Submitted: October 17, 2016
from United States District Court for the District of South
Dakota - Sioux Falls
MURPHY, BEAM, and GRUENDER, Circuit Judges.
Brandriet pleaded guilty to one count of mail fraud and now
appeals the district court's application of a two-level
sentencing enhancement. For the following reasons, we affirm.
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 apparently moved to Watertown only recently to
be near family, and she had spent much of her money fixing up
her house. She asked her employer if she could be sent to
another area of the country where she could earn more money,
and her employer sent her to Pueblo, Colorado. Because
Espelien was without much money, she temporarily lived out of
her car while she looked for affordable housing in Pueblo.
She also occasionally traveled back to South Dakota to check
on her home and belongings. The added expenses caused her to
dip into her retirement savings, postponing her retirement
$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. 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.
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
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.
now appeals the application of this sentencing enhancement.
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 findings for clear error and
its application of the guidelines de novo." United
States v. Barker, 556 F.3d 682, 689 (8th Cir. 2009).
Under clear error review, we ask whether we have a definite
and firm conviction that the district court has committed a
mistake. United States v. Sistrunk, 612 F.3d 988,
991 (8th Cir. 2010). The U.S. Sentencing Guidelines Manual
(U.S.S.G.) directs the district court to increase a
defendant's offense level by two if the offense
"resulted in substantial financial hardship ...