US v. Medrano, PLAINTIFF-APPELLEE

• Decision Date: 26 February 2001
• Docket Number: DEFENDANT-APPELLANT,PLAINTIFF-APPELLEE,No. 00-30067,00-30067
• Citation: US v. Medrano, 241 F.3d 740 (9th Cir. 2001)
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA,, v. MARIA MEDRANO,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 740

241 F.3d 740 (9th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. MARIA MEDRANO, DEFENDANT-APPELLANT.

No. 00-30067

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted December 6, 2000

Filed February 26, 2001

Amy Rubin, Federal Public Defender, Spokane, Washington, and Christina A. Gerrish, Federal Defenders of Eastern Washington and Idaho, Spokane, Washington, for the defendantappellant.

Thomas O. Rice, Assistant United States Attorney, Spokane, Washington, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington D.C. No. CR-99-00032-FVS Fred L. Van Sickle, District Judge, Presiding

Before: Betty B. Fletcher and Raymond C. Fisher, Circuit Judges, and William W Schwarzer, District Judge.^*

FISHER, Circuit Judge:

Maria Medrano appeals her sentence imposed after pleading guilty to 15 counts of embezzlement. Medrano contends the district court erred in imposing a vulnerable victim enhancement and a position of trust enhancement on her sentence. Medrano argues that the record does not support a finding of vulnerability based on the combination of characteristics found by the district court and that the district court applied the vulnerable victim enhancement solely because of the ethnicity of her victims. She also asserts that as a bank teller she did not possess managerial or other unique responsibilities and thus was not in a "position of trust." We have jurisdiction pursuant to 28 U.S.C. S 1291 and we affirm.

I. Background

Medrano began working as a teller at Seafirst Bank in Quincy, Washington in 1993. She was one of the few tellers who spoke Spanish fluently, and thus often assisted the bank's many Hispanic customers. Initially, Medrano worked as a "casual," nonbenefitted, part-time teller; however, she eventually advanced to be third in the chain of authority at the eightemployee branch. In her position as Teller Leader/Customer Service Representative, she had powers and responsibilities beyond those of a normal teller. Medrano had the authority to open new accounts without supervisory approval; she could sign cashier's checks for more than $10,000 without approval; she had authority to open the branch; and she functioned as the manager of the bank in the absence of the manager and assistant manager.

Medrano began to embezzle money from Seafirst in 1996, when she separated from her husband and was having trouble supporting her children on her single income. To facilitate her embezzlement scheme, Medrano opened a fictitious account at the bank under the name of "Gutierrez." When certain customers came in to deposit or transfer money into a certificate of deposit account, Medrano would put their money in her teller drawer, provide them with a handwritten receipt and then deposit the funds into the Gutierrez account. If a customer later requested a withdrawal on the basis of one of her handwritten receipts, Medrano would pay the customer with funds she surreptitiously withdrew from the Gutierrez account, thereby concealing from the customer the fact that she had not properly deposited the customer's funds. By juggling the embezzled funds in this manner, Medrano was able to withdraw large sums of money from the Gutierrez account for her personal use, while avoiding detection by Seafirst.

Medrano's activities came to light in October 1998, when a customer went to another teller to redeem a certificate of deposit based on a handwritten receipt issued by Medrano. Because Medrano had not deposited the money in the customer's name, but instead had deposited the money in the Gutierrez account, the bank had no record of the customer's $8,000 deposit. The resulting investigation revealed Medrano had embezzled $219,615.78 from customers' accounts.

After Medrano pled guilty to 15 counts of embezzlement under 18 U.S.C. S 656, the district court conducted a sentencing hearing at which Seafirst Manager Suzanne Rose and Assistant Manager Dawn Jessup testified. Both women explained the extent of Medrano's responsibilities and duties at the bank. Further, they said they believed Medrano had targeted certain customers, specifically Spanish-speaking migrant farm workers who had come to the United States from one of the poorest areas in Mexico, who were unsophisticated in American banking practices and many of whom were illiterate. In support of this observation, Rose testified that although the bank has hundreds of customers with whom Medrano worked, the 20 victimized customers shared several characteristics. According to Rose:

None of them spoke English, none of them were very sophisticated at all in the ways of banking. They worked hard and they brought their money to the bank, set up savings accounts, set up CD's, many of them did, to send money back to their families in Mexico, but none of these customers that were embezzled from had any sort of education, had any experience at all in the banking area and relied upon us to give them that expertise.

She also testified that at least half of Medrano's victims were illiterate in both English and Spanish. Jessup testified that the victimized customers were ones who did not understand they were supposed to receive monthly statements. The district court did not hear testimony from the victimized customers themselves. Based on the bank employees' testimony, the district court adjusted Medrano's offense level upward two levels for abusing a position of trust and two levels for victimization of a vulnerable class. The court sentenced Medrano to a 24-month term of incarceration, a five-year term of supervised release and ordered payment of $85,988.36 in restitution and $1,500 in special penalty assessments.

II. Analysis

A. Vulnerable Victim Enhancement

Medrano contends the evidence presented at her sentencing hearing does not warrant the district court's application of the "vulnerable victim" enhancement. We review a district court's construction, interpretation and application of the Sentencing Guidelines de novo. United States v. Randall, 162 F.3d 557, 560 (9th Cir. 1998). We review a district court's factual findings regarding the vulnerability of victims for clear error. United States v. Archdale, 229 F.3d 861, 869 (9th Cir. 2000).

Congress has evinced an ongoing concern for the creation and protection of the rights of crime victims by enacting legislation aimed at bolstering victims' rights and roles in the criminal justice process.¹ The Sentencing Guidelines' recognition of victims' circumstances and characteristics during the sentencing process is consistent with such congressional concerns. The vulnerable victim enhancement recognizes that certain individual victims or types of victims are less able to protect themselves from criminal machinations. Because criminals are more likely to succeed in achieving their criminal purposes and less likely to be apprehended when committing crimes against particularly vulnerable victims,"a higher than average punishment is necessary to deter the crimes against them." United States v. Grimes, 173 F.3d 634, 637 (7th Cir. 1999). Crimes against vulnerable victims also warrant additional punishment because the criminal's choice of such victims evidences an "extra measure of criminal depravity. " United States v. Castellanos, 81 F.3d 108, 111 (9th Cir. 1996). Further, the vulnerable victim enhancement serves the special needs of vulnerable victims by creating a greater level of societal protection for those who are most in need of such protection. See United States v. Randall, 162 F.3d 557, 560 (9th Cir. 1998).

Section 3A1.1(b)(1) of the Sentencing Guidelines provides that: "If the defendant knew or should have known that a victim of the offense was a vulnerable victim, increase[the offense level] by 2 additional levels."² We have explained the application of this section of the Sentencing Guidelines as follows: "Section 3A1.1 . . . `will apply to increase the offense level where (1) a victim was either (a) unusually vulnerable due to age, physical, or mental condition, or (b) otherwise particularly susceptible to the criminal conduct, and (2) the defendant knew or should have known of such vulnerability or susceptibility.' " United States v. Scrivener, 189 F.3d 944, 950 (9th Cir. 1999) (quoting U.S. v. Castellanos , 81 F.3d at 110). The vulnerable victim enhancement, therefore, may be predicated on a trait or condition that makes a victim "particularly susceptible to criminal conduct." This Court has held that a wide range of victim characteristics can satisfy this requirement. See United States v. Wetchie, 207 F.3d 632, 636 (9th Cir. 2000) (holding a sleeping victim of sexual abuse was particularly susceptible to criminal conduct); United States v. Weischedel, 201 F.3d 1250, 1255 (9th Cir. 2000) (holding a car salesman who was obligated to go on a drive with assailants was particularly susceptible to criminal conduct); United States v. Randall, 162 F.3d 557, 560 (9th Cir. 1998) (holding persons known to have fallen for telemarketing scams previously were particularly susceptible to criminal conduct); United States v. Peters, 962 F.2d 1410, 1418 (9th Cir. 1992) (holding victims with poor credit histories were particularly susceptible to schemes involving offers of preapproved credit cards).³

A vulnerable victim enhancement cannot, however, be based on the victim's ethnicity alone. See Castellanos, 81 F.3d at 112. In Castellanos, the defendant ran an investment scheme that promised investors a high rate of return, but which in reality worked to defraud investors. The investment company billed itself as a "proudly Hispanic company" and advertised primarily in Spanish-language media. The district court applied a vulnerable victim enhancement to the defendant's sentence after finding that the victims were particularly susceptible to the scheme by virtue of their being Spanishspeakers or Hispanic individuals. In setting aside the...