     Case: 14-40770      Document: 00513015157         Page: 1    Date Filed: 04/22/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40770
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            April 22, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

GUADALUPE TREVINO, also known as Lupe Trevino,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:14-CR-482-1


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
       Guadalupe Trevino pleaded guilty to conspiracy to launder criminally
derived proceeds and admitted to receiving cash and other benefits from a drug
trafficker, Tomas Gonzales, while serving as sheriff of Hidalgo County, Texas.
He further admitted that the money was funneled to him by subordinates who
worked for him in the sheriff’s office and also worked on his reelection
campaign.      Trevino now appeals the 60-month, non-guideline sentence


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40770

imposed by the district court. He argues that the district court’s finding that
he was subject to a two-level enhancement under U.S.S.G. § 3B1.3 for abuse of
a position of public trust constitutes error and its imposition of a 14-month
upward variance constitutes an abuse of discretion.
      The district court’s application of U.S.S.G. § 3B1.3 is a sophisticated
factual determination that is reviewed for clear error. United States v. Miller,
607 F.3d 144, 147-48 (5th Cir. 2010).         This Court will uphold such a
determination if “it is plausible in light of the record as a whole.” Id. at 148
(internal quotation marks and citations omitted). This court applies a two-part
test to determine whether there has been an abuse of trust: “(1) whether the
defendant occupies a position of trust and (2) whether the defendant abused
her position in a manner that significantly facilitated the commission or
concealment of the offense.” United States v. Kay, 513 F.3d 432, 459 (5th Cir.
2007) (internal quotation marks and citation omitted).
      This Court and many of its sister circuits have held that members of law
enforcement and elected officials occupy positions of trust relative to the
general public to whom they are accountable. See, e.g., United States v. Deville,
278 F.3d 500, 508 (5th Cir. 2002) (chief of police); United States v. Blandford,
33 F.3d 685, 710-11 (6th Cir. 1994) (speaker of Kentucky House of
Representatives); United States v. Lamb, 6 F.3d 415, 421 (7th Cir. 1993)
(lieutenant in police department).
      To determine whether the position of trust “significantly facilitated” the
commission of the offense, the court must decide whether the defendant
occupied a superior position, relative to all people in a position to commit or
conceal the offense, as a result of his job. See United States v. Wright, 496 F.3d
371, 376 (5th Cir. 2007). Here, the district court found that Trevino took active
steps to conceal the source of the funds and that Gonzalez would not have given



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                                 No. 14-40770

Trevino cash and other financial support but for Trevino’s position as sheriff.
It also found that Trevino received cash from Gonzalez that was not deposited
into his campaign fund and more than likely was appropriated for Trevino’s
personal use. From that, the district court inferred that Trevino accepted the
contributions knowing that Gonzalez would ask Trevino for favorable
treatment from the sheriff’s office at some point, which would require him to
subordinate the public’s interest to his own. Given these findings, the district
court did not clearly err in applying the enhancement. See United States v.
Burke, 431 F.3d 883, 889 (5th Cir. 2005) (defendant’s value to conspiracy was
based upon his position as alderman); United States v. Scurlock, 52 F.3d 531,
540-41 (5th Cir. 1995) (defendant’s position as prison guard allowed her to
conspire with inmates).
      Trevino did not challenge the procedural or substantive reasonableness
of his sentence below. Accordingly, this Court will review for plain error only.
To establish plain error, Trevino must show a forfeited error that is clear or
obvious and that affected his substantial rights. Puckett v. United States, 556
U.S. 129, 135 (2009). If he makes such a showing, this court has the discretion
to correct the error but only if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings. Id.
      Trevino cannot meet his burden. The district court identified a number
of reasons for the upward variance, including Trevino’s abuse of his office for
private gain, the extent to which Trevino’s money laundering furthered drug
trafficking in the community, and the loss of confidence in law enforcement
throughout the Rio Grande Valley caused by Trevino’s criminal conduct. This
Court has upheld upward departures and variances of similar or greater
magnitude in analogous cases. See, e.g., United States v. Wade, 931 F.2d 300,
307-08 (5th Cir. 1991) (upward departure from 188 months to 240 months



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based, in part, upon sheriff’s actions in furthering drug trafficking conspiracy).
The basis for the upward variance was adequately explained, supported by the
record, and not based upon an impermissible factor.
      AFFIRMED.




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