United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-3001

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 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. *

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Submitted: February 9, 2009

Filed: May 6, 2009

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Before RILEY, SMITH, and SHEPHERD, Circuit Judges.

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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 counts 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 jurisdiction to avoid law enforcement and targeting vulnerable

victims. Finding non-harmless procedural sentencing error, we reverse the sentence

and remand.
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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-conspirators employed distraction techniques,

including bumping into their victim and engaging 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 report (PSR) which included the recommendation

that Vega-Iturrino’s base offense 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 known 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 her total offense level 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.
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II.

“We review all sentences, whether inside or outside the Guidelines range, under

a deferential abuse of discretion standard.” 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 Guidelines 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 objections 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 district court committed significant procedural

error in applying a two-level enhancement 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 requires 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 defendant intended 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 California to Missouri. However, she argues that
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application of the enhancement is inappropriate because the government did not

establish that she relocated with the intent to evade a specific threat of imminent

arrest. 

We do not find in the guideline a requirement that the relocation be motivated

by a “specific” threat of arrest as opposed to 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 assumed names with the purpose of stealing

credit cards from shoppers, she made purchases using the identities and credit cards

of her victims, and, upon her 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 charges by using three fraudulent identities

after relocation evidences an attempt to evade law enforcement under the guideline).

Over Vega-Iturrino’s objection, the district court also applied an upward

adjustment to the base offense level by virtue of its finding that Vega-Iturrino “knew

or should have known that a victim of the offense was a vulnerable victim.” USSG

§3A1.1(b)(1). In responding to Vega-Iturino’s objection, the probation officer

asserted that Vega-Iturrino and her co-conspirators targeted older women, three of the

victims were over the age of 80, and Vega-Iturrino had personal 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 physical condition.” Addendum to PSR at 4. 

However, neither the PSR nor the sentencing transcript set forth any specific facts

demonstrating the nature of the victim’s alleged vulnerability.
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To apply an enhancement under § 3A1.1(b)(1), “the sentencing court must still

determine whether a victim was . . . unusually 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 have 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 eighth grade education, had no experience or

understanding of investments outside of connection with the defendant). In Anderson

I, this court reversed a sentencing enhancement 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 sufficient 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 vulnerabilities. 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 age of 80, and . . . the information reflects

that the defendant and her codefendants targeted older women to steal from. You
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don’t think that’s enough?” Sentencing Tr. at 12-13. Neither from the sentencing or

the PSR do we discern a “fact-based explanation” of why Vega-Iturrino’s victims

were vulnerable. Rather, in finding that Vega-Iturrino’s victims were vulnerable

under USSG §3A1.1(b)(1), the district court 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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