United States v. John Wilson , 561 F. App'x 451 ( 2014 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0243n.06
Case No. 13-1856 FILED
Mar 31, 2014
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
JOHN WILSON, ) MICHIGAN
)
Defendant-Appellant. )
)
)
BEFORE: KEITH, SILER, and ROGERS, Circuit Judges.
SILER, Circuit Judge. Defendant John Wilson appeals his sentence, arguing that the
district court erred in assessing a two-level vulnerable victim enhancement and a four-level
aggravating role enhancement. We AFFIRM.
BACKGROUND
From 2000 to 2010, Wilson defrauded incarcerated individuals and their families by
selling them legal services under the false representation that he was an attorney, despite never
having attended law school. He performed legal research and drafted legal documents and filed
them either under actual attorneys’ names with forged signatures or “pro se” on behalf of the
inmates. He employed at least a dozen individuals in furtherance of the scheme and advertised
Case No. 13-1856, United States v. Wilson
his services through direct mailings to inmates, whose names he obtained from accessing various
state government websites.
In 2003, the State Bar of Michigan obtained a permanent injunction prohibiting Wilson
from providing legal advice or services, from acting as a representative or intermediary in legal
matters, and from holding himself out as an attorney authorized to practice law. However, he
continued soliciting inmates and misrepresenting the nature of his business. Throughout the
scheme, he failed to file federal income tax returns and received approximately $2.6 million from
the inmates and their families. In total, the fraudulent scheme victimized more than 2,100
individuals. Wilson eventually pleaded guilty to two counts of mail fraud and one count of
failure to file a federal income tax return.
At sentencing, the district court overruled Wilson’s objection to assessing a two-level
vulnerable victim enhancement. The court also overruled Wilson’s objection to assessing a four-
level aggravating role enhancement for his role as an organizer or leader of a criminal activity
that involved five or more participants or that was otherwise extensive, finding a total of nine
knowing and unknowing participants in the conspiracy, plus Wilson. The court assessed two
additional levels pursuant to USSG § 3A1.1(b)(2) for the large number of vulnerable victims, as
well as two levels pursuant to USSG § 2B1.1(b)(9)(C) because Wilson continued to commit the
offense in violation of the injunction. It sentenced him to concurrent imprisonment terms of 240
months for the mail fraud counts and 12 months for failure to file an income tax return.
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DISCUSSION
I. Vulnerable Victim Enhancement
Wilson argues that the district court erred in finding that the incarcerated individuals and
their families qualified as vulnerable victims because they did not have particular characteristics
that rendered them likely prey to his fraudulent scheme.
“We review a district court’s findings regarding the vulnerability of a victim for clear
error.” United States v. Brawner, 173 F.3d 966, 972 (6th Cir. 1999). Under the vulnerable victim
enhancement, a defendant’s base offense level for determining his Guidelines range is increased
two levels “[i]f the defendant knew or should have known that a victim of the offense was a
vulnerable victim.” USSG § 3A1.1(b)(1). A vulnerable victim is a victim of the offense of
conviction “who is unusually vulnerable due to age, physical or mental condition, or who is
otherwise particularly susceptible to the criminal conduct.” USSG § 3A1.1 cmt. n. 2.
Victims are “otherwise particularly susceptible to the criminal conduct” within the
meaning of the Guidelines where they are “predisposed to the very scam” used to defraud them.
Brawner, 173 F.3d at 973. Evidence of initial targeting followed by a “reloading” process may
be used to indicate their susceptibility. Id. For example, in Brawner, the defendant bought a
“leads list,” which identified persons willing to send in money in the hope of winning a valuable
prize. Id. Then, through a reloading process, the defendant repeatedly contacted persons who had
already succumbed to the scheme. Id. We held that the victims’ susceptibility was “clearly
covered” by § 3A1.1(b)(1) and was evinced by the defendant’s “refined [and] verified ‘sucker’s’
list.” Id.
The district court found that Wilson’s incarcerated victims were particularly susceptible
to his criminal conduct because of their limited education, cognitive abilities, and ability to
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understand the legal technicalities of their case, and because of their limited communication with
and isolation from the outside world due to their incarceration. It also found that the families
were vulnerable victims because of their desperation, lack of recourse and information, and
unsophistication. The court found, and Wilson admitted, that Wilson sought out certain classes of
incarcerated persons, including those of Hispanic heritage, because he believed they were more
apt to pay for his services. The court concluded that Wilson devised the scheme specifically to
prey upon these perceived vulnerabilities. Also, as in Brawner, Wilson used a reloading process
in the form of a list of old paying clients to identify clients who were thus more likely to pay for
new services.
Therefore, Wilson’s initial targeting procedures, followed by his use of a reloading
process, demonstrate that Wilson targeted individuals he knew to be particularly susceptible to
his criminal conduct. Brawner, 173 F.3d at 973. The district court did not clearly err in finding
that Wilson’s victims were vulnerable.
II. Aggravating Role Enhancement
Wilson argues that the district court erred in finding that his criminal activity involved
five or more participants or, alternatively, that the court erred in finding that his criminal activity
was otherwise extensive. Wilson conceded that he was a leader because he accepted a two-level
enhancement for his leadership role. Therefore, whether a four-level enhancement was justified
depends on whether the offense involved five or more participants or was otherwise extensive.
We review a district court’s findings of fact for clear error. United States v. Washington,
715 F.3d 975, 982 (6th Cir. 2013). Usually, we review its legal conclusions de novo; however,
we review the legal conclusion that a person is an organizer or leader for the aggravating role
enhancement under a deferential standard of review. Id. at 982–83.
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Pursuant to the aggravating role enhancement, a defendant’s base offense level for
determining his Guidelines range is increased four levels “[i]f the defendant was an organizer or
leader of a criminal activity that involved five or more participants or was otherwise extensive.”
USSG § 3B1.1(a). “The two tests are equivalent, meaning that an upward departure is not
appropriate under the ‘otherwise extensive’ test unless the offense in question was somehow the
functional equivalent of a crime involving five or more participants.” United States v. Anthony,
280 F.3d 694, 699 (6th Cir. 2002).
First, in determining the number of participants for the five or more participants test,
those who are criminally responsible for the commission of the offense are counted, even if they
were not convicted. USSG § 3B1.1 cmt. n.1. Further, persons who were aware of the criminal
objective and knowingly offered assistance qualify as participants. Anthony, 280 F.3d at 698.
Wilson agreed at sentencing that he and his employee Lari Zeka were participants and, on
appeal, he concedes that James Roberts, the attorney who agreed to provide a gloss of legal
representation to Wilson’s scheme, was also a participant. The district court found that Ashley
Fournier and Reynaldo Rodriguez were participants and explicitly noted that they would be
chargeable as aiders and abettors. Fournier conducted boilerplate legal research without any legal
training, which she knew was sold to the victims. Fournier further admitted she had reason to
believe Wilson was running a scheme, she knew Wilson was not an attorney but that he was
holding himself out as one, and she did not believe the research was helpful. She also stated that
one of the reasons she resigned was because she knew Wilson was not running a legitimate
business. Rodriguez had likewise been suspicious that Wilson was perpetrating fraudulent
activities and had acted as a bodyguard to protect Wilson from those he had defrauded.
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Therefore, there was ample evidence that Fournier and Rodriguez were both aware that
they were involved in a fraudulent scheme when working for Wilson and that they knowingly
offered their assistance to Wilson in perpetrating the fraud, thus qualifying them as participants.
Because Wilson admits that there were three participants and because the evidence indicates that
there were at least two more participants, the district court did not err in finding that Wilson was
an organizer or leader of a criminal activity that involved five or more participants pursuant to
§3B1.1(a). Washington, 715 F.3d at 983.
Second, although the district court also found the criminal activity was otherwise
extensive pursuant to § 3B1.1(a), it is unnecessary for us to decide that issue, as we have
affirmed on the alternative theory of finding five knowing participants.
AFFIRMED.
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