United States v. Eric Messer, 708 F. App'x 801

Messer, a Vice President of Operations, admitted he falsely represented himself as a licensed mechanical engineer to obtain employment and submitted false receipts to be reimbursed for software and a computer he did not purchase.
Presentence Report applied a two-level U.S.S.G. § 3B1.3 enhancement for abuse of a position of trust; Messer objected, arguing any employee could have committed the fraud.
The district court overruled the objection, finding Messer’s senior role and responsibilities put him in a position of trust that facilitated the offense.
The district court also denied Messer an acceptance-of-responsibility reduction after finding numerous misleading or false statements to probation officers and failures to disclose relevant information.
The guidelines range was calculated at 15–21 months (offense level 13, CHC II); the court varied upward to 26 months based on Messer’s deceptive conduct and need for deterrence.
Messer appealed, arguing the § 3B1.3 enhancement was erroneous and that the above-guidelines sentence was substantively unreasonable; the Fifth Circuit affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 3B1.3 enhancement (abuse of position of trust) was proper	Messer: He did not use his position or special skill to facilitate the offense; any employee could have submitted false expense claims	Government/District Court: Messer’s VP role gave him authority and discretion to order and be reimbursed for software/hardware, facilitating concealment	Affirmed: enhancement justified; VP role plausibly made the scheme easier to perform
Whether the above-guidelines sentence (26 months) was substantively unreasonable	Messer: Upward variance was an abuse of discretion and double-counted conduct used to deny acceptance of responsibility	Government/District Court: Upward variance validly based on § 3553(a) factors, including Messer’s repeated deception and probation history	Affirmed: sentence was substantively reasonable and not a clear error of judgment

United States v. Le, 512 F.3d 128 (de novo review of guideline interpretations)
United States v. Ollison, 555 F.3d 152 (two-step § 3B1.3 inquiry and trust-analysis framework)
United States v. Ekanem, 555 F.3d 172 (clearly erroneous standard; factual findings plausible if supported by record)
Gall v. United States, 552 U.S. 38 (abuse-of-discretion standard for substantive-reasonableness review)
United States v. Pruett, 681 F.3d 232 (position that makes conduct easier can satisfy § 3B1.3 second element)
United States v. Campo-Maldonado, 531 F.3d 337 (deferential review of sentencing judge’s § 3553(a) balancing)
United States v. Diehl, 775 F.3d 714 (standards for when a variance is substantively unreasonable)
United States v. Williams, 517 F.3d 801 (district court may consider facts used in guideline calculations when imposing a variance)