FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 17, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-12618

Non-Argument Calendar

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D. C. Docket No. 05-14090-CR-JEM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LEONARD P. BOGDAN, JR.,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(October 17, 2008)

Before BIRCH, HULL and PRYOR, Circuit Judges.

PER CURIAM:

Leonard Bogdan appeals his sentence of 360 months of imprisonment for
conspiracy to commit mail fraud, mail fraud, and money laundering. Bogdan

argues that the district court should not have enhanced his sentence for targeting

vulnerable victims, United States Sentencing Guidelines § 3A1.1(b)(1) (Nov.

1998); involving a large number of vulnerable victims, id. § 3A1.1(b)(2); and

abusing a position of trust, id. at § 3B1.3. We affirm.

We review de novo the application of the vulnerable-victim and abuse-ofposition-of-trust enhancements to a sentence. United States v. Amedeo, 370 F.3d

1305, 1317 (11th Cir. 2004); United States v. Ward, 222 F.3d 909, 911 (11th Cir.

2000). “The district court’s determination of a victim’s ‘vulnerability’ is, however,

essentially a factual finding to which we give due deference.” Amedeo, 370 F.3d

at 1317 (quoting United States v. Arguedas, 86 F.3d 1054, 1057 (11th Cir. 1996)).

“‘We review the district court’s fact findings’” regarding an abuse of trust “‘for

clear error.’” Ward, 222 F.3d at 911 (quoting United States v. Mills, 138 F.3d 928,

941 (11th Cir. 1998)).

Bogdan argues that the enhancement for a vulnerable victim of section

3A1.1(b) requires that the jury determine beyond a reasonable doubt whether a

defendant knew or should have known that his victims were vulnerable, but we

disagree. The only reference to a jury finding pertains to a victim of a hate crime,

U.S.S.G. § 3A1.1 cmt. n.1, but Bogdan was not convicted of a hate crime. See

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United States v. Saunders, 318 F.3d 1257, 1264 (11th Cir. 2003) (“‘Where

Congress includes particular language in one section of a statute but omits it in

another section of the same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or exclusion.’”) (quoting

Russello v. United States, 464 U.S. 16, 23, 104 S. Ct. 296, 300 (1983) (internal

quotation marks omitted)). The district court was required to make the findings

about Bogdan’s enhancement.

The district court did not err by applying the vulnerable-victim

enhancements to Bogdan’s sentence. The evidence established that Bogdan

marketed his investments to a large number of senior citizens. U.S.S.G. §

3A1.1(b)(1), (b)(2). He enticed retirees, in person and in advertisements and

articles submitted to a free local newspaper, to invest their income by touting a 10

to 14 percent return on secured investments. Bogdan’s investors were

predominantly 70 years old or older, possessed a minimal level of financial

sophistication, and relied on the income to maintain their standard of living. See

United States v. Rudisill, 187 F.3d 1260, 1268–69 (11th Cir. 1999). The

investigation revealed that Bogdan also targeted repeatedly the same investors.

See United States v. Day, 405 F.3d 1293, 1296 (11th Cir. 2005).

The district court also did not err by finding that Bogdan abused a position

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of trust. Bogdan exploited a fiduciary relationship with his clients by

misrepresenting that he had invested their money in exchange for either a secured

mortgage or a promissory note. Bodgen instead diverted those funds to make

unsecured loans and interest payments to investors, pay agents’ commissions and

operating costs, and satisfy personal obligations. Cf. United States v. Yount, 960

F.2d 955, 957–58 (11th Cir. 1992).

Bogdan’s sentence is AFFIRMED.

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