U.S. v. Robinson

• Decision Date: 09 June 1998
• Docket Number: No. 96-6627,96-6627
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Donald ROBINSON, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 507

152 F.3d 507

UNITED STATES of America, Plaintiff-Appellee, v. James Donald ROBINSON, Jr., Defendant-Appellant.

No. 96-6627.

United States Court of Appeals Sixth Circuit.

Argued Feb. 3, 1998.

Decided June 9, 1998. ^*

Ordered Published Aug. 17, 1998.

Michael J. Stengel (argued and briefed), Memphis, Tennessee, for Defendant-Appellant.

Cam Towers Jones (argued and briefed), Assistant U.S. Attorney, Office of the U.S. Attorney, Memphis, Tennessee, for Plaintiff-Appellee.

Before: BATCHELDER and MOORE, Circuit Judges; BORMAN, District Judge. ^**

OPINION

BORMAN, District Judge.

Defendant James D. Robinson, Jr., appeals from the sentence imposed by the district court on his pleas of guilty to wire fraud and mail fraud. At issue is whether the district judge erred in (1) imposing a 2-level enhancement under the "Vulnerable Victim" U.S. Sentencing Guideline, § 3A1.1(b), and (2) in denying a 2- or 3-level reduction under the "Acceptance of Responsibility" Guideline, § 3E1.1.

For the reasons stated herein, we affirm the sentencing decisions of the district judge.

BACKGROUND

On November 7, 1995, Defendant James D. Robinson, Jr. was named in a 49-count indictment charging mail fraud, 18 U.S.C § 1341; wire fraud, 18 U.S.C. § 1343; and money laundering, 18 U.S.C. § 1957. This indictment related to a telemarketing operation during the 1990-93 time period. ¹

On July 30, 1996, an arrest warrant was issued for Defendant Robinson for allegedly threatening to kill his cooperating co-defendant, Dawit Tessema. After his arrest, Defendant Robinson plead guilty on August 5, 1996, pursuant to a Rule 11 plea agreement, ² to two counts: Count 1, wire fraud 18 U.S.C. § 1343; Count 4, mail fraud, 18 U.S.C § 1341. As part of the plea agreement, the parties agreed in paragraph 10 that Defendant would not be charged with tampering with a witness, 18 U.S.C. § 1512, and that his sentence would be enhanced by two points for obstruction of justice pursuant to Sentencing Guideline 3C1.1. ³

Defendant's plea agreement with the United States stated in paragraph 12(b):

Both parties recognize that the United States will argue for assessment of points for Vulnerable Victim (3A1.1),.... The United States will oppose a deduction for Acceptance of Responsibility (3E1.1) and the defendant will seek this reduction.

The District Court held, at the sentencing hearing on November 25, 1996, that the Defendant should receive the 2 point guideline enhancement for vulnerable victims under § 3A1.1(b), and that he should not receive a guideline reduction for acceptance of responsibility under § 3E1.1.

U.S. Sentencing Guideline 3A1.1(b): Vulnerable Victim

The standard of review of the district court's finding of a vulnerable victim enhancement under Sentencing Guideline 3A1.1 was set forth by the Sixth Circuit in United States v. Smith, 39 F.3d 119, 122 (6th Cir.1994):

This court applies a clearly erroneous standard of review to the district court's factual findings, and while giving due deference to the district court's application of the guidelines to those facts, it renders de novo review of the district court's legal conclusions.

U.S. Sentencing Guideline Section 3A1.1(b) states:

(b) If the defendant knew or should have known that a victim of the offense was unusually vulnerable due to age, physical or mental condition, or that a victim was otherwise particularly susceptible to the criminal conduct, increase by 2 levels.

On November 26, 1996, pursuant to Fed.R.Crim.P. 32(c)(1), ⁴ the District Judge conducted a sentencing hearing to resolve the issue of the applicability of Guideline 3A1.1(b). The hearing included the testimony of witnesses and the introduction of exhibits on the issue of whether or not the Defendant ⁵ had targeted vulnerable victims. The Government introduced a spread sheet exhibit (App., pp. 244-262) that contained the following information relevant to telemarketing victim Clarence Hawthorne:

The Court: It is Clarence Hawthorne .... is from Texas, was contacted four times and made this much money. Is this the amount that they paid?

[AUSA] Ms. Jones: Yes, your Honor. The four checks should be listed separately out beside the date that the checks were sent in.

The Court: Right. $499.90 on September 10, 1991; $1,472.00 on December 16, 1991; $599.00 on October 1, 1991; and $3,561.00 on March 25, 1992.

App., pp. 161-162.

The Court further noted, with regard to certain victims making multiple payments to Defendant's company:

If you will look at ... Exhibit 6 (App. pp. 244-262), when you go through the spread sheet, it is frankly quite amazing, it shows that many people made multiple payments. I'm frankly astounded, it shows that very early, a Nora Aaron made multiple payments. Archer well, a person named Quiller Archer made three payments, one of $2,100, one of $599 and one of $2,500. Odessa Ashton from Bowie, Texas made five payments, and they're all reflected, they are large amounts of money, they are all hundreds and hundreds and hundreds of dollars all reflected in the report ... [Y]ou have got James Breneman, made multiple payments, three payments. Belva Bravo made three payments. Florence Brookland made three payments.... Ada Calkins made at least five payments. At least it looks like five payments here.

App., p. 173.

In analyzing the impact of multiple payments on the vulnerable victims guideline provision, the district judge noted:

So was the first payment a situation involving a vulnerable victim? The answer is no. That was a blanket dragnet. That does not constitute a basis for enhancement. I want to be very clear about that.

But where the reloads ⁶ and the--occur, we have a different analytical situation. Then we know that somebody consciously chose to go back and call these people again and call them again and again and again in some cases.

App., p. 174.

The sentencing judge subsequently discussed the application of Guideline section 3A1.1:

The question then is under 3A1.1 if the defendant knew or should have known that a victim of the offense was unusually vulnerable or particularly susceptible to criminal conduct. They knew after they got the first, quote, sales, whatever we want to call this money, that this person was particularly susceptible to criminal conduct. And based on that information, the repeat calls were made.

...

These individuals as reflected in Exhibit 6 were particularly susceptible to the criminal conducts. They were repeatedly called because of their particular susceptibility .... there was a specific technique for reloading customers. There were repeated approaches made to victims who had proven to be particularly vulnerable in this case and in this operation: Under those circumstances, it is appropriate and I believe precisely what the additional language in 3A1.1(b) was placed there for, it is appropriate to enhance by two points.

App., pp. 175-76.

Sentencing Guideline § 3A1.1(b), and its accompanying Commentary do not provide a bright line test for this court to follow in determining whether to apply the vulnerable victim adjustment in the instant case. While the heading for § 3A1.1 uses the term "vulnerable victim," the text of the provision requires that the defendant knew or should have known "that a victim of the offense was unusually vulnerable." The use of the term "unusually" creates a heightened threshold of proof for application of this provision.

The text of Guideline 3A1.1 further delimits the applicability of the vulnerable victim enhancement by requiring that the vulnerability of the victim be related "to age, physical or mental condition." In the instant case, the sentencing judge did not rest his decision to apply the enhancement on the "vulnerable victim" portion of the Guideline because he did not make any determinations relating to the age, physical or mental condition of the victims. The sentencing judge relied on the second descriptive phrase in the text of § 3A1.1: "particularly susceptible." That second basis for the applicability of the § 3A1.1 enhancement states: "if the defendant knew or should have known ... that a victim was otherwise particularly susceptible to the criminal conduct." This language parallels that of the first phase of § 3A1.1 where the word "vulnerable" is modified by "unusually." Thus, insofar as the term "susceptible" is modified by the term "particularly," this creates a similar heightened factual requirement of proof to support the application of this provision.

The question before this Court is whether the government has established that a victim was "otherwise particularly susceptible to the criminal conduct." The Court begins its path toward an answer to this question by examining the Commentary to the Guideline.

Although the Commentary to § 3A1.1 provides assistance with regard to what constitutes an "unusually vulnerable" victim, it provides no assistance as to what constitutes a "particularly susceptible" victim. Commentary Application Note 2 states in pertinent part:

Subsection (b) applies to offenses involving an unusually vulnerable victim in which the defendant knows or should have known of the victim's unusual vulnerability. The adjustment would apply, for example, in a fraud case where the defendant marketed an ineffective cancer cure or in a robbery where the defendant selected a handicapped victim. But it would not apply in a case where the defendant sold fraudulent securities by mail to the general public and one of the victims happened to be senile.

This Commentary then, offers no definition of the term "particularly susceptible," the critical phrase applicable to the instant case.

Defendant contends that the judge erred, and that the adjustment for vulnerable victim is not applicable to him because:

1. E & J Enterprises only contacted "a tiny percentage of people" because of the lead cards in its possession. (Appellant's Brief, p. 5)

2. a relatively small percentage of the people E & J target through...