WOLLMAN, Circuit Judge.
Robert Miell appeals his sentence on mail fraud charges under 18 U.S.C. § 1341. Miell claims that the district court
Miell, a landlord and owner of hundreds of rental properties, pleaded guilty to engaging in two mail fraud schemes.
At sentencing, the district court concluded that Miell's total offense level for the damage deposit scheme was 35, with a Criminal History Category of I, for a United States Sentencing Guidelines (Guidelines or U.S.S.G.) range of 168 to 210 months' imprisonment. In calculating the offense level, the district court applied a two-level enhancement for abuse of position of private trust, a six-level enhancement for the offense involving 250 or more victims, and a sixteen-level enhancement for the victims' losses exceeding $1 million. The district court varied upward to 240 months, the statutory maximum for the mail fraud offenses, based on the factors set forth in 18 U.S.C. § 3553(a).
"We review the district court's construction and application of the sentencing guidelines de novo." United States v. Fiorito, 640 F.3d 338, 350 (8th Cir.2011). We review for clear error the district court's findings of fact regarding the abuse of position of trust, number of victims, and
Under U.S.S.G. § 3B1.3, the government must prove two elements by a preponderance of the evidence in order for the abuse of trust enhancement to apply: (1) defendant occupied a position of private trust, and (2) defendant used this position in a manner that significantly facilitated the commission or concealment of the offense. U.S.S.G. § 3B1.3; see also United States v. Olson, 22 F.3d 783, 786 (8th Cir.1994) (quoting United States v. Brelsford, 982 F.2d 269, 271 (8th Cir.1992)). The application of U.S.S.G. § 3B1.3 "is fact intensive because it turns on the precise relationship between the defendant and her victims and therefore cannot be decided on the basis of generalities." United States v. Jenkins, 578 F.3d 745, 753 (8th Cir.2009) (quoting United States v. Baker, 200 F.3d 558, 564 (8th Cir.2000)).
Miell contends that the landlord-tenant relationship is not a position of private trust. A position of private trust is "characterized by professional or managerial discretion (i.e., substantial discretionary judgment that is ordinarily given considerable deference)." U.S.S.G. § 3B1.3, cmt. n.1. Except for the district court in this case, no court has ruled on whether a landlord is in a position of private trust to tenants concerning damage deposits under U.S.S.G. § 3B1.3. We have, however, found similar relationships to constitute positions of private trust. See, e.g., Fazio, 487 F.3d at 659 (realtor-client); United States v. Anderson, 349 F.3d 568, 573-74 (8th Cir. 2003) (investment advisor-client); Baker, 200 F.3d at 564 (licensed insurance agent-client); see also Guarracino v. Hoffman, 246 B.R. 130, 134 (Bankr.D.Mass.2000) (noting that a trust relationship exists between landlord and tenant with respect to security deposits); Brixius v. Christian (In re Christian), 172 B.R. 490, 497-98 (Bankr.D.Mass.1994) (recognizing fiduciary relationship between a landlord and tenant with respect to security deposits).
We conclude that, in light of the circumstances, the district court did not err in finding that Miell occupied a position of trust vis-a-vis his tenants regarding their damage deposits.
Miell also used his essentially unreviewable position of authority to facilitate and conceal his fraud, as his possession of the deposits put him in a position of power relative to tenants. His possession of tenants' rental units following tenants' departures, along with control of paperwork itemizing the costs of repairs, enabled him to commit and conceal the fraud by inflating repair costs and doctoring or destroying the applicable records. Because tenants did not repair the rental units, they lacked first-hand knowledge about the actual costs of such repairs and had to rely to an extent on Miell's representations regarding repairs and costs. Those representations ordinarily are given considerable deference: Miell, the fourth-largest property owner in Linn County, Iowa, controlled the property and records, and the tenants—many of whom, as noted above, were unsophisticated and economically disadvantaged—faced significant costs and barriers to challenging Miell's representations concerning the damage deposits.
Miell further argues that the district court erred by finding that he held a position of trust because his tenants did not in fact trust him. Whether a defendant holds a position of trust with respect to a victim, however, turns on the nature of the defendant's position and amount of discretion and control relative to the victim, not whether the victim subjectively trusted the defendant. See United States v. Santoro, 302 F.3d 76, 81-82 (2d Cir. 2002) (rejecting argument that defendant could not have abused position of trust because clients did not trust him); see also United States v. Bailey, 227 F.3d 792, 802 (7th Cir.2000) (noting that U.S.S.G. § 3B1.3 enhancement does not require victim's subjective belief that defendant occupies position of trust).
Miell appeals the application of a six-level enhancement under U.S.S.G. § 2B1.1(b)(2)(C) for a crime affecting 250 or more victims. He concedes that 140 tenants were victims but disputes the existence of any additional victims.
"If a defendant objects to factual statements in a PSR, then the sentencing court may not rely on those facts unless the government proves them by a preponderance of the evidence." United States v. Replogle, 628 F.3d 1026, 1029 (8th Cir. 2011) (citing United States v. Poor Bear, 359 F.3d 1038, 1041 (8th Cir.2004)). The Final Amended Presentence Investigation Report (PSR) listed 272 individuals who were identified, or came forward following a newspaper notice, as victims of the damage deposit fraud scheme and who submitted victim impact statements reporting a specific loss. Miell objected to the count being more than 250, arguing that a majority of the 272 claiming a loss "provide[d] no documentation or supporting reason for their alleged loss sustained . . ." Objections of Def. to PSR at ¶ 99. Miell did not object, however, with respect to any particular victim's reported loss. Nor did he object to the factual section of the PSR detailing the systematic nature of his damage deposit fraud scheme.
Miell's admissions concerning the systematic nature of his fraud scheme, together with the evidence presented at his sentencing hearings, constituted evidence sufficient to establish by a preponderance of the evidence that the above-mentioned 272 individuals were victims. Miell's failure
Additionally, the district court concluded that the government proved by a preponderance of the evidence that the number of victims was "something over 300 and perhaps more than 1,000," D. Ct. Order of Sep. 27, 2010, at 91, based on the systematic nature of Miell's fraud, during which Miell regularly inflated costs of repairs in damage deposit deductions. The district court credited as "a reasonable estimate" the report and testimony of forensic accountant Kerry Bolt, who calculated that Miell returned some portion of a deposit only 26% of the time and that Miell failed to return any portion of a deposit to 2,030 tenants during the offense conduct period. D. Ct. Order of Sep. 27, 2010, at 63. Spoliation of evidence and otherwise poor record-keeping prevented a complete analysis of tenant files and precise determination of the number of victims.
Miell appeals the district court's application of a sixteen-level enhancement under U.S.S.G. § 2B1.1(b)(1)(I) for the loss caused by the damage deposit scheme exceeding $1 million. Loss under the Guidelines "is the greater of actual loss or intended loss." U.S.S.G. § 2B1.1, cmt. n.3(A). Because of the impracticability of reviewing more than 2,000 tenant files, particularly considering the destruction of pertinent records, the district court determined intended loss.
"The government must prove the intended loss by a preponderance of the evidence." United States v. Holthaus, 486 F.3d 451, 454 (8th Cir.2007) (quoting United States v. Staples, 410 F.3d 484, 490 (8th Cir.2005)). "The district court's method for calculating the amount of loss must be reasonable, but the loss need not be determined with precision." United States v. Hodge, 588 F.3d 970, 973 (8th Cir.2009) (quoting United States v. McIntosh,
In determining intended loss, courts examine a defendant's subjective intent. Hartstein, 500 F.3d at 798 (concluding that the "defendant's actual, subjective intent . . . should drive our analysis"). The government characterizes Miell's subjective intent broadly and contends that he intended to keep every damage deposit all of the time. Evidence supporting this view includes Miell's diversion of damage deposits into his general revenue account rather than segregating the deposits into a separate bank or trust account as required by Iowa law, and his scheme to fraudulently alter tenants' move-out forms as a matter of course to inflate the alleged damages caused by the tenants.
The district court based its calculation of loss exceeding $1 million on the government's evidence of the approximate number of Miell's rental units multiplied by the average damage deposit amount per unit, which resulted in a total of $1,448,530.88. See U.S.S.G. § 2B1.1, cmt. n.3(C) (noting that the loss estimate may be based on "[t]he approximate number of victims multiplied by the average loss to each victim"). The government then subtracted $235,075.73 from this total based on evidence that Miell returned some portion of damage deposits 26% of the time and that the average amount returned on those occasions was $329.51, resulting in a total intended loss of $1,212,891.56.
The sentence is affirmed.