                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                                 JUL 23 1998
                                   TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                          No. 97-5219
        v.                                                 (N.D. Oklahoma)
 WILMA FAY COFFMAN,                                    (D.C. No. 96-CR-38-1-B)

               Defendant - Appellant.




                             ORDER AND JUDGMENT *


Before PORFILIO, KELLY, and HENRY, Circuit Judges.




       Wilma Fay Coffman appeals her sentence, challenging the district court’s

imposition of a two-level increase in the offense level under § 3A1.1(b) of the

United States Sentence Guidelines (USSG) and its determination of the amount

of the intended loss under USSG § 2F1.1 After examining the briefs and

appellate record, this panel has determined unanimously that oral argument would


        * This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.

                                             1
not assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.

R. 34.1.9. We order the case submitted without oral argument, exercise

jurisdiction under 28 U.S.C. § 1291, and affirm.



                                 BACKGROUND

      Ms. Coffman pleaded guilty to one count of telemarketing fraud in

violation of 18 U.S.C. §§ 2(b) and 1341. According to the indictment, between

May and August 1995, Ms. Coffman operated a fraudulent telemarketing business

in Tulsa, Oklahoma known as “National Fundraisers Organization” and “National

Finders Corp.” 1 As part of the fraudulent scheme, Ms. Coffman and her

associates made telephone calls to individuals whom they knew or had reason to

believe had lost money through other fraudulent telemarketing schemes. The

indictment alleged that Ms. Coffman and her associates made one or more of the

following false representations: (1) that NFO was in the business of recovering

money for the victims of telemarketing fraud; (2) that NFO could quickly recover

these funds upon the payment of a fee; (3) that NFO would send the victims the

money that they had lost if they would first send NFO a fee between $100 and

$5,000; (4) that NFO was in the fundraising business and that the money it

received would be used to benefit a children’s charity; (5) that the victim had


      1
             We refer to these entities collectively as “NFO.”

                                          2
won a sum of money but had to pay a fee to NFO before he or she could receive

it See Rec. vol. I, doc. 1, at 2.

      The presentence report concluded that Ms. Coffman had engaged in similar

telemarketing schemes in Louisiana and Mississippi. Ms. Coffman objected to

several sections of the report, and, after conducting an evidentiary hearing, the

district court sentenced her to a term of sixty months’ imprisonment. The court

ordered Ms. Coffman’s sentence to run concurrently with a Mississippi state

court sentence for operating a similarly fraudulent telemarketing scheme.

      Ms. Coffman then appealed her sentence. This court affirmed the district

court’s decision in part and remanded the case for resentencing, concluding that

the district court had failed to make the required written findings on Ms

Coffman’s objections to the presentencing report. See United States v. Coffman,

No. 96-5245, 1997 WL 616070 (10th Cir. Oct. 7, 1997).

      On remand, the district court issued written findings on Ms. Coffmans’s

objections. See Rec. vol. I, doc. 32. It then reimposed the sixty-month sentence

and again concluded that Ms. Coffman’s Mississippi sentence should be credited

against the federal sentence.

      Ms. Coffman now challenges the district court’s reimposition of the sixty-

month sentence on two grounds. First, she argues that the district court erred in

imposing a two-level increase in the offense level pursuant to USSG § 3A1.1(b)


                                          3
because it did not make particularized findings that individual victims were

“unusually vulnerable” or “particularly susceptible” to her fraudulent

telemarketing scheme. Second, she maintains that the district court erred in

concluding that the amount of intended loss from Ms. Coffman’s fraudulent

scheme exceeded $800,000 such that an eleven-point increase in the offense level

was warranted under USSG § 2F1.1(b)(1)(2).



                                  DISCUSSION

      We review the district court’s factual findings underlying a sentencing

determination for clear error. United States v. Hardesty, 105 F.3d 558, 559 (10th

Cir. 1997). A district court’s interpretation of Guideline provisions raises a

legal question that we review de novo. United States v. Frazier, 53 F.3d 1105,

1111 (10th Cir. 1995).


                      Absence of Findings of Vulnerability
                     and Susceptibility of Individual Victims


      Ms. Coffman first argues that the district court erred in applying §

3A1.1(b), which provides for a two-level upward adjustment in the offense level

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

unusually vulnerable due to age, physical or mental condition or that a victim was

otherwise particularly susceptible to the criminal conduct.” USSG § 3A1.1(b).

                                         4
According to Ms. Coffman, the district court erred in considering the victims as a

group rather than assessing their vulnerability and susceptibility individually.

      In United States v. Lee, 973 F.2d 832, 834 (10th Cir. 1992), this circuit

concluded that § 3A1.1(b) requires “that the sentencing court make particularized

findings of vulnerability.” We held that an enhancement could not be based

solely on “the victims’ membership in the class of ‘elderly persons.’” Id. In that

context, we also stated that “[w]ithout more, class membership cannot support a

two point enhancement under section 3A1.1.” Id.

      In a subsequent decision, however, we acknowledged that there are some

instances in which the victims, as a class, possess certain characteristics such that

“there can be little doubt about the unusual vulnerability of class members within

the meaning of section 3A1.1.” United States v. Tissnolthtos, 115 F.3d 759, 762

(10th Cir. 1997) (quoting United States v. Gill, 99 F.3d 484, 487 (1st Cir. 1997)).

That observation is supported by the commentary accompanying § 3A1.1 and by

the decisions of other circuits.

      In particular, as the Fifth Circuit has noted, the commentary to § 3A1.1

states that the vulnerable victim enhancement would apply “‘in a fraud case

where the defendant marketed an ineffective cancer cure.’” United States v.

Brown, 7 F.3d 1158, 1161 (5th Cir. 1993) (quoting USSG § 3A1.1 cmt.1.) This

example does not require that “any individual victim purchasing such a cure must


                                          5
be unusually vulnerable beyond the fact that he has cancer and is seeking a cure.”

Brown, 7 F.3d at 1161 n. 3. The commentary “deem[s] cancer patients, as a

group, to be unusually vulnerable vis a vis the general public to snake oil

salesmen promising cancer cures.” Id.

      Other circuits have applied similar reasoning, concluding that certain

groups may be particularly vulnerable or susceptible to criminal conduct. See

generally Gill, 99 F.3d at 487 (noting that “[n]umerous cases have upheld upward

adjustments [under § 3A1.1] based on group determinations”). For example, in

United States v. Page, 69 F.3d 482, 489 (11th Cir. 1995), the court concluded,

without discussing their individual circumstances, that victims with bad credit or

otherwise “in a precarious financial situation” were unusually vulnerable to a

fraudulent loan scheme. Similarly, in United States v. O’Brien, 50 F.3d 751, 756

(9th Cir. 1995), the court upheld a class-wide determination that individuals with

serious medical problems who had difficulties obtaining insurance were

particularly vulnerable to insurance fraud. In Gill, the court held that a

sentencing judge could reasonably conclude that, as a group, “patients at a

community mental health center are commonly under significant emotional

stress” such that they constituted vulnerable victims under § 3A1.1. Gill, 99 F.3d

at 487; see also United States v. Holmes, 60 F.3d 1134, 1137 (4th Cir. 1995) (“It

is manifest that persons with poor credit ratings who have been turned down


                                          6
elsewhere for loans would be unusually vulnerable, that is. more prone than most

to yield to the melodious beseeching of a charlatan who assures them that their

dreams are within their grasp.”).

      In the instant case, a review of the district court’s findings on remand

indicates that although it did not discuss the vulnerability or susceptibility of

individual victims, it did explain why the victims, as a group, were unusually

vulnerable and particularly susceptible to the fraudulent scheme:

                    The Probation Officer was advised by [two of the
             codefendants] that [Ms.Coffman] sought out and purchased lists of
             previous telemarketing victims to solicit funds for the operation of
             her fraudulent scheme. [Ms. Coffman] stated to her employees that
             the listed victims were “easy money” because they had all previously
             been victimized by telemarketing fraud and [that] the telephone
             solicitor’s job should be easier when manipulating the previous
             victim to send money.
                    Under USSG § 3A1.1, [Ms. Coffman] knew or should have
             known that the subject victim was otherwise particularly susceptible
             to criminal conduct. Additionally, part of the telemarketing fraud
             conducted by [Ms. Coffman] involved offering past telemarketing
             victims recovery of past losses, of which they had been victimized,
             for a fee. [Ms. Coffman] chose these particular victims because they
             were usually receptive and vulnerable to the fraud scheme[,] as they
             were eager to recover their losses.

Rec. vol. I, doc., 32 at 6-7 (District Court Order filed November 14, 1997).

      In our view, the victims in the instant case resemble those in Page,

O’Brien, Gill, and similar cases. As in those cases, the record establishes that

because of a common experience (i.e. having lost money to an entity managed by

Ms. Coffman and her associates) a group of victims shared the same vulnerability

                                           7
and susceptibility. Ms. Coffman exploited that vulnerability and susceptibility by

promising the victims that she would recover their money for them. In light of

the victims’ shared vulnerability and susceptibility, which facilitated the

fraudulent telemarketing scheme, the district court did not err in imposing the

two-level upward adjustment without making findings of vulnerability as to each

individual victim. 2



                                B. Amount of Loss

      Ms. Coffman also argues that the district court erred in imposing an

eleven-point upward adjustment in the offense level because the intended loss of



      2
             Ms. Coffman also suggests that the district court should have
required the government to prove that she made unusually vulnerable victims a
“target” of her fraudulent scheme. Her argument is based on pre-November 1995
commentary to § 3A1.1, which stated that the vulnerable victim adjustment
“applies to offenses where an unusually vulnerable victim is made a target of
criminal activity by the defendant.” U.S.S.G. § 3A1.1 cmt.1 (1994). That
commentary was deleted in November 1995. See United States v. Hardesty, 105
F.3d 558, 560-61 (10th Cir. 1997).
             In our view, this commentary to § 3A1.1 is not applicable here.
Commentary to the Guidelines is not authoritative if it is “inconsistent with the
guideline which it seeks to explain or is a plainly erroneous reading of the
guideline itself.” Id. at 560. This circuit has concluded that the pre-1995
commentary regarding the targeting of vulnerable victims is “at odds” with §
3A1.1 and should not be applied. Id. In any event, even if the targeting
language were applicable to this case, the evidence presented by the government
regarding Ms. Coffman’s selection of victims who had previously lost money in
telemarketing schemes establishes that she made vulnerable and susceptible
victims a target of her criminal conduct.

                                          8
her fraudulent telemarketing scheme exceeded $800,000. We review the district

court’s factual determination of the amount of loss for clear error. United States

v. Fox, 999 F.2d 483, 485 (10th Cir. 1993).

             In determining the amount of intended loss, the district court relied

on evidence as to fraudulent telemarketing schemes operated by Ms. Coffman in

Louisiana and Mississippi. The court cited testimony given by a probation

officer at sentencing regarding Ms. Coffman’s Louisiana scheme. The probation

officer reported that Louisiana law enforcement officials had told him that “at

least 941 victims were defrauded of $890,229.13 by [Ms. Coffman’s] operation.”

Rec. vol. I, doc. 32, at 3. The probation officer also stated that Ms. Coffman had

defrauded victims in Mississippi of an additional $94,399.04. In addition,

according to the probation officer, one of Ms. Coffman’s codefendants estimated

that her fraudulent schemes caused several hundred victims to lose at least

$1,000,000. See id. at 5. Another codefendant estimated those losses to be at

least $1,500,000. See id.

      In this appeal, Ms. Coffman argues that the district court should have

based its decision on the evidence that she presented that the intended loss from

her schemes was much less than $800,000. We are not persuaded. Although the

evidence was conflicting, it was not clearly erroneous for the district court to rely

on the probation officer’s testimony about the amount of the intended loss rather


                                          9
than on the evidence offered by Ms. Coffman.



                                 CONCLUSION

      Accordingly, for the reasons set forth above, the decision of the district

court is affirmed.

                                       ENTERED FOR THE COURT



                                       Robert Henry
                                       Circuit Judge




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