                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                          SEPTEMBER 22, 2005
                              No. 05-11316                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                     D. C. Docket No. 04-00200-CR-WS

UNITED STATES OF AMERICA,


                                                         Plaintiff-Appellee,

                                   versus

THOMAS JOSEPH HEBERT,

                                                         Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Southern District of Alabama
                       _________________________

                            (September 22, 2005)

Before BIRCH, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

     Thomas Joseph Hebert appeals his 12-month sentence imposed after he pled
guilty to wire fraud, in violation of 18 U.S.C. § 1343. On appeal, Hebert argues

that the district court erred in applying a vulnerable victim enhancement to his

sentence pursuant to U.S. Sentencing Guidelines Manual § 3A1.1(b)(1) (2004).

      Hebert, impersonating a prison guard, called the victim, whose son was

incarcerated, and informed her that her son was in trouble. He warned that if she

did not send him money, her son was in danger of further criminal charges or

assault by prisoners or guards. Hebert made several more calls to the victim,

requesting that she send money.

      The district court determined that Hebert selected a vulnerable victim and

assessed a two level-enhancement pursuant to U.S. Sentencing Guidelines Manual

§ 3A1.1(b)(1). The district court noted that Hebert had preyed on a “special

relationship” that he knew existed between Smith and her son, based on Hebert’s

prior contact with her. Hebert’s conduct exacerbated the stressful situation created

by the imprisonment of Smith’s son, especially since Hebert relied on veiled

threats against him and promises of early release. Hebert contends that the mere

fact that the victim’s son was imprisoned did not increase her susceptibility to

fraud. Further, Hebert argues that the issue of whether he selected the victim due

to a perceived vulnerability is controlling, and because parents of prison inmates as

a class are not unusually vulnerable to fraud schemes, the district court should not



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have enhanced his sentence on the “vulnerable victim” basis.

      “The district court’s application of section 3A1.1 presents a mixed question

of law and fact, which we review de novo. The district court’s determination of a

victim’s ‘vulnerability’ is, however, essentially a factual finding to which we give

due deference.” United States v. Arguedas, 86 F.3d 1054, 1057 (11th Cir. 1996)

(internal citations omitted).

      U.S. Sentencing Guidelines Manual § 3A1.1(b)(1) allows a sentencing court

to increase a defendant’s base offense level by two levels “[i]f the defendant knew

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

“vulnerable victim” is “a person (A) who is a victim of the offense of conviction . .

. and (B) who is unusually vulnerable due to age, physical or mental condition, or

who is otherwise particularly susceptible to the criminal conduct.” U.S.S.G. §

3A1.1, cmt. n.1 (2004). The adjustment applies only if “the defendant selects his

victim due to the defendant’s perception of the victim’s vulnerability to the

offense.” Arguedas, 86 F.3d at 1058.

      “In construing the ‘otherwise particularly susceptible’ language in section

3A1.1, we have held that circumstances, as well as immutable characteristics, can

render a victim of criminal activity unusually vulnerable.” United States v. Davis,

967 F.2d 516, 523 (11th Cir. 1992). Although we have never addressed this


                                          3
particular situation, we have upheld vulnerable victim enhancements where: (1) the

defendant extorted money from the father of a missing child, promising to reveal

the location of the child, United States v. Villali, 926 F.2d 999, 1000 (11th Cir.

1991) (per curiam); (2) the defendant, a bank officer, embezzled money from the

trust accounts of elderly persons, United States v. Yount, 960 F.2d 955, 957-58

(11th Cir. 1992); (3) the defendant in a loan fraud scheme targeted consumers with

bad credit, United States v. Page, 69 F.3d 482, 490-91 (11th Cir. 1995); (4) the

defendant, a former local police chief, robbed a rural bank when he knew that

police would not be in the area, United States v. Phillips, 287 F.3d 1053, 1056-58

(11th Cir. 2002); (5) the defendant provided narcotics to minor victim, whom the

defendant knew suffered from a drug addiction, United States v. Amedeo, 370 F.3d

1305, 1318-19 (11th Cir. 2004); (6) the defendant, based upon a personal

relationship with victim, knew of victim’s troubled financial situation, Arguedas,

86 F.3d at 1057-58; and (7) the defendant in a car jacking case knew that the

victim, a cab driver, had a duty to respond to all dispatches and would have to pick

him up, United States v. Frank, 247 F.3d 1257, 1259-60 (11th Cir. 2001).

      The circumstances in the present case are not significantly different from

these prior instances involving the exploitation of a vulnerable victim. Here,

Hebert exploited, for personal gain, a parent’s concern for a child that was in


                                           4
danger. He relied on personal knowledge of the victim, acquired through an

existing relationship with her, in targeting her and committing the crime. Based on

our prior precedent, we find that the district court did not err in applying the

vulnerable victim enhancement to Hebert’s sentence. Accordingly, we affirm his

sentence.

      AFFIRMED.




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