OPINION
Defendanb-Appellant Terry Ann Tatum pleaded guilty to ten counts of bank fraud in violation of 18 U.S.C. § 1344. She appeals the district court’s application of the United States Sentencing Guideline § 3B1.3 sentencing enhancement. Because this Court finds that § 3B1.3 was erroneously applied, we VACATE the sentence and REMAND for resentencing.
I. BACKGROUND
On August 15, 2005, Tatum was indicted on ten counts of bank fraud in violation of 18 U.S.C. § 1344. Tatum accomplished the bank fraud by abusing her position as office manager at MaxxGuard, a family-run business that supplied security guards to businesses. When Tatum started her employment at MaxxGuard in 1993, she was hired as the office secretary. Over time, she worked closely with the head of the company, Frank Lax, Sr., and eventually her duties became more similar to those of an office manager than of a secretary. These duties included standard clerical work, as well as whatever else she was asked by Lax, Sr. to do, such as dispatching scheduled guards to specific locations. Following Frank Lax, Sr.’s death, Frank Lax, Jr. became Tatum’s supervisor, and he terminated her employment in January, 2005 for insubordination.
While office "manager, Tatum had no authority to sign company checks. However, her job responsibilities did include preparing checks to cover outstanding obligations of the company that would be presented for signing to Frank Lax, Sr. and later Frank Lax, Jr. When printing the checks, she had been instructed by Maxx-Guard’s accountant to record the details of the check in one file, to maintain copies of the bank statements as they arrived, and to forward copies of the bank statements but not the cancelled checks to the accountant.
To accomplish her fraud, Tatum simply printed MaxxGuard checks payable in her name, often forging the name of Lax, Sr., and deposited the checks into her personal bank accounts. She maintained copies of the checks, but created fictitious payees on the printed copies that she had been instructed to make. Also, as instructed by *371 the accountant, Tatum maintained the bank statements in a file, at first destroying copies of the returned checks that would have shown her own name as payee upon close inspection, but later filing them as well. These copies of returned checks were not inspected by the accountant because the type was too small for him to read, and thus he did not discover that MaxxGuard was making a large number of payments to Tatum. In this way, Tatum was able to defraud her employer by creating no fewer than 543 fraudulent checks. When confronted with the scheme, Tatum admitted her involvement and maintained that she had since spent all of the embezzled funds.
Tatum entered into a plea agreement with the Government, in which she agreed to plead guilty to ten counts of bank fraud in violation of 18 U.S.C. § 1344 and the Government agreed to dismiss the other counts; she entered her guilty plea on January 11, 2006. At the plea hearing, the district court stated the dollar amount of the fraud, $190,747.13, and informed Tatum that the crime carried “with it a maximum penalty of 30 years, a fine of not more than a million dollars, or both, not more than five years of supervised release, and a mandatory special assessment of $100.” The district court accepted Tatum’s guilty plea and informed Tatum that the sentence would be determined at a later date and would depend on the probation officer’s report, which would include a range of sentences that the court would use as a factor in deciding Tatum’s sentence.
The Probation Officer submitted his Presentence Investigation Report (“PSR”) on February 27, 2006. The PSR detailed the fraud and addressed Tatum’s education and skill level. The PSR included a finding that Tatum received formal education through the tenth grade and had learned various clerical and computer skills through on-the-job training. The PSR also stated that Tatum had worked for numerous employers, including several convenience stores, but that most of these jobs lasted only a few months. The PSR recommended a three-level reduction for acceptance of responsibility, but also a two-level enhancement under § 3B1.3 for abusing a position of private trust. These adjustments resulted in a Guidelines range of 21 to 27 months. The PSR also recommended an order of restitution pursuant to 18 U.S.C. § 3663A in the agreed upon amount of $190,747.13.
Tatum timely filed her objection to the PSR’s recommended application of the § 3B1.3 enhancement, arguing that she had not abused a position of trust and that she had no special skills, as she had only finished the tenth grade. Tatum argued that if the enhancement did not apply, the resulting Guidelines range would be 15 to 21 months. Tatum additionally argued that given the several months she had already served, a sentence of probation would be appropriate for the remainder of her sentence.
The district court considered the PSR and Tatum’s objections at the sentencing hearing held on June 5, 2007. The court ultimately found that the enhancement was proper and sentenced Tatum at the bottom of the recommended Guidelines range: 21 months with credit for 7 months served, for a total of 14 months. The court explained its decision to apply the enhancement:
It’s my judgment that even though Ms. Tatum didn’t have any special education, she did, in fact, have special skills. From her years of work as a bookkeeper or an office manager, she developed special skills related to the check procedure.
*372 Based upon the way this office ran, as I understand it, Ms. Tatum was the only person who could have accomplished such a scheme. And it appears to the court to be, clearly, an abuse of a position of private trust. She was given the trust of Mr. Lax, Sr., and ultimately Mr. Lax, Jr., to run the office, to write the checks — to generate the checks, and to keep up with the accounting end of the checks; and she abused that position of trust.
In addition, she admitted to forging some of these checks, then destroying the checks when they were returned by the bank.
This clearly was an abuse of a position of trust, so the probation officer has appropriately enhanced the base offense level by two levels.
The defendant appeals her sentence, contesting the application of the § 3B 1.3 enhancement.
II. ANALYSIS
A. Standard of Review
When determining whether the § 3B 1.3 enhancement has been properly applied, this Court “review[s] a district court’s legal conclusions regarding the Sentencing Guidelines de novo and a district court’s factual findings in applying the Sentencing Guidelines for clear error. We apply de novo review to the district court’s interpretation of the Guidelines.”
United States v. Kaminski,
B. Definition of the Enhancement
Section 3B 1.3 of the United States Sentencing Guidelines, titled “Abuse of Position of Trust or Use of Special Skill,” states in full:
If the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels. This adjustment may not be employed if an abuse of trust or skill is included in the base offense level or specific offense characteristic. If this adjustment is based upon an abuse of a position of trust, it may be employed in addition to an adjustment under § 3B 1.1 (Aggravating Role); if this adjustment is based solely on the use of a special skill, it may not be employed in addition to an adjustment under § 3B1.1 (Aggravating Role).
U.S.S.G. § 3B1.3 (2005) (emphasis in original).
The relevant explanation for the definition of “public or private trust” is found in the Guidelines Manual at Note 1:
Definition of “Public or Private Trust”. — “Public or private trust” refers to a position of public or private trust characterized by professional or managerial discretion (ie., substantial discretionary judgment that is ordinarily given considerable deference). Persons holding such positions ordinarily are subject to significantly less supervision than employees whose responsibilities are primarily non-discretionary in nature. For this adjustment to apply, the position of public or private trust must have contributed in some significant way to facilitating the commission or concealment of the offense (e.g., by making the detection of the offense or the defendant’s responsibility for the offense more diffi *373 cult). This adjustment, for example, applies in the case of an embezzlement of a client’s funds by an attorney serving as a guardian, a bank executive’s fraudulent loan scheme, or the criminal sexual abuse of a patient by a physician under the guise of an examination. This adjustment does not apply in the case of an embezzlement or theft by an ordinary bank teller or hotel clerk because such positions are not characterized by the above-described factors.
Id. § 3B 1.3 n. 1.
The relevant explanation of “special skill” is found in the Guidelines Manual at Note 3:
“Special 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.
Id. § 3B 1.3 n. 3.
C. Tatum Did Not Occupy a Position of Trust
When this Court determines whether an individual occupies a position of trust, we focus on the relationship between the defendant and the victim of the crime. That is, we have “previously indicated that the rationale for the sentencing enhancement at issue here is virtually analogous to the type of punishment routinely administered for violating a fiduciary duty, which involves a higher duty than is placed upon persons that do not occupy positions of trust.”
United States v. Gilliam,
Our precedent has made clear that application of the enhancement is appropriate where the position occupied by the defendant involved considerable discretion and authority.
See, e.g., United States v. Smith,
That Tatum’s position was not a position of trust becomes even more clear upon a review of those cases in which this Court has approved of the application of an enhancement to employees diverting funds through the use of checking accounts. This Court has only applied the enhancement to situations in which the defendant had actual check-writing authority, and it has only done so in cases where the defendant’s overall position involved substantially more discretion and authority than that of an office manager.
See e.g., United States v. Madison,
Tatum functioned as a regular employee of the company, not as a fiduciary-like employee. “The rationale for the sentencing enhancement is akin to punishment for violating a fiduciary duty, a higher duty than the ordinary one placed on all employees and breached by conversion. The trust relationship arises when a person or organization intentionally makes himself or itself vulnerable to someone in a particular position, ceding to the other’s presumed better judgment some control over their affairs.”
United States v. Brogan,
The Government and the district court rely upon
United States v. Allison,
Moreover, were we to address the issue, we would reject Allison’s claim because she occupied a position of trust that allowed her to alter checks and conceal her actions. Allison was the last [] employee to handle the checks after they were signed, the first [ ] employee to examine the cancelled checks after the bank returned them to the company, and the person responsible for reconciling [the] checking account. Indeed, it is highly unlikely that anybody else at Provident could have committed, and concealed, this crime. Accordingly, the district court properly determined that Allison abused a position of trust.
Id. at 46. Thus, the Allison Court disposed of the case based on its finding that Allison had waived her right to appeal and had knowingly and voluntarily accepted the enhancement in her plea bargain. However, this statement is dictum and is in conflict with this Court’s approach to the § 3B1.3 enhancement. Accordingly, Allison is inapposite.
D. Tatum Did Not Possess Special Skills
There is no evidence that Tatum possessed “special skills” as the term is defined for purposes of § 3B 1.3, and the Government does not argue for an enhancement on this basis. Nonetheless, the district court stated that Tatum utilized special skills because:
[E]ven though Ms. Tatum didn’t have any special education, she did, in fact, have special skills. From her years of work as a bookkeeper or an office manager, she developed special skills related to the check procedure.
However, special skills are those that are not possessed by the general public, and the application notes to the Guidelines limit the skill set to those “usually requiring substantial education, training or licensing.” U.S.S.G. § 3B1.3 n. 4.
See also United States v. Wilson,
III. CONCLUSION
For the preceding reasons, we find that the § 3B1.3 enhancement was erroneously applied and therefore VACATE Tatum’s sentence and REMAND for resentencing.