## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 08-3001

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the Western * District of Missouri. Jeans Vega-Iturrino, * also known as Diana Garcia, * also known as Janet Iturrino, * * Appellant. *

___________ Submitted: February 9, 2009 Filed: May 6, 2009

___________ Before RILEY, SMITH, and SHEPHERD, Circuit Judges.

___________ SHEPHERD, Circuit Judge.
Jeans Vega-Iturrino pleaded guilty to conspiracy to commit credit card fraud and theft, see 18 U.S.C. § 371, and four c ounts of access device fraud, see 18 U.S.C. §§ 1029(a)(5) and 2. The district court sentenced Vega-Iturrino to concurrent 36- month terms of imprisonment. Vega-Iturrino appeals, alleging that the district court erred in applying Sentencing Guidelines enhancements to the base offense level for relocating to another jurisd iction to avoid law enforcem ent and targeting vulnerable victims. Finding non-harmless procedural se ntencing error, we reverse the sentence and remand.-2- I.

In July 2007, Vega-Iturrino and two accomplices traveled from Burbank, California to Kansas City, Missouri for the purpose of stealing credit cards from shoppers at retail stores. Over a period of nine days, Vega-Iturrino and her coconspirators successfully swiped credit cards from the purses of eight female victims, including individuals who were 70, 83, 83 and 89 years of age. As to some of their victims, Vega-Iturrino and her co-conspi rators employed distraction techniques, including bumping into their victim and engagi ng their victim in conversation in order to accomplish the thefts. Vega-Iturrino and her co-conspirators then used the stolen credit cards to make retail purchases of items, including expensive electronics and to purchase gift cards.

Prior to sentencing, the United States Probation Officer for the Western District of Missouri prepared a presentence re port (PSR) which included the recommendation that Vega-Iturrino’s base o ffense level be increased by two levels because she relocated, or participated in relocating a fraudulent scheme from another jurisdiction to evade law enforcement pursuant to United States Sentencing Commission, Guidelines Manual (USSG) §2B1.1(b)(9)(A) (Nov. 2007), and by an additional two levels because she knew or should have know n that a victim of the offense was a vulnerable victim pursuant to USSG §3A1.1( b)(1). Vega-Iturrino filed objections to the recommended offense level adjustments. At sentencing, the district court overruled Vega-Iturrino’s objections and found he r total offense leve l to be 20 and her criminal history category to be III, yielding a sentencing range of 33 - 41 months. The court then sentenced Vega-Iturrino to 36 months imprisonment on each count with the terms to run concurrently.-3- II.

“We review all sentences, whether inside or outside the Guidelines range, under a deferential abuse of discretion st andard.” United States v. Pepper , 518 F. 3d 949, 951 (8th Cir.), cert. denied , 129 S. Ct. 138 (2008) (citing Gall v. United States , 552 U.S. ___, ___, 128 S. Ct. 586, 597 ( 2007)). We first ensure that the district court did not commit a significant procedural error. Id. Such errors include “failing to calculate (or improperly calculating) the Gu idelines range . . . .” Gall , 128 S. Ct. at 597. “We review the district court’s factual findings for clear error, and its application of the guidelines de novo.” United States v. Blankenship , 552 F.3d 703, 704 (8th Cir. 2009). Further, “[t]he predicate facts supporting an enhancement must be found by a preponderance of the evidence.” United States v. Myers , 481 F.3d 1107, 1110 (8th Cir. 2007).

Vega-Iturrino submitted written objecti ons to the PSR, challenging the application of USSG § 2B1. 1(b)(9)(A) and USSG § 3A1.1( b)(1). However, she did not object to the facts contained in the PSR, we therefore accept the PSR’s factual allegations as true. United States v. Mosqueda-Estevez , 485 F.3d 1009, 1010 (8th Cir. 2007).

Vega-Iturrino contends that the distri ct court committed significant procedural error in applying a two-level enhan cement under USSG § 2B1.1(b)(9)(A) for relocating a fraudulent scheme from another jurisdiction to evade law enforcement. “The plain language of the subsection require s the district court to find: (1) the defendant relocated from one jurisdiction to another; (2) the fraudulent scheme moved with the defendant; and (3) the defendantintended to evade law enforcement or regulatory officials.” United States v. Smith , 367 F.3d 737, 740 (8th Cir. 2004), vacated and remanded on other grounds , 543 U.S. 1103 (2005). Vega-Iturrino does not contest that she relocated from Californi a to Missouri. However, she argues that-4- application of the enhancement is inappropriate because the government did not establish that she relocated with the inte nt to evade a specific threat of imminent
arrest.
We do not find in the guideline a require ment that the relocation be motivated by a “specific” threat of arrest as opposedto a more general intent to evade law enforcement. According to the PSR, Vega -Iturrino and her co-conspirators flew from California to Kansas City, Missouri under a ssumed names with the purpose of stealing credit cards from shoppers, she made purch ases using the identities and credit cards of her victims, and, upon he r arrest, she was found to be in possession of counterfeit drivers licenses and other identification documents. These facts are sufficient to support the district court’s finding that Vega-Iturrino relocated with the intent to evade law enforcement. See Smith , 367 F.3d at 739-40 (appellant’s commission of identity fraud by making purchases and incurring ch arges by using three fraudulent identities after relocation evidences an attempt to evade law enforcemen t under the guideline).

Over Vega-Iturrino’s objection, the district court also applied an upward adjustment to the base offe nse level by virtue of its fi nding that Vega-Iturrino “knew or should have known that a victim of th e offense was a vulnerable victim.” USSG §3A1.1(b)(1). In responding to Vega-Iturino’s objection, the probation officer asserted that Vega-Iturrino a nd her co-conspirators targeted older women, three of the victims were over the age of 80, and Vega-Iturrino had pers onal contact with at least two of these victims providing her an opportunity to be aware that they “were vulnerable due to their ages and/or physi cal condition.” Addendum to PSR at 4. However, neither the PSR nor the sentenci ng transcript set forth any specific facts demonstrating the nature of th e victim’s alleged vulnerability.-5- To apply an enhancement under § 3A1.1(b )(1), “the sentencing court must still determine whether a victim was . . . unusua lly vulnerable due to age or some other characteristic.” United States v. Anderson(Anderson I ), 349 F.3d 568, 572 (8th Cir. 2003) (quotation omitted). “In making this determination, we do not apply a blanket assumption that an advanced age is sufficient to render a victim vulnerable.” United States v. Anderson (Anderson II ), 440 F.3d 1013, 1018 (8th Cir. 2006). This enhancement “requires a fact-based explanation of why advanced age or some other characteristic made one or more victims ‘ unusually vulnerable’ to the offense conduct, and why the defendant knew or should ha ve known of this unusual vulnerability.” Anderson I , 349 F.3d at 572; see also Anderson II , 440 F.3d at 1017-18 (victim of defendant’s mail fraud and money laundering scheme was unusually vulnerable because the victim had received only an ei ghth grade education, had no experience or understanding of investments outside of conn ection with the defe ndant). In Anderson I , this court reversed a sentencing enhan cement under § 3A1.1(b)(1) where neither the PSR nor the sentencing transcript set forth any facts other than the elderly status of the victims. The district court had failed to supplement the PSR with additional factfinding, merely stating that “I hereby make the factual findings implicit in my decision.” Anderson I , 349 F.3d at 571. As a result, we remanded for resentencing because the enhancement lacked su fficient evidentiary support. Id. at 573. On remand, the sentencing court held a resentencing hearing and made additional factual findings with regard to the elderly victim’s vulnerab ilities. Anderson II , 440 F.3d at 1018.

Here, the district court provided no explanation in announcing that it was overruling Vega-Iturrino’s objection to application of the USSG §3A1.1(b)(1) enhancement. The only indication of the district court’s reasoning is found in its query to Vega-Iturrino’s attorney, prior to hearing the objection, that “three of the ladies were over 80 years old or over the ag e of 80, and . . . th e information reflects that the defendant and her codefendants targeted older women to steal from. You-6- don’t think that’s enough?” Sentencing Tr. at 12-13. Neither from the sentencing or the PSR do we discern a “fact-based expl anation” of why Vega-Iturrino’s victims were vulnerable. Rather, in finding thatVega-Iturrino’s victims were vulnerable under USSG §3A1.1(b)(1), the districtcourt improperly equated age with vulnerability.

Accordingly, based upon the record before us, we conclude that the district court lacked a sufficient factual basis to determine that Vega-Iturino’s victims were vulnerable for purposes of § 3A1.1(b)(1), and thus the district court improperly calculated Vega-Iturino’s offense level and advisory Guidelines range, which constitutes significant procedural error. See Gall , 128 S. Ct. at 597; United States v. Spikes , 543 F.3d 1021, 1023 (8th Cir. 2008). Since we cannot determine what sentence the district court would have imposed under a properly calculated Guidelines range, this procedural error was not harmless. Spikes , 543 F.3d at 1026.

III.

We vacate Vega-Iturrino’s sentence and remand to the district court for resentencing.

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