                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 09-10360                ELEVENTH CIRCUIT
                                                          AUGUST 31, 2009
                        Non-Argument Calendar
                                                         THOMAS K. KAHN
                      ________________________
                                                              CLERK

                D. C. Docket No. 08-00261-CR-T-27-TGW

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus

EDWARD MCDONALD,

                                                        Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                    _________________________

                            (August 31, 2009)



Before TJOFLAT, EDMONDSON and BLACK, Circuit Judges.

PER CURIAM:
      Edward McDonald appeals his 24-month sentence for wrongful conversion

of Social Security benefit payments, in violation of 42 U.S.C. § 408(a)(5), and

making false statements to the Social Security Administration (SSA), in violation

of 18 U.S.C. § 1001. McDonald asserts he should not have received a two-level

vulnerable-victim enhancement because the SSA was the sole victim of his crimes,

and the district court erred in determining that his elderly mother was also a victim

of his crimes.

      “The district court’s application of § 3A1.1(b) in determining whether a

‘vulnerable victim’ enhancement is warranted is a mixed question of law and fact

that we review de novo.” United States v. Frank, 247 F.3d 1257, 1259 (11th Cir.

2001). The vulnerable-victim enhancement applies if a defendant “knew or should

have known that a victim of the offense was a vulnerable victim,” U.S.S.G.

§ 3A1.1(b)(1). A “vulnerable victim” is any person “who is a victim of the offense

of conviction and any conduct for which the defendant is accountable under 1.3

(Relevant Conduct); and . . . who is unusually vulnerable due to age, physical or

mental condition, or who is otherwise particularly susceptible to criminal conduct.”

U.S.S.G. § 3A1.1, comment. (n.2).

      The district court did not err in applying the vulnerable-victim enhancement.

Undisputed facts from the PSI show McDonald received $37,502 of his mother’s



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SSA benefits, which he improperly used for his own benefit rather than to pay her

nursing home bills. His failure to pay those bills with the SSA benefit money

caused her nursing home account to become delinquent in an amount of

$219,142.67 because the nursing home was unable to bill Medicaid without first

receiving the SSA benefit payments. Thus, the record demonstrates McDonald’s

mother was a victim of his offense because she suffered monetary loss, and there is

no dispute that, as an elderly woman suffering from Alzheimer’s Disease living in

a nursing home, she was vulnerable for the purposes of § 3A1.1(b). See United

States v. Yount, 960 F.2d 955, 957 (11th Cir. 1992) (holding trust account holders

who were “very old, infirm, and no longer capable of managing their own financial

affairs” were vulnerable victims); U.S.S.G. § 3A1.1, comment. (n.2).

       Accordingly, McDonald’s assertion the SSA was the sole victim of the

offense is belied by the record. Even though the SSA was a victim of the offense,

the district court was also permitted to find his mother was a second victim. See

Yount, 960 F.2d at 957-58; (holding the victims included elderly account holders

even though “ultimately the bank was the victim”). Therefore, the district court

did not err in applying the vulnerable-victim enhancement, and we affirm.

      AFFIRMED.




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