Digest of Opinion
Defendant Justin Petersen pleaded guilty to various charges in four criminal cases. Several of the counts to which he pleaded involved the use of computers. For example, evidence showed that he "hacked" into credit reporting services to obtain information, ordered fraudulent credit cards with the information, and made charges on the fraudulent credit cards. Evidence also showed that he gained unauthorized access to a telephone company's computers, seized the telephone lines of a radio station, and used a computer program to "rig" radio station promotional contests. After being granted bail pending sentencing on these charges, he also hacked into a financial company's computer and executed a wire transfer of funds from the company.
In sentencing Petersen, the district court imposed a two-level upward adjustment under federal Sentencing Guidelines Section 3B1.3 for "use[] [of] a special skill." Although Petersen has not had formal training in computers, the district court reasoned that he "obviously has an extraordinary knowledge of how computers work and how information is stored, how information is retrieved, and how the security of those systems can be preserved or invaded" and that "even if he can't create programs, he could certainly work in the security end of the computer business." On the basis of these findings, the district court determined that Petersen's computer abilities constituted a "special skill" within the meaning of Section 3B1.3.
Section 3B1.3 provides for an offense-level enhancement 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." The commentary to Section 3B1.3 defines "special skill" as "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." The commentary adds that the "adjustment applies to persons who abuse their positions of trust or their special skills to facilitate significantly the commission or concealment of a crime. Such persons generally are viewed as more culpable."
We have construed Section 3B1.3 as requiring that the defendant employ a "pre-existing, legitimate skill not possessed by the general public" in the commission or concealment of the crime, U.S. v. Green, 962 F.2d 938, 944 (CA 9 1992), quoting U.S. v. Young, 932 F.2d 1510, 1513 (CA DC 1991)). The enhancement applies "if the special skill made it significantly easier for the defendant to commit or conceal the crime," U.S. v. Mainard, 5 F.3d 404, 405, 54 CrL 1023 (CA 9 1993); it is not enough that the offense "was difficult to commit or required a special skill to complete," Green, 962 F.2d at 944.
We conclude that the district court did not err in determining that Petersen's computer abilities support a special skill enhancement. As the district court found, Petersen is skilled at accessing and manipulating computer systems. These skills are of a high level and not possessed by members of the general public. Although the guidelines provide that special skills "usually" require substantial education, training or licensing, such education, training or licensing is not an absolute prerequisite for a special skill adjustment. Despite Petersen's lack of formal training or licensing, his sophisticated computer skills reasonably can be equated to the skills possessed by pilots, lawyers, chemists, and demolition experts for purposes of Section 3B1.3. See U.S. v. Mendoza, 78 F.3d 460, 465 (CA 9 1996) (defendant's ability to drive an 18-wheeler without any reported mishap over several years warrants a special skill adjustment).
Petersen clearly "used" his computer skills in the commission of the crimes to which he pleaded guilty. By enabling him to break into sophisticated computer systems, place wire taps on phones, and transfer large sums of money between banks, Petersen's computer skills "facilitated" his ability to commit the series of crimes.
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It is a closer question whether Petersen's computer abilities constitute "legitimate" skills within the meaning of Section 3B1.3. ... While the district court properly concluded that Petersen's computer hacking skills could be transferred to legitimate use in the future, such as work in the security end of the computer industry, that does not necessarily mean that Petersen possessed a pre-existing legitimate skill. The Background Note's explanation that people who abuse their special skills are subject to an upward adjustment because they are generally viewed as more culpable suggest an intent to apply the adjustment to someone such as an experienced, successful computer programmer who turns to crime rather than, say, a thief who might be able to transfer his knowledge of alarm systems to legitimate work as a security expert in the future. ... Petersen's self-taught computer knowledge was not the result of "special societal investment and encouragement [that] allows a person to acquire skills that are then held in a kind of trust for all of us." Mainard, 5 F.3d at 406. But a special skill also may be acquired without social investment, a skill that enables one to victimize others more effectively than one who does not possess the skill, so a greater deterrent may be needed to discourage its use for abuse. Also, Petersen apparently did use his computer skills in working for a private investigation agency in the 1980's and defense counsel acknowledged that his client had counseled companies while on bail on how "to make their computer system safe from other hackers." Petersen urged the court, and the court agreed, not to forbid Petersen from using computers in the context of his future employment. This suggests that Petersen could have used his computer skills for legal, socially beneficial activity. See Young, 932 F.2d at 1514. Instead, he abused his knowledge of technology and his ability to access and manipulate computer systems, enabling him to commit serious crimes.
Petersen is skilled at accessing and manipulating computer systems; this skill is not shared by members of the general public; the skill facilitated his carrying out a series of crimes; it preexisted his carrying out the crimes; and it is translatable (and had been translated) to legitimate use. Accordingly, the district court did not err in adjusting Petersen's offense level under Section 3B1.3 for use of a special skill.