## Facts

- Jing Bing Liang participated in a multi-person scheme to cheat casinos during card games at multiple locations in the United States.
- Liang’s role in the group was the in-game cheater: he peeked at dealers’ cards, secretly marked cards, and then used that information to win.
- The scheme involved at least six cheating events across different states.
- Federal prosecutors indicted Liang and others on conspiracy charges arising from the casino-cheating activity.
- Liang pleaded guilty.
- At sentencing, the government requested a two-level increase under U.S.S.G. § 3B1.3, arguing Liang used a “special skill,” described as his ability to cheat at cards and his good eyesight.
- The government did not present evidence that Liang’s abilities resulted from substantial education, formal training, or licensing, and did not show that Liang held or abused a position of public or private trust.
- Over Liang’s objection, the district court applied the two-level increase based on Liang’s cheating ability and eyesight.
- Liang appealed, challenging only the application of § 3B1.3.

## Issues

1. Whether the district court erred by applying U.S.S.G. § 3B1.3 based on a finding that Liang’s card-cheating ability and good eyesight were a “special skill,” despite the lack of record evidence that the abilities were acquired through substantial education, training, or licensing.
2. Whether the record supported applying § 3B1.3 on an abuse-of-trust theory.

## Decision

- The Ninth Circuit reversed the application of § 3B1.3, vacated Liang’s sentence, and remanded for resentencing.
- The court held the government did not meet its burden to show Liang possessed a “special skill” within the meaning of § 3B1.3, because the record did not show substantial education, training, or licensing tied to Liang’s abilities.
- The court also found no basis to apply § 3B1.3 for abuse of a position of trust, because Liang was a casino patron and did not occupy a qualifying trust position in relation to the victim casinos.
- Given the district court’s sparse findings on how Liang’s abilities were acquired and why § 3B1.3 applied, the two-level increase could not stand.

## Legal Principles

- U.S.S.G. § 3B1.3 permits a two-level increase if the defendant (a) abused a position of public or private trust, or (b) used a special skill, and the abuse or skill significantly facilitated the offense or its concealment.
- The commentary defines a “special skill” as one not possessed by members of the general public and usually requiring substantial education, training, or licensing (with examples such as pilots, lawyers, doctors, accountants, chemists, and demolition experts).
- Being very good at committing a crime, without record proof that the ability comes from the kind of structured learning contemplated by § 3B1.3, is not enough to qualify as a “special skill.”
- Natural attributes such as good eyesight do not fit § 3B1.3’s special-skill definition absent evidence tying the attribute to the guideline’s “usually requiring” education/training/licensing framework.
- The government bears the burden to prove the facts supporting a guideline-based increase at sentencing.
- Appellate review distinguishes between factual findings (reviewed for clear error) and the legal question whether established facts satisfy § 3B1.3 (reviewed de novo).
- A defendant abuses a position of trust only when he occupies a role involving trust and discretion in relation to the victim; an ordinary customer relationship with a business generally does not qualify.

## Conclusion

United States v. Liang holds that § 3B1.3 cannot be applied simply because a defendant is unusually adept at cheating at cards or has good eyesight; without evidence that the ability was obtained through substantial education, training, or licensing—and without a qualifying trust relationship with the victim—the two-level increase is improper, so the Ninth Circuit vacated the sentence and remanded for resentencing.


United States v. Liang, 362 F.3d 1200 (2004)