United States Court of Appeals

For the Eighth Circuit 

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No. 23-2550

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United States of America

 Plaintiff - Appellee

v.

Kendra Kingsbury

 Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri

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Submitted: April 8, 2024

Filed: July 15, 2024

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Before SMITH, WOLLMAN, and GRASZ, Circuit Judges. 

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GRASZ, Circuit Judge.

Kendra Kingsbury was a Federal Bureau of Investigations (FBI) Intelligence 

Analyst who had access to classified national defense information. She pled guilty 

to two counts of willful retention of national defense information in violation of 
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18 U.S.C. § 793(e). At sentencing, the district court1 applied a two-level 

enhancement under the United States Sentencing Guidelines Manual (U.S.S.G. or 

Guidelines) § 3B1.3 for abusing a position of public trust in a manner that 

significantly facilitated the commission or concealment of the offense. After 

applying the enhancement, Kingsbury’s advisory Guidelines range was 46 to 57 

months of imprisonment, and the district court sentenced Kingsbury to 46 months. 

Kingsbury appeals the application of the enhancement to her sentence. 

I. Background

 

In 2004, Kingsbury began working for the FBI as an Intelligence Analyst. In 

that role, the FBI granted her Top Secret/Sensitive Compartmented Information

(SCI) security clearance,

2 which provided her with access to classified information 

and sensitive government materials concerning national defense. During her 

employment, the FBI gave Kingsbury annual training on how to properly handle 

classified information. She signed various employment agreements acknowledging 

both the importance of properly handling the classified information and the 

repercussions for mishandling it. 

In 2017, Kingsbury told an FBI security officer that she had classified 

documents within her home. The security officer went with Kingsbury to her home 

to recover the classified documents. On entering her home, Kingsbury gave a yellow 

envelope to the security officer containing confidential documents. While there, the 

security officer noticed other FBI documents in Kingsbury’s bathroom. The security 

1

The Honorable Stephen R. Bough, United States District Judge for the

Western District of Missouri. 

2

“Top Secret” classification is given to information that “reasonably could be 

expected to cause exceptionally grave damage to the national security” in the event 

of unauthorized disclosure. Exec. Order No. 13526, 75 Fed. Reg. 707 (2009). SCI 

designates that some information requires additional security clearance or 

permissions. 28 C.F.R. § 17.18 (2007).
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officer and Kingsbury then sorted through those documents and identified additional 

classified materials. 

 

The FBI conducted two more searches of Kingsbury’s home, and it also 

searched her workspace at the Kansas City field office. In total, the FBI located 

some 20,000 documents originating from the FBI or other government agencies, of 

which 386 were classified. Several of these documents related to the FBI’s 

counterterrorist investigations. After examining Kingsbury’s home and cellular 

phone records, the FBI discovered several calls were made to and received by 

suspects in those counterterrorism investigations, including a suspected associate of 

Osama Bin Laden. Kingsbury denied making these phone calls. 

Based on Kingsbury’s unlawful retention of the documents, she pled guilty to 

two counts of willful retention of national defense information in violation of 18 

U.S.C. § 793(e). At sentencing, the district court applied a two-level enhancement 

under U.S.S.G. § 3B1.3 for Kingsbury abusing a position of public trust, resulting 

in a total offense level of 23. The application of this enhancement increased 

Kingsbury’s Guidelines range from 37–46 months of imprisonment to 46–57 months

of imprisonment. The district court ultimately sentenced Kingsbury to 46 months of 

imprisonment, the very bottom of the Guidelines range and well below the statutory 

maximum sentence of ten years of imprisonment. See 18 U.S.C. § 793. Kingsbury 

appeals her sentence. 

II. Analysis

Kingsbury appeals the district court’s application of the § 3B1.3 enhancement, 

arguing the enhancement is already subsumed within the base offense level. 

Because Kingsbury did not object to the enhancement at sentencing, we review the 

district court’s ruling for plain error. See United States v. Williams, 30 F.4th 796, 

799 (8th Cir. 2022). Under that standard, we will reverse only when a defendant 

shows “(1) error, (2) that is plain, (3) that affects substantial rights, and (4) that 

seriously affects the fairness, integrity, or public reputation of judicial proceedings.” 
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Id. (cleaned up) (quoting United States v. Harrell, 982 F.3d 1137, 1140 (8th Cir. 

2020)). “Satisfying all four prongs of the plain error test ‘is difficult’[,]” Greer v. 

United States, 593 U.S. 503, 508 (2021) (quoting Puckett v. United States, 556 U.S. 

129, 135 (2009)), as we will only reverse if the other three prongs are met and the

error “seriously affects the fairness, integrity or public reputation of judicial 

proceedings[,]” Puckett, 556 U.S. at 135 (cleaned up) (quoting United States v. 

Atkinson, 297 U.S. 157, 160 (1936)). 

The § 3B1.3 enhancement applies “[i]f the defendant abused a position of 

public or private trust . . . in a manner that significantly facilitated the commission 

or concealment of the offense . . . .” When the sentencing court determines that a 

person occupies a position of public trust—which Kingsbury conceded she does—it 

must then determine whether the position of trust “contributed in some significant 

way to facilitating the commission or concealment of the offense . . . .” United States 

v. Waldner, 580 F.3d 699, 706 (8th Cir. 2009) (ellipses in original) (quoting U.S.S.G. 

§ 3B1.3, cmt. n.1). But § 3B1.3 also contains a “carve out” provision, which 

precludes the enhancement “if an abuse of trust or skill is included in the base offense 

level or specific offense characteristic.” Id. (quoting § 3B1.3). Kingsbury argues 

the carve out provision applies to her because she would not have been able to obtain 

the FBI documents without her position of trust as an Intelligence Analyst within the 

FBI. According to her, because her position of trust was “inextricably interwoven 

and central” to the commission of her crime, her “abuse of trust” is already included 

in her base offense level. We disagree.

In support of her argument, Kingsbury claims that precedent requires us to 

examine her specific conduct in committing her crime to determine whether she 

could have committed her crime but-for her abuse of a position of public trust. If 

not, then the enhancement cannot apply. But this is a strained reading of our 

precedent. We have never suggested that courts should look to a defendant’s specific 

means of committing a crime, only applying the enhancement’s carve out provision 

if she abused a position of public trust in committing her crime. We do not find 

Kingsbury’s argument persuasive.
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In United States v. Baker, we said the enhancement does not apply “if ‘an 

abuse of trust is so central to a defendant’s crime that the abuse would be included’ 

in calculating that crime’s base offense level.” 82 F.3d 273, 277 (8th Cir. 1996)

(emphasis added) (cleaned up) (quoting United States v. Claymore, 977 F.2d 421, 

423 (8th Cir. 1992)). Kingbury claims this court looks to whether the abuse of trust 

was “central” to a defendant’s crime. But Kingsbury omits the second half of the 

quoted rule; we must ask whether the abuse of trust “‘would be included’ in 

calculating that crime’s base offense level.” Id. (quoting Claymore, 978 F.2d at 

423). She then claims Baker demands a “fact intensive inquiry” into a defendant’s 

specific conduct before applying the enhancement. This, too, is pulled out of 

context. The “fact intensive inquiry” language refers to Baker’s specific issue of 

whether the district court erred in double counting the defendant’s conduct by adding 

both an abuse-of-trust enhancement and a substantial-interference-withthe-administration-of-justice enhancement. See id. at 278. Kingsbury does not 

allege there is a double-counting issue in her case, so we look only to whether the 

enhancement is “duplicative” of Kingsbury’s “base offense level or specific offense 

characteristic.” Waldner, 580 F.3d at 707.

Indeed, we rejected a similar argument in United States v. O’Hagan, 139 F.3d 

641, 656 (8th Cir. 1998). In that case, O’Hagan, a senior partner at his law firm, was 

privy to a client’s financial dealings and used this insider information to make money

trading stocks. Id. at 645–46. He was subsequently convicted of securities fraud, 

money laundering, and mail fraud. Id. at 646. He argued he should not have 

received an abuse-of-trust enhancement “because an abuse of trust is already 

included in the offense of securities fraud itself under the misappropriation theory.” 

Id. at 656. We upheld application of the enhancement, agreeing with the district 

court that “a secretary or other employee at [the firm] could have breached a duty to 

the firm and violated the securities laws under the misappropriation theory without

abusing a position of special trust.” Id. (emphasis added). Because O’Hagan was a 

senior partner at the firm, “[he] occupied the position of special trust the application 

note envisions.” Id. Therefore, we affirmed the application of the enhancement, 

even though his position of trust was endemic to his role as a senior partner. Id. 
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Likewise, Kingsbury had Top Secret/SCI security clearance because of her 

position in the FBI. Though her security clearance allowed her access to classified 

documents, another FBI employee—one without the same clearance—could also 

have unlawfully obtained the same classified documents. In that scenario, the 

employee could be convicted of the same crime as Kingsbury, receive the same base 

offense level as Kingsbury, but potentially avoid any enhancement because that 

employee lacked security clearance. In contrast, Kingsbury conceded she occupied 

a position of public trust not included in her base offense level. Thus, she fails to 

show error, let alone plain error. 

III. Conclusion

We affirm the district court. 

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