United States v. Adilia Bermudez ( 2013 )

FILED
NOT FOR PUBLICATION DEC 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50544
Plaintiff - Appellee, D.C. No. 2:12-cr-00673-GHK-1
v.
MEMORANDUM*
ADILIA BERMUDEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
George H. King, Chief Judge, Presiding
Submitted December 17, 2013**
Before: GOODWIN, WALLACE, and GRABER, Circuit Judges.
Adilia Bermudez appeals the 60-month sentence imposed following her
guilty-plea conviction for two counts of bank fraud, in violation of 18 U.S.C.
§ 1344. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Bermudez contends that the district court committed a Guidelines
calculation error when it applied a two-level enhancement for abuse of trust under
U.S.S.G. § 3B1.3. We review for plain error because Bermudez forfeited the
challenge by failing to raise it at the time of sentencing. See United States v.
Guzman-Mata, 579 F.3d 1065, 1068 (9th Cir. 2009).
Any error in applying the enhancement was not plain because the record
suggests that Bermudez, as Accounting Controller of Mel-Jen, Inc., had
professional discretion and was “subject to significantly less supervision than
employees whose responsibilities are primarily non-discretionary in nature.”
U.S.S.G. § 3B1.3 cmt. n.1. Moreover, Bermudez’s position of trust “contributed in
some significant way to facilitating the commission or concealment of the
offense,” id., because her role enabled her to conceal her offense by preparing
misleading daily financial reports and by ensuring that questions about the
fraudulent checks were routed through her.
We need not consider the issue of the alleged waiver.
AFFIRMED.
2 12-50544