Filed: Dec. 09, 2013
Latest Update: Mar. 02, 2020
Summary: Case: 13-60091 Document: 00512465396 Page: 1 Date Filed: 12/09/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED December 9, 2013 No. 13-60069 No. 13-60070 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff–Appellee, versus KEVIN COE, Defendant–Appellant. *************** No. 13-60091 UNITED STATES OF AMERICA, Plaintiff–Appellee, versus JARVIS JONES, Defendant–Appellant. Case: 13-60091 Document: 00512465396 Page: 2 Date File
Summary: Case: 13-60091 Document: 00512465396 Page: 1 Date Filed: 12/09/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED December 9, 2013 No. 13-60069 No. 13-60070 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff–Appellee, versus KEVIN COE, Defendant–Appellant. *************** No. 13-60091 UNITED STATES OF AMERICA, Plaintiff–Appellee, versus JARVIS JONES, Defendant–Appellant. Case: 13-60091 Document: 00512465396 Page: 2 Date Filed..
More
Case: 13-60091 Document: 00512465396 Page: 1 Date Filed: 12/09/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
December 9, 2013
No. 13-60069
No. 13-60070 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
KEVIN COE,
Defendant–Appellant.
***************
No. 13-60091
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
JARVIS JONES,
Defendant–Appellant.
Case: 13-60091 Document: 00512465396 Page: 2 Date Filed: 12/09/2013
Appeals from the United States District Court
for the Northern District of Mississippi
No. 2:10-CR-78-7
No. 2:10-CR-78-6
Before STEWART, Chief Judge, JOLLY and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Kevin Coe and Jarvis Jones were runners in a fraudulent telemarketing
scheme. The plot operated by informing elderly individuals that they had won
prize money from a fictitious sweepstakes, but, before any money could be sent
to them, they needed to wire the taxes and other fees to members of the scheme.
Coe and Jones pleaded guilty to one count of conspiracy to commit wire fraud
in violation of 18 U.S.C. §§ 1343 and 1349. They appeal their sentences.
Because the district court did not clearly err in applying the vulnerable-
victim enhancement and in not applying the minor-participant reduction, we
affirm the sentences in part. Because, however, the court plainly erred in
imposing enhancements under U.S. SENTENCING GUIDELINES MANUAL
(“U.S.S.G.”) §§ 2B1.1(b)(2)(B) and 3A1.1(b)(2), we vacate the sentences in part
and remand for resentencing.
I.
Between January 2008 and July 2009, George Coe, Jr., David Beasley,
* 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: 13-60091 Document: 00512465396 Page: 3 Date Filed: 12/09/2013
No. 13-60069
No. 13-60070
No. 13-60091
and Patrick Beasley made a series of fraudulent telephone calls to persons
throughout the United States and told them they had won prize money from a
fictitious sweepstakes or prize event. 1 The victims were advised that they
would not be sent the winnings until the taxes or other fees had been paid. The
victims wired money to various locations where a runner 2 would pick up the
money at Western Union or MoneyGram, keep part of it, and transfer the
remainder to the person who had called the victim. The victims received no
money or other benefit. The eight co-conspirators victimized 91 individuals,
61 of whom were over the age of 55.
Additionally, George Coe, Jr., Patrick Beasley, and David Beasley would
call someone who had already been victimized by the scheme one or more
times, falsely stating that the original transfer has not been successful, to
induce the victim to send even more money. Several victims wired money to
the co-conspirators multiple times on the same day, which the runner would
then obtain.
A federal grand jury returned a thirteen-count indictment naming Kevin
Coe, Jarvis Jones, and the six others. Coe and Jones 3 were charged in one
count of conspiracy to commit wire fraud and two counts of committing wire
1Because we are familiar with the facts, having heard appeals from many of the co-
conspirators, we summarize the relevant facts for purposes of Coe’s and Jones’s appeals. See
United States v. Allen, No. 12-60302, 2013 WL 3285686, at *5–6 (5th Cir. Apr. 8, 2013) (per
curiam) (unpublished), cert. denied,
134 S. Ct. 276 (2013); United States v. Thomas, 476 F.
App’x 14, 15 (5th Cir. 2012); United States v. Beasley, 481 F. App’x 142 (5th Cir. 2012).
2The runners were Timothy Allen, Kevin Coe, Jarvis Jones, Christina Richards, and
Scott Thomas.
3Coe and Jones come to us in similar procedural postures, and each raises the same
sentencing issue (although each also raises one unique issue). We have therefore consoli-
dated their appeals for purposes of this opinion.
3
Case: 13-60091 Document: 00512465396 Page: 4 Date Filed: 12/09/2013
No. 13-60069
No. 13-60070
No. 13-60091
fraud; they entered guilty pleas to conspiracy to commit wire fraud in violation
of 18 U.S.C. §§ 1343 and 1349.
Coe’s and Jones’s presentence reports (“PSRs”) computed their base
offense levels to be 7 and increased that level by fourteen pursuant to
§ 2B1.1(b)(1)(H), holding each responsible for a $448,084 loss. Their PSRs also
recommended three adjustments: (1) a four-level enhancement pursuant to
§ 2B1.1(b)(2)(B) because the offense involved fifty or more victims; (2) a two-
level reduction pursuant to § 3B1.2(b) because the PSR determined them to be
minor participants in the conspiracy; and (3) a three-level reduction for accep-
tance of responsibility, for a net offense level of 20.
Coe received eight criminal history points, which established a criminal
history category of IV; his PSR thus listed his guideline range as 51 to 63
months’ imprisonment. Jones received five criminal history points, which
established a criminal history category of III; his PSR listed his guideline range
as 41 to 51 months.
The government filed the same three objections to both PSRs. First, it
objected to the two-level minor-participant reduction. Second, because the gov-
ernment believed Coe and Jones knew or should have known that victims of
this offense were vulnerable, it objected to the PSRs’ failure to recommend the
two-level vulnerable-victims enhancement. Finally, the government objected
to the PSRs’ failure to include two additional levels under § 3A1.1(b)(2) because
of the large number of vulnerable victims.
The district court sustained all three of the government’s objections for
both defendants. It determined a guideline range of 92 to 115 months for Coe
and 78 to 97 months for Jones. It sentenced Coe to 92 months and Jones to 88
months and imposed $204,915.06 in restitution to be paid jointly and severally
4
Case: 13-60091 Document: 00512465396 Page: 5 Date Filed: 12/09/2013
No. 13-60069
No. 13-60070
No. 13-60091
among Jones, Coe, and any other defendants convicted in this case.
The parties, however, later became aware that the court had erred in
applying the § 3A1.1(b)(2) enhancement. 4 The court therefore held another
sentencing hearing at which it (1) calculated Coe’s new guideline range to be
77 to 96 months and (2) sentenced him to 80 months; likewise, the court (1) cal-
culated Jones’s new guideline range as 63 to 78 months and (2) sentenced him
to 71 months.
Coe and Jones appealed their sentences, but because the district court
had corrected the sentences after the fourteen days allowed by Federal Rule of
Criminal Procedure 35, we determined that the district court lacked jurisdic-
tion to reconsider the sentences. 5 Because the court had not entered judgment
on the original sentences, we dismissed the appeal for lack of jurisdiction; 6 the
district court has since entered judgment on the original sentences.
On this second appeal, Coe argues that the district court erred by not
applying the minimal-participant reduction; Jones contends that the court
erred by imposing the vulnerable-victim adjustment. Both additionally main-
tain that the court erred by imposing the large-number-of-vulnerable-victims
enhancement.
II.
Pursuant to Gall v. United States, 552 U.S. 38, 49–51 (2007), this court
4Because the district court had also applied the § 2B1.1(b)(2)(B) enhancement, it could
not have applied the § 3A1.1(b)(2) enhancement in addition.
5See United States v. Coe, 482 F. App’x 957, 957–58 (5th Cir. 2012) (per curiam));
United States v. Jones, 482 F. App’x 956, 956 (5th Cir. 2012) (per curiam).
6 See Coe, 482 F. App’x at 957–58; Jones, 482 F. App’x at 956.
5
Case: 13-60091 Document: 00512465396 Page: 6 Date Filed: 12/09/2013
No. 13-60069
No. 13-60070
No. 13-60091
engages in a bifurcated review of a sentence. United States v. Delgado-
Martinez, 564 F.3d 750, 752 (5th Cir. 2009). First, we consider whether the
district court committed a “significant procedural error,” such as miscalculat-
ing the advisory guideline range.
Id. at 752–53. If the court did not commit
procedural error or the error is harmless, we may proceed to the second step
and review the substantive reasonableness of the sentence for an abuse of dis-
cretion.
Id. at 753.
“Where a defendant objects at sentencing, we review the district court’s
findings of fact for clear error and its conclusions of law de novo.” United States
v. Anderson,
559 F.3d 348, 354 (5th Cir. 2009). Factual findings are not clearly
erroneous if the district court could have plausibly made them “in light of the
record as a whole.” United States v. Alford,
142 F.3d 825, 831 (5th Cir. 1998)
(quoting United States v. Sanders,
942 F.2d 894, 897 (5th Cir. 1991)).
We review for clear error a determination that a defendant qualifies for
an offense-level adjustment for a mitigating role. United States v. Valencia, 44
F.3d 269, 272 (5th Cir. 1995). A party seeking an adjustment to the base
offense level “bears the burden of proving by a preponderance of the evidence
that the adjustment is warranted.” See United States v. Miranda,
248 F.3d
434, 446 (5th Cir. 2001). The sentencing court may “consider all relevant evi-
dence, even inadmissible evidence, in determining whether an adjustment is
warranted so long as the evidence has a ‘sufficient indicia of reliability to sup-
port its probable accuracy.’”
Id. (quoting United States v. Patterson,
962 F.2d
409, 414 (5th Cir. 1992)).
Similarly, we consider a determination of vulnerability to be a factual
finding “which the district court is in the best position to gauge [because it] had
the opportunity to observe the victim in court.” United States v. Rocha, 916
6
Case: 13-60091 Document: 00512465396 Page: 7 Date Filed: 12/09/2013
No. 13-60069
No. 13-60070
No. 13-60091
F.2d 219, 244 (5th Cir. 1990). In light of the complex factual decisions that the
district court must make, we give due deference to its “determination of the
victim’s vulnerability” and its “determination of what the defendant knew or
should have known.” See id.
Where the defendant did not object, we review only for plain error. See
United States v. Mares,
402 F.3d 511, 520 (5th Cir. 2005). To succeed, the
defendant needs to show that (1) the district court erred; (2) the error is plain;
(3) the error affects substantial rights; and (4) the error “seriously affect[ed]
the fairness, integrity, or public reputation of judicial proceedings.” See
id.
(quoting United States v. Cotton,
535 U.S. 625, 631 (2002)). Even in the context
of plain error, we consider the “error” prong de novo. United States v. Garza-
Lopez,
410 F.3d 268, 272–73 (5th Cir. 2005).
III.
Coe argues that the district court erred by not considering him to be a
“minimal participant” under § 3B1.2(b). Coe asserts that he was responsible
for a smaller monetary amount and fewer victims than was his co-conspirator,
Jarvis Jones. 7
Section 3B1.2 provides that a district court must reduce the offense level
by four if it determines that the defendant was a “minimal participant” or by
two if he was a “minor participant.” 8 A “minor participant” is an individual
“who is less culpable than most other participants, but whose role could not be
7 Jones does not present this argument on appeal.
8 The comments to § 3B1.2(b) also make clear that this adjustment applies only if
“more than one participant was involved in the offense.” Id. § 3B1.2 cmt. n.2.
7
Case: 13-60091 Document: 00512465396 Page: 8 Date Filed: 12/09/2013
No. 13-60069
No. 13-60070
No. 13-60091
described as minimal.” Id. § 3B1.2 cmt. n.5. 9 To be eligible for an adjustment
under this section, the defendant must be “substantially less culpable than the
average participant.”
Id. cmt. n.3. 10 Even if a defendant can show that he was
less culpable than other co-defendants, that fact “does not automatically qual-
ify [him] for either minor or minimal participant status.” United States v.
Atanda,
60 F.3d 196, 198 n.1 (5th Cir. 1995). To be a minor participant, he
“must be peripheral to the advancement of the criminal activity.” United
States v. Martinez-Larraga,
517 F.3d 258, 272 (5th Cir. 2008).
The sentencing court should consider “all relevant conduct . . . ‘not solely
on the basis of elements and acts cited in the count of conviction.’” United
States v. Garcia, 242 F.3d 593, 598 (5th Cir. 2001) (quoting U.S.S.G. ch. 3, pt. B,
introductory cmt. (2013)). Specifically, the court “must take into account the
broad context of the defendant’s offense.” 11 The court must “articulate the fac-
tual basis for the finding that [defendant] was an average participant.” United
States v. Melton,
930 F.2d 1096, 1099 (5th Cir. 1991). “[A] simple statement[,
however,] that the defendant was not a minor participant’ will suffice as a fac-
tual finding.” United States v. Gallegos,
868 F.2d 711, 713 (5th Cir. 1989).
The district court divided the members of the conspiracy into two cate-
gories: “the three leaders and the rest of them being what I would deem and
9 A “minimal participant” is an individual “who [is] plainly among the least culpable
of those involved in the conduct of a group.” Id. cmt. n.4.
10See also United States v. Angeles-Mendoza,
407 F.3d 742, 753 (5th Cir. 2005) (quot-
ing United States v. Garcia,
242 F.3d 593, 598 (5th Cir. 2001)).
11 United States v. Brown, 54 F.3d 234, 241 (5th Cir. 1995); see also United States v.
Melton,
930 F.2d 1096, 1099 (5th Cir. 1991) (“The commentary to § 3B1.2 provides that the
determination of a defendant’s status as a minor participant is ‘heavily dependent upon the
facts of the particular case.’ The determination of participant status is a complex fact ques-
tion, which requires the court to consider the broad context of the defendant’s crime.”).
8
Case: 13-60091 Document: 00512465396 Page: 9 Date Filed: 12/09/2013
No. 13-60069
No. 13-60070
No. 13-60091
have deemed as average.” Although the court considered Jones and Coe aver-
age participants, it agreed with Coe that he and Jones did not have identical
roles: “[I]n terms of money received and number of transactions [] Mr. Coe’s
numbers are different than [sic] Mr. Jones’[s].”
In spite of recognizing the differences between Jones’s and Coe’s involve-
ment, the court found that Coe’s was not “merely peripheral.” The court made
three findings to justify that conclusion: (1) “[Coe] had full knowledge of the
whole scheme . . . [and was] aware of the entire scheme”; (2) Coe actively par-
ticipated in the scheme; 12 and (3) every member played an important role in
the operation of this type of wire-fraud conspiracy. 13
The court did not clearly err in finding that Coe’s involvement in the
wire-fraud conspiracy was not “merely peripheral.” First, two other runners
in that conspiracy did not receive minor-role adjustments. 14 In upholding the
refusal to grant those reductions in those two cases, this court rejected argu-
ments similar to the one Coe presses. 15 Second, even though Coe can show
that Jones was more culpable than he was, that fact “does not automatically
qualify [him] for either minor or minimal participant status.” Atanda, 60 F.3d
at 198. The court did not, therefore, err in declining to impose a minor-
participant reduction.
12Coe was “very actively involved in the scheme to the extent that you participated in
19 transactions. [Coe was] involved with 13 different victims, three of which were reloaded
as many times as four times. [Coe] traveled to seven different states, and [] received $53,000.”
13“And if anything that I've come to appreciate about this scheme is how important it
was for every person to play their [sic] particular role and how all roles were essential.
Whether you were supplying the lead list, making the phone calls, or picking up the money
and reimbursing it to the leaders in this case, everybody played a very important role.”
14 See Allen, 2013 WL 3285686, at *4–5; Thomas, 476 F. App’x at 15–16.
15 See Allen, 2013 WL 3285686, at *5; Thomas, 476 F. App’x at 16.
9
Case: 13-60091 Document: 00512465396 Page: 10 Date Filed: 12/09/2013
No. 13-60069
No. 13-60070
No. 13-60091
IV.
Jones claims the district court erred in applying the two-level
vulnerable-victim adjustment under § 3A1.1. Jones reasons that because he
had limited knowledge of the conspiracy, a person in his position would not
have known the vulnerability of the victims. 16
A court must increase an offense level by two if it determines that the
defendant “knew or should have known that a victim of the offense was a vul-
nerable victim.” § 3A1.1(b)(1). A “vulnerable victim” is “a person (A) who is a
victim of the offense of conviction . . . and (B) who is unusually vulnerable due
to age, physical or mental condition, or who is otherwise particularly suscepti-
ble to the criminal conduct.” § 3A1.1 cmt. n.2. Section 3A.1.1(b) does not apply,
however, “if the factor that makes the person a vulnerable victim is incorpor-
ated in the offense guideline.” Id.
Section 3A1.1(b)(1) “is primarily concerned with the impaired capacity of
the victim to detect or prevent crime, or a victim who is less able to resist than
the typical victim of the offense.” United States v. Wilcox,
631 F.3d 740, 755
(5th Cir. 2011) (citations and internal quotation marks omitted). The victims
must have “an ‘unusual’ vulnerability” that applies to only some of the victims.
United States v. Moree,
897 F.2d 1329, 1335 (5th Cir. 1990). The determination
of vulnerability, however, cannot be reduced “to a calculation of the victim’s
age or to a diagnosis of the victim’s disease.” United States v. Mejia-Orosco,
868 F.2d 807, 809 (5th Cir. 1989).
16 Coe does not present this argument on appeal.
10
Case: 13-60091 Document: 00512465396 Page: 11 Date Filed: 12/09/2013
No. 13-60069
No. 13-60070
No. 13-60091
The district court began its discussion of the vulnerable-victim adjust-
ment by acknowledging that the government could not prove that Jones had
actual knowledge of the victims’ vulnerability. The court found instead that
an objectively reasonable person with Jones’s knowledge of the scheme should
have known that that they were vulnerable.
The court based that determination on three findings: First, it noted
that these type of telemarketing schemes are designed to prey on vulnerable
victims. 17 It found that, because of the nature of such schemes, every member
of it should have known that the victims would be vulnerable. Second, the
court found that the victim’s “names [are] indicative” of the fact that they
victims are vulnerable, because “names like Mildred and Lula Belle . . . tend
to be indicative of older persons.” Finally, the court considered “reloading 18 in
this case [to be] a huge factor.” To that end, the court found that Jones had
engaged in “reloading,” 19 and the fact that he was able to “reload” his victims
17 “[O]ne of the things that some [similar] cases . . . put these types of [telemarketing]
victims in a unique class. . . . I think it’s just interesting that to employ this scheme it’s
necessary for David Beasley, Patrick Beasley, and George Coe to obtain these lead lists.
There’s a reason that they get the lead list. They get names. They get addresses, and they
get persons that are typically called upon in telemarketing schemes. That’s the reason ven-
dors sell lead lists. So there is a reason why they work off of those lists. It’s a telemarketing
scheme. . . . [I]n absence of knowing the state of mind . . . of the runners, the Court really
has to look at it from just a common sense approach. Given all of these factors and the totality
of the circumstances, is it likely, is it probable, is it reasonable to believe that the scheme
itself involved attracting, calling, preying upon vulnerable persons? And that’s the nature of
the scheme.”
18 Ewing defined “reloading” during the sentencing hearing as follows: “When they
find victims that are extremely vulnerable, a lot of times they preyed upon them multiple
times. Some they preyed upon countless times.”
19 “[Jones] received from ten different victims reloads of numerous times, up to eight
times, from any one of those ten victims.”
11
Case: 13-60091 Document: 00512465396 Page: 12 Date Filed: 12/09/2013
No. 13-60069
No. 13-60070
No. 13-60091
should have indicated to him that they were vulnerable. 20
Jones disputes each of these bases. Regarding the nature of the tele-
marketing scheme, he argues the court erred by “imput[ing] the knowledge
obtained by the organizers, to the low level runners such as Jones.”
As for the second finding, Jones claims the court did not rely on any
“empirical evidence [that] prov[es] that a person’s name is a reliable indicator
of his or her age.” Alternatively, Jones urges that the particular names of the
victims would not, in any case, indicate they are old and therefore vulnerable. 21
Finally, Jones disputes that he “reloaded.” Pointing to Ewing’s testi-
mony, he maintains “there was no evidence that Jones . . . placed any calls or
spoke to the victims, [] compile[d] a database or list of names and [] had abso-
lutely no control over which victims were called and solicited by the organiz-
ers.” Jones avers that this “limited role in the offense does not rise to the same
factual level of involvement in the conspiracy as other Circuits have used to
apply the enhancement for reloading.” 22
Because the court did not clearly err in finding that Jones had reloaded
his victims, we do not need to address whether it erred in its first two findings
20“[J]ust take any one day, Mr. Jones, that you’re receiving two or more receipts of
money from the same person that you don’t know, that should put one on notice. . . . [O]ne
would know one’s personality, infirmity, something is leading that person to send money to
someone that they [sic] do not even know and have a legitimate reason for doing so, and I
think that is, by definition, vulnerable.”
21 Jones claims he “collected money from ten specific peple, all of whom use an array
of different names such as Camelia, Florence, Lilyan, Jewel, Hannah, Judith, Catherine,
Elizabeth, Lillian and Ozemai, none of which the District Court could have used to correctly
determine the age of that person.”
22Jones mentions United States v. Llamas, 599 F.3d 381 (4th Cir. 2010); United States
v. Day,
405 F.3d 1293 (11th Cir. 2005); United States v. Coe,
220 F.3d 573 (7th Cir. 2000);
and United States v. Jackson,
95 F.3d 500 (7th Cir. 1996).
12
Case: 13-60091 Document: 00512465396 Page: 13 Date Filed: 12/09/2013
No. 13-60069
No. 13-60070
No. 13-60091
or whether they support the vulnerable-victim adjustment. Jones repeats the
arguments made by Timothy Allen, see Allen, 2013 WL 3285686, at *5–6, in
which case we upheld the application of the vulnerable-victim adjustment, see
id. at *6. In doing so, we declined to “adopt a bright-line rule with respect to
reloading and instead . . . resolved [this issue] on the facts specific to this case.”
Id. We concluded that the district court had not erred in applying the
vulnerable-victim adjustment in light of the following findings:
Even in the absence of knowing any victims’ ages, Allen collected
money in connection with a fraudulent scheme from the same indi-
viduals on multiple occasions. Although he was not a leader of the
scheme and did not personally contact any of the victims, he was
involved in a large number of transactions, sometimes taking
money from the same victim up to three times in a short period.
Id.
Therefore, even if the other circuits Jones cites require a higher degree
of culpability than the district court attributed to Jones, this case cannot be
distinguished from Allen. Just as there, the district court did not find Jones to
be “a leader of the scheme [or that he] personally contact[ed] any of the vic-
tims.” But, just as in Allen, the court found that Jones was “involved in a large
number of transactions, sometimes taking money from the same victim”
repeatedly in a short period.
Even if we were to consider the cases from the other circuits that Jones
cites, we would not reach a different result. It is true that other circuits have
commonly used the “reloading” theory to justify applying a vulnerable-victim
13
Case: 13-60091 Document: 00512465396 Page: 14 Date Filed: 12/09/2013
No. 13-60069
No. 13-60070
No. 13-60091
adjustment to conspirators who had more directly interacted with the vic-
tims. 23 None of those decisions, 24 however, compels the conclusion that the
district court clearly erred in extending that theory to runners. Because the
defendants in those cases happened to have had more substantial roles, and
because some of those schemes did not involve runners, those courts did not
need to address whether the vulnerable-victim adjustment could be applied to
runners.
Because Jones did not speak to any victim, he may not have known the
particular cause of a victim’s vulnerability. When he returned to pick up more
money from a victim shortly after having already done so, however, he should
have recognized that that victim was vulnerable to this type of scheme; he
should have known this to be especially true when he picked up money from
the same victim eight consecutive times in short succession. The district court
did not clearly err in applying the vulnerable-victim adjustment to Jones.
23 Day, 405 F.3d at 1296 (“Donna Day had a direct role in compiling the names and
addresses of those who had previously donated to the Organizations, and adding them to the
lead sheets that were provided to the Organizations’ solicitors. Donna Day’s actions allowed,
if not directed, the conspirators to repeatedly solicit those victims.”); United States v. Ciccone,
219 F.3d 1078, 1086–87 (9th Cir. 2000);
Coe, 220 F.3d at 582;
Jackson, 95 F.3d at 504 (“Only
experienced telemarketers, including both Mark Jackson and Stephans, were allowed to
reload customers.”).
24 In Llamas, the district court did not even make a finding as to whether the defen-
dant had reloaded. See Llamas, 599 F.3d at 389 (“[T]he Government seeks to salvage the
district court’s application of the vulnerable victim adjustment by relying on other aspects of
the record-which the court did not discuss. For example, the Government maintains that, by
attempting to ‘reload’ persons who had already fallen victim to the sweepstakes scheme,
Llamas and his coconspirators preyed on individuals they knew to be ‘particularly susceptible
to the criminal conduct,’ thereby supporting application of the vulnerable victim adjustment.
The court, however, did not adopt such a theory as its rationale for finding that Llamas
should have known of the victims’ unusual vulnerabilities.”).
14
Case: 13-60091 Document: 00512465396 Page: 15 Date Filed: 12/09/2013
No. 13-60069
No. 13-60070
No. 13-60091
V.
Jones and Coe argue that the district court erred by applying enhance-
ments under §§ 2B1.1(b)(2)(B) and 3A1.1(b)(2). Neither raised that argument
during sentencing, however, so we review only for plain error. See Mares, 402
F.3d at 520. To succeed, Jones and Coe need to show that (1) the district court
erred; (2) this error is plain; (3) this error affects substantial rights; and
(4) error “seriously affect[ed] the fairness, integrity, or public reputation of
judicial proceedings.” See
id. (quoting Cotton, 535 U.S. at 631). Although the
government concedes that the court erred and asks us to remand for another
sentencing hearing on this issue, Coe and Jones must still affirmatively satisfy
all four prongs. We conduct the usual, rigorous plain-error review even where
the government confesses error. 25
The district court applied a four-level enhancement under § B1.1(b)(2)(B)
because the offense involved more than fifty people. The court also applied a
four-level enhancement under § 3A1.1(b)(2) based on the vulnerable-victim
enhancement. The sentencing guidelines, however, prohibit applying both
§§ 2B1.1(b)(2)(B) and 3A1.1(b)(2): “If subsection (b)(2)(B) or (C) applies, an
enhancement under § 3A1.1(b)(2) shall not apply.” U.S.S.G. § 2B1.1 cmt. n.4
(2013). In applying both enhancements to both sentences, the district court
committed an error that was plain, thus satisfying the first two prongs.
As for the third prong, a plain error affects substantial rights where it is
“prejudicial,” that is, “affected the outcome of the district court proceedings.”
United States v. Olano, 507 U.S. 725, 734 (1993). A defendant needs to show
“a reasonable probability that he would have received a lesser sentence,”
United States v. Hope, 545 F.3d 293, 295 (5th Cir. 2008) (“We are not bound by the
25
Government’s concession of error and give the issue independent review.”).
15
Case: 13-60091 Document: 00512465396 Page: 16 Date Filed: 12/09/2013
No. 13-60069
No. 13-60070
No. 13-60091
United States v. Mudekunye, 646 F.3d 281, 289 (5th Cir. 2011) (per curiam),
which means “(1) the district court mistakenly calculate[d] the wrong Guide-
lines range, (2) the incorrect range is significantly higher than the true Guide-
lines range, and (3) the defendant [was] sentenced within the incorrect range,”
id. at 289–90.
Coe and Jones can show a reasonable probability that they would have
received lesser sentences using the correct range. The district court initially
incorrectly determined a range of 92 to 115 months for Coe and 78 to 97 months
for Jones; the correct ranges were 77 to 96 and 63 to 78 months, respectively.
The court sentenced both within the incorrect ranges.
This case is unusual, because we know for sure what the district court
would have done, given that it attempted to re-sentence the defendants. Rec-
ognizing its error, the court (1) recalculated the appropriate ranges and (2) sen-
tenced Coe and Jones to lower sentences. Coe and Jones can therefore easily
show that the error affected their substantial rights.
Regarding the fourth prong, this case presents a situation that is seldom
presented: The defendants, the government, and the district court agree that
the court plainly erred. Furthermore, this court found plain error in assessing
the identical issue raised by Beasley. 26 We carefully note, however, that the
fourth prong is not automatically satisfied just because the other three have
been met. United States v. Escalante-Reyes, 689 F.3d 415, 425 (5th Cir. 2012)
(en banc). Relief under the fourth prong should be granted only “rarely,”
United States v. Dominguez Benitez,
542 U.S. 74, 83 n.9 (2004), and only in
26See Beasley, 481 F. App’x at 145. Beasley does not, however, discuss why this error
seriously affected the fairness, integrity, or public reputation of judicial proceedings. See id.
16
Case: 13-60091 Document: 00512465396 Page: 17 Date Filed: 12/09/2013
No. 13-60069
No. 13-60070
No. 13-60091
“exceptional circumstances,” United States v. Atkinson, 297 U.S. 157, 160
(1936).
Because the instance circumstance qualifies as rare and exceptional, the
fourth prong has been satisfied: It would seriously affect the fairness, integ-
rity, and public reputation of judicial proceedings if we did not allow the dis-
trict court to correct an error it recognized and attempted to correct but did not
have jurisdiction, where the government does not object and this court, albeit
in an unpublished opinion, already has recognized that this precise mistake
constitutes plain error for a fellow co-conspirator.
The judgments of sentence are AFFIRMED in part and VACATED in
part and REMANDED for resentencing.
17
