     Case: 09-50559     Document: 00511051207          Page: 1    Date Filed: 03/15/2010




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

                                                  FILED
                                                                           March 15, 2010
                                     No. 09-50559
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

CARL THEODORE CARLSON,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:08-CR-2779-1


Before REAVLEY, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        Carl Theodore Carlson pleaded guilty to five counts of mail fraud in
violation of 18 U.S.C. § 1341 and was sentenced to 56 months of imprisonment,
on each count to run concurrently, three years of supervised release, on each
count to run concurrently, and restitution in the amount of $1,401,866. Carlson
argues that the district court clearly erred in applying a two-level upward
adjustment in his offense level for abuse of a position of trust pursuant to
U.S.S.G. § 3B1.3. He argues that he did not hold a position of trust at Penske

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-50559   Document: 00511051207 Page: 2        Date Filed: 03/15/2010
                                No. 09-50559

Truck Leasing (PTL). He contends that the release numbers for the truck sales
were computer generated and that there was no evidence that professional or
managerial discretion was involved in providing them.
      With respect to a finding that a defendant abused a position of trust under
§ 3B1.3, the district court’s finding is “a sophisticated factual determination
reviewed under the clearly erroneous standard.” United States v. Ollison, 555
F.3d 152, 164-65 (5th Cir. 2009).       A two-level § 3B1.3 enhancement is
appropriate if a defendant occupied a position of trust and used that position to
facilitate significantly the commission or concealment of the offense. § 3B1.3;
Ollison, 555 F.3d at 165. The primary distinguishing trait of a person in a
position of trust is the extent to which the person’s position allows him the
freedom to commit a wrong that is difficult to detect. United States v. Brown, 7
F.3d 1155, 1161 (5th Cir. 1993).
      The evidence in the record shows that Carlson, in his position as used
truck coordinator, had the discretionary authority to approve sales of previously
leased trucks. Carlson did not merely perform a nondiscretionary function of
providing the release numbers upon request by the district managers. The
district managers had to get Carlson’s approval for the sales price, after which
Carlson used the computer to generate the release numbers for the sales.
Carlson apparently had little or no supervision and the freedom to commit this
fraud without detection from about 2000 to 2005, until an internal audit
revealed discrepancies in PTL’s truck inventory. Carlson had worked for Penske
for 22 years and his salary was $110,00 a year. Carlson was not a low-level
functionary but a long-term, highly paid employee trusted by Penske with the
authority to approve sales of vehicles that generated over $1 million dollars in
sales. The district court did not clearly err in its implicit finding that Carlson
occupied a position of trust. See Brown, 7 F.3d at 1162.
      AFFIRMED.



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