USA v. Nakeshia Brown


UNPUBLISHED OPINION FILED. [10-20092 Affirmed ] Judge: PEH , Judge: JES , Judge: CH Mandate pull date is 11/19/2010 for Appellant Nakeshia Brown [10-20092]

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USA v. Nakeshia Brownse: 10-20092 Ca Document: 00511278718 Page: 1 Date Filed: 10/29/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED October 29, 2010 N o . 10-20092 S u m m a r y Calendar Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t iff Appellee v. N A K E S H I A BROWN, D e fe n d a n t Appellant A p p e a l from the United States District Court for the Southern District of Texas U .S .D .C . No. 4:09-CR-226-1 B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* N a k e s h ia Brown appeals her sixty-month sentence for bank fraud and a g g r a v a t e d identity theft. She argues that the district court's upward departure fr o m the United States Sentencing Guidelines ("Guidelines" or "U.S.S.G") for p r io r offenses against vulnerable victims lacked sufficient evidentiary support. In the alternative, she argues that, at most, a two-level, not four-level, departure Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Case: 10-20092 Document: 00511278718 Page: 2 Date Filed: 10/29/2010 No. 10-20092 w a s appropriate. We hold that the district court did not reversibly err in im p o s in g this sentence. Therefore, we AFFIRM. I. Background B r o w n was indicted on one count of bank fraud and attempted bank fraud (C o u n t One) and one count of aggravated identity theft (Count Two). Brown p le a d e d guilty to both counts. As a part of her plea, Brown admitted that she u s e d her employment as a patient care assistant at a Houston hospital to steal p r in t o u ts of patients' medical records containing the patients' names, addresses, S o c ia l Security numbers, and other identifying information. Brown used the in fo r m a t io n contained in these reports to apply for credit cards without the p a t ie n t s ' consent. Many of Brown's victims were elderly, and at least one had d ie d during the time that Brown was using his information. A t the sentencing hearing, the district court applied a two-level e n h a n c e m e n t pursuant to U.S.S.G. 3A1.1 because Brown knew or should have k n o w n that her crime impacted vulnerable victims. After all other adjustments fo r sentencing enhancements and criminal history, Brown's Guidelines range on C o u n t One was eighteen to twenty-four months.1 T h e district court sentenced Brown to thirty-six months on Count One. W h e n added to the mandatory consecutive twenty-four month sentence for C o u n t Two, her total sentence was sixty months. The court determined that an u p w a r d departure was appropriate because Brown's criminal history included a prior offense that also involved the selection of a vulnerable victim.2 The fin d in g that Brown had previously selected a vulnerable victim was based upon 1 Count Two carried a mandatory twenty-four-month consecutive sentence. "If an enhancement [for exploiting a vulnerable victim] applies and the defendant's criminal history includes a prior sentence for an offense that involved the selection of a vulnerable victim, an upward departure may be warranted." U.S. SENTENCING GUIDELINES MA N U A L 3A1.1 cmt. n.4 (2010). 2 2 Case: 10-20092 Document: 00511278718 Page: 3 Date Filed: 10/29/2010 No. 10-20092 in fo r m a t io n in the Presentence Investigation Report ("PSR") that Brown had p le a d e d guilty in a prior proceeding to "attempted credit/debit card abuse" for s t e a lin g the credit card of a 79-year-old patient at the hospital where she then w o r k e d (the "2002 offense"). The addendum to the PSR indicates that the victim o f that theft was hospitalized from November 5, 2002, to November 8, 2002, and t h a t Brown first used the stolen credit card on November 6, 2002, while the v ic t im was still hospitalized. Neither the PSR nor the record contains any fu r t h e r information about the victim of the credit card theft. Brown objected to t h e departure, and the district court overruled her objection. Brown timely a p p e a le d . I I . Analysis O n appeal, Brown argues that the district court did not have a sufficient fa c t u a l basis to determine that the 2002 offense involved a vulnerable victim, or, a lt e r n a t iv e ly , that the court's departure was too high and, therefore, was u n r e a s o n a b le . Our review of a district court's sentence is bifurcated. Gall v. U n ite d States, 552 U.S. 38, 51 (2007); United States v. Jeffries, 587 F.3d 690, 692 (5 t h Cir. 2009). We must first determine if the issue raised on appeal constitutes a significant procedural error. Jeffries, 587 F.3d at 692. If not, we review the s u b s t a n t iv e reasonableness of the sentence. Id.3 A claim that the district court upwardly departed because of a m is a p p lic a t io n of the Guidelines is reviewed as a procedural error. See United S ta te s v. Gutierrez-Hernandez, 581 F.3d 251, 255 (5th Cir. 2009) (district court Brown's briefing is ambiguous as to whether she is making a substantive unreasonableness challenge or procedural challenge to the number of levels the court upwardly departed. She argues that she received only a two-level increase for the instant offense for taking advantage of a vulnerable victim and, therefore, any departure for a prior "vulnerable victim" crime should only be two levels. Because the Guidelines do not specify a number of levels for the upward departure, we conclude that the court did not commit procedural error by departing upwardly four levels, rather than two. We thus address this alternative argument as a substantive unreasonableness challenge. 3 3 Case: 10-20092 Document: 00511278718 Page: 4 Date Filed: 10/29/2010 No. 10-20092 c o m m it t e d procedural error when its upward departure was based upon a m is a p p lic a t io n of the Guidelines). A district court's determination that a victim is vulnerable is a factual determination that we review for clear error. United S ta te s v. Medina-Argueta, 454 F.3d 479, 481 (5th Cir. 2006); see also United S ta te s v. Mejia-Orosco, 868 F.2d 807, 809 (5th Cir. 1989) ("`[V]ulnerability' is the s o r t of fact which the trial court is particularly well-positioned to gauge."). "A f a c t u a l finding is not clearly erroneous as long as it is plausible in light of the r e c o r d as a whole." Jeffries, 597 F.3d at 692. We hold that the district court did not clearly err in finding that the 79y e a r -o ld hospitalized victim of Brown's 2002 offense was a "vulnerable victim." A victim's vulnerability under 3A1.1 is gauged against the universe of potential v ic t im s . See United States v. Gonzales, 436 F.3d 560, 585 (5th Cir. 2006) ("[The v ic t im ] was quadriplegic, an unusual vulnerability among section 242 victims."); United States v. Moree, 897 F.2d 1329, 1335 (5th Cir. 1990) ("The vulnerability t h a t triggers 3A1.1 must be an `unusual' vulnerability which is present in only s o m e victims of that type of crime."); see also United States v. Angeles-Mendoza, 4 0 7 F.3d 742, 747 n.5 (5th Cir. 2005) (noting that a vulnerable victim is "less a b le to resist than the typical victim of the offense of the conviction") (citation o m itte d ). Though, as Brown notes, age alone is generally not conclusive of v u ln e r a b ilit y ,4 the victim in this case was not only elderly but also, and perhaps m o r e importantly, a hospital patient. Courts have often noted that medical p a t ie n t s are generally more vulnerable to crimes due to their mental or physical a ilm e n t s . See United States v. Bachynsky, 949 F.2d 722, 735-36 (5th Cir. 1991); See United States v. Vega-Iturrino, 565 F.3d 430, 434 (8th Cir. 2009) ("[T]he district court improperly equated age with vulnerability."); United States v. Smith, 930 F.2d 1450, 1455 (10th Cir. 1991) ("[I]t appears the district court [erroneously] equated `elderly' status with per se vulnerability."). 4 4 Case: 10-20092 Document: 00511278718 Page: 5 Date Filed: 10/29/2010 No. 10-20092 s e e also United States v. Stella, 591 F.3d 23, 30 (1st Cir. 2009); United States v. E c h e v a r r ia , 33 F.3d 175, 180-81 (2d Cir. 1994).5 This is especially so when the p a t ie n t is hospitalized.6 See United States v. Melvin, 187 F.3d 1316, 1322 (11th C ir . 1999) (upholding district court's upward departure based upon its finding t h a t juvenile patients are "especially vulnerable because they are, by nature of t h e ir hospitalization and their frailty, captive victims"). Brown argues that the patient in question was not more susceptible than a n y other person at the hospital to the initial theft, citing our decision in Moree, 8 9 7 F.2d at1335. However, Moree states: "[a] condition that occurs as a n e c e s s a r y prerequisite to the commission of a crime cannot constitute an e n h a n c in g factor . . . ." Id. (emphasis added). It is not a "necessary prerequisite" t o attempted credit/debit card abuse that a victim be hospitalized. Instead, h o s p it a liz a t io n makes this victim more vulnerable to this crime and less able to r e c o g n iz e and report the crime than the general population. See United States v . Hoogenboom, 209 F.3d 665, 670-71 (7th Cir. 2000) ("One of the reasons for in c r e a s in g a criminal penalty based on the type of victim is that vulnerable ones a r e less likely to report that they have been cheated, so crimes against them are m o r e difficult to uncover."). In light of the known facts of the victim's age and h o s p it a liz a t io n , the district court's determination that the victim of Brown's 2 0 0 2 offense was "vulnerable" for the purposes of applying 3A1.1 was not c le a r ly erroneous. Therefore, we hold that the departure was not a procedural error. United States v. Proffit, 304 F.3d 1001, 1008 (10th Cir. 2002) is inapposite here. That case involved a "sophisticated businessman" living on his ranch who had been diagnosed with cancer. That case concluded, based on the victim's specific abilities and characteristics, that his cancer diagnosis, while impacting his life, did not make him a "vulnerable victim" within the meaning of the Guidelines given his sophistication and access to legal counsel. Id. at 1007 ("In short, [the victim] is a sophisticated and successful businessman."). Indeed, Brown herself notes that many hospitals discourage patients from keeping valuables with them due, at least in part, to their increased susceptibility to theft. 6 5 5 Case: 10-20092 Document: 00511278718 Page: 6 Date Filed: 10/29/2010 No. 10-20092 H a v in g determined that the district court's sentence was not procedurally fla w e d , we now review the sentence for reasonableness. We review sentences b o th inside and outside the Guidelines range for abuse of discretion. United S ta te s v. Ortiz, 613 F.3d 550, 554 (5th Cir. 2010); see also United States v. Lara, 9 7 5 F.2d 1120, 1125 & n.3 (5th Cir. 1992) ("[A]ppellate review must occur with fu ll awareness of, and respect for, the trier's superior `feel' for the case. We will n o t lightly disturb decisions to depart, or not, or related decisions implicating d e g r e e s of departure.") (citation omitted). Brown argues that the district court abused its discretion because the e x t e n t of its departure for Count One, from twenty-four to thirty-six months, w o u ld require a four-level departure under the Guidelines, whereas 3A1.1 only p r o v id e s a two-level enhancement.7 A district court's departure from the G u id e lin e s on the basis of the Sentencing Commission's commentary is not lim it e d to the extent of the enhancement to which the comment relates. See M e lv in , 187 F.3d at 1321-23 (upholding a fifteen-level departure based on the v u ln e r a b ility and multiplicity of the victims, a combined four-level e n h a n c e m e n t ); United States v. Hines, 26 F.3d 1469, 1476 (9th Cir. 1994) (u p h o ld in g a six-level departure pursuant to the commentary for 3A1.2, a t h r e e -le v e l enhancement). Indeed, the repeated targeting of hospital patients, e v e n following a conviction, constitutes a greater offense (and concomitant g r e a t e r need to protect the public) than an isolated offense involving a v u ln e r a b le victim. See 18 U.S.C. 3553(a)(2); cf. U.S.S.G. 3A1.1(b)(2) (allowing a n additional two-level sentencing enhancement for offenses involving a large n u m b e r of vulnerable victims). Brown also complains that though the district court explained its decision to depart, it did not give an explanation for the extent of its departure. Though explaining the extent of departure in more detail is the better practice, we do not require greater explanation than was provided here. United States v. Moore, 997 F.2d 30, 36 & n.10 (5th Cir. 1993). 7 6 Case: 10-20092 Document: 00511278718 Page: 7 Date Filed: 10/29/2010 No. 10-20092 F u r t h e r m o r e , the extent of the district court's departure falls well within it s discretion. See, e.g., United States v. Simkanin, 420 F.3d 397, 419 (5th Cir. 2 0 0 5 ) ("[T]he mere fact that the upward departure nearly doubled the Guidelines r a n g e does not render it unreasonable."). The imposed sentence was also well u n d e r the statutory maximum of thirty years. See 18 U.S.C. 1344. Here, the d is t r ic t court noted the reason for its departure and determined that a sixtym o n th sentence satisfies the statutory requirements of 18 U.S.C. 3553(a). On t h is record, we do not find its sentence to be substantively unreasonable. I I I. Conclusion T h e record supports the district court's finding that the victim of Brown's 2 0 0 2 offense was a "vulnerable victim." Similarly, the extent of the departure w a s not unreasonable. The district court's sentence is therefore AFFIRMED. 7

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