              Case: 19-13596     Date Filed: 07/22/2020   Page: 1 of 9



                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 19-13596
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 6:19-cr-00004-GKS-EJK-1

UNITED STATES OF AMERICA,

                                                          Plaintiff - Appellee,

                                      versus

SCHARLENE ALISA HUDSON,

                                                          Defendant - Appellant.

                           ________________________

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

                                  (July 22, 2020)

Before GRANT, LUCK and MARCUS, Circuit Judges.

PER CURIAM:

      Scharlene Hudson appeals her 94-month sentence for access-device fraud, in

violation of 18 U.S.C. §§ 1029(a)(3), (c)(1)(A)(i), and aggravated identity theft, in

violation of 18 U.S.C. § 1028A(a)(1). Hudson’s convictions arose out of a scheme
               Case: 19-13596     Date Filed: 07/22/2020    Page: 2 of 9



in which she used, without authorization, other people’s personal identity

information to file fraudulent tax returns and collect tax refunds for her benefit; only

a handful of the individuals investigated had given Hudson permission to file tax

returns on their behalf. On appeal, she argues that: (1) the district court erred in

applying two vulnerable-victim enhancements because the record is insufficient to

support its finding that her victims were vulnerable; (2) on remand, the district court

should not permit the government to introduce new evidence concerning the

vulnerability of her victims because it would be an inappropriate “second bite of the

apple”; and (3) the district court erred in calculating the loss amount, because it

included refunds issued to individuals who had authorized Hudson to file returns on

their behalf. In response, the government concedes that the district court clearly

erred in applying two vulnerable-victim enhancements to Hudson’s offense level

and that the district court clearly erred in determining the intended loss amount, but

argues that, on remand, it should be able to present evidence at resentencing

concerning the vulnerable-victim enhancements. After careful review, we vacate

and remand for resentencing, and conclude that the government should be allowed

to present vulnerable-victim evidence at resentencing.

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

enhancement, as it presents a mixed question of law and fact, but give due deference

to the district court’s determination that a victim was vulnerable, as this is a factual


                                           2
              Case: 19-13596      Date Filed: 07/22/2020    Page: 3 of 9



finding.” United States v. Kapordelis, 569 F.3d 1291, 1315-16 (11th Cir. 2009). If

the district court erred in making a sentencing determination, we must remand if the

error was not harmless, in that it affected the overall sentence imposed. See United

States v. Mathews, 874 F.3d 698, 710 (11th Cir. 2017). The burden is on the

government to establish the facts necessary to support an enhancement by a

preponderance of the evidence. United States v. Turner, 626 F.3d 566, 572 (11th

Cir. 2010). We review a district court’s determination of the loss amount, pursuant

to U.S.S.G. § 2B1.1.(b)(1), for clear error. United States v. Ford, 784 F.3d 1386,

1396 (11th Cir. 2015). The district court is required to make a reasonable estimate

of the loss based on reliable and specific information. Id.

      First, we agree with the parties that the district court clearly erred in applying

two vulnerable-victim enhancements to Hudson’s offense level.              Determining

whether an enhancement applies is a fact-intensive inquiry that must be made on a

case-by-case basis. United States v. Frank, 247 F.3d 1257, 1260 (11th Cir. 2001).

In conducting this inquiry, the district court may make factual findings based on

evidence presented during trial, facts admitted in a defendant’s guilty plea,

undisputed statements in the presentence investigation report (“PSI”), or evidence

presented at the sentencing hearing. United States v. Polar, 369 F.3d 1248, 1255

(11th Cir. 2004).




                                           3
              Case: 19-13596     Date Filed: 07/22/2020    Page: 4 of 9



      Section 3A1.1(b)(1) applies a two-level increase “[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 defined as:

      a person (A) who is a victim of the offense of conviction and any
      conduct for which the defendant is accountable under § 1B1.3
      (Relevant Conduct); and (B) who is unusually vulnerable due to age,
      physical or mental condition, or who is otherwise particularly
      susceptible to the criminal conduct.

      Subsection (b) applies to offenses involving an unusually vulnerable
      victim in which the defendant knows or should have known of the
      victim’s unusual vulnerability.

Id. § 3A1.1, comment. (n.2).       Both a victim’s circumstances and immutable

characteristics can render a victim vulnerable for the purposes of the § 3A1.1(b)

enhancement. United States v. Bradley, 644 F.3d 1213, 1288 (11th Cir. 2011).

Further, the enhancement “focuses chiefly on the conduct of the defendant,” and

should apply when a defendant targets her victims to take advantage of the victims’

perceived susceptibility to the offense, or when the defendant knew or should have

known the victims were vulnerable. See Frank, 247 F.3d at 1259-60; United States

v. Birge, 830 F.3d 1229, 1233-34 (11th Cir. 2016).

      Ultimately, a victim’s membership in a certain class or occupation is, by itself,

insufficient to support a finding that the victim is “vulnerable.” See Frank, 247 F.3d

at 1259-60. For example, bank tellers, as a class, are not per se vulnerable victims

within the meaning of § 3A1.1, though they are the typical victims of bank robberies.


                                          4
               Case: 19-13596     Date Filed: 07/22/2020    Page: 5 of 9



United States v. Phillips, 287 F.3d 1053, 1057 (11th Cir. 2002). However, bank

tellers may be vulnerable victims where they possess unique or specific

characteristics which make them more vulnerable or susceptible to robbery than

ordinary bank robbery victims.       See id. at 1057-58 (holding the tellers were

vulnerable victims, as perceived by the defendant, because they were located in a

remote location with little or no police protection).

      Here, as the government concedes, the district court clearly erred in finding

that Hudson’s victims were vulnerable because the record was insufficient to support

this finding based solely on the age of the victims. The only record evidence tending

to show that Hudson’s victims were vulnerable was that approximately 55 of the 98

victims were age 65 or older, approximately 28 were age 70 or older, and one victim

was disabled. However, under our case law, that the victims were elderly, or that

one victim was disabled, does not per se make them “unusually vulnerable” to

identity theft -- even if they are the typical victim -- because a victim belonging to a

class or having a characteristic by itself is insufficient to support a finding of

vulnerability. See Frank, 247 F.3d at 1259-60. For the district court to have

correctly made a factual finding that Hudson’s victims were vulnerable, the

government needed to provide additional evidence that: (1) Hudson’s victims were

unusually vulnerable to identity theft outside of merely being elderly, and (2)

Hudson knew or should have known her victims were unusually vulnerable. See


                                           5
               Case: 19-13596     Date Filed: 07/22/2020    Page: 6 of 9



Birge, 830 F.3d at 1233. Moreover, this error was not harmless because the district

court’s application of the two vulnerable-victim enhancements raised Hudson’s

offense level an extra four levels. See Mathews, 874 F.3d at 710. On this record,

the district clearly erred in applying the two vulnerable-victim enhancements.

      Further, on remand, the government should be able to present evidence at

resentencing concerning the vulnerable-victim enhancements. We have discretion

to permit the government to present new evidence at resentencing even though it

amounts to giving the government “a second bite at the apple.” United States v.

Washington, 714 F.3d 1358, 1362 (11th Cir. 2013). A general vacatur of a sentence

typically allows for resentencing de novo. United States v. Martinez, 606 F.3d 1303,

1304 (11th Cir. 2010). Thus, upon a remand based on our conclusion that the district

court improperly imposed a sentencing enhancement, the government generally may

present new evidence in support thereof. Id. at 1304-06.

      A remand for further findings may be inappropriate in cases where “the issue

was before the [district] court and the parties had an opportunity to introduce relevant

evidence.” United States v. Canty, 570 F.3d 1251, 1257 (11th Cir. 2009) (precluding

the government from presenting evidence on remand because the government had

explicitly disclaimed reliance on certain evidence at the first sentencing hearing).

Conversely, we’ve allowed the government to present evidence at resentencing

when a defendant made “vague and unclear” objections at the sentencing hearing.


                                           6
              Case: 19-13596     Date Filed: 07/22/2020    Page: 7 of 9



Martinez, 606 F.3d at 1306; see also United States v. Wright, 862 F.3d 1265, 1276

(11th Cir. 2017) (holding that both parties could submit new evidence on remand

because the defendant had made a general objection but did not articulate the specific

evidentiary objection argued on appeal). Ultimately, we have broad discretion to

decide the limits of a remand for resentencing as may be just under the circumstances

of the case. Martinez, 606 F.3d at 1304, 1306 (citing 28 U.S.C. § 2106).

      Here, Hudson’s objections in the district court were general and unclear,

lacking the specificity now argued on appeal. In her written objection to the PSI’s

recommendation that the vulnerable-victim enhancements were applicable, Hudson

wrote “Objection” and then merely requested the information the government was

relying on for those claims. Then, during the sentencing hearing, when the district

court addressed Hudson’s objection to the vulnerable-victim enhancements, all

defense counsel said was that “the final objection is the two-level enhancement for

multiple victim[s] and the two-level enhancement for a large number of vulnerable

victims.” The district court did not ask for further argument from either party before

it adopted the findings of the PSI, and we cannot determine whether Hudson would

have made the argument that evidence of her victims’ elderly age, by itself, was

insufficient to support the application of the vulnerable-victim enhancement;

instead, Hudson’s first mention of this specific argument was on appeal.




                                          7
              Case: 19-13596      Date Filed: 07/22/2020   Page: 8 of 9



      In short, the parties did not truly have “an opportunity to introduce relevant

evidence” on the issue of whether Hudson’s victims were vulnerable. See Canty,

570 F.3d at 1257. As a result, permitting the government to present evidence to help

establish that Hudson’s victims were vulnerable would be appropriate at

resentencing. See Martinez, 606 F.3d at 1304-06. Unlike in Canty, the government

here did not explicitly waive reliance on specific evidence, fail to object to the

manner the sentence was imposed, and then ask for a second opportunity to prove

that an enhancement applied using previously disavowed evidence. See 570 F.3d at

1256-57. Because the sound reasons present in Canty to deny a “second bite at the

apple” are not present in this case, we conclude that, on remand, the government

should be permitted to introduce new evidence concerning the victims’ vulnerability.

See Martinez, 606 F.3d at 1305.

      We also agree with the parties that the district court erred by improperly

calculating the loss amount for purposes of sentencing. The Sentencing Guidelines

provide that the loss attributable to the defendant is “the greater of actual loss or

intended loss,” and that the “intended loss” is defined as the “pecuniary harm that

the defendant purposely sought to inflict.” U.S.S.G. § 2B1.1, comment. (n.3(A),

(A)(ii)). The district court commits a clear error calculating the loss amount where

it includes in that calculation any amount that is not a reasonably foreseeable harm

intended by the defendant. Cf. United States v. Medina, 485 F.3d 1291, 1304 (11th


                                          8
               Case: 19-13596     Date Filed: 07/22/2020    Page: 9 of 9



Cir. 2007) (holding that the district court clearly erred in calculating the loss amount

where it failed to make factual findings showing that it had excluded payments which

were made for claims that were medically necessary).

      Here, as the government concedes, the district court clearly erred when it

determined that the intended loss amount was $563,307.88. This figure incorrectly

included $47,243.00 that was paid by the IRS directly to Hudson’s victims who had

given Hudson permission to file taxes on their behalf, and no evidence showed that

these taxpayers were not entitled to those refunds. Cf. Medina, 485 F.3d at 1304.

The $47,230.00 was not part of the loss attributable to the defendant because it was

not reasonably part of the pecuniary harm the defendant intended to inflict; Hudson

had filed those returns with permission, and those refunds were paid directly to those

individuals. See U.S.S.G. § 2B1.1, comment. (n.3(A)(ii)). Thus, the district court’s

determination was not a reasonable estimate of the loss amount based on the record.

See Ford, 784 F.3d at 1398. Because subtracting the incorrectly added amount

would lower the intended total loss amount to $516,064.88, and subsequently lower

the offense level increase under § 2B1.1(b)(1)(H) from 14 to 12, this error was not

harmless. See Mathews, 874 F.3d at 710. Accordingly, we also vacate and remand

on this basis for resentencing consistent with this opinion.

      VACATED AND REMANDED.




                                           9
