UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4570

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ANTONIO MASON,

Defendant - Appellant.

Appeal from the United States District Court for the District of

Maryland, at Baltimore. Catherine C. Blake, District Judge.

(1:02-cr-00537-CCB)

Submitted: March 7, 2007 Decided: July 2, 2007

Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James Wyda, Federal Public Defender, Michael T. Citaramanis,

Assistant Federal Public Defender, Sherri L. Keene, Staff Attorney,

Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United

States Attorney, Stephanie A. Gallagher, Assistant United States

Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
- 2 -

PER CURIAM:

Antonio Mason appeals from the 176-month sentence imposed

after resentencing in light of United States v. Booker, 543 U.S.

220 (2005), for carjacking, in violation of 18 U.S.C. § 2119(1)

(2000), brandishing a firearm during and in relation to a crime of

violence, in violation of 18 U.S.C.A. § 924(c)(1)(A)(ii) (West 2000

& Supp. 2006), and possession of a firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1) (2000). At Mason’s original

sentencing, the district court applied a two-level increase for a

“vulnerable victim” under U.S. Sentencing Guidelines Manual § 3A1.1

(2002). Mason challenged the vulnerable victim enhancement on his

first appeal, but we declined to address the issue because we

remanded for resentencing in light of Booker. United States v.

Mason, 2005 WL 1637880, *3 (4th Cir. July 13, 2005) (No. 03-4962).

Mason was resentenced on May 23, 2006. At resentencing, the

district court again considered whether the vulnerable victim

enhancement was appropriate and applied the enhancement. Mason was

again sentenced to ninety-two months on counts one and three and

eighty-four months on count two, to be run consecutively, for a

total of 176 months of imprisonment.

Mason argues that the district court erred in applying

the vulnerable victim enhancement because his victim, James Pugh,

was not particularly susceptible to being carjacked due to his age

and there was insufficient evidence to find by a preponderance of
*In 1995, the Sentencing Commission amended § 3A1.1(b), making

it “unnecessary for a sentencing court to find that a defendant had

specifically targeted his victim.” United States v. Bolden, 325

F.3d 471, 501 n.35 (4th Cir. 2003).

- 3 -

the evidence that Pugh’s age and condition facilitated the

carjacking.* 

Under the current Guidelines, the two-level adjustment is

appropriate if the victim is (1) vulnerable, and (2) the defendant

“knew or should have known” of the victim’s vulnerability. USSG

§ 3A1.1. The enhancement is appropriate if a victim of the offense

was “unusually vulnerable due to age, physical or mental condition,

or who is otherwise particularly susceptible to the criminal

conduct.” USSG § 3A1.1, cmt. n.2.

With respect to a district court’s application of the

Sentencing Guidelines, this court reviews factual determinations

for clear error, and legal questions de novo. United States v.

Blake, 81 F.3d 498, 503 (4th Cir. 1996). Mason contends that the

district court did not make a fact intensive inquiry as to whether

Pugh was particularly susceptible to armed carjacking, more than

any other victim. In applying the enhancement, the district court

noted that Pugh was both elderly and infirm. The court determined

that Mason had sufficient time to observe that Pugh was elderly and

that his car had disabled license plates while Mason pretended to

ask Pugh for directions. The court specifically held that:

this particular victim was a vulnerable one, given the

handicapped plate again and given his age and in fact the
- 4 -

physical condition made him more susceptible to an armed

carjacking. Certainly an armed carjacking could be

difficult for anyone to resist. But I think it is more

difficult when your physical condition and age makes it

a little harder to resist what is happening to you and

perhaps a bit more likely to be harmed.

(J.A. 224-25). We therefore conclude that the district court’s

factual findings and reasoning were sufficient to support the

application of the enhancement and affirm Mason’s sentence.

 We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process. 

AFFIRMED