     Case: 13-31124      Document: 00512736716         Page: 1    Date Filed: 08/18/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 13-31124                                FILED
                                  Summary Calendar                        August 18, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

EVERS F. HARRIS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                              USDC No. 3:10-CR-71


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
       Evers F. Harris appeals the 85-month sentence imposed following his
conviction by a jury of eight counts of mail fraud related to a Ponzi scheme. In
his sole issue on appeal, he contends that the district court erred by imposing
a two-level vulnerable victim enhancement. Finding no error, we affirm.
       A defendant may receive a two-level increase in his offense level if he
“knew or should have known that a victim of the offense was a vulnerable


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 13-31124

victim.” U.S.S.G. § 3A1.1(b)(1). The commentary explains that a “vulnerable
victim” means a victim of the offense “who is unusually vulnerable due to age,
physical or mental condition, or who is otherwise particularly susceptible to
the criminal conduct.” U.S.S.G. § 3A1.1, comment (n.2). This court ordinarily
reviews the determination of unusual vulnerability for clear error. See United
States v. Angeles-Mendoza, 407 F.3d 742, 747 (5th Cir. 2005).
      The district court relied on the testimony of Harris’s aunt, Lepora Paige,
that she told Harris she had cancer and wanted to invest money so that her
children would have money to bury her. See United States v. Gieger, 190 F.3d
661, 665 (5th Cir. 1999). Harris contends that the district court misconstrued
Ms. Paige’s testimony as indicating that she was dying of cancer at the time
she decided to invest when, in fact, she had been cancer free for five years.
Harris did not challenge the district court’s purported mischaracterization at
the time of sentencing. We need not decide whether the more stringent plain
error standard applies, see, e.g., United States v. Garcia-Mendez, 420 F.3d 454,
455-56 (5th Cir. 2005), because the enhancement passes muster under the
clearly erroneous standard.
      Harris does not dispute that he knew that Ms. Paige had been diagnosed
with breast cancer at some point. Even if she had been cancer free for five
years at the time she invested, as Harris maintains, her testimony
demonstrates that she remained fearful that she might still die of cancer and
wanted to invest her money to cover her funeral costs. Harris told her that in
the event she died, he would send money to her children. The district court
reasonably could have concluded that Ms. Paige was thus more susceptible to
Harris’s fraudulent investment scheme than the average person, and that
Harris knew of and exploited that vulnerability. Thus, the district court’s
conclusion that Ms. Paige was a vulnerable victim was not clearly erroneous.



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                               No. 13-31124

See Angeles-Mendoza, 407 F.3d at 747.     We need not reach the parties’
alternative arguments regarding whether any other victims were vulnerable
due to age or other factors.
      AFFIRMED




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