                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                  F I L E D
                       REVISED, February 9, 2007
                    UNITED STATES COURT OF APPEALS                January 16, 2007
                         For the Fifth Circuit
                                                               Charles R. Fulbruge III
                                                                       Clerk

                                No. 05-10648




                      UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,


                                    VERSUS


                              NINA K. RAJWANI,


                                                     Defendant-Appellant



           Appeal from the United States District Court
     For the Northern District of Texas, Fort Worth Division
                           4:04-CR-174-A



Before JONES, Chief Judge, and DAVIS and GARZA, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

     In this direct criminal appeal, the defendant challenges her

conviction   and   sentence    on   multiple   grounds.   We   AFFIRM     the

conviction but conclude that the extent of the district court’s

upward departure on the defendant’s sentence was excessive.               For

the following reasons, we VACATE the defendant’s sentence and

REMAND to the district court for resentencing.


                                     -1-
                                 I.

       The Defendant-Appellant, Nina Rajwani (“Rajwani”), a citizen

of Canada, was convicted on three counts of aiding and abetting

wire fraud in violation of 18 U.S.C. §§ 1343 and 1342.          The

government produced proof that the defendant participated in a

scheme beginning in June 2004 and continuing until September 2004,

to persuade Ruth Scott (“Scott”), an elderly United States citizen

residing in Fort Worth, Texas, to wire money in excess of $60,000

from her Washington Mutual bank account in Texas to Rajwani’s Bank

of America account in Washington on at least 9 separate occasions.

Scott transferred money following telephone calls from a man

identifying himself as “Joe Calender” informing her that she had

won a fictitious “Spanish Lottery.”    She agreed to send the money

to Calender in exchange for his assistance in helping her collect

her winnings.

       After Scott’s family became suspicious, the FBI was notified

and agents arranged for a transfer of “bait” money to Rajwani’s

bank account.    Rajwani went to a Bank of America branch in Liden,

Washington and attempted to withdraw this bait money from the

account.    The bank’s assistant manager, who had been alerted to

contact authorities if Rajwani came into the branch, attempted to

stall Rajwani until the police arrived.       After waiting a few

minutes, Rajwani excused herself from the bank building claiming

that she would return to the bank after retrieving an item from her

car.    Instead she drove away immediately.

                                 -2-
     Several days later, Calender contacted Scott again and asked

her to send another $1,000 to Rajwani.     Despite admonitions from

the FBI, Scott complied and wired the money into a separate

Washington Mutual Bank account opened by Rajwani earlier in the

month.    As Rajwani was attempting to enter the country from Canada

on the day after Scott’s transfer, she was detained by customs

officials.   At the time of her arrest, customs agents found a piece

of notepaper in Rajwani’s purse with Scott’s name, address, and

phone number written on it.   She also had a handwritten note in her

purse with the name and address of Mary Orofino.    Orofino, an 85-

year-old woman from Oceanside, California, testified at Rajwani’s

trial that she had also been the target of a similar fraudulent

lottery scheme.

     In addition to Orofino, one other victim of the transfer

scheme testified at Rajwani’s trial. Florence Jackson, an 82-year-

old retiree, testified that, like Scott, she was contacted by Joe

Calendar and told to send money to cover lottery taxes.          At

Calendar’s direction, Jackson twice wired money via Western Union

to Nina Rajwani and ultimately lost $66,027.23 as a result of the

scheme.

     Rajwani’s defense was that she believed her banking activities

were in support of a friend’s legitimate travel business.        In

support, she offered the testimony of Farida Bhimji.      Bhimji, a

friend of Rajwani’s, testified about a conversation that she

overheard at Rajwani’s house in 2003 between Rajwani and a man

                                 -3-
named Nizu Remtullah. According to Bhimji, Rajwani asked Remtullah

when he would repay $6,000 she had loaned him.        Remtullah told

Rajwani of his new business venture selling travel packages and

asked Rajwani to help him by opening a bank account in the United

States. Remtullah explained that because he had a criminal record,

he could not cross the border to do it himself.    Rajwani agreed to

open the bank account to help Remtullah get the money to pay back

the $6,000.   Another defense witness, Shiraz Kaba, would have

testified to overhearing this same conversation but the judge

excluded the testimony on the basis of a hearsay objection by the

government.

     At the close of the case, the jury convicted the defendant on

all three counts.

     Before sentencing Rajwani, the Presentence Report (“PSR”)

calculated Rajwani’s base offense level at 7 and applied a number

of enhancements.    The PSR applied a 2 level enhancement pursuant to

United States Sentencing Guidelines (“U.S.S.G.”) § 3A1.1(b)(1)

because the defendant knew or should have known that the victims

were unusually vulnerable because of their age as well as a 10

level increase under U.S.S.G. § 2B1.1(b)(1)(F) because the total

loss amount was $137,077.23.     The PSR also found that after the

defendant’s arrest, money was withdrawn from the defendant’s bank

account and deposited into a bank account belonging to her sister.

This attempt to hide illegal proceeds triggered a recommended 2

level enhancement under U.S.S.G. § 3C1.1.    The total offense level

                                 -4-
of 21, with a criminal history category of I, produced a Guidelines

sentencing range of 37-46 months.          The PSR also recommended an

upward departure.

       The district court adopted the findings and conclusions of the

PSR.     Further, the court found that an upward departure was

warranted because the Guidelines range did not adequately address

the seriousness of the offense (U.S.S.G. § 2B1.1, Comment 19) and

because the circumstances in the case were present to a degree

substantially in excess of that which ordinarily would be involved

in a typical offense of this kind (U.S.S.G. § 5K2.0(a)(3)).               The

judge sentenced the defendant to a term of 120 months on each

count, to be served concurrently.

       The   court   acknowledged   that   the   sentence   was   above   the

applicable advisory Guidelines range but identified the effect of

the financial loss on the elderly victims and the emotional impact

on the victims as justification for the upward departure.                 The

judge found that the fraudulent scheme caused at least some of the

women to lose their life savings and that many of the women who

were victimized would never be able to recover financially because

of their advanced age.       As a result of these circumstances, the

judge continued, the women would inevitably be affected in their

emotional well-being.      In particular, the court observed that Ms.

Scott had suffered from depression since the fraudulent scheme and

had been unable to sleep through the night as a result of her

anxiety about the incident.

                                    -5-
     Rajwani raises four issues on appeal: (1) that the evidence

was insufficient to establish that she knowingly aided and abetted

the wire fraud scheme perpetrated by the man calling himself Joe

Calender; (2) that the district court abused its discretion in

excluding   testimony   from   defense   witness   Kaba   concerning   the

conversation the witness overheard; (3) that the district court

clearly erred in applying the vulnerable victim enhancement because

the record did not show that Rajwani could have known of the

elderly status of the victims; and (4) that the district court

abused its discretion by imposing a 120 month sentence-nearly

triple her calculated Guidelines range.        We consider each issue

below.

                                   II.

     Rajwani first argues that the district court erred in failing

to grant her motion for judgment of acquittal on all charges based

on her argument that the evidence was insufficient to establish her

knowledge of the illegal scheme.

     Rajwani’s sufficiency of the evidence claim is reviewed de

novo and this court considers the entire record in its review of

sufficiency challenges.1       When reviewing the sufficiency of the

evidence, this court views all evidence, whether circumstantial or

direct, in the light most favorable to the verdict, including all



     1
      United States v. Alarcon, 261 F.3d 416, 421 (5th Cir.
2001).

                                   -6-
reasonable inferences.2

     To establish a violation of the wire fraud statute, 18 U.S.C.

§ 1343, the government must prove: (1) a scheme or artifice to

defraud and (2) the use of wire communications in furtherance of

the fraudulent scheme.3     Proof of a scheme to defraud requires that

the government show fraudulent activity and that the defendant had

a conscious knowing intent to defraud.4               As Rajwani correctly

points out, the propriety of her conviction turns on whether the

evidence permitted the jury to find beyond a reasonable doubt that

she knew of the fraudulent misrepresentations being made by Joe

Calendar and that she intended to be part of a scheme to defraud

Ruth Scott.

     The    most   direct   evidence    of    Rajwani’s     knowledge    of   and

participation in the scheme were the handwritten notes the customs

agents found in her purse recording the names and addresses of two

victims. In addition, the irregular nature of the transactions and

the machinations the defendant followed to recover funds in the

United   States    are   probative     of    her   guilty   knowledge.        The

unorthodox procedures included:

•    The practice of personally crossing the border and withdrawing
     the funds rather than having the U.S. bank simply wire the
     funds to the defendant’s friend or to the defendant herself in
     Canada;
     2
      Id.
     3
      United States v. Ingles, 445 F.3d 830, 838 (5th Cir. 2006).

     4
      United States v. Reyes, 239 F.3d 722, 736 (5th Cir. 2001).

                                     -7-
•    Opening multiple bank accounts for the different victims’
     deposits rather than having a single account;

•    Making trips to various banks on nine different days, each
     within one or two days of the victim’s deposits to empty the
     account and recover the funds;

•    Fleeing from the bank on September 22, 2005 after the bank
     manager attempted to stall the defendant.

Rajwani was not inexperienced in business affairs.   She served as

an independent contractor for a financial services company in

Canada and as a clerical worker for an importing company.   The jury

was entitled to conclude that the totality of these circumstances

belied the defense theory that the defendant sincerely believed she

was simply helping her friend collect funds legitimately owed to

him in his travel agency.

     We are satisfied that the circumstantial evidence produced at

trial was sufficient to establish Rajwani’s guilty knowledge of the

scheme to defraud.

                               III.

     Rajwani next argues that the district court erred when it

refused to admit the testimony of defense witness Shiraz Kaba that

she overheard the conversation between Rajwani and Remtullah, where

Remtullah requested that Rajwani assist him in his travel agency

business by opening a bank account in the United States for the

receipt of funds from customers.      Kaba’s testimony tracked the

testimony of another witness, Bhimji, who was allowed to testify

regarding the contents of this conversation.


                               -8-
     Even if the district court erred in excluding this testimony

as hearsay, the testimony was cumulative of the testimony the jury

heard from Bhimji.     Given the extensive evidence of Rajwani’s

guilty knowledge and the cumulative nature of the testimony, we are

satisfied that the district court’s error was at most harmless

error.5

                                IV.

     The defendant next argues that the district court erred in

applying the vulnerable victim enhancement under § 3A1.1(b)(1) of

the Guidelines.   This enhancement applies if the defendant knew or

should have known that a victim of the offense was a vulnerable

victim.   Rajwani argues that even if the evidence establishes that

she knew about the scheme to defraud, there is no evidence that she

knew of the victim’s age and vulnerability.   The district court’s

interpretation of the Guidelines is reviewed de novo, while the

underlying factual findings are reviewed for clear error.6

     Our review of the record persuades us that the district court

was entitled to find by a preponderance of the evidence that

Rajwani was aware of the age and vulnerability of the victim.   The

handwritten notes found in Rajwani’s purse when she was arrested

recording the names and addresses of two victims of the scheme

support the district court’s view that she had knowledge about the
     5
      See United States v. Mejia, 844 F.2d 209, 215 (5th Cir.
1988).
     6
      United States v. Cabrera, 288 F.3d 163, 168 (5th Cir.
2002).

                                -9-
specific    victims     Calender         had    targeted.       Further,     the

circumstantial evidence discussed above which tends to refute the

defendant’s claim that she was duped by her friend into collecting

what she thought were legitimate funds supports the district

court’s finding.        The district court did not clearly err in

assessing this enhancement.

                                         V.

     Finally, Rajwani argues that the upward departure from the

calculated Guidelines range was unwarranted; and even if some

departure     was   appropriate,          the    sentence     was    ultimately

unreasonable.

     As    explained    above,     the    district    court   calculated     the

defendant’s     total    offense     level       (including    3    incremental

adjustments) to be 21, which along with a criminal history category

of I, resulted in a Guidelines range of 37 to 46 months.                   After

calculating the sentencing range, the district court invoked the

authority of two additional provisions, § 5K2.0(a)(3) and § 2B1.1,

Comment 19, to sentence the defendant to 120 months.                The ultimate

sentence that the district court imposed under the authority of

these departure provisions corresponded with a 9 to 10 point

offense level increase.7

     First, we observe that the sentence the court imposed in this

     7
      An offense level increase of 9 would result in an offense
level of 30 and a sentencing range of 97 to 121 months. An
offense level increase of 10 would have resulted in an offense
level of 31 with a sentencing range of 108-135.

                                     -10-
case was a Guidelines sentence.   Because the court’s authority to

depart derives from the Guidelines themselves, a sentence supported

by a departure is also a Guidelines sentence.8   In evaluating both

a decision to depart and the extent of the departure, we review for

abuse of discretion.9   As we explained in United States v. Smith:

     [W]here the sentencing judge, in the exercise of
     discretion, imposes a sentence within a properly
     calculated Guideline range, in our reasonableness review
     we will infer that the judge has considered all of the
     factors for a fair sentence set forth in the Guidelines
     and that it will be rare for a reviewing court to say
     such a sentence is unreasonable. In Mares, we included
     in such Guidelines sentences a sentence that has been
     adjusted by applying a departure as allowed by the
     Guidelines. If the district court decides to impose a
     non-Guideline sentence, a more thorough explanation is
     required.10

     At the sentencing hearing, the court explained in detail its

reasons for departing from the calculated Guidelines range.11      A
     8
      United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006).
     9
      Id.
     10
      United States v. Smith, 417 F.3d 483, 490 (5th Cir. 2005)
(internal quotation marks omitted) (citing United States v.
Mares, 402 F.3d 511, 519 (5th Cir.2005)).
     11
      I continue to believe that an upward departure is
necessary in this case to adequately address the factors that
should be taken into account in sentencing as contemplated by, I
believe it's 3553(a), 18 United States Code, 3553(a). So I'm
ordering and adjudging that the defendant be committed to the
custody of the Bureau of Prisons to serve a term of imprisonment
of 10 years, or 120 months . . . .

Pursuant to U.S.S.G. 5K2 .0(a)(3), an upward departure may be
warranted in an exceptional case above the guideline range. Of
course, the range itself is only advisory at this point in time.
And that departure is warranted even though the circumstances
that form the basis for the departure are taken into
consideration to some degree in determining the guideline range.

                               -11-
The departure is warranted if the Court determines that the
circumstances in this particular case are present to a degree
substantially in excess of that which ordinarily would be
involved in the offense of the kind confronting the Court in a
particular case, and I find that in this case the
circumstance-the vulnerability of the victims and the seriousness
of the imposition on those victims was not taken into account to
the extent those factors exist in this case.

And I might add that pursuant to U.S.S.G. 2B1.1, Comment Note
19(a), an upward departure may be warranted in cases in which the
offense level determined under the fraud guideline substantially
understates the seriousness of the offense. And I find that that
is true in this case: In this case the financial loss as
determined by the guidelines under-represents the seriousness of
the offense because the defendant, along with others, preyed upon
elderly women between 82 and 90 years of age.

The fraudulent scheme caused the women to lose-or at least some
of the women to lose their life savings. When their life savings
were depleted some of the women obtained money to pay the
fraudulent fees through selling their stock, taking out a loan,
or obtaining cash back from their credit card accounts. Those
women not only lost their life savings but are now required to
repay the loans they took out which have caused further financial
hardships. These women who were victimized will never be able to
recover financially and overcome their monetary losses as they
have been out of the work force and have no means to regain the
money they lost. These women are on fixed incomes and as a
direct result of being victimized by the defendant and others
they have no savings to fall back on in the case of a financial
emergency, which due to their age may quite well include such
things as extended medical care.

In addition, the financial loss they suffered undoubtedly caused
emotional concern as to these women. In other words, it's
affected their-inevitably would affect their emotional
well-being. One of the victims, Ms. Scott, has suffered from
depression since the fraudulent scheme. She has feelings of
shame and embarrassment and no longer has the positive outlook on
life she once had. She is deeply troubled by the fact that she
will have nothing left for her children after her death. Since
being victimized, Ms. Scott has had trouble sleeping through the
night and has had to rely on a prescription sleep aid. For all
of these reasons the Court finds that a sentence at the top of
the advisory guideline range would not adequately consider or
take into account the seriousness of the offense conduct and its
impact on the victims. As I've indicated, I believe the sentence

                              -12-
district court does not abuse its discretion in upwardly departing

if its reasons "(1) advance the objectives set forth in 18 U.S.C §

3553(a)(2); (2) are authorized by 18 U.S.C. § 3553(b); and (3) are

justified by the facts of the case."12

     We conclude the district court adequately addressed these so-

called Saldana factors.      The district court’s reasons take into

account the factors identified in § 3553(a)(2), including the need

for the sentence to reflect the seriousness of the offense and

provide just punishment.      The district court also identified the

aggravating circumstances that take Rajwani’s conviction “outside

the heartland of cases in the Guideline” as required by 18 U.S.C.

§ 3553(b).13    While the departures for exploitation of a vulnerable

victim and amount of loss account for Rajwani’s conduct to some

degree, the district court found that the women targeted were

vulnerable in ways independent of their advanced age.      The court

found that the women had limited financial means and that the

amount of loss represented much of the victims’ life savings.     In

addition, the court found that, because of the resulting financial

difficulties, the women would suffer emotionally and that Ms. Scott


I have actually imposed is-it would require at least that
sentence to adequately address the objectives of sentencing in
this case.

     12
          United States v. Saldana, 427 F.3d 298, 310 (5th Cir.
2005).
     13
      See Saldana, 427 F.3d at 312; see also Koon v. United
States, 518 U.S. 81, 98 (1996).

                                  -13-
had   already      experienced   emotional      hardships       as    well    as     some

physical manifestation of that hardship in the form of difficulty

sleeping.         Ultimately, we cannot say that the court abused its

discretion in determining that these facts justified an upward

departure.

      Although we have determined that the district court did not

abuse its discretion in deciding to depart, we must now resolve

whether the district court abused its discretion in the extent of

the departure.14        A district court abuses its discretion where the

degree       of   the   departure   or    the    sentence       as     a     whole     is

unreasonable.15 For the reasons stated below, we conclude that both

the degree of the departure and the sentence as a whole are

unreasonable        and,   therefore,    the    district    court          abused     its

discretion in the extent of the departure.

      The reasonableness inquiry on appeal for both Guideline and

non-Guideline        sentences   must     be    guided     by    the       sentencing

considerations set forth in 18 U.S.C. § 3553(a).16                   The analysis on
      14
           See Saldana, 427 F.3d at 312-13.
      15
      See id. (in assessing an upward departure an appellate
court must determine whether the degree of a departure or the
sentence as a whole is unreasonable; ultimately concluding that
where the degree of the departure was not unreasonable, the
district court did not abuse its discretion); see also United
States v. Desselle, 450 F.3d 179, 182 (5th Cir. 2006) ("A
district court abuses its discretion if it departs on the basis
of legally unacceptable reasons or if the degree of the departure
is unreasonable." (quoting United States v. Harris, 293 F.3d 863,
871 (5th Cir.2002))).
      16
      See Booker, 543 U.S. at 261-62;             The    18 U.S.C. § 3553(a)
factors are:

                                        -14-
appeal will necessarily be fact intensive and focus on whether the

rationale given by the district court justifies the sentence,

including any departures imposed.17

     The district court based its departure on two facts.                First,

the elderly victims in this case were exceptionally vulnerable

because of their advanced age and their modest means.              Defrauding

elderly    victims    of   over   $120,000   exacted        inordinate   harm,

particularly on the victim Ruth Scott.          Second, the court reasoned

that this increased vulnerability resulted in greater psychological

trauma to the victims in this case than to an ordinary victim.

     The   district    court’s    explanation    of   the    reason   for   its

     (1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
     (2) the need for the sentence imposed-
          (A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for
the offense;
          (B) to afford adequate deterrence to criminal conduct;
          (C) to protect the public from further crimes of the
defendant; and
          (D) to provide the defendant with needed . . . medical
care, or other correctional treatment in the most effective
manner;
     (3) the kinds of sentences available;
     (4) the kinds of sentence and the sentencing range
established for-
          (A) the applicable category of offense committed by the
applicable category of defendant as set forth in the guidelines .
. . ;
     (5) any pertinent policy statement . . . ;
     (6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct.
     17
      See United States v. Barressi, 316 F.3d 69, 73 (2nd Cir.
2002) (“[T]he key question is whether the reasons given by the
district court are sufficient to justify the magnitude of the
departure.”).

                                    -15-
departure reflects a consideration of the relevant 3353(a) factors.

The   sentence      is   therefore      reasonable      in    a   procedural     sense.

However,      our   review     of   the   record    leaves        us   with    the   firm

conviction      that     the   circumstances       of   this      case   are     not   so

compelling as to justify the imposition of a jail sentence almost

3   times that      recommended      by    the   Guidelines.           The    applicable

sentencing range already incorporates the aggravating circumstances

of this offense to some degree and that sentencing determination,

pursuant       to   18   U.S.C.     §     3553(a)(4),        is   entitled      to     due

consideration under Booker.18

      In United States v. Harris, we found that the district court’s

decision to depart by 85 percent or 16 levels below the applicable

Guidelines range was unreasonable in part because the departure was

not supported by extraordinary facts.19 In Harris, a police officer

was convicted for using excessive force during an arrest.                       Based on

the court’s finding that the victim to some extent provoked the

officer, the sentencing judge departed downward 16 levels from the

Guidelines sentence. Upon review, we found that while the victim’s

provocation made the case an appropriate circumstance to apply the

departure, the extent of the departure was unreasonable.                                We

explained that the circumstances and character of the provocation

did not justify a sentence so far outside the Guidelines range

      18
           Booker, 543 U.S. at 261
      19
           United States v. Harris, 293 F.3d 863, 880 (5th Cir.
2002).

                                          -16-
because the case was not “so extraordinary as to eviscerate the

Guidelines of all applicability.”20

       As stated above, we accept the district court’s findings that

the elderly victims were vulnerable and that their financial losses

were    devastating       to   them.    We     disagree,   however,    that   the

defendant’s conduct or the effect of that conduct on the victims

was significantly beyond that which had already been taken into

account in calculating the applicable Guidelines range.

       First, it is neither unusual nor extraordinary for elderly

persons       to   be   financially    vulnerable.      The   Social   Security

Administration reports that Social Security benefits, which are

paid to 9 out of every 10 Americans 65 and older, represent the

major source of income for the elderly.21 Over 1/2 of those married

and almost 3/4ths of unmarried retired persons receive 50% or more

of their income from Social Security with the average monthly

benefit at approximately $1,000.22             These figures suggest that no

more than approximately $2,000 in monthly income is available to

the vast majority of elderly Americans.              A fraud scheme targeting

elderly victims would therefore ensnare financially vulnerable

victims and cause severe financial hardship in the majority of

cases.
       20
            Id.
       21
      Social Security Administration Press Office, Social
Security Administration, Fact Sheet (July 20, 2006),
http://www.ssa.gov/pressoffice/factsheets/basicfact-alt.pdf.
       22
            Id.

                                        -17-
      Also, we do not find the emotional hardship the victims

suffered in this case to be of such intensity as to justify such a

dramatic departure from the Guideline range.                 In this respect, we

find instructive the Second Circuit’s decision in United States v.

Mandel.23 In that case, the defendant feigned a romantic attraction

to numerous older women in order to defraud them of their savings.

After calculating the defendant’s offense level, the district court

departed upward 4 levels based on extreme psychological injury to

the victims.        On appeal, the Second Circuit vacated the sentence,

noting that the record evidence of psychological trauma could not,

standing alone, support the 4 level upward departure, because both

the   base       offense   level   for   fraud   and   the    vulnerable   victim

adjustment had already taken into account the harm to the victims.24

The court explained that “[f]raud will generally tend to reduce its

victims’ self-esteem, as well as their bank accounts.”25

      We have the same reaction to the district court’s discussion

of the emotional distress the victims suffered in this case.

Beyond the finding that Ms. Scott began relying on a prescription

sleep aid after the fraud, there is no evidence in the record that

she or any other victims required medical treatment for their

emotional        distress.     The   circumstances     here,     while   somewhat

atypical, are not so exceptional as to justify the extraordinary
      23
           991 F.2d 55 (2d. Cir. 1993).
      24
           Mandel, 991 F.2d at 59.
      25
           Id.

                                         -18-
upward departure assessed by the district court.26

     In sum, we conclude that the financial vulnerability of

victims and the related emotional hardship make this case somewhat

atypical and justify an upward departure.       However, the Sentencing

Commission   has   substantially    accounted   for   these    aggravating

characteristics of the defendant’s conduct by providing for a

vulnerable victim enhancement and an enhancement based on the

amount of the fraud.      While we recognize the deference due a

district court’s sentence, we find no circumstance in this case

that takes it so far beyond the heartland of fraud offenses as to

“eviscerate the Guidelines of all applicability.”             The district

court’s sentence, which is 3 times the mid-Guideline range, was

therefore unreasonable.

     Our review of the record persuades us that a sentence beyond

twice the top of the Guidelines range (92 months) would fail

reasonableness review under the facts presented here.27         In setting
     26
      Cf. id. (testimony by elderly female victim that, as a
result of a financial fraud, she had lost her job, seen a
therapist, and become reticent to pursue romantic interests in
other men, did not support an upward departure since offense
level and vulnerable victim adjustment took harm to victim into
account).
     27
      We consider two somewhat analogous Guidelines provisions
in this determination. One provision, U.S.S.G. §
2B1.1(13)(B)(iii), recommends a 4 level enhancement where a fraud
offense substantially endangered the solvency or financial
security of 100 or more victims. The other provision, U.S.S.G. §
2B1.1(12)(A), recommends a 2 level departure where the offense
involved the conscious or reckless risk of death or serious
bodily injury. On a severity scale, we are unable to see how the
defendant’s conduct or the result of that conduct could be
considered significantly more serious than envisioned by these

                                   -19-
this maximum sentence, we are not precluding the district court

from imposing a lower sentence.28

                               VI.

     For the foregoing reasons, we AFFIRM Rajwani’s conviction.

However, we VACATE Rajwani’s sentence and REMAND the case to the

district court for resentencing consistent with this opinion.

AFFIRMED IN PART.

VACATED IN PART.

REMANDED.




two Guidelines sections, which, if assessed here, would call for
a 6 level increase in the offense level and a Guidelines range of
70-87 months.
     28
      See United States v. MacLeod, 80 F.3d 860, 869 (3rd Cir.
1996) (vacating upward departure sentence as unreasonable and
remanding with instructions setting a ceiling for resentencing;
two level departure was upper bound for reasonableness); see also
United States v. Thurston, 456 F.3d 211, 220 (1st Cir. 2006)
(vacating sentence imposed as unreasonable and remanding with
instructions setting a floor for resentencing); United States v.
Moreland, 437 F.3d 424, 437 (4th Cir. 2006) (same).


                               -20-
