     Case: 14-11017      Document: 00513154516         Page: 1    Date Filed: 08/14/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                      Fifth Circuit

                                                                                FILED
                                                                            August 14, 2015
                                    No. 14-11017
                                  Summary Calendar                           Lyle W. Cayce
                                                                                  Clerk




UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

versus

JAMES M. MCCONATHY,

                                                 Defendant–Appellant.



                   Appeal from the United States District Court
                        for the Northern District of Texas
                                 No. 4:14-CR-94-1




Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *

       James McConathy appeals the 60-month above-guidelines sentence
imposed for his conviction of money laundering. He claims that the district


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                   No. 14-11017

court erred in applying the two-level enhancement under U.S. Sentencing
Guidelines § 3B1.3 for abuse of a position of trust. He contends that the court
did not employ the proper legal standard in applying the enhancement and
that, if it had applied the proper one, McConathy would not have received the
enhancement. Specifically, he maintains that a licensed oil and gas operator
does not hold a position of trust and does not have an intimate relationship
with the victim. He further urges that there was no evidence that he provided
sufficient indicia of his position or that use of that position significantly facili-
tated the offense.

      The notion urged by McConathy on appeal—that an individual licensed
as an oil and gas operator does not hold a position of trust—was “preserved by
specific objection in the trial court,” so review is for clear error. United States
v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012). But McConathy’s
objections did not sufficiently apprise the court of his challenges to the
enhancement based on a lack of evidence and incorrect legal standard. See
United States v. Musa, 45 F.3d 922, 924 n.5 (5th Cir. 1995). Therefore, those
issues are subject to plain-error review.         See United States v. Chavez-
Hernandez, 671 F.3d 494, 497-98 (5th Cir. 2012).

      Under § 3B1.3, an enhancement is appropriate if the defendant (1) occu-
pied a position of trust and (2) abused it in a manner that significantly facili-
tated the commission or concealment of the offense. § 3B1.3; United States v.
Ollison, 555 F.3d 152, 165 (5th Cir. 2009). The adjustment applies where “the
defendant provides sufficient indicia to the victim that the defendant legiti-
mately holds a position of private or public trust when, in fact, the defendant
does not.” § 3B1.3, comment. (n.3).

      McConathy’s assertion that the court did not employ the correct legal
standard is not supported by the record, which shows that the court found that


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                                  No. 14-11017

McConathy had provided sufficient indicia, to the victim, that he held a posi-
tion of trust that he used to facilitate significantly the commission of the
offense. McConathy sought from his victim an investment and subsequently
convinced him to provide money for a partnership in a lease in which the victim
was never an owner. McConathy periodically sent small payments to the
investor, falsely representing the money as a return on the investment. He
had unfettered discretion over the funds and used them to continue his fraud-
ulent scheme.

      Because the district court relied on information in the PSR that McCon-
athy misrepresented himself to the victim as a licensed oil and gas operator
and that the investor would not have invested but for the misrepresentation,
as well as McConathy’s own admission that he misrepresented himself, the
court did not commit clear or obvious error in finding that McConathy had pro-
vided sufficient indicia that he legitimately held a position of trust that signif-
icantly facilitated the offense. See United States v. Alaniz, 726 F.3d 586, 619
(5th Cir. 2013). Accordingly, the enhancement was properly applied. See
United States v. Sudeen, 434 F.3d 384, 386-87 (5th Cir. 2005); United States v.
Reeves, 255 F.3d 208, 212 (5th Cir. 2001).

      Challenging the substantive reasonableness of the sentence, McConathy
avers that the court failed adequately to consider his health and need for med-
ical supervision. McConathy objected to the substantive reasonableness and
filed objections challenging an upward departure or variance and a motion for
a downward departure or variance. Therefore, he preserved this issue.

      In reviewing a non-guidelines sentence for substantive reasonableness,
we consider “the totality of the circumstances, including the extent of any vari-
ance from the guidelines range, to determine whether as a matter of substance,
the sentencing factors in section 3553(a) support the sentence.” United States


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                                  No. 14-11017

v. Gerezano-Rosales, 692 F.3d 393, 400 (5th Cir. 2012) (internal quotation
marks and citation omitted). The district court considered McConathy’s miti-
gating facts but concluded that an above-guidelines sentence was warranted
in light of other factors set forth in § 3553(a). Under the totality of the circum-
stances, including the significant deference to the court’s consideration of the
§ 3553(a) factors and its reasons for the sentence, McConathy fails to show
substantive unreasonableness. See Gerezano-Rosales, 692 F.3d at 400–01.

      The judgment of sentence is AFFIRMED.




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