Court Affirms Abuse-of-Trust Enhancement Where Defendant Lied About Qualifications to Victims

US v. Brewer: Brewer pleaded guilty to wire fraud for his part in a scheme in which he defrauded victims by promising to invest funds given by them (only to spend the money for himself). He did this by falsely representing himself as “a wealth and experienced investor” and promising guaranteed returns. He created fictional documents to further the scheme, provided fictitious updates on the investments’ progress, and stalled when victims attempted to access their returns. At sentencing he admitted that he “took people’s trust” and “let them down.” The district court imposed a top-of-the-Guidelines 33-month sentence after imposing a two-level enhancement for abuse of a position of trust.

On appeal, the Fourth Circuit affirmed Brewer’s sentence. Applying clear error review (rejecting Brewer’s argument for de novo review) and stressing the individualized nature of the issue, the court concluded that the district court did not err in imposing the abuse-of-trust enhancement. Evidence showed that Brewer held himself out as an expert investor who had significant discretion in how to invest funds. It didn’t matter that he was not actually in a position of trust, so long as victims perceived him to be. The court also rejected Brewer’s Campbell-based argument that the abuse-of-trust Guideline itself was vague as to whether it applied to defendants falsely claiming to hold positions of trust.

Second Amendment Doesn’t Allow for Possession of Firearm While Under Indictment

US v. Jackson: In 2020, Jackson was charged in Arizona with (essentially) unlawful possession of a short-barreled rifle. After an initial charge he “lawfully acquired” a handgun, after which he was indicted on the state firearm charge. While that charge was pending Jackson was arrested in Maryland for carrying the handgun without a permit. He was then charged in federal court with possession of a firearm while “under indictment” for a felony. Jackson unsuccessfully moved to dismiss the charge, arguing that it violated the Second Amendment, and was sentenced to time served.

On appeal, the Fourth Circuit affirmed Jackson’s conviction. Applying Bruen, the court rejected the Government’s argument that Jackson could not pass step one of that analysis, concluding that while “historical limitations on firearms rights matter . . . they just matter at Bruen step two.” So, although Jackson’s possession of the handgun fell generally under the scope of the Second Amendment, that history still required a conclusion that the regulation was valid. In reaching that conclusion, the court relied on the history of surety laws (as the Supreme Court relied upon in Rahimi) and “circuit precedent . . . that legislatures can rely on categorical judgments (and past conduct) to disarm those who might be expected to misuse guns.”