               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 15a0473n.06

                                       Case No. 14-3654

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                 FILED
                                                                            Jun 25, 2015
UNITED STATES OF AMERICA,                            )
                                                                        DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff-Appellee,                           )
                                                     )     ON APPEAL FROM THE UNITED
v.                                                   )     STATES DISTRICT COURT FOR
                                                     )     THE SOUTHERN DISTRICT OF
JONATHAN WEBSTER,                                    )     OHIO
                                                     )
       Defendant-Appellant.                          )
                                                     )


       BEFORE: MOORE, SUTTON, and WHITE, Circuit Judges.


       SUTTON, Circuit Judge. After Jonathan Webster pleaded guilty to stealing hundreds of

individuals’ identities with false offers of lending a helping hand, the district court imposed an

eleven-year sentence.    On appeal, Webster claims that the district court misapplied two

enhancements to his advisory sentencing range: one for lying about representing a charity, the

other for targeting vulnerable victims. We affirm.

       To trick people into sharing their personal information, Jonathan Webster created

websites for fake charities with reassuring, vaguely religious names such as “The Angel Charity”

and “4 the Glory Charity.” PSR at 6. Webster invited those in need to apply for financial aid

and publicized the nonexistent charities in Job News, a nationwide newsletter catering to

unemployed and recently employed individuals. Over three years, more than 250 people trusted
Case No. 14-3654
United States v. Webster
Webster with their names and Social Security numbers, which he used to file false tax returns

and steal nearly $1.5 million in tax refunds from the government. Webster spent most of that

money on shoring up his struggling Columbus bar. Neither effort worked. The bar failed. And

the tax-refund scheme unraveled in 2013. Webster pleaded guilty to wire fraud and aggravated

identity theft. See 18 U.S.C. §§ 1028A, 1343.

       The district court applied two sentencing enhancements to the wire fraud conviction

pertinent to this appeal: a two-level increase for misrepresenting that he worked “on behalf of a

charitable . . . organization,” U.S.S.G. § 2B1.1(b)(9)(A), and a two-level increase for preying on

“vulnerable victim[s],” § 3A1.1(b)(1). These yielded a 108-to-135-month advisory guidelines

range for the wire fraud. Aggravated identity theft has no offense level or guidelines range and

carries a mandatory twenty-four-month consecutive prison term. See 18 U.S.C. § 1028A(a)(1),

(b)(2); U.S.S.G. § 2B1.6.    All in all, the court imposed a 132-month sentence.         Webster

challenges each enhancement.

       The charity enhancement. The parties skirmish over whether we may review the charity

enhancement. The government claims that Webster waived any objection to this enhancement

by “agree[ing]” to it and “recommend[ing]” it in his plea agreement, R. 2 at 6, and consenting to

it during the sentencing hearing. Waived claims are unreviewable claims. See United States v.

Olano, 507 U.S. 725, 733 (1993). Webster claims that he did not waive this argument but

merely forfeited it by failing to raise the point at his sentencing hearing. Forfeited claims are

reviewed for plain error. United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en banc).

We need not resolve the debate.         Even if Webster only forfeited his objection to the

enhancement, no plain error occurred.




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United States v. Webster
        The charity-enhancement guideline calls for a two-level enhancement “[i]f the offense

involved a misrepresentation that the defendant was acting on behalf of a charitable, educational,

religious, or political organization, or a government agency.” U.S.S.G. § 2B1.1(b)(9)(A). The

commentary notes that the charity enhancement “applies in any case in which the defendant

represented that the defendant was acting to obtain a benefit on behalf of a charitable . . .

organization.” U.S.S.G. § 2B1.1 cmt. 8(B).

        As the district court saw it and as the government sees it, Webster deserves the

enhancement. He pretended to “act[] on behalf of a charitable . . . organization,” U.S.S.G.

§ 2B1.1(b)(9)(A), when he solicited personal information from the victims on behalf of fake

charities.

        As Webster sees it, the enhancement does not apply. In his view, the commentary limits

the application of the charity enhancement, and he was not acting to obtain a benefit on behalf of

a charitable organization (as the commentary seems to require). As a general matter, the text of a

guideline trumps commentary about it. See Stinson v. United States, 508 U.S. 36, 38 (1993)

(holding that commentary is not authoritative if it “is inconsistent with, or a plainly erroneous

reading of,” the guideline it interprets or explains). But we need not resolve whether the

commentary together with the guideline suggests that the enhancement does not apply in this

instance. Either way, Webster cannot credibly claim that any error (if error there was) was

“plain”—which is to say “obvious or clear.” United States v. Gardiner, 463 F.3d 445, 459 (6th

Cir. 2006) (quotation marks omitted). By itself, the text of the guideline favors the government.

The recently added commentary to be sure introduces a complication but one that by no means

makes the enhancement in this case obviously wrong. No plain error thus occurred.




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United States v. Webster
         The vulnerable-victim enhancement. The sentencing guidelines also provide a two-level

enhancement “[i]f the defendant knew or should have known that a victim of the offense was a

vulnerable victim.” U.S.S.G. § 3A1.1(b)(1). Before the district court, Webster argued that his

identity-theft victims were not “vulnerable.”       Webster takes a different tack on appeal.

Apparently conceding that the relevant individuals were vulnerable, he now argues that they did

not count as “victims” because they never suffered any financial loss. Because Webster never

presented this ground to the district court even after being given an opportunity to do so, we

review only for plain error. See United States v. Bostic, 371 F.3d 865, 871 (6th Cir. 2004);

Vonner, 516 F.3d at 386. That standard “equally applies to instances where the objection raised

on appeal . . . is not based upon the same grounds” raised below. United States v. Campbell,

86 F. App’x 149, 156 (6th Cir. 2004); see United States v. Evans, 883 F.2d 496, 499 (6th Cir.

1989).

         A “vulnerable victim,” the guidelines tell us, is “a victim . . . who is unusually

vulnerable” due to conditions that make him “particularly susceptible” to the defendant’s

conduct. U.S.S.G. § 3A1.1 cmt. 2. Who counts as a “victim”? At a minimum, the term covers

not only victims “of the offense of conviction” but also victims of “any conduct for which the

defendant is accountable” under the guidelines. Id. Unlike other guidelines, however, § 3A1.1

does not define “victim” as a standalone term limited to those who suffered a particular sort of

injury. Compare id., with U.S.S.G. § 2B1.1 cmts. 1 & 3(A)(i) (requiring “pecuniary harm” or

“bodily injury”). “In the absence of such a definition,” we give the term “its ordinary or natural

meaning.” FDIC v. Meyer, 510 U.S. 471, 476 (1994). Ordinary usage and legal usage in this

instance point in the same direction. In ordinary usage, a victim is someone “tricked, duped, or

subjected to hardship,” or someone “used or taken advantage of.”           Webster’s Third New



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Case No. 14-3654
United States v. Webster
International Dictionary 2550 (rev. ed. 2002). In legal usage, a victim is someone “harmed by a

crime.” Black’s Law Dictionary 1798 (10th ed. 2014). Both definitions are broad, to be sure.

But there is nothing wrong with giving broad terms a broad reading. That is especially so here

because the Sentencing Commission omitted the financial-or-physical-injury requirement

included in § 2B1.1. See Russello v. United States, 464 U.S. 16, 23 (1983).

       Consistent with this understanding of the term, the vulnerable-victim cases do not require

a specific type of injury to qualify someone as a victim, only an individualized “harm” distinct

from injury to society at large. See United States v. Moon, 513 F.3d 527, 541 (6th Cir. 2008);

see also United States v. Kennedy, 554 F.3d 415, 423–24 (3d Cir. 2009) (applying the

enhancement when the victims suffered no financial loss); United States v. Stewart, 33 F.3d 764,

770–71 (7th Cir. 1994) (same); United States v. Yount, 960 F.2d 955, 957–58 (11th Cir. 1992)

(same); United States v. Bachynsky, 949 F.2d 722, 735–36 (5th Cir. 1991) (same).

       Webster’s identity-theft victims qualify as “victims” within the meaning of

§ 3A1.1(b)(1), even if they did not suffer any (known) financial loss. People who have their

identities stolen, as we suspect any such person would agree, have been individually harmed.

Not only have they been duped and taken advantage of, but they also must correct the problem,

whether by establishing new bank accounts, obtaining new credit cards, or reissuing other

identifying information now in the possession of others. Whether or not his victims lost money,

Webster stole their personal information and used it to file fraudulent tax returns. That in itself

causes harm. Cf. Amendments to the Sentencing Guidelines, 74 Fed. Reg. 21,750, 21,751 (May

8, 2009) (stating that identity-theft victims who have been fully reimbursed have nevertheless

suffered loss—and are therefore victims—because of the significant time involved in resolving

credit problems and other related issues). The trouble associated with reclaiming identities and



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United States v. Webster
sorting out any issues with the Internal Revenue Service is all too real—a reality hardly lost on

Webster. At sentencing he told the district court he was “sure out of th[e] five hundred or so

victims, I ruined a few of their lives.” R. 38 at 19.

       United States v. Dixon, 66 F.3d 133 (6th Cir. 1995), Webster submits, requires “financial

loss” to qualify someone as a victim. Yet Dixon is not that sweeping. It rejected a vulnerable-

victim enhancement because the alleged victim suffered no injury on account of the defendant’s

offense of conviction. Id. at 135–36. That is not true here, where the offense and the individuals

protected by the statute overlap.      Since Dixon, moreover, the Sentencing Commission has

expanded this enhancement to victims “of the offense of conviction and any conduct for which

the defendant is accountable.” U.S.S.G. § 3A1.1 cmt. 2 (emphasis added). That “relevant

conduct” includes all acts committed “during . . . the offense of conviction.” Id. § 1B1.3(a)(1);

see Moon, 513 F.3d at 540. Whether Dixon remains good law in light of this new commentary

remains to be seen. But for present purposes it does not aid Webster.

       United States v. Johns, 686 F.3d 438 (7th Cir. 2012), also does not aid Webster’s cause.

It too did not issue a sweeping holding that an individual must suffer financial loss to be a

victim. As to individuals unable to access equity in their homes due to Johns’ illegal activity but

who could not have accessed that equity anyway, the court found no harm. Id. at 455, 459–60.

An identity-theft victim by contrast suffers harm, even if often non-financial harm, due at a

minimum to the difficulties associated with restoring confidential identity information.

       For these reasons, we affirm.




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