F I L E D

United States Court of Appeals

Tenth Circuit

JAN 20 1998

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff - Appellee,

v. No. 97-2030

DARRYL D. BURT, 

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. CR-96-529-SC)

Stephen P. McCue, Assistant Federal Public Defender, Albuquerque, New Mexico, for

Defendant-Appellant.

Miles Hansee, Assistant U. S. Attorney (John J. Kelly, United States Attorney, and

Charles L. Barth, Assistant U. S. Attorney, on the brief), District of New Mexico,

Albuquerque, New Mexico, for Plaintiff-Appellee.

___________________________

Before PORFILIO, McKAY, and BRISCOE, Circuit Judges.

___________________________

McKAY, Circuit Judge.

___________________________
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Mr. Darryl D. Burt, Defendant, appeals the sentence imposed by the United States

District Court for the District of New Mexico for the offense of possession with intent to

distribute less than 500 grams of cocaine. Defendant appeals the district court’s two-level

increase for abuse of a position of trust or special skill pursuant to United States

Sentencing Guideline § 3B1.3 and its denial of his request for a sentence concurrent with

an undischarged state sentence he was serving.

U.S.S.G. § 3B1.3 provides a sentence enhancement for the abuse of a position of

trust or the use of a special skill which “significantly facilitated the commission or

concealment of [an] offense.” U.S.S.G. § 3B1.3. For Defendant to be subject to the

enhancement, the court must find two things: (1) Defendant possessed a special skill or a

position of trust; and (2) Defendant used that skill or abused that position to significantly

facilitate the commission or concealment of the offense. 

We cannot uphold the section 3B1.3 enhancement on the ground of abuse of a

position of trust because the record contains no evidence to support the conclusion that

Defendant used his position as an officer to significantly facilitate the commission or

concealment of the crime. The mere fact that Defendant was a suspended deputy sheriff

is insufficient to trigger application of section 3B1.3 without an adequate showing that

Defendant abused that position to significantly facilitate the crime. See United States v.

Gould, 983 F.2d 92, 94 (7th Cir. 1993) (Status as “police officer cannot, in and of itself,

trigger the application of section 3B1.3.”). Although it is clear and understandable that
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the judge was upset that a suspended officer would resort to dealing drugs, it was

improper to apply the enhancement solely because Defendant once occupied a position of

trust. The enhancement could apply only if Defendant used his officer position to

significantly facilitate the commission or concealment of the crime underlying this case. 

The record lacks the requisite evidence to support the enhancement on the ground of

abuse of a position of trust. 

At the sentencing hearing, the district judge did not mention any special skills as a

basis for the section 3B1.3 enhancement he applied, and he appeared to base his

enhancement decision solely on Defendant’s status as a suspended deputy sheriff. 

However, the presentence report mentioned both grounds for the section 3B1.3

enhancement in an indiscriminate fashion. Because the court adopted the presentence

report, the government urges us to uphold the enhancement on the basis of special skills

despite the trial judge’s silence on the subject. Accordingly, we will consider whether the

record supports a section 3B1.3 enhancement for the use of a special skill. 

We begin with the first prong of the section 3B1.3 inquiry: whether Defendant

possessed special skills within the meaning of the guideline. We review the district

court’s factual findings for clear error, and the legal meaning of the term “special skill”

we determine de novo. See United States v. Williamson, 53 F.3d 1500, 1525 (10th Cir.

1995); United States v. Lambert, 995 F.2d 1006, 1008 (10th Cir. 1993). At the

sentencing hearing, the government urged the court to apply the section 3B1.3
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enhancement because Defendant possessed the special skills of a drug dealer such as

knowing how to conceal cocaine in a stash can. We must answer the question of whether

such tricks of the trade of drug dealing qualify Defendant for a section 3B1.3

enhancement.

The section 3B1.3 commentary explains that “‘[s]pecial skill’ refers to a skill not

possessed by members of the general public and usually requiring substantial education,

training or licensing. Examples would include pilots, lawyers, doctors, accountants,

chemists, and demolition experts.” U.S.S.G. § 3B1.3, comment. (n. 2). Although

formalized education, training, or licensing is usually necessary to trigger the

enhancement, we have held that special skills can be derived from experience or from

self-teaching. See United States v. Gandy, 36 F.3d 912, 914 (10th Cir. 1994). The

government insists that Defendant learned his “special skills” through his work in

narcotics investigation. We hold that regardless of whether Defendant learned his drugdealing tricks through his work as a deputy sheriff or through self-teaching, tricks such as

concealing drugs in a can with a false bottom do not qualify as “special skills” within the

meaning of the guidelines.

Such drug-dealing “skills” cannot reasonably be equated with the skills developed

and possessed by “pilots, lawyers, doctors, accountants, chemists and demolition

experts.” U.S.S.G. § 3B1.3, comment. (n. 2). The interpretation of “special skills” that

the government urges would make all drug-dealing tricks “special skills” and make
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anyone caught dealing drugs subject to the enhancement. The Sentencing Commission

did not intend such a result. See United States v. Young, 932 F.2d 1510, 1513 (D.C. Cir.

1991). To apply a section 3B1.3 enhancement, the skill “must be more than the mere

ability to commit the offense.” Id. As explained by the D.C. Circuit in United States v.

Young, “Nothing in the commentary suggests that § 3B1.3 applies to a criminal who, like

appellant, bones up on the tricks of his trade and becomes adept at committing a crime

that the general public does not know how to commit.” Id. at 1514; accord United States

v. Harper, 33 F.3d 1143, 1152 (9th Cir. 1994).

Our decision comports with the decisions of other circuits addressing the

applicability of the special skills enhancement to drug activities. See United States v.

Mainard, 5 F.3d 404, 406 (9th Cir. 1993) (holding that mere fact that defendant had

sophisticated ability to manufacture methamphetamine, absent showing that he had

abused preexisting legitimate skill, could not be basis for special skill enhancement);

Young, 932 F.2d at 1512-13 (reversing a special skills enhancement based on the

defendant’s ability to manufacture PCP). Although Defendant might have developed a

talent for dealing drugs, “the mere exercise of that criminal skill could not call down

application of section 3B1.3.” Mainard, 5 F.3d at 407. 

Drug-dealing skills that exhibit no specialized knowledge beyond that typically

possessed by any individual involved in drug dealing will not support a section 3B1.3

enhancement. However, we do not dismiss the possibility that the knowledge Defendant
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had of the narcotics agents in the area, the surveillance techniques those agents employed,

and the methods the agents used to orchestrate controlled “buys” by informants may

qualify as “special skills.” The government argues that this specialized knowledge made

concealment of the offense significantly easier. Such special skills of detection learned

through narcotics investigation work may, in some cases, be sufficient for application of

section 3B1.3. In this case we do not decide that issue because the second prong required

for the enhancement, the use of those skills to significantly facilitate the commission or

concealment of the offense, cannot be met on these facts. There is no evidence in the

record to support a finding that Defendant actually used his knowledge of narcotics

detection techniques to significantly facilitate the concealment of his crime. Quite the

contrary, the evidence in the record is that rather than attempting to conceal his crime,

when law enforcement officers knocked at his door, he directed them to the garage to

search his car for the cocaine. Without the requisite connection between the crime and

Defendant’s special knowledge, the section 3B1.3 enhancement for use of a special skill

cannot be affirmed. Therefore, we vacate the sentence imposed by the district court with

directions to resentence Defendant without the U.S.S.G. § 3B1.3 enhancement.

We review the district court’s order that Defendant’s sentence run consecutive to

the undischarged state sentence for an abuse of discretion. See United States v. Williams,

46 F.3d 57, 58 (10th Cir. 1995). The district court applied the correct sentencing

guideline, U.S.S.G. § 5G1.3(c), without clear error in its analysis under that guideline. 
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Contrary to Defendant’s assertions, the district court should not have applied U.S.S.G. §

5G1.3(b) instead of § 5G1.3(c). U.S.S.G. § 5G1.3(b) is inapplicable because the state

offenses were not “fully taken into account in the determination of the offense level for

the instant offense.” U.S.S.G. § 5G1.3(b). Therefore, we affirm the district court’s

decision to require that the sentences run consecutively.

The district court’s decision to impose a consecutive sentence is AFFIRMED, but

we VACATE the sentence and REMAND for resentencing without the U.S.S.G. § 3B1.3

enhancement.