United States v. Bartleson (74 F. Supp. 3d 947, 2015)

MEMORANDUM OPINION AND ORDER REGARDING ABUSE-OF-TRUST ENHANCEMENT

MARK W. BENNETT, District Judge.

TABLE OF CONTENTS

/. INTRODUCTION........................................................950

II. FACTUAL BACKGROUND...............................................955

A. Undisputed Facts ...................................................955

B. Disputed Facts......................................................956

C. Admissibility of the Department of Labor Report.......................958

1. Standard for Admissibility of Evidence at Sentenciny..........-.....959

2. Case Law on “Sufficient Indicia of Reliability”.....................959

3. DOL Report has “Sufficient Indicia of Reliability”.................962

III. DISCUSSION...........................................................963

A. Standard for Abuse-of-Trust Enhancement............................963

B. Parties’ Aryuments as to Abuse-of-Trust Enhancement.................964

C. Analysis Reyardiny Abuse-of-Trust Enhancement.....................966

1. Bartleson Occupied a Position of Private Trust.....................966

2. Bartleson’s Position Facilitated the Commission and Concealment of the Embezzlement...............................970

3. Enhancement Would Not Cause Double Countiny...................973

4. Application of Note 5 of the Sentenciny Guidelines under U.S.S.G. § 3B1.3 ...............................................975

a. First Clause of Note 5........................................976

b. Second Clause of Note 5.......................................979

D. Restitution .........................................................983

1. Restitution Should Include Lost Investment Earninys and Tax Liabilities.....................................................984

2. Payment Schedule for Restitution.................................988

IV. CONCLUSION..........................................................990

V. APPENDIX.............................................................991

I. INTRODUCTION

In this criminal sentencing of a corporate vice president,'who embezzled money from thirteen employees’ retirement accounts, one of the fighting issues is whether he abused a position of trust. An insightful philosophical work entitled Trust and Antitrust focuses on the risks of bestowing trust upon another. The author, Annette Baier, is a moral philosopher and an eminent scholar on the phenomenon of “trust.” According to Baier, “Trust ... is accepted vulnerability.” Trust at 235. Baier’s conception of trust is informative and contributes to my discussion on the abuse-of-trust enhancement under United States Sentencing Guideline (U.S.S.G.) § 3B1.3. The abuse-of-trust enhancement is the primary focus of this memorandum opinion and order.

Baier’s oft-cited article begins with the assertion that the “great moral philosophers,” ie., Plato and Aristotle, have not written much on the issue of trust. Id. at 232-33. “[W]hat we find can scarcely be said to be even a sketch of a moral theory of trust.” Id. at 232. Other “great philosophers,” ie., Saint Thomas Aquinas, John Locke, and Thomas Hobbes, “have given explicit attention” to “some forms of trust,” e.g., trust in God, governments and officials, and contracts and contractors, respectively. Id. at 233. Baier continues: “It is selective attention then, rather than total inattention, which is the philosophical phenomenon on which I wish to remark, tentatively to explain, and try to terminate or at least to interrupt.” Id.

Advancing the philosophical dialogue on trust, Baier asserts that trust is a particular kind of reliance: “Trust ... is reliance on another’s good will.” Id. at 234. Baier’s theory of trust involves reliance on the good will of a trustee, and therefore, the truster takes certain risks when relying on the trustee’s good will:

Where one depends on another’s good will, one is necessarily vulnerable to the limits of that good will. One leaves others an opportunity to harm one when one trusts, and also shows one’s confidence that they -will not take it. Reasonable trust will require good grounds for' such confidence in another’s good will, or at least the absence of good grounds for expecting their ill will or indifference. Trust, then, on this first approximation, is accepted vulnerability to another’s possible but not expected ill will (or lack of good will) toward one.

Id. at 235 (emphasis added). Stated another way, when we trust others we accept that we are vulnerable to harm by others. Yet, we believe — and are confident — those we trust will not harm us, even though there is the “opportunity to harm.” Id. To paraphrase Baier, the question then becomes: why do we put ourselves (or “the things we most value”) in vulnerable positions for others to harm? Id. at 236. Her answer is simply that “we need [others’] help in creating, and then in not merely guarding but looking after the things we most value.” Id. “[S]o,” in Baier’s words, “we have no choice but to allow others to be in a position to harm [the things we most value].” Id.

For Baier, trust implicates varying degrees of discretion. “When we are trusted,” writes Baier, “we are relied upon to realize what it is for whose care we have some discretionary responsibility, and normal people can pick up the cues that indicate the limits of what is entrusted.” Id. 236. For example, a babysitter, who is hired to care for a child while the child’s parents are temporarily away from their home, goes outside his “discretionary responsibility” and acts in “an untrustworthy way” by painting the child’s- nursery purple because, in his mind, the change would be an improvement. Id.

The more discretion the truster gives to a trustee, the more vulnerable the truster becomes. This is because, as Baier explains, by entrusting “discretionary powers” to a trustee, a truster “risks abuse of [the discretionary powers] and the successful disguise of such abuse.” Id. at 239. Baier offers helpful examples in her article to clarify this assertion: we trust surgeons and plumbers to use their discretion “to put right what is wrong.” Id. However, surgeons and plumbers may abuse their discretion by performing acts “incompetently, negligently, or deliberately against our interests,” and “they may conceal” these bad acts • “by pretense” that the abuse took place because of “an honest and well-meaning exercise of the discretion given to them.” Id. at 239-40. As a consequence, the surgeon or plumber “may retain our trust” while having the “opportunity to harm us yet further.” Id. at 240.

Not surprisingly, discretion plays a prominent role in the ease law applying the abuse-of-trust enhancement under U.S.S.G. § 3B1.3. Whether the abuse-of-trust enhancement applies at sentencing for a defendant “turns on the nature of the defendant’s position and amount of discretion and control relative to the victim, not whether the victim subjectively trusted the defendant.” See Miell, 661 F.3d at 999. “The abuse of trust enhancement applies only where the offender has abused, discretionary authority entrusted to the defendant by the victim.” United States v. Erhart, 415 F.3d 965, 972 (8th Cir.2005) (emphasis added).

The Commentary of the Sentencing Guidelines clarifies the distinction between persons in positions of private trust and those that are not: “Persons holding such positions [of private trust] ordinarily are subject to significantly less supervision than employees whose responsibilities are primarily non-discretionary in nature.” U.S.S.G. § 3B1.3 cmt. (n. 1) (emphasis added). While the word “supervision” is nowhere to be found in Baier’s article, and the concept of supervision is only implicit in her analysis of trust, the degree of one’s supervision is essential to determining the applicability of the abuse-of-trust enhancement. See U.S.S.G. § 3B1.3. The law seems to account for the inverse relationship between “supervision” and “discretion.” By enhancing a defendant’s sentence when a defendant is afforded greater trust — that is, more discretionary authority and less supervision — and he abuses that trust, the law recognizes the increased vulnerability of the victim, which is highlighted in Baier’s work, and the defendant’s increased culpability.

This case involves the abuse of trust of the employees of Bartleson Masonry, Inc. (Bartleson Masonry) and the concealment of such abuse that occurred in 2006, 2007, and 2008. The employees of Bartleson Masonry relied on the good will of a longtime employer and friend. That employer, the Defendant, Anthony Bartleson (Bartleson), had discretionary authority and control over the management of the employees’ SIMPLE Individual Retirement Account (IRA) plan (the Plan), and he was not subjected to supervision in his roles as co-owner, Vice President, Secretary, and Treasurer. Taking advantage of his lack of supervision, Bartleson betrayed his employees’ trust. More specifically, Bartleson took advantage of his employees’ trust by withholding money from the Plan. Once he stole the employees’ money, Bartleson used the money for the company’s and his own benefit. Analogous to Baier’s example of the surgeon and plumber, Bartleson later concealed his acts — acts performed deliberately against his employees’ interests — under the guise that the acts were an honest and well-meaning exercise of his discretion and authority to keep the company financially afloat.

In this opinion, I address the sentence and restitution I ordered for Bartleson on February 6, 2015. I confront two issues in particular: (1) whether to apply the probation office’s and prosecution’s recommended additional two-level upward adjustment based on Bartleson’s alleged abuse of a position of private trust under U.S.S.G. § 3B1.3; and (2) whether Bar-tleson’s criminal restitution order, pursuant to the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A, shall also include the thirteen employees’ lost investment earnings and tax liabilities incurred in 2007, in addition to the $41,878.22 already paid to the government by Bartle-son.

II. FACTUAL BACKGROUND

A. Undisputed Facts

The facts below are undisputed and taken from the sentencing record. In 1995, Bartleson and his brother, Stephen Bartle-son, incorporated Bartleson Masonry in Iowa. The company conducted business in Forest City, Iowa. It provided masonry services, and specialized in brick and block work. Bartleson’s brother served as the President, and Bartleson was Vice President, Secretary, and Treasurer. Bartleson and his brother were the only two incorpo-rators, shareholders, and directors of Bar-tleson Masonry. Bartleson had signatory ' authority on the company’s bank accounts and handled payroll.

In 1997, Bartleson Masonry established and sponsored a SIMPLE IRA plan through the American Funds Group (American Funds). The Plan allowed employees to make tax-free contributions through a salary deferral arrangement, and the Plan was subject to title I of the Employee Retirement Income Security Act of 1974. In establishing the Plan, Bartleson Masonry promised to match employee contributions up to three percent of the employee’s compensation for the calendar year. In the beginning, Bartleson regularly deposited employer and employee contributions to the Plan. However, between March 2006 and March 2008, Bar-tleson withheld money from the pay of thirteen employees while performing his payroll responsibilities for the company.

Instead of forwarding the employees’ withheld pay to the IRA fund manager to deposit the funds into each respective employee’s investment account, Bartleson retained the money in Bartleson Masonry’s bank account. Then, Bartleson used the employees’ withholdings to pay for the company’s operating expenses and to benefit Bartleson and others. Bartleson also failed to give the three-percent matching contribution from the company as promised. In total, Bartleson embezzled $25,979.71 from thirteen employees’ paychecks that were not forwarded to American Funds, and he failed to pay $15,898.51 in employer matching contributions.

The Department of Labor (DOL) began its investigation of the Plan on March 10, 2008. In 2013, the United States Attorney’s Office (USAO) for the Northern District of Iowa notified Bartleson that the USAO planned to seek an indictment against him. On May 5, 2014, Bartleson appeared before United States Magistrate Judge Leonard T. Strand. That day, Bar-tleson pleaded guilty to one count of a one-count Information. Count 1 charged Theft or Embezzlement From Employee Benefit Plan,' in violation of 18 U.S.C. § 664. On May 6, 2014, I formally accepted Bartle-son’s plea.

B. Disputed Facts

I will initially consider the contested facts in Bartleson’s Presentence Investigation Report (PSIR) (docket no. 19) and his revised PSIR (docket no. 29), which includes the Department of Labor Report (DOL Report) (docket no. 29-1). Both the PSIR and DOL Report indicate that Bartleson and his wife, brother, and father wrote checks on the company’s- checking account and used the company’s credit cards for personal use. See PSIR ¶ 9; see also DOL Report at 8. Spending company funds, the Bartlesons allegedly paid for phone bills; credit card payments; golf outings; and department store, pharmacy, and salon expenses. The family purchased season tickets to football games. The Bar-tlesons also paid for travel with company funds: the family went on trips to visit their children in college and Bartleson’s father in Missouri, and they stayed at resorts in Punta Cana, Dominican Republic; Montego Bay, Jamaica; and Cancún, Mexico, and some local resorts. The DOL report notes that the Bartlesons even had timeshares in Cancún, Mexico, and Jason Thompson alleged that the Bartlesons owned homes in Mexico.

While under investigation by the DOL, the Bartleson brothers informed a DOL investigator that they, at times, did not receive paychecks in order to keep the company operating. Yet, their W-2 statements “[did] not indicate a decrease in wages for years 2006 and 2007.” DOL Report at 7. While their 2008 W-2 statements indicated a decrease in wages, the “Company’s bank records and credit cards disclosed personal benefit [for the Bartle-sons].” Id. The Bartlesons also continued to receive salaries during the same period that the employees’ withdrawals were not forwarded to the Plan.

In addition, according to the DOL Report, the Bartlesons and the company have significant tax liens filed by the Iowa Department of Revenue and the Internal Revenue Service against them. Id. at 10. Bartleson also did not report the employees’ withholdings from their wages as deferred income in 2007, or identify the Plan on the 2007 W-2 forms. Rather, the employees’ contributions were considered earned income for tax purposes. Thus, not only did the employees “realize a loss to their SIMPLE IRA account” because, their payroll deferrals were not forwarded to the Plan, but they also suffered taxes “for income they did not receive.” Id. at 11.

In response, Bartleson takes issue with the PSIR and the DOL Report and allegations that the employees’ withheld wages “were used to personally benefit the Bar-tlesons” and that the company’s “accounts and credit cards were used primarily for personal use.” Defendant’s Supplemental Objections To Revised Presentence Investigation Report (docket no. 30), 1. According to Bartleson, the employees’ withheld funds were spent on the company’s operating expenses and kept in the business’s checking account. No evidence supports the PSIR’s allegation that the Bartlesons used the funds primarily for personal expenses, says Bartleson. Bartleson furthers this claim in his brief objecting to the revised PSIR and DOL Report:

Any small family-owned company that operates for over a decade, as Bartleson Masonry did, likely will have paid some expenses that benefited its owners. But that information certainly does not support the DOL Report’s inferences that all company expenses over a three-year period were to personally benefit the owners and that the company accounts were used primarily for personal use.

Id. 1. Bartleson objects to the report’s “assumptions” that cell phone payments, football tickets, golf outings, and vacations were personal expenses. Id. at 2. Such payments were company-related expenses, and the expenses were used to benefit the employees, too. Additionally, Bartleson objects to the report’s “assertion” that checks sent to Bartleson’s father in Missouri viere for his personal use when the home provided lodging for employees of the company when they worked on projects in Missouri. Id. The home was also offered to the employees as a place to vacation. In a footnote, Bartleson concedes that whether some of the business expenditures were “prudent business decisions is easy to question in hindsight”— namely, the Minnesota Vikings tickets, golf outings, and vacations. Id. at 2 n. 1.

In Bartleson’s most recently filed brief, he also “objects to the truth of the statements attributed to Jason Thompson,” in particular, the allegation that the Bartle-sons owned homes or timeshares in Cancun, Mexico. Id. at 4. “That statement is simply false,” writes Bartleson. Id. Yet, Bartleson does admit to purchasing “a single time share [in Cancún, Mexico] — -for their own benefit and with the idea that their employees could access time share opportunities.” Id. The timeshare no longer has value, according to the Bartle-sons, because they have not paid the annual maintenance fee on the timeshare or used the timeshare for years. Bartleson contends that the DOL Report also overvalues his home’s market value based in part on his outstanding mortgage and overvalues the base price of his two vehi-cíes. Id. at 3. He also disputes the allegation that he and his brother “took ... over” Forest City Improvement Co., but fails to present any evidence to rebut that allegation. Id. at 3.

Additionally, Bartleson takes issue with the DOL Report regarding the W-2’s for Bartleson Masonry employees for 2007. “The Appendix does not contain any of the W-2’s for 2007, and Mr. Bartleson believes that the withholdings from Bartleson Masonry employee paychecks were properly reported on the W-2’s as deferred income in that year.” Id. at 4. Nonetheless, Bartleson’s brief continues: “At a minimum, if Mr. Bartleson failed to correctly report the employee contributions, that error was merely an accident. It was not done knowingly or intentionally.” Id. Bar-tleson also asserts that he and his brother did not owe payroll taxes in their individual capacities at the time the DOL Report was written. Rather, only Bartleson Masonry previously owed payroll taxes. Without citing to any authority or evidence to support the claim, Bartleson added that, as of November 5, 2014, the company’s payroll taxes were “repaid.” Id. at 2.

Finally, Bartleson “objects to the calculation of ‘lost earnings’ in the DOL Report and its exhibits.” Id. at 2-3. According to Bartleson, the report does not explain its calculations nor account for individual statements, plan-wide statements, or historical information regarding the Plan. For Bartleson, the DOL Report is merely a “theoretical loss calculation,” which fails to calculate the “actual lost earnings” of the employees. Id. at 3.

C. Admissibility of the Department of Labor Report

Having reviewed Bartleson’s main objections to the DOL Report above, I now-discuss why it was appropriate for me to admit and consider the DOL Report at Bartleson’s sentencing. As noted above, on October 22, 2014, Bartleson’s PSIR was amended to include a seventy-two page DOL Report. Bartleson filed two briefs with objections. One brief includes objections to factual assertions in the original PSIR (docket no. 17). The other brief incorporates Bartleson’s previously filed objections and provides objections to the DOL Report, which is attached to the revised PSIR (docket no. 30). The prosecution did not file any objections as to the original or revised PSIR.

On December 22, 2014, in advance of Bartleson’s sentencing hearing, I informed the parties in an order that I “tentatively decided to admit and consider the DOL Report at Bartleson’s sentencing hearing, subject to any objections, rebuttals to the reliability of the report, or explanations as to the reports factual assertions.” Order Regarding Department of Labor (DOL) Report (docket no. 31), 4. In that order, in accordance with precedent of the Eighth Circuit Court of Appeals, I held that Bar-tleson would “have the opportunity to ‘rebut or explain’ any disputed factual assertions in the DOL Report at his sentencing hearing.” Id. at 5; see also United States v. Rodriguez-Ramos, 663 F.3d 356, 364 (8th Cir.2011) (“The evidence need not be limited to evidence relating to the scope of the crimes charged and may include uncorroborated hearsay, provided the defendant is given a chance to rebut or explain it.” (quoting United States v. Pratt, 553 F.3d 1165, 1170 (8th Cir.2009))).

I turn to briefly explain why, after considering Bartleson’s objections in his supplemental brief and the evidence and arguments presented at Bartleson’s sentencing hearing, I acted within my discretion to admit, consider, and rely on the DOL Report to sentence Bartleson and order restitution. Following my discussion of the lower standard for admitting and considering evidence at a sentencing hearing, I provide an overview of relevant case law on the kinds of investigative reports that courts have been permitted to consider at sentencings. In the end, I articulate the rationale underlying my decision to consider the DOL report at Bartleson’s sentencing.

1. Standard for Admissibility of Evidence at Sentencing

“The standard of admissibility for evidence at sentencing is different than at trial. A preponderance-of-the-evidence standard applies at sentencing.” United States v. Monroy-Reynoso, No. CR 12-1609, 2012 WL 6632594, *5 (D.N.M. Dec. 13, 2012) (citing United States v. Manatau, 647 F.3d 1048, 1054 n. 2 (10th Cir.2011); United States v. Gomez-Arrellano, 5 F.3d 464, 466 (10th Cir.1993)). Courts have been clear that the “appropriate standard” for admitting evidence at a sentencing “is substantially lower than that governing admissibility at trial.” United States v. McCaskey, 9 F.3d 368, 380 (5th Cir.1993). “Specifically, ‘[i]n resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant evidence without regard to its admissibility under the rules of evidence at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.’-” Id. (emphasis added) (citing U.S.S.G. § 6A1.3(a)); see also United States v. Postel, 524 F.Supp.2d 1120, 1126 n. 4 (N.D.Iowa 2006) (“Hearsay evidence remains admissible in sentencing as long as it bears some indicia of reliability.” (citing United States v. Morin, 437 F.3d 777, 781 (8th Cir.2006))). Evidence that has “sufficient indicia of reliability,” pursuant to U.S.S.G. § 6A1.3, is “ ‘reasonably trustworthy’ in light of ‘the totality of the circumstances.’ ” See United States v. Romano, 89 Fed.Appx. 335, 336 (3d Cir.2004) (unpublished op.) (citing United States v. Paulino, 996 F.2d 1541, 1548 (3d Cir.1993)); see also United States v. Erger, 19 F.3d 24, 1994 WL 47875, *2 (8th Cir. Feb. 18, 1994) (per curiam) (unpublished op.) (“[Ejvidenee is reasonably trustworthy if it has a ‘sufficient indicia of reliability.’ ” (quoting United States v. Simmons, 964 F.2d 763, 776 (8th Cir.1992))).

2. Case Law on “Sufficient Indicia of Reliability”

In Pepper v. United States, the United States Supreme Court explained, “Both Congress and the Sentencing Commission thus expressly preserved the traditional discretion of sentencing courts to ‘conduct an inquiry broad in scope, largely unlimited either as to the kind of information [they] may consider, or the source from which it may come.’ ” 131 S.Ct. at 1240 (quoting United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972)); see also 18 U.S.C. § 3661 (Congress provides that “[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.”). Following Pepper, the Eighth Circuit Court of Appeals, in United States v. Rodriguez-Ramos, further elaborated upon the standard for what a sentencing court is permitted to consider at a defendant’s sentencing hearing:

Sentencing courts have “wide discretion at sentencing as to the kind of information considered or its source.” United States v. Pratt, 553 F.3d 1165, 1170 (8th Cir.2009). A court may consider all relevant evidence at sentencing, regardless of its admissibility under the rules of evidence, provided that the evidence has “sufficient indicia of reliability.” United States v. Ortiz, 636 F.3d 389, 393 (8th Cir.2011). The evidence need not be limited to evidence relating to the scope of the crimes charged and may include “uncorroborated hearsay, provided the defendant is given a chance to rebut or explain it.” United States v. Pratt, 553 F.3d at 1170 (quoting United States v. Atkins, 250 F.3d 1203, 1213 (8th Cir.2001)). “[T]he sentencing process does not carry the same evidentiary protections guaranteed during a criminal trial.” Id. (quoting United States v. Agboola, 417 F.3d 860, 865 (8th Cir.2005)).

663 F.3d at 364. Therefore, to-be clear, a “sentencing court may consider any relevant information,” such as information in a DOL Report regarding the investigation of the defendant’s criminal conduct, as long as “the information has sufficient indicia of reliability to support its probable accuracy.” United States v. Fetlow, 21 F.3d 243, 248 (8th Cir.1994) (emphasis added) (citing United States v. Granados, 962 F.2d 767, 772 (8th Cir.1992)),

Courts have held that information found in investigatory reports meet the standard of having “sufficient indicia of reliability.” For instance, in United States v. Mathews, the Eighth Circuit Court of Appeals affirmed a district court’s decision to admit the government’s laboratory reports at a sentencing hearing where the district court examined and determined that “[the reports] had sufficient indicia of reliability to be admitted for sentencing purposes.” 19 F.3d 1438, 1994 WL 95960, *1 (8th Cir. Mar. 25, 1994) (per curiam) (unpublished op.). According to the appellate court, the results in the report “clearly and consistently identified the type of methamphetamine involved, and were contradicted only by [ ] uncertain testimony [of a co-conspirator and supplier, William Thomas].” Id. For that reason, the appellate court affirmed the district court’s decision to admit the government reports at the defendant’s sentencing.

In addition, in Romano, the defendant, a broker who misappropriated funds from some of his clients, pleaded guilty to mail fraud. 89 Fed.Appx. at 336. There, the Third Circuit Court of Appeals held that the government’s evidence relied upon by the district court at sentencing as to the victims’ monetary losses reported in a revised PSIR, which were higher than the losses in the defendant’s original PSIR and as stipulated to by the parties in the plea agreement, had “sufficient indicia of reliability” as required by U.S.S.G. § 6A1.3. Id. at 337. This is because, according to the appellate court, “The additional losses were described in detail in FBI reports based on victim interviews corroborated by a raft of documents, checks and letters.” Id. The defendant’s sentencing colloquy with his counsel did not reveal that the defendant “wished to present contrary evidence and was denied an opportunity to do so; thus, the requirement of U.S.S.G. § 6A1.3(a) that ‘parties shall be given an adequate opportunity to present information to the court regarding [a disputed sentencing] factor’ was satisfied.” Id. at 336-37.

Although the Federal Rules of Evidence do not apply at sentencing hearings, Fed. R.Evid. 1101(d)(3), it is worth noting that courts have also found Department of Labor reports admissible at trial based on their “trustworthiness” under FRE 803(8). I refer to such case law to identify the analytical factors considered by courts when examining whether a DOL Report is “trustworthy” at trial. Those factors, in part, guide my analysis below that the DOL Report here meets the test of “sufficient indicia of reliability.” See Romano, 89 Fed.Appx. at 336.

3. DOL Report has “Sufficient Indi-cia of Reliability”

In this case, numerous aspects of the report demonstrate the report’s reliability and trustworthiness. First, the report was timely. The investigation occurred during the years 2008, 2009, and 2010, during which time Bartleson concedes that he embezzled funds from his employees. The report was completed and mailed to the USAO on February 22, 2011. Second, the DOL Report has an additional indicium of reliability in that it was prepared by LeeAnn King (King), a trained investigator of the Employee Benefits Security Administration (EBSA) of the DOL. Third, King’s summary of her various interviews and narrative report of events, which implicate Bartleson, are corroborated by the exhibits attached to her report. Such exhibits include, among other things, a description of the conceded to crime that Bartleson committed; the funds withheld in 2006, 2007, and 2008 from the Plan that personally enriched Bartleson; a summary of the intended thirteen employee and employer contributions to the Plan and lost earnings; and the applications for the Plan to American Funds made by Anthony and Stephen Bartleson. Fourth, the report appears to be a final, as opposed to a preliminary or merely internal, draft with conclusions and recommendations made by EBSA’s Criminal Coordinator, Susan Bryars. Together, I found the report to be “detailed and con-vineing” and of sufficient reliability to be used at Bartleson’s sentencing. See United States v. Schlosser, 558 F.3d 736, 740 (8th Cir.2009) (finding “[s]everal aspects of the incident report demónstratele!] sufficient indicia of reliability,” and the police incident report was “quite ‘detailed and convincing,’ ” and concluding that “[the defendant] failed to meet his burden of showing that the district court’s reliance on the incident report during sentencing [rose] to the level of plain error.”)

Nothing in the record suggests that the DOL Report was not made in the regular course of DOL’s investigation, or that she was personally biased or untrustworthy in her investigative tactics. Rather, King was employed by the EBSA at the time she wrote the report. As a trained EBSA investigator, King’s job was to ensure the accuracy of her reporting based on the information discovered by her. Therefore, it is reasonable to assume that King had an interest in ensuring that her investigative report was truthful.

Finally, as noted above, Bartleson had the opportunity to “rebut and explain” the DOL Report’s factual assertions at his sentencing. See Rodriguez-Ramos, 663 F.3d at 364. However, to the extent Bartleson’s objections in his supplemental brief, or the evidence submitted at his sentencing hearing, were meant to weaken the reliability or trustworthiness of the report, I was unpersuaded. Bartleson did not present any evidence to seriously question the veracity of the report. The DOL Report is internally consistent and its description of Bartleson’s criminal conduct is bolstered by the above-noted corroborating materials that accompany the report. Thus, below I rely on certain factual assertions in the DOL Report to address the issues presented in this case.

III. DISCUSSION

The key issues I confront below are: (1) whether Bartleson abused a position of private trust under U.S.S.G. § 3B1.3 as an owner and officer of Bartleson Masonry; and (2) whether to order Bartleson to pay restitution for the investment earnings and tax liabilities incurred by the thirteen employees under the MVRA, 18 U.S.C. § 3663A, in addition to the $41,878.22 Bar-tleson has already paid.

A. Standard for Abuse-of-Trust Enhancement

“If a defendant abuses a position of public or private trust in a manner that significantly facilitates his offense, then the Guideline’s offense calculation should be increased by two levels.” Erhart, 415 F.3d at 972 (citing U.S.S.G. § 3B1.3). “Whether the defendant may occupy a position of trust is a question of law; if so, whether [he] did is a question of fact.” United States v. Gilbert, 721 F.3d 1000, 1007 (8th Cir.2013) (quoting United States v. Hayes, 574 F.3d 460, 478 (8th Cir.2009)). “[T]he issue is fact intensive because it turns on the precise relationship between the defendant and her victim and therefore cannot be decided on the basis of generalities such as ‘lawyers and doctors occupy positions of trust but bank tellers and insurance agents do not.’ ” United States v. Baker, 200 F.3d 558, 564 (8th Cir.2000).

The prosecution must prove three facts before the abuse-of-trust enhancement applies: (1) the defendant was in a position of private trust; (2) the defendant abused the position in a manner that significantly facilitated the commission or concealment of the offense; and (3) an abuse of trust is not included in the base offense level or a specific offense characteristic. See United States v. Waldner, 564 F.Supp.2d 911, 936 (N.D.Iowa 2008) (citing U.S.S.G. § 3B1.3) (applied two-level enhancement for abuse of a position of private trust because three facts presented: (1) defendant was CEO and sole owner of company with substantial discretionary judgment and control over company’s operations and little to no supervision; (2) defendant used position of private trust to effectuate and conceal payments to insider corporations and his position gave him the authority to move funds and order others to move funds without questioning his illicit motives; and (3) defendant’s abuse of trust was not included in the defendant’s base offense level or a specific offense characteristic where the defendant pleaded guilty to two counts of making a false statement in relation to a bankruptcy proceeding, in violation pf 18 U.S.C. § 152(3)). Below, I address whether the prosecution proved the same three facts discussed in Waldner, following which I analyze the applicability of the Sentencing Guidelines’ Commentary, Note 5, under § 3B1.3.

B. Parties’ Arguments as to Abuse-of-Trust Enhancement

The arguments below are drawn from the parties’ sentencing memorandums and Bartleson’s two briefs objecting to the original and revised PSIR. In Bartleson’s brief objecting to the original PSIR, he argues, “There is no factual basis for applying the position-of-trust adjustment in this case.” Defendant’s Objections To Presentence Report (docket no. 17), 2. Citing. to U.S.S.G. § 3B1.1, Bartleson contends that he did not occupy a position of trust in relation to the victims, i.e., the company’s employees. Bartleson notes that a position of private trust is “characterized by professional or managerial discretion,” and suggests he had no such discretion. Id.

Bartleson argues that he was not appointed to hold any position of trust by the employees of Bartleson Masonry. Rather, he argues that he was a mere “bookkeeper in a small construction company.” Id. Bartleson argues that, as a bookkeeper, his position “did not involve any professional or managerial discretion with respect to the IRA contributions.” Id. In his reply brief to the prosecution’s sentencing memorandum, Bartleson contends that his “duty to transfer money to the IRA plan” is parallel to the “bank teller’s duty to transfer money to the correct account.” Defendant’s Reply To Government’s Memorandum Regarding Sentencing (docket no. 23), 1-2. Although he had a responsibility to transfer the employees’ IRA contributions to the IRA plan in his position, he “did not exercise any discretion vis-a-vis the IRA plan,” such as how much the employees gave to the plan, or “what funds were purchased with the IRA contributions.” Id. at 2. Rather, Bartleson argues, his responsibility with respect to the Plan was “purely ministerial.” Id.

Bartleson also argues that his position did not significantly contribute to facilitating the commission or concealment of the offense. Citing to a case written by the Third Circuit Court of Appeals, Bartleson asserts that the abuse-of-trust enhancement “is primarily aimed at positions that provide ‘freedom to commit a difficult-to-detect wrong.’” Defendant’s Objections To Presentence Report at 3 (citing United States v. Lieberman, 971 F.2d 989, 993 (3d Cir.1992)). In doing so, he implies that his position did not provide such freedom. This is because the employees had access to their IRAs, and “they could presumably see on IRA statements whether contributions were being made.” Id. Bartleson goes so far as to say that he “was open with his employees about the status of the IRA contributions and his plans to make up any missed contributions.” Id. Finally, Bartleson contends that, if I apply the abuse-of-trust enhancement, I will improperly duplicate his base offense level because his “base offense level already accounts for the nature of his relationship with the victims.” Id. at 4.

In reply, the prosecution contends that Bartleson occupied a position of trust with respect to his victims because he was co-owner, Vice President, Secretary, and Treasurer of Bartleson Masonry, “had managerial discretion,” and “was essentially free from supervision.” Government’s Brief In Support Of Its Memorandum Regarding Sentencing (docket no. 20-1), 4. “His position of trust was enhanced by having signature authority on the company’s bank accounts and by being the individual who handled payroll.” Id. The prosecution further argues that trust inhered in the relationship because the employees trusted Bartleson to pay them and forward the money they elected to withhold to the Plan. According to the prosecution, the relationship between Bartleson and his employees was “akin to a fiduciary relationship.” Id.

It is immaterial, the prosecution suggests, that the employees did not appoint or authorize Bartleson to hold a position of trust. This is because § 3B1.3 only requires that Bartleson occupy a position of trust, not that the victims of the offense “appointed or authorized” him to hold the position. Id. at 4-5. Based on the responsibility Bartleson held at the company and the lack of oversight of Bartleson’s actions, the prosecution argues that Bar-tleson was much more than a mere bookkeeper. Moreover, in his various roles, “no one lookfed] over [Bartleson’s] shoulder to ensure he was handling the money.” Id. at 5. Because Bartleson was in a position where no one monitored his forwarding of the IRA withholdings, the prosecution argues, “he had the discretion, the ability, to not do so for years without getting caught.” Id.

In addition, the prosecution contends that Bartleson’s “position of trust significantly facilitated his commission and concealment of the offense of embezzlement.” Id. at 6. This is because Bartleson’s various positions enabled him to have the opportunity to access and embezzle the IRA funds, and conceal his embezzlement. No employees at the company provided oversight of Bartleson’s actions or the company’s finances to ensure Bartleson was contributing money to the Plan. Contrary to what Bartleson suggests, the prosecution contends that the abuse-of-trust enhancement does not require a person in a position of private trust “to conceal the offense from everyone, only that it significantly facilitate concealment,” which occurred here. Id. at 6-7. Lastly, the prosecution argues that a two-level increase for abuse of a position of trust is not duplicative “because the base offense level in this case does not account for defendant’s abuse of his position in the company”; rather, it only accounts for him committing a fraud. Id. at 7.

C. Analysis Regarding Abuse-of-Trust Enhancement

1. Bartleson Occupied a Position of Private Trust

Any job constitutes a position of trust in some sense, but “the guideline definition requires something more than a mere employment relationship to warrant an upward adjustment.” United States v. Brelsford, 982 F.2d 269, 271 (8th Cir.1992). The Commentary to Sentencing Guideline § 3B1.3 defines a position of private trust as a position that is:

characterized by professional or managerial discretion (i.e., 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.

U.S.S.G. § 3B1.3, cmt. (n. 1). As noted above, the Eighth Circuit Court of Appeals has explained that “[w]hether a defendant holds a position of trust with respect to a victim ... turns on the nature of the defendant’s position and amount of discretion and control relative to the victim, not whether the victim subjectively trusted the defendant.” Miell, 661 F.3d at 999.

In Brelsford, the Eighth Circuit Court of Appeals affirmed a district court’s decision to increase the defendant’s offense level two points for abuse of a position of private trust. 982 F.2d at 272. In that case, the appellate court reasoned that when considering whether a person occupies a position of private trust, “[t]he relevant inquiry under the guidelines is whether trust is inherent to the nature of the position.” Id. (citing United States v. Claymore, 978 F.2d 421, 423 (8th Cir.1992)). In reaching the decision that the defendant occupied a position of private trust, the court noted that the defendant “was not an ordinary [bank] teller; she was a [bank] teller supervisor.” Id. The defendant monitored other tellers, and the bank trusted the defendant “to review the daily reports, to conduct regular audits, to assign the teller drawers, and to safeguard the keys to idle teller drawers.” Id. “The fact that' no one looked over her shoulder is itself evidence that she held a position of trust.” Id. Thus, the appellate court affirmed the district court’s conclusion that the defendant held a position of private trust. Id.

Here, Bartleson was in a position of private trust by virtue of being a co-owner of Bartleson Masonry and serving as Vice President, Secretary, and Treasurer. Bartleson also obtained a college degree in accounting, and, as Treasurer, he was trusted to accurately account for the finances of Bartleson Masonry and payroll. He also had signatory authority on the company’s bank accounts. Like the defendant in Brelsford, the record reflects that trust inhered in the relationship between Bartleson and the employees because of his responsibilities at the company. For example, the employees of Bartleson Masonry trusted Bartleson to forward the employees’ contributions to the Plan. Bartleson was also responsible for making decisions regarding corporate disbursements. He had substantial managerial discretion over the employees’ IRA funds because, much like a professional trustee or fiduciary, he was in charge of forwarding the funds to a plan manager. Therefore, contrary to Bartleson’s claim, he was no mere bookkeeper.

In addition, as indicated in the PSIR, Bartleson was only subject to supervision (if at all) by his brother, who was the President of the company. Bartleson was subject to far less supervision than the company’s lower-ranked employees. It is also not unreasonable to assume that Bartleson’s personal relationship with many of the employees also led to the employees putting more trust in Bartleson than they would have in a stranger, which also resulted in less supervision and more autonomy for Bartleson. Influenced by the reasoning of the Eighth Circuit Court of Appeals in Brelsford, I find “[t]he fact that no one looked over [Bartleson’s] shoulder is itself evidence that [he] held a position of trust.” See Brelsford, 982 F.2d at 272. In his position of trust, Bartleson withheld the employees’ pay distributions from the Plan for years, and presumably, the illegal conduct would have continued had the crimes not been discovered by one employee, Jason Thompson. Therefore, because trust inhered in Bartleson’s relationship, his position carried with it supervisory authority, and he had considerable deference, Bartleson occupied a position of private trust within the meaning of section 3B1.3. See U.S.S.G. § 3B1.3.

Bartleson’s attempt to analogize his po-. sition to that of a “bank teller,” merely transferring money to the correct accounts, fails. Bartleson’s embezzlement, in his position at Bartleson Masonry, is distinct from the “embezzlement ... by an ordinary bank teller or hotel ■ clerk” to .which this adjustment does not apply. See U.S.S.G. § 3B1.3 cmt. (n. 1). The Commentary for the Sentencing Guidelines reads:

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. It is true that Bartleson’s position gave him direct access to large amounts of money, like a bank teller’s or hotel clerk’s position. However, as Treasurer, Bartle-son was in charge of the company’s banking and budget preparations, and he had authority to write company checks for payroll, use the company’s credit card, and withhold employees’ pay for the Plan.

Furthermore, Bartleson was not supervised. His position afforded him substantially more discretion and subjected'him to limited oversight, which, as discussed below, contributed in a significant way to facilitating and concealing his embezzlement. For these reasons, Bartleson’s case “differs significantly from that of the ‘ordinary bank teller or hotel clerk’ who is subject to penny-for-penny accounting at the end of each day.” See United States v. Allen, 201 F.3d 163, 166-67 (2d Cir.2000) (applying abuse of trust enhancement and distinguishing defendant’s case from an “ordinary bank teller or hotel clerk” where defendant had markedly similar “ ‘broad responsibilities’ ” to Bartleson and was not subjected to “regular or direct supervision”); see also Valenti, 60 F.3d at 947 (finding defendant’s position, which was akin to Bartleson’s position, “bore little resemblance to ‘the tight accounting controls that restrict a bank teller.’ ” (quoting United States v. Melendez, 41 F.3d 797, 799 (2d Cir.1994))).

Bartleson’s other argument — ie., he was not in a position of trust because he was not granted discretionary authority or authorized to do anything — is also unpersuasive. 415 F.3d at 972. In Erhart, the defendant argued that “because he was not granted discretionary authority by the victim insurers, he was not afforded a ‘professional’ level of authority.” Id. In affirming the district court’s determination that the defendant did, in fact, abuse a position of trust, the Eighth Circuit Court of Appeals reasoned that “Erhart was a licensed chiropractor and, as such, he exercised substantial discretion in preparing and submitting bills and treatment notes.” Id. Similarly, trust inhered in Bartleson’s relationship with his employees to prepare and submit regular paychecks to each employee and send their withdrawals to the Plan. Even if the employees, like the insurance companies in Erhart, did not explicitly grant discretionary authority to Bartleson, he had substantial “managerial discretion” over the employees’ funds. Like the defendant in Erhart, he “abused this trust for the specific purpose” of committing embezzlement. Id.

As a final point, Baier’s analysis of trust and her suggestion that the concept of trust implicates varying degrees of discretion in the philosophical realm is useful when analyzing whether Bartleson occupied a position of private trust in the legal realm. Like the plumber, who is trusted and has discretion in repairing pipes, or the surgeon, who is trusted and has discretion in treating an amendable injury by surgical methods, Bartleson was trusted and had discretion over the employees’ funds, the Plan, and the company’s finances. Trust at 239. Bartleson decided when and how the business’s expenses and distributions to the Plan were paid. If I consider their discretion and supervision (or lack thereof) to be equal, here is what differentiates the abuse of trust by a plumber, a surgeon, and Bartlesón: Bar-tleson’s abuse of trust is more morally reprehensive because of his relationship to those that trusted him. For many of the employees, Bartleson not only occupied a position of private trust, he was also their friend.

2. Bartleson’s Position Facilitated the Commission and Concealment of the Embezzlement

“Once the sentencing court has determined that a person occupies a position of private trust, ‘the position of ... trust must have contributed in some significant way to facilitating the commission or concealment of the offense ... ’ before the enhancement -may apply.” Waldner, 580 F.3d at 706 (quoting U.S.S.G. § 3B1.3 cmt. (n. 1)). According to the Guidelines’ Commentary, a position of trust facilitates the commission or concealment of an offense “[b]y making the detection of the offense or the defendant’s responsibility for the offense more difficult.” U.S.S.G. § 3B1.3 cmt. (n. 1).

For instance, in Waldner, my colleague, Chief Judge Linda R. Reade, held that a “[defendant abused his position of private trust in a manner that significantly facilitated the commission and concealment of his offense.” 564 F.Supp.2d at 936. There, the defendant was in a position of private trust as CEO of the company and sole shareholder for a time. “By virtue of his position, Defendant had substantial discretionary judgment.” Id. He micromanaged the company’s affairs; he told its president, “ “You take care of the operation. I’ll take care of the money.’” Id. Chief Judge Reade highlighted that the defendant was “subject to little to no supervision, and in any event,- significantly less supervision than [the company’s] non-discretionary employees.” Id. In his unsupervised position, the defendant “effectuate[d] and conceal[ed][ ] payments to [] insider corporations.” Id. Chief Judge Reade explained that the defendant’s position as CEO “gave him the authority to move funds and order others ... to move funds without questioning his illicit motives.” Id. “Defendant’s position of private trust clearly made the detection of his offense and his responsibility therefore more difficult,” "wrote Chief Judge Reade. Id. (citing United States v. Morris, 18 F.3d 562, 568 (8th Cir.1994)). After articulating why an abuse of trust is not included in the defendant’s base offense level or specific offense characteristics, Chief Judge Reade held that the defendant “should receive a two-level increase, pursuant to U.S.S.G. § 3B1.3, because he abused a position of private trust.” Id.

Likewise, Bartleson’s roles — i.e., as a co-owner and officer with responsibilities over the company’s finances and payroll — contributed to him facilitating his embezzlement and enabled him to escape detection. He was subjected to little to no supervision over moving the company’s finances, handling payroll, or managing the company’s books. All of the payroll was completed in-house by Bartleson, and he maintained the payroll with his own handwritten payroll logs, pay checks, and pay stubs. Like the defendant in Waldner, Bartleson had substantial discretion in his various roles, which made “the detection of his offense and his responsibility” for the embezzlement “more difficult.” Id.

The abuses of his position of trust contributed significantly to the facilitation of both the commission and concealment of Bartleson’s embezzlement. This is because, with his status in the company, his actions were shrouded with a presumption of regularity not afforded others. See United States v. Post, 25 F.3d 599, 601 (8th Cir.1994) (affirming district court’s finding that defendant abused a position of public trust and finding defendant’s “status as a licensed attorney shrouded the [fraudulent insurance] claims with a presumption of regularity, and thus contributed significantly to facilitating the commission of the fraud.”); see also U.S.S.G. § 3B1.3, cmt. (n. 1). As occurred in Wald-ner, no one questioned Bartleson’s “illicit motives” in his position of authority; he was subjected to significantly less supervision than the non-discretionary employees. See Waldner, 580 F.3d at 706. Bartleson was able to make regular withdrawals from the company’s account. He had discretion to use company assets and employees’ wages, which were commingled with company assets, to pay for personal and company expenses. Thus, Bartleson had precisely the kind of discretion articulated in Note 1 of the Commentary section of the Sentencing Guidelines, and it facilitated the commission and concealment of his crimes. See U.S.S.G. § 3B1.3, cmt. (n. 1) (“i.e., substantial discretionary judgment that is ordinarily given considerable deference”).

Like Baier’s surgeon or plumber, who theoretically have the ability to conceal their mistakes or ill-will “by pretense” that their abuse of trust took place because of “an honest and well-meaning exercise of the discretion given to them,” Bartleson concealed his ill-will by the same kind of pretense. Trust at 239-40. Bartleson alleges that he embezzled from the thirteen employees in order to keep the company solvent. To reflect upon Bartleson’s excuse for embezzling from his employees elucidates the “special vulnerability” that, according to Baier, accompanies trust: “[Vjulnerability to not yet noticed harm, or to disguised ill will.” Trust at 239.

For the sake of argument, consider Bartleson’s claim that Bartleson Masonry employees “had access to their IRA accounts,” and the employees “could presumably see on IRA statements whether contributions were being made.” The gravamen of Bartleson’s contention is that his position did not make the detection of or responsibility for the crime more difficult to detect. I disagree with him on two grounds.

First, the record does not support Bar-tleson’s claim that his crime was uncovered by employees. No evidence, at least to which I am made aware by Bartleson, supports the argument that employees could easily detect when contributions were made (or not made) to the Plan. Instead, the DOL Report makes this point clear: one employee, Jason Thompson, discovered Bartleson’s criminal conduct, which initiated the DOL’s investigation on March 10, 2008. DOL Report at 7. Thus, Bartleson’s claim that his embezzlement was not a “difficult-to-detect” crime is negated by the facts.

Second, even if it were the case that the employees had the chance to detect when contributions were made to the Plan, the fact that Bartleson was able to withhold money from thirteen employees in 2006, 2007, and 2008 before getting caught, contradicts any suggestion that the employees were regularly watching the contributions (or lack thereof) to the Plan. See Lieberman, 971 F.2d at 999 (finding district court erred in not applying abuse of position of trust enhancement, reasoning that the fact that the defendant “was able to conduct approximately 36 transactions over more than four years before being caught ... belies any suggestion that the bank was regularly watching over [the defendant’s] handling of the suspense account,” and “[i]t follows that [the defendant] was placed in a position to commit a ‘difficult-to-detect wrong.’ ”)

Similar to the defendant in Lieberman, Bartleson’s position of trust contributed to the commission and concealment of his embezzlement, and he was placed in a position to commit a “difficult-to-detect wrong.” Id. at 994. If the employees had examined Bartleson’s withholdings and transfers of their funds to the Plan more closely, it is likely that Bartleson’s embezzlement would have been discovered sooner. See Erhart, 415 F.3d at 972 (“If the insurance companies had exercised more control over [the defendant], then it is likely the fraud would have been discovered. This fraud continued as it did precisely became the insurance companies trusted [the defendant] and the accuracy of the claims that he supplied them.”). Therefore, like the defendant in Lieberman, Bartleson occupied a position of trust at Bartleson Masonry within the meaning of U.S.S.G. § 3B1.3, and his position of trust contributed in a substantial way to facilitating and concealing his embezzlement from thirteen employees.

3. Enhancement Would Not Cause Double Counting

The enhancement for abuse of trust “may not be employed if an abuse of trust ... is included in the base offense level or specific offense characteristic.” U.S.S.G. § 3B1.3 (emphasis added); see also Waldner, 580 F.3d at 707 (“ ‘[Sentencing courts err when precisely the same aspect of a defendant’s conduct factors into his sentence in two separate ways.’” (quoting United States v. Smith, 516 F.3d 473, 476 (6th Cir.2008))); United States v. Levy, 992 F.2d 1081, 1084 (10th Cir.1993). Citing to Waldner, 580 F.3d at 707, Bartleson argues that “the position of trust enhancement cannot apply to [him] because it would be duplicative with the base offense level.” Defendant’s Objections To Presentence Report at 3. According to Bartleson, all defendants convicted of embezzlement under 18 U.S.C. § 664 will occupy a position of trust. “[I]t is inconceivable that a defendant convicted of embezzlement under § 664 would not qualify for a position of trust enhancement.” Id. Because Bartleson’s “base offense level already accounts for the nature of his relationship with the victims,” Bartleson argues that applying the abuse-of-trust enhancement is “improperly duplicative.” Id.

I do not agree. Double counting did not occur here. As directed by U.S.S.G. § 3B1.3, I considered the base offense level and specific offense characteristics assigned by the guidelines to the crime of conviction. Bartleson was convicted of embezzlement in violation of 18 U.S.C. § 664, assessed a base offense level under U.S.S.G. § 2Bl.l(a)(2), and assessed specific offense characteristics under U.S.S.G. § 2Bl.l(b)(l)(D) and U.S.S.G. § 2B1.1(b)(2)(A)(i). The guideline “does not direct us to the elements of the offense itself.” Levy, 992 F.2d at 1084; see also United States v. Lange, 918 F.2d 707, 710 (8th Cir.1990) (noting “the [underlying criminal] statute does not ... affect the base offense level or specific offense characteristic under the Sentencing Guidelines,” and reversing and remanding defendant’s sentence, finding he should have received a two-level enhancement for abuse of a position of public trust).

Bartleson’s base offense level of six under U.S.S.G. § 2B1.1(a)(2) does not take into account an abuse of trust. See PSIR ¶ 14; see also U.S.S.G. § 2B1.1; Claymore, 978 F.2d at 423 (“If an abuse of trust is so central to the crime that the abuse would be included in the base offense level, the increase under § 3B1.1 is not available.” (citing Lange, 918 F.2d at 708-09)). Nor do the specific offense characteristics listed in § 2B1.1 include abuse of trust.' See U.S.S.G. § 2B1.1; see also Levy, 992 F.2d at 1084. Bartleson was assessed an additional eight points for special offense characteristics. See PSIR ¶ 15-16. Accordingly, at his sentencing, I found Bartlesoris abuse of a position of trust under the Sentencing Guidelines is not incorporated into his base offense level or a specific offense characteristic.

- Finally, “[w]hile embezzlers like [Bartle-son] may indeed breach a duty of trust by fraudulently appropriating the property of another ... an abuse of trust under the Guidelines re