United States v. Fiorito

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 10-1969
___________

United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Michael Fiorito, *
*
Appellant. *
___________

Submitted: March 15, 2011
Filed: May 23, 2011
___________

Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.
___________

GRUENDER, Circuit Judge.

After a federal jury found Michael Fiorito guilty of six counts of mail fraud and
one count of conspiracy to commit mail fraud, the district court1 sentenced him to a
total of 270 months’ imprisonment. Fiorito appeals, raising multiple challenges to his
conviction and sentence. For the following reasons, we affirm.

1
The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota.
I. BACKGROUND

In 2006, Detective Eric Kleinberg of the Minnesota Financial Crimes Task
Force began investigating Michael Fiorito, a mortgage broker, in connection with an
equity-stripping scheme that allegedly had defrauded Constance Dang of $36,000 of
her home’s equity. Detective Kleinberg interviewed Dang, viewed records from the
local police department, and obtained financial and real estate documents both from
the title company involved in the sale of Dang’s home and from Fiorito’s bank. As
he pursued his investigation, Detective Kleinberg learned that Fiorito was under
scrutiny by other state and private investigators for similar schemes involving several
other victims. After several months of investigation, Detective Kleinberg obtained a
warrant to search Fiorito’s residence for incriminating documents.

Ultimately, a federal grand jury returned an indictment charging Fiorito and his
assistant, Kristin Jerde, with conspiracy and mail fraud. Jerde pled guilty and agreed
to cooperate against Fiorito. A grand jury returned a superseding indictment that
charged Fiorito with one count of conspiracy to commit mail fraud, a violation of 18
U.S.C. § 371, and six counts of mail fraud, violations of 18 U.S.C. § 1341. The
indictment alleged that Fiorito had defrauded seventeen homeowners of more than
$400,000.

Fiorito moved to suppress the fruits of Detective Kleinberg’s search of his
residence, arguing that the warrant was not supported by probable cause and lacked
particularity. After a suppression hearing, a magistrate judge2 recommended that the
motion to suppress be denied. Following de novo review, the district court adopted
the magistrate judge’s report and recommendation and denied Fiorito’s motion to
suppress. The case proceeded to trial.

2
The Honorable Janie S. Mayeron, United States Magistrate Judge for the
District of Minnesota.

-2-
 With some variation between victims, Fiorito’s basic scheme was to convince
financially desperate homeowners to refinance or sell their homes to him and then
clandestinely intercept their proceeds checks—representing the equity realized in the
sale or refinance—and deposit them into his bank account. According to Jerde’s
testimony, “[w]e would find vulnerable homeowners who were in foreclosure, and
Mr. Fiorito or someone else would purchase their home and take their equity check,
steal it and put it in his bank account.” For example, Dang testified that Fiorito had
offered to “refinance [my] home, [and] get me a considerable amount of money.”
According to Dang’s testimony, Fiorito convinced her to refinance her home, but
instead he had her sign papers at closing that surreptitiously effected a sale of the
house to Fiorito. After closing, Fiorito told her that she would be getting a FedEx
package but that she should not open it. Fiorito intercepted the package, which
contained Dang’s $36,000 seller’s proceeds check, and convinced her to endorse the
check to him. In return, he wrote her a check for $2,200, which he represented to be
her profit from the transaction. The Government called ten other homeowners who
testified that Fiorito had victimized them through similar schemes.

After the trial concluded, the jury returned a verdict of guilty on all seven
counts. The district court denied Fiorito’s motion for a judgment of acquittal. After
a two-day sentencing hearing, the court assigned Fiorito a total offense level of 31, a
criminal history category of VI, and an advisory sentencing guidelines range of 188-
235 months’ imprisonment. The total offense level was obtained by grouping all
seven counts and adding 24 levels in enhancements to a base offense level of seven.
These enhancements included a two-level increase for vulnerable victims, see
U.S.S.G. § 3A1.1(b), a two-level increase for sophisticated means, see
§ 2B1.1(b)(9)(C), and a two-level increase for abuse of a position of trust, see
§ 3B1.3. Based on the factors in 18 U.S.C. § 3553(a), the court granted the
Government’s motion for an upward variance and sentenced Fiorito to 270 months’
imprisonment. Fiorito now appeals, challenging both his conviction and sentence.

-3-
II. DISCUSSION

Fiorito raises five points on appeal. First, Fiorito challenges the district court’s
denial of his motion to suppress. Second, Fiorito challenges the district court’s denial
of his motion for a judgment of acquittal on counts three, four, five, and six. Third,
Fiorito argues that the district court erred in refusing to give the jury an instruction
regarding the requisite mental state for conspiracy to commit mail fraud. Fourth,
Fiorito contends that the evidence presented by the Government at trial prejudicially
varied from the scheme alleged in the indictment. Fifth, Fiorito challenges his
sentence, asserting that the district court committed procedural error and imposed a
sentence that is substantively unreasonable.3

A. Motion to Suppress

Fiorito challenges the denial of his motion to suppress, arguing first that the
district court erred in applying the Leon good faith exception to the exclusionary rule.
See United States v. Leon, 468 U.S. 897 (1984). On appeal from the denial of a
motion to suppress, we review the district court’s factual findings for clear error and
its legal conclusions de novo. See United States v. Perry, 531 F.3d 662, 665 (8th Cir.
2008). “[W]e defer to a finding of good faith unless clearly erroneous, but subject
conclusions about the objective reasonableness of the officers’ reliance to de novo
review.” United States v. Jackson, 67 F.3d 1359, 1366 (8th Cir. 1995).

In pursuit of a warrant to search Fiorito’s residence, Detective Kleinberg
submitted an affidavit that alleged facts related to only one victim, Constance Dang.

3
Fiorito submitted a pro se supplemental brief raising additional challenges to
the sufficiency of the evidence and the calculation of his advisory sentencing
guidelines range. Because Fiorito is represented by counsel, we decline to consider
these additional arguments. See United States v. Moore, 481 F.3d 1113, 1114 n.2 (8th
Cir. 2007).

-4-
However, Detective Kleinberg requested and obtained a warrant authorizing him to
conduct a broad search of Fiorito’s residence for incriminating documents beyond
those pertaining to Dang. At the suppression hearing, Fiorito argued that this warrant
was unsupported by probable cause. The district court held that the affidavit provided
probable cause to search for documents related to Dang but that the warrant lacked
probable cause to the extent that it authorized a search for documents unrelated to
Dang. The court concluded, however, that suppression was not warranted due to the
Leon good-faith exception. We assume without deciding that the district court was
correct to find insufficient probable cause because we agree that the Leon good-faith
exception applies.

The Fourth Amendment commands that “no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation.” U.S. Const. amend. IV. The
ordinary sanction for police violation of Fourth Amendment limitations has long been
suppression of the evidentiary fruits of the transgression. See Weeks v. United States,
232 U.S. 383 (1914); see also Mapp v. Ohio, 367 U.S. 643 (1961). However, this
exclusionary rule is not applied in cases “when an officer acting with objective good
faith has obtained a search warrant from a judge or magistrate and acted within its
scope.” Leon, 468 U.S. at 920. In cases of good faith, the evidence, although seized
pursuant to a warrant that lacked probable cause, nonetheless is admissible at trial.
Leon identified four circumstances in which an officer’s reliance on a warrant is not
in objective good faith:

(1) when the affidavit or testimony supporting the warrant contained a
false statement made knowingly and intentionally or with reckless
disregard for its truth, thus misleading the issuing judge; (2) when the
issuing judge wholly abandoned his judicial role in issuing the warrant;
(3) when the affidavit in support of the warrant is so lacking in indicia
of probable cause as to render official belief in its existence entirely
unreasonable; and (4) when the warrant is so facially deficient that no
police officer could reasonably presume the warrant to be valid.

-5-
Perry, 531 F.3d at 665 (quoting United States v. Proell, 485 F.3d 427, 431 (8th Cir.
2007)). Fiorito argues on appeal that the third circumstance is present here because
Detective Kleinberg’s affidavit was “so lacking in indicia of probable cause” as to
render “entirely unreasonable” a belief in the existence of probable cause to search for
documents beyond those related to Dang. In determining whether Detective Kleinberg
“harbored an objectively reasonable belief in the existence of probable cause” to
search for documents unrelated to Dang, see Leon, 468 U.S. at 926, “we must look to
the totality of the circumstances, including any information known to the officer[] but
not presented to the issuing judge,” Perry, 531 F.3d at 665 (quoting Proell, 485 F.3d
at 431).

At the suppression hearing, Detective Kleinberg testified that although his
investigation had focused on the Dang transaction, he had been informed about other
investigations involving other victims. For example, Detective Bill Lannon of the
Duluth Police Department related information to Detective Kleinberg about another
victim, Cynthia Jerris, whom Fiorito had defrauded through an equity-stripping
scheme similar to the one involving Dang. Shelly Gonzalez, an employee of a title
company that handled some of Fiorito’s closings, informed Detective Kleinberg that
Fiorito had come under suspicion for two real estate closings in addition to the closing
involving Dang. And Julia Palumbo from the Minnesota Attorney General’s Office
related that Fiorito was under investigation by her office as “an active, fairly
aggressive equity-stripping suspect who had victimized several
individuals . . . [including] Dang.”

Fiorito argues that Detective Kleinberg’s failure to include this information in
his affidavit shows that Detective Kleinberg knew that the information was unreliable,
precluding us from considering that information in the good-faith analysis. Detective
Kleinberg testified that he did not include any of this information in his affidavit
because Dang was the only victim he had investigated personally and he felt that “I
would only be guessing until after I had sat down and conducted complete

-6-
investigations on those [other] individuals.” However, there is no requirement that an
affiant have first-hand knowledge of every allegation he includes in his affidavit. See,
e.g., United States v. Jones, 471 F.3d 868, 874 (8th Cir. 2006) (affirming the validity
of a warrant even though “a detective other than the affiant [was] the source of the
information in the affidavit”). Detective Kleinberg’s mistaken belief to the contrary
does not prevent us from considering the information related to him by other
investigators when conducting the Leon inquiry, which “‘is confined to the objectively
ascertainable question whether a reasonably well trained officer would have known
that the search was illegal’ in light of ‘all of the circumstances.’” Herring v. United
States, 555 U.S. ---, 129 S. Ct. 695, 703 (2009) (quoting Leon, 468 U.S. at 922 n.23).
Like the district court, we conclude that Detective Kleinberg’s knowledge of
information regarding victims beyond Dang provided sufficient indicia of probable
cause to make his search for documents related to other victims objectively
reasonable. See United States v. Warford, 439 F.3d 836, 841-42 (8th Cir. 2006).

Next, Fiorito argues that because the search warrant authorized a search for
“[e]ntire files involving [Fiorito],” it violated the Fourth Amendment’s mandate that
“no Warrants shall issue . . . [unless] particularly describing the place to be searched,
and the persons or things to be seized,” U.S. Const. amend. IV. Whether a warrant
satisfies the Fourth Amendment’s particularity requirement is a question of law that
we review de novo. See United States v. Brobst, 558 F.3d 982, 991 (9th Cir. 2009);
United States v. Brooks, 427 F.3d 1246, 1251 (10th Cir. 2005).

“The particularity requirement ‘is a standard of practical accuracy rather than
a hypertechnical one.’” United States v. Thurman, 625 F.3d 1053, 1057 (8th Cir.
2010) (quoting United States v. Peters, 92 F.3d 768, 769-70 (8th Cir. 1996)), cert.
denied, 563 U.S. ---, 79 U.S.L.W. 3553 (2011). “[W]hether a warrant fails the
particularity requirement cannot be decided in a vacuum. The court will base its
determination on such factors as the purpose for which the warrant was issued, the
nature of the items to which it is directed, and the total circumstances surrounding the

-7-
case.” Milliman v. Minnesota, 774 F.2d 247, 250 (8th Cir. 1985) (internal citation
omitted); see also Andresen v. Maryland, 427 U.S. 463, 480 n.10 (1976). Taking
these factors into consideration, we conclude that the warrant in the instant case
satisfied the Fourth Amendment’s particularity requirement.

Fiorito focuses on the language in the warrant that authorized a search for
“[e]ntire files involving [Fiorito].” However, this broad phrase was located at the
opening of an extensive list of specific documents sought. The challenged paragraph
of the warrant authorized a search for:

Entire files involving [Fiorito], including but not limited to copies of all deeds,
mortgages, promissory notes, contracts for deed; purchase agreements;
appraisals; checks received, disbursed, or cut as part of the closing; the
disbursement ledger; closing instructions; any HUD-1 settlement statements;
photo I.D.s; typed or handwritten notes; and any other document for any other
residential real property transaction involving [Fiorito].

The broad phrase at the opening must be read in the context of the specific list that
follows. See Andresen, 427 U.S. at 480. To be sure, even if the broad language is
read in light of these specific examples, the scope of the warrant is expansive.
However, an additional consideration weighs in favor of the warrant’s
constitutionality. The warrant did not authorize a blanket search of documents for no
particular purpose, but rather for the purpose of discovering evidence of an ongoing,
well-defined equity-stripping scheme. The broad language of the warrant must be
given a practical, rather than a hypertechnical, interpretation that is cabined by the
purpose for which it issued. See Milliman, 774 F.2d at 250. Indeed, Detective
Kleinberg testified that he understood the warrant to be limited to documents “related
to equity stripping and financial manipulation.” Considered in light of the illustrative

-8-
list of items to be seized and the overarching purpose of the search, we conclude that
the warrant was sufficiently particularized.4

B. Motion for a Judgment of Acquittal

Fiorito challenges the district court’s denial of his motion for a judgment of
acquittal, maintaining that the particular mailings that are the subject of counts three,
four, five, and six were not in furtherance of the alleged scheme to defraud. “We
employ a strict standard of review regarding denials of motions for acquittal, viewing
the evidence in the light most favorable to the guilty verdict, resolving all evidentiary
conflicts in favor of the government, and accepting all reasonable inferences
supported by the evidence.” United States v. Samuels, 611 F.3d 914, 917 (8th Cir.
2010) (quoting United States v. Donnell, 596 F.3d 913, 924 (8th Cir. 2010)), cert.
denied, 562 U.S. ---, 79 U.S.L.W. 3493 (2011).

Title 18 U.S.C. § 1341 subjects to criminal penalty anyone who, “having
devised or intending to devise any scheme or artifice to defraud, . . . for the purpose
of executing such scheme or artifice or attempting so to do, . . . knowingly causes to
be delivered by mail or [interstate] carrier” any matter or thing. The mail fraud statute
“does not purport to reach all frauds, but only those limited instances in which the use
of the mails is a part of the execution of the fraud.” Schmuck v. United States, 489
U.S. 705, 710 (1989) (quoting Kann v. United States, 323 U.S. 88, 95 (1944)). A
mailing relied upon as a predicate for a mail fraud charge must be made “in
furtherance of some essential step in the scheme,” United States v. French, 88 F.3d
686, 688 (8th Cir. 1996), or “for the purpose of executing[] the scheme,” Kann, 323
U.S. at 93. However, “to be part of the execution of the fraud, . . . the use of the mails

4
Accordingly, we also reject Fiorito’s suggestion that the warrant’s lack of
particularity made it “facially deficient,” preventing any officer from relying on it in
good faith. See Leon, 468 U.S. at 923.

-9-
need not be an essential element of the scheme.” Schmuck, 489 U.S. at 710. It is
sufficient if the mailing is “incident to an essential part of the scheme,” Pereira v.
United States, 347 U.S. 1, 8 (1954), or “a step in [the] plot,” Badders v. United States,
240 U.S. 391, 394 (1916).

Fiorito first challenges the mailing that served as a predicate for count three, a
HUD-1 form related to Fiorito’s transaction with Darryl and Lorri Lastimosa. A
HUD-1 settlement statement is a financial form, generated by the title company
handling the sale or refinance of a home, which summarizes the nature and details of
the transaction. The HUD-1 related to count three describes the 2005 sale by the
Lastimosas of their home to Fiorito for $113,000. However, Darryl Lastimosa
testified at trial that he and his wife did not understand the papers they signed at
closing and that Fiorito had led them to believe that they were refinancing, not selling,
their home. Fiorito also had them sign a power of attorney form at closing, which
allowed him to deposit their sellers’ proceeds check into his own account. Because
the Lastimosa transaction funded “at the table,” meaning that the sellers’ proceeds
were disbursed to Fiorito’s account before the HUD-1 was mailed, Fiorito argues that
the mailing of the HUD-1 could not have furthered his scheme to defraud the
Lastimosas. We are unpersuaded. Fiorito was engaged in an ongoing fraudulent
scheme—a scheme that ultimately defrauded at least eleven victims over the course
of three years. The owner of the title company that handled the Lastimosa transaction
testified that without the mailing of the HUD-1, the mortgage lender likely would
have unwound the loan and the transaction would have come under scrutiny. Because
the mailing of the HUD-1 was essential for Fiorito to keep his ongoing scheme from
coming under scrutiny, we conclude that it was in furtherance of the fraud. See United
States v. McKanry, 628 F.3d 1010, 1017 (8th Cir.), cert. denied, 563 U.S. ---, 79
U.S.L.W. 3568 (2011); see also Schmuck, 489 U.S. at 711-12.

Next, Fiorito challenges the mailings that served as the predicates to counts four
and five. Count five also involves the Lastimosas. After surreptitiously buying their

-10-
home, Fiorito began charging the Lastimosas rent for continuing to live there.
However, he labeled the payment coupons as “mortgage” statements, so that the
Lastimosas would continue to believe that they had refinanced, and not sold, their
home. The mailing of these fraudulent mortgage coupons to the Lastimosas
constitutes the mailing alleged in count five. Count four relies on false mortgage
coupons arising out of a similar scheme perpetrated on a different victim, Lori
Erickson. Fiorito contends that these false mortgage coupons were not in furtherance
of his equity-stripping scheme because the scheme came to completion once the
seller’s proceeds checks were intercepted. However, mailings which occur after the
receipt of goods obtained by a fraudulent scheme “are within the statute if they ‘were
designed to lull the victims into a false sense of security, postpone their ultimate
complaint to the authorities, and therefore make the apprehension of the defendants
less likely than if no mailings had taken place.’” United States v. Lane, 474 U.S. 438,
451-52 (1986) (quoting United States v. Maze, 414 U.S. 395, 403 (1974)). Both
Darryl Lastimosa and Erickson testified that the “mortgage” coupons led them to
believe that they still owned their homes. We hold that it was reasonable for the jury
to conclude that the fraudulent mortgage statements furthered Fiorito’s scheme by
leading the victims to believe that they still owned their homes and thereby delaying
detection of the fraud.

Finally, Fiorito argues that the mailing alleged in count six was not in
furtherance of his fraud. In the scheme underlying this count, Fiorito defrauded
Cynthia Jerris by having his wife buy Jerris’s house for less than its market value
without Jerris’s knowledge, intercepting Jerris’s $14,456 seller’s proceeds check, and
attempting to resell the house at full value. In addition to paying a below-market price
for the home, the purchase was financed partially by a “silent” second mortgage of
$8,500. The HUD-1 for this transaction indicates that Jerris herself financed $8,500
of the purchase and retained a mortgage in the home to secure this loan to Fiorito’s
wife. Since Fiorito never informed Jerris of this second mortgage or intended to repay

-11-
it, its effect was to reduce the purchase price of the home by $8,500.5 However, this
meant that the home was encumbered by a second mortgage, which was discovered
by the title company when Fiorito sought to sell the home in order to realize the
remaining equity. Fiorito first tried to convince Jerris to sign a mortgage satisfaction
and then attempted to strong-arm the new buyer’s lender into closing the transaction
with the house still encumbered by the second mortgage. After both of these attempts
failed, Fiorito brought a quiet title action against Jerris, falsely claiming that the
$8,500 loan had been paid in full. In prosecuting this suit, Fiorito’s attorney mailed
certain discovery requests to Jerris, the mailing that is the subject of count six.

We conclude that the discovery requests were mailed in furtherance of the
fraud. While the fraud was partially successful when the sale of the house closed and
Fiorito stole Jerris’s seller’s proceeds check, Fiorito sought to resell the house at full
value to realize the remaining equity and complete the scheme. Fiorito was unable to
do so until eliminating the $8,500 mortgage, so it became necessary for Fiorito to
bring the quiet title action before he could resell the home and realize the remaining
equity. It therefore was reasonable for the jury to conclude that the discovery requests
were “incident to an essential part of the scheme.” See Pereira, 347 U.S. at 8.

C. Jury Instruction

Fiorito’s third argument challenges the district court’s refusal to instruct the
jury that, to convict him on the conspiracy count, they would need to find that
Fiorito’s fraudulent scheme “contemplated” the use of the mails. See United States
v. Donahue, 539 F.2d 1131, 1135 (8th Cir. 1976). The district court declined Fiorito’s
proffered instruction and instead gave an instruction that required the jury to find that
the use of the mails was “reasonably foreseeable to the defendant.” We review the

5
Fiorito utilized a similar silent second mortgage to fund $5,652 of the
Lastimosa transaction.

-12-
district court’s formulation of jury instructions for abuse of discretion. See United
States v. White Calf, 634 F.3d 453, 456 (8th Cir. 2011). In this case, we need not
decide whether the district court abused its discretion in refusing the proffered
instruction, because any error in doing so was harmless.6

Even in the face of an erroneous jury instruction, “the error may be disregarded
if it is ‘clear beyond a reasonable doubt that a rational jury would have found the
defendant guilty absent the error.’” United States v. Inman, 558 F.3d 742, 749 (8th
Cir. 2009) (quoting Neder v. United States, 527 U.S. 1, 18 (1999)). Fiorito had been
a mortgage broker for four years and certainly was aware that a real estate transaction
involved sending numerous documents by mail or commercial carrier, including
HUD-1 forms, loan applications, and mortgage notes. Moreover, Fiorito knew that
proceeds checks frequently would be sent by mail or commercial carrier. Indeed,
Dang testified that Fiorito told her that she would be receiving a package through
FedEx containing her proceeds check. Finally, the fraudulent “mortgage” coupons
that are the subject of counts four and five were mailed either directly by Fiorito or by
one of his employees. We conclude, beyond a reasonable doubt, that a rational jury
would have found that Fiorito’s fraudulent scheme contemplated the use of the mails.

D. Variance

Fiorito next argues that the facts proven by the Government’s evidence at trial
varied prejudicially from the essential elements of the offense charged in the
indictment. Specifically, Fiorito contends that the indictment charged a scheme to
defraud vulnerable homeowners, while the evidence at trial tended to show that the

6
In United States v. Nelson, we suggested that Donahue “may be inconsistent
with Pereira, which holds that specific intent to use the mails is not necessary to prove
mail fraud so long as use of the mails can be reasonably foreseen.” 988 F.2d 798, 805
n.3 (8th Cir. 1993). In light of our conclusion that any instructional error was
harmless, we need not address the continuing vitality of Donahue.

-13-
real victims of Fiorito’s fraud were the mortgage lenders. We review variance
challenges de novo. United States v. Stuckey, 220 F.3d 976, 979 (8th Cir. 2000). “[A]
variance occurs when the essential elements of the offense set forth in the indictment
are left unaltered but the evidence offered at trial proves facts materially different
from those alleged in the indictment.” United States v. Gavin, 583 F.3d 542, 547 (8th
Cir. 2009) (quoting United States v. Begnaud, 783 F.2d 144, 147 n.4 (8th Cir. 1986)).

We find no material difference between the indictment and the evidence
introduced at trial. Fiorito points to the court’s statement at the sentencing hearing
that “in some cases really what Fiorito was doing was stealing from the lender using
the homeowner sort of as a tool.” However, the court indicated that it noticed this
aspect of the case when it was reviewing post-trial arguments regarding loss
calculation, and it expressly acknowledged that “this whole case was . . . presented [by
the Government] as a case where Fiorito stole from homeowners.” This latter
characterization of the Government’s case is supported by the record. The
Government called eleven victimized homeowners, who testified extensively about
their dealings with Fiorito. The Government did not call a single mortgage lender as
a witness. The indictment charged that Fiorito’s scheme was to defraud homeowners
out of their equity, and this is precisely what the Government’s evidence proved. We
conclude that Fiorito’s variance argument is without merit.

E. Sentence

Finally, Fiorito challenges the 270 month sentence imposed by the district
court, alleging both procedural and substantive error. Following Gall, we first “ensure
that the district court committed no significant procedural error,” including “failing
to calculate (or improperly calculating) the Guidelines range.” Gall v. United States,
552 U.S. 38, 51 (2007). We review the district court’s construction and application
of the sentencing guidelines de novo and its factual findings for clear error. United
States v. Cordy, 560 F.3d 808, 817 (8th Cir. 2009).

-14-
 First, Fiorito challenges the district court’s application of a two-level vulnerable
victim enhancement. See § 3A1.1(b)(1). Application of this enhancement “requires
a fact-based explanation of why advanced age or some other characteristic made one
or more victims ‘unusually vulnerable’ to the offense conduct, and why the defendant
knew or should have known of this unusual vulnerability.” United States v. Anderson,
349 F.3d 568, 572 (8th Cir. 2003). Almost all of Fiorito’s victims were in financial
distress and faced the threat of losing their homes. Some of the victims were elderly,
one was an alcoholic, and many were unsophisticated or vulnerable in other ways.
For example, Cynthia Jerris testified that when Fiorito first contacted her she was
suffering from bipolar-related “severe depression [and] mania,” which had caused her
to lose her job just months earlier. Jerris’s mental condition certainly made her
unusually vulnerable to Fiorito’s fraud. Moreover, the district court did not clearly
err in finding that Fiorito knew or should have known of the vulnerability of Jerris and
his other victims. See United States v. Replogle, 628 F.3d 1026, 1030 (8th Cir. 2011)
(“[W]hether a defendant knew or should have known of a victim’s vulnerability [is
a] factual determination[] that we review for clear error.”). Jerde, Fiorito’s assistant,
testified that she and Fiorito “were looking for vulnerable, poor, dumb people so that
they wouldn’t be able to catch on to our scheme.” Based on these facts, we conclude
that the district court did not err in applying the vulnerable victim enhancement.

Next, Fiorito challenges the district court’s application of an enhancement for
use of sophisticated means. See § 2B1.1(b)(9)(C). The application notes suggest that
the enhancement is targeted at “especially complex or especially intricate offense
conduct pertaining to the execution or concealment of an offense.” § 2B1.1 cmt.
n.8(B). “Even if any single step is not complicated, repetitive and coordinated
conduct can amount to a sophisticated scheme.” United States v. Bistrup, 449 F.3d
873, 882 (8th Cir. 2006). We hold that the enhancement was properly applied. To
be sure, the basic element of Fiorito’s scheme—intercepting and stealing the victim’s
proceeds check—was relatively simple. However the scheme as a whole spanned
three years and at least eleven victims and certainly involved “repetitive and

-15-
coordinated conduct.” See id. In each case, Fiorito targeted a vulnerable homeowner
and convinced him to sell or refinance his home. At closing, he coordinated the
actions of the owner, title company, and mortgage lender to ensure that the deal went
through without any party learning of the fraudulent nature of the transaction.
Moreover, in some cases Fiorito used complex and sophisticated financial tools to
increase the amount of money stolen, such as the silent second mortgage employed
in the Lastimosa and Jerris transactions. The district court did not err in concluding
that these facts supported an enhancement for use of sophisticated means.

Third, Fiorito challenges the application of a two-level enhancement for abuse
of a position of trust. See § 3B1.3. The inquiry as to whether this enhancement
should apply “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
such as ‘lawyers and doctors occupy positions of trust but bank tellers and insurance
agents do not.’” United States v. Baker, 200 F.3d 558, 564 (8th Cir. 2000). We
previously have held that this enhancement may be applied to the relationship between
a mortgage broker and a lender. See United States v. Septon, 557 F.3d 934, 938 (8th
Cir. 2009). Other circuits have held that the enhancement may be applied to the
relationship between an investment broker or financial planner and an investor. See
United States v. Hart, 273 F.3d 363, 376-78 (3d Cir. 2001); United States v. Reeves,
255 F.3d 208, 212 (5th Cir. 2001); United States v. Hirsch, 239 F.3d 221, 227-28 (2d
Cir. 2001). Another circuit has suggested strongly that it would apply the
enhancement to the relationship at issue here, between a mortgage broker and a
borrower. See United States v. Fuchs, 635 F.3d 929, 933 (7th Cir. 2011).

In light of the precise relationship between Fiorito and his victims in this case,
we conclude that the enhancement was properly applied. Fiorito’s relationship with
his victims was not an “arms length” one; rather, he met directly with his victims and
personally persuaded them to sell or refinance their homes. As the district court
found, Fiorito went to great lengths to place himself in a position of trust with respect

-16-
to his victims and even had many of them sign forms granting him power of attorney,
which he then used to endorse and deposit their proceeds checks into his own account.
Many of the victims were unsophisticated, and most of them were led by their trust
in Fiorito to sign documents that they did not understand. By necessity, Fiorito’s
victims trusted him with a significant amount of discretion over one of their most
valuable assets—their homes. See United States v. Fazio, 487 F.3d 646, 659 (8th Cir.
2007) (“A position of public or private trust is characterized by professional or
managerial discretion, and the abuse of trust enhancement applies where the offender
has abused discretionary authority entrusted to the defendant by the victim.”).
Accordingly, we conclude that the district court did not err in determining that Fiorito
occupied a position of trust in relation to his victims and that this trust “significantly
facilitated the commission or concealment of the offense.” See § 3B1.3.

Finally, Fiorito challenges the substantive reasonableness of his sentence. We
will reverse a sentence as substantively unreasonable only upon a showing of abuse
of discretion. See Gall, 552 U.S. at 51. An abuse of discretion occurs “if a sentencing
court fails to consider a relevant factor that should have received significant weight,
gives significant weight to an improper or irrelevant factor, or considers only
appropriate factors but nevertheless commits a clear error of judgment by arriving at
a sentence that lies outside the limited range of choice dictated by the facts of the
case.” United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005).

The district court varied upward from the guidelines range of 188-235 months
and imposed a sentence of 270 months. Fiorito argues that the district court abused
its discretion by giving undue weight to the danger he posed to the public. Fiorito
concedes that 18 U.S.C. § 3553(a)(2)(C) makes “protect[ing] the public from further
crimes of the defendant” a legitimate sentencing consideration, but he argues that,
because this factor was represented adequately by his sentencing guidelines range, the
district court committed a clear error of judgment in assigning it further, significant
weight. We conclude that no such error occurred.

-17-
 To be sure, the advisory sentencing guidelines aspire to represent adequately
the weight of each of the § 3553(a) factors. However, “[w]e have held that a district
court may impose an upward variance based on facts already included in the advisory
sentencing guidelines where the advisory guidelines do not fully account for those
facts.” United States v. Jones, 509 F.3d 911, 914 (8th Cir. 2007). The district court
found an upward variance to be “justified in this case by virtually all of the Section
3553(a) factors” and particularly by “the need to protect the public from Mr. Fiorito.”
The court noted that Fiorito “poses a unique danger to the public” because he is not
only intelligent and articulate but also “extremely dishonest and manipulative.”
Indeed, the court noted that although Fiorito was only forty-one years old at the time
of sentencing, “he has already accumulated . . . 21 adult convictions,” most of them
based on theft or fraud. As the court put it, Fiorito “has spent most of his adult life
lying and stealing.” Based on these considerations, we conclude that the district court
did not exceed the “range of choice dictated by the facts of the case,” See Haack, 403
F.3d at 1004, and that Fiorito’s sentence of 270 months’ imprisonment is not
substantively unreasonable.

III. CONCLUSION

For the above reasons, we affirm Fiorito’s conviction and sentence.
______________________________

-18-