US v. Suzanne Delyon

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00032-CMH-1 Copies to all parties and the district court/agency. [999640594].. [14-4803]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4803

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SUZANNE DELYON,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Claude M. Hilton, Senior
District Judge. (1:14-cr-00032-CMH-1)

Submitted:

May 20, 2015

Decided:

August 14, 2015

Before MOTZ, WYNN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Alan H. Yamamoto, Alexandria, Virginia, for Appellant. Dana J.
Boente, United States Attorney, Maya D. Song, Assistant United
States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Suzanne Delyon appeals her jury conviction and 12-monthand-one-day sentence for one count of conspiracy to commit wire
fraud, in violation of 18 U.S.C. § 1349 (2012); and six counts
of wire fraud, in violation of 18 U.S.C. §§ 2, 1343 (2012).
Delyon’s crimes stemmed from a 2009 conspiracy to defraud into
which

she

entered

with

her

co-defendant,

Byoung

Kyung

Kim. *

During the conspiracy, Delyon and Kim agreed to overstate the
payroll expenses of Kim’s business, EE Mart FC, LLC (“EE Mart”),
to Travelers Property Casualty Company of America (“Travelers”),
in order to secure a larger insurance payout for a fire that
destroyed EE Mart.
Delyon

asserts

that

the

Government’s

evidence

was

insufficient to establish that she and Kim conspired to submit
to Travelers the names of fake employees, or that she intended
to defraud Travelers when she submitted to it fraudulent payroll
lists and IRS tax forms.

Delyon also asserts that the district

court erred when it calculated the amount of restitution she
owed

Travelers,

and

also

overstated

*

the

loss

amount

used

to

Kim and Delyon were tried together and both convicted and
sentenced identically. Kim passed away after he filed a related
appeal, and we granted counsel’s motion to have the appeal
dismissed and the case remanded to the district court with
instructions to vacate the judgment of conviction.

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calculate her Sentencing Guidelines range.

Finding no error, we

affirm.
A

defendant

challenging

faces “a heavy burden[.]”

the

sufficiency

of

the

evidence

United States v. McLean, 715 F.3d

129, 137 (4th Cir. 2013) (internal quotation marks omitted).
The

jury

verdict

must

be

sustained

if

“there

is

substantial

evidence in the record, when viewed in the light most favorable
to the government, to support the conviction.”

United States v.

Jaensch, 665 F.3d 83, 93 (4th Cir. 2011) (internal quotation
marks

omitted).

reasonable

“Substantial

finder

of

fact

evidence

could

is

accept

evidence
as

that

adequate

a

and

sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.”
omitted).

Id. (internal quotation marks and brackets

“Reversal for insufficient evidence is reserved for

the rare case where the prosecution’s failure is clear.”

United

States v. Ashley, 606 F.3d 135, 138 (4th Cir. 2010) (internal
quotation marks omitted).

We have reviewed the record and have

considered Delyon’s arguments and find that viewed in the light
most favorable to the Government, substantial evidence exists to
support the jury’s verdict.
We

review

Delyon’s

sentence

for

abuse

of

discretion.

United States v. Cobler, 748 F.3d 570, 581 (4th Cir.), cert.
denied, 135 S. Ct. 229 (2014).
a

sentence

mandates

that

we

“The first step in our review of
ensure
3

that

the

district

court

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committed no significant procedural error, such as improperly
calculating the Guidelines range or selecting a sentence based
on clearly erroneous facts.”
381,

387

(4th

alterations

Cir.

United States v. Llamas, 599 F.3d

2010)

omitted).

(internal

Thus,

to

avoid

quotation

marks

procedural

and

error,

a

sentencing court must first correctly calculate the applicable
Guidelines range.

See United States v. Hernandez, 603 F.3d 267,

270 (4th Cir. 2010).

“In assessing whether a sentencing court

has properly applied the Guidelines, we review factual findings
for clear error and legal conclusions de novo.”

Llamas, 599

F.3d at 387.
Accordingly, the loss attributable to fraud for purposes of
calculating a defendant’s Guidelines range is a factual finding
that

is

reviewed

Allmendinger,
important

to

for

clear

706

F.3d

330,

note

that

in

error.

341

(4th

reviewing

a

United
Cir.

States

2013).

district

v.

It

court’s

is

loss

calculation, the amount of loss attributed to a defendant need
not

be

determined

with

precision.

Rather,

a

district

court

“need only make a reasonable estimate of the loss, given the
available information.”
503 (4th Cir. 2003).

United States v. Miller, 316 F.3d 495,

Indeed, 18 U.S.C.A. § 3742(e) (West 2000 &

Supp. 2014) provides that “[t]he court of appeals shall . . .
accept the findings of fact of the district court unless they

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are clearly erroneous and . . . shall give due deference to the
district court’s application of the guidelines to the facts.”
In addition, the Mandatory Victims Restitution Act of 1996
requires the district court to order restitution for all losses
that result from a criminal scheme or conspiracy.
§ 3663A(a)(1),

(c)(1)

(West

2000

&

Supp.

2014).

18 U.S.C.A.
This

Court

“review[s] the district court’s restitution award for an abuse
of discretion.”

United States v. Catone, 769 F.3d 866, 875 (4th

Cir. 2014).
Delyon

asserts

calculation,
attributed

that

as

as

for

well

purposes

the
the

of

district

loss
her

district

court

concluded

amount

Guidelines

should be significantly reduced.
the

court’s
with

restitution

which

range

she

was

calculation,

Despite Delyon’s arguments,
that

the

special

agent

who

testified at Delyon’s sentencing was “clear in his testimony of
the amount that was requested and paid by Travelers and not paid
out in legitimate expenses.”

Because the district court reached

this conclusion after a hearing, and in the absence of evidence
to rebut the Government’s evidence of loss, we defer to the
district
analysis.

court’s

decision

to

credit

the

Government’s

loss

See, e.g., United States v. Thompson, 554 F.3d 450,

452 (4th Cir. 2009) (“[W]hen a district court’s factual finding
is based upon assessments of witness credibility, such finding
is deserving of the highest degree of appellate deference.”)
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(internal quotation marks omitted).

Accordingly, we discern no

reversible error in the district court’s loss calculation or
restitution order.
Based
judgment.
legal
before

on

the

foregoing,

we

affirm

the

district

court’s

We dispense with oral argument because the facts and

contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

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