                                        PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   _____________

                       No. 14-3610
                      _____________

             UNITED STATES OF AMERICA

                             v.

           ADEKUNLE ADETAYO ADEOLU,
                  a/k/a Archie

                Adekunle Adetayo Adeolu,
                          Appellant
                    _____________

      On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
      District Judge: Honorable Mitchell S. Goldberg
                D.C. No. 2-11-cr-00436-001
                      ______________

                  Argued March 23, 2016
                     ______________

Before: GREENAWAY, JR., VANASKIE and SHWARTZ,
                Circuit Judges

           (Opinion Filed: September 12, 2016)


Karina D. Fuentes, Esq.    [ARGUED]
Office of Federal Public Defender
1002 Broad Street
Newark, NJ 07102

Richard Coughlin, Esq.
Office of Federal Public Defender
800-840 Cooper Street
Suite 350
Camden, NJ 08102
       Counsel for Appellant, Adekunle Adeolu


Jose R. Arteaga, Esq.       [ARGUED]
Emily McKillip, Esq.
Zane David Memeger
Robert A. Zauzmer
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
       Counsel for Appellee, United States of America

                     ________________

                         OPINION
                     ________________

VANASKIE, Circuit Judge.

       Appellant Adekunle Adeolu was the part-owner and
office manager of a tax preparation company that prepared
fraudulent tax returns by encouraging taxpayers to claim false
dependents. Adeolu was ultimately convicted of conspiracy
to defraud the United States and of aiding and abetting the
preparation of materially false tax returns, in violation of 18
U.S.C. § 371 and 26 U.S.C. § 7206(2). At sentencing, the
District Court applied the vulnerable victim sentencing
enhancement set forth in U.S.S.G. § 3A1.1(b)(1) based upon
Adeolu’s fraudulent use of young children’s personal
information. On appeal, Adeolu argues that the children were
not vulnerable victims because they did not experience
“actual” harm. We write to clarify that a showing of actual
harm is not required under the vulnerable victim sentencing
enhancement. Rather, our existing test for the application of
this enhancement requires a “nexus” between the victim’s
vulnerability and the crime’s success, a requirement clearly




                              2
met in this case. We will therefore affirm the District Court’s
application of this enhancement and the sentence it imposed.1

                              I.

       Adeolu’s tax preparation company employed
approximately fifteen people and prepared fraudulent tax
returns in two ways: by selling the taxpayer an individual’s
personal information to fraudulently claim as the taxpayer’s
dependent; or, by suggesting that the taxpayer fraudulently
claim a dependent that the taxpayer personally knew.2
According to the District Court, the individuals who were
fraudulently claimed as dependents ranged in age from one to
eighteen years old, including a thirteen-year-old, nine-year-
old, six-year-old, and five-year-old child. (App. 1111.) At
sentencing, the District Court applied the vulnerable victim
enhancement after finding that Adeolu stole these individuals’
personal information in order to file fraudulent tax returns,


       1
          In affirming the sentence, we reject Adeolu’s
challenge to the District Court’s application of the four-level
leadership enhancement under U.S.S.G. § 3B1.1(a) as well as
his challenge to the substantive reasonableness of his
sentence.
       2
          For example, Felicia Jones testified that she
purchased a fraudulent dependent from a tax preparer at
Adeolu’s office for $1,000. Another individual, Lassey
Mensah, testified that he purchased a dependent for $800.
Additionally, during an undercover investigation, an
undercover agent told Adeolu that she did not have any
dependents, but Adeolu nonetheless suggested that if she
could claim a minor as a dependent, it would eliminate her
tax burden. When the undercover agent later provided a
minor’s information to be falsely listed as a dependent,
Adeolu prepared the tax return, which generated a tax refund
for the undercover agent. During a separate investigation,
another undercover agent told an employee that she did not
have any dependents, so the employee suggested that she find
one. When the agent returned several hours later, the agent
said she was claiming her friend’s child as a dependent, and
an employee prepared her tax return listing this minor as her
nephew.
                              3
that these individuals’ youth gave rise to their vulnerability,
and that they experienced tangible and intangible harm.

                              II.

       Our review of the District Court’s legal interpretation
of the Sentencing Guidelines is plenary. United States v.
Zats, 298 F.3d 182, 185 (3d Cir. 2002). We review the
District Court’s application of the Sentencing Guidelines for
clear error. Id.

                              III.

       On appeal, Adeolu argues that the vulnerable victim
enhancement should not apply because the “minors did not
suffer actual harm, such as loss of tax refund proceeds, a fine,
or a negative mark on their credit score.”3 (Appellant Br. at
36.) Our Court, however, has never held that the vulnerable

       3
          Adeolu also argues that the minors cannot be
considered vulnerable merely by virtue of their age. See
Appellant’s Br. at 33. While “presumed vulnerabilities
among broad classes of victims . . . are disfavored,” they are
not prohibited, Zats, 298 F.3d at 188, and may be appropriate
based on the facts of a particular case. The District Court’s
treatment of minors as a group is supported by the fact that
minors as a class generally do not file their own tax returns
(unless they are working), and are unlikely to check their tax
status or monitor for identity theft. See United States v.
Crispo, 306 F.3d 71, 83 (2d Cir. 2002) (concluding “class
attributes can be sufficient if they make the finding of
vulnerability beyond dispute” and thus generalizations were
permitted with respect to a toddler’s ability to fend off a
kidnapper).      Moreover, even if we concluded an
individualized determination as to each individual’s
vulnerability is preferred, the enhancement may be applied
when there is a single vulnerable victim, and, as discussed
herein, there was sufficient evidence from which the District
Court could have concluded that a one-year-old child claimed
as a dependent was “vulnerable” within the meaning of the
enhancement. We thus conclude that there was no error in
the District Court’s finding of vulnerability across the group
of affected minors in this case.

                               4
victim enhancement requires a showing of actual harm,
whether financial or otherwise.4 Rather, our three-part test
under United States v. Iannone, 184 F.3d 214, 220 (3d Cir.
1999), properly analyzes the “nexus” between a victim’s
vulnerability and the success of the defendant’s criminal
scheme, thereby encompassing any resulting harm to the
victim and rendering an analysis of “actual” harm
inconsequential.

                               A.

       The vulnerable victim enhancement states: “If the
defendant knew or should have known that a victim of the
offense was a vulnerable victim, increase by 2 levels.”
U.S.S.G. § 3A1.1(b)(1).5 Unlike other enhancements, the
vulnerable victim enhancement does not explicitly require a
showing of harm. Cf. U.S.S.G. § 2B1.1 cmt. n.3(A)
(discussing actual loss and intended loss). The application
note to section 3A1.1(b)(1) explains that a “vulnerable
victim” is someone who is: (1) “a victim of the offense of
conviction and any conduct for which the defendant is
accountable under 1.3 (Relevant Conduct)”; and (2)
“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.2. In light of
these requirements, this Court applies a three-part test to
determine the applicability of the vulnerable victim
enhancement, addressing whether:

       4
         In this regard, our position is similar to the Second
Circuit’s position on the vulnerable victim enhancement. See
United States v. Kimber, 777 F.3d 553, 564 (2d Cir.), cert.
denied, 136 S. Ct. 170 (2015) (“We have never held that
actual infliction of harm is a prerequisite to the application of
a vulnerable victim adjustment.”).
       5
         We have used the November 2010 version of this
guideline, because this version was in effect at the time of
Adeolu’s conviction in 2014. Although some of our cases
analyze an earlier version of this guideline, any difference is
inconsequential and does not alter our analysis. See Iannone,
184 F.3d at 220 n.5 (noting that the guideline’s 1998
amendment “does not affect our analysis”).
                               5
              (1) the victim was particularly
              susceptible or vulnerable to the
              criminal     conduct;    (2)   the
              defendant knew or should have
              known of this susceptibility or
              vulnerability; and (3) this
              vulnerability or susceptibility
              facilitated the defendant’s crime
              in some manner; that is, there was
              “a nexus between the victim’s
              vulnerability and the crime’s
              ultimate success.”

Zats, 298 F.3d at 186 (quoting Iannone, 184 F.3d at 220).

       The enhancement does not define the word “victim,”
but a victim is commonly understood to be someone who is
“taken advantage of.”       Victim, Webster’s Third New
International Dictionary (1993). This definition is consistent
with our prior interpretation of the vulnerable victim
enhancement. In United States v. Monostra, we held that “the
use of the words ‘susceptible’ and ‘vulnerable’ in § 3A1.1
indicates that the enhancement is to be applied when the
defendant has taken advantage of the victim’s weakness.”
125 F.3d 183, 190 (3d Cir. 1997). To determine whether a
defendant has taken advantage of a vulnerable victim, we
examine whether “there was ‘a nexus between the victim’s
vulnerability and the crime’s ultimate success.’” Iannone,
184 F.3d at 220 (quoting Monostra, 125 F.3d at 190). By
requiring a “nexus” between the victim’s vulnerability and
the defendant’s scheme, we assess whether a victim has been
“taken advantage of” in a manner that facilitates the
defendant’s scheme. As such, an analysis of “actual” harm is
inconsequential. Any issue regarding the victim’s harm is
already encompassed within our analysis of the nexus
between a victim’s vulnerability and the crime’s success.


       Indeed, “the purpose of § 3A1.1, as we see it, is simply
to acknowledge that, while most crimes are committed for
other motives, in many instances defendants know or should
know of their victim’s particular vulnerability and are
therefore more blameworthy for knowingly or even

                              6
negligently harming them.” United States v. Cruz, 106 F.3d
1134, 1139 (3d Cir. 1997). But a defendant is not more or
less blameworthy for the purposes of this enhancement based
on the amount of harm that a victim experiences. Applying
the enhancement in such a manner would create a disparity in
the punishments for defendants who are more successful (and
cause more harm) and those who are less successful, despite
displaying similar depravity. As the Second Circuit has
explained, the interest in punishing a defendant’s depravity
“is present regardless of whether a defendant who targets a
vulnerable victim is ultimately successful; the ‘choice of
victim demonstrates an extra measure of criminal depravity’
in either case.” Kimber, 777 F.3d at 564 (quoting United
States v. Hershkowitz, 968 F.2d 1503, 1505 (2d Cir. 1992)).
A contrary result would fail to punish a defendant’s
reprehensible conduct and fail to protect vulnerable members
of society by deterring future criminal conduct. See Zats, 298
F.3d at 188 (“Our objective is to provide extra deterrence for
defendants who are especially likely to succeed in their
criminal activities because of the vulnerability of their
prey.”); Kimber, 777 F.3d at 564 (“The adjustment ‘reflect[s]
the public interest in more severely punishing those whose
choice of victim demonstrates an extra measure of criminal
depravity.’” (alteration in original) (quoting Hershkowitz, 968
F.2d at 1505)); United States v. Dupre, 462 F.3d 131, 144 (2d
Cir. 2006) (“[A] sentencing judge should ‘focus not on the
likelihood or extent of harm to the individual if the crime is
successful, but on the extent of the individual’s ability to
protect himself from the crime.’” (quoting United States v.
O’Neil, 118 F.3d 65, 75 (2d Cir. 1997))).

       In light of these policy considerations and our existing
test requiring a “nexus” between the victim’s vulnerability
and the defendant’s scheme, there is no need to require a
separate showing of “actual” harm.6 See, e.g., United States

      6
          The application notes for the vulnerable victim
enhancement also support our holding that a separate showing
of actual harm is not required. The application notes explain
that “[t]he adjustment would apply, for example, in a fraud
case in which the defendant marketed an ineffective cancer
cure or in a robbery in which the defendant selected a
handicapped victim.” U.S.S.G. § 3A1.1 cmt. n.2. Although
                              7
v. Kennedy, 554 F.3d 415, 419, 423-25 (3d Cir. 2009)
(finding that reimbursed accountholders were not “victims”
under the fraud enhancement because they suffered no
financial loss, but affirming the application of the “vulnerable
victim” enhancement without an explicit analysis of whether
the accountholders experienced harm). Therefore, we will
continue to apply Iannone’s three-part test to determine the
applicability of this enhancement.

                              B.

        We now turn to our review of the District Court’s
application of the vulnerable victim enhancement, which we
review for clear error. Kennedy, 554 F.3d at 418. First, we
agree that the victims here were “particularly susceptible or
vulnerable to the criminal conduct.” Zats, 298 F.3d at 187
(quoting Iannone, 184 F.3d at 220). “Victims can be
vulnerable for the reasons listed in the application note—age,
physical or mental condition—or simply because one is
‘otherwise particularly susceptible to the criminal conduct.’”
Id. at 187-88 (quoting U.S.S.G. § 3A1.1 cmt. n.2). To make
this determination, we examine “the individual victims’
ability to avoid the crime rather than their vulnerability
relative to other potential victims of the same crime.” Id. at
188 (quoting United States v. McCall, 174 F.3d 47, 51 (2d
Cir. 1998)). Here, the individuals’ youth gave rise to their
vulnerability and their inability to protect against Adeolu’s


this note highlights the difference between a vulnerable
victim and the general population, the fraud example
illustrates that focusing on whether a victim experienced
harm would be misplaced. There, the enhancement applied
because the defendant “marketed an ineffective cancer cure”
without regard for whether the victim suffered financial loss,
physical harm, or even potential harm stemming from the
defendant’s conduct. This supports our understanding that
courts should focus on the defendant’s exploitative conduct
rather than the result of that conduct in determining the
applicability of this enhancement. See Iannone, 184 F.3d at
220 (“[T]he note suggests that this enhancement is designed
to apply where a defendant knowingly or recklessly exploits a
victim’s vulnerability in order to facilitate his commission of
the crime.”).
                               8
fraudulent scheme. Indeed, our society routinely recognizes
the need to protect minors’ personal information by requiring
redactions of their names, birthdays, and Social Security
numbers. Given a child’s inability to guard against theft of
personal information, we find that the first element of this test
is satisfied.

       Second, we also agree that Adeolu knew or should
have known of the victims’ vulnerability. Because their ages
were integral to qualifying as dependents, Adeolu knew or
should have known that at least one of the children who was
fraudulently claimed as a dependent was vulnerable due to
age and inability to protect against his conduct. See id. at 190
(“[T]he Government need not prove that every, or even most,
of Zats’ victims were vulnerable or that he knew or should
have known of the vulnerabilities in every case. The
language of the guideline requires only that ‘a victim of the
offense was a vulnerable victim.’” (citation omitted) (quoting
U.S.S.G. § 3A1.1(b)(1))).

        Third and finally, we find that there was a “nexus”
between the victims’ vulnerability and the success of
Adeolu’s fraudulent scheme. Although the Sentencing
Guidelines do not require that the defendant “target” the
victim, “the enhancement may not be applied absent a
showing that the victim’s vulnerability or susceptibility
facilitated the defendant’s crime in some manner.” Monostra,
125 F.3d at 190. Here, Adeolu profited from the sale of his
victims’ personal information and falsely listed them as
dependents because of their youth, showing that Adeolu took
advantage of the minors’ vulnerability in a manner that
facilitated his criminal scheme. See id. at 191 (“The
enhancement is applied not because the victim draws
sympathy from us because of the infirmity, and we simply
wish to express extra odium for the act. It is also because the
infirmity rendered the victim susceptible to the crime
committed upon him.”). Therefore, we will affirm the
application of the vulnerable victim enhancement.7

       7
          We will also affirm the District Court’s application
of the four-level leadership enhancement, which is applied
“[i]f the defendant was an organizer or leader of a criminal
activity that involved five or more participants or was
                               9
                              IV.

      For the foregoing reasons, we will affirm the District
Court’s application of the vulnerable victim and leadership
enhancements and Adeolu’s overall sentence.




otherwise extensive.” U.S.S.G. § 3B1.1(a). We agree that
testimony from an employee, Olugboyega “Remi” Fisher,
credibly establishes that Adeolu was the organizer of
fraudulent activity involving at least five participants. Lastly,
we will affirm the substantive reasonableness of Adeolu’s 56-
month sentence. See Kennedy, 554 F.3d at 418 (reviewing
the reasonableness of the defendant’s overall sentence for
abuse of discretion). The District Court indeed considered
mitigating factors in determining Adeolu’s sentence, such as
his lack of criminal history, his familial and community
support, and his intelligence. Thus, we will affirm the
entirety of Adeolu’s sentence.
                               10
