United States v. Denise Sharp

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 23, 2019
• Docket: 19-30072
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-30072

Plaintiff-Appellee, D.C. No. 4:17-cr-00069-BMM-6

v. MEMORANDUM* DENISE L. SHARP,

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding

Submitted October 15, 2019**

Before: FARRIS, LEAVY, and RAWLINSON, Circuit Judges.

Denise L. Sharp appeals from the district court’s judgment and challenges

the 9-month sentence imposed following her guilty-plea conviction for theft from

an Indian tribal government receiving federal funding, in violation of 18 U.S.C.

§ 666(a)(1)(A), and wire fraud, in violation of 18 U.S.C. § 1343. We have

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). jurisdiction under 28 U.S.C. § 1291, and we affirm.

Sharp first contends that the court erred by applying a two-level

enhancement for abuse of a position of trust pursuant to U.S.S.G § 3B1.3. We

review the court’s factual findings for clear error and its application of the

Sentencing Guidelines to those findings for abuse of discretion. See United States

v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc). The record reflects

that Sharp was a personnel manager who was subject to minimal supervision and

had the discretion to set extended working hours, including the fraudulent overtime

hours that formed the basis of her offense. The court did not clearly err by finding

that Sharp held a position of trust that she used to conceal the commission of the

offense. See U.S.S.G § 3B1.3 cmt. n.1; United States v. Laurienti, 731 F.3d 967,

973 (9th Cir. 2013) (“[T]he presence or lack of professional or managerial

discretion represents the decisive factor in deciding whether a defendant occupied

a position of trust.” (internal quotation marks omitted)).

Sharp also argues that the sentence is substantively unreasonable. Contrary

to Sharp’s contention, the district court considered the totality of the

circumstances, including the amount of fraudulent overtime attributed to her, and

did not abuse its discretion in imposing the significantly below-Guidelines

sentence. See Gall v. United States, 552 U.S. 38, 51 (2007).

AFFIRMED.

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