For the Defense - Vol. 8, Issue 4 - 12

The Third Circuit applies a three-pronged test to determine
whether a given victim qualifies as a " vulnerable victim. "
Specifically, the Third Circuit analyses whether:
(1) the victim was particularly susceptible or vulnerable
to the criminal conduct; (2) the defendant knew or
should have known of this susceptibility or vulnerability;
and (3) this vulnerability or susceptibility facilitated the
defendant's crime in some manner; that is, there was 'a
nexus between the victim's vulnerability and the crime's
ultimate success.'29
This is particularly applicable to white collar cases because, in
many cases, white collar offenders are accused of defrauding or
committing other crimes against vulnerable victims. By way of
example, a defendant accused of a telemarketing scheme may be
accused of targeting elderly people because they would be more
likely to be susceptible to the scheme.
There are many Third Circuit cases in which the " vulnerable
victim " enhancement has been applied to white collar offenders.30
For example, in United States v. Hampton,31
the vulnerable victim
enhancement was applied when sentencing a defendant who
was convicted of " eighteen counts of conspiracy, wire fraud, and
aggravated identity theft for his role in a conspiracy to steal and
then sell houses. " 32
As part of the conspiracy, the defendant and
his co-conspirators " located seemingly vacant property and filed
fraudulent deeds purportedly signed by the property owners to
obtain apparent title to the property. " 33
The district found that
the defendant's victims were vulnerable, noting that many of
them " had let the properties fall into disrepair due to specific
vulnerabilities, such as financial straits, poor health, or old age. " 34
The district court also found that the defendant knew or should
have known that his victims were vulnerable because of his
" knowledge of the neighborhood " and his knowledge " of the
types of homes that were being targeted by the conspiracy, " and
that there was a nexus between the success of the crimes and the
vulnerability of the victims.35
The Third Circuit concluded that the
district court's findings were not clearly erroneous and affirmed
the application of the vulnerable victim enhancement.36
Similar to the exclusion for " substantial financial hardship, "
courts have broad discretion when determining whether a victim is
a " vulnerable victim. " Although the Guidelines provide examples of
factors that might make a victim " unusually vulnerable " -age and
physical or mental condition-courts are not limited to considering
only those factors.37
Rather, the Guidelines provide that someone
who is " otherwise particularly susceptible to the criminal conduct "
may be identified as a vulnerable victim, which allows Courts to
consider non-enumerated factors.38
One example in which the Third Circuit found that a victim was
a " vulnerable victim " based on factors that are not specifically
enumerated in Section 3A1.1 of the guidelines is United States
v. Rosier.39
Timing: Delayed Retroactive Application
Although Section 4C1.1 will be applied retroactively, it will be
given delayed retroactive application.43
The earliest that reduced
sentences for qualifying defendants may be made effective is
February 1, 2024.44
The Commission decided to delay the retroactive
Specifically, the Commission
application of Section 4C1.1 for practical reasons regarding
defendants' reentry into society.45
voted for delayed retroactive application " to ensure that, to the
extent practicable, all individuals who are to be released have the
opportunity to participate in reentry programs and transitional
services that will increase the likelihood of successful reentry to
society. " 46
The delayed retroactive application might also (but not likely)
prevent an onslaught of motions landing on judges' desks from
defendants eligible to be released immediately and a potentially
large number of defendants from being released very shortly
after Section 4C1.1 takes effect. While the Commission did not
specifically articulate this as a reason for delaying the application,
it likely was wary of the need to prevent a sudden release of a large
number of inmates. By its count, the Commission estimates 1,198
inmates will be eligible for immediate release and 7,272 inmates in
total will be eligible for relief.47
There, a district court found that someone was a
" vulnerable victim " of a fraudulent scheme " not because of
his age, but based on the facts that he was susceptible to [the
defendant's] pleasant cajoling and that he had previously fallen
prey to [the defendant's] scheme. " 40
The Third Circuit upheld this
decision, finding that it was not clearly erroneous.41
Application Note 2: Possibility for Upward Departures
As if the various exclusions were not enough to prevent certain
defendants from qualifying for the two-level reduction, one of the
12 For The Defense l Vol. 8, Issue 4
Delaying the application of Section 4C1.1 can negatively affect
many defendants. Say, for example, that a defendant received a
sentence of twelve months plus one day based on a six-month
downward variance from the bottom of the Guidelines range of
18-24 months based on an Offense Level 15 in Criminal History
Category I. This hypothetical defendant began serving his sentence
in June of 2023. The defendant is a zero-point offender, none of
the exclusions in Section 4C1.1 apply to him, and his crime was not
severe enough for a judge to apply an upward variance. Thus, the
defendant qualifies for the two-level reduction and would have an
Offense Level of 13 in Criminal History Category I, which means the
applicable Guideline range would be 12-18 months. A similar sixmonth
downward variance from the bottom of this range would
result in a six-month sentence,48
meaning the defendant would
new Guideline's application notes provides a catch-all for courts
by allowing them to impose an upward departure if applying
the two-level reduction is not justified because of the severity
of a defendant's criminal history. Specifically, Application Note 2
provides:
An upward departure may be warranted if an adjustment
under this guideline substantially underrepresents the
seriousness of the defendant's criminal history. For
example, an upward departure may be warranted if the
defendant has a prior conviction or other comparable
judicial disposition for an offense that involved violence
or credible threats of violence.42
This provision provides courts with wide discretion-even if a
defendant's conduct does not fall under one of the specifically
enumerated exclusions, the defendant could be denied the twolevel
reduction if the court determines that something in the
defendant's criminal history that does not get pointed is a reason
not to award the reduction. Granted, it might be difficult to
conjure a prior conviction or other comparable judicial disposition
for an offense involving violence or credible threats of violence for
a zero-point offender, and especially for a White Collar zero-point
offender, but the possibility exists, and counsel must be careful in
searching and evaluating the criminal history records.
For the Defense - Vol. 8, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 8, Issue 4
