* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be

published and is not precedent except underthe limited circumstancesset forth inLocalRule

47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-40682

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TIMOTHY ARNOLD TALLENT,

Defendant-Appellant.

Appeal from the United States District Court

For the Eastern District of Texas

(6:95-CR-16-1)

March 5, 1996

Before POLITZ, Chief Judge, JOLLY and DeMOSS, Circuit Judges.

PER CURIAM:*

Timothy Arnold Tallent appeals hissentence for mail fraud. Finding that the district

court erred by adjusting the offense level upwards based solely upon the victims’ ages, we

vacate and remand for resentencing.

Background

Tallent pled guilty to mail fraud, a violation of 18 U.S.C. § 1341. This mail fraud was

part of a scheme in which Tallent induced Floyd and BettyBoston, an elderly couple, to cash
 

1This section provides for a two-level upward adjustment “[i]f the defendant knew or

should have known that a victimofthe offense was unusually vulnerable due to age, physical

or mental condition, or that a victim was otherwise particularly susceptible to the criminal

conduct.”

 

2United States v. Leonard, 61 F.3d 1181 (5th Cir. 1995).

 

3United States v. Mejia-Orosco, 868 F.2d 807, 809 (5th Cir.) (on denial of rehearing),

cert. denied, 492 U.S. 924 (1989). We do not mean to say that some salient quality other

than age is required to show vulnerability. The elderly may be “unusually vulnerable or

particularly susceptible” to certain fraudulent schemes. Leonard, 61 F.3d at 1188. Such

vulnerability, however, cannot merely be assumed from the victim’s age, but must be

demonstrated factually and proven to be a trait of which the defendant knew or should have

known to justify an upward adjustment under this section.

2

in their life insurance policy and invest the proceeds in an entity called T.A. United Trust.

Notsurprisingly,Tallent neglected to informtheBostonsthat he wasthe primary beneficiary

of this trust. Also not surprisingly, the Bostons enjoyed no return on their investment.

The presentence report recommended a two-level upward adjustment under U.S.S.G.

§ 3A1.1,1based solely upon the fact that 11 out of the 12 victims of Tallent’s scheme were

60 years of age or older, eight being in their 80s. The PSR also concluded that whether the

defendant had targeted these victims intentionally was irrelevant because the factual basis

for enhancement had been satisfied “once the defendant knew the victims’ ages and

proceeded to induce them to invest in a fictitioustrust.” The district court agreed, overruled

Tallent’s objection to the PSR, and imposed a sentence of 24 monthsimprisonment. Tallent

appeals.

Analysis

The burden rests upon the government to prove a factual basis for section 3A1.1

enhancement, with the district court’sfactualfindings being reviewable for clear error.2 We

previously have noted that “vulnerability is a complex fact dependent on a number of

characteristics;” as such, it “is not reducible to a calculation of the victim’s age.”3 The
3

district court made no express findings regarding the vulnerability of the victims and

Tallent’s awareness thereof, the fulcrum for adjustment under section 3A1.1. Given the

insufficiency of the requisite factual findings, the increase must be vacated. We express no

opinion about the propriety of an adjustment, leaving that entirely to the trial court.

VACATED and REMANDED for resentencing.