     Case: 16-31154      Document: 00514145150         Page: 1    Date Filed: 09/06/2017




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

                                      No. 16-31154
                                                                                Fifth Circuit

                                                                              FILED
                                                                       September 6, 2017

UNITED STATES OF AMERICA,                                                Lyle W. Cayce
                                                                              Clerk
                     Plaintiff - Appellee

v.

ERIC J. MESSER,

                     Defendant - Appellant



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:15-CR-128-1


Before STEWART, Chief Judge, and KING and JONES, Circuit Judges.
PER CURIAM:*
       Eric J. Messer was sentenced to an above guidelines sentence after he
pleaded guilty to one count of wire fraud.             The district court denied his
objection to a U.S.S.G. § 3B1.3 sentencing enhancement for abuse of a position
of public or private trust. Further, the district court, upon review of Messer’s
repeated lies to probation officers, prior probation related to child pornography,
and the conduct that led to his plea, determined that an above guidelines
sentence was warranted. Messer appeals his sentence on two principal bases—


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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that the district court erred in applying the § 3B1.3 sentencing enhancement
and that the district court’s sentence was not substantively reasonable. For
the following reasons, we AFFIRM.
                                       I.
      Eric J. Messer pleaded guilty to one count of wire fraud.               At
rearraignment, he admitted he obtained a job with an offshore engineering and
construction company by falsely claiming to be a licensed mechanical engineer,
and submitted false receipts to obtain reimbursement for engineering software
and a computer that he had not actually purchased.             Messer was not
authorized to make those purchases, but he obtained reimbursement because
his employer believed that Messer needed them for his work as an engineer.
      Messer’s PSR included a two-level adjustment pursuant to U.S.S.G.
§ 3B1.3 for abuse of a position of public or private trust.           The PSR
recommended the adjustment because “Messer falsely represented” his
qualifications for a job “designed for an engineer with the skills and education
necessary to conduct complex calculations and make determinations for
equipment that, if incorrect, could threaten the safety of the public at large.”
Messer objected, arguing that he did not use a special skill and that his offense
“could have just as easily been committed by . . . any other employee who is
reimbursed for business expenses.”
      The district court overruled Messer’s objection relying on “the
relationship between the defendant and the victim company, as well as his
responsibilities there,” and concluding “that it was a special position of trust
that he occupied there.” The district court also sua sponte questioned whether
Messer merited an offense-level reduction for acceptance of responsibility as
recommended in the PSR. The district court found that Messer (1) made
inconsistent statements regarding a cancer diagnosis and treatment, (2) made
inconsistent statements about his educational history, (3) failed to provide
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                                  No. 16-31154
reliable copies of financial records or proof that he made child support
payments, (4) failed to disclose a $199,000 judgment against him, (5) violated
the terms of his supervision by possessing a cell phone and laptop and by
missing sex-offender treatment sessions, (6) deceived a state probation officer
about his ability to complete community service while on federal supervision,
and (7) failed to disclose a 2011 arrest for possession of marijuana. The district
court continued the sentencing hearing to allow Messer to address those issues,
but later denied the reduction for acceptance of responsibility and calculated
Messer’s sentencing guidelines range to be 15 to 21 months of imprisonment
based on an offense level of 13 and a criminal history category of II. The
district court sentenced Messer above the guidelines range to 26 months of
imprisonment and three years of supervised release, explaining that “higher
and lower sentences were considered but neither seem to provide the kind of
appropriate punishment or deterrence for future crimes.” The district court
varied above the guidelines range based on Messer’s misleading and false
statements to probation officers. Messer objected to the upward variance and
the denial of acceptance of responsibility.
      Messer timely filed a notice of appeal. The Government does not invoke
the appeal waiver in Messer’s plea agreement. Messer raises two issues on
appeal: whether the district court (1) erroneously applied the two-level § 3B1.3
adjustment, and (2) imposed a substantively unreasonable sentence.
                                       II.
      On appeal, a district court’s guidelines interpretations are reviewed de
novo. United States v. Le, 512 F.3d 128,134 (5th Cir. 2007). A district court’s
findings of fact are reviewed for clear error. Id. Application of § 3B1.3 “is a
sophisticated factual determination reviewed under the clearly erroneous
standard.” See United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009)
(internal quotation marks and citation omitted). A finding will be upheld on
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appeal under the clearly erroneous standard “so long as it is plausible in light
of the record as a whole.” United States v. Ekanem, 555 F.3d 172, 175 (5th Cir
2009)      (quotation   omitted).   This    court   “consider[s]   the   substantive
reasonableness of the sentence imposed under an abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 51 (2007).
                                           A.
         Messer objected to the “abuse of a position of trust” enhancement before
the district court and now asserts that the district court erred in applying it
under U.S.S.G. § 3B1.3. This enhancement provides that “[i]f the defendant
abused a position of public or private trust, or used a special skill, in a manner
that significantly facilitated the commission or concealment of the offense,
increase by 2 levels.” Messer claims he “did not use his position as either an
engineer or supervisor in order to facilitate the commission of the offense.”
         Under Ollison, this is a two-step inquiry where the sentencing court
must first “determine whether the defendant occupied a position of trust at
all,” and then “ascertain the extent to which the defendant used that position
to facilitate or conceal the offense.” Ollison, 555 F.3d at 165 (internal quotation
marks and citation omitted). Messer does not claim error in the first step, but
instead claims that the district court’s analysis fails because there was no
“specific finding that Mr. Messer used his position of trust to significantly
facilitate the commission or concealment of wire fraud.” The district court,
however, clearly found that that due to the relationship between Messer and
his company and his responsibilities there, that was sufficient for the district
court to be “satisfied that [Messer] was in a unique position to order this
software or allegedly order this software.” Accordingly Messer’s argument
fails.
         Messer also claims that even if the district court made a specific finding,
such a finding was clearly erroneous, analogizing his case to Ollison, where
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this court overturned a § 3B1.3 enhancement for a secretary who used a
corporate card to make unauthorized purchases. As Messer notes, this court
held the enhancement did not apply because Ollison did not occupy a position
of trust. Messer was a Vice President of Operations, however, and it was that
position that made the purchase of software possible and plausible. Messer
claims he did not use any discretionary authority entrusted to him in order to
commit the crime; however, surely a VP of Operations has discretionary
authority to make purchases and submit receipts that others do not. In United
States v. Pruett, this court “found the second element of § 3B1.3 to be satisfied
where the defendant’s position made the criminal conduct easier to perform or
where it facilitated his crime.” 681 F.3d 232, 248 (5th Cir. 2012). It is certainly
plausible in light of the record as a whole that Messer’s position as the Vice
President    of   Operations    made     his   unauthorized      purchases     and
reimbursements easier to perform and in fact, facilitated his crime. As the
government observes “[h]is senior role in the company allowed him the
authority to execute his scheme without detection.”          The district court’s
application of a § 3B1.3 enhancement was not error.
                                        B.
      Messer next challenges the substantive reasonableness of the sentence.
The review for substantive reasonableness is “highly deferential” because “the
sentencing judge is in a superior position to find facts and judge their import
under § 3553(a) with respect to a particular defendant.” United States v.
Campo-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). The district court in
this case awarded an upward variance of five months, which Messer claims
was an abuse of discretion. The parties present very different pictures of
Messer. The government notes that Messer is “a defendant on probation for
possession of child pornography who lied to and stole from his employer, lied
to the Probation Office about his drug history, financial history, educational
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                                   No. 16-31154
background, and falsely claimed to have cancer.” Messer, on the other hand
notes that he is “a Navy veteran and a dedicated father with four children.”
      A sentence that varies from the guidelines is substantively unreasonable
when “it (1) does not account for a factor that should have received significant
weight, (2) gives significant weight to an irrelevant or improper factor, or
(3) represents a clear error of judgment in balancing the sentencing factors.”
United States v. Diehl, 775 F.3d 714, 724 (5th Cir. 2015). Under this test,
Messer’s arguments fail.        He contends that the district court improperly
balanced the § 3553(a) factors and that the court erred by varying upwards
based on the same conduct that it cited to deny an offense-level reduction for
acceptance of responsibility.
      The district court was not precluded from varying upward based on
conduct pertinent to the § 3553(a) factors that had already been considered in
calculating his advisory guidelines range. United States v. Williams, 517 F.3d
801, 810-11 (5th Cir. 2008). Notably, Messer cites no authority to support his
claim that the district court could not consider the facts upon which it based
its denial of acceptance of responsibility in determining whether an upward
variance was warranted. This argument is unavailing.
      Messer’s remaining argument is a mere disagreement with how the
district court balanced the § 3553(a) factors, and therefore fails to establish an
abuse of discretion. He has in no way shown that the district court’s balancing
“represents a clear error of judgment.” Diehl, 775 F.3d at 724. The district
court’s sentence was substantively reasonable.
                                  CONCLUSION
      For the foregoing reasons we AFFIRM the district court.




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