United States v. Etoty, No. 10-4999

Decided: May 16. 2012

Paulette Etoty appealed the sentence imposed for her convictions of Social Security fraud and aggravated identity theft,  specifically challenging the district court’s application of the “vulnerable victim” enhancement under § 3A1.1(b) of the Sentencing Guidelines.  Etoty pled guilty in 1995 in Florida to twelve counts of Social Security fraud.  At the trial, the birth certificate and Social Security number of one of her victims, Paulette Taylor, was introduced.  Ms. Taylor was a disabled adult receiving Social Security benefits and living with her mother in Illinois.  While Etoty was incarcerated for her Florida convictions, she applied for a social security card in Ms. Taylor’s name, which she used to commit additional frauds, including using Ms. Taylor’s credit to take out substantial loans.  For these additional crimes, Etoty was charged November 2009 with Social Security fraud and aggravated identity theft.

At her sentencing hearing, Etoty disputed the Pre-Sentence Report’s recommendation that she receive an enhancement because Ms. Taylor was a vulnerable victim because she did not specifically target Ms. Taylor because of her disability.  The district court overruled her objection and sentenced her to 21 months for social security fraud followed by a mandatory 24 months for the aggravated identity theft conviction.

The Fourth Circuit reviews the district court’s sentencing determinations with deference, considering only whether the court abused its broad discretion.  A district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.  An increase in sentencing attaches if the defendant knew or should have known that a victim of the offense was a vulnerable victim.  This requires two inquiries: a determination whether the victim was unusually vulnerable, and whether the defendant knew or should have known of such unusual vulnerability.  The Court of Appeals determined that Ms. Taylor clearly met the standard for vulnerability set forth by the guidelines, requiring the victim to be unusually vulnerable due to age, physical or mental condition or particularly susceptible to the criminal conduct.  The fact that Ms. Taylor was not working made it less likely that a crime would not be discovered, one of the key reasons why a sentencing enhancement is necessary for defendants who prey on vulnerable victims.  Etoty did not seriously dispute her knowledge that Ms. Taylor was disabled following the 2005 sentencing.  Her argument relied on the fact that she did not know the precise nature of Ms. Taylor’s disability, and thus her vulnerability, therefore the enhancement should not apply.  The Court of Appeals determined that Etoty’s conceded knowledge that Ms. Taylor was disabled and receiving disability payments was ample proof of knowledge that her victim was vulnerable.  Prior to 1995, the guidelines required an additional inquiry into whether the victim was targeted by the defendant because of the victim’s unusual vulnerability, however this requirement is no longer the law.

The Court of Appeals thus found no error in the sentencing and upheld the district court’s determination that the “vulnerable victim” enhancement should apply.  Judge Davis concurred in the judgment, noting that the majority correctly identified the standard of review and appropriately concluded that the district court did not commit clear error in its findings.

Full Opinion

-Nora Bennani

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