                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________           FILED
                                                   U.S. COURT OF APPEALS
                                No. 10-15891         ELEVENTH CIRCUIT
                            Non-Argument Calendar    SEPTEMBER 23, 2011
                          ________________________        JOHN LEY
                                                           CLERK
                  D.C. Docket No. 6:09-cr-00217-ACC-DAB-1

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                     versus

MICHAEL KENNEDY,

                                                            Defendant-Appellant.

                          ________________________

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

                              (September 23, 2011)

Before BARKETT, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

      Convicted of conspiracy against rights and deprivation of rights under color

of law in violation of 18 U.S.C. §§ 241 and 242, Michael Kennedy appeals the
district court’s application of the vulnerable victim enhancement, U.S.S.G.

§ 3A1.1, in determining the applicable guideline range for his sentences. Kennedy

argues that the district court erred by applying this enhancement because the

government failed to establish that he targeted the victim, Delano, because of his

vulnerability, or that Delano was different from the typical victim of the offenses

for which Kennedy was convicted.

      We review de novo the district court’s application of a U.S.S.G. § 3A1.1

enhancement, because it presents a mixed question of law and fact. United States

v. Kapordelis, 569 F.3d 1291, 1315 (11th Cir. 2009). However, we give due

deference to the district court’s determination that a victim was vulnerable,

because this is a factual finding. Id. at 1315-16.

      Section 3A1.1 provides for a two-level upward adjustment “[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). 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. § 3A1.1,

comment. (n.2). Whether this enhancement applies is a very fact-specific analysis,

which should be conducted on a case-by-case basis considering the totality of the

circumstances. United States v. Frank, 247 F.3d 1257, 1260 (11th Cir. 2001). In

                                          2
construing the “otherwise particularly susceptible” language in § 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). The vulnerability that triggers § 3A1.1 must be an

“unusual” vulnerability which is present in only some victims of that type of

crime. Id. at 524.

      Since the 1995 amendments to the Guidelines, there is no longer a

requirement that the defendant target the victim because of his vulnerability. See

United States v. Gonzalez, 183 F.3d 1315, 1326 (11th Cir. 1999), superseded by

regulation on other grounds as stated in United States v. Diaz, 248 F.3d 1065,

1107 & n.59 (11th Cir. 2001). In addition, custodial status is not an essential

element of 18 U.S.C. §§ 241 and 242, and violations of these provisions are by no

means limited to situations involving corrections officers and inmates. See, e.g.,

United States v. Pilati, 627 F.3d 1360, 1361-62 (11th Cir. 2010) (former district

attorney convicted of violating 18 U.S.C. § 242 by depriving individuals of their

right to be free from unreasonable searches); United States v. Veal, 153 F.3d 1233,

1236-38 (11th Cir. 1998) (police officers charged with violating 18 U.S.C. §§ 241

and 242 by using excessive force in arrest).




                                         3
      We have held that inmates can be vulnerable victims under § 3A1.1 by

virtue of being confined in a cell with another inmate, and therefore unable to

escape his assault. See United States v. Tapia, 59 F.3d 1137, 1143 (11th Cir.

1995). Other circuits have held that given the great power corrections officers

wield over inmates, inmates who are victims of violent civil rights abuses at the

hands of corrections officers can be considered vulnerable victims for sentencing

purposes. See, e.g., United States v. Lambright, 320 F.3d 517, 519 (5th Cir. 2003)

(quoting Tapia, 59 F.3d at 1143).

      Initially, as noted above, targeting is no longer required for this provision to

apply. See Gonzalez, 183 F.3d at 1326. Accordingly, Kennedy’s first argument

fails outright, and we discuss only his second. As an inmate, Delano was under

Kennedy’s control, and could not freely refuse an order to be transferred to

McCullah’s cell. Furthermore, once inside McCullah’s cell, Delano could not

escape. Kennedy does not argue that he was unaware of either of these facts,

because to do so would be preposterous. Based on these facts alone, Delano could

be considered an unusually vulnerable victim. See Tapia, 59 F.3d at 1143; see

also Lambright, 320 F.3d at 519.

      Kennedy’s argument to the contrary, based on his reasoning that inmates are

typical victims of these crimes, is unpersuasive. See, e.g., Pilati, 627 F.3d at

                                          4
1361-62; Veal, 153 F.3d at 1236-38. In addition, however, McCullah was a

particularly violent inmate who disliked informants, and would be particularly

disposed to assaulting them. Moreover, the district court could properly find by a

preponderance of the evidence that Kennedy knew that Delano was an informant,

and Kennedy’s contrary argument on the basis of other credible record evidence

does not show clear error in that determination. See Davis, 967 F.2d at 523

(setting forth standard of review for historical facts). Accordingly, the district

court did not err by applying § 3A1.1 to determine Kennedy’s applicable guideline

range.

         AFFIRMED.1




         1
             Kennedy’s request for oral argument is denied.

                                             5
