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Federal Crimes Sentencing Guidelines USSG 3B1.3 "Special Skill"

In Berry, the Tenth Circuit issued a logic-defying federal crimes decision which held that a defendant's possession of a commercial driving license qualified as a "special skill" within the meaning of federal sentencing guidelines section 3B1.3; and it affirmed the use of a two-level sentencing enhancement on the defendant -- a commercial truck driver caught with drugs in his truck -- even though the Application Notes refer to the specialized skills of people such as "pilots, lawyers, doctors, accountants, chemists and demolition experts."

The federal crimes defendant in this case, Norman Washington Berry, a commercial truck driver, was stopped at the Gallup, New Mexico port of entry driving his tractor-trailer. He told the authorities that he was transporting cantaloupe melons from Phoenix, Arizona to Massachusetts -- but an ensuing safety inspection of the vehicle showed that, buried under the cantaloupe melons, were eight unmarked boxes containing thirty-three bundles of marijuana wrapped in tin-foil that weighed more than 100 kilograms. Berry was arrested, indicted for possession with intent to distribute 100 kilograms or more of marijuana, and ultimately tried and convicted on that charge. He was sentenced to 97 months in prison - a sentence that included a two-level enhancement under § 3B1.3 for using a special skill -- namely, commercial truck driving -- to facilitate the commission of the offense.

Application Note 4 to § 3B1.3 reads as follows: "'Special skill' refers to a skill not possessed by members of the general public and usually requires substantial education, training or licensing. Examples would include pilots, lawyers, doctors, accountants, chemists, and demolition experts."

Both Berry's Federal Attorney and the Probation Officer opposed the use of the § 3B1.3 enhancement. The Probation Officer noted that a CDL"is granted to anyone who passes a written and driving test and pays the required fees"; whereas Berry claimed that such minimal training "cannot be equated with the training necessary to become a pilot, lawyer, doctor, accountant, chemist or demolition expert."

The district court rejected those arguments and applied the two-level enhancement, concluding that Berry had used his CDL in a manner that significantly facilitated the commission or concealment of the offense.

"We have yet to address the issue, but the Seventh and Ninth Circuits have concluded the skill necessary to operate a commercial tractor-trailer is a 'special skill' under U.S.S.G. §3B1.3. . . . We agree with these courts, at least as applied to these facts. While an individual may be able to obtain a CDL merely by taking a written and driving test and paying the necessary fee, Berry received his CDL after a year of truck-driving school and on-the-job training. This training is small potatoes when compared to the training necessary to become a pilot, lawyer, doctor, accountant, chemist or demolition expert—the professions listed in the application note to the guideline. But the listed professions are mere examples of 'special skills'; they are by no means an exhaustive list. Moreover, a defendant need not complete formalized educational or licensing requirements to possess a special skill; it can also come from experience or self-teaching. Here, Berry not only had a year of training, he also had almost five years of truck-driving experience at the time of the offense."

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