Thursday, June 28th, 2018

Second Circuit Reversal of Vulnerable Victim Sentencing Enhancement

Today, in a summary order, the Second Circuit remanded a case for resentencing based on the district court’s erroneous application of the vulnerable victim enhancement. The decision may be useful to practitioners whose clients who were not necessarily aware of a victim’s vulnerable status during the commission of their charged offenses. The summary order in United States v. Nicholson, No. 17-197 (2d Cir. 2018) (Newman, Cabranes, Carney) (appeal from WDNY), is available here.

The defendant in Nicholson was himself a victim of a “Jamaica lottery scam,” wherein he was advised that he won $15 million in a lottery, which he could collect after paying $860 in local taxes. The scam-runner told Nicholson he could bay off these taxes by collecting money from third parties who were also victims of the scam. As it happened, one of those third parties was an elderly man in California, who sent the defendant $145,794 in checks and cash. The defendant later confessed to his participation in the scam, and was convicted following a jury trail of three counts of mail fraud and one count of money laundering.  At sentencing, the District Court applied a two-level vulnerable victim enhancement pursuant to U.S.S.G. § 3A1.1.

The Circuit held that the vulnerable victim enhancement was inapplicable to these facts. For the enhancement to apply, “‘the defendant generally must have singled out the vulnerable victims from a larger class of potential victims.'” Slip op. at 3 (quoting United States v. Kerley, 544 F.3d 172, 180 (2d Cir. 2008) (internal quotation marks omitted)). Here, the defendant had never met or spoken with his elderly victim prior to collecting money from him. “Under these circumstances, the fact that scams of this sort typically target the elderly does not suffice to make the targeting requirement of the enhancement applicable.” Id. Moreover, the defendant’s confession that had taken “money from Mr. Jessen who was elderly” did not “make clear” whether the defendant knew that the victim was elderly during the offense.

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