USA v. Linda Nelson
UNPUBLISHED OPINION FILED. [11-11057 Affirmed ] Judge: RHB , Judge: EBC , Judge: JEG Mandate pull date is 09/12/2012 for Appellant Linda M. Nelson [11-11057]
Date Filed: 08/22/2012
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
August 22, 2012
Lyle W. Cayce
UNITED STATES OF AMERICA,
Plaintiff - Appellee
LINDA M. NELSON,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:10-CR-268-1
Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
Linda M. Nelson challenges her within-Guidelines-range sentence of 50months’ imprisonment, imposed following her guilty-plea conviction of
conspiracy to commit bank fraud. See 18 U.S.C. § 1349. Nelson contends the
district court erred by, pursuant to Sentencing Guideline § 3B1.3, increasing her
offense level by two, after finding she abused a position of private trust in a
manner that significantly facilitated the commission of her offense.
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 08/22/2012
Although post-Booker, the Sentencing Guidelines are advisory only, and
abuse-of-discretion standard, the district court must still properly calculate the
advisory Guideline-sentencing range for use in deciding on the sentence to
impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that respect, its
application of the Guidelines is reviewed de novo; its factual findings, only for
clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008). Here, review is only for clear error. E.g., United States v. Pruett, 681 F.3d
232, 248 (5th Cir. 2012) (“A district court’s application of [Guideline §] 3B1.3 is
a sophisticated factual determination that an appellate court reviews for clear
error.” (internal alterations and quotations marks omitted)). “There is no clear
error if the district court’s finding is plausible in light of the record as a whole.”
Cisneros-Gutierrez, 517 F.3d at 764 (internal quotation marks omitted).
American National Bank of Texas (ANB) employed Nelson as a marketing
communications specialist. In that capacity, Nelson, inter alia, worked with
marketing vendors and advertising agencies and communicated with ANB
branches regarding their marketing needs. She would take requests from the
branches for marketing products and services, order those needed, and submit
the vendors’ invoices to ANB’s accounts-payable department. Nelson was
required to have invoices of $1,000 or less approved by her supervisor; those over
$1,000, approved by a more senior supervisor.
In January 2005, Nelson began submitting fictitious invoices with her
supervisor’s forged signature. Nelson kept the amount of each fraudulent
invoice below $1,000, and thus had to forge only her supervisor’s signature, and
not that of a more senior supervisor. Between January 2005 and July 2006,
Nelson created and submitted over 300 fraudulent invoices, resulting in a loss
to ANB of over $275,000.
In calculating Nelson’s total offense level, the district court applied, over
Nelson’s objections, the above-described two-level increase under Guideline
Date Filed: 08/22/2012
§ 3B1.3 for abusing a position of private trust. Nelson maintains the district
court erred when it interpreted § 3B1.3 “to apply on the basis of mere
knowledge”. In that regard, she contends: she possessed nothing more than
knowledge of the bank’s operations; and this knowledge alone did not merit
application of the offense-level increase.
Nevertheless, the district court found that it was Nelson’s position, as a
liaison between ANB and marketing vendors, combined with her specialized
knowledge of ANB’s invoice-process for marketing services, that provided her
with the means and discretion to submit and receive payment for fraudulent
invoices. Nelson has failed to show the district court clearly erred in finding that
these facts merited imposition of the two-level increase under Guideline § 3B1.3.
See United States v. Ehrlich, 902 F.2d 327, 330-31 (5th Cir. 1990) (similar facts).
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