Filed: May 27, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 5-27-2008 USA v. Giblin Precedential or Non-Precedential: Non-Precedential Docket No. 07-2222 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. Giblin" (2008). 2008 Decisions. Paper 1139. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1139 This decision is brought to you for free and open access by the Opinions of the United Stat
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 5-27-2008 USA v. Giblin Precedential or Non-Precedential: Non-Precedential Docket No. 07-2222 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. Giblin" (2008). 2008 Decisions. Paper 1139. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1139 This decision is brought to you for free and open access by the Opinions of the United State..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-27-2008
USA v. Giblin
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2222
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"USA v. Giblin" (2008). 2008 Decisions. Paper 1139.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1139
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________
No. 07-2222
_________________
UNITED STATES OF AMERICA
v.
PATRICK M. GIBLIN,
Appellant
________________
Appeal from the
United States District Court for the
District of New Jersey
(D.C. No. 05-cr-00439)
District Judge: Honorable Robert B. Kugler
________________
Submitted Under Third Circuit LAR 34.1(a)
May 9, 2008
________________
Before: BARRY and STAPLETON, Circuit Judges, and
RESTANI*, Judge
(Filed: May 27, 2008)
_______________
OPINION OF THE COURT
_______________
________________________
*Honorable Jane A. Restani, Chief Judge of the United States Court of
International Trade, sitting by designation.
RESTANI, Judge
Appellant Patrick M. Giblin (“Giblin”) appeals from his sentence imposed after a
plea of guilty to ten counts of wire fraud in violation of 18 U.S.C. § 1343. The District
Court sentenced him to 115 months imprisonment, a three-year term of supervised
release, and $182,443.98 in restitution. Giblin argues that the District Court erred in
applying a two-level sentencing enhancement under U.S.S.G. § 3A1.1(b)(1) because of
vulnerable victims. We will affirm.
Procedural and Factual Background
From January 2000 through March 2005, Giblin used various telephone dating
services to target women and obtain money from them though fraudulent pretenses.
Giblin created numerous accounts in his name on dating services and would “cultivate a
telephone rapport” with each woman under the false pretense of pursuing a relationship.
Giblin would then ask the victims for money, claiming that it was needed for moving or
traveling expenses in order to relocate to their area. Although Giblin claimed the money
would be paid back after his relocation, he never met any of the women or returned the
money. The indictment alleged that over the course of his scheme, Giblin induced at least
eighty women to wire him money.
On May 12, 2006, Giblin pled guilty to counts 1 through 10 of the indictment
charging him with wire fraud in violation of 18 U.S.C. § 1343. As part of the plea
agreement, the government dismissed counts 11 through 15 charging Giblin with
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extortion in violation of 18 U.S.C. § 875(b). The parties also stipulated to the applicable
Guideline to be used, the amount of loss, the number of victims, and for a two-level
sentencing reduction for acceptance of guilt. Under the plea agreement, the parties were
permitted to litigate whether a two-level enhancement should be applied pursuant to
U.S.S.G § 3A1.1(b)(1) because the offense involved at least one vulnerable victim.
At his sentencing hearing on April 17, 2007, Giblin objected to the
recommendation in the presentence investigation report that the District Court apply a
two-level enhancement because he knew or should have known that many of the women
he defrauded were particularly vulnerable victims. Giblin argued that he had “set out a
wide net with a dating service” to “people who freely market[] themselves and expose
themselves to strangers in hopes [of making] some kind of a relationship.” (Appellant’s
App. 103.) Giblin noted that the women could have avoided the crimes by simply
hanging up the phone. (Id. at 105.)
In support of the enhancement, the government presented the testimony of two of
the victims. The first testified that she advised Giblin that she was divorced, had lost her
only son in a car accident, had a father recently diagnosed with terminal cancer, and had
been laid off from her job of thirteen years. She also informed Giblin that she had
$20,000 in life insurance money from her son’s death. Giblin told the victim that he was
moving to her area for work and intended to meet her, but needed money for car repairs,
food, and bail. The victim testified that over time Giblin became abusive toward her,
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calling her names and threatening to harm her father if she did not send more money. She
sent a total of $18,000 to Giblin.
The second victim told Giblin that she was blind and divorced. She testified that
Giblin told her he was going to move to her area and promised her a romantic
relationship. She stated that as time went on, Giblin became possessive and obsessive
and threatened her and her children. This victim sent Giblin a total of over $15,000.
The District Court rejected Giblin’s arguments. (Id. at 107–109.) Specifically, the
District Court found that the first victim was vulnerable given the loss of her father and
son and the second was vulnerable because of her blindness and mental status. (Id. at
108.) The District Court added the two-level enhancement and concluded that Giblin’s
total offense level was 23, which resulted in a guideline range of 92 to 115 months of
imprisonment. (Id. at 109.) As noted above, a 115 month term of imprisonment was
imposed and Giblin timely appealed.
Jurisdiction and Standard of Review
We have jurisdiction pursuant to 28 U.S.C. § 1291. The District Court’s legitimate
interpretation of the Sentencing Guidelines is subject to plenary review. United States v.
Zats, 298 F.3d 182, 185 (3d Cir. 2002) (citing United States v. Monostra,
125 F.3d 183,
188 (3d Cir. 1997)). We review the District Court’s findings of fact and the application
of the vulnerable victim enhancement to these facts for clear error. Id..
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Discussion
Giblin’s only objection to his sentence concerns the District Court’s application of
th two-level vulnerable victim enhancement to his base offense level under U.S.S.G.
§ 3A1.1(b)(1). Giblin argues the District Court erred in finding that two of his victims
were vulnerable because no clear causal connection existed between the victim’s
perceived vulnerabilities and the ultimate success of the crime, as “it was the victims’
availability, not their perceived vulnerabilities, which made this scheme succeed.”
(Appellant’s Br. 15.) Giblin alleges that he did not exploit the victims’ vulnerabilities but
instead “indiscriminately pursued a large volume of women who advertised their
availability . . . [and] should have been keenly aware of the risks associated with their
behavior.” (Id. at 16.)
The vulnerable victim enhancement, U.S.S.G. § 3A1.1(b), provides that “[i]f the
defendant knew or should have known that a victim of the offense was a vulnerable
victim, increase by 2 levels.” U.S.S.G. § 3A1.1(b)(1) (2000). The Guidelines define a
“vulnerable victim” as a person “who is unusually vulnerable due to age, physical or
mental condition, or who is otherwise particularly susceptible to the criminal conduct.”
Id. at cmt. n.2. “The enhancement may be applied where: (1) the victim was particularly
susceptible or vulnerable to the criminal conduct; (2) the defendant knew or should have
known of this susceptibility or vulnerability; and (3) this vulnerability or susceptibility
facilitated the defendant’s crime in some manner; that is, there was ‘a nexus between the
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victim’s vulnerability and the crime’s ultimate success.’” United States v. Iannone, 184
F.3d 214, 220 (3d Cir. 1999) (quoting
Monostra, 125 F.3d at 190). Further, in order to
qualify for a vulnerable victim enhancement, the government does not need to prove “that
every, or even most, of [Giblin’s] victims were vulnerable or that he knew or should have
known of the vulnerabilities in every case,” but rather only that he knew or should have
known that a victim of the offense was vulnerable.
Zats, 298 F.3d at 190.
The record supports the District Court’s finding that Giblin qualified for the two-
level enhancement. The District Court made its own determination that these women
were vulnerable victims based on their “individual personality traits and characteristics,”
and did not simply find that persons who join dating services are per se vulnerable to the
type of fraudulent scheme advanced by Giblin. Iannone, 184 F.3d at 221; see also
Zats,
298 F.3d at 188 (“[P]resumed vulnerabilities among broad classes of victims . . . are
disfavored as a basis for the enhancement because such presumptions are often incorrect
with respect to specific individuals.”).
Giblin knew of his victims’ vulnerability from the outset. The District Court
observed that the victims “were up front in the beginning with him about their
difficulties.” (Appellant’s App. 108.) As the District Court specifically noted, the
defendant need not target a victim based on her vulnerability, but, rather, it is sufficient
that a defendant knew or should have known of the victim’s susceptibility. (Id. at
108–09); see also Zats, 298 F.3d at 189–90 (“Nothing in the Guidelines requires that an
6
offender have prior knowledge of his victim’s vulnerabilities. . . . That knowledge or
notice could arise during the course of an ongoing offense such as fraud.”).
Finally, there was a nexus between the victims’ vulnerability and the success of
Giblin’s fraud. Specifically, the District Court stated that once Giblin learned of the
physical and emotional disabilities of these women it “made his job a lot easier.”
(Appellant’s App. 109.)
Conclusion
The District Court clearly articulated the grounds for its application of the two-
level enhancement under the Iannone three-step analysis.1 We find that the District Court
did not err in enhancing Giblin’s offense level under § 3A1.1(b)(1) and we will affirm.
1
Although the District Court did not cite Iannone in its vulnerable victim
enhancement analysis, “failure to use the case name during sentencing in open court does
not . . . indicate that the application of the enhancement was error.” United States v.
Hawes, 523 F.3d 245, 255 (3d Cir. 2008).
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