No Requirement of Actual Harm for Vulnerable Victim Enhancement

     In United States v. Adeolu, No. 14-3610, 2016 WL 4728003, the Circuit affirmed Adeolu’s sentence, holding that the vulnerable victim enhancement at U.S.S.G. § 3A1.1(b)(1), does not require actual harm to the victim, only a nexus between the victim’s vulnerabilty and the crime’s success.

     Adeolu, a tax preparer, prepared fraudulent tax returns by having his clients claim false dependents.  Adeolu was ultimately convicted of conspiracy to defraud and aiding and abetting the preparation of materially false tax returns (18 U.S.C. § 371 and 26 U.S.C. § 7206(2)).  At sentencing, the court applied the vulnerable victim sentencing enhancement set forth in § 3A1.1(b)(1) based on Adeolu's use of young children's personal information. On appeal, Adeolu argued that the children were not vulnerable victims because they did not experience “actual” harm.

     In rejecting the actual harm requirement, the Circuit states that any issue regarding harm is encompassed within the analysis of the nexus between a victim's vulnerability and the crime's success.  This allows the court to assess whether a victim has been “taken advantage of” in a manner that facilitates the defendant's scheme.  Actual harm is inconsequential to this analysis.  

The Court noted that the purpose of § 3A1.1 is to “acknowledge that, . . . defendants know or should know of their victim's particular vulnerability and are therefore more blameworthy for knowingly or even negligently harming them.” (citation omitted).  “But a defendant is not more or less blameworthy for the purposes of this enhancement based on the amount of harm that a victim experiences. Applying the enhancement in such a manner would create a disparity in the punishments for defendants who are more successful (and cause more harm) and those who are less successful.”

In light of those points the Court held that there is no requirement of “actual” harm.

     In this case, the victim’s youth gave rise to their vulnerability:  “Given a child's inability to guard against theft of personal information, we find that the first element of this test is satisfied.”  Second, Adeolu knew the victims' vulnerability and that their ages were integral to qualifying as dependents on the fraudulent returns.  Accordingly, there was a “nexus” between the victims' vulnerability and the success of the scheme. 

Repeat and Dangerous Sex Offender Guideline / Categorical Approach

In United States v. Dahl, No. 15-2271 (3d Cir., Aug. 17, 2016), the district court committed plain error by failing to apply the categorical approach in determining whether Dahl’s Delaware first- and third-degree unlawful sexual contact convictions constitute federal sex offense convictions under the federal repeat offender statute, 18 U.S.C. § 2426(b)(1)(B), and therefore subjected him to an increased sentence under the career sexual offender guideline embodied at U.S.S.G. § 4B1.5. Section 2426(b)(1)(B) refers to a “conviction for an offense . . . consisting of conduct that would have been an offense” under certain federal statutes, and § 4B1.5 refers to a “sex offense conviction” as “any offense [under 18 U.S.C. § 2426(b)(1)(B)], if the offense was perpetrated against a minor.” However, the Supreme Court’s decisions in Descamps, Johnson, Mathis, and Nijhawan v. Holder, 557 U.S. 29 (2009) demonstrate that the factual inquiry triggered by the qualifying language in the statute is limited to the facts relevant to the qualification itself. Therefore, the district court could make a factual inquiry into whether the victim of Dahl’s offenses were minors, but was required to apply the categorical approach to the underlying elements of the predicate offenses.  

Applying the categorical approach, the Court determined that Dahl’s Delaware convictions were broader than the aggravated sexual abuse statutes embodied at 18 U.S.C. § 2241 in two ways, and therefore could not count as predicates for an enhanced sentence under U.S.S.G. § 4B1.5. First, the sexual contact prohibited under Delaware law encompassed touching genitalia and other specified areas through clothing, whereas the federal statute requires penetration or skin-to-skin contact between various body parts. Second, the Delaware third-degree unlawful sexual contact statute prohibited consensual contact the defendant nonetheless knew was “offensive to the victim,” whereas the federal aggravated sexual abuse statute requires a nonconsensual act.

 

Dahl was entitled to resentencing under plain error review. The error was plain in light of recent Supreme Court precedents, it affected Dahl’s substantial rights because it subjected him to a much harsher guideline range, and the Court typically exercises its discretion to recognize a misapplication of the Guidelines as affecting the fairness, integrity, or public reputation of judicial proceedings.

Collateral Attack of Sentence Not Permitted at Supervised Release Revocation Hearing

In United States v. Jones, No. 15-1636 (3d Cir., Aug.17, 2016), Defendant sought to challenge the classification of his underlying conviction during his supervised release revocation hearing. Specifically, Defendant attempted to argue that, in light of Johnson v. United States, 559 U.S. 133 (2010) and Johnson v. United States, 135 S.Ct. 2551 (2015), his ACCA conviction should be graded as a Class C felony instead of a Class A felony. The Third Circuit rejected Defendant’s argument in short order, by announcing that it was joining several of its sister circuits who have ruled that the validity of an underlying conviction may not be collaterally attacked in a supervised release revocation proceeding. Such challenges may only be raised on direct appeal or through a habeas corpus proceeding. The Third Circuit rejected Defendant’s claim that he sought only to challenge the decision rendered by the district court during the present revocation hearing. The Court concluded that, as the underlying conviction had been properly classified when Defendant was initially sentenced, he could not challenge this proper classification during a subsequent revocation hearing.