FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DEC 2, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-13140

Non-Argument Calendar

________________________

D. C. Docket No. 06-60317-CR-WPD

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ISHMAEL GRANT,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(December 2, 2008)

Before BIRCH, CARNES and WILSON, Circuit Judges.

PER CURIAM:

Ishmael Grant appeals his convictions and 120-month sentence for (1)
conspiracy to commit aggravated identity fraud, mail fraud, and wire fraud, in

violation of 18 U.S.C. §§ 371 and 3237; (2) three counts of mail fraud, in violation

of 18 U.S.C. § 1341; and (3) three counts of wire fraud, in violation of 18 U.S.C.

§ 1343. Grant makes four arguments. First, Grant contends that the evidence

presented at trial was insufficient to support his convictions. Second, Grant

challenges the district court’s application of three specific offense characteristic

enhancements. Third, Grant argues that the district court incorrectly applied a

managerial-role enhancement. Finally, Grant contends that the district court erred

in applying a vulnerable-victim enhancement. For the reasons that follow, we are

not persuaded by Grant’s sufficiency of the evidence argument, nor do we find

merit in Grant’s challenge of the district court’s application of the three specific

offense characteristic enhancements or the managerial-role enhancement.

However, we conclude that the district court’s application of the vulnerable-victim

enhancement merits closer attention. Accordingly, we AFFIRM Grant’s

convictions, VACATE Grant’s sentence, and REMAND for resentencing.

I. BACKGROUND

A. The Conspiracy

Grant, along with ten codefendants, was indicted by a federal grand jury on

the following charges: (1) conspiracy to commit aggravated identity fraud, mail

2
fraud, and wire fraud; (2) three counts of mail fraud; and (3) three counts of wire

fraud. (R1-18 at 2-48). A joint state and federal investigation revealed a

conspiracy that centered around an alleged mortgage broker business, Khadmilroy,

Inc. (“Khadmilroy”), which was incorporated in Florida by Yvette Patterson and

Grant, a self-styled minister and a primary real estate investor. From about

September 2002 through November 2006, by means of a complex scheme to

defraud, the conspirators were able to defraud mortgage lenders of their funds by

causing the lenders to fund fraudulent mortgages and allowing certain conspirators

to obtain control of the real property. Grant and the other conspirators executed the

fraud through the U.S. mail and private mail carriers, fax machines, wire transfers

of funds, and by using false identification documents of real persons without their

authorization or knowledge.

To accomplish the scheme, fraudulent documents were submitted to various

mortgage lenders to induce them to fund mortgages sought by various borrowers.

Generally, borrowers are required to fill out a Uniform Residential Mortgage

Application (Form 1003) with personal information, including social security

number, address, date of birth, and employment information. In addition to Form

1003, the mortgage broker is required to send out a Verification of Employment

Form (Form 1005) and a Verification of Deposit Form (Form 1006) to the

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borrower’s employer and bank, respectively, and the employer and bank return

these forms to the mortgage broker, who then sends the mortgage application

package to the lender for review. The lender relies on the forms sent by the broker

in making its decision about whether a given borrower qualifies for a mortgage

loan. In this case, Grant and his fellow conspirators fraudulently filled out Forms

1003, 1005, and 1006, included false wage stubs and tax forms, and sent them on

to various lenders for review.

As part of the scheme, straw buyers – people used by Grant and the other

conspirators to buy properties with fraudulent applications, but who had no

intention ever to own or occupy the property – were paid to, or duped into,

participating in the conspiracy. Oftentimes, third parties attended the closing,

posing as the straw buyer and using false documentation of identity. Once the real

estate transaction was completed, the straw buyer did not move into the property.

Instead, a conspirator would place a tenant in the residence, collect rent, and pay

the monthly mortgage, unbeknownst to the lender, who believed that the buyer was

living in the house and that the transaction was legitimate. In some cases, once

title passed to the straw buyer, the property would be “flipped” at a higher price to

a legitimate buyer or to another straw buyer, rendering a substantial profit on the

new sale, and, in other cases, a quit-claim deed was created, which purported to

4
transfer title of the property from the straw buyer to a conspirator.

Patterson, acting as a mortgage broker through Khadmilroy, submitted false

mortgage applications to lenders and was involved in the creation of the false

documentation required to support these applications. Patterson fled to Jamaica

before she could be brought to trial. Grant was an associate of Patterson and, at

times, worked as a broker at Khadmilroy. He was heavily involved in the

fraudulent buying and flipping of real estate, and he used identity theft victims and

unwitting straw buyers to buy nine properties, subsequently quit-claiming the

properties to himself or his wife, Mavis Grant (“Mavis”), but leaving the

mortgages in the victims’ names. As part of the scheme, Grant misled some people

into helping him buy houses (Diana Fiala, Louise Mills, Khadine Ricketts, and

Henry Foster) and stole the identities of others to accomplish the same goal. Grant

also filed a false bankruptcy petition in Ricketts’s name and directed Mavis to sign

the petition as Ricketts.

B. The Trial

Grant’s jury trial was a nine-day affair with over thirty witnesses testifying

for the government. We need not recount the testimony of each of those witnesses

here. For the sake of judicial economy, we revisit only those witnesses whose

testimony has a direct bearing on the issues before us on appeal.

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At Grant’s trial, Gwendlyn Amica, a college graduate employed by the

Internal Revenue Service (“IRS”), testified that she had not applied for a mortgage

or attempted to buy property in Florida as of the date of the trial, nor had she

authorized anyone to do so in her name. R4 at 56. Amica also testified that she

did not know Grant or anyone working for Khadmilroy. Id. at 70-71. In

November 2005, Amica was advised by the police that someone had attempted to

buy two properties in her name and had filled out a Form 1003 using her name and

social security number. Id. at 59-61. Although her name appeared on a sale

contract for a property purchased under her name, Amica denied ever participating

in the purchase or ever authorizing anyone to purchase any property in her name.

Id. at 90. Mavis and Grant’s names also appeared on the contract. Id. at 83.

Roosevelt Dozier, one of Grant’s codefendants and the owner of a home

building company, also testified. He stated that he would see Grant at Khadmilroy

approximately three to four times per week, and Grant would find properties and

provide Patterson with the contracts for them. Id. at 123. He stated that Grant and

Patterson would review the contract information, at which point Patterson would

tell Grant that he had to pay for a Verification of Employment (Form 1005) form to

be completed. Id. at 124. According to Dozier, Christine Brown, one of Grant’s

codefendants, told him that Grant was going to pay her $5000 to go to closings and

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pose as Amica. Id. at 125. He further testified that he witnessed Grant pay

Patterson for false Verification of Employment forms approximately three or four

times. Id. at 128. Dozier also stated that he was present for discussions that took

place between Patterson, Grant, and Keith Humes, another Khadmilroy employee.

The three would discuss using the social security numbers of unsuspecting

individuals to purchase property in the event that they did not have a “real buyer.”

Id. at 134-35. He also described a quit-claim deed provided by Juliet Murdock to

Grant and Mavis, which was notarized by Patterson. Id. at 137-39. Finally,

1

Dozier testified that when he and Grant were brought into court in November 2006,

Grant told him that Mavis had no involvement in the conspiracy and admitted that

only he and Patterson were involved. Id. at 150.

On cross-examination, Dozier testified that either Patterson or another

Khadmilroy employee would actually prepare the false documentation used in the

scheme. Id. at 175. He further testified that the quit-claim deed that was

transferred from Murdock to Grant and Mavis was false because Murdock was not

present to prepare it. In Murdock’s absence, Patterson prepared the document and

forged Murdock’s signature so that the title would be transferred to Grant and

 Murdock later testified that she never quitclaimed the property to Mavis and Grant. R5 1

at 202-05.

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Mavis. Id. at 175-76. Dozier stated that Grant was trying to purchase homes for

2

less than the asking price, so that he could secure a loan in the amount of the

asking price and then keep the difference. Id. at 190. Furthermore, Dozier

testified, Grant would try to get a tenant to live in the homes which he purchased or

would try to “flip” the houses by selling them immediately for more than he paid

for them. Id. at 191.

Next, Elvis Pickering, a loan officer with Eagle First Mortgage, testified.

Pickering handled potential as well as existing homeowners. He would review

their credit histories and discuss home loan or loan refinancing options with them.

R5 at 75-76. Pickering recounted a telephone conversation that he had with Grant

in 2005, during which Grant stated that he had a property that he wished to

refinance. Id. at 78. Grant’s name was on the title of the property because it had

been quit-claimed to him. Id. at 79. Based on Grant’s low credit score, Pickering

told him that he could not refinance the existing loan in Grant’s name. Id. at 80.

Pickering testified that he discovered that Grant was paying off a prior bank loan

under the name of Kimberly Reveille, whom Grant claimed had quit-claimed the

title to him. Id. at 141-42.

3

 Dozier stated that Patterson prepared the quitclaim deed at Grant’s request and in his 2

presence. Id. at 175-76. 

 Reveille, a McDonald’s manager in school studying to become a diagnostic ultrasound 3

technician, had previously lost her wallet. The wallet contained her driver’s license, Social

8
Khadine Ricketts, a house cleaner who knew Grant as a minister, testified

next, stating that Grant told her that he had bad credit, but wished to buy a house so

that she and several other church members could live there for six months to a

year. Id. at 147-49. Ricketts was to buy the house, but Grant would pay the

mortgage, and, after six months, Grant would “take [her] name out of it” by having

her sign the house over to him. Id. at 149. She testified that she completed a

mortgage application on the house. Id. at 152. Ricketts further testified that she

never met Patterson, and she did not authorize anyone to fill out documents on her

behalf. Id. at 155-57. After the closing date on the house, Ricketts testified, she

contacted Grant to see when she could move into the house, but he gave her “the

runaround,” and she never was able to move in. Id. at 165. Although a quit-claim

deed was prepared which transferred title of Ricketts’s property to Grant, Ricketts

testified that she had never seen the deed, and she did not sign it. Id. at 166-68.

On cross-examination, Ricketts stated that she did not see Grant fill out the false

information that was on the documents at closing. Id. at 176-77. In fact, the

documents already were prepared, and she signed them. Id. at 177.

Security card, and other documents. R6 at 152. Some time later, when she attempted to rent an

apartment, a credit check revealed that she owned a house which she knew nothing about. Id. at

153. She was later served with foreclosure papers for the property, even though she had never

contracted to purchase it or had ever applied for a mortgage. Reveille had never met Grant and

did not know him. Id. at 169. 

9
Next, Murdock testified that she purchased a home for Grant at the behest of

her friend Fitzgerald Puddie. R5 at 181. She also testified that she did not

complete a mortgage application, and the personal information contained in the

mortgage application that was prepared in her name was false. Id. at 183-87. She

stated that she went to the closing with Grant, whom she had not previously met,

and she signed a lot of papers, but she did not read any of them. Id. at 195-96.

According to Murdock, her understanding was that Grant would pay the mortgage.

Murdock never intended to move into the house. Id. at 200. She testified that she

did not sign a quit-claim deed on the property or authorize anyone to do so. Id. at

202, 205.

Christopher Longhini, a lender who worked for A Mortgage Solution USA,

testified that he received a phone call from Puddie, who stated that he was trying to

sell a piece of property to Grant. However, Longhini determined that Grant’s

credit score was too low to approve him for a loan. R6 at 8-9. Several days later,

Puddie called Longhini for a second time and stated that he had a new buyer for the

property – Murdock. Puddie provided Longhini with Murdock’s credit

information. Id. at 9. After Longhini determined that Murdock’s credit was

sufficient to receive a loan, Puddie brought in the necessary identification

documents to Longhini, and Longhini prepared the Form 1003 and other

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paperwork. Id. at 9-11. Longhini then sent the mortgage documents on to Encore

Credit, a sub-prime lender, and Encore Credit approved Murdock’s loan

application. Id. at 14-16.

Brown also testified against Grant at trial. She testified that she attended a

closing in which she pretended to be Amica by using false identification, and that

she signed all of the loan documents with Amica’s signature. Id. at 112-14. She

also stated that Grant became angry with her because she did not ensure that her

signature matched that of Amica’s during the closing. The mistake caused Brown

and Patterson to be arrested and Grant had to post bond for their release the next

day. Id. at 138.

Diane Fiala, a friend of Mavis’s who holds a college degree from George

Washington University, testified that Grant asked her to co-sign a loan for him to

buy a home for his son. R7 at 128, 132. Although she signed documents at a

closing on a property that she purchased for Grant – which was the only time that

she signed any documents – she did not fill out a mortgage application. Id. at 133-

134, 142. She testified that although she felt uncomfortable about co-signing,

Grant assured her that his son would refinance the loan within one month and she

would not have any liability. Id. at 143-45. On cross-examination, Fiala testified

that she “never dreamed that . . . [she] was not the co-signor,” and instead, was the

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primary owner, and she did not think that she did anything illegal because she had

no idea what was really going on. Id. at 163-64.

At the close of the government’s case-in-chief, Grant made a motion for a

judgment of acquittal, arguing that there was no evidence that he had a specific

intent to defraud anyone, nor was there any evidence that he conspired with anyone

to do anything illegal. R9 at 70-71. He further argued that no witness had stated

that he personally prepared any of the false documents or knew that there were

false statements in any documents. Id. at 71. The district court denied this motion.

Id..

Grant testified in his own defense. He claimed that he met Ricketts at a

religious meeting over which he presided as minister. R10 at 47. He stated that he

asked Ricketts to buy a house for him in her name because he had a tax lien against

him and could not put the house in his name because of that. Id. at 47-48. He

denied knowing that it was wrong to put Rickett’s name on the mortgage at the

closing. Id. at 50. According to Grant, Ricketts lied when she testified that she did

not prepare a quit-claim deed on the property that she purchased for him. Id. at 51.

Grant did admit to being present when his wife signed a bankruptcy petition in

Rickett’s name, id. at 57-58, but then later denied doing anything wrong in the

course of his dealings. Id. at 80. He further testified that Dozier lied on the stand,

12
because he was not present when Patterson signed Murdock’s name on the quitclaim deed, and he did not see Patterson prepare any false documents. Id. at 128.

Grant testified that he never prepared any false documents in the case. Id. at 129.

He further stated that he did not know that Brown was fraudulently posing as a

home buyer. Id. at 139. Finally, Grant denied the allegations against him and

renewed his motion for judgment of acquittal, which the district court denied. R11

at 42-43. The jury found Grant guilty on all counts. R1-213.

C. Sentencing

In accordance with U.S.S.G. § 2B1.1(a)(1), Grant’s base offense level was

initially set at 7. Because the loss was more than $70,000, but not more than

$120,000, the offense level was increased by eight levels, pursuant to

§ 2B1.1(b)(1)(E). It was increased an additional two levels, pursuant to

§ 2B1.1(b)(8)(B), as the offense involved a misrepresentation or other fraudulent

action during the course of a bankruptcy proceeding, and an additional two levels

based on a sophisticated means enhancement, pursuant to § 2B1.1(b)(9)(C).

Finally, because the offense involved the unauthorized transfer or use of a means

of identification unlawfully to produce or obtain another means of identification,

the offense level was increased by an additional two levels, pursuant to

§ 2B1.1(b)(10)(C)(i). His offense level ordinarily would have been increased by

13
yet two more levels because Grant derived more than $1,000,000 in gross receipts

from one or more financial institutions as a result of his offense. However,

pursuant to § 2B1.1(b)(13)(A) and (D), the offense level was set at 24. Although

the two-level increase would have yielded an offense level of 23, the guideline

directs that the base offense level be set at 24 where the resulting offense level

otherwise would be less than 24. See U.S.S.G. § 2B1.1(b)(13)(D) (Nov. 2006).

Grant’s offense level of 24 was increased an additional two levels pursuant

to U.S.S.G. § 3A1.1(b)(1), because the offense ostensibly involved a vulnerable

victim. A four-level leadership role enhancement was also applied, resulting in a

total offense level of 30. See U.S.S.G. § 3B1.1(a). Accordingly, with a criminal

history category of I, the resulting guideline range was 97 to 121 months of

imprisonment.

At sentencing, Grant challenged application of the sophisticated means

enhancement, arguing that he was “an incredibly unsophisticated man,” and that he

did not prepare any of the false documentation in the case or otherwise act in a

sophisticated manner, nor did he attempt to hide anything. R13 at 12. He also

contended that he should not receive an enhancement for the unauthorized use or

transfer of a means of identification because he did not have any knowledge that

anyone was not whom he or she claimed to be, or that anyone was using fraudulent

14
identification. Id. at 13. Next, Grant argued that the vulnerable victim

enhancement should not be applied because any victims in the case were either

unindicted codefendants who participated in the scheme or the mortgage and

lending companies. Id. at 14. Finally, Grant objected to the four-level aggravatingrole enhancement, because the only person whom he controlled was his wife, and

he was “clearly a follower” who was taken advantage of by Patterson. Id. at 14-15.

The district court overruled Grant’s objection to the sophisticated means

enhancement, finding that the whole operation, as well as Grant’s role in it, was

“very sophisticated.” Id. at 31. It also overruled his objection to the unauthorized

use of a means of identification enhancement, as this scheme involved people

being given false identifications, which were used so that the participants could

pretend to be other people at closings. Id. at 32. Next, the court stated that,

although the actual victims in this case were not vulnerable, the scheme was

committed using vulnerable people as pawns to perpetrate the fraud, such that the

enhancement was warranted. Id.. Finally, the court determined that Grant was a

manager or supervisor of other individuals in the case, as he supervised his wife

and also was an organizer or leader of others in the scheme. Id. at 33. The court

sentenced Grant to 120 months of imprisonment. Id. at 35. 

Grant now appeals his convictions and sentence to us. We consider his

15
sufficiency of the evidence argument first.

II. DISCUSSION

We review de novo the sufficiency of the evidence supporting a criminal

conviction. United States v. Silvestri, 409 F.3d 1311, 1327 (11th Cir. 2005). In

doing so, we review the evidence in the light most favorable to the government,

“drawing all reasonable inferences and making all credibility choices in the

government’s favor.” Id. We will reverse a conviction based on insufficient

evidence “only if no reasonable trier of fact could have found guilt beyond a

reasonable doubt.” United States v. Gunn, 369 F.3d 1229, 1234 (11th Cir. 2004)

(per curiam).

To sustain a conviction under the mail and wire fraud statutes, for which the

same analysis is applied, the government must prove the following elements: (1)

the intentional participation in a scheme to defraud; and (2) the use of the interstate

or foreign mail or wires in furtherance of the scheme. United States v. Hasson, 333

F.3d 1264, 1270 (11th Cir. 2003). “A scheme to defraud requires proof of material

misrepresentations . . . reasonably calculated to deceive persons of ordinary

prudence.” Id. at 1270-71 (citations omitted) (stating that “[a] material

misrepresentation is one having a natural tendency to influence, or capable of

influencing the decision maker to whom it is addressed”).

16
The existence of a conspiracy can be proven by either direct or

circumstantial evidence, and the government need not prove that the conspirator

knew all of the details of the conspiracy or participated in every phase of the

scheme. United States v. Guerrero, 935 F.2d 189, 192 (11th Cir. 1991). The

elements of a conspiracy under 18 U.S.C. § 371 include: (1) an agreement among

two or more individuals to achieve an unlawful objective; (2) knowing and

voluntary participation in the agreement; and (3) an overt act by a conspirator in

furtherance of the agreement. United States v. Adkinson, 158 F.3d 1147, 1153

(11th Cir. 1998). To prove a conspiracy to commit wire fraud, the government

need not demonstrate an agreement specifically to use the interstate wires to further

the scheme to defraud, but instead, it is enough to prove that the defendant

knowingly and voluntarily agreed to participate in a scheme to defraud and that the

use of the interstate wires in furtherance of the scheme was reasonably foreseeable.

United States v. Ross, 131 F.3d 970, 984 (11th Cir. 1997).

Grant’s only challenge to the sufficiency of the evidence appears to be that

the government did not establish that he completed any of the documentation relied

upon by a lender to extend a mortgage loan. However, this was not a necessary

element of the mail or fraud charges, or of the conspiracy charge. To sustain a

conviction under the mail and wire fraud statutes, the government was required to

17
prove that Grant intentionally participated in a scheme to defraud, which must be

shown by proof of material misrepresentations, and the testimony at trial

sufficiently established this element. See Hasson, 333 F.3d at 1270. The trial

testimony also sufficiently established that Grant was involved in a conspiracy to

commit wire and mail fraud because he knowingly and voluntarily agreed to

participate in a scheme to defraud. See Ross, 131 F.3d at 984. Although Grant

sought to exonerate himself through his own testimony, the jury was free to make

credibility determinations and weigh the evidence in determining Grant’s guilt.

4

First, Amica and Brown’s testimony established that Grant improperly used

Amica’s identity to apply for a mortgage and to purchase a piece of property

without her permission. See R4 at 56, 83; R6 at 112-14. Amica testified that

although her name was on a contract for the sale and purchase of a property, she

did not participate in the purchase or have any knowledge of it, and the fact that

Grant’s name also was on the contract is evidence of his participation in this

fraudulent act. See R4 at 83. Moreover, Dozier testified that Brown stated that

Grant offered to pay her $5000 to go to closings and pose as Amica, and Brown

Indeed, Grant’s testimony may have caused the jury to use it as substantive

4

evidence of his guilt. See United States v. Brown, 53 F.3d 312, 314 (11th Cir.

1995) (noting that “a statement by a defendant, if disbelieved by the jury, may be

considered as substantive evidence of the defendant’s guilt”).

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testified that she did, in fact, attend a closing in which she posed as Amica and

signed loan documents in Amica’s name. See R4 at 125; R6 at 112-14.

Second, several witnesses testified regarding quit-claim deeds that

fraudulently were prepared and signed in their names, which relinquished their title

to Grant. Despite the fact that a quit-claim deed was prepared with Murdock’s

signature, she testified that she never signed the deed, nor did she authorize anyone

to do so, and Dozier testified that Murdock was not present when the deed was

prepared and signed by Patterson. See R5 at 202-05; R4 at 175-76. Ricketts also

testified that a quit-claim deed was prepared for the property that she had

purchased for Grant, which transferred the title to Grant, but she had never seen the

deed, or signed it. See R5 at 166-68.

Third, trial testimony also established that Grant fraudulently filed mortgage

applications in other people’s names, without their knowledge or consent. Fiala

testified that she did not fill out a mortgage application, despite the fact that one

was completed in her name. See R7 at 133-34. Fiala further was defrauded by

Grant because he told her that she would be only a co-signor on the purchase of a

property for Grant’s son, but the documents that she signed made her the sole

owner of the property. See id. at 143-45, 163-64. Longhini testified that Puddie

provided him with Murdock’s personal and credit information so that he could

19
secure a mortgage in her name, but Murdock testified that she did not complete a

mortgage application, and the personal information contained in the application

that was prepared in her name was false. See R5 at 183-87; R6 at 9-11.

Fourth, the evidence at trial showed that Grant recruited straw purchasers to

purchase homes for him in their own names and that Grant promised to pay the

mortgages associated with the properties himself. Ricketts testified that Grant

asked her to buy a house for him because he had bad credit. Grant told Ricketts

that he would allow her to live in the property for six months, at which point he

would have her sign the house over to him. See R5 at 148-49. Murdock also

testified that she was asked to buy a home for Grant, and Grant would pay the

mortgage. See id. at 183, 200. Finally, Fiala testified that Grant asked her to cosign a mortgage loan for him to purchase a home for his son, but Fiala became the

sole name on the mortgage when she signed the documents, despite not having

completed a mortgage application. See R7 at 133-34.

We conclude that ample evidence points to Grant’s participation in a scheme

to defraud various individuals and mortgage lenders. The evidence shows that he

made multiple material misrepresentations that were intended to deceive.

5

 We find Grant’s reliance on our decision in United States v. Brown, 79 F.3d 1550 (11th 5

Cir. 1996), to be misplaced. In Brown, we found that the evidence established that the

defendants, through their failure to discipline their salespeople, acted to authorize

misrepresentations by salespeople to customers about the value of the homes that they were

buying, and also committed acts intended to disguise the investment potential of homes that the

20
Accordingly, the evidence presented was sufficient to sustain Grant’s convictions

on the mail and wire fraud charges.

Similarly, the trial testimony was sufficient to establish that Grant

participated in a conspiracy to commit mail and wire fraud. Dozier testified that he

witnessed Grant pay Patterson for false Verification of Employment forms. He

also heard Patterson, Grant, and another Khadmilroy employee discuss how they

might use the social security numbers of unsuspecting individuals in lieu of “real

buyers.” See R4 at 128, 134-35. Dozier also testified that Patterson notarized a

quit-claim deed purporting to transfer the title of a property from Murdock to Grant

and Mavis. See id. at 138-39. Finally, according to Dozier, Grant admitted that his

wife had no hand in the scheme and that it was he and Patterson who were

involved. See id. at 150.

We now turn to the district court’s application of the three specific offense

characteristic enhancements. Grant challenges the district court’s imposition of

specific offense characteristics based on: (1) fraudulent actions during the course

of a bankruptcy proceeding; (2) the use of sophisticated means to commit the

offense; and (3) the unauthorized transfer or use of a means of identification.

defendants sold. Id. at 1555-56. In this case, however, Grant was not entering into arm’s length

transactions with the victims who he enticed into essentially buying him a home, and the jury

could find that the mortgage lenders who received fraudulent documents from him would rely on

his representations. 

21
Assuming Grant derived more than $1,000,000 in gross receipts, the specific

offense characteristics that were added to the base offense level brought his total

offense level to 23. See U.S.S.G. § 2B1.1(b)(13)(A). By operation of

§ 2B1.1(b)(13)(D), Grant’s offense level increased to 24. See U.S.S.G.

§ 2B1.1(b)(13)(D). Because § 2B1.1(b)(13)(D) mandates an increase in offense

level to 24 regardless of the specific offense characteristics added to the base

offense level prior to the application of § 2B1.1(b)(13)(D), any error that the

district court may have committed in applying these previous enhancements was

harmless. See United States v. Williams, 503 U.S. 193, 203, 112 S. Ct. 1112,

1120-21 (1992).

Grant’s challenge of the managerial-role enhancement, see U.S.S.G. §

3B1.1(a), does not stand close scrutiny either. Grant does not challenge the district

court’s finding that he was the leader or organizer of at least one person, namely

his wife. Nor does he contest the court’s determination that the criminal activity at

issue involved five or more participants. As such, the record provides no

indication that the district court erred in its determination that Grant “was a

manager in a certainly otherwise extensive criminal activity.” R13 at 33.

Finally, we now consider the district court’s application of the vulnerable

victim enhancement. The district court’s application of U.S.S.G § 3A1.1 presents

22
a mixed question of law and fact, subject to de novo review, but the district court’s

determination of a victim’s “vulnerability” is a factual finding given due deference.

United States v. Amedeo, 370 F.3d 1305, 1317 (11th Cir. 2004). A vulnerable

victim for purposes of an enhancement under § 3A1.1 refers to one “who is

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, comment.

(n.2). This adjustment is appropriate only when the victim is targeted based on the

defendant’s perception of the victim’s vulnerability. United States v. Arguedas, 86

F.3d 1054, 1058 (11th Cir. 1996). For purposes of subsection (b), a victim can be a

victim of any relevant conduct for which the defendant is accountable. See

U.S.S.G. § 3A1.1, comment. (n.2).

In construing the “otherwise particularly susceptible” language of § 3A1.1,

we have “held that circumstances, as well as immutable characteristics, can render

a victim of criminal activity unusually vulnerable.” United States v. Davis, 967

F.2d 516, 523 (11th Cir. 1992). We have upheld vulnerable victim enhancements

where: (1) the defendant extorted money from the father of a missing child,

promising to reveal the location of the child, United States v. Villali, 926 F.2d 999,

1000 (11th Cir. 1991) (per curiam); (2) the defendant, a bank officer, embezzled

money from the trust accounts of elderly persons, United States v. Yount, 960 F.2d

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955, 957-58 (11th Cir. 1992); (3) the defendant in a loan fraud scheme targeted

consumers with bad credit, United States v. Page, 69 F.3d 482, 490-91 (11th Cir.

1995); (4) the defendant, a former local police chief, robbed a rural bank when he

knew that police would not be in the area, United States v. Phillips, 287 F.3d 1053,

1056-58 (11th Cir. 2002); (5) the defendant provided narcotics to a minor victim,

whom the defendant knew suffered from a drug addiction, Amedeo, 370 F.3d at

1317-18; (6) the defendant, based upon a personal relationship with the victim,

knew of the victim’s troubled financial situation, Arguedas, 86 F.3d at 1057-58;

and (7) the defendant in a car jacking case knew that the victim, a cab driver, had a

duty to respond to all dispatches and would have to pick him up, United States v.

Frank, 247 F.3d 1257, 1259-60 (11th Cir. 2001).

In this case, the district court made the following finding:

The actual victims in this case I don’t think were vulnerable in

this case, but the way that the crimes were committed, the way the –

sophisticated way that these frauds were able to be perpetrated was to

use vulnerable people as pawns to be able to perpetrate the fraud to

bring in Mr. Foster who certainly is challenged in many ways to help

assist unwittingly in the crime.

Mr. Wyles (phonetic), the churchgoer, Ms. Fiala, all of those

people were vulnerable for one reason or another because of their

physical maladies, Ms. Fiala’s religious beliefs causing her to trust

Mr. Grant. And although their participation in the crime bordered on

being an accomplice, bordered on being criminally involved, they also

were unwitting victims also in the way that they were utilized and

used in the case. And I think this a close issue, but I am going to

overrule the objection to vulnerable victims and find that Mr. Grant

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knew or should have known that the individuals that were involved in

this case that were used to commit these crimes were vulnerable. So I

am going to overrule that objection.

R13 at 32-33. After according due deference to the district court’s findings, we are

not convinced that they adequately support the application of the § 3A1.1

enhancement. First, the district court’s determination that Mr. Grant’s “unwitting

victims” and “pawns” were vulnerable is not enough. We have consistently held

that “[t]he vulnerability that triggers § 3A1.1 must be an unusual vulnerability

which is present in only some victims of that type of crime.” Davis, 967 F.2d at

524 (emphasis added) (quotation marks omitted). Accordingly, the correct inquiry

is not whether a given fraud victim was vulnerable, but whether Grant specifically

targeted a particular victim who was “more vulnerable that the normal [fraud]

victim.” Id.

The district court specifically identifies Mr. Henry Foster and Ms. Fiala as

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being unwitting victims of Mr. Grant’s scheme. Although the record does suggest

that Foster had some hearing problems, see R8 at 6, there is no indication that

Grant specifically targeted Foster because of his age or physical infirmities or that

 Foster was a sixty-seven year old mechanic with a grammar school education. R8 at 4. 6

Grant recruited Foster to purchase a home for Grant and promised Foster a cut of whatever

proceeds resulted from the deal. Id. at 13. Grant escorted Foster to the property closing and

Foster signed the closing documents but did not understand their significance. Id. at 10, 12-13. 

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he was otherwise unusually vulnerable. Indeed, it appears that Foster willingly

entered into the deal proposed by Grant and hoped to come away with a profit. Id.

at 13.

Fiala’s status as an putative “unusually vulnerable victim” is equally suspect.

As previously noted, Fiala holds a Bachelor of Arts degree in English literature

from George Washington University. Her trial testimony indicated that she was

wary of entering into a business relationship with Grant. R7 at 132, 143-44. Even

after finally agreeing to do so, Fiala insisted on drafting an additional document

specifying when her liability would cease and when she would quitclaim the

property to Grant. Id. at 149. Such actions evidence a degree of sophistication that

would seem to elevate her from the ranks of the “unusually vulnerable.”

Finally, the district court cites Fiala’s religious beliefs as “causing her to

trust” Grant. R13 at 32. We have yet to consider a case in which a person’s

religious beliefs render him or her unusually vulnerable within the meaning of

§ 3A1.1. The paucity of any such evidence in the record before us does not allow

us to visit that issue at this point. While the record does indicate that Fiala was a

religious person and frequently attended religious services with Grant’s wife, R7 at

129, it does not support the inference that Fiala was rendered unusually vulnerable

to Grant’s scheme because of her religious convictions or that Grant targeted her

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because she was particularly religious.

III. CONCLUSION

Grant appeals his convictions and 120-month sentence for (1) conspiracy to

commit aggravated identity fraud, mail fraud, and wire fraud; (2) three counts of

mail fraud; and (3) three counts of wire fraud. We are not persuaded by Grant’s

sufficiency of the evidence argument and we find no merit in Grant’s challenge of

the district court’s application of the three specific offense characteristic

enhancements and the managerial-role enhancement. However, we conclude that

the district court’s application of the vulnerable-victim enhancement is not

adequately supported by the evidence in the record. Accordingly, we AFFIRM

Grant’s convictions, VACATE Grant’s sentence, and REMAND for resentencing.

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