                Case: 11-15067       Date Filed: 04/30/2013       Page: 1 of 6


                                                                        [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             ________________________

                                     No. 11-15067
                               ________________________

                         D. C. Docket No. 3:10-cr-00030-MCR-2

UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,

                                             versus

VICTORIA BOURLIER,
a.k.a. Karen Victoria Ritchey,

                                                                        Defendant-Appellant.

                               ________________________

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

                                       (April 30, 2013)

Before MARTIN and ANDERSON, Circuit Judges, and VINSON,* District Judge.

PER CURIAM:




       *
         Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
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       Victoria Bourlier appeals her within-guideline sentence of 30 months in

prison, after she pled guilty to the charge of obstruction of justice. Bourlier argues

that the district court erred in applying a four-level enhancement for large numbers

of vulnerable victims under U.S.S.G. § 3A1.1(b)(1) and (2), because Bourlier did

not know, nor reasonably should have known, that the victims of the offenses of

her codefendant, Robert Bourlier, were vulnerable victims.1 Bourlier further

argues, for the first time on appeal, that the court erred in concluding both that the

victims were vulnerable victims within the meaning of § 3A1.1(b)(1), and that their

numbers were sufficient to justify the additional two-level enhancement under §

3A1.1(b)(2). Finally, she argues that the district court failed to make sufficient

factual findings in applying the § 3A1.1(b) enhancement.

       “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 district court’s factual findings related to the imposition of sentencing

enhancements, however, are reviewed only for clear error.” United States v.

Amedeo, 370 F.3d 1305, 1312 (11th Cir. 2004). “Whether a ‘vulnerable victim’


       1
                Robert Bourlier, Bourlier’s husband, was a physician charged with twenty counts
of healthcare fraud and 130 counts of violating the Controlled Substances Act by illegally
prescribing controlled substances.

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sentence enhancement should be made is a fact intensive inquiry that must be made

on a case-by-case basis.” Frank, 247 F.3d at 1260. “The district court’s factual

findings for purposes of sentencing may be based on, among other things, evidence

heard during trial, undisputed statements in the PSI, or evidence presented during

the sentencing hearing.” United States v. Polar, 369 F.3d 1248, 1255 (11th Cir.

2004). We may affirm the enhancement on any ground supported by the record.

Amedeo, 370 F.3d at 1319 n.12.

      Where a defendant is an accessory after the fact, her base offense level is six

levels lower than the underlying offense. U.S.S.G. § 2X3.1(a)(1); Id. § 2X3.1,

comment. (n.1). The district court is to “[a]pply the base offense level plus any

applicable specific offense characteristics that were known, or reasonably should

have been known, by the defendant.” Id. § 2X3.1 & comment. (n.1). In the case of

an accessory after the fact, “the conduct for which the defendant is accountable

includes all conduct relevant to determining the base offense level for the

underlying offense that was known, or reasonably should have been known, by the

defendant.” Id. § 1B1.3, comment. (n.10).

      The Sentencing Guidelines provide for a two-level offense level

enhancement if a defendant “knew or should have known that a victim of the

offense was a vulnerable victim.” Id. § 3A1.1(b)(1). A “vulnerable victim” is any

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person “who is a victim of the offense of conviction and any conduct for which the

defendant is accountable under § 1B1.3 (Relevant Conduct); and . . . who is

unusually vulnerable due to age, physical or mental condition, or who is otherwise

particularly susceptible to criminal conduct.” Id. § 3A1.1, comment. (n.2). An

additional two-level sentencing enhancement is to be imposed if the offense

involved a large number of vulnerable victims. Id. § 3A1.1(b)(2).

       Where a defendant fails to object to a sentencing error before the district

court, we review for plain error. See United States v. Castro, 455 F.3d 1249, 1251

(11th Cir. 2006). To establish plain error, a defendant must show that there was an

“(1) error, (2) that is plain and (3) that affects substantial rights. If all three

conditions are met, we may then exercise our discretion to notice a forfeited error,

but only if . . . the error seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” United States v. Turner, 474 F.3d 1265, 1276 (11th Cir.

2007). “An error is plain if it is obvious and clear under current law.” United

States v. Eckhardt, 466 F.3d 938, 948 (11th Cir. 2006). “An error that ‘affects

substantial rights’ is one that ‘affected the outcome of the district court

proceedings.’” United States v. Henderson, 409 F.3d 1293, 1308 (11th Cir. 2005)

(quoting United States v. Cotton, 535 U.S. 625, 632, 122 S. Ct. 1781, 1786 (2002)).




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       Under the doctrine of invited error, we will not review an error that is invited

or induced by a party. United States v. Silvestri, 409 F.3d 1311, 1327 (11th Cir.

2005). “Where invited error exists, it precludes a court from invoking the plain

error rule and reversing.” Id.

       At sentencing, the district court relied without objection on evidence from

Robert Bourlier’s trial to support the degree of Bourlier’s involvement in his

medical practice and in ultimately concluding that the four-point vulnerable victim

enhancement applied. Because it was known or reasonably should have been

known to Bourlier that the victims of Robert Bourlier’s offenses were vulnerable

victims, the district court properly applied the four-level enhancement under §

3A1.1(b)(1) and (2). Bourlier’s arguments—that the court erred in concluding that

Robert Bourlier’s drug addict patients were vulnerable victims, and that the number

of vulnerable victims was insufficient to warrant the additional two-level

enhancement under § 3A1.1(b)(2)—are waived under the doctrine of invited error

since Bourlier acknowledged the presence of “vulnerable victims” at sentencing

and in her sentencing memorandum.2 Finally, with regard to Bourlier’s claim that

the district court failed to make sufficient findings, we find no error because the



       2
              Alternatively, Bourlier cannot satisfy plain error analysis. Moreover, ample
evidence supports the district court’s findings.

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court specifically found that Bourlier knew or should have known that the victims

were vulnerable victims, and Bourlier did not request that the district court make

more specific findings.

      Accordingly, upon review of the record and with the benefit of oral

argument, we affirm.

      AFFIRMED.




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