United States v. Douglas C. Rogers , 175 F. App'x 319 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 10, 2006
No. 05-14633 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00003-CR-HL-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOUGLAS C. ROGERS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(April 10, 2006)
Before ANDERSON, BIRCH and BLACK, Circuit Judges.
PER CURIAM:
Douglas C. Rogers appeals his concurrent sentences for mail fraud in
violation of 18 U.S.C. § 1341. Rogers asserts the district court erred in applying a
two-level vulnerable victim enhancement under U.S.S.G. § 3A1.1(b)(1) (1998)
when calculating his Guidelines sentence because (1) Mildred Evelyn Roberts Carr
was not a victim, (2) Carr was not vulnerable, and (3) this enhancement resulted in
impermissible double counting. The district court did not err, and we affirm his
sentences.
Even though the Guidelines are now advisory, the district court must
correctly calculate the sentencing range prescribed by the Sentencing Guidelines.
United States v. Crawford, 407 F.3d 1174, 1178-79 (11th Cir. 2005). “The district
court’s application of U.S.S.G. § 3A1.1 presents a mixed question of law and fact,
subject to de novo review, but the district court’s determination of a victim’s
‘vulnerability’ is a factual finding given due deference.” United States v. Day, 405
F.3d 1293, 1295 (11th Cir.), cert. denied, 126 S. Ct. 432 (2005). “We generally
review a claim of double counting de novo.” United States v. Lebovitz, 401 F.3d
1263, 1270 (11th Cir. 2005).
The Guidelines provide “[i]f the defendant knew or should have known that
a victim of the offense was a vulnerable victim, increase by 2 levels.” U.S.S.G.
§ 3A1.1(b)(1) (1998). A vulnerable victim is “a person (A) who is a victim of the
offense of conviction . . . and (B) who is unusually vulnerable due to age, physical
or mental condition, or who is otherwise particularly susceptible to the criminal
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conduct.” Id., comment. (n.2). “The applicability of the ‘vulnerable victim’
enhancement must be determined on a case-by-case basis, and is appropriate where
the defendant knows that the victim has ‘unique characteristics’ that make the
victim more vulnerable to the crime than other potential victims of the crime.”
United States v. Phillips, 287 F.3d 1053, 1056-57 (11th Cir. 2002).
The district court did not err in finding Carr to be a vulnerable victim. First,
Carr was a victim for the purposes of § 3A1.1. Carr was the settlor and beneficiary
of the trust from which Rogers wrongfully took property. As alleged in the
indictment, and found by the jury, Rogers devised or participated in a scheme to
fraudulently deprive her of the intangible right of honest services. Moreover, Carr
had a beneficial interest in the trust, which was harmed because there were fewer
trust assets available for her support.
The district court’s finding that Carr was vulnerable was not erroneous. Carr
was not impaired to the extent that she was legally incompetent. However, the
Thomas County, Georgia probate court found Carr was in need of a guardian of her
property, and issued “Letters of Guardianship of the Property of Incapacitated
Adult,” appointing Rogers as guardian. Under the law in effect when Rogers was
appointed guardian, a guardian of the property of incapacitated adults could be
appointed “to the extent that such adults are incapable of managing their estates.”
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O.C.G.A. § 29-5-1 (2003) (repealed 2005). As guardian of Carr’s property, Rogers
knew that Carr was not fully capable of handling her financial affairs.
We conclude a vulnerable victim enhancement was warranted based on
Rogers’ knowledge of Carr’s vulnerability, and now turn to the issue of whether
application of this enhancement in conjunction with a two-level enhancement for
abuse of trust under § 3B1.3 was impermissible double counting. “Double
counting a factor during sentencing is permitted if the Sentencing Commission
(Commission) intended that result and each guideline section in question concerns
conceptually separate notions relating to sentencing. We presume that the
Commission intended to apply separate guideline sections cumulatively unless
specifically directed otherwise.” United States v. Stevenson, 68 F.3d 1292, 1294
(11th Cir. 1995). A vulnerable victim enhancement is not applied “if the factor
that makes the person a vulnerable victim is incorporated in the offense guideline.
For example, if the offense guideline provides an enhancement for the age of the
victim, this subsection would not be applied unless the victim was unusually
vulnerable for reasons unrelated to age.” U.S.S.G. § 3A1.1, comment. (n.2)
(1998).
In this case, the two enhancements concern conceptually separate notions
relating to sentencing. The abuse of trust enhancement focuses on Rogers’ conduct
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in committing the offense. By virtue of his position as trustee, Rogers was able to
obtain money from an asset held by the trust. In contrast, the vulnerable victim
enhancement focuses on why Rogers chose to take money from this particular
trust. Here, the district court did not find Carr vulnerable because Rogers held
positions of trust, but because she suffered from some kind of disability or
incapacity. Therefore, the district court did not err by applying both
enhancements.
AFFIRMED.
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