                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 10-3256
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa.
Robert Miell,                           *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: September 20, 2011
                                 Filed: November 25, 2011
                                 ___________

Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.
                           ___________

WOLLMAN, Circuit Judge.

       Robert Miell appeals his sentence on mail fraud charges under 18
U.S.C. § 1341. Miell claims that the district court1 erred when applying sentencing
guidelines enhancements for (1) abuse of position of private trust, (2) 250 or more
victims, and (3) loss exceeding $1 million. Because the district court did not clearly
err by applying these enhancements, we affirm.




      1
        The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
                                           I.

       Miell, a landlord and owner of hundreds of rental properties, pleaded guilty to
engaging in two mail fraud schemes.2 The first targeted his insurance company (the
insurance fraud scheme). The second targeted his tenants by systematically and
fraudulently retaining their damage deposits—after inflating the costs of repairs on
tenants’ “Summary of Move-Out Work” forms—and demanding additional alleged
repair costs from tenants (the damage deposit scheme).

       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).3




      2
        Miell pleaded guilty to eighteen counts of mail fraud under 18 U.S.C. § 1341,
one count of perjury under 18 U.S.C. § 1621, and one count of false declaration before
a court under 18 U.S.C. § 1623. He was found guilty at trial of two counts of filing
a false tax return under 26 U.S.C. § 7206(1).
      3
       Counts 7 through 18 of the Third Superseding Indictment, arising from the
damage deposit scheme, were grouped together. The district court also sentenced
Miell to 240 months for the counts arising from the insurance fraud scheme (Counts
1 through 6), 60 months for the perjury and false declaration charges (Counts 19 and
20), and 36 months for the false tax return charges (Counts 22 and 23), all to be served
concurrently, along with other terms and conditions.

                                          -2-
                                           II.

        “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 amount of loss sentencing enhancements.
See United States v. Fazio, 487 F.3d 646, 659 (8th Cir. 2007) (abuse of position of
trust); United States v. Icaza, 492 F.3d 967, 969 (8th Cir. 2007) (number of victims);
United States v. McKanry, 628 F.3d 1010, 1019 (8th Cir. 2011) (amount of loss).

                                           A.

       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

                                           -3-
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.4 Miell was required by Iowa law to hold his tenants’ deposits in a
federally insured bank account or trust account separate from his personal funds and
to return each rental deposit minus legitimate costs within thirty days after termination
of each tenancy. Iowa Code § 562A.12. He retained substantial discretionary
judgment while occupying the highest management position in his companies, a
position that afforded him the opportunity to access tenants’ apartments and money,
exercise control over damage deposits and documentation regarding alleged damages,
and choose the means of repairs. The tenants were incapable of monitoring Miell in
these undertakings, and traditional paths of legal recourse were relatively fruitless
considering the costs of litigation. Moreover, the deposits were a prerequisite to
housing for the tenants, who often were economically vulnerable, unsophisticated, and
thus—unlike large commercial tenants—unable to negotiate a better deal. See In re
Christian, 172 B.R. at 498 (recognizing that landlord-residential tenant relationship
only seldomly is “a relation at arm’s length between equals”).


      4
       It appears that the district court would have imposed the same sentence without
the abuse of trust enhancement, as the court found that the two-level enhancement
“does not even begin to correlate to the nature and extent of the harm that Miell’s
scheme inflicted on people that he expected would be too economically vulnerable or
unsophisticated to do anything about it.” D. Ct. Order of Sep. 27, 2010, at 92.

                                           -4-
       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).




                                          -5-
                                          B.

      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 to challenge the characterization of any
specific tenant identified as a victim negates his challenge concerning the number of
victims. See United States v. Hatchett, 622 F.3d 984, 987 (8th Cir. 2010) (holding
that the government was not required to present direct evidence about circumstances
of each alleged victim to establish number of victims in the absence of a challenge to
the characterization of any specific investor as a victim); see also United States v.
Hartstein, 500 F.3d 790, 796 (8th Cir. 2007) (“The government need not present


                                          -6-
evidence as to each alleged victim, as [defendant] challenges neither the
characterization of many of her lenders as victims nor the loan amounts claimed by
the government as to many of these victims”).

        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.5 In describing the intended scope of Miell’s
fraud, the district court noted that it was “persuaded that the prosecution is correct that
Miell intended to hold as much of each damage deposit as he possibly could, evident
from the commingling of deposits with general income of Miell’s business and the
systematic attempts that Miell made to inflate claims against damage deposits . . . .”
Id. at 64. Although additional evidence might have allowed for a more precise count,
the district court did not commit clear error in concluding that the government had
proved by a preponderance of the evidence that 250 or more people were defrauded
by Miell’s damage deposit scheme.



      5
        The government argues that spoliation of evidence calls for an adverse
inference against Miell concerning the number of victims. Although such a rule has
been applied in civil cases, see Johnson v. Ready Mixed Concrete Co., 424 F.3d 806,
811 (8th Cir. 2005), it has not been applied in an Eighth Circuit criminal case. In light
of the sufficiency of the available evidence that Miell victimized 250 or more people,
we need not take a position on this contention.

                                           -7-
                                          C.

       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, 492 F.3d 956, 960-61 (8th Cir. 2007)).
“[W]e accord particular deference to the loss determination because of the district
court’s unique ability to assess the evidence and estimate the loss.” United States v.
Scott, 448 F.3d 1040, 1044 (8th Cir. 2006) (internal citations omitted).

       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.




                                         -8-
       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 $1,212,891.56.6 The district court’s loss calculation properly
included these sums because they flowed from the government’s evidence that Miell’s
claims against damage deposits were “systematically tainted with fraud,” leading the
district court to conclude that it was “difficult, if not impossible, to give him any
credit for parts of his claims that might have been legitimate, if he had tried to assert
those claims by legitimate means.” D. Ct. Order of Sep. 27, 2010, at 64. Because the
district court made a reasonable estimate of loss, one that is plausible in light of the
record as a whole, its loss determination was not clearly erroneous.

                                          III.

      The sentence is affirmed.
                      ______________________________




      6
       The district court noted that the government’s estimate was “conservative,
particularly in light of the higher estimates resulting from more complete files”
subsequently obtained. D. Ct. Order of Sep. 27, 2010, at 64. The government also
submitted an alternative calculation methodology that included the additional sums
above the damage deposits that Miell intended to seek from tenants. This approach
resulted in an intended loss calculation of $3,676,470.

                                          -9-
