These facts raise a serious question about his "present responsibility" as an honest and dependable contractor to the government. In United States v. Glymph, 96 F.3d 722 (4th Cir. 1996), where the facts are strikingly similar — Glymph was debarred for knowingly supplying the government with parts that did not conform to purchase order specifications — we rejected the argument that a four-year debarment was "overwhelmingly disproportionate" where the government paid more than $40,000 for nonconforming parts. See id. at 725-26.

Other courts have recognized that a defendant can be found to have occupied (and abused) a position of trust vis-à -vis the government when he misuses public funds through a combination of control over a government contractor and a lack of government oversight. See, e.g., United States v. Robinson, 198 F.3d 973, 978 (D.C. Cir. 2000) ; United States v. Wright, 160 F.3d 905, 911 (2d Cir. 1998) ; United States v. Glymph, 96 F.3d 722, 728 (4th Cir. 1996). This construct recognizes a real world problem: individuals controlling government contractors sometimes grow so cozy with the contracting agency that they are allowed to exercise substantial discretionary authority over government funds without any semblance of meaningful oversight.

But our review of the case law reveals no material difference between Boggs's situation and the government's cited cases. Though outside this circuit, the Fourth Circuit's decision in United States v. Glymph, 96 F.3d 722 (4th Cir. 1996), is instructive. There, as here, the defendant participated in the ARP program and was "trusted to self-certify its compliance" with DOD specifications, but instead "sen[t] nonconforming shipments while knowing that it was unlikely that the disparities would be caught."

In making that latter determination, we compare the defendant's position and conduct to all defendants who qualify for the enhancement, not just to those who commit the crime with which he is charged. We have held, in considering the Section 3B1.3 enhancement for abuse of trust, that sentencing courts may consider: (1) whether the defendant had special duties or "special access to information not available to other employees;" (2) "the defendant's level of supervision or 'degree of managerial discretion'"; and (3) whether an examination of the acts committed establishes that this defendant is "'more culpable' than others who hold similar positions and who may commit crimes." United States v. Glymph, 96 F.3d 722, 727 (4th Cir. 1996). It is certainly also important to inquire into the level of harm occasioned by the breach of trust.

"Whether a defendant held a position of trust must be `approached from the perspective of the victim.'" United States v. Glymph, 96 F.3d 722, 727 (4th Cir. 1996) (quoting Gordon, 61 F.3d at 269). The district court found that Mackey occupied a position of trust.

Third, the analysis also entails an examination of "the acts committed to determine whether this defendant is 'more culpable' than others who hold similar positions and who may commit crimes."United States v. Glymph, 96 F.3d 722, 727 (4th Cir. 1996) (quoting United States v. Gordon, 61 F.3d 263, 269 (4th Cir. 1995)). Further, "[w]hether a defendant held a position of trust must be 'approached from the position from the perspective of the victim.'"

Third, the analysis also entails an examination of "the acts committed to determine whether this defendant is `more culpable' than others who hold similar positions and who may commit crimes."United States v. Glymph, 96 F.3d 722, 727 (4th Cir. 1996) (citation omitted). "It is certainly also important to inquire into the level of harm occasioned by the breach of trust."

The PSR does not set forth any facts indicating a fiduciary relationship between Ebersole and the federal agencies, as would support the enhancement. Cf. United States v. Glymph, 96 F.3d 722, 727-28 (4th Cir. 1996) (affirming application of § 3B1.3 enhancement against government contractor who had held position of trust by virtue of being allowed to self-certify compliance with purchase order requirements). In the present circumstances, the court erred in enhancing Ebersole's sentence for abuse of a position of trust.

Finally, whether a defendant occupies a position of trust is a factual determination reviewable for clear error. United States v. Glymph, 96 F.3d 722, 727 (4th Cir. 1996). B. The Grouping Issue

Id. at 203; U.S.S.G. § 3B1.3. "Whether a defendant occupied a position of trust warranting a two-level enhancement under U.S.S.G. § 3B1.3 is a factual determination reviewable for clear error." United States v. Glymph, 96 F.3d 722, 727 (4th Cir. 1996). Whether a defendant held a position of trust must be "approached from the perspective of the victim."