Circuit Split Over Whether "Abuse of Trust" Determination Under USSG §3B1.3 Is Reviewed De Novo or Only for Clear Error

United States v. Dial, No. 07-30696 (5th Cir. Sept. 11, 2008) (per curiam) (Jones, Garwood, Smith)

The court's discussion of the issue is brief, so let's just cut-n-paste:

We review for clear error the district court’s application of § 3B1.3 to the facts, including its factual determination that Dial held a position of trust. See United States v. Smith, 203 F.3d 884, 893 (5th Cir. 2000); United States v. Ehrlich, 902 F.2d 327, 330 (5th Cir. 1990). This court recently applied de novo review to whether the defendant held a position of trust. See United States v. Kay, 513 F.3d 432, 460 (5th Cir. 2007), petition for cert. filed (Apr. 9, 2008) (No. 07-1281). The panel in Kay, 513 F.3d at 460 & n.125, relied on United States v. Sudeen, 434 F.3d 384, 391 n.19 (5th Cir. 2005), which based its statement on United States v. Hussey, 254 F.3d 428, 431 (2d Cir. 2001), after observing that the standard of review would not affect its decision.

De novo review appears foreclosed, however, by this circuit’s earlier ruling that a “district court’s application of § 3B1.3 is a sophisticated factual determination that will be affirmed unless clearly erroneous.” Despite whatever persuasiveness Kay and Sudeen may have, our rule of orderliness directs that “‘one panel of this court cannot overrule the decision of another panel.’”

The court went on to find no clear error in the application of the enhancement in Dial's case. It's unclear whether the result would have been any different under de novo review, as the opinion doesn't recount the facts of the case in great detail. In any event, it now looks like we clearly have a circuit split over the issue.