                                                           [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS
                                                                       FILED
                         FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                           ________________________ ELEVENTH CIRCUIT
                                                                  APR 10, 2006
                                 No. 05-14633                   THOMAS K. KAHN
                             Non-Argument Calendar                  CLERK
                           ________________________

                       D. C. Docket No. 05-00003-CR-HL-6

UNITED STATES OF AMERICA,


                                                                   Plaintiff-Appellee,

                                       versus

DOUGLAS C. ROGERS,

                                                               Defendant-Appellant.


                           ________________________

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

                                  (April 10, 2006)

Before ANDERSON, BIRCH and BLACK, Circuit Judges.

PER CURIAM:

      Douglas C. Rogers appeals his concurrent sentences for mail fraud in

violation of 18 U.S.C. § 1341. Rogers asserts the district court erred in applying a
two-level vulnerable victim enhancement under U.S.S.G. § 3A1.1(b)(1) (1998)

when calculating his Guidelines sentence because (1) Mildred Evelyn Roberts Carr

was not a victim, (2) Carr was not vulnerable, and (3) this enhancement resulted in

impermissible double counting. The district court did not err, and we affirm his

sentences.

      Even though the Guidelines are now advisory, the district court must

correctly calculate the sentencing range prescribed by the Sentencing Guidelines.

United States v. Crawford, 407 F.3d 1174, 1178-79 (11th Cir. 2005). “The district

court’s application of U.S.S.G. § 3A1.1 presents a mixed question of law and fact,

subject to de novo review, but the district court’s determination of a victim’s

‘vulnerability’ is a factual finding given due deference.” United States v. Day, 405

F.3d 1293, 1295 (11th Cir.), cert. denied, 126 S. Ct. 432 (2005). “We generally

review a claim of double counting de novo.” United States v. Lebovitz, 401 F.3d

1263, 1270 (11th Cir. 2005).

      The Guidelines provide “[i]f 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) (1998). 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



                                          2
conduct.” Id., comment. (n.2). “The applicability of the ‘vulnerable victim’

enhancement must be determined on a case-by-case basis, and is appropriate where

the defendant knows that the victim has ‘unique characteristics’ that make the

victim more vulnerable to the crime than other potential victims of the crime.”

United States v. Phillips, 287 F.3d 1053, 1056-57 (11th Cir. 2002).

      The district court did not err in finding Carr to be a vulnerable victim. First,

Carr was a victim for the purposes of § 3A1.1. Carr was the settlor and beneficiary

of the trust from which Rogers wrongfully took property. As alleged in the

indictment, and found by the jury, Rogers devised or participated in a scheme to

fraudulently deprive her of the intangible right of honest services. Moreover, Carr

had a beneficial interest in the trust, which was harmed because there were fewer

trust assets available for her support.

      The district court’s finding that Carr was vulnerable was not erroneous. Carr

was not impaired to the extent that she was legally incompetent. However, the

Thomas County, Georgia probate court found Carr was in need of a guardian of her

property, and issued “Letters of Guardianship of the Property of Incapacitated

Adult,” appointing Rogers as guardian. Under the law in effect when Rogers was

appointed guardian, a guardian of the property of incapacitated adults could be

appointed “to the extent that such adults are incapable of managing their estates.”



                                          3
O.C.G.A. § 29-5-1 (2003) (repealed 2005). As guardian of Carr’s property, Rogers

knew that Carr was not fully capable of handling her financial affairs.

      We conclude a vulnerable victim enhancement was warranted based on

Rogers’ knowledge of Carr’s vulnerability, and now turn to the issue of whether

application of this enhancement in conjunction with a two-level enhancement for

abuse of trust under § 3B1.3 was impermissible double counting. “Double

counting a factor during sentencing is permitted if the Sentencing Commission

(Commission) intended that result and each guideline section in question concerns

conceptually separate notions relating to sentencing. We presume that the

Commission intended to apply separate guideline sections cumulatively unless

specifically directed otherwise.” United States v. Stevenson, 68 F.3d 1292, 1294

(11th Cir. 1995). A vulnerable victim enhancement is not applied “if the factor

that makes the person a vulnerable victim is incorporated in the offense guideline.

For example, if the offense guideline provides an enhancement for the age of the

victim, this subsection would not be applied unless the victim was unusually

vulnerable for reasons unrelated to age.” U.S.S.G. § 3A1.1, comment. (n.2)

(1998).

      In this case, the two enhancements concern conceptually separate notions

relating to sentencing. The abuse of trust enhancement focuses on Rogers’ conduct



                                          4
in committing the offense. By virtue of his position as trustee, Rogers was able to

obtain money from an asset held by the trust. In contrast, the vulnerable victim

enhancement focuses on why Rogers chose to take money from this particular

trust. Here, the district court did not find Carr vulnerable because Rogers held

positions of trust, but because she suffered from some kind of disability or

incapacity. Therefore, the district court did not err by applying both

enhancements.

      AFFIRMED.




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