                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-1666
                                   ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the Western
                                       * District of Missouri.
Paul David Anderson,                   *
                                       *
            Defendant - Appellant.     *
                                  ___________

                             Submitted: January 9, 2006
                                 Filed: March 16, 2006
                                   ___________

Before LOKEN, Chief Judge, HANSEN and MELLOY, Circuit Judges.
                              ___________

MELLOY, Circuit Judge.

      Paul David Anderson was a church leader involved in the sale of legitimate,
insurance-related investment products. Through these channels of introduction, he
gained the trust and personal financial information of twenty-two older people whom
he eventually defrauded in a complex investing scheme. Through the fraudulent
scheme, he caused the twenty-two victims to lose a combined total of more than one
million dollars. Some of the victims lost their entire life savings.
      A jury convicted Anderson of forty-nine counts of mail fraud, money
laundering, and engaging in transactions with property derived from unlawful activity
under 18 U.S.C. §§ 1341, 1956(a)(1)(A) and 1957. At sentencing, the court imposed
enhancements for use of sophisticated means, abuse of a position of private trust, and
exploitation of a large number of vulnerable victims. The court then imposed a
sentence of sixty months on the first forty-one counts and 108 months on the
remaining eight counts, all to run concurrently.

      In a prior appeal, we upheld findings that supported the abuse-of-trust and
sophisticated means enhancements. United States v. Anderson, 349 F.3d 568, 571,
574 (8th Cir. 2003). We determined, however, that the sentencing court’s findings
were insufficient to permit our review of the vulnerable victims enhancements. Id. at
573. Accordingly, we remanded for resentencing with instructions for the court to
make specific findings as to two issues: first, whether any victims of the offenses were
“unusually vulnerable victims” under U.S.S.G. § 3A1.1(b)(1); and second, if there
were any unusually vulnerable victims, whether there was a “large number of
unusually vulnerable victims” to justify an additional enhancement under U.S.S.G. §
3A1.1(b)(2).

       While the case was on appeal, Anderson filed liens against the property of the
original sentencing judge.1 Following our remand, the original judge recused himself,
and the case was assigned to a different district court judge.2 During resentencing, the
court heard testimony from numerous witnesses and expressly found that at least
thirteen of the victims were unusually vulnerable. The court stated that if the two-
level enhancement of U.S.S.G. § 3A1.1(b)(1) (for at least one unusually vulnerable


      1
        The State of Missouri brought felony charges against Anderson for filing the
liens, but it appears that Missouri has dropped the charges.
      2
      The Honorable Dean Whipple, Chief Judge, United States District Court for
the Western District of Missouri.

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victim) applied, the applicable advisory Guidelines range would be 87-108 months.
The court also stated that if the additional two-level enhancement of U.S.S.G. §
3A1.1(b)(2) (for a large number of unusually vulnerable victims) applied, the
applicable advisory Guidelines range would be 97-121 months. The court then stated
that the advisory Guidelines were “inadequate and insufficient to adequately identify
[Anderson’s] conduct.” The court imposed a sentence of sixty months on the first
forty-one counts and the statutory maximum sentence of 120 months on the last eight
counts, all to run concurrently.

       On appeal, Anderson argues that the higher sentence he received during
resentencing following his initial appeal is an impermissible, vindictive sentence
intended to punish him for having exercised his right to appeal. He also challenges
the district court’s findings as to unusual vulnerability, arguing that none of the
victims were unusually vulnerable. In this regard, he presents factual arguments based
on the victims’ ages, levels of education, job experiences, and/or investment
experiences. Regarding interpretation of the Guidelines, he claims that the district
court impermissibly “double dipped” by relying on the same facts to assess the abuse-
of-trust and vulnerable victim enhancements. Further, he argues that even if one or
more of the victims were unusually vulnerable, there were not enough unusually
vulnerable victims to comprise a large number for the purpose of U.S.S.G. §
3A1.1(b)(2). Finally, he argues that his sentence is unreasonable in light of United
States v. Booker, 543 U.S. 220 (2005), and the 18 U.S.C. § 3553(a) factors. We
affirm.

                              I. Vindictive Sentencing

       In North Carolina v. Pearce, 395 U.S. 711, 723 (1969), the Supreme Court held
that the imposition of a more severe sentence following retrial or resentencing was,
in general, permissible. The Court held, however, that an increased sentence
motivated by vindictiveness on the part of a sentencing judge was impermissible and

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a significant violation of a defendant’s due process rights. Id. at 725. The Court
articulated a presumption of vindictiveness and imposed a duty on sentencing courts
to fully explain more severe sentences:

      In order to assure the absence of such a motivation, we have concluded
      that whenever a judge imposes a more severe sentence upon a defendant
      after a new trial, the reasons for his doing so must affirmatively appear.
      Those reasons must be based upon objective information concerning
      identifiable conduct on the part of the defendant occurring after the time
      of the original sentencing proceeding. And the factual data upon which
      the increased sentence is based must be made part of the record, so that
      the constitutional legitimacy of the increased sentence may be fully
      reviewed on appeal.

Id. at 726. The Court did not discuss the impact that the use of a different sentencing
judge might have on the analysis. See Texas v. McCullough, 475 U.S. 134, 140 n.3
(1986) (noting that the facts of Pearce actually involved a different sentencing judge
following remand but that “the Court did not focus on it as a consideration for its
holding”). Rather, the Court suggested the blanket rule that only facts arising after an
initial sentencing could justify a more severe sentence on resentencing. Pearce, 395
U.S. at 726.

      As explained by the Court in Alabama v. Smith, 490 U.S. 794 (1989), a series
of subsequent rulings limited the effect of Pearce and clarified that a presumption of
vindictiveness only arises where there is a “‘reasonable likelihood’ that the increase
in sentence is the product of actual vindictiveness on the part of the sentencing
authority.” Id. at 799 (quoting United States v. Goodwin, 457 U.S. 368, 373 (1982)).
“Where there is no such reasonable likelihood, the burden remains upon the defendant
to prove actual vindictiveness.” Id. The parties in the present case disagree as to
whether such a reasonable likelihood exists and, consequently, as to whether the
government or the defendant bears the burden of proof.



                                          -4-
       Some of the Supreme Court’s rulings after Pearce involved situations where a
different judge or jury imposed the increased sentence. See McCullough, 475 U.S.
at 140 (a fifty-year sentence imposed by a judge on retrial following a successful
appeal from a twenty-year sentence was not vindictive where a jury imposed the
twenty-year sentence and the second trial revealed additional evidence about the
crime); Chaffin v. Stynchcombe, 412 U.S. 17, 28 (1973) (no presumption of
vindictiveness applied where a second jury imposed a more severe sentence following
a successful appeal from a first trial); Colten v. Kentucky, 407 U.S. 104, 119 (1972)
(refusing to apply a presumption of vindictiveness in the context of Kentucky’s two-
tiered trial court system where a superior court judge conducting a de novo trial
imposed a more severe sentence than a misdemeanor, inferior court judge had
imposed in an initial trial of the same defendant). These cases, cited in Smith,
strongly suggest that a reasonable likelihood of vindictiveness may be absent if a
different sentencing judge with no stake in the initial proceedings handles
resentencing.

       The rule suggested by these cases makes sense because the motivation to be
vindictive arises when a judge with a personal stake in the prior proceedings is “asked
to do over what [her or she] thought [he or she] had already done correctly.” Colten,
407 U.S. at 117. In Colten, the Court also noted that, with different sentencers, there
is no more reason to presume that the second, higher sentence was motivated by
vindictiveness than to presume that the initial sentence was the product of unjustified
leniency. Id. Similarly, in Chaffin, the Court stated that a “jury, unlike the judge who
has been reversed, will have no personal stake in the prior conviction and no
motivation to engage in self-vindication.” 412 U.S. at 27. Finally in McCullough, the
Court stated, “The presumption is also inapplicable because different sentencers
assessed the varying sentences . . . . In such circumstances a sentence ‘increase’
cannot truly be said to have taken place.” 475 U.S. at 140.




                                          -5-
       Other circuits have interpreted this line of cases as authority for the proposition
that no presumption of vindictiveness arises when a different judge imposes a more
severe sentence during resentencing and the record contains non-vindictive reasons
for the more severe sentence. Macomber v. Hannigan, 15 F.3d 155, 156-57 (10th Cir.
1994); United States v. Newman, 6 F.3d 623, 630-31 (9th Cir. 1993); United States
v. Cheek, 3 F.3d 1057, 1064 (7th Cir. 1993); Rock v. Zimmerman, 959 F.2d 1237,
1257 (3d Cir. 1992), overruled on other grounds by Brecht v. Abrahamson, 507 U.S.
619 (1993); United States v. Perez, 904 F.2d 142, 145-46 (2d Cir. 1990). We agree
with the position adopted by these circuits. To apply a presumption of vindictiveness
in such circumstances—where the second sentencer had no personal stake in the prior
proceedings—would require an inference of institutionalized hostility toward the
exercise of appellate rights or a collusive arrangement between judges to have one
exact vindication for another. There is no evidence to suggest such a lack of
professionalism among judges, and we are unwilling to make such inferences on the
present facts. Here, it was the defendant’s own acts following the initial sentencing
that forced the original judge to recuse himself from the case and required the
appointment of a substitute judge for resentencing. With that new sentencing judge
came a new point of view and a new approach to the exercise of the considerable
discretion afforded under 18 U.S.C. § 3553(a).

       On these facts, we do not recognize a presumption of vindictiveness.
Accordingly, the burden to prove actual vindictiveness rests with the defendant.
Because Anderson relies on no evidence other than the fact of the longer sentence to
prove vindictiveness, his arguments fail. Further, the higher sentence on remand is
easily explained by the district court’s permissible and clearly expressed views




                                           -6-
unrelated to the prior appeal.3 The more severe sentence imposed during resentencing
does not violate Anderson’s due process rights.

                               II. Vulnerable Victims

      The parties allege some confusion as to whether the district court actually
applied only the two-level enhancement of U.S.S.G. § 3A1.1(b)(1) or the additional
two-level enhancement of U.S.S.G. § 3A1.1(b)(2) to determine the advisory
Guidelines range. Careful review of the sentencing transcript eliminates the alleged
confusion. The district court identified two possible advisory Guidelines sentencing
ranges, 87-108 months and 97-121 months. The court then declared the Guidelines
inadequate and insufficient to address Anderson’s conduct and imposed the 120-
month sentence. The record clearly shows that the district court believed itself to be
imposing a sentence above the advisory Guidelines range. Accordingly, the advisory
Guidelines range adopted by the district court had to have an upper limit below 120
months. Had the advisory Guidelines range been 97-121 months, the sentence
imposed would have been within the advisory range, and the district court would not
have needed to declare the Guidelines inadequate and insufficient. Accordingly, we
conclude that the district court determined the advisory Guidelines range to be 87-108
months and did not apply the additional two-level, “large number of vulnerable
victims” enhancement of U.S.S.G. § 3A1.1(b)(2). That having been said, we urge all
sentencing courts to eliminate any possibility of ambiguity as to their final advisory
Guidelines determinations.

     The Guidelines range of 87-108 months involved only the two-level
enhancement of section 3A1.1(b)(1). The enhancement under subsection (b)(1)

      3
       The transcript of the resentencing proceedings demonstrates that the district
court viewed the defendant’s offense as particularly underhanded and the defendant
as manipulative and unremorseful.


                                         -7-
required a finding of only one unusually vulnerable victim. Accordingly, we need not
review the district court’s findings that thirteen of the victims were unusually
vulnerable. We also need not address the issue of how many unusually vulnerable
victims are required to constitute a “large number.” U.S.S.G. § 3A1.1(b)(2). Because,
as explained below, we find that the district court committed no clear error in finding
at least one unusually vulnerable victim, use of the two-level enhancement was
appropriate. See Anderson, 349 F.3d at 571 (stating that we review the factual finding
of a particular victim’s unusual vulnerability for clear error).

       One of the twenty-two victims of the defendant’s fraudulent scheme was Juanita
Butler. Ms. Butler was elderly when she invested her savings with the defendant,
eighty-four years old at the time of the indictment, and has since died. Her daughter,
Kathleen Sumner (also a victim of the defendant’s scheme), testified at the
resentencing hearing regarding Ms. Butler’s education, job experience, and
association with the defendant. Ms. Butler received an eighth grade education. None
of her work experiences—she raised a family, milked cows on a farm, and worked as
a cashier at a restaurant in a shopping mall—demonstrate an exposure to or an
understanding of investments. In fact, she had no investment experience outside of
her connection with the defendant. Before the defendant obtained Ms. Butler’s money
in the scheme that led to his convictions, he established a living trust for her. This
gave him access to her personal financial information. Ms. Sumner also stated that
the defendant used his role as a minister to gain Ms. Butler’s trust and that Ms. Butler
was a religious woman likely to place her trust in a minister. Ms. Sumner testified
specifically that on one occasion she arrived at Ms. Butler’s house when the defendant
was presenting literature about a church to Ms. Butler. When Ms. Sumner asked the
defendant about the literature, he slid it beneath other papers and refused to talk about
it.

       Based on the totality of Ms. Butler’s abilities and circumstances, we find no
clear error in the district court’s determination that Ms. Butler was an unusually

                                          -8-
vulnerable victim. In making this determination, we do not apply a blanket
assumption that an advanced age is sufficient to render a victim vulnerable. Rather,
we find the testimony regarding Ms. Butler’s age, education, work experience, lack
of investment experience, and particular susceptibility to persuasion by a church
leader sufficient to support the district court’s finding of unusual vulnerability.

      We also find no error regarding use of the abuse-of-trust and vulnerable victim
enhancements in the same case. The abuse-of-trust enhancement relates to the
characteristics of the defendant and the role he served. The vulnerable victim
enhancement relates to the characteristics of the victim and the susceptibility of the
victim to the defendant’s specific conduct. It is possible to have one enhancement
without the other or to have both in the same case. See, e.g., United States v. Della
Rose, 435 F.3d 735, 738 (7th Cir. 2006) (affirming as reasonable a sentence that
involved a vulnerable victim enhancement and an abuse of trust enhancement); United
States v. Moskal, 211 F.3d 1070, 1073-75 (8th Cir. 2000) (affirming an upward
departure in a case in which the sentencing court found both a vulnerable victim
enhancement under section 3A1.1(b)(1) and an abuse-of-trust enhancement under
section 3B1.3 inadequate to fully address the severity of a defendant’s conduct).

                                 III. Reasonableness

       Finally, we find the sentence reasonable under Booker. The district court did
not fail to consider relevant factors, give substantial weight to irrelevant factors, nor
commit any identifiable clear errors of judgment in weighing the permissible factors.
United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005).

      The judgment of the district court is affirmed.
                     ______________________________




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