UNITED STATES of America, Plaintiff-Appellee v. Leon J. BRANDRIET, Defendant-Appellant
No. 16-1217
United States Court of Appeals, Eighth Circuit.
October 27, 2016
840 F.3d 558
Submitted: October 17, 2016
applying all of the factors in 3553, those are the ones that I read in the record here a few moments ago, it is my judgment that a sentence of 144 months is the appropriate disposition in the case. That is 12 years in prison. I think it meets each of the factors that I am to take into account, neither too high or too low. It is a lengthy sentence. I am not trying to disguise that. But I think under the circumstances of this case it is deserved.
The district court ruled on the PSR, heard argument from both parties at sentencing, and cited all the
In the absence of procedural error, this court considers the “substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Feemster, 572 F.3d at 461. A district court abuses its discretion when it “(1) fails to consider a relevant factor that should have received significant weight; (2) gives significant weight to an improper or irrelevant factor; or (3) considers only the appropriate factors but in weighing those factors commits a clear error of judgment.” Id.
Hunt claims the district court either did not address, or gave insufficient weight to, his mitigating circumstances—including his substance abuse and ADHD, that his longest prior sentence was only 60 months, that a lower sentence would avoid unwarranted sentencing disparities with co-defendants, and that his criminal history is “exaggerated.” The district court considered and rejected these arguments submitted in Hunt‘s sentencing position paper, and again at sentencing. See United States v. Timberlake, 679 F.3d 1008, 1012 (8th Cir. 2012) (presuming district court considered and rejected defendant‘s arguments raised in sentencing position memorandum and at sentencing hearing). The record supports the district court‘s rejection of Hunt‘s arguments. Hunt‘s extensive criminal history began at a young age, and he had completed different drug treatment programs in the past. Finally, Hunt‘s twin brother, who played a similar role in the conspiracy, was sentenced to 140 months for his involvement. Hunt‘s mid-range sentence is reasonable. See United States v. San-Miguel, 634 F.3d 471, 475 (8th Cir. 2011) (“A sentence that falls within a properly calculated advisory guideline range ... is presumptively reasonable on appeal.“).
The judgment is affirmed.
Counsel who represented the appellee was Jeffrey C. Clapper, AUSA, Sioux Falls, SD.
Before MURPHY, BEAM, and GRUENDER, Circuit Judges.
PER CURIAM.
Leon J. Brandriet pleaded guilty to one count of mail fraud and now appeals the district court‘s1 application of a two-level sentencing enhancement. For the following reasons, we affirm.
I. BACKGROUND
In September 2011, a van struck the home of Mary Ann Espelien in Watertown, South Dakota. Espelien hired Brandriet, an independent insurance adjustor, to act as an agent on her behalf to adjust a claim with her insurer, DeSmet Farm Mutual Insurance Company. They agreed that in exchange Brandriet would keep ten percent of payments made for reimbursement for damages to the structure and contents of Espelien‘s home but that he would not keep any portion of payments made for Espelien‘s living expenses. They also agreed the payments from DeSmet would go directly to Brandriet, who would then disburse the funds according to their agreement. Espelien was distressed that she would not have enough money to afford housing while her badly damaged house was being repaired. Espelien had
Of the $62,643.08 paid by DeSmet to Brandriet, $12,745.31 was earmarked for paying the costs of Espelien‘s living expenses, moving to a new residence, and cleaning and storing her personal property. In total, Brandriet passed on $18,709.69 to Espelien, and $7,561.60 to Mark Kruse, the contractor working on Espelien‘s home (and Brandriet‘s nephew). Because the timing of the payments to Espelien for living and moving expenses is germane to this case, we briefly summarize the relevant specifics.2 DeSmet issued a check to Espelien (but sent to Brandriet) on November 22, 2011, in the amount of $7,269.49 for cleaning personal property, packing materials, and moving charges. Brandriet deposited that check, along with another check from DeSmet, on November 28, and on November 30 he mailed a check to Espelien for $8,000. DeSmet sent another check to Brandriet in the amount of $2,676.82 on December 22, 2011, for rent and living expenses, and Brandriet deposited that amount on January 30, 2012. But he did not forward any funds on to Espelien until April 30, 2012, when he mailed her a check for $735, and on June 1 when he electronically deposited another $735 in Espelien‘s account. Also on June 1, 2012, DeSmet sent a check to Brandriet for $14,567.68, of which $2,175 was for rent and $624 for property storage. Brandriet deposited that check June 6 and that same day sent $561.60 to Kruse for storage fees. (Espelien had been storing her property in Kruse‘s garage while she was living in Colorado, and so this amount apparently compensated Kruse for doing so.) On June 14, 2012, Brandriet sent Espelien a check for $9,239.69.
Brandriet converted roughly $30,000 of Espelien‘s insurance payments to his own use. After an investigation by the FBI and an indictment on five counts of mail fraud, he pleaded guilty to one count and agreed to pay restitution for the amount in all five counts. At sentencing and over Brandriet‘s objection, the district court increased his offense level by two because it found his offense caused Espelien substantial financial hardship. The district court stated:
Having heard the testimony of Miss Espelien, I find [Brandriet‘s offense] did result in substantial financial hardship to her. She ended up having to relocate herself, relocate her business. The Defendant was using money that was hers and should have been hers for the purpose of temporary housing. He didn‘t give the money to her for that purpose. He spent it himself.
Brandriet now appeals the application of this sentencing enhancement.
II. DISCUSSION
Brandriet argues that the district court erred in finding his crime resulted in substantial financial hardship to Espelien. “In reviewing a sentence for procedural error, we review the district court‘s factual
the court shall consider, among other factors, whether the offense resulted in the victim—
....
(iii) suffering substantial loss of a retirement, education, or other savings or investment fund;
(iv) making substantial changes to his or her employment, such as postponing his or her retirement plans; [and]
(v) making substantial changes to his or her living arrangements, such as relocating to a less expensive home[.]
Brandriet acknowledges that Espelien suffered substantial financial hardship, but he asserts that this hardship was caused by the accident and not by his theft of her insurance proceeds. He points out that the financial hardship Espelien suffered was difficulty with living expenses and that he paid Espelien more than the amount she would have received from DeSmet for that purpose. In short, the money he stole was money for repairs to Espelien‘s home and not for her living expenses. Therefore, Brandriet argues, it was the accident rather than his crime that resulted in her need to dip into her retirement savings, postpone her retirement plans, and relocate. The government points out that Brandriet did not pass on DeSmet‘s second payment related to living expenses to Espelien for several months. He deposited the December 22, 2011, check a month later, and did not write a check to Espelien until April 2012, three months later. The government also argues that Brandriet‘s theft resulted in prolonging the amount of time it took to repair Espelien‘s home, thus increasing the cost of Espelien‘s living expenses and causing her substantial financial hardship. Brandriet replies that “the record is not clear whether and how much Brandriet‘s conduct extended the period during which Espelien was displaced from her home.”
We agree with the government. The mere fact that Brandriet paid Espelien an amount greater than the insurance proceeds she would have received for living expenses does not foreclose the district court, within its discretion to which we must defer, from making a factual finding that his theft of approximately $30,000 caused Espelien‘s troubles. Rent and other living expenses are time sensitive, and Brandriet withheld a roughly $2,700 check for that purpose for four months after it was issued, and then he only passed on two payments of $735 for a total of $1,470. Ultimately Brandriet did pass on around $19,000, an amount greater than the roughly $13,000 DeSmet paid for living expenses and moving and related storage costs. But although the money Brandriet stole was earmarked for home repairs, Espelien was under no obligation to spend it for that purpose. She could have decided to use some of that amount to meet her living expenses and delay some or all of the repairs to her home. We agree that direct evidence of the details of how Brandriet‘s theft resulted in Espelien‘s substantial financial hardship are, on this record, thin, and that the district court relied to
III. CONCLUSION
Accordingly, we affirm.
PER CURIAM