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Sentencing guidelines require a sentencing enhancement for vulnerable victims despite prior case dicta

 

In this appeal Birge was convicted of one count of mail fraud pursuant to 18 U.S.C. section 1341 for writing herself $767,218.99 while serving as the Chief Clerk of the probate court of Chatham County, Georgia. The checks were drawn from the conservatorship accounts belonging to 31 minors, two incapacitated adults, and two estates. She was sentenced to 72 months imprisonment and appealed that sentence raising the issue that the district court erred in applying the vulnerable victim enhancement when it calculated her guidelines range.

Under the federal sentencing guidelines a vulnerable victim of an offense is a victim who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.

Birge argued that the district court should not have applied the enhancement to her because there is no evidence that she targeted the vulnerable victims. The court found that amended versions of the language of commentary to section 3A1.1 of the guidelines revised the language to only require that the defendant knew or should have known of the victims’ unusual vulnerability.

The Sentencing Commission amended the commentary to the guideline to include language that the adjustment applies to offenses involving an unusually vulnerable victim in which the defendant knew or should have known of the victim’s unusual vulnerability. The court pointed to precedent holding that commentary in the guidelines Manual interpreting or explaining a guideline is binding on the courts unless it violates the Constitution or a federal statute.

The court found that as the chief clerk of a probate court, Birge knew or should have known that in Georgia conservators are appointed to protect the assets of those who lacked the capacity to do so themselves. As a result the court found she should have known that the beneficiaries of conservatorship were particularly susceptible to her criminal conduct.

While the defendant relied on prior decisions involving this enhancement where the court required evidence showing the defendant targeted the victims, here the court found that the language was only dicta. None of the prior decisions involving the vulnerability enhancement held that a defendant is not eligible for the enhancement unless she targeted a vulnerable victim. In each one of the prior enhancement cases the defendant did target a vulnerable victim. For that reason the language in the court’s earlier enhancement decisions requiring evidence the defendant targeted the victims is dicta and not binding.

The court held that the court was not bound by prior dicta contained in earlier opinions. Instead the court found is was boun by the guidelines and the commentary to the federal criminal  guidelines which state that the vulnerable victim enhancement applies so long as the defendant “knew or should have known that a victim of the offense was a vulnerable victim.” Because the defendant knew or should have known that the victims of her scheme were vulnerable the district court did not err in applying the enhancement.