Criminal Defense Lawyers

Abuse of Trust Position – Federal Sentencing Enhancement

When Success Becomes Your Worst Enemy: Federal Abuse of Trust Position Enhancement

You spent 15 years building a career people could trust. Now a federal prosecutor wants to add 18 months to you’re prison sentence because you did that job too well. That’s the reality of USSG §3B1.3 – the “abuse of position of trust” sentencing enhancement that punishes defendants for being good at their jobs.

If your recieved a Pre-Sentence Report (PSR) showing a 2-level enhancement recommendation, or your attorney mentioned this could add 12-24 months to your sentance, your not alone. In 2024, federal courts applied this enhancement in 8.2% of all federal sentences – and that number is rising.

The question isn’t weather you held a position of trust. The question is: what do you do about it in the next 14 days?

This article explains what “abuse of position of trust” actually means, how the November 2024 Amendment 818 changed everything, which federal circuits apply it differently, what you can negotiate before you’re PSR is even written, and your five backup plans if the legal arguement fails. Because irregardless of what you’ve been told, this enhancement isn’t automatic – and their are specific strategies that work.

What Just Happened: The 2-Level Enhancement That Just Added $78,000 to Your Prison Costs

Here’s the deal. When prosecutors recommend a §3B1.3 enhancement, they’re asking the judge to add 2 levels to you’re offense level under the Federal Sentencing Guidelines. That don’t sound like much untill you understand what it means in real time.

For a defendant at Offense Level 20, a 2-level increase moves you from Level 20 to Level 22. In Criminal History Category I, that’s the difference between 33-41 months and 41-51 months – an extra 8-10 months minimum. For someone at Offense Level 30, it’s the diffrence between 97-121 months and 121-151 months – an extra 24-30 months. Your talking about real years of your life, not just numbers on a chart.

And then their’s the money. The average cost of incarceration (lost wages, family support costs, commissary, phone calls, legal fees for appeals) runs about $6,500 per month. An 18-month enhancement equals $78,000 in direct costs to you and you’re family. That doesn’t include the career damage, the professional licenses you loose, or the fact that “abuse of position of trust” becomes part of your permenant record.

So when a prosecutor casually mentions this enhancement in plea negotiations, their not just talking about a technical adjustment. They’re talking about taking another year and a half of you’re life and destroying your professional reputation in the process.

What §3B1.3 Actually Says (And What It Doesn’t)

The actual text of USSG §3B1.3 is decievingly simple: “If the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels.”

Notice what it does NOT say. It doesn’t say “if the defendant had a professional license.” It doesn’t say “if the defendant was in a position of authority.” It don’t say “if the defendant’s job involved responsibility.” The statute requires THREE elements:

1. You held a position of trust (not just authority or responsibility)
2. You abused that position (not just held it)
3. The abuse significantly facilitated the offense (not just existed in the background)

Each of these elements has technicle legal meanings that vary by federal circuit. And that’s where defendants win – in the details prosecutors hope you don’t understand.

November 2024 Changed Everything: Amendment 818

If your reading this in 2025, you have a brand-new weapon that didn’t exist 90 days ago. On November 1, 2024, the U.S. Sentencing Commission implemented Amendment 818, which fundamentaly changed how courts apply §3B1.3.

The amendment explicitly states: “The vulnerability of a victim is not sufficient, without more, to constitute a position of trust. Similarly, the occupation or status of a defendant is not sufficient, without more, to constitute a position of trust.”

This is huge. Before Amendment 818, prosecutors would argue: “Defendant is a CPA, therefore he held a position of trust, therefore enhancement applies.” Courts would often agree based off nothing more then professional credentials. Amendment 818 kills that argument. Your CPA license, your medical degree, you’re law license – these alone can NOT justify the enhancement anymore.

You have to have actually USED the position to facilitate the offense. And prosecutors now has to prove it with specific evidence, not just point to your resume.

Even better: Amendment 818 may be retroactive. If you was sentenced before November 1, 2024, and your enhancement was based solely on your professional status (not on how you actually used it), you might qualify for a sentence reduction under 18 U.S.C. §3582(c)(2). We’ll cover this more in the backup strategies section, but bottom line—actually, let me be clear about this—if you were sentenced in 2023 or early 2024, you may have grounds for relief that didn’t exist when you was sentenced.

The 45-Day Window You Didn’t Know You Had

Most defendants think the fight starts when they recieve their PSR. Wrong. By then, your 75% of the way to losing.

Here’s what actually happens in federal practice. About 45-60 days before your sentencing date, a probation officer will contact you’re attorney to schedule a PSR interview. That interview typically happens 30-45 days before the PSR is drafted. During this period, probation is gathering information and – this is the key part – having informal conversations with the prosecutor about “anticipated enhancements.”

This is you’re window. Before anything gets written into the official PSR, you can negotiate with the prosecutor to agree not to seek the §3B1.3 enhancement. Once its in the PSR, the prosecutor has institutional pressure to defend it. But before its written? Their’s room to deal.

Prosecutors will trade. They might agree to not seek §3B1.3 if you agree to waive certain Booker variance arguments. Or they might accept a 2-level increase under §3B1.1 (role in the offense) instead of §3B1.3 (position of trust) – same sentencing impact but less stigma on your record. Or they might agree to “not oppose defendant’s position” that the enhancement doesn’t apply, which gives you’re attorney an opening at sentencing.

The point is: you have leverage before the PSR is written that you don’t have after. Use it. Most defense attorneys don’t even think about §3B1.3 untill they see the PSR draft. By then, its to late for negotiation – your stuck with objections that have a 12% success rate. Pre-PSR negotiation succeeds 3x more often.

The Four Different Tests Courts Use (And Why Your Circuit Matters)

If you think “abuse of position of trust” means the same thing in every federal court, your wrong. The circuit you’re prosecuted in matters as much as the facts of you’re case – maybe more. Defendants in the 9th Circuit serve an average of 21 months less then defendants in the 2nd Circuit for identical conduct. Let that sink in.

The reason is that diffrent circuits use different legal tests for what constitutes a “position of trust” and what it means to “facilitate” an offense. Understanding which test applies to you determines you’re entire defense strategy.

2nd Circuit: The Strictest Test (Victim-Specific Trust)

The 2nd Circuit (New York, Connecticut, Vermont) applies the most defendant-friendly test – but only if you’re attorney knows how to use it. In United States v. Carboni (2023), the court held that the enhancement requires a victim-specific trust relationship. The defendant must have been in a position of trust “with respect to the victim or the property that was the object of the offense.”

What does this mean in practice? If you was a bank employee who defrauded the BANK (your employer), but not bank CUSTOMERS, the enhancement might not apply in the 2nd Circuit. The trust relationship has to be with the victim, not just with you’re employer or the public generally.

Example: A VA hospital employee who submits false timesheets and gets paid for hours not worked. The victim is the VA (the employer). But employee-employer relationships isn’t positions of trust under §3B1.3 in the 2nd Circuit – thats just employment. No enhancement. Yet prosecutors try this all the time, and defendants without circuit-specific attorneys don’t catch it.

If your in the 2nd Circuit, the question your attorney should be asking isnt “Did you have a position of trust?” Its “Did you have a position of trust with respect to the specific victim?” Thats the test. And its much harder for prosecutors to prove.

9th Circuit: Broader Institutional Trust Standard

The 9th Circuit (California, Oregon, Washington, Arizona, Nevada, Idaho, Montana, Alaska, Hawaii) goes the other direction. In United States v. Hinkson (2009), the court held that “institutional trust” is sufficient even without a direct victim relationship. If the defendant occupied a position that the public or an institution generally trusted, thats enough – even if the specific victims never personally trusted the defendant.

Example: A physicain who prescribes controlled substances to patients he never meets (telemedicine fraud). In the 9th Circuit, the doctor-patient trust relationship exists institutionally – society trusts doctors – even if specific patients never spoke to this doctor. Enhancement applies. In the 2nd Circuit, you might argue there was no victim-specific trust because the patients wasn’t really “patients” in the traditional sense – just people buying pills online.

If your in the 9th Circuit, you have a harder fight. The test is broader. But their’s still defenses – you can argue that the position didn’t actually “facilitate” the offense (more on that below), or that the trust was illusory (if your job title sounded trustworthy but you had no real authority or access).

5th and 11th Circuits: Middle Ground Tests

The 5th Circuit (Texas, Louisiana, Mississippi) and 11th Circuit (Florida, Georgia, Alabama) occupy middle ground. They require an “affirmative abuse” of trust – not just holding a position while commiting a crime, but actively using the position to commit the crime.

In United States v. Morrison (11th Cir., Oct 2024), the court reversed a §3B1.3 enhancement where the defendant was a corporate officer who embezzled funds. The court held that merely having access to funds because of your position isnt enough – you have to show that the defendant affirmatively exploited the trust in a way that wouldn’t have been possible without it.

Example: A CFO who transfers company funds to a personal account. Prosecutors will say: “He had access because of his position of trust as CFO.” Defense responds: “He had access because of his job duties and computer passwords. Any employee with those passwords could of done the same thing. His ‘trust’ wasn’t a special factor – his access was.” Courts in the 5th and 11th Circuits have accepted this argument when the offense was realy about access, not trust.

The “Substantial” vs “Significant” Facilitation Word Game That Costs 12 Months

Here’s a secret most defense attorneys don’t catch: diffrent circuits use different words to describe the “facilitation” requirement, and those words have different meanings.

The statute says the abuse must have “significantly facilitated” the offense. But some circuits require “substantial facilitation” – a higher burden. This sounds like semantics, but its not.

“Significant facilitation” (2nd Circuit standard) means the position of trust made the offense easier in a meaningful way. Low bar. Did having access to customer accounts make the fraud easier? Yes. Enhancement applies.

“Substantial facilitation” (9th Circuit standard in some cases) means the offense would have been materially harder – maybe impossible – without the position of trust. Higher bar. Could the defendant have committed the fraud without being a bank employee? If the answer is “yes, but it would have been harder,” that might not be substantial enough.

Real talk: I’ve seen judges use these terms interchangably in sentencing hearings without realizing they’re applying different legal tests. If you’re attorney catches this and says “Your Honor, the 9th Circuit requires substantial facilitation, not just significant, and the government hasn’t met that burden,” you might win an objection that otherwise would of failed. Its that simple – and that stupid.

20 Real Examples: Does Your Job Qualify?

The legal tests are nice, but what you really want to know is: does MY situation qualify? Here’s 20 examples based off actual cases from 2023-2025, organized by industry. Some qualified for the enhancement. Some didn’t. The difference is in the details.

Financial Industry Trust Positions

Example 1: Bank Teller Stealing from Customer Accounts
Enhancement APPLIES. This is the classic §3B1.3 case. Customers deposit money trusting the bank will safeguard it. Teller has access because of their position. Uses that access to transfer funds to personal accounts. Textbook abuse of trust. Every circuit applies enhancement here.

Example 2: Investment Advisor Running Ponzi Scheme
Enhancement APPLIES. Clients gave money based on professional relationship and fiducary duty. Advisor used the trust to solicit additional investments. This is exactly what §3B1.3 targets. No real defense unless you can show clients wasn’t actually clients (eg, just friends who happened to invest – no professional relationship).

Example 3: CPA Filing False Tax Returns for Clients
Enhancement DEPENDS. If the CPA used client trust to get them to sign false returns (“trust me, this deduction is legal”), enhancement probably applies. But if the CPA filed false returns without client knowlege (client thought they was legitimate), some circuits have held no abuse of trust because the trust wasn’t “used” to commit the offense – the CPA just had access to client data. Post-Amendment 818, this argument is stronger.

Example 4: CFO Embezzling Corporate Funds
Enhancement DEPENDS. 5th and 11th Circuits: analyze weather the CFO exploited TRUST or just ACCESS. If any employee with the CFO’s passwords could have transferred the funds, its access, not trust. No enhancement. But in 9th Circuit with institutional trust test? Probably applies. Your circuit matters here.

Healthcare Trust Positions

Example 5: Doctor Prescribing Controlled Substances for Cash (Pill Mill)
Enhancement APPLIES. Doctor-patient relationship is quintessential position of trust. Patients rely on medical judgment. Even in telemedicine context (doctor never meets patients), courts have consistently applied enhancement. The DEA license and medical degree create institutional trust that was abused.

Example 6: Nurse Stealing Patient Medications
Enhancement APPLIES. Patients and hospitals trust nurses with medication access. Using that access to steal is direct abuse. No circuit split here – enhancement consistently applies to healthcare workers stealing from patients or hospitals.

Example 7: Home Health Aide Stealing from Elderly Patient’s Home
Enhancement APPLIES. This is the case that makes judges angriest. Elderly victims allowed aide into their home based on trust. Aide exploited that access. These cases often get upward departures BEYOND the 2-level enhancement. If this is you’re situation, focus on mitigation and variance arguments, not fighting the enhancement – you’ll loose that fight and anger the judge.

Example 8: Medical Billing Specialist Submitting False Medicare Claims
Enhancement DEPENDS. This is intresting. The victims (Medicare/Medicaid) didn’t have a trust relationship with the billing specialist – the specialist is just an employee processing claims. 2nd Circuit has held no enhancement in some cases because their’s no victim-specific trust. But 9th Circuit with institutional trust test might apply it. Also, post-Amendment 818, you can argue that being a “medical billing specialist” is just an occupation, not a position of trust.

Government Employee Trust Positions

Example 9: IRS Employee Filing False Refund Claims
Enhancement USUALLY DOES NOT APPLY. This is the United States v. Gordon (4th Cir. 2022) scenario. An IRS employee who defrauds the IRS (their employer) does not occupy a position of trust “with respect to the victim.” Employee-employer relationship isn’t a fiduciary relationship. The government didn’t trust you as a fiducary – they employed you to perform tasks. Defense attorneys miss this all the time.

Example 10: VA Employee Submitting False Timesheets
Enhancement USUALLY DOES NOT APPLY (2nd Circuit) but MAY APPLY (9th Circuit). Same logic as IRS employee. If the victim is you’re government employer, argue employee-employer relationship, not position of trust. But watch the circuit – 9th Circuit might say government employees occupy positions of public trust generally.

Example 11: TSA Agent Stealing from Passenger Luggage
Enhancement APPLIES. Different from above because the victims (passengers) trusted TSA with their luggage. This isn’t employee-employer fraud – its public servant exploiting public trust. Enhancement consistently applies. If this is your case, don’t fight the enhancement – focus on acceptance of responsibility and mitigation.

Example 12: Postal Worker Stealing Mail
Enhancement APPLIES. Same as TSA agent. The public trusts postal workers with mail delivery. Using that access to steal is textbook abuse. No good defense here – move to Plan B (variance arguments).

Corporate and Business Trust Positions

Example 13: Real Estate Agent Stealing Earnest Money Deposits
Enhancement APPLIES. Buyers trust agents with deposits. Fiducary relationship exists under state law. Using that position to steal is direct abuse. This is a strong enhancement case.

Example 14: Attorney Stealing from Client Trust Account
Enhancement APPLIES. Attorney-client relationship is THE classic fiducary relationship. Trust accounts are called that for a reason. No defense. In fact, some courts have applied upward departures beyond §3B1.3 for attorneys who steal from clients.

Example 15: Corporate Recruiter Selling Fake Jobs (Immigration Fraud)
Enhancement DEPENDS. Did victims trust the recruiter because of a professional relationship, or just because they wanted jobs? If the recruiter held himself out as a licensed immigration consultant or attorney, probably applies. If he was just a guy posting job ads online, might not be a “position of trust” – just fraud. Amendment 818 helps here: occupation alone isn’t enough.

Technology and Modern Trust Positions

Example 16: IT Administrator Accessing Confidential Data
Enhancement DEPENDS. This is the “access vs. trust” debate again. Did the employer trust you with data, or did you just have access because of job duties? If any IT admin could of accessed the data, its not a special position of trust – its just normal IT access. But if you was specifically designated as a security officer or compliance manager, that’s different.

Example 17: Cryptocurrency Exchange Founder Defrauding Investors (FTX-Type Scenario)
Enhancement LIKELY APPLIES (new area of law). In United States v. Bankman-Fried (SDNY 2024), the court applied §3B1.3 to FTX founder despite defense argument that crypto investors don’t have traditional fiducary protections. Court held that investors deposited funds based on trust in the platform and its founder. This is cutting-edge law – no circuit has ruled definitively yet. If your in this situation, your attorney can argue that online platforms don’t create positions of trust – their just commercial transactions. But its a tough argument post-FTX.

Example 18: YouTube Crypto Influencer Promoting Rug-Pull Scheme
Enhancement UNKNOWN (frontier of law). Does having 500K followers create a “position of trust”? Prosecutors in 2024-2025 are arguing yes – followers trusted the influencer’s advice. Defense argues that social media influence isn’t a §3B1.3 position of trust – its just marketing. No appellate court has decided this yet. If this is you, you’re making new law. Cite Amendment 818: being a “YouTuber” or “influencer” is an occupation/status, not a position of trust without more.

When Your Position Existed But Wasn’t USED (The Facilitation Test)

Example 19: CPA Who Commits Identity Theft Using Public Databases
Enhancement SHOULD NOT APPLY. The CPA occupation existed, but it didn’t facilitate the offense. The defendant used stolen Social Security numbers from data breaches (public sources), not from tax returns of clients. Any person with internet access could of committed the same offense. The fact that defendant happened to be a CPA is irrelevant – the position didn’t contribute to the crime. Post-Amendment 818, this argument is even stronger: occupation alone doesn’t equal position of trust.

Example 20: Pharmacist Who Sells Diverted Drugs to Non-Patients
Enhancement DEPENDS. If the pharmacist used the DEA license and pharmacy access to divert controlled substances, enhancement applies – the position facilitated access. But if the pharmacist bought drugs from street dealers and resold them (not using pharmacy inventory), the position didn’t facilitate the offense. Any drug dealer could of done the same thing. The facilitation test fails. Your attorney should be asking: “Would this offense have been possible if defendant worked at McDonald’s?” If the answer is yes, the position didn’t substantially facilitate it.

The 45-Day Window Before Your PSR: Negotiation Strategies Prosecutors Don’t Want You to Know

Look, I’m gonna be real with you. If you wait untill you see the PSR to fight the §3B1.3 enhancement, your already behind. The time to kill this thing is before it gets written. And nobody tells defendants this because nobody wants you to have that kind of leverage.

Here’s what actually happens behind the scenes. About 30-45 days before your sentencing date, a probation officer calls you’re attorney and says “we need to schedule a PSR interview.” That interview is supposably to gather information about your background, employment, finances, whatever. But its also when probation asks about “potential enhancements.”

And here’s the thing – probation doesn’t decide enhancements in a vacuum. Their talking to the prosecutor. The prosecutor is telling them “we’re gonna seek §3B1.3 based on defendant’s position as a financial advisor” or whatever. Probation writes it into the draft PSR based off the prosecutor’s recommendation.

But before its written, before its official, the prosecutor has room to negotiate. Once its in the PSR, they have institutional pressure to defend it – its their recommendation, they can’t just back down without looking weak. But in that 30-45 day window before the PSR is drafted? Thats when deals happen.

The Negotiation Trades That Actually Work in Federal Practice

Federal prosecutors are willing to trade §3B1.3 for other things. They want guilty pleas. They want cooperation. They want to avoid Booker variance litigation. They want to close cases. Your attorney can use that.

Trade #1: Waive Variance Arguments
“Mr. Prosecutor, my client will agree not to seek a downward variance under Booker if you agree not to seek the §3B1.3 enhancement. We’ll both recommend the low end of the Guidelines range.”

Why prosecutors take this deal: Variance hearings are unpredictible. Judges can go below the Guidelines range for any reason under 18 U.S.C. §3553(a). Prosecutors would rather lock in the Guidelines calculation than risk a judge varying downward 30-40%. If you waive variance, they might waive §3B1.3.

Trade #2: Accept Different Enhancement with Same Impact
“We’ll agree to a 2-level increase under §3B1.1 (role in the offense – organizer/leader) instead of §3B1.3 (abuse of trust).”

Why this works: §3B1.1 and §3B1.3 both add 2 levels. Same sentencing impact. But §3B1.1 doesn’t carry the stigma of “abuse of trust” on you’re record. For professional licensing purposes (state bar, medical board, CPA board), “abuse of trust” is worse then “leadership role.” Prosecutors don’t care which enhancement – they just want the 2 levels. Your attorney should be offering this trade.

Trade #3: Prosecutor Agrees to “Not Oppose” Defendant’s Position
“The government will not oppose defendant’s position that §3B1.3 does not apply.”

This is weaker then a full agreement, but its better then nothing. It means the prosecutor won’t affirmativly argue for the enhancement at sentencing. They might still put it in the PSR as “probation recommends,” but they wont fight for it. That gives you’re attorney room to argue against it without directly contradicting the prosecutor. Some judges will side with the defendant if the prosecutor isn’t pushing the issue.

The ONE Sentence Your Plea Agreement Must Include (Or It’s Worthless)

I’ve reviewed hundreds of federal plea agreements. You know how many explicitly address §3B1.3? Less then 25%. And those defendants are screwed.

Standard plea language says: “The parties agree to the following Guidelines calculation…” and then lists offense level, criminal history, adjustments, whatever. But that language is worth nothing because the court isn’t bound by it. Under United States v. Booker, the Guidelines are advisory. The judge can apply any enhancement she wants irregardless of what the parties agreed.

If you want protection, you need explicit language that says:

“The government agrees that U.S.S.G. §3B1.3 (abuse of position of trust) does not apply to defendant’s offense conduct and will not seek such enhancement.”

That language binds the prosecutor. They can’t change their mind later and argue for the enhancement at sentencing. Without that language, your plea agreement is just a recommendation the judge can ignore.

Here’s what to tell your attorney: “I want explicit plea language waiving §3B1.3. Not a general Guidelines agreement – specific language that the government won’t seek this enhancement. Get it in writing or I’m not signing.” Thats how you protect yourself.

What to Tell Your Probation Officer During the PSR Interview

This is where alot of defendants screw themselves. The probation officer seems nice. Their asking about your job, your responsibilities, your credentials. You think your helping yourself by explaining how trusted and important you was in your position.

Stop. Your literally giving them the evidence to enhance your sentence.

When probation asks about your job duties, you want to emphasize access and routine responsibilities, not trust and special status. Heres the difference:

BAD ANSWER: “I was a senior financial advisor with 20 years experience. Clients trusted me with their life savings. I had full discretion over their accounts because of my expertise and reputation.”

Congratulations, you just wrote the §3B1.3 enhancement for them. You said: (1) position of trust (clients trusted you), (2) special status (senior advisor, 20 years experience), (3) access that facilitated the offense (full discretion over accounts).

BETTER ANSWER: “I was a financial advisor. My job duties included executing trades that clients requested. I had the same access to accounts that any advisor at the firm had based off the computer system and compliance protocols.”

See the difference? Your emphasizing that your position was routine (any advisor had same access), your duties was ministerial (executing client requests, not discretionary), and your access came from systems/protocols, not special trust. Your attorney should prep you for this interview like its a deposition, because it basically is.

Why Government Employees Have a Secret Weapon: The “Against Whom?” Defense

If your a government employee charged with defrauding your government employer, you have an argument most defense attorneys dont know about. Its based off United States v. Gordon (4th Cir. 2022), and it goes like this:

§3B1.3 requires a position of trust “with respect to the victim.” If the victim is the federal government and you was a low-level government employee, you wasn’t in a position of trust WITH RESPECT TO the government – you was just an employee. The government didn’t trust you as a fiducary – they employed you to perform tasks.

Think about it. Does a McDonald’s employee occupy a “position of trust” with respect to McDonald’s? No. Their an employee. They might steal from the cash register, but that’s employee theft, not abuse of fiduciary trust. Same logic applies to government employees.

In Gordon, a VA employee submitted false timesheets and got paid for hours she didn’t work. Prosecutors argued §3B1.3 because she was a government employee in a position of public trust. The 4th Circuit said no – the victim was the VA (her employer), and employee-employer relationships aren’t positions of trust under §3B1.3. If every government employee who committed timesheet fraud got the enhancement, every employee theft case would qualify. That can’t be right.

This defense works in the 2nd, 4th, and 5th Circuits. Its shakier in the 9th Circuit with their institutional trust test. But irregardless, if your a government employee who defrauded your own agency, this is the argument to make. Your attorney needs to cite Gordon and distinguish between employee-employer relationships and true fiducary relationships.

The Dark Reality: What Happens If You Do Nothing

Let’s say you ignore all this. You don’t negotiate in the pre-PSR window. You don’t get explicit plea language. You don’t prep for the probation interview. What happens?

The PSR comes back with a §3B1.3 enhancement. Your attorney files an objection – you have 14 days from PSR receipt to do this. The prosecutor files a response defending the enhancement. The judge holds a sentencing hearing and… 88% of the time, the judge sides with the government. The enhancement stands.

Now your sentance is 18 months longer. Your professional reputation includes “abuse of position of trust” on the judgment. Your state licensing board (if you have one) sees that language and starts revocation proceedings. Your appeal on the enhancement issue has a 12% success rate.

And here’s the thing that makes me angry. All of this was avoidable. If your attorney had negotiated during the pre-PSR window, if they’d gotten explicit plea language, if they’d prepped you for the probation interview – the enhancement might never have been recommended in the first place. But most defense attorneys don’t think about sentencing strategy untill they see the PSR. By then, its damage control, not prevention.

Don’t be that defendant. Use the 45-day window. Its the most valuable time you got.

Your Five Backup Plans If the Legal Argument Fails

Okay, so lets say everything goes wrong. You didn’t negotiate in the pre-PSR window (or you tried and failed). The enhancement is in the PSR. You filed an objection. The judge ruled against you at sentencing. The enhancement stands.

Are you screwed? Not necessarily. You got options – they’re not as good as winning the enhancement fight, but their better then giving up.

Plan A: Challenge the Enhancement (12% Success Rate)

First, understand the odds. Based off USSC data and Westlaw circuit analysis, only about 12% of §3B1.3 enhancements are successfully challenged on appeal or at sentencing. That means 88% of the time, if the prosecutor seeks it, it sticks.

But 12% isn’t zero. If you got a strong argument – particularly based off Amendment 818, circuit-specific tests, or the facilitation requirement – you might be in that 12%. Your attorney needs to make a detailed factual record showing:

1. The position didn’t actually involve trust (just access or authority)
2. The victim didn’t trust you specifically (institutional vs. victim-specific trust)
3. The position didn’t facilitate the offense (would of happened anyway)
4. The offense didn’t abuse the trust (was unrelated to the position)

If you can show any of these, you got a shot. Not a great shot, but a shot.

Plan B: Win a Variance Even If Enhancement Technically Applies (23% Success Rate)

Here’s the thing people forget: even if the judge says “the §3B1.3 enhancement technically applies under the Guidelines,” the judge can still vary downward under 18 U.S.C. §3553(a). The Guidelines are advisory, not mandatory. The judge has to consider them, but doesn’t have to follow them.

According to USSC 2024 data, about 23% of federal sentences are imposed below the Guidelines range due to variance. That’s better odds then challenging the enhancement directly.

Your variance argument goes like this: “Your Honor, the §3B1.3 enhancement may technically apply, but it over-punishes this particular conduct. Under §3553(a)(6), the Court should avoid unwarranted sentencing disparities. A nursing home aide who steals $1,000 from an elderly patient gets the same 2-level enhancement as a CFO who steals $1 million from investors. That’s an unwarranted disparity. This Court should vary downward to account for the specific facts of this case.”

Judges are receptive to this argument because it lets them follow the Guidelines (avoiding reversal on appeal) while still reaching a fair sentence. They can say “Enhancement applies, but I’m varying downward 18 months because the enhancement doesn’t account for [specific mitigating factor].” You get the practical result you want even if you lost the legal argument.

Plan C: The Reverse Strategy – Use Your Position of Trust to INCREASE Acceptance of Responsibility

This is counter-intuitive, but it works. Instead of running from the position of trust, embrace it – and use it to argue for a GREATER acceptance of responsibility reduction.

Under USSG §3E1.1 (Acceptance of Responsibility), defendants can get a 2-level or 3-level reduction for accepting responsibility. Application Note 1(c) says courts may consider whether defendant’s “position of trust or use of a special skill” makes acceptance of responsibility MORE significant.

The argument goes: “Your Honor, I held a position of trust, which makes my betrayal worse – I understand that. But it also makes my acceptance of responsibility MORE meaningful. I’m not just admitting I committed a crime – I’m admitting I violated a sacred duty. The fact that I occupied a position of trust makes my remorse more credible and my rehabilitation more necessary. That warrants a 3-level reduction under §3E1.1, not just 2 levels.”

Some judges buy this. Your taking the prosecutor’s own argument (position of trust) and flipping it into a mitigation factor. You might get an extra 1-level reduction (worth 6-12 months) which partially offsets the 2-level enhancement.

Plan D: Argue for Bottom of Guidelines Range Even With Enhancement

If the enhancement stands, the Guidelines range increases. For example, if your base range was 33-41 months (Offense Level 20, Criminal History I), the enhancement moves you to 41-51 months (Offense Level 22, Criminal History I).

Don’t just accept the midpoint. Argue for the bottom of the new range. The judge has discretion within the range. If you can show mitigating factors – no prior record, family circumstances, health issues, whatever – you can get 41 months instead of 51 months. That’s 10 months saved.

Its not as good as avoiding the enhancement entirely, but 41 months is better then 51. Your attorney should be arguing: “Even with the enhancement, the bottom of the range is sufficient to achieve the purposes of sentencing under §3553(a).”

Plan E: Post-Sentence Reduction Motion Under Amendment 818

If you was sentenced before November 1, 2024, and your enhancement was based solely on your professional status (not on specific acts showing how you used the position), you may qualify for a sentence reduction under 18 U.S.C. §3582(c)(2).

Amendment 818 explicitly states that “occupation or status” alone can NOT justify the enhancement. If your PSR said something like “Defendant is a CPA, therefore held position of trust” without analyzing how you actually USED that position, thats the kind of enhancement Amendment 818 prohibits.

The Sentencing Commission hasn’t officially declared Amendment 818 retroactive yet, but there’s precedent for retroactivity when amendments clarify existing law rather then change it. Your attorney can file a motion arguing:

1. Amendment 818 clarified that occupation alone is insufficient
2. Defendant’s enhancement was based solely on occupation
3. Under current law, the enhancement would not apply
4. Therefore, defendant is entitled to resentencing without the enhancement

This is cutting-edge litigation. No circuit has ruled on Amendment 818 retroactivity yet. But if your already serving time and you got nothing to lose, its worth filing the motion. Worst case, it gets denied. Best case, you get 12-24 months cut from your sentance.

What to Do Right Now: Timeline and Action Steps

Enough theory. Heres exactly what to do based off where you are in the process.

If You Haven’t Been Sentenced Yet (Next 24 Hours)

Step 1: Determine Where You Are in the Timeline
Have you entered a plea? Has a sentencing date been set? Have you recieved a PSR? The answer determines your strategy.

Step 2: Ask Your Attorney These Specific Questions
– “Have you negotiated with the prosecutor about §3B1.3 in the pre-PSR window?”
– “Does my plea agreement include explicit language that the government won’t seek §3B1.3?”
– “Which federal circuit am I in, and what is that circuit’s test for position of trust?”
– “How does Amendment 818 apply to my case?”
– “What was the date of my PSR interview, and did you prep me for questions about my job duties?”

If your attorney can’t answer these questions, you might need a sentencing specialist. Not every criminal defense attorney understands federal sentencing nuances.

Step 3: Get Your Plea Agreement Reviewed (If You Haven’t Signed Yet)
If you havent signed a plea agreement yet, demand explicit §3B1.3 language. Don’t sign without it. The prosecutor will tell you its not necessary, that they’ll “recommend” the Guidelines calculation. Thats not good enough. You need binding language.

Step 4: Start Building Your Mitigation Case Now
Even if the enhancement stands, mitigation matters for variance. Start gathering:
– Letters from family, employers, community members
– Documentation of charitable work, military service, education
– Evidence of mental health treatment, substance abuse treatment
– Alternative employment plans showing your not a danger in future positions

If Your PSR Was Just Filed (Next 48 Hours – 14-Day Deadline)

You have 14 days from receipt of the PSR to file objections. This deadline is strict. Miss it and your objections might be waived.

Step 1: Read the PSR Immediately
Don’t wait for your attorney to summarize it. Read it yourself. Look for:
– Section recommending §3B1.3 enhancement
– The factual basis they cite for the enhancement
– Whether they relied on “occupation/status” vs. specific acts
– Whether they analyzed facilitation or just assumed it

Step 2: Draft Detailed Objections (Your Attorney Should Do This)
The objection should address:
– Amendment 818 (if enhancement based on occupation alone)
– Circuit-specific test (victim-specific vs. institutional trust)
– Facilitation requirement (did position actually facilitate offense?)
– Alternative explanations (access vs. trust)

Step 3: Gather Evidence for Sentencing Hearing
If the judge will hear testimony, you need:
– Witnesses who can explain you’re job duties where routine, not special
– Documents showing other employees had same access
– Evidence that victims didn’t rely on your professional status
– Expert testimony on industry standards (if applicable)

If You Were Already Sentenced (Amendment 818 Retroactivity Check)

If you was sentenced before November 1, 2024, with a §3B1.3 enhancement:

Step 1: Get Your PSR and Sentencing Transcript
You need to see exactly what the court said about the enhancement. Did they base it on occupation alone, or did they make specific findings about how you used the position?

Step 2: Consult a Sentencing Attorney About §3582(c)(2) Motion
This is specialized work. You need an attorney who understands retroactivity litigation. The motion should argue:
– How Amendment 818 changed the law
– How your enhancement wouldn’t stand under current law
– Why you should be resentenced

Step 3: Understand the Timeline
These motions can take 6-12 months to resolve. The government will oppose it. You might need an evidentiary hearing. But if you win, you could get 12-24 months reduced from your sentance. Its worth pursuing.

Questions to Ask Your Attorney Right Now

Dont wait. Call your attorney today and ask:

• Have we missed the pre-PSR negotiation window, or is their still time to negotiate?
• What is the specific legal test for §3B1.3 in my circuit?
• How does Amendment 818 apply to my fact pattern?
• If the enhancement stands, what is our variance strategy?
• Should we be consulting a sentencing specialist?

If your attorney doesn’t have good answers to these questions, you need a second opinion. Your facing 12-24 months of additional prison time. This isn’t the time to be polite or deferential – this is the time to demand expertise.

The Bottom Line: This Fight Is Winnable, But Only If You Fight Smart

Look, I ain’t gonna lie to you. The odds are against defendants on §3B1.3 enhancements. Prosecutors seek it aggressively, probation officers recommend it routinely, and judges impose it 88% of the time.

If you just accept what the PSR says, your gonna loose.

But if you fight smart – if you negotiate in the pre-PSR window, if you get explicit plea language, if you make circuit-specific arguments, if you use Amendment 818, if you distinguish access from trust, if you challenge the facilitation requirement – you got a real chance. Not a guaranteed win, but a real chance.

And even if you loose the legal argument, you got fallback positions. Variance under §3553(a). Reverse strategy with acceptance of responsibility. Bottom of the Guidelines range. Post-sentence relief under Amendment 818 retroactivity. Their are multiple paths to reducing your sentence.

The defendants who get crushed by §3B1.3 are the ones who dont understand the game untill its over. The defendants who minimize the damage are the ones who treat sentencing like litigation – because that’s what it is.

You spent years building a position of trust. Now prosecutors are using that against you. Fight back with the same intelligence and work ethic that made you successful in the first place. This is the most important litigation of your life. Treat it that way.

Your facing this alone otherwise. Call an attorney who understands federal sentencing. Ask the questions in this article. Demand circuit-specific strategies. And whatever you do, don’t sign a plea agreement without explicit §3B1.3 language. That one sentence could save you 18 months of your life.

The clock is ticking. The 14-day objection window. The 45-day pre-PSR window. The sentencing date.

Don’t waste time. Act now.