United States v. Suarez

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 21, 2025
• Docket: 24-50551
• Status: Unpublished

Opinion

Case: 24-50551 Document: 64-1 Page: 1 Date Filed: 03/21/2025

United States Court of Appeals for the Fifth Circuit United States Court of Appeals ____________ Fifth Circuit

FILED No. 24-50551 March 21, 2025 Summary Calendar Lyle W. Cayce ____________ Clerk

United States of America,

Plaintiff—Appellee,

versus

Diana Suarez,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 3:23-CR-1148-1 ______________________________

Before Haynes, Higginson, and Douglas, Circuit Judges. Per Curiam: * Diana Suarez challenges the 24-month, within-guidelines sentence she received upon her guilty plea to theft concerning programs receiving federal funds. Suarez contends, first, that the district court clearly erred by applying a two-level increase under U.S.S.G. § 3B1.3 based on her abuse of a position of public or private trust and, second, that the district court plainly

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 24-50551 Document: 64-1 Page: 2 Date Filed: 03/21/2025

No. 24-50551

erred by failing to consider and apply a two-level reduction under U.S.S.G. § 4C1.1(a) because she has zero criminal history points. The Guidelines permit a two-level increase “[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.” U.S.S.G. § 3B1.3. We need not decide whether Suarez’s position as city secretary of Dell City, Texas, entailed sufficient managerial discretion to be deemed a “position of trust” under U.S.S.G. § 3B1.3 or significantly contributed to her facilitation or concealment of the offense because the Government has met its burden to show that any error was harmless. See United States v. Martinez-Romero, 817 F.3d 917, 924 (5th Cir. 2016) (per curiam). The district court considered the alternative guidelines calculations, cited relevant 18 U.S.C. § 3553(a) factors, and made clear that even absent the U.S.S.G. § 3B1.3 adjustment, in no circumstance would it have sentenced Suarez to less than 24 months given the nature of her criminal conduct and its effects on the municipality. See United States v. Leontaritis, 977 F.3d 447, 452 (5th Cir. 2020). As for a reduction under U.S.S.G. § 4C1.1(a), Suarez fails to show that the district court committed reversible plain error by not considering and applying the reduction. See Molina-Martinez v. United States, 578 U.S. 189, 194 (2016); Puckett v. United States, 556 U.S. 129, 135 (2009). Suarez fails to show a reasonable probability that but for any error in failing to consider a U.S.S.G. § 4C1.1(a) reduction, she would have received a lesser sentence. See United States v. Johnson, 907 F.3d 304, 305 (5th Cir. 2018) (per curiam); U.S.S.G. § 4C1.1(a)(6). AFFIRMED.