United States v. Eric Messer
United States v. Eric Messer
Opinion
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— that the district court erred iii applying the § 3B1.3 sentencing enhancement and that the district court’s sentence was not substantively reasonable. For the following reasons, we AFFIRM.
*802 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 overrated 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 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 white 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,
A.
Messer objected to the “abuse of a position of trust” enhancement before the district court and how 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,
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 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.”
B.
Messer next challenges the substantive reasonableness of the sentence.
*804
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. Campos-Maldonado,
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,
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,
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,
CONCLUSION
For the foregoing reasons we AFFIRM the district court.
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-law data current through December 31, 2025. Source: CourtListener bulk data.