17-655-cr
United States v. Eisenhart

                                  UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 31st day of January, two thousand eighteen.

PRESENT:            GUIDO CALABRESI,
                    JOSÉ A. CABRANES,
                    RAYMOND J. LOHIER, JR.,
                                 Circuit Judges.


UNITED STATES OF AMERICA,

                             Appellee,                      17-655-cr

                             v.

DAVID EISENHART,

                             Defendant-Appellant.


FOR APPELLEE:                                           Gregory L. Waples, Paul J. Van de Graaf,
                                                        Assistant United States Attorneys, for
                                                        Eugenia A. P. Cowles, Acting United
                                                        States Attorney, District of Vermont,
                                                        Burlington, VT.

FOR DEFENDANT-APPELLANT:                                Mark A. Kaplan, Kaplan and Kaplan,
                                                        Burlington, VT.

       Appeal from a judgment of the United States District Court for the District of Vermont
(Geoffrey W. Crawford, Judge).

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       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the February 23, 2017 judgment of the District Court be
and hereby is AFFIRMED.

        Defendant-appellant David Eisenhart appeals from a February 23, 2017 judgment following
his plea of guilty to bank fraud in violation of 18 U.S.C. § 1344. When calculating the Sentencing
Guidelines range, the District Court included, pursuant to U.S.S.G. § 3B1.3, a two-level increase for
abuse of a position of private trust. The District Court then sentenced Eisenhart to, inter alia, a year
and a day in prison. On appeal, Eisenhart argues that (1) the two-level increase for abuse of a
position of trust was procedurally unreasonable, and (2) the two-level increase resulted in a
substantively unreasonable prison sentence. We conclude that his arguments are without merit and
affirm.

                                          BACKGROUND1

       The parties agree that between October 2013 and June 2015 Eisenhart perpetrated two
criminal schemes.2 The schemes are as follows:

         Cadillac Escalade Scheme. In October 2013, Eisenhart purchased a 2011 Cadillac Escalade with
financing from a credit union. Two months later, he fraudulently refinanced the loan by lying to
another credit union about the purchase price of the vehicle, and received $58,935.11. Then in April
2015, while still owing over $50,000 on the vehicle-secured loan, Eisenhart fraudulently procured a
clean title from the Vermont Department of Motor Vehicles by falsely reporting that the title was
lost and presenting a forged document purportedly showing that the credit union had released the
lien. This scheme culminated in Eisenhart selling the Escalade to a used car dealer in May 2015 and
pocketing the proceeds for himself.

       Wilkins Enterprises Scheme. From 2011 through March 2015, Eisenhart was a business
manager at Wilkins Enterprises, Inc., a Harley-Davidson motorcycle dealership. As business
manager, Eisenhart was responsible for all paperwork relating to motorcycle sales. Beginning around
2013, he embezzled nearly $17,000 from customers by underreporting cash down payments. He
concealed the embezzlements by altering documents such as bills of sale and warranty documents.




    1
     We assume the parties’ familiarity with the underlying facts, the procedural history of the case,
and the issues on appeal. We refer to the background of the case only as necessary to explain our
decision to affirm.
    2
    The parties also agree that Eisenhart perpetrated a third scheme involving a loan on a BMW
motorcycle, but that scheme is not relevant for purposes of this appeal.

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This scheme continued through March 2015, when the accounting irregularities were discovered and
Eisenhart was fired.

          In December 2015, the Government filed a three-count indictment, covering both schemes.
The parties ultimately reached an agreement in which Eisenhart pled guilty to bank fraud in violation
of 18 U.S.C. § 1344 for the Cadillac Escalade Scheme. In the plea agreement, Eisenhart stipulated
that, if the sentencing court determined he had also committed the Wilkins Enterprises Scheme, it
could consider all the resulting losses in calculating the advisory imprisonment range.

        At sentencing, the District Court considered both the Cadillac Escalade and Wilkins
Enterprises Schemes when calculating the Guidelines advisory range. The District Court thus
included the losses from the Wilkins Enterprises Scheme when calculating a six-level specific offense
characteristics increase for losses exceeding $40,000, and included a two-level increase for
Eisenhart’s abuse of Wilkins Enterprises’ trust when defrauding its customers.

         The District Court arrived at an offense level of thirteen and a criminal history category of I,
resulting in a Guidelines range of twelve to eighteen months. The District Court ultimately
sentenced Eisenhart to one year and one day in prison, to be followed by three years of supervised
release, and ordered Eisenhart to pay $68,212.51 in restitution.

        This appeal followed.

                                            DISCUSSION

         “We review a sentence for procedural and substantive reasonableness under a ‘deferential
abuse-of-discretion standard.’” United States v. Thavaraja, 740 F.3d 253, 258 (2d Cir. 2014) (quoting
Gall v. United States, 552 U.S. 38, 41 (2007)). “The procedural inquiry focuses primarily on the
sentencing court’s compliance with its statutory obligation to consider the factors detailed in 18
U.S.C. § 3553(a), while the substantive inquiry assesses the length of the sentence imposed in light of
the § 3553(a) factors.” United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir. 2008) (internal
alterations, citations, and quotation marks omitted). Legal questions are reviewed de novo and factual
determinations for clear error. United States v. Friedberg, 558 F.3d 131, 133 (2d Cir. 2009).

        I.      Procedural Reasonableness

        Eisenhart argues that the District Court committed procedural error by applying a two-level
abuse of trust enhancement. He rests his argument on a distinction between “relevant” conduct and
“charged” conduct. Specifically, he admits that his conduct in both schemes was “relevant” to
determining his specific offense characteristics and amount owed in restitution, but contends that
the non-charged yet “relevant” conduct cannot be considered for the purposes of the abuse of trust
enhancement. According to Eisenhart, this is in part because the victim of the abuse of trust must
be the victim of the charged offense. We disagree.

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         By its plain language, the Guidelines foreclose Eisenhart’s proposed distinction. Guidelines
Section 3B1.3 provides that, “[i]f the defendant abused a position of public or private trust . . . in a
manner that significantly facilitated the commission or concealment of the offense, increase by 2
levels.” U.S.S.G. § 3B1.3 (emphasis added). “Offense,” in turn, is defined as “the offense of
conviction and all relevant conduct under § 1B1.3 (Relevant Conduct) . . . .” U.S.S.G. § 1B1.1 cmt.
n.1(H) (emphasis added). And where, as here, an offense is “of a character for which § 3D1.2(d)
would require grouping of multiple counts,” “relevant conduct” encompasses all acts or omissions
“that were part of the same course of conduct or common scheme or plan as the offense of
conviction.” U.S.S.G. § 1B1.3(a)(2). Guidelines Section 3B1.3 therefore prescribes abuse of trust
enhancements for all “relevant conduct,” including all acts that were “part of the same course of
conduct or common scheme or plan as the offense of conviction.” Id.

         Eisenhart concedes that his “thefts from Wilkins’ customers . . . [are] relevant conduct to his
offense of conviction,” and does not challenge the inclusion of the losses from those thefts in the
specific offense characteristics and restitution calculations. Appellant Br. at 18. Having so conceded,
Eisenhart cannot also argue that the thefts from the Wilkins Enterprises Scheme were not relevant
conduct for the abuse of trust enhancement. Indeed, the Guidelines expressly reject such a
distinction, specifying that the definition of “relevant conduct” also applies to “adjustments in
Chapter Three,” where the abuse of trust enhancement is found. U.S.S.G. § 1B1.3(a).

        The only question remaining is whether Eisenhart, in fact, abused a position of trust when
committing the Wilkins Enterprises Scheme. See United States v. Nuzzo, 385 F.3d 109, 115 (2d Cir.
2004). Eisenhart does not contest that he abused a position of trust when perpetrating the scheme;
rather, he avers that Wilkins Enterprises is not considered a victim for the purposes of the
enhancement. This argument is meritless, because the enhancement applies where the defendant
abused the trust of a secondary victim of the crime. Friedberg, 558 F.3d at 135–36. Here, Wilkins
Enterprises is a secondary victim, for the business suffered significant staffing disruptions and
reputational damage following the discovery of Eisenhart’s crime. App’x at 45.

        In sum, we conclude that the District Court did not commit procedural error when it applied
a two-level increase for abuse of a position of private trust pursuant to U.S.S.G. § 3B1.3.

        II.     Substantive Reasonableness

       We also conclude that Eisenhart’s prison sentence of one year and one day was substantively
reasonable. Not only was it at the bottom end of the advisory range, it was only one day longer than




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the sentence Eisenhart himself urged in his sentencing memorandum.3 Accordingly, the sentence
comfortably “falls within the broad range that can be considered reasonable under the totality of the
circumstances.” United States v. Jones, 531 F.3d 163, 174 (2d Cir. 2008).

                                          CONCLUSION

        We have reviewed all of the arguments raised by Eisenhart on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the February 23, 2017 judgment of the
District Court.


                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




   3
     The extra day was added for Eisenhart’s benefit. See Joint App’x at 88. Under 18 U.S.C.
§ 3624(b)(1), only “a prisoner who is serving a term of more than 1 year . . . may receive credit
toward the service of the prisoner’s sentence” for good behavior.

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