United States v. Creech, 913 F.2d 780 (10th Cir. 1990). See United States v. Boult, 905 F.2d 1137, 1139 n. 3 (8th Cir. 1990); United States v. Moree, 897 F.2d 1329, 1335-36 (5th Cir. 1990); United States v. Salyer, 893 F.2d 113, 116-17 (6th Cir. 1989). For example, this Court held in Boult that an enhancement for victim vulnerability was proper where the defendant chose his victim "because he would be an easy target" to defraud.
We review vulnerable victim determinations for clear error. United States v. Boult, 905 F.2d 1137, 1138-39 (8th Cir. 1990). Anderson's Presentence Report (PSR) recommended that both enhancements be imposed.
Although the focus of the vulnerable-victim enhancement must be on the particular traits of the victim, "information about a defendant may be relevant in assessing a victim's vulnerability." United States v. Tissnolthtos, 115 F.3d 759, 761-62 (10th Cir. 1997); see also United States v. Coates, 996 F.2d 939, 942 (8th Cir. 1993); United States v. Boult, 905 F.2d 1137, 1139 (8th Cir. 1990). Thus, a court may consider the totality of the circumstances in determining whether the victim was particularly susceptible to criminal conduct.
We review for clear error the district court's finding that there was a vulnerable victim in the present case. United States v. Cron, 71 F.3d 312, 314 (8th Cir. 1995); United States v. Boult, 905 F.2d 1137, 1138-39 (8th Cir. 1990) (existence of a vulnerable victim is a factual determination reviewable under the clearly erroneous standard). In the present case, we are not dealing with one of the types of victim vulnerability expressly enumerated in Section(s) 3A1.1 (i.e., age, physical or mental condition).
This is a factual determination subject to the clearly erroneous standard of review. United States v. Boult, 905 F.2d 1137, 1139 (8th Cir. 1990). The district court did not improperly double count the victim's age because it relied on a number of factors related to the victim's mental disabilities or susceptibility to criminal conduct.
Having determined that the district court did not penalize Coates twice based upon the age of his victim, we now turn to Coates's argument that the district court erroneously awarded him a two-level enhancement based upon the vulnerability of his victim pursuant to section 3A1.1. A sentencing court's finding that there was a vulnerable victim "is a factual determination reviewable under the clearly erroneous standard." United States v. Boult, 905 F.2d 1137, 1139 (8th Cir. 1990); United States v. Callaway, 943 F.2d 29, 31 (8th Cir. 1991). We have held that "[s]ection 3A1.1 is properly applied in cases . . . where the defendant chose the particular victim for his age, his mental condition, [or] his physical stature compared to that of the defendant."
A vulnerable victim finding is a factual determination reviewed under the clearly erroneous standard. United States v. Boult, 905 F.2d 1137, 1139 (8th Cir. 1990). Section 3A1.1 states:
Melvin Seligsohn contends that the district court erred in granting a two-level enhancement under section 3A1.1 on the basis that he "knew or should have known that a victim of the offense was unusually vulnerable due to age, physical or mental condition, or that a victim was otherwise particularly susceptible to the criminal conduct." See United States v. Boult, 905 F.2d 1137, 1139 (8th Cir. 1990). Whether a victim is particularly vulnerable to certain types of criminal conduct is inherently a factual determination subject to a clearly erroneous standard of review.
A number of fraud cases, some involving factual patterns comparable to that in the present case, have approved vulnerable-victim enhancements without insisting on evidence — besides the victim's own conduct — of a definite mental deficiency or psychiatric illness. United States v. Caterino, 957 F.2d 681, 683-84 (9th Cir. 1992); United States v. Pavao, 948 F.2d 74, 78-79 (1st Cir. 1991); United States v. Astorri, 923 F.2d 1052, 1055 (3d Cir. 1991); United States v. Boult, 905 F.2d 1137, 1139 (8th Cir. 1990); United States v. Altman, 901 F.2d 1161, 1165 (2d Cir. 1990). The upward departure for threats was clearly proper, though Newman argues not. As for departing for both bodily and psychological harm (and raising Newman's offense two levels for each), rather than merging the forms of harm into a single departure for purposes of assessing the appropriate increase in the offense level, such a merger would, we may assume, be required if the bodily harm were incidental to the psychological — for physical illness is a frequent by-product of psychological injury — or vice versa, for physical injury frequently gives rise to psychological illness.
We review a sentencing court's finding that there was a vulnerable victim for clear error. United States v. Boult, 905 F.2d 1137, 1139 (8th Cir. 1990). Section 3A1.1 of the Guidelines provides for an enhancement if the defendant knew or should have known that the victim of the offense was unusually vulnerable due to age, or physical or mental condition.