United States v. Foster

155 F.3d 1329, 1998 U.S. App. LEXIS 23877, 1998 WL 654387
Court of Appeals for the Eleventh Circuit·Decided September 24, 1998·No. 97-4786·Published·Cited by 42 cases

Opinion

MARCUS, Circuit Judge:

This is an appeal from a 41-month sentence for conspiracy to possess counterfeit currency in violation of 18 U.S.C. § 371, and making counterfeit currency in violation of 18 U.S.C. § 471, imposed as the result of a plea agreement. On appeal Defendant Claude Foster (“Foster”) argues that 1) the district court erred in failing to grant a downward departure because the government engaged in sentencing manipulation; and 2) the district court erred in enhancing Foster’s sen *1331 tence because it erroneously considered Foster’s knowledge of printing to be a special skill and assessed him a two-level upward adjustment under section 3B1.8, U.S. Sentencing Guidelines Manual (1997) (“U.S.S.G.”).

We have fully reviewed the record and the briefs and have carefully considered each of the issues on appeal, and, finding no merit to either, we affirm the ruling of the district court. Only one issue, a matter of first impression in this Circuit, merits any discussion — whether printing is a “special skill” as defined in the U.S. Sentencing Guidelines, U.S.S.G. § 3B1.3.

We review the district court’s legal interpretation of the term “special skills” de novo, United States v. Malgoza, 2 F.3d 1107, 1110 (11th Cir.1993), but the district court’s factual findings as to whether a defendant has a special skill pursuant to U.S.S.G. § 3B1.3 is reviewable for clear error. Id.; see also United States v. Carlson, 87 F.3d 440, 446 (11th Cir.1996); United States v. Shenberg, 89 F.3d 1461, 1478 (11th Cir.1996). For a factual finding to be “clearly erroneous,” the Court, after reviewing all of the evidence, must be left with a definite and firm conviction that a mistake has been committed. General Trading Inc. v. Yale Materials Handling Corp. 119 F.3d 1485 (11th Cir.1997). Where the evidence has two possible interpretations, the district court’s choice between them cannot be clearly erroneous. Malgoza, 2 F.3d at 1111 (citing Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)).

Under section 3B1.3 of the U.S. Sentencing Guidelines, a special skill “refers to a skill not possessed by members of the general public and usually requiring substantial education, training or licensing. Exam-pies would include pilots, lawyers, doctors, accountants, chemists and demolition experts.” U.S.S.G. § 3B1.3, Application n. 2. The Guidelines explain that “[t]his adjustment applies to persons who abuse their ... special skills to facilitate significantly the commission or concealment of a crime. Such persons generally are viewed as more culpable.” Id. It has generally been recognized that the “special skill” enhancement provision of section 3B1.3 “applies only if the defendant employed a ‘special skill’ in the form of a pre-existing, legitimate skill not possessed by the general public to facilitate the commission or concealment of a crime.” United States v. Young, 932 F.2d 1510, 1513 (D.C.Cir.1991). In United States v. Malgoza, we observed that this section extends to defendants who commit their crimes through the use of unique technical skills not necessarily acquired through formal education. 2 F.3d at 1110-11 (holding § 3B1.3 applied to defendant using advanced radio operating ability to facilitate drug trafficking).

Other circuit courts of appeals have addressed this issue and concluded that printing is a “special skill” under the Sentencing Guidelines. See United States v. Sharpsteen, 913 F.2d 59, 62 (2nd Cir.1990) (district court did not abuse its discretion in finding that defendant’s expertise as a printer constituted a special skill that significantly facilitated the commission of the offense by operating a printing press that produced counterfeit money); United States v. Foster, 876 F.2d 377, 378 (5th Cir.1989) (based on testimony that work with a printing press required a high level of technical skill, printing is a special skill that requires substantial training) 1 ; United States v. Moore, 29 F.3d 175 (4th Cir.1994) (president of a printing company and his co-owner were found to possess a special skill in printing); cf. United States v. Fuente-Kolbenschlag, 878 F.2d 1377 (11th Cir.1989).

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United States v. Foster, 155 F.3d 1329, 1998 U.S. App. LEXIS 23877, 1998 WL 654387 (11th Cir. 1998).

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