                  United States Court of Appeals
                               For the Eighth Circuit
                          ___________________________

                                  No. 19-2684
                          ___________________________

                               United States of America

                          lllllllllllllllllllllPlaintiff - Appellee

                                             v.

                Shari Ann Natysin, also known as Shari Ann Johnson

                         lllllllllllllllllllllDefendant - Appellant
                                         ____________

                      Appeal from United States District Court
                           for the District of Minnesota
                                   ____________

                               Submitted: April 16, 2020
                                 Filed: July 16, 2020
                                    ____________

Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.
                         ____________

GRASZ, Circuit Judge.

      Shari Ann Natysin pled guilty to nine counts of wire fraud in violation of 18
U.S.C. § 1343, two counts of tax evasion in violation of 26 U.S.C. § 7201, and one
count of making and subscribing a false tax return in violation of 18 U.S.C. § 7206(1).
The district court1 sentenced her to 46 months in prison on the wire fraud and tax
evasion counts and 36 months on the tax return count to be served concurrently. In
determining the 46-month sentence, the district court applied a 2-level enhancement
under the United States Sentencing Guidelines Manual (“Guidelines” or “U.S.S.G.”)
§ 3B1.3 for abusing a position of private trust. On appeal, Natysin argues the 2-level
enhancement is inapplicable because she was not in a position of trust. We disagree
and affirm the district court’s application of the § 3B1.3 enhancement.

      “We review the legal component of the abuse of trust determination de novo and
the district court’s factual findings for clear error.” United States v. Walker, 818 F.3d
416, 423 (8th Cir. 2016) (quoting United States v. Anderson, 349 F.3d 568, 573 (8th
Cir. 2003)). The government has the burden of proving the two elements of the
sentencing enhancement by a preponderance of the evidence: first, the defendant
occupied a position of public or private trust, and second, the defendant used the
position “in a manner that significantly facilitated the commission or concealment of
the offense.” U.S.S.G. § 3B1.3; see also Walker, 818 F.3d at 423. Natysin only
challenges the enhancement on the grounds that she did not occupy a position of
private trust. Such a position is “characterized by professional or managerial
discretion” and is ordinarily “subject to significantly less supervision than employees
whose responsibilities are primarily non-discretionary in nature.” U.S.S.G. § 3B1.3
n.1.

       Natysin has not identified a clearly erroneous factual finding, and we are
convinced her position included sufficient managerial discretion to support the
application of § 3B1.3. The victim company used accounting software called
Quickbooks to monitor its financial information in detail, including payroll. Natysin’s
position as “office manager and bookkeeper” included the responsibility to maintain


      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
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the company’s Quickbooks and the discretion “to structure it any way she saw fit.”
Natysin used this discretion to facilitate and conceal her fraudulent payroll scheme.
After submitting false payroll information through the victim company’s payroll
software, Natysin reorganized the way Quickbooks reported the victim company’s
finances in order to conceal the false payments. As a result, Natysin funneled
hundreds of thousands of dollars to herself undetected.

        Although the victim company had the ability to inspect Natysin’s reports and
review the Quickbooks entries, the fact that no one did so “is itself evidence that she
held a position of trust.” United States v. Brelsford, 982 F.2d 269, 272 (8th Cir.
1992). The owner of the victim company testified he had a negligible understanding
of bookkeeping software, and that he relied on Natysin to manage the company’s
finances. It is clear Natysin would not have been able to commit or conceal her fraud
if not for the discretion she was granted through her position in the company. Though
there is an element of broken trust in every fraud scenario, the evidence here showed
the victim company placed special trust in Natysin such that she occupied a position
of trust within the company.

      Natysin abused a position of private trust and thus the 2-level sentencing
enhancement was warranted. We therefore affirm.
                     ______________________________




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