordinary bank teller or hotel clerk because such positions are notcharacterized by the above-described factors." U.S.S.G. § 3B1.3, App. n.1(emphasis added).
Consistent with the Guideline Commentary, the First Circuit Court ofAppeals has defined "position of trust" as a position "characterized byprofessional or managerial discretion (i.e., substantial discretionaryjudgment that is ordinarily given considerable deference"). Reccko, 151F.3d at 31. See also, United States v. O'Cornell, 252 F.3d 524, 528 (1stCir. 2001); Chanthaseng, 274 F.3d at 589; U.S.S.G. § 3B1.3. Applying thisdefinition, the First Circuit held that a bank executive would qualifyfor an upward adjustment, but a bank teller would not. O'Cornell, 252F.3d at 528; see also Reccko, 151 F.3d at 31-33 (finding that "areceptionist/switchboard operator at police headquarters, althoughentrusted with sensitive information, did not hold a position of trust,because the job afforded "no discernible discretion.'"). Employees inpositions of trust with "discernable discretion" are typified by"significantly less supervision than employees whose responsibilities areprimarily non-discretionary in nature." Reccko, 151 F.3d at 31. For theenhancement to apply, the employee's position must have "contributed insome significant way to [the facilitation of] the commission orconcealment of the offense (e.g., by making the detection of the offenseor the defendant's responsibility for the offense more difficult)." Id. Lee's position at MBNA was more analogous to a bank teller than a bankexecutive. All CMA's employed by MBNA answer to a direct supervisor,although, as the Government noted, customer transactions are notimmediately reviewed due to the volume of transactions. MBNA has othermeans of restricting the discretionary acts of customer activationspecialists, such as random monthly reviews and inquiries by the MBNAFraud Unit. Despite her ability to access customer accounts, Lee'sessential duties centered around requests from MBNA customers,specifically regarding existing accounts. Importantly, Lee had neither theopportunity nor the authority to open customer accounts, to loan money, orto increase credit limits on accounts. While it is clear Lee abused herposition of trust she was without the requisite "discernable discretion"in her position as a CMA. O'Connell, 252 F.3d at 528; Reccko, 151 F.3d at31-33. Thus, an upward adjustment in this case is not appropriate.
B. Special Skill.
The Government argues an upward adjustment under the "special skill"enhancement is similarly inappropriate. The Court agrees. A "specialskill," as envisioned by § 3B1.3, is an expertise not possessed bymembers of the general public, usually requiring substantial education,training, or licensing. Examples would include "pilots, lawyers,doctors, accountants, chemists, and demolition experts." U.S.S.G. § 3B1.3cmt. n.3; United States v. Nelson-Rodriguez, 319 F.3d 12, 58 (1st Cir.2003); United States v. Noah, 130 F.3d 490, 500 (1st Cir. 1997). Adefendant does not need to have formal education or professional statureto have a special skill within the meaning of § 3B1.3; a "special skill"can be derived from experience or self-tutelage. Nelson-Rodrigues, 319F.3d at 58; Noah, 130 F.3d at 500. See, e.g., United States v. Gandy,36 F.3d 912, 914 (10th Cir. 1994); United States v. Lavin, 27 F.3d 40, 41(2d Cir. 1994). True, it is unlikely members of the general public could navigate theMBNA computer system to accomplish the fraudulent transfers Leeperpetrated. See United States v. Montero-Montero, 2004 U.S. App. LEXIS10713 (1st Cir. 2004); United States v. Calderon, 127 F.3d 1314, 1339-40(1st Cir. 1997) (stating "captaining a vessel on the high seas is thetype of activity that requires skills not possessed by members of thegeneral public"). But the same could be said of bank tellers, and the §3B1.3 Commentary expressly excludes bank tellers from positions oftrust. It would be incongruous for the Guidelines to exclude employees inpositions similar to bank tellers from the § 3B1.3 definition of positionsof trust, only to include them under the section's special skillprovision.
Lee used neither a special skill nor special training within themeaning of the Guidelines to facilitate her criminal activities. In fact,she was one of 700-800 persons employed by MBNA in the same position, allof whom were provided the same entry-level training. An upward adjustmentbased upon a special skill would be unwarranted.
In United States v. Reccko, Judge Selyea wrote that "the guidelinessometimes define terms in ways that might strike lay persons aspeculiar." 151 F.3d at 31. This is one of those peculiar instances. Inconcluding that Lee did not abuse a position of trust or use a specialskill within the meaning of § 3B1.3, this Court does not imply anyapproval of her disloyalty to her employer or her manipulation of itscomputer system for her own gain. This Court concludes only that § 3B1.3does not contemplate a two level enhancement for her activity.