United States v. Bryson ( 2021 )

Case: 21-10061 Document: 00516097398 Page: 1 Date Filed: 11/17/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 17, 2021
No. 21-10061
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Jennifer Leigh Bryson,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:19-CR-139-1
Before Davis, Jones, and Elrod, Circuit Judges.
Per Curiam:*
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 21-10061
Jennifer Leigh Bryson pleaded guilty to interstate transfer of stolen
property. She now challenges the procedural and substantive reasonableness
of her above-guidelines sentence of 42 months in prison.
Pursuant to Gall v. United States, 552 U.S. 38, 51 (2007), we engage in
a bifurcated review of the sentence imposed by the district court. United
States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). We first
consider whether the district court committed a “significant procedural
error,” such as “improperly calculating . . . the Guidelines range,” or “failing
to adequately explain the chosen sentence—including an explanation for any
deviation from the Guidelines range.” Gall, 552 U.S. at 51. If there is no
error or the error is harmless, we review the substantive reasonableness of
the sentence imposed for an abuse of discretion. Id.; see also Delgado-
Martinez, 564 F.3d at 751-53.
Bryson first argues the district court procedurally erred in applying an
enhancement under U.S.S.G. § 3B1.3 for abuse of a position of private trust.
“The district court’s application of section 3B1.3 is a sophisticated factual
determination that we review for clear error.” United States v. Miller,
607 F.3d 144, 147–48 (5th Cir. 2010). Under § 3B1.3, a two-level
enhancement applies if the defendant abused a position of trust “in a manner
that significantly facilitated the commission or concealment of the offense.”
We first must “determine whether the defendant occupied a position of trust
at all.” United States v. Miller, 906 F.3d 373, 377 (5th Cir. 2018) (internal
quotation marks and citation omitted). “A position of trust is characterized
by (1) professional or managerial discretion (i.e., substantial discretionary
judgment that is ordinarily given considerable deference), and (2) minimal
supervision.” Id. (internal quotation marks and citation omitted). If we
determine that the defendant did occupy a position of trust, we “ascertain
the extent to which the defendant used that position to facilitate or conceal
the offense.” Id. at 378 (internal quotation marks and citation omitted).
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Here, the district court’s findings that Bryson had both “substantial
discretionary judgment . . . and . . . minimal supervision,” and that her
position facilitated the commission and concealment of her offense are
plausible in light of the record as a whole. See id. at 377-38 (internal quotation
marks and citation omitted). Bryson was employed as the only general
manager at a small veterinary clinic. In this capacity she received minimal
supervision, had full access to the clinic’s bank account, and conducted about
200 fraudulent transactions and stole almost $600,000 from the clinic’s
account without detection over the course of nearly four years. To conceal
her offense, she represented to the clinic’s owner that she had paid various
vendors when she had not. Accordingly, the district court did not err in
applying § 3B1.3. See id. at 376-79.
Bryson next argues the district court procedurally erred by failing to
adequately explain the sentence. As she did not object in the district court,
review is for plain error. United States v. Coto-Mendoza, 986 F.3d 583, 586
(5th Cir. 2021), cert. denied, 2021 WL 4508433 (U.S. Oct. 4, 2021) (No. 20-
8439). Bryson must demonstrate a forfeited error that is clear or obvious and
that affects her substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If she makes such a showing, we have the discretion to correct the
error but only if it “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal quotation marks, citation,
and brackets omitted). Given the district court’s extensive and careful
explanation for imposing an upward variance based on the 18 U.S.C.
§ 3553(a) factors, she has not demonstrated a clear or obvious error. See id.Finally, Bryson argues her sentence is substantively unreasonable.
Our review is “highly deferential.” United States v. Diehl, 775 F.3d 714, 724
(5th Cir. 2015) (internal quotation marks and citation omitted). A non-
guidelines sentence such as Bryson’s unreasonably fails to reflect the
§ 3553(a) factors if it “(1) does not account for a factor that should have
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No. 21-10061
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.” Id.
Bryson contends that the district court gave significant weight to an
irrelevant or improper factor, insofar as it improperly found the timespan of
her relevant conduct to be indicative of a lack of respect for the law and
imposed an upward variance based on facts that were already accounted for
elsewhere in the guidelines calculation. There is no requirement that a
sentence outside the Guidelines be imposed only in extraordinary cases, see
Gall, 552 U.S. at 47, and a “sentencing court is free to conclude that the
applicable Guidelines range gives too much or too little weight to one or more
factors, and may adjust the sentence accordingly under § 3553(a),” United
States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008). Bryson may
disagree with how the court balanced the § 3553(a) factors, but she has not
demonstrated “a clear error of judgment in balancing” those factors. See
Diehl, 775 F.3d at 724. Given the deference owed to the district court’s
sentencing decision, Bryson has failed to show the court abused its discretion.
See id.
AFFIRMED.
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