1 17

‐ 2339

United States v. Burke (Barneys)



### UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT



## SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A

SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY

F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.

W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST

CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION

“ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON

ANY PARTY NOT REPRESENTED BY COUNSEL

.

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley

Square, in the City of New York, on the 25 th day of February, two thousand

nineteen.

PRESENT: AMALYA L. KEARSE,

DENNIS JACOBS,

PETER W. HALL,

Circuit Judges.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ X

UNITED STATES OF AMERICA,

Appellee,

v. 17

‐ 2339

TIMOTHY W. BURKE, AKA BILL

BURKE, AKA WILLIAM BURKE, AKA

KERRY SAUNDERS, AKA PAT RILEY,2 AKA JIM CALDWELL, AKA JIM

SAUNDERS, AKA TOM MORRISEY,

AKA JIMMY, AKA PHIL BURKE, AKA

PHIL, AKA BURT, AKA JAMES BURKE,

AKA M. SOLER,

Defendant,

BRADFORD BARNEYS

, Defendant

‐ Appellant.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ X

FOR APPELLEE: David T. Huang, Assistant United

States Attorney (Marc H. Silverman,

Assistant United States Attorney, of

counsel), for John H. Durham,

United States Attorney for the

District of Connecticut, New Haven,

CT.

FOR APPELLANT: Jeremiah Donovan, Old Saybrook,

CT.

Appeal from an order of the United States District Court for the District of

Connecticut (Shea, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED

.

On July 17, 2017, Bradford Barneys was convicted, following his plea of

guilty in the United States District Court for the District of Connecticut (Shea, J.),

on one count of conspiracy to commit mail and wire fraud in violation of 18

U.S.C. § 1349, and was sentenced principally to 30 months’ imprisonment. On3 appeal, Barneys argues that the 30

‐ month sentence should be vacated for

procedural error. We assume the parties’ familiarity with the underlying facts,

the procedural history, and the issues presented for review.

Barneys, who was licensed to practice law in Connecticut, conspired with

Timothy Burke to defraud homeowners in various stages of foreclosure.

Barneys participated in meetings at his law offices at which Burke falsely

represented to homeowners that he would purchase their properties and assume

the attendant mortgages and financial obligations. The homeowners were then

presented with (variously) quitclaim deeds, management agreements,

indemnification agreements, and third

‐ party authorizations that conveyed their

properties to Burke. Burke, who had no intention of assuming or paying the

homeowners’ outstanding financial obligations and never recorded himself as the

new owner of the properties, rented the properties to tenants for his own

enrichment. The properties were eventually lost in foreclosure with the

homeowners still responsible for such charges as taxes and condominium

association fees. Barneys knew that Burke’s representations were materially

false, but continued to participate in meetings and represent to homeowners that

the transactions were legitimate.

In the written plea agreement, the parties disagreed as to whether a

two

‐ level enhancement was appropriate under United States Sentencing

Guidelines (“Guidelines”) § 3A1.1(b)(1), which applies when the defendant knew

or should have known that the offense was committed against a “vulnerable

victim.” With the two

‐ level enhancement, Barneys had a total offense level of 17,

and criminal history category I, corresponding to a sentencing range of 24 to 30

months’ imprisonment. Barneys argued for a total offense level of 15, resulting

in a sentencing range of 18 to 24 months. At sentencing, the district court ruled

that a two

‐ level enhancement was appropriate based on its finding that “J.J.S. III”

was a vulnerable victim, and sentenced Barneys principally to 30 months’

imprisonment.

On appeal, Barneys argues that the § 3A1.1(b)(1) enhancement was

procedural error. “A district court commits procedural error where it fails to

calculate (or improperly calculates) the Sentencing Guidelines range, treats the4 Sentencing Guidelines as mandatory, fails to consider the [18 U.S.C.] § 3553(a)

factors, selects a sentence based on clearly erroneous facts, or fails adequately to

explain the chosen sentence.” United States v. Robinson, 702 F.3d 22, 38 (2d Cir.

2012) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). Our review for

procedural reasonableness is akin to a “‘deferential abuse

‐ of

‐ discretion

standard.’” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (in banc)

(quoting Gall, 552 U.S. at 41).

The Guidelines define “vulnerable victim” as “a person (A) who is a victim

of the offense of conviction

. . . ; and (B) who is unusually vulnerable due to age,

physical or mental condition, or who is otherwise particularly susceptible to the

criminal conduct.” U.S. Sentencing Guidelines Manual § 3A1.1(b) cmt. n.2 (U.S.

Sentencing Comm’n 2018). “We review the court’s factual finding that a victim

was particularly susceptible for clear error.” United States v. Patasnik, 89 F.3d

63, 72 (2d Cir. 1996) (internal quotation marks omitted).

Barneys, citing glosses on the meaning of “vulnerable victim” drawn from

our decisions, argues that the facts of this case do not show that J.J.S. III was

unable to avoid the crime, less likely to thwart the crime than the average person,

or in need of greater societal protection. Barneys concedes that J.J.S. III was

“undoubtedly susceptible” to the conspiracy because of his choice to purchase a

new condominium before selling his existing one, but argues that J.J.S. III was

nonetheless able to protect himself from the crime, and therefore was not

particularly susceptible under § 3A1.1(b)(1).

We see no clear error. Relying on J.J.S. III’s victim impact statement, the

court found, inter alia, that: (1) Burke selected the victim because his

condominium was in foreclosure; (2) the victim’s mortgage was underwater and

efforts to arrange a short sale were unsuccessful; (3) the victim’s resulting

financial distress induced him to respond to Burke’s solicitation; and (4) the

victim was anxious enough about his financial troubles to place numerous calls to

Barneys (all unanswered) attempting to confirm that the transaction would be

completed within the promised time. (Barneys falsely assured him that the

transaction would be completed in 60 to 90 days.) Accordingly, the court found

that J.J.S. III’s “financial desperation” caused a “substantial inability to avoid the5 crime,” which “became apparent [to Barneys] at a time when Mr. Barneys could

have still done something about the crime.” App. 84.

The district court’s determination is squarely aligned with Patasnik, in

which we affirmed a vulnerable victim enhancement where financial desperation

of victims who were facing foreclosure “made them particularly susceptible to

[the defendants’] carefully crafted promises.” 89 F.3d at 72 (noting that “[f]alse

financial hope is promoted more easily to persons whose defenses have been

lowered by anxiety and the prospect of ruin”). Similarly, the enhancement was

affirmed in United States v. Borst, on the grounds that victims’ “precarious

financial situation alone may serve as the sole basis of a § 3A1.1 enhancement,”

and “[s]uch an enhancement is particularly appropriate when, as in this case, the

success of the defendant’s criminal scheme depended on the victim’s financial

desperation.” 62 F.3d 43, 47 (2d Cir. 1995). “The enhancement, in short, is to be

applied where an extra measure of deterrence and punishment is necessary

because the defendant knew of a victim’s substantial inability to avoid the crime.”

United States v. McCall, 174 F.3d 47, 51 (2d Cir. 1998).

We have considered Barneys’s remaining arguments and conclude they are

without merit. The judgment of the district court is therefore AFFIRMED

.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, CLERK