impact mr douglas but not only mr douglas it will likely impact similarly situated defendants across the nation so with that i'm going to proceed to the arguments prepared i'm going to dispense with explaining the standard of review that we are to employ in this matter i don't believe that's an issue with regards to reviewing a sentencing decision but i would like to articulate the issue and i believe it's a very narrow and finite issue that this court must decide that is she  specific whether the appellant kenneth douglas held a position of trust when he was employed by united airlines as an airline mechanic who possessed a security clearance and was convicted of smuggling commentary to the sentencing guidelines which are binding on the district court as well as this honorable court here today state that a position of public or private just revert refers to a position characterized by professional or managerial discretion and that is discretion discretionary judgment that is ordinarily given considerable deference and the commentary goes on to provide two examples of one be enhancements should not be applied and one example of what it should be applied the commentary suggests that it has been should be applied in a case where an attorney serving as the fighting shiri to a trustee abuses his power and embezzles money from that trustee that example deals with the relationship between the defendant and the victim of the crime the two instances in which the commentary says it has been should not apply specifically that of a bank teller who embezzles money from the bank or a hotel clerk who embezzles money from the hotel those two examples i would submit that the key distinction between those examples and the singular example that it provides for want to should imply are that the individuals in those examples have mere physical access or the mere physical means to commit the crime of the guidelines in the commentary this court has also generated three factors and those were articulated many sitting united states versus pardo when determining whether or not an individual held a position of trust this court first looks to whether the position allows the defendant to commit a difficult the wrong but then looks to the degree of authority which the position vests in the defended these of the object of the wrongful act and lastly whether there is a reliance on the integrity of the person occupying that position so when we look at those three factors as applied to mr douglas i would first admit that it was not his position that enabled him to commit a difficult to detect wrong it wasn't the fact that he was an airline mechanic it wouldn't have mattered if you were an airline mechanic a janitor someone who worked at one of the eateries a ticket agent any person employed in that airport security clearance equal to that of ken douglas had the same ability to commit this offense as he did it was not specifically his position i would submit that his position to not mention any discretion or judgment were anything other then his duties as a mechanic as far as whether or not a part needs to be repaired or replaced that's what he had discretionary judgment over turned into the second  pardo i mean he had literally access to areas inside of your work that most people didn't have access to is your honor i would disagree that he was the type of insider that as articulated in part i would say your geographical access is not what the guideline is intended to cover and i believe that persuasive but there were the from other circuit sort of follow suit with that if you look at the first circuit decisions and united states versus korea roman united states versus cory those deal with virtually indistinguishable facts from mr douglas it involves airport specific victim or another individual or a class of individuals the public is a position which instills trust in an individual piece of the the public at large i think it's fair to say that the public would expect that people who have security clearance don't use those for nefarious purposes however i don't believe that the security clearance in and of itself constitutes a position of trust he's a need the on what the object of the wrong for act is but the night watchman at a nuclear facility is in a position of trust in so far as it's his job and he has discretion over who has access to that facility if he abuses that public trust by admitting persons who are supposed to be there into that the city or by allowing the commission of some crime to call on the premises when it's his duty to prevent that from occurring then i would submit that yes he some similarities and there are some distinctions and i face this question of the initial argument and my position is the same essentially with regards to the prison guards who are tasked with preventing contraband from coming in and out of the facility it's their job to do that instead job to prevent contraband from coming in and out if that search is on people and during the facility they search packages everything that's what they have authority over what gets sent in what gets out so if they are involved in that then they're abusing that authority by allowing those things to come through can douglas does not have authority over who passes through t s a security what they have in their bag or anything like those prison officials who are subject to a regulatory scheme at a place where the public expects people to comport themselves in particular ways and particularly in an airport subject to a pretty comprehensive but even if it were simple seen the individuals mumble of back says it is not what creates the position of trust it is we believe that our person does i speak we as a society believe that our prison guards or our prison workers whether that's cafeteria worker or what have you it is the job of that everyone at a prison to certain extent to preserve prevent contraband from entering that facility and i would submit that that's not the same and an airport wrong airport security is indeed one of the most important security is especially in light of nine eleven in the wake of a lot of the terrorist attacks that we've seen that have been bad airports is of the highest priority however  that doesn't mean that everyone employed by an airline has the job of preventing things that shouldn't come into an airport from coming into an airport the regulatory scheme even holds that aside from all the  training that if someone violates the security regulations they the department of transportation was tasked with with imposing punishment for that so are we isn't this just different and that we should can siddur the t dig down into it it isn't as rigorous as it seems out i mean they use some fancy language including that as i did was seen the sterile area those sorts of things but when you look at the nuts and bolts of what's required it's actually position of trust is that is that position you know my position your honor in this was just an anticipation of what i expected the government would be arguing is that even if the regulatory you should ask these three questions that we've been talking about is that right yes your honor ok is that consistent with what other circuits other circuits have similar tests where not identical to pardoe a lot of them take into consideration the rubble of professional managerial discretion that the defendant had and that is a part of me part of a test this is especially  just unfounded section three b one point three the sentencing guidelines applies in this case mr does this position as a johnny on the spot and one we can it was characterized by discretion as that term is contemplated by the sentencing guidelines this discretion existed or was made possible with the following factors first mr douglas is training and certification is an airline mechanic secondly his security clearance third is airport operations authority badge and fourth the fat the fact that he was known and trusted by other airport personnel mr goes his position essentially quote him from suspicious meeting as he moved through the airport unaccompanied without challenge the record shows that on least five occasions douglas was not scheduled to work he was able to smuggle cocaine past security into the terminal and then on board an airplane there's absolutely no evidence that mr douglas was ever questioned or scrutinized for being at work when he was not supposed to be there and there him that he had ever been challenge your question for being at the airport on days he was scheduled to be off the discretion made possible when mr douglas says access was an integral if not indispensable component of his job mr hood was to come and go as  pleased and when he pleased at the airport he could move through the airport alone without a supervisor monitoring where he went or what he did when he got there the record also documents that there were at least eight occasions when mr douglas was supposed to be on the improve the bag containing a large amount of cocaine from his locker he would access the terminal via the ramp or the jet bridge mr douglas wood and locate where the corridor was situated sit down next to him placed the bag between them and then returned back to work he can carry large strange bags into the most secure areas of the airport without being challenged and the record shows that each image grange in size from between ten to thirteen here grams now in physical terms that is a large amount of cocaine mr staples says the pride of the bag was capable phony at least for basketballs in this you go this is able to carry these bags into the security area of the terminal forty six different times and in seventeen separate occasions he took his base on to a passenger aircraft with undergoing even the most christian we scream that was was well aware that he was carrying bags on to the planes and he was anything others to do so as well although he had been told that the substance and pain in the bags was cocaine there is no evidence that he the bags or the contents because they had not delivered to him the package with mr staples again this is only possible the fact that mr douglas that mechanics and mr douglas's decision were trusted with unsupervised access always at the airport and i'm prepared to answer the court's questions at this point thank you mr ryder yes sure we give the sentencing guidelines commentary the same high agreed deference that we gave to the ministr substantial discretion or judgment that is ordinarily getting considerable deference but what is it about mr douglas his job that would fit with what you've just  professional degree so to speak such as a law degree or a medical debate that's not in the record as well but there are discretionary aspects concerning mr douglas's job i think that could be left as is almost state the fact of professionalism as that this how is he different if he is different from a bank teller who's got access to money because he's a mechanic who happens to have access or severe bank tellers are subject to daily scrutiny  you're dealing with the circuit authority of the but the circuit administrator you know that is a position that is forged by traditional professional and managerial discretion i mean he or you would have to consider in that case we're talking about someone who has a professional degree you know what is the how does the discretion factor into the the theft coming earlier the you agree that the hypothetical questions and your answers to them suggest that is context matters most  with that in my piece the government that is seeking the enhancement here and therefore we're it's the government with the burden and the government that has to develop the allow the determination that was made by the district court i would agree that the record could be stronger ah you know it would be as i as i read the record these individuals are charged with conducting minor repairs while the airport is still while your plane was still within the operating area of the airport that is the tarmac right by the jet bridge  that if a problem occurred that they had the discretion to deal with that problem is they saw fit you're back to access right here you're just talking about access you said a few minutes ago the difference between the mechanic in the bank teller is that the bank teller is supervised and a mechanic like mr douglass isn't but doesn't the guideline ask us that question whether a person has supervisory authority not whether they were the logical connection there supervisor can exercise discretion and i think that here we have individuals who are able to supervise and fitted to exercise discretion as well it is out there yes search because if we go back to the nature of the discussion here when you talk about contacts in access i wonder if you're not conflating the first and second prong in the sense that the commentary seems to broke was done when it was done me maintaining the list in terms of the job duties there it doesn't appear that there is a professional or managerial judgment or discretion been exercised rather there don't really have additional guidance in commentary two and that is that the commission has already carved out a couple exceptions where folks don't decision in this matter and that is the fact that the commission has created exceptions to this position of trust sensing skin but that airports have been excluded from that  purposes i would suggest that when you look at the type of relationships that the guidelines are found to apply to those typically as you said involve areas in which the talking about it's an area where a doctor abuses the trust of his patient that patient relies on the discretion and when judgment made by that doctor and deciding what course of treatment to undergo the trustee places the trust the know if i d adds i would say that it's not a blanket that it's not a blanket sentiment to say that they could not apply this in the answer to that individual i think you'd have to wi looking at me the facts i think the facts deciding what and