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.