United States v. Helen Kennedy ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4370
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HELEN KENNEDY, a/k/a Helen Abdi,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Rebecca Beach Smith, Senior District Judge. (2:19-cr-00158-RBS-RJK-1)
Submitted: March 31, 2021 Decided: April 23, 2021
Before WILKINSON and NIEMEYER, Circuit Judges, and TRAXLER, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Geremy C. Kamens, Federal Public Defender, Patrick L. Bryant, Appellate Attorney,
Alexandria, Virginia, Andrew W. Grindrod, Assistant Federal Public Defender, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for Appellant. G. Zachary
Terwilliger, United States Attorney, Alexandria, Virginia, Joseph Kosky, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Helen Kennedy pled guilty to five counts of wire fraud, in violation of
18 U.S.C. §§ 2, 1343, and was sentenced to 24 months of imprisonment. She appeals her
sentence, contending that the district court erred in applying the vulnerable victim
enhancement in U.S. Sentencing Guidelines Manual § 3A1.1(b)(1) (2018). We affirm.
“We review the district court’s factual findings for clear error and its legal
conclusions de novo.” United States v. McManus, 734 F.3d 315, 317 (4th Cir. 2013); see
United States v. Cline, 986 F.3d 873, 880 (5th Cir. 2021) (“Whether a victim is unusually
vulnerable is a factual finding that we review for clear error.”). The Sentencing Guidelines
allow for an upward adjustment in the defendant’s offense level if a victim was “unusually
vulnerable due to age, physical or mental condition, or . . . [was] otherwise particularly
susceptible to the criminal conduct.” USSG § 3A1.1 cmt. n.2. Application of the
enhancement entails a two-part inquiry: (1) “a sentencing court must determine that a
victim was unusually vulnerable”; and (2) “the court must then assess whether the
defendant knew or should have known of such unusual vulnerability.” United States v.
Etoty, 679 F.3d 292, 294 (4th Cir. 2012) (internal quotation marks omitted). “The
enhancement thus requires a fact-based explanation of why . . . [a particular] characteristic
made one or more victims unusually vulnerable to the offense conduct, and why the
defendant knew or should have known of this unusual vulnerability.” United States v.
Shephard, 892 F.3d 666, 670 (4th Cir. 2018) (internal quotation marks omitted).
Kennedy argues that the district court erred by making a class-based determination
that all Iranian nationals seeking immigration status in the United States were vulnerable
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victims. See United States v. Kerley, 544 F.3d 172, 180 (2d Cir. 2008) (“An inquiry into a
victim’s vulnerability must be individualized and must not be based on broad
generalizations about victims based upon their membership in a class.” (alteration and
internal quotation marks omitted)). However, the court’s finding that Iranian nationals
seeking immigration status in the United States constitute a particularly vulnerable subset
of victims was not an impermissible basis for applying the enhancement. See, e.g., United
States v. Pierre, 870 F.3d 845, 849 (8th Cir. 2017) (stating that vulnerable victim
enhancement could apply where the same circumstance made a class of victims
vulnerable); United States v. Mendoza, 262 F.3d 957, 960 (9th Cir. 2001) (finding that the
application note for USSG § 3A1.1(b) “defines groups of vulnerable victims by class
characteristics . . . . The example of a proper application in the note, marketing an
ineffective cancer cure, treats the class of people with cancer as vulnerable” (footnote
omitted)).
Moreover, the district court explained that the victims of Kennedy’s fraudulent
immigration business were particularly vulnerable because of their individual difficulties
getting into or remaining in the United States. See United States v. Wilson, 913 F.2d 136,
138 (4th Cir. 1990) (stating that to trigger USSG § 3A1.1(b), the vulnerability “must be an
unusual vulnerability which is present in only some victims of that type of crime” (internal
quotation marks omitted)). The court determined that Kennedy knew or should have
known of her victims’ vulnerabilities because she catered to and spoke with them
individually. See Mendoza, 262 F.3d at 962 (stating that the knowledge requirement was
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satisfied “because [the defendant] dealt with each victim personally”). We conclude that
the district court did not err in applying the vulnerable victim enhancement.
We therefore affirm Kennedy’s sentence. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materials before this court
and argument would not aid the decisional process.
AFFIRMED
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