United States v. James W. Mooty II , 25 F. App'x 501 ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 01-2641
___________
United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
James Wesley Mooty, II, * Western District of Arkansas.
*
Appellant. * [UNPUBLISHED]
___________
Submitted: January 4, 2002
Filed: February 12, 2002
___________
Before McMILLIAN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
___________
PER CURIAM.
James Mooty pleaded guilty to three counts of mail fraud and aiding and
abetting, in violation of 18 U.S.C. §§ 1341, 2; and to two counts of wire fraud and
aiding and abetting, in violation of 18 U.S.C. §§ 1343, 2. The district court sentenced
him to 20 months imprisonment on each count, to be served concurrently, and
concurrent 3-year terms of supervised release. Mr. Mooty appeals his sentence,
challenging the district court’s application of sentencing enhancements under
U.S.S.G. § 3A1.1(b)(1) and (2).
The Guidelines provide for a 2-level enhancement where the defendant “knew
or should have known that a victim of the offense was a vulnerable victim.” See
U.S.S.G. § 3A1.1(b)(1). We conclude that the district court did not clearly err in
applying this enhancement. The record before the district court at sentencing
demonstrated that Mr. Mooty knew, or should have known, that his victims were
particularly vulnerable because they lived out of state. See United States v. Moskal,
211 F.3d 1070, 1073 (8th Cir. 2000) (standard of review). The Guidelines provide
for an additional 2-level enhancement where “the offense involved a large number of
vulnerable victims.” See U.S.S.G. § 3A1.1(b)(2). We believe that application of this
enhancement, however, was unwarranted. The record supports a finding that seven
victims were particularly vulnerable to Mr. Mooty’s fraudulent activity, and we hold
that seven is not, as a matter of law, a “large number” within the meaning of section
3A1.1(b)(2).
Accordingly, we vacate Mr. Mooty’s sentence and remand to the district court
for resentencing without the 2-level section 3A1.1(b)(2) enhancement. We deny
Mr. Mooty’s motion to strike an addendum to the government’s brief.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-2-