please the court just google offer dana miller your honors and the limited time available to me today i would like to focus on the first issue the abuse a position of trust adjustment this case is about commissions and tend to punish more culpable behavior appropriately and today's issue is resolved there is straightforward application of this court's decision and united states versus all listen there are three reasons why the district court clearly erred in this court should remand for recent saying first there is no evidence on this record that dana miller's position involves professional or managerial discretion second limited supervision without more is insufficient for an adjustment under three b one point three and third there is no evidence that dana miller had any substantial education or training to warrant the adjustment as a special skill turning to my first point the abuse a position of trust and now it's this is a two prong test first the court determines whether the defendant occupied a position of trust and if that is true the court goes on to determine whether the defendant used that position to facilitate the commission or concealment of the office in defining a position of trust it's important to start with the plain tax of the guidelines the commentary to three b one point three states that a position of trust is characterized by professional or managerial discretion that is substantial discretionary judgment that is ordinarily given considerable deference also before we get to the guideline calculation i understand that it was with the enhancements that you're here today about it was fifty one to sixty three months under the guidelines with the district judge sentenced a thirty three month upward variance to ninety nine months is that correct ninety six months you're ninety six months and you're not appealing be upward variance is that right just two enhancements in the calculation correct on oka your honour's this court in all this and expanded on the meaning of professional or managerial discretion within the position of trust and hands meant and this court held that the colloquial understanding of a position of trust is that an employee that is that trusted to do their job and not to steal is not what isn't compassed under three b one point three rather position of trust is a term of art but that's a local definition is exactly what the district court adopted in this case we can see from page one hundred thirty of the record it stated in the p s r miller was known as a trusted employee which allowed this scheme to continue for twenty one months but that reasoning was directly rejected by this court and allison this court explained that professional or managerial discretion means complex situation specific decision making circumstances we do not think the enhancement should apply to a secretary who made a prize charges on a credit card that was issued to twelve hundred other employees austins fraud is the modern day equivalent of an ordinary bank toe to toe or who was pope for in money from the till now don't you think i mean isn't it reasonable to say that the district court thought the ms miller who's the payroll supervisor or the you know the principle check writing person and her company is in a much more responsible position than someone with a corporate credit card no your honor and we can see that from the record in this case on page one twenty one where it lists the job responsibilities of miss miller she was the accounts payable clerk and her primary duties included inputting data into the computer printing checks bringing them to her supervisor to review and sign and then copying those checks to send to the bank and all reviewed what was that reviewed as to amounts or as to vendors or to everything or seems like she had this went on for a period of some twenty over twenty months to the tune of over a couple million dollars if i'm fact that nowhere in this record does it state that dana miller had the discretion over any of her job functions she had specific duties that she was required to do including inputting data printing the checks and sending them to the bank but there is no evidence that she had that complex situation specific decision making that she made decisions that others would defer to if you did it for bona fide vendors who either sold materials or provided services wasn't it part of her job to receive invoices and prepare checks to pay those with whom the company did business it was your honor but in one of them was a fictitious payee and in the form correct that's correct but that does not indicate discretion for example dana miller did not have the right to decide what vendors to use to miller did not have the right to decide how much to pay those vendors she had specific clerical duties that did not rise to the level of the substantial discretionary judgment that this court required in our lives and now the defendant and allison did have some discretionary function she had this company credit card that she was allowed to make purchases on in certain categories for the school district and then she abused that by making personal purchases but this court noted that limited purchasing authority cannot be described as substantial discretionary judgment and in further delineating this distinction between professional or managerial discretion and positions that don't have it this court heavily quoted from and embrace the raising of the d c circuit case united states versus ten and ten the job functions of that defendant were directly quoted by court and allison and they are almost identical to that of miss miller i'm tan was an office manager and she managed the expenditures prepared checks her signature maintained a computerized check ledger and reconciled monthly statements with that and we can see in page one twenty one of the record that that is almost identical to what ms miller did but the d c circuit noted that because there were no findings of discretion by the district court nothing indicated that she had the right to make these judgment calls that was not guidelines so the main focus of this court in brown i was on that limited supervision of the defendant in that case and that is still relevant to the analysis but because there is no explanation or consideration at professional managerial discretion  so each of these cases the facts are always going to be slightly different i would spot you did in tain looks a little closer here but every case is a different point being it's a factual determination so even if to disregard germination doesn't line up exactly like every other case as they typically don't is a straight forward clear determination and i have two reasons to respond to that question first we can see on the record page one thirty that the p s r stated miller was known as a trusted employee and the p s r was adopted by the district court and that particular analysis was rejected by this court and all this and because it had no finding of professional managerial discretion and second we can see on the record page one hundred one at the sentencing hearing that the district court misconstrued aulus and the district court said all this it was more about the second prong whether the person abuse that position to commit or conceal the office but we can see that all this and gives the greatest explanation from this court on the first prong that professional or managerial discretion so because there are no findings on this record no evidence to indicate that ms miller had discretion period in her job much less professional army and interior this is an easy case of clear error that finding is simply not present on this record and the evidence is simply not present turning to my second point the government in the district court focused heavily on the fact that mr biller was not a closely supervised employee and we readily can see that she was not but again this court and all isn't pointed out that lack of supervision is a feature it's an element of a position of trust but it's not the definition and i think it's important to really understand why the guidelines are targeting positions with this professional or managerial discretion as more culpable behavior in this court explain that perfectly in all  stating that positions of trust which involve complex situations specific decision making are given considerable deference precisely because they are so hard to oversee they cannot be dictated by were monitored against established protocol so people in these positions are expected to make essentially judgement calls when there may be more than one legitimate course of action and those types of judgment calls those types of decision making are difficult to monitor when compared to non discretionary jobs or person is supposed to complete a specific job functions and this is also evident from the examples given in three b one point three four a position of trust one of which is that an attorney serving as a guardian who embezzles from the client would be abusing a position of trust so that attorney is acting as if it do sherry he's expected to act in the best interests of its client expected to make decisions when there may not be specific answers of exactly what that attorney could do and that is something that we give great deference to and when that particular type of trust is abused that is what the guidelines say parent a two level increase as an abuse a position of trust so there's a specific reason that the guidelines are targeting these types of jobs but we can see from the record that ms miller did not have that type of position there is no evidence of any discretion whatsoever and this court rejected a similar are last year and united states versus ventilating and in that case a postal worker was stealing from the post office and the government argued that because the post office had lax auditing procedures the employee was given the professional discretion to audit himself this court rejected that argument noting that lack of supervision is a necessary but not sufficient basis for imposing the position of trust adjustment so while we of course can see that ms miller was not a closely supervised employee that is only one part of a position of trust and now  this there still has to be that professional or managerial discretion as stated in the plain text of the guidelines and as this court interpreted and all listen turning to my third point there is also no evidence that ms miller had a special skill such that she wore into the adjustment that we can see from the guidelines or if you did in other words in this case and very little of the skill had to do with with being capable of using the company software in order to pay its bills she did learn how to do her job your honor but that would not if that were the case then every employee would be getting this adjustment a letter and certainly not true because her special skill involved the payment of the company's bills your honor the can you know the company doesn't make available to every employee the ability to get into the financial software but you're under the guidelines require evidence of substantial education or training and the examples given are pilots lawyers accountants chemists things that require that extra level of education miss miller didn't learn how to do her job and that was a clerical position but the guidelines are not intended to apply to every employee who learns how to do their job there is a distinguishing point of people who are abusing education or training that most people do not have and we can see impeach one thirty six of the record i know a lot of people who don't have the cation or training i see i'm running low on time to answer your question that's correct your honor a lot of people don't know how to do bookkeeping but that still doesn't rise to the level of substantial education or training under the guidelines anyone who was given ms miller's position would learn to do their job anyone in any position is going to learn to do their job but what the guidelines are targeting is that substantial education or training that the general public doesn't have but if this court were to and apply it here it would mean that any clerk who learned to use the company computer would warrant the adjustment and that would not be in line with the guidelines for it so for those reasons we would ask that this court reverse  please the court guilty or on behalf of the united states now this guideline dispute can be readily result based on the clear error standard of review and the deference this court gives the fact findings of the diff a district court turning to the position of trust and hands with miller fails to show clear error in the district court's finding that she occupied a position of trust because it was not implausible for the district court to find that she exercised substantial discretionary judgment that was given considerable authority to make small purchase and purchases essentially snacks for the office and to do so she was given a company credit card or a pyramid card that was also given to twelve hundred other employees miller in contrast had the authority to verify and report substantial sums of money and she there is no evidence that her authority was given to many other employees nor would it make sense to give her authority to make entries into the accounting books and to tell the bank which checks to pay to many other that she had the authority to represent the company in telling its bank here are legitimate checks pay them when they're presented moreover there was no deference to her decision making if there was any decision making by her in that case because her supervisors were supposed to review the check ledgers and they didn't review the check ledgers and when they did that's how they discovered her fraud is that the argument here is that everything went through the supervisor it was nominal review she wasn't checked no one was checking the background documentation the back of documentation they were deferring to her judgement that there was sufficient documentation to support a certain payment to a certain vendor she had unchecked authority to enter payments into the accounting system based on and you can infer that she was reviewing in voices not only from her position as a count's payable clerk which implied in that is that she's revealing bender and poises but also the fact that her supervisor when he confronted her asked her why pointing to the standard for payments why is there no backup documentation to them which suggests not only that there should have been backup documentation but that she should have been she should know about it and been reviewing it in system where she wrote the fortunate  deferring to her judgement that there was sufficient documentation to support every payment entered into the system no one not her supervisor no one else was checking to make sure there was a visit and documentation and do i understand correctly did she receive paper in voices and then she put those into the system in other words they would deliver the mail to her which constituted the bills you know him obviously a list of the employed payroll but you see what i'm saying she had to process the paper right on and it's not in the record as far as what specifically the documentation looked at and i can tell you if you are interested in knowing not on the record but based on the record it just appear that there's back up documentation that's been supplied supporting the vendor i mean she was responsible for the backup documentation yes for revealing it and that would be the basis for why she's entering a payment into the system that the p s are saying anything about how she could have flagged irregular looking documentation and so well if somebody sent an invoice for a million dollars for something that she didn't think the company you know f she put me accounting system to say this is a vendor payment he's applied on a invoices come from somewhere else right i mean they come to her correct correct i so if a non invoice transaction came to her supervisor said to her if there was insufficient documentation it should have been it should not have been entered into the system in informing the bank which checks the company and issued so as to ensure only legitimate checks would be paid and she explained it both these aspects of her job both her unchecked authority to enter vendor payments into the accounting system and her unsupervised authority to tell the company's which checks it should pay to steal two point two million dollars over the course of twenty one months and she stole it without detection the very fact that she was able to steal so much for so long which should have the fact that she could feel so much an escape detection for so long shows that she could she had way more trust than the typical average ordinary bank teller or hotel clerk and this is especially true here considering that even when the company knew it was losing money and that something was wrong they did not think to check our audit her it wasn't until she exposed herself with her extravagant spending that they went in finally audited her and found that there was not civil supporting documentation for the center for pain and i thought it was the bank that raised the question it was the owners who they kept losing money and they didn't know why they couldn't figure it out and they they'd they then they started becoming suspicious of her and her cars that she was coming in her plastic surgery and they're wondering have a hard time with restitution yes anyway kerio counsel so miller's case is much more like the craft which can distinguish in which the defendants admitted purchase false purchase orders which were accepted without question and her case is much makers because they have first hand knowledge of the facts based on document review and that's exactly what miller was here she was a lower level decision maker with firsthand knowledge of the facts based on her view of the invoices and the company deferred to her  her for twenty one months despite significant losses so based on that record and based on the deference accorded to the district court's fact finding she cannot show possible she cannot show clear error in the district court's finding now turning that there is no question here that dana miller committed a crime there's no question that she's still a considerable amount of money and there's no question that that loss of mouth was included in her guidelines but the issue here is whether she mee the definition of holding a position of trust and what you have not heard from the government is anything about professional or managerial discretion what we've heard from the government is that she took a lot of money and she wasn't supervised but that is exactly what this court rejected and all listen and then only this court specifically noted that a lack of supervision is not sufficient her position of trust we still have to start with step one professional or managerial discretion now the government has noted that she had some discretion or some authority to make representations to the bank but we can see exactly what that was on page one twenty one of the record she printed the checks took them to her manager to review and sign made copies of the checks that her manager signed and sent that to the bank in no way she acting as if you do sheri on the behalf of the company rather she is following specific steps as she is expected to do and that is not indicating that she has authority over those checks considering that she wasn't allowed to sign them was not allowed to determine which vendors to use was not allowed to determine how much to make how much to pay those vendors there is a distinction here based on that professional or managerial discretion that we have to go back to the plain text of the guidelines for your honour's this is this  often still go on for twenty one months and the government is using that to suggest that that must be because she had authority or discretion but that still needs to be supported by the record the facts of this case were undisputed at the district court her job responsibilities were undisputed as being if i had to an invoice into the company or saying and i wanted some money and i'm just a devious fearne party you're saying she would have had to write a check no your honor i'm saying that if she flags something like that that is not evidence of substantial discretionary judgment a is because otherwise you know if it turned out it was a legitimate charge and he's holding a payment could interfere with company really friends with third parties your honor this court it was their lawyers  kings to me because all she was supposed to do was purchase a few office supplies with her business credit card she was supposed to purchase office supplies and arrange catering events as noted in the opinion choose caterers and noted professional or managerial discretion in this court find that complex situations pacific decision making that is given considerable deference so if miss miller had some small decision making authority that is not sufficient under this court's analysis and allison but the record here has no evidence that she had decision making authority and in fact when we objected at the district court the government came back and we can see on page one fifty three in the record they did not point to any decision making authority they did not point to any substantial discretionary judgment and in fact conceded that it was a close call so with the facts on this case clear air is obvious here there has to be a finding of substantial discretionary judgment that is given great deference that is completely lacking in this case the lack of supervision on its own as this court explained it allison is not sufficient this court should start with the plain text of the guidelines professional or managerial discretion and as court explained in oleson by starting t and an office manager who is responsible for managing some expenditures is not sufficient there must be that finding discretion and that is