UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-4080

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

v.

PENNY S. DAVIS,

 Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at 

Greensboro. Catherine C. Eagles, District Judge. (1:17-cr-00069-CCE-1)

Submitted: September 28, 2018 Decided: October 18, 2018

Before KEENAN and HARRIS, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Stacey D. Rubain, QUANDER & RUBAIN, PA, Winston-Salem, North Carolina, for 

Appellant. Matthew G.T. Martin, United States Attorney, Frank J. Chut, Jr., Assistant 

United States Attorney, K.P. Kennedy Gates, Special Assistant United States Attorney, 

OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for 

Appellee. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Penny S. Davis appeals from her 41-month sentence imposed pursuant to her 

guilty plea to mail fraud.1

 On appeal, she challenges the district court’s determination 

that her Sentencing Guidelines range should be enhanced based upon her use of 

sophisticated means and the exploitation of a vulnerable victim. She also asserts that the 

district court failed to properly consider her arguments for a lower sentence and failed to 

provide proper reasoning for the imposed within-Guidelines sentence. We affirm.

I.

Davis first challenges her enhancement for use of sophisticated means. Because 

she objected in the district court, we review this issue for clear error. A clear error occurs 

when the reviewing court is “left with a firm and definite conviction that a mistake has 

been committed.” United States v. Adepoju, 756 F.3d 250, 258 (4th Cir. 2014) (citation 

omitted). “[U.S. Sentencing Guidelines Manual § ] 2B1.1(b)(10)(C) [2017] directs the 

sentencing court to increase the offense level by two levels if ‘the offense otherwise 

involved sophisticated means.’” United States v. Wolf, 860 F.3d 175, 199 (4th Cir. 2017) 

(quoting USSG § 2B1.1(b)(10)(C)). “‘[S]ophisticated means’ means especially complex 

or especially intricate offense conduct pertaining to the execution or concealment of an 

offense.” USSG § 2B1.1 cmt. n.9(B). “The commentary to the Guideline provides 

examples warranting application of the sophisticated-means enhancement, including 

 1 She was also sentenced to a (mandatory) 2-year term of imprisonment pursuant 

to her guilty plea to aggravated identity theft. She does not challenge this sentence on 

appeal.
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‘[c]onduct such as hiding assets or transactions, or both, through the use of fictitious 

entities, corporate shells, or offshore financial accounts.’” Wolf, 860 F.3d at 199 (quoting 

USSG § 2B1.1 cmt. n.9(B)). A second example given is “locating the main office of [a 

telemarketing] scheme in one jurisdiction but locating soliciting operations in another.” 

USSG § 2B1.1 cmt. n.9(B). 

“The enhancement applies where the entirety of a scheme constitutes sophisticated 

means, even if every individual action is not sophisticated.” Adepoju, 756 F.3d at 257 

(citing United States v. Jinwright, 683 F.3d 471, 486 (4th Cir. 2012)). “A sentencing 

court should consider the cumulative impact of the criminal conduct, for the ‘total 

scheme’ may be ‘sophisticated in the way all the steps were linked together.’” Jinwright, 

683 F.3d at 486 (citations omitted). “The enhancement requires some means of 

execution that separates the offenses . . . from the ordinary or generic.” Wolf, 860 F.3d 

at 199; see also Adepoju, 756 F.3d at 257 (noting “sophistication requires more than the 

concealment or complexities inherent in fraud,” and “[t]hus, fraud per se is inadequate for 

demonstrating the complexity required for [the] enhancement”).

Here, the district court determined the offense involved sophisticated means, 

because Davis, a paralegal who worked at two different law firms entrusted with the 

management of various estates, created a multilayered scheme, whereby she stole money 

and property from the estates. Her crime involved shuffling money between estates 

handled by the firms and choosing estates where clients were less likely to discover the 

thefts. To prevent discovery of her scheme, Davis used her knowledge of estates, probate 

and court procedures to file different accountings in court than those in the law firms’ 
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files. In addition, the district court noted that Davis needed to hide her fraud from 

lawyers and court officials who were sophisticated themselves, which required 

specialized knowledge. Further, Davis used numerous means to conceal the fraud, 

including forgery, altering documentation, transferring money between accounts, and 

omitting property from certain accountings. 

We find that the district court did not clearly err in finding the use of sophisticated 

means. The court noted several ways the offense conduct was more sophisticated than 

fraud per se; and we conclude that the “total scheme” was also “sophisticated in the way 

all the steps were linked together.” See United States v. Savage, 885 F.3d 212, 228-29 

(4th Cir. 2018) (finding that sophisticated means were used in bank fraud conspiracy 

when defendant, among other actions, used insider information to “circumvent the bank’s 

fraud countermeasures”), cert. filed (July 8, 2018) (No. 18-5225).

II.

The Guidelines mandate that “[i]f the defendant knew or should have known that a 

victim of the offense was a vulnerable victim, increase by 2 levels.” USSG 

§ 3A1.1(b)(1). The commentary to § 3A1.1 defines a “vulnerable victim” as “a person 

(A) who is a victim of the offense of conviction and any conduct for which the defendant 

is accountable under § 1B1.3 (Relevant Conduct); and (B) who is 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. Application of the enhancement entails 

a two-part inquiry: (1) a sentencing court must determine that a victim was unusually 

vulnerable; and (2) the court must then assess whether the defendant knew or should have 
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known of such unusual vulnerability. United States v. Etoty, 679 F.3d 292, 294 (4th Cir. 

2012). 

Here, there is no question that the victim identified by the district court was 

vulnerable and that Davis knew of his vulnerability. Instead, Davis contends that (1) the 

victim did not suffer a loss under USSG § 2B1.1 (defining victim for purposes of 

calculating loss amount); and (2) the victim had a legal guardian to protect his interests, 

rendering him not vulnerable. However, a victim need not suffer a pecuniary loss to be 

considered a vulnerable victim for purposes of the Guidelines. United States v. 

Salahmand, 651 F.3d 21, 29 (D.C. Cir. 2011) (holding that, although individuals 

qualified as victims under § 3A1.1, but not § 2B1.1, there is nothing illogical about the 

Sentencing Commission providing different definitions for different guidelines); United 

States v. Kennedy, 554 F.3d 415, 423–24 (3d Cir. 2009) (holding that, although elderly 

account holders from whom defendant stole did not satisfy the definition of “victim” 

under USSG § 2B1.1(b)(2) because they were reimbursed, they were not precluded from 

being “vulnerable victims” under USSG § 3A1.1(b)(1) because “victims” under § 2B1.1 

and § 3A1.1(b) are separate definitions); see also United States v. McCall, 174 F.3d 47, 

51-52 (2d Cir. 1998) (holding that, although the bank rather than the account holder is 

liable for an embezzlement, account holders are nevertheless victims of such an 

embezzlement, and noting that such an account holder may be a particularly vulnerable 

victim where there is a substantial chance that he or she will never discover or realize that 

the account has been depleted). 
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Moreover, the Guidelines do not define vulnerable victims with reference to 

whether their interests are otherwise being protected, even though many fitting the 

“vulnerable victim” definition, such as children and those who are mentally incompetent, 

would likely have guardians. In addition, we find it illogical to negate the vulnerability 

of a victim, merely because, as here, he had a guardian who did not adequately protect 

him. Accordingly, we conclude that the district court’s imposition of a two-level 

enhancement based on its finding that the victim qualified as a vulnerable victim was 

warranted.

III.

Finally, Davis contends that the district court did not adequately consider and 

address her claims for a shorter sentence. In evaluating a sentencing court’s explanation 

of a selected sentence, we have consistently held that, although the district court must 

consider the statutory factors and explain the sentence, “it need not robotically tick 

through the § 3553(a) factors.” United States v. Helton, 782 F.3d 148, 153 (4th Cir. 

2015) (internal quotation marks omitted). “Regardless of whether the district court 

imposes an above, below, or within-Guidelines sentence, it must place on the record an 

‘individualized assessment’ based on the particular facts of the case before it.” United 

States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (quoting Gall, 552 U.S. at 50). 

“Where the defendant or prosecutor presents nonfrivolous reasons for imposing a 

different sentence than that set forth in the advisory Guidelines, a district judge should 

address the party’s arguments and explain why he has rejected those arguments.” United 

States v. Bollinger, 798 F.3d 201, 220 (4th Cir. 2015) (internal quotation marks omitted). 
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However, it is sometimes possible to discern a sentencing court’s rationale from the 

context surrounding its decision. United States v. Montes-Pineda, 445 F.3d 375, 381 (4th 

Cir. 2006).

Here, the district court explicitly considered most of Davis’s arguments, 

concluding that her emotional, physical and financial difficulties; her dysfunctional 

family situation; and her mental health limitations were not unusual when compared to 

other defendants. Indeed, the court noted that Davis had stable employment and an 

education that many other defendants lacked. The court also noted that the Guidelines 

range took into account Davis’s abuse of trust, targeting of vulnerable victims, the 

amount of loss, and that sophisticated means were used. The court also recognized that it 

was legally unable to consider the consecutive sentence in determining the proper 

sentence, a conclusion that Davis agrees with on appeal. The court accepted Davis’s 

remorse as genuine, but noted that the crime was serious and ongoing. The court then 

stated that, despite the significant need to punish and deter, it would impose a sentence at 

the low end of the Guidelines based upon the mitigating circumstances argued by 

counsel.

We find that the court’s reasoning was individualized, detailed and sufficient.2

 

Accordingly, we affirm the district court’s judgment. We dispense with oral argument 

 2 Davis contends that the district court failed to address her drug dependency and 

the effect her incarceration would have on her son. However, the court’s consideration of 

Davis’s family situation and her physical and emotional health sufficiently covered these 

factors.
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because the facts and legal conclusions are adequately presented in the materials before 

this court and argument would not aid the decisional process.

AFFIRMED