Wednesday, September 21, 2016
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.
Amendment 801 to § 2G2.2(b)(3)(F) is a substantive change to the Guidelines, and does not apply retroactively under § 2255
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