In the
United States Court of Appeals
For the Seventh Circuit

Nos. 99-1295, 99-1297 & 99-1346

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES EDWARD BRAGG, CHANCE CALVIN GAINES
and BUDDY VERNON FRAZIER,

Defendants-Appellants.



Appeal from the United States District Court
for the Western District of Wisconsin.
No. 98-CR-38-C--Barbara B. Crabb, Judge.


Argued September 30, 1999--Decided March 21, 2000



      Before HARLINGTON WOOD, JR., COFFEY and EVANS, Circuit
Judges.

      COFFEY, Circuit Judge. On April 2, 1998,
Defendants-Appellants James Bragg ("Bragg"),
Chance Gaines ("Gaines") and Buddy Frazier
("Frazier") were charged in a sixteen-count
indictment with violations of both the Clean Air
Act and the Social Security Act./1 In October
1998, Bragg, Gaines and Frazier entered guilty
pleas to count one of the indictment pursuant to
written plea agreements in which the government
agreed to drop the remaining counts. On January
28, 1999, a joint sentencing hearing was held and
Bragg, Gaines and Frazier were sentenced to 24,
33, and 30 months’ imprisonment, respectively./2
On appeal, the defendants challenge their
sentencing adjustments for: (1) involving
vulnerable victims; (2) their aggravating roles
in the conspiracy; and (3) causing a "conscious
or reckless risk of serious bodily injury." We
AFFIRM.

I.   BACKGROUND

      For approximately 17 years, Frazier was a self-
employed labor contractor for asbestos-abatement
projects, supplying asbestos removal work crews
for projects in Alabama, Georgia, Florida,
Kentucky, Mississippi, North Carolina and
Tennessee. In their effort to carry out the
conspiracy, the defendants on two separate
occasions recruited men from a shelter for the
homeless in Chattanooga, Tennessee, known as the
"Community Kitchen."/3 The first recruitment
occurred in February 1996, when Frazier recruited
more than a dozen men, including men from the
Community Kitchen, and drove them to Memphis,
Tennessee to attend a four-day asbestos
"supervisor/contractor" training course conducted
by Professional Services, Inc. Each worker was
required to "sign in" to the course with their
name and social security number. All the workers
passed the course, including Bragg who never
attended the course but was fraudulently "signed
in" by Frazier./4 Although Professional
Services, Inc. issued the supervisor training
course certificates (19 in all) in the name and
social security number of each worker who "signed
in," none of the men received their certificates;
they were sent to and retained by Frazier.

      In August 1996, Frazier was hired as an
asbestos-abatement subcontractor to supply
asbestos removal labor and supervision at the
Weyerhaeuser plant in Marshfield, Wisconsin.
Frazier in turn hired his nephew Bragg and his
friend Gaines to help supervise the removal work.
At Frazier’s direction, Gaines drove
approximately 8 workers from Tennessee to
Madison, Wisconsin, and joined Frazier and Bragg
to apply for asbestos-abatement supervisor
identification cards at the Wisconsin Department
of Health and Family Services. Except for Frazier
and only one of the workers, Terry Cameron, none
of the workers attended the Memphis training
course or received any formal training in
asbestos removal. Nevertheless, to secure the
supervisor identification cards, the defendants
fraudulently submitted the Memphis training
course certificates as proof of their crew’s
training as asbestos-abatement supervisors./5

      Defendants recruited men from the Community
Kitchen on a second occasion on approximately
September 19, 1996. Needing more men for the
Weyerhaeuser project, Bragg returned to Tennessee
and recruited another crew of workers. At
Frazier’s direction, Bragg went to the Community
Kitchen and recruited approximately a dozen new
laborers. Although none of these men had any
formal training or certification in asbestos-
abatement work, Bragg drove these untrained
recruits some 800 miles to Marshfield, Wisconsin,
in the bed of an uncovered pickup truck. After
checking this crew into hotel rooms, they were
transported to the job site and immediately put
to work removing asbestos.

      The Weyerhaeuser plant in Marshfield, Wisconsin
contained substantial amounts of "regulated
asbestos-containing material,"/6 including
approximately 7,967 feet of pipe asbestos
insulation and 958 square feet of "mag block"
asbestos insulation. Under the Clean Air Act, any
"owner or operator of a renovation or demolition
activity" who removes a specified minimal
amount/7 of "regulated asbestos-containing
material," must comply with numerous
requirements, including: (1) the "asbestos-
containing material" must be "adequately wet"
during stripping, cutting or removal operations;
(2) the "asbestos-containing material" must be
carefully lowered to the floor or ground and not
dropped, thrown, slid, or otherwise damaged; (3)
the "asbestos-containing material" must be sealed
in leak tight containers while wet; and (4) the
"asbestos-containing material" may not be
removed, disturbed, or otherwise handled unless
a foreman or management-level person who has been
trained in the means of complying with the
applicable standards is present on-site./8 In
general, applicable federal regulations/9 also
require that any asbestos removed be secured with
"glove bags"/10 or performed within a
"negative pressure enclosure."/11

      Relying on statements taken from the workers
and a subsequent investigation conducted by both
state and federal officials, it was revealed that
the defendants’ asbestos removal operation failed
to comply with any of the regulations relating to
"negative pressure enclosures," glove bagging and
the "wetting" down of the asbestos prior to
removal. In fact, the homeless workers were
directed to "just get the asbestos material out
fast" and instructed to break the dry asbestos
off in chunks and then drop it into bags or let
it fall onto the plastic spread out over the
floor; again, all performed without sufficient
water to properly moisten the asbestos and often
at night by flashlight./12 The investigation
also revealed that a homeless worker recalled
seeing asbestos "particles floating in the air."

      The defendants’ asbestos removal project fell on
hard times when the homeless men began to
complain about working long shifts, not being
paid and poor living conditions. Dependant on
Frazier for food and housing, many of the men
visited the local St. Vincent DePaul Society to
supplement the inadequate meals Frazier provided,
while others walked off the job and went so far
as to sleep on the streets. On September 26,
1996, the Marshfield Police questioned a man
sleeping on the streets and observed that he was
carrying identification indicating that he worked
at the Weyerhaeuser site. Another worker
contacted the police to complain about the
working conditions and supplied information
concerning the fact that they were not only
given, but instructed as well to use the false
identification cards. Around the same time that
these problems were arising, Gaines drove five of
the homeless men to the Wisconsin Department of
Health and Family Services in Madison, Wisconsin
on September 27, 1996, where, as before, he
submitted fraudulent applications for
identification cards using the Memphis training
certificates./13

      In an effort to determine if there was any
validity to the various complaints, on October 1,
1996, Wisconsin state officials commenced an
unannounced inspection of the Weyerhaeuser site
and observed numerous violations of state
regulations and federal Clean Air Act regulations
dealing with asbestos removal, including, but not
limited to, substantial amounts of dry friable
asbestos, and the throwing of asbestos debris
bags out of second floor windows to the ground.
Once their misconduct was discovered, the
defendants immediately left the Weyerhaeuser site
and drove as many members of their crews as they
could accommodate back to Tennessee, leaving the
remaining homeless workers stranded in
Marshfield, Wisconsin.

      Defendants Bragg, Gaines and Frazier were
arrested thereafter on different dates in April
1998, near Chattanooga, Tennessee, and, as
previously mentioned, pled guilty to count one of
the indictment in which they were charged with
conspiring to violate the Clean Air Act as well
as the Social Security Act. At sentencing, the
judge ordered upward adjustments for their Clean
Air Act offenses as follows: two levels for each
of the defendants because under United States
Sentencing Commission, Guidelines Manual, sec.
3A1.1(b) (Nov. 1998), the offense involved
vulnerable victims; four levels for Frazier under
U.S.S.G. sec. 3B1.1(a), for his leadership role
in the conspiracy as the "organizer or leader" of
a criminal activity involving five or more
persons; and only three levels for Gaines and
Bragg under U.S.S.G. sec. 3B1.1(b), as they were
determined to be merely "managers or supervisors"
of a criminal activity. With respect to the
penalties imposed for their Social Security Act
offenses, the judge adjusted each Defendant’s
offense level by seven under U.S.S.G. sec.
2F1.1(b)(6)(a), after finding that the offense
involved "the conscious or reckless risk of
serious bodily injury."/14

II.   ISSUES

      On appeal, the defendants do not challenge
their plea agreements or the designation of their
base offense levels; they only challenge the
previously mentioned upward adjustments for:
involving "unusually vulnerable" victims; their
aggravating role in the crimes; and involving
"the conscious or reckless risk of serious bodily
injury."

III.   DISCUSSION

A.   Vulnerable Victim

      The defendants initially challenge the district
court’s two point vulnerable victim adjustments
by arguing that: (1) the government failed to
demonstrate specific evidence of the homeless
workers’ unusual vulnerability; (2) economic
status can never be grounds for vulnerability;
and (3) the government failed to establish that
the "victims were targeted on account of their
vulnerability."/15 We review de novo a
district court’s application of a sentencing
guideline but defer to its findings of fact
unless they are clearly erroneous. See United
States v. Castellanos, 165 F.3d 1129, 1131 (7th
Cir. 1999). "To the extent the sentencing
decision involves questions of fact, we will not
disturb the district court’s findings unless we
have a definite and firm conviction that a
mistake has been made." United States v.
Brierton, 165 F.3d 1133, 1137 (7th Cir. 1999). A
sentencing judge’s factual findings that a
defendant preyed on "unusually vulnerable"
victims is reviewed for clear error. See United
States v. Snyder, 189 F.3d 640, 649 (7th Cir.
1999), cert. denied, 120 S. Ct. 839 (2000).

      Under U.S.S.G. sec. 3A1.1(b)(1), the sentencing
judge must enhance a defendant’s sentence by two
levels if "the defendant knew or should have
known that a victim of the offense was a
vulnerable victim." The accompanying application
note explains that this adjustment

applies to offenses involving an unusually
vulnerable victim in which the defendant knows or
should have known of the victim’s unusual
vulnerability. The adjustment would apply, for
example, in a fraud case in which the defendant
marketed an ineffective cancer cure or in a
robbery case in which the defendant selected a
handicapped victim.

U.S.S.G. sec. 3A1.1, cmt. (n.2) (emphasis added).

      In this case, the district court found that the
workers recruited from the Tennessee homeless
shelter were particularly susceptible due to
their poverty, homelessness and other factors
that led them to spend time at the shelter,
including the possibility that they were seeking
"help with their alcohol problems or drug
problems, for literacy training, for help with
psychiatric problems, [and] for help with just
learning how to get a job." The judge further
found that the fact that Gaines traveled more
than 800 miles from Wisconsin to Tennessee to
recruit the homeless men from the Community
Kitchen strongly suggests that they were selected
due to their vulnerability. In making her
conclusions, the sentencing judge relied upon
various evidence, including: a report from the
assistant director of the Community Kitchen;
evidence and statements made in relation to the
defendants’ recruitment of the workers; and a
report from the director of services for the St.
Vincent DePaul Society outreach facility,
describing how the homeless workers visited the
facility seeking food, clothing and other basic
services. The judge thus concluded,

I am persuaded that the defendants in this case
did target vulnerable victims when they went to
a homeless shelter and recruited people that they
could talk into coming up to Wisconsin. People
they had good reason to suspect were not well-
connected, would not complain about conditions
that any other worker would complain about, who
were absolutely destitute, who might very well
have drug, alcohol and psychiatric problems and
would be even less in a position to show any sign
of resistance to the conditions to which they
were going to be subject[ed].

In light of the sentencing judge’s well supported
factual findings and the deference we necessarily
afford them, we are of the opinion that the
court’s finding of "unusual vulnerability" was
based on sufficiently specific evidence./16

      Additionally, the defendants’ argue that
"economic status can never be grounds for
vulnerability" and furthermore that the
government was required to establish that they
targeted the victims due to their vulnerability.
In essence, the defendants attack the court’s
findings for equating the homeless workers’
unemployment with "unusual vulnerability." The
court’s findings, however, relied on many factors
other than unemployment, including the fact that
the homeless men were "absolutely destitute" and
might very well have had literacy, "drug, alcohol
and psychiatric problems and would be even less
in a position to show any sign of resistance to
the conditions" that they faced. Indeed, the
defendants do not dispute that they specifically
recruited these untrained workers from a homeless
shelter, and acted unlawfully when exposing them
to uncapsulated asbestos particles and failed to
provide them with adequate asbestos removal
training or materials to contain the asbestos.

      Further, though we believe the facts clearly
establish "targeting,"/17 we wish to make
clear that the government is not required to show
that the defendants targeted the victims on
account of their vulnerability. As we ruled in
Snyder, 189 F.3d at 649, pursuant to the
Sentencing Commission’s November 1, 1995
amendments to the Sentencing Guidelines, there no
longer is a requirement that the sentencing judge
find that a defendant specifically targeted a
victims’ vulnerability under section 3A1.1.
Defendants even acknowledge in their brief that
the application notes to section 3A1.1 were
amended in 1995, specifically removing any
"target[ing]" requirement. Indeed,

[t]he ’vulnerable victim’ sentencing [adjustment]
is intended to reflect the fact that some
potential crime victims have a lower than average
ability to protect themselves from the criminal.
Because criminals incur reduced risks and costs
in victimizing such people, a higher than average
punishment is necessary to deter the crimes
against them.

United States v. Grimes, 173 F.3d 634, 637 (7th
Cir. 1999). Taking into consideration these
reasons as well as incorporating the sentencing
judge’s findings of fact, we reject the
defendants’ arguments and conclude that the
judge’s vulnerable victim adjustments were not
clearly erroneous.

B.   Aggravating Roles

      The defendants do not challenge the court’s
factual findings relating to their respective
leadership and supervisory roles in the criminal
violations; instead, they argue that their
aggravating criminal conduct was double counted
when it was used both to justify a sentencing
adjustment and to attach criminal liability in
the underlying conspiracy to violate the Clean
Air Act. This presents a legal question regarding
the meaning and application of the Guidelines and
hence triggers de novo review. See United States
v. Hach, 162 F.3d 937, 949 (7th Cir. 1998), cert.
denied, 119 S. Ct. 1586 (1999); Castellanos, 165
F.3d at 1131.

      The bar on double counting "comes into play
only if the [underlying] offense itself
necessarily includes the same conduct as the
[adjustment]." See United States v. Senn, 129
F.3d 886, 897 (7th Cir. 1997) (emphasis in
original). Liability under the Clean Air Act
attaches to an "owner or operator" of pollution,
defined as "any person who owns, leases,
operates, controls, or supervises the facility
being demolished or renovated or any person who
owns, leases, operates, controls, or supervises
the demolition renovation operation." 40 C.F.R.
sec. 61.141. Conversely, in order for one to be
classified as a "leader" or "supervisor" for
purposes of an aggravating role sentencing
adjustment under U.S.S.G. sec. 3B1.1, a defendant
must have been the "organizer, leader, manager,
or supervisor of one or more other participants."
U.S.S.G. sec. 3B1.1, cmt. (n.2)./18
Application Note Four illustrates the type of
leadership and supervision the adjustment
addresses:

In distinguishing a leadership and organizational
role from one of mere management or supervision,
titles such as "kingpin" or "boss" are not
controlling. Factors the court should consider
include the exercise of decision making
authority, the nature of participation in the
commission of the offense, the recruitment of
accomplices, the claimed right to a larger share
of the fruits of the crime, the degree of
participation in planning or organizing the
offense, the nature and scope of the illegal
activity, and the degree of control and authority
exercised over others. There can, of course, be
more than one person who qualifies as a leader or
organizer of a criminal association or
conspiracy. This adjustment does not apply to a
defendant who merely suggests committing the
offense.

U.S.S.G. sec. 3B1.1, cmt. (n.4).

      A plain reading of the regulations relating to
criminal liability under the Clean Air Act and
the aggravating role adjustment guideline reveals
significant differences. The sentencing
adjustment does not automatically attach upon a
showing of Clean Air Act liability; hence, the
adjustment disregards mere "titles" and attaches
to conduct far more culpable than merely being an
"owner or operator." In other words, the
aggravating role adjustment addresses a
defendant’s actual level of management and
responsibility "over the property, assets, or
activities of a criminal organization." U.S.S.G.
sec. 3B1.1, cmt. (n.2). Moreover, the aggravating
role adjustment considers a multitude of factors
that are not contemplated by the defendants’
underlying conspiracy to violate the Clean Air
Act, including the recruitment of accomplices,
the degree of planning or organizing, the nature
and scope of the crime and the degree of control
and authority exercised by the defendants. See
U.S.S.G. sec. 3B1.1, cmt. (n.4). Accordingly, an
individual who may be criminally liable as an
"owner or operator" of pollution under the Clean
Air Act, is not necessarily subject to the
aggravating role adjustment; the "owner or
operator" must independently qualify for the
adjustment with conduct that is more culpable and
involves a greater "exercise of management
responsibility" than is required for mere Clean
Air Act liability. Thus, because an owner or
operator’s criminal liability under the Clean Air
Act would not necessarily result in a sentencing
adjustment for his or her aggravating role, we
reject the defendants’ "double counting"
challenge and conclude that their sentences were
properly enhanced for their respective leadership
and supervisory roles in the conspiracy. See also
United States v. Lanzotti, Nos. 98-2728, 98-2750,
2000 WL 157484, at *4-5 (7th Cir. Feb. 15, 2000)
(rejecting a challenge that the sentencing judge
"double counted" when it used the same conduct to
establish a conspiracy offense and to justify an
obstruction of justice adjustment); Senn, 129
F.3d at 897 (rejecting a double counting
challenge to the captain/navigator smuggler
adjustment because the "bar on double counting
comes into play only if the offense itself
necessarily includes the same conduct as the
[adjustment]" (emphasis in original)).

C. Conscious or Reckless Risk of Serious Bodily
Injury

      Under U.S.S.G. sec. 3D1.2, the sentencing judge
grouped the Clean Air Act and Social Security Act
offenses because they arose from acts that were
closely related as "one whole crime" and involved
the same victims (the homeless workers). Hence,
pursuant to sec. 3D1.3(a), the court sentenced
each defendant under the higher Clean Air Act
offense levels. Because the trial court sentenced
the defendants under the Clean Air Act offense
levels, "the conscious or reckless risk of
serious bodily injury" adjustments to the
defendants’ Social Security Act offense levels
were not used to calculate their sentences.
Accordingly, in light of our above conclusion
that the defendants were properly sentenced under
their respective Clean Air Act resulting offense
levels, there is no need to address their
challenge to the Social Security Act offense
adjustments because it could not possibly affect
their sentences. See e.g., United States v.
Howard, 179 F.3d 539, 545 (7th Cir. 1999); United
States v. Dillon, 905 F.2d 1034, 1037-38 (7th
Cir. 1990).

CONCLUSION

      We hold that the district court did not commit
clear error when it enhanced the defendants’
offense levels based upon vulnerable victims. We
also conclude that the sentencing judge properly
enhanced the respective defendants’ sentences for
their aggravating roles in the crime and
correctly calculated their resulting offense
levels. The defendants’ sentences are AFFIRMED.



/1 Count one charged the defendants with engaging in
a dual-object conspiracy to: (1) knowingly remove
asbestos in violation of the Clean Air Act; and
(2) fraudulently use social security account
numbers to obtain false identification cards for
asbestos workers in violation of the Social
Security Act. Counts two and three charged
Defendants with substantive violations of the
Clean Air Act. Counts four through sixteen
consisted of thirteen substantive counts
concerning the fraudulent use of social security
numbers.

/2 The United States filed a motion under Federal
Rule of Criminal Procedure 35(b) to reduce
Gaines’s sentence based on his "substantial
assistance" in an unrelated criminal proceeding.
On April 7, 1999, the judge resentenced Gaines to
23 months’ imprisonment.

/3 The Community Kitchen is a church-run
nondenominational "day" shelter, "dedicated to
the prevention, education, and intervention of
homelessness and hunger." Among other things, the
Community Kitchen provides meals, clothing,
showers, referrals to overnight shelters,
literacy training, job postings and health care
for the needy in the Chattanooga area. Included
in its health care services, the Community
Kitchen also provides treatment for substance
abuse and mental health problems.

/4 It appears from the record that the workers were
required to study written course material. For
reasons unexplained, even though some of the men
could neither read nor write, they too passed the
course and were considered qualified to
participate in the removal of asbestos from
buildings and homes.

/5 The Wisconsin Department of Health and Family
Services issued the supervisor identification
cards to the names and social security numbers
referred to on the Memphis supervisor training
course certificates. Thus, the defendants
instructed the workers to memorize and assume the
names and social security numbers indicated on
the training certificates and their ID cards in
case they were confronted on the job site.

/6 "Regulated asbestos-containing material" includes
any material containing more than one percent of
asbestos that is "friable," that is, "when dry,
can be crumbled, pulverized, or reduced to powder
by hand pressure."
/7 The regulations apply to demolition or renovation
operations that involve at least 260 linear feet
or 160 square feet of "regulated asbestos-
containing material."

/8 See generally 40 C.F.R. sec. 61.140, et seq.

/9 See generally 29 C.F.R. sec.sec. 1910.1001,
1926.1101; 59 Fed. Reg. 40964 (1994).

/10 A glove bag is "a 60 x 60 inch impervious plastic
bag-like enclosure affixed around an
asbestos-containing material, with glove-like
appendages through which material and tools may
be handled." During glove bagging, a small water
bottle is typically inserted and sealed inside
the glove bag to moisten the asbestos prior to
removal, as is done, for example, when removing
the asbestos insulation covering a hot water
pipe.

/11 A "negative pressure enclosure" is made of
impermeable plastic that seals off the outside
air around the area where workers are removing
asbestos insulation. The enclosure can be of any
configuration, but must have less air pressure
than outside, as well as a high efficiency air
filter ("HEPA" filter) that removes any asbestos
particles from the air.

/12 In fact, according to Gaines, water was largely
unavailable to wet down the asbestos, or to wash
the asbestos fibers off the workers in the
"decontamination" shower enclosures because the
water pressure from the six inch water line was
too high. The Presentence Investigation Report
makes note of the fact that the defendants "did
not want to spend the money to reduce the water
pressure."

/13 It is unclear from the record whether on this
occasion Gaines applied for asbestos supervisor
identification cards or worker identification
cards.

/14 The sentencing judge, however, sentenced the
defendants only under their Clean Air Act crimes
because it resulted in a higher offense level for
each defendant. See U.S.S.G. sec. 3D1.3(a)
(requiring that sentencing be according to the
"the highest offense level of the counts in the
Group").

/15 A "vulnerable victim" is "a person . . . 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. sec. 3A1.1, cmt. (n.2).

/16 Moreover, in light of the considerable evidence
that demonstrated that the homeless workers had
many more problems than just homelessness,
including financial, literacy, drug and
psychiatric problems, the defendants’ claim that
some of the workers were not in fact "homeless"
is immaterial. The vulnerable victim adjustment
does not require any more exacting findings of
"unusual vulnerability" than were made here by
the sentencing judge. See, e.g., United States v.
Grimes, 173 F.3d 634, 637 (7th Cir. 1999)
(relying on the inference that only very
unsophisticated persons would fall victim to the
defendant’s fraud scheme in support of a
vulnerable victim adjustment).

/17 Under the November 1, 1994 version of the
Sentencing Guidelines, "targeting" occurs when a
victim who is "unusually vulnerable due to age,
physical or mental condition or . . . otherwise
particularly susceptible to the criminal
conduct," sec. 3A1.1 (Nov. 1994), "is made a
target of criminal activity by the defendant."
sec. 3A1.1, cmt. (n.1) (Nov. 1994).

/18 A "participant" is defined as another person "who
is criminally responsible for the commission of
the offense." U.S.S.G. sec. 3B1.1, cmt. (n.1).
