Submitted: January 12, 2018
from United States District Court for the Southern District
of Iowa - Council Bluffs
SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
MELLOY, CIRCUIT JUDGE.
convicted Bradley Cornelsen of five counts of wire fraud, in
violation of 18 U.S.C. § 1343. The district
court sentenced Cornelsen to 48 months'
imprisonment and 3 years' supervised release and ordered
him to pay $1, 400, 320.09 in restitution. Cornelsen
challenges the district court's calculation of the loss
amount and the restitution award. We affirm, except as to the
restitution award where we reverse in part and remand for
further consideration in light of Lagos v. United
States, 138 S.Ct. 1684 (May 29, 2018).
2007 until 2014, Cornelsen was employed by MV Transportation
(MVT), a passenger transport company based in Dallas, Texas.
He worked in the company's office in Elk Horn, Iowa. In
2010, Cornelsen was named the company's Chief Financial
Officer. In April 2014, Cornelsen was terminated and MVT
launched an internal review into his corporate activities.
After several months of private investigation, which cost the
company $763, 746.74, MVT referred the matter to the U.S.
January 2016, a grand jury indicted Cornelsen on five counts
of wire fraud. The indictment charged Cornelsen with
defrauding MVT of $297, 985.13 through unauthorized wire
transfers made between January 2013 and February 2015.
trial, David Oswald, a forensic accounting expert, testified
regarding an Ernst & Young (E&Y) audit of
Cornelsen's corporate activities. The E&Y audit
estimated Cornelsen defrauded MVT of a total of $1, 453,
025.42. Accordingly, the government presented evidence of
uncharged, yet related conduct, including unauthorized,
non-business expenditures made using manual checks and a
company credit card. In November 2016, a jury found Cornelsen
guilty on all five counts of wire fraud.
Presentence Investigative Report recommended the court find
an actual loss amount of $1, 150, 320.09 for purposes of
determining the base offense level under United States
Sentencing Guidelines § 2B1.1. At sentencing, Special
Agent Kevin Kohler, a certified public accountant, testified
to the calculations. Kohler used the E&Y audit's $1,
453, 025.42 calculation as a baseline and recommended the
court (1) remove a $206, 250.00 personal loan that did not
appear to be fraudulent, (2) remove $321, 846.75 in
potentially ambiguous vehicle expenditures, and (3) include a
$225, 391.42 unauthorized cash bonus from November 2012.
After making certain credibility findings and determining the
E&Y audit to be a "very conservative" estimate
of the actual losses, the district court adopted the
recommended loss calculation of $1, 150, 320.09. The court
then turned to restitution, awarding $1, 150, 320.09 in
losses, as well as $250, 000.00 in attorney and accountant
fees, for a total restitution award of $1, 400, 320.09.
appeals the district court's calculation of the loss
amount and restitution award, arguing any amount over the
$297, 985.13 stated in the indictment, and any conduct
outside of the time period stated in the indictment, cannot
be included in either calculation. Cornelsen also argues MVT
is not a "victim" under the Guidelines or the
Mandatory Victims Restitution Act (MVRA), 18 U.S.C. §
first to the calculation of the loss amount, we review the
district court's interpretation of the term
"loss" under the Guidelines de novo,
United States v. Fazio, 487 F.3d 646, 657 (8th Cir.
2007), and its factual findings for clear error, United
States v. Bolt, 782 F.3d 388, 390 (8th Cir. 2015). We
grant "deference to the district court's loss
calculations because of its unique ability to assess the
evidence and estimate the loss," Fazio, 487
F.3d at 659 (citations omitted), and require a
"reasonable estimate of loss rather than a precise
determination," United States v. Farrington,
499 F.3d 854, 860 (8th Cir. 2007). The government must
establish the loss amount by a preponderance of the evidence.
Id. at 859.
Guidelines' commentary defines "loss" as
"the greater of actual loss or intended loss."
U.S.S.G. § 2B1.1 cmt. n.3(A); see id. (defining
actual loss as "the reasonably foreseeable pecuniary
harm that resulted from the offense" and defining
intended loss as "(I) . . . pecuniary harm that the
defendant purposefully sought to inflict; and (II) . . .
intended pecuniary harm that would have been impossible or
unlikely to occur"). The commentary also clearly defines
a "victim" as "any person who sustained any
part of the actual loss," with "person"
including "individuals, corporations, companies,
associations, [and] firms." U.S.S.G. § 2B1.1 cmt.
n.1. Based on § 2B1.1 and the associated commentary, we
conclude the district court correctly determined MVT was a
victim and suffered actual and intended pecuniary losses as a
result of Cornelsen's fraudulent activities.
"we take a broad view of what conduct and related loss
amounts can be included in calculating loss." United
States v. DeRosier, 501 F.3d 888, 896 (8th Cir. 2007).
"Relevant conduct under the guidelines need not be
charged to be considered in sentencing, and it includes all
acts and omissions 'that were part of the same course of
conduct or common scheme or plan as the offense of
conviction.'" United States v. Radtke, 415
F.3d 826, 841 (8th Cir. 2005) (quoting U.S.S.G. §
1B1.3(a)(2)); see also United States v. Boesen, 541
F.3d 838, 850-51 (8th Cir. 2008) (affirming a district
court's loss calculation under U.S.S.G. § 2B1.1 when
the court included unindicted criminal activity). To
constitute a "common scheme or plan," two or more
offenses "must be substantially connected to each other
by at least one common factor, such as common victims, common
accomplices, common purpose, or similar modus
operandi." U.S.S.G. § 1B1.3 cmt. n.5(B)(i).
"Offenses that do not qualify as part of a common scheme
or plan may nonetheless qualify as part of the same course of
conduct if they are sufficiently connected or related to each
other as to warrant the conclusion that they are a part of a
single episode, spree, or ongoing series of offenses."
U.S.S.G. § 1B1.3 cmt. n.5(B)(ii).
conclude the district court did not commit clear error in
finding that the uncharged conduct, including the
unauthorized use of manual checks and credit card charges,
was a part of Cornelsen's common scheme or plan or the
same course of conduct. As the court reasonably relied on the
E&Y audit and ...