United States v. Suzanne Delyon , 618 F. App'x 747 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4803
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SUZANNE DELYON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:14-cr-00032-CMH-1)
Submitted: May 20, 2015 Decided: August 14, 2015
Before MOTZ, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Alan H. Yamamoto, Alexandria, Virginia, for Appellant. Dana J.
Boente, United States Attorney, Maya D. Song, Assistant United
States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Suzanne Delyon appeals her jury conviction and 12-month-
and-one-day sentence for one count of conspiracy to commit wire
fraud, in violation of 18 U.S.C. § 1349 (2012); and six counts
of wire fraud, in violation of 18 U.S.C. §§ 2, 1343 (2012).
Delyon’s crimes stemmed from a 2009 conspiracy to defraud into
which she entered with her co-defendant, Byoung Kyung Kim. *
During the conspiracy, Delyon and Kim agreed to overstate the
payroll expenses of Kim’s business, EE Mart FC, LLC (“EE Mart”),
to Travelers Property Casualty Company of America (“Travelers”),
in order to secure a larger insurance payout for a fire that
destroyed EE Mart.
Delyon asserts that the Government’s evidence was
insufficient to establish that she and Kim conspired to submit
to Travelers the names of fake employees, or that she intended
to defraud Travelers when she submitted to it fraudulent payroll
lists and IRS tax forms. Delyon also asserts that the district
court erred when it calculated the amount of restitution she
owed Travelers, and also overstated the loss amount used to
*
Kim and Delyon were tried together and both convicted and
sentenced identically. Kim passed away after he filed a related
appeal, and we granted counsel’s motion to have the appeal
dismissed and the case remanded to the district court with
instructions to vacate the judgment of conviction.
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calculate her Sentencing Guidelines range. Finding no error, we
affirm.
A defendant challenging the sufficiency of the evidence
faces “a heavy burden[.]” United States v. McLean, 715 F.3d
129, 137 (4th Cir. 2013) (internal quotation marks omitted).
The jury verdict must be sustained if “there is substantial
evidence in the record, when viewed in the light most favorable
to the government, to support the conviction.” United States v.
Jaensch, 665 F.3d 83, 93 (4th Cir. 2011) (internal quotation
marks omitted). “Substantial evidence is evidence that a
reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.” Id. (internal quotation marks and brackets
omitted). “Reversal for insufficient evidence is reserved for
the rare case where the prosecution’s failure is clear.” United
States v. Ashley, 606 F.3d 135, 138 (4th Cir. 2010) (internal
quotation marks omitted). We have reviewed the record and have
considered Delyon’s arguments and find that viewed in the light
most favorable to the Government, substantial evidence exists to
support the jury’s verdict.
We review Delyon’s sentence for abuse of discretion.
United States v. Cobler, 748 F.3d 570, 581 (4th Cir.), cert.
denied, 135 S. Ct. 229 (2014). “The first step in our review of
a sentence mandates that we ensure that the district court
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committed no significant procedural error, such as improperly
calculating the Guidelines range or selecting a sentence based
on clearly erroneous facts.” United States v. Llamas, 599 F.3d
381, 387 (4th Cir. 2010) (internal quotation marks and
alterations omitted). Thus, to avoid procedural error, a
sentencing court must first correctly calculate the applicable
Guidelines range. See United States v. Hernandez, 603 F.3d 267,
270 (4th Cir. 2010). “In assessing whether a sentencing court
has properly applied the Guidelines, we review factual findings
for clear error and legal conclusions de novo.” Llamas, 599
F.3d at 387.
Accordingly, the loss attributable to fraud for purposes of
calculating a defendant’s Guidelines range is a factual finding
that is reviewed for clear error. United States v.
Allmendinger, 706 F.3d 330, 341 (4th Cir. 2013). It is
important to note that in reviewing a district court’s loss
calculation, the amount of loss attributed to a defendant need
not be determined with precision. Rather, a district court
“need only make a reasonable estimate of the loss, given the
available information.” United States v. Miller, 316 F.3d 495,
503 (4th Cir. 2003). Indeed, 18 U.S.C.A. § 3742(e) (West 2000 &
Supp. 2014) provides that “[t]he court of appeals shall . . .
accept the findings of fact of the district court unless they
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are clearly erroneous and . . . shall give due deference to the
district court’s application of the guidelines to the facts.”
In addition, the Mandatory Victims Restitution Act of 1996
requires the district court to order restitution for all losses
that result from a criminal scheme or conspiracy. 18 U.S.C.A.
§ 3663A(a)(1), (c)(1) (West 2000 & Supp. 2014). This Court
“review[s] the district court’s restitution award for an abuse
of discretion.” United States v. Catone, 769 F.3d 866, 875 (4th
Cir. 2014).
Delyon asserts that the district court’s restitution
calculation, as well as the loss amount with which she was
attributed for purposes of her Guidelines range calculation,
should be significantly reduced. Despite Delyon’s arguments,
the district court concluded that the special agent who
testified at Delyon’s sentencing was “clear in his testimony of
the amount that was requested and paid by Travelers and not paid
out in legitimate expenses.” Because the district court reached
this conclusion after a hearing, and in the absence of evidence
to rebut the Government’s evidence of loss, we defer to the
district court’s decision to credit the Government’s loss
analysis. See, e.g., United States v. Thompson, 554 F.3d 450,
452 (4th Cir. 2009) (“[W]hen a district court’s factual finding
is based upon assessments of witness credibility, such finding
is deserving of the highest degree of appellate deference.”)
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(internal quotation marks omitted). Accordingly, we discern no
reversible error in the district court’s loss calculation or
restitution order.
Based on the foregoing, we affirm the district court’s
judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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