employers trusted associates actually and is referred to all of their employees as associates and this is a family run company and they cultivate a family spirit of plants among their employees that but he could deserve to be prosecuted punished but he did not because he did not fit the guidelines definition of occupying a position of trust the court   a pretty classic case for harmless error well respectfully i practice and essentially well just one district but i know my district our district census people love the guidelines more so than most any other district in the country so going into what i recommended a probation sentence i realize that was a reach but under all thirty five fifty three factors i believe that was at least possible the sentence that we received wasn't shocking and it was below guidelines and if the court is set below even the guidelines i sought but the guidelines certainly serve as an anchor for  judges i can't say how much of an anchor but if this case is agree man did judge that miller will know that they got that the enhancement was in a political and i think the starting point there will be no no no facts will have changed advice that he didn't follow before will change to slightly different advice i don't disagree with much of that but the court would have with that if it was remanded the sense that perhaps the court had conflated the notion of abuse of trust or simply a trust in the colloquial sense versus as a as a matter of a guideline and under thirty five fifty three a wouldn't that be perfectly appropriate to consider it would yet again i'm some of this is is obviously not revealed to us by the judges i'm starting my position here because the guidelines are here but i think from a defense perspective that's how we approach cases we seek to push down the guidelines as hard as we can in our district and then talk about how the guidelines simply overstate what's what's necessary sentence in this case or understate in this case if you not general motors or general electric but a very very close knit family business the court found that they the kid was the lead materials processor he just i don't know why i said processor be independent of anyone else her lined all the materials that were stolen or shipped through endless there actually was a codefendant who participated in this as well and so he said he was constrained to occur on the basis of the underlying operat order that she had no no involvement in obtaining a customer order that order had a number because of the system she took that order she made sure that the appropriate products were placed in appropriate boxes and she created a shipping label and sent it out each task a discrete tax she had no managerial discretion whatsoever and that's not simply what the guidelines talks about but also case law preview one point t or control the victim's valuables don't always trigger an increase and i think that's important here because i've given the warehouse example a warehouse worker theoretically could have done what she did figured out perhaps  it seems to me that when you said when she methodically does raise a routine you know it sounds simple and it said it but in order to settle settle two that are combining i don't get it i don't know what she did it was able to get away with it for this wink of time for that amount of money so they had to be something that only a formular something that she created and got away with it for all that time that's that goes to the second part of the question of whether she whether she had her position of trust significantly contributed to her crime and i'm obviously counts that most american mothers are going to first whether s label that wouldn't be picked up by the system and even though the creation of her creation of u p s labels was monitored by security cameras for whatever reason they didn't figure that out until january of two thousand and seventeen please the court my name is elizabeth monfils and i represent the united states in this kid's appeal the the real ultimate question here is whether mr kidd occupied a position of trust and i think that the evidence in this case really does not support mr very narrow vision of her position with respect to her employment and that the record is clear that ms kid has that's the role to assign other employees to various tasks and various work stations among the warehouse as the lead materials handler so she oversaw other materials handlers in her letter to the court she also recognise that she trained other individuals and to get to the point where she had the ability to assign others to various workstations she could also assign herself to various workstations to allow her to accomplish any aspect of this scheme on any given day so in essence and this gave ms in the end or excuse me ms kid being taught autonomy to accomplish her job as the lead materials and learn i think the autonomy is an embodiment of this position of trust that andersen trusted minutes with the professional and managerial discretion to let the functions so like in the case appears the knox case that employee was given discretion to order quickly and behalf of the employees of the company she was not given discretion to order surplus fraud scheme or theft scheme that an employee manages to conceal or more than a very short period of time years or they're given enough of all the loose sort of rain that they fact that when eunice discovered that there were these in inventory shortages they turned to ms kidd as a twenty year employee for their company whom they entrusted with the discretion to carry out the the goals of the shipping department they surrender her to help on cover so the sorts of errors discretion to carry out the goals of the shipping department i assume means fulfill shipment ship works right correct your honor so she didn't have the discretion if there was something that came through in she picked the materials or had somebody or had another employee pick the materials which somebody had to create an additional shipping label to legitimate orders so that the non legitimate orders would be sent out an adjunct given well let's assume there's a warehouse worker and mistreated just simply going into the warehouse and picking materials off the shelves putting them in her bag and walking off with them that would be similar to maybe a which thereby cause in this products to be shipped out against the goals of the shipping department so i think that illustrates that in this case mr kidd position is elevated the on the  ordinary degree of reliance and integrity that would be given or would be expected of any employee of any company for that matter i'm not sure that that's clear in the record i think that the record the record there's nothing in the record that demonstrates that anybody had direct supervisory authority over her no out of the direction of the she's forty over that she had direct  i think that's clear in the case of many cases say that it in this case there was there was no it's there was no oversight that could catch her crime so to speak but that does not demonstrate that there was any lack supervision in this record so to get to your honor's point what happened was that they noticed there was an inventory shortage and the customer called up and said they never got their order when they actually checked at the u p s labels which they used and it's part of a separate system they noticed that the u p s system did not match what their order system in effect that so high and went to high end the company has its goods diverted into a black or grey market the harm to the company's goodwill with the customers who are willing to pay for the premium product is enormous none from two years ago in which the court said in essence a guideline error would be treated as a plain error in the in most circumstances so that it would require a remain and new sentencing at least unless the judge has signaled very clearly that the guideline issue did not affect the ultimate sentence your honor i think that in terms of consequences for guideline errors yes your honor i think i'm not sure if i understand your question correct way clearly but the position that i'm taking is that regardless of what standard we look at there was no error here whatsoever but the court indulge me with the assumption that we might disagree with that suppose that we do find a guideline here could we treat it as harmless in light calculations were conservatives and also that the goodwill loss was discussed in that local customers who heard about this were said to anticipate how come i'm not getting the good deal in the records we know there were security cams and that is indeed how they found the crime and there's nothing the record that i recall that those to go to paris were were set up to catch her in a situation i believe that they that existed as of at least november i don't know