IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30696

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BRANDON KEITH DIAL,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

Before JONES, Chief Judge, GARWOOD and SMITH, Circuit Judges.

PER CURIAM:

Brandon Dial appeals the sentence imposed after he pleaded guilty of mail

fraud and uttering false securities. Dial was an insurance adjuster who defrauded his employer by paying himself and others for invalid insurance claims. He

United States Court of Appeals

Fifth Circuit

F I L E D

September 11, 2008

Charles R. Fulbruge III

Clerk
No. 07-30696

1 Ehrlich, 902 F.2d at 330; see Smith, 203 F.3d at 893; United States v. Fisher, 7 F.3d

69, 70-71 (5th Cir. 1993); see also United States v. Mejia-Orosco, 867 F.2d 216, 221 (5th Cir.

1989) (rejecting a dissection of the issue into legal and factual components and noting “that

findings which require both assessment of complex evidence as well as sensitivity to legal purposes may nevertheless be factual”).

2 Lowrey v. Tex. A&M Univ. Sys., 117 F.3d 243, 247 (5th Cir. 1997); accord Barrientes

v. Johnson, 221 F.3d 741, 780 n.30 (5th Cir. 2000).

2

contends that the district court erred by increasing his offense level under

U.S.S.G. § 3B1.3 for abusing a position of trust. He argues that he was merely

a “run-of-the-mill” claims adjuster without significant professional or managerial

responsibility. 

We review for clear error the district court’s application of § 3B1.3 to the

facts, including its factual determination that Dial held a position of trust. See

United States v. Smith, 203 F.3d 884, 893 (5th Cir. 2000); United States v. Ehrlich, 902 F.2d 327, 330 (5th Cir. 1990). This court recently applied de novo review to whether the defendant held a position of trust. See United States v. Kay,

513 F.3d 432, 460 (5th Cir. 2007), petition for cert. filed (Apr. 9, 2008) (No.

07-1281). The panel in Kay, 513 F.3d at 460 & n.125, relied on United States v.

Sudeen, 434 F.3d 384, 391 n.19 (5th Cir. 2005), which based its statement on

United States v. Hussey, 254 F.3d 428, 431 (2d Cir. 2001), after observing that

the standard of review would not affect its decision. 

De novo review appears foreclosed, however, by this circuit’s earlier ruling

that a “district court’s application of § 3B1.3 is a sophisticated factual determination that will be affirmed unless clearly erroneous.”1 Despite whatever persuasiveness Kay and Sudeen may have, our rule of orderliness directs that “‘one

panel of this court cannot overrule the decision of another panel.’”2

Dial had discretionary authority to settle and pay claims of up to $10,000

and de facto discretion to settle and pay up to $25,000 for some property claims.

That authority placed him in a posture to commit the offense superior to that of

the general public,thereby putting him in a position of trustthat he abused. See
No. 07-30696

3

United States v. Powers, 168 F.3d 741, 752 (5th Cir. 1999). The district court did

not commit clear error by imposing the increase. See Smith, 203 F.3d at 893;

Ehrlich, 902 F.2d at 330. 

The judgment is AFFIRMED.