PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 14-3610

_____________

UNITED STATES OF AMERICA

v.

ADEKUNLE ADETAYO ADEOLU, 

a/k/a Archie

Adekunle Adetayo Adeolu,

 Appellant

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Judge: Honorable Mitchell S. Goldberg

D.C. No. 2-11-cr-00436-001

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Argued March 23, 2016

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Before: GREENAWAY, JR., VANASKIE and SHWARTZ, 

Circuit Judges

(Opinion Filed: September 12, 2016)

Karina D. Fuentes, Esq. [ARGUED]

Office of Federal Public Defender

1002 Broad Street

Newark, NJ 07102

Richard Coughlin, Esq.

Office of Federal Public Defender

800-840 Cooper Street
2

Suite 350

Camden, NJ 08102

Counsel for Appellant, Adekunle Adeolu

Jose R. Arteaga, Esq. [ARGUED]

Emily McKillip, Esq.

Zane David Memeger

Robert A. Zauzmer

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Appellee, United States of America

________________

OPINION

________________

VANASKIE, Circuit Judge.

Appellant Adekunle Adeolu was the part-owner and 

office manager of a tax preparation company that prepared 

fraudulent tax returns by encouraging taxpayers to claim false 

dependents. Adeolu was ultimately convicted of conspiracy 

to defraud the United States and of aiding and abetting the 

preparation of materially false tax returns, in violation of 18 

U.S.C. § 371 and 26 U.S.C. § 7206(2). At sentencing, the 

District Court applied the vulnerable victim sentencing 

enhancement set forth in U.S.S.G. § 3A1.1(b)(1) based upon 

Adeolu’s fraudulent use of young children’s personal 

information. On appeal, Adeolu argues that the children were 

not vulnerable victims because they did not experience 

“actual” harm. We write to clarify that a showing of actual

harm is not required under the vulnerable victim sentencing 

enhancement. Rather, our existing test for the application of 

this enhancement requires a “nexus” between the victim’s 

vulnerability and the crime’s success, a requirement clearly 
3

met in this case. We will therefore affirm the District Court’s 

application of this enhancement and the sentence it imposed.

1

 

I.

Adeolu’s tax preparation company employed 

approximately fifteen people and prepared fraudulent tax 

returns in two ways: by selling the taxpayer an individual’s 

personal information to fraudulently claim as the taxpayer’s

dependent; or, by suggesting that the taxpayer fraudulently

claim a dependent that the taxpayer personally knew.

2

 

According to the District Court, the individuals who were 

fraudulently claimed as dependents ranged in age from one to 

eighteen years old, including a thirteen-year-old, nine-yearold, six-year-old, and five-year-old child. (App. 1111.) At 

sentencing, the District Court applied the vulnerable victim 

enhancement after finding that Adeolu stole these individuals’ 

personal information in order to file fraudulent tax returns, 

 

1

In affirming the sentence, we reject Adeolu’s 

challenge to the District Court’s application of the four-level 

leadership enhancement under U.S.S.G. § 3B1.1(a) as well as 

his challenge to the substantive reasonableness of his

sentence. 

2 For example, Felicia Jones testified that she 

purchased a fraudulent dependent from a tax preparer at 

Adeolu’s office for $1,000. Another individual, Lassey 

Mensah, testified that he purchased a dependent for $800. 

Additionally, during an undercover investigation, an 

undercover agent told Adeolu that she did not have any 

dependents, but Adeolu nonetheless suggested that if she 

could claim a minor as a dependent, it would eliminate her 

tax burden. When the undercover agent later provided a 

minor’s information to be falsely listed as a dependent, 

Adeolu prepared the tax return, which generated a tax refund 

for the undercover agent. During a separate investigation, 

another undercover agent told an employee that she did not 

have any dependents, so the employee suggested that she find 

one. When the agent returned several hours later, the agent 

said she was claiming her friend’s child as a dependent, and 

an employee prepared her tax return listing this minor as her 

nephew. 
4

that these individuals’ youth gave rise to their vulnerability, 

and that they experienced tangible and intangible harm. 

II.

Our review of the District Court’s legal interpretation 

of the Sentencing Guidelines is plenary. United States v. 

Zats, 298 F.3d 182, 185 (3d Cir. 2002). We review the 

District Court’s application of the Sentencing Guidelines for 

clear error. Id. 

III.

On appeal, Adeolu argues that the vulnerable victim

enhancement should not apply because the “minors did not 

suffer actual harm, such as loss of tax refund proceeds, a fine, 

or a negative mark on their credit score.”3 (Appellant Br. at 

36.) Our Court, however, has never held that the vulnerable 

 

3 Adeolu also argues that the minors cannot be 

considered vulnerable merely by virtue of their age. See

Appellant’s Br. at 33. While “presumed vulnerabilities 

among broad classes of victims . . . are disfavored,” they are 

not prohibited, Zats, 298 F.3d at 188, and may be appropriate 

based on the facts of a particular case. The District Court’s 

treatment of minors as a group is supported by the fact that 

minors as a class generally do not file their own tax returns 

(unless they are working), and are unlikely to check their tax 

status or monitor for identity theft. See United States v. 

Crispo, 306 F.3d 71, 83 (2d Cir. 2002) (concluding “class 

attributes can be sufficient if they make the finding of 

vulnerability beyond dispute” and thus generalizations were 

permitted with respect to a toddler’s ability to fend off a 

kidnapper). Moreover, even if we concluded an 

individualized determination as to each individual’s 

vulnerability is preferred, the enhancement may be applied 

when there is a single vulnerable victim, and, as discussed 

herein, there was sufficient evidence from which the District 

Court could have concluded that a one-year-old child claimed 

as a dependent was “vulnerable” within the meaning of the 

enhancement. We thus conclude that there was no error in 

the District Court’s finding of vulnerability across the group 

of affected minors in this case.
5

victim enhancement requires a showing of actual harm, 

whether financial or otherwise.4 Rather, our three-part test

under United States v. Iannone, 184 F.3d 214, 220 (3d Cir. 

1999), properly analyzes the “nexus” between a victim’s 

vulnerability and the success of the defendant’s criminal 

scheme, thereby encompassing any resulting harm to the 

victim and rendering an analysis of “actual” harm

inconsequential.

A.

The vulnerable victim enhancement states: “If 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).

5

 Unlike other enhancements, the 

vulnerable victim enhancement does not explicitly require a 

showing of harm. Cf. U.S.S.G. § 2B1.1 cmt. n.3(A) 

(discussing actual loss and intended loss). The application 

note to section 3A1.1(b)(1) explains that a “vulnerable 

victim” is someone who is: (1) “a victim of the offense of 

conviction and any conduct for which the defendant is 

accountable under 1.3 (Relevant Conduct)”; and (2) 

“unusually vulnerable due to age, physical or mental 

condition, or who is otherwise particularly susceptible to the 

criminal conduct.” U.S.S.G. § 3A1.1 cmt. n.2. In light of 

these requirements, this Court applies a three-part test to 

determine the applicability of the vulnerable victim 

enhancement, addressing whether: 

 

4

In this regard, our position is similar to the Second 

Circuit’s position on the vulnerable victim enhancement. See

United States v. Kimber, 777 F.3d 553, 564 (2d Cir.), cert. 

denied, 136 S. Ct. 170 (2015) (“We have never held that 

actual infliction of harm is a prerequisite to the application of 

a vulnerable victim adjustment.”).

5 We have used the November 2010 version of this 

guideline, because this version was in effect at the time of 

Adeolu’s conviction in 2014. Although some of our cases 

analyze an earlier version of this guideline, any difference is 

inconsequential and does not alter our analysis. See Iannone, 

184 F.3d at 220 n.5 (noting that the guideline’s 1998 

amendment “does not affect our analysis”).
6

(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 victim’s 

vulnerability and the crime’s 

ultimate success.”

Zats, 298 F.3d at 186 (quoting Iannone, 184 F.3d at 220). 

The enhancement does not define the word “victim,”

but a victim is commonly understood to be someone who is 

“taken advantage of.” Victim, Webster’s Third New 

International Dictionary (1993). This definition is consistent 

with our prior interpretation of the vulnerable victim

enhancement. In United States v. Monostra, we held that “the 

use of the words ‘susceptible’ and ‘vulnerable’ in § 3A1.1 

indicates that the enhancement is to be applied when the 

defendant has taken advantage of the victim’s weakness.” 

125 F.3d 183, 190 (3d Cir. 1997). To determine whether a 

defendant has taken advantage of a vulnerable victim, we 

examine whether “there was ‘a nexus between the victim’s 

vulnerability and the crime’s ultimate success.’” Iannone, 

184 F.3d at 220 (quoting Monostra, 125 F.3d at 190). By 

requiring a “nexus” between the victim’s vulnerability and 

the defendant’s scheme, we assess whether a victim has been 

“taken advantage of” in a manner that facilitates the 

defendant’s scheme. As such, an analysis of “actual” harm is

inconsequential. Any issue regarding the victim’s harm is 

already encompassed within our analysis of the nexus 

between a victim’s vulnerability and the crime’s success. 

Indeed, “the purpose of § 3A1.1, as we see it, is simply 

to acknowledge that, while most crimes are committed for 

other motives, in many instances defendants know or should 

know of their victim’s particular vulnerability and are 

therefore more blameworthy for knowingly or even 
7

negligently harming them.” United States v. Cruz, 106 F.3d 

1134, 1139 (3d Cir. 1997). But a defendant is not more or 

less blameworthy for the purposes of this enhancement based 

on the amount of harm that a victim experiences. Applying 

the enhancement in such a manner would create a disparity in

the punishments for defendants who are more successful (and 

cause more harm) and those who are less successful, despite 

displaying similar depravity. As the Second Circuit has 

explained, the interest in punishing a defendant’s depravity 

“is present regardless of whether a defendant who targets a 

vulnerable victim is ultimately successful; the ‘choice of 

victim demonstrates an extra measure of criminal depravity’ 

in either case.” Kimber, 777 F.3d at 564 (quoting United 

States v. Hershkowitz, 968 F.2d 1503, 1505 (2d Cir. 1992)). 

A contrary result would fail to punish a defendant’s 

reprehensible conduct and fail to protect vulnerable members 

of society by deterring future criminal conduct. See Zats, 298 

F.3d at 188 (“Our objective is to provide extra deterrence for 

defendants who are especially likely to succeed in their 

criminal activities because of the vulnerability of their 

prey.”); Kimber, 777 F.3d at 564 (“The adjustment ‘reflect[s] 

the public interest in more severely punishing those whose 

choice of victim demonstrates an extra measure of criminal 

depravity.’” (alteration in original) (quoting Hershkowitz, 968 

F.2d at 1505)); United States v. Dupre, 462 F.3d 131, 144 (2d 

Cir. 2006) (“[A] sentencing judge should ‘focus not on the 

likelihood or extent of harm to the individual if the crime is 

successful, but on the extent of the individual’s ability to 

protect himself from the crime.’” (quoting United States v. 

O’Neil, 118 F.3d 65, 75 (2d Cir. 1997))). 

In light of these policy considerations and our existing 

test requiring a “nexus” between the victim’s vulnerability 

and the defendant’s scheme, there is no need to require a

separate showing of “actual” harm.

6

 See, e.g., United States 

 

6 The application notes for the vulnerable victim 

enhancement also support our holding that a separate showing 

of actual harm is not required. The application notes explain

that “[t]he adjustment would apply, for example, in a fraud 

case in which the defendant marketed an ineffective cancer 

cure or in a robbery in which the defendant selected a 

handicapped victim.” U.S.S.G. § 3A1.1 cmt. n.2. Although 
8

v. Kennedy, 554 F.3d 415, 419, 423-25 (3d Cir. 2009)

(finding that reimbursed accountholders were not “victims” 

under the fraud enhancement because they suffered no 

financial loss, but affirming the application of the “vulnerable 

victim” enhancement without an explicit analysis of whether 

the accountholders experienced harm). Therefore, we will 

continue to apply Iannone’s three-part test to determine the 

applicability of this enhancement. 

B.

We now turn to our review of the District Court’s 

application of the vulnerable victim enhancement, which we 

review for clear error. Kennedy, 554 F.3d at 418. First, we 

agree that the victims here were “particularly susceptible or 

vulnerable to the criminal conduct.” Zats, 298 F.3d at 187 

(quoting Iannone, 184 F.3d at 220). “Victims can be 

vulnerable for the reasons listed in the application note—age, 

physical or mental condition—or simply because one is 

‘otherwise particularly susceptible to the criminal conduct.’” 

Id. at 187-88 (quoting U.S.S.G. § 3A1.1 cmt. n.2). To make 

this determination, we examine “the individual victims’ 

ability to avoid the crime rather than their vulnerability 

relative to other potential victims of the same crime.” Id. at 

188 (quoting United States v. McCall, 174 F.3d 47, 51 (2d 

Cir. 1998)). Here, the individuals’ youth gave rise to their 

vulnerability and their inability to protect against Adeolu’s 

 

this note highlights the difference between a vulnerable 

victim and the general population, the fraud example 

illustrates that focusing on whether a victim experienced 

harm would be misplaced. There, the enhancement applied 

because the defendant “marketed an ineffective cancer cure” 

without regard for whether the victim suffered financial loss, 

physical harm, or even potential harm stemming from the 

defendant’s conduct. This supports our understanding that 

courts should focus on the defendant’s exploitative conduct 

rather than the result of that conduct in determining the 

applicability of this enhancement. See Iannone, 184 F.3d at

220 (“[T]he note suggests that this enhancement is designed 

to apply where a defendant knowingly or recklessly exploits a 

victim’s vulnerability in order to facilitate his commission of 

the crime.”).
9

fraudulent scheme. Indeed, our society routinely recognizes 

the need to protect minors’ personal information by requiring 

redactions of their names, birthdays, and Social Security 

numbers. Given a child’s inability to guard against theft of 

personal information, we find that the first element of this test 

is satisfied. 

Second, we also agree that Adeolu knew or should 

have known of the victims’ vulnerability. Because their ages 

were integral to qualifying as dependents, Adeolu knew or 

should have known that at least one of the children who was 

fraudulently claimed as a dependent was vulnerable due to 

age and inability to protect against his conduct. See id. at 190 

(“[T]he Government need not prove that every, or even most, 

of Zats’ victims were vulnerable or that he knew or should 

have known of the vulnerabilities in every case. The 

language of the guideline requires only that ‘a victim of the 

offense was a vulnerable victim.’” (citation omitted) (quoting 

U.S.S.G. § 3A1.1(b)(1))).

Third and finally, we find that there was a “nexus” 

between the victims’ vulnerability and the success of 

Adeolu’s fraudulent scheme. Although the Sentencing 

Guidelines do not require that the defendant “target” the 

victim, “the enhancement may not be applied absent a 

showing that the victim’s vulnerability or susceptibility 

facilitated the defendant’s crime in some manner.” Monostra, 

125 F.3d at 190. Here, Adeolu profited from the sale of his 

victims’ personal information and falsely listed them as 

dependents because of their youth, showing that Adeolu took 

advantage of the minors’ vulnerability in a manner that 

facilitated his criminal scheme. See id. at 191 (“The 

enhancement is applied not because the victim draws 

sympathy from us because of the infirmity, and we simply 

wish to express extra odium for the act. It is also because the 

infirmity rendered the victim susceptible to the crime 

committed upon him.”). Therefore, we will affirm the 

application of the vulnerable victim enhancement.7

 

7 We will also affirm the District Court’s application 

of the four-level leadership enhancement, which is applied 

“[i]f the defendant was an organizer or leader of a criminal 

activity that involved five or more participants or was 
10

IV.

For the foregoing reasons, we will affirm the District 

Court’s application of the vulnerable victim and leadership 

enhancements and Adeolu’s overall sentence.

 

otherwise extensive.” U.S.S.G. § 3B1.1(a). We agree that 

testimony from an employee, Olugboyega “Remi” Fisher, 

credibly establishes that Adeolu was the organizer of 

fraudulent activity involving at least five participants. Lastly, 

we will affirm the substantive reasonableness of Adeolu’s 56-

month sentence. See Kennedy, 554 F.3d at 418 (reviewing 

the reasonableness of the defendant’s overall sentence for 

abuse of discretion). The District Court indeed considered 

mitigating factors in determining Adeolu’s sentence, such as 

his lack of criminal history, his familial and community 

support, and his intelligence. Thus, we will affirm the 

entirety of Adeolu’s sentence.