             Case: 15-12794    Date Filed: 12/16/2015   Page: 1 of 5


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 15-12794
                           Non-Argument Calendar
                         ________________________

                   D.C. Docket No. 3:13-cr-00218-TJC-JBT-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

HAROLD B. WALBEY, III,
Bond,

                                                            Defendant-Appellant.

                         ________________________

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

                              (December 16, 2015)

Before MARCUS, JORDAN and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Harold B. Walbey III appeals his 51-month sentence, imposed after he

pleaded guilty to committing wire fraud, in violation of 18 U.S.C. § 1343, and

identity theft, in violation of 18 U.S.C. § 1028(a)(7), (b)(2). On appeal, Walbey
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argues that the district court clearly erred by applying a two-level vulnerable

victim sentencing enhancement pursuant to U.S.S.G. § 3A1.1(b)(1). After careful

review, we affirm.

      We review de novo the district court’s application of the sentencing

guidelines but must give due deference to the district court’s factual findings.

United States v. Kapordelis, 569 F.3d 1291, 1315–16 (11th Cir. 2009). However,

objections to sentencing calculations raised for the first time on appeal are

reviewed for plain error. United States v. Moran, 778 F.3d 942, 977 (11th Cir.

2015). Plain error requires that the defendant establish three factors: (1) error, (2)

that is plain, and (3) that affects substantial rights. United States v. Hesser, 800

F.3d 1310, 1324 (11th Cir. 2015). If these conditions are satisfied, we may, in our

discretion, recognize a forfeited error where the error “seriously affects the

fairness, integrity or public reputation of judicial proceedings.” Id. (quotation and

brackets omitted).    With regard to sentencing, the defendant must show a

“reasonable probability” that he would have received a shorter sentence but for the

error. United States v. Jones, 743 F.3d 826, 830 (11th Cir. 2014).

      The vulnerable victim enhancement 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 “a person

(A) who is a victim of the offense of conviction and any conduct for which the


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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.” U.S.S.G. § 3A1.1, comment.

(n.2). The enhancement applies when a defendant targets his victim based on the

victim’s perceived susceptibility to the offense. Moran, 778 F.3d at 978. Neither

bodily nor financial harm to the victim is required for the enhancement. Id. Both a

victim’s circumstances and immutable characteristics can render a victim

vulnerable for the purposes of the enhancement. United States v. Bradley, 644

F.3d 1213, 1288 (11th Cir. 2011). Furthermore, the determination to apply the

enhancement “must take into account the totality of the circumstances, including in

some cases the victim’s membership in a certain class or occupation.” United

States v. Frank, 247 F.3d 1257, 1260 (11th Cir. 2001).

      In this case, Walbey failed to object to the factual basis for the vulnerable

victim enhancement in district court, and has failed to show that the district court

plainly erred in applying the enhancement. As the record reveals, the victims of

Walbey’s identity theft -- inmates at the Duval County Jail, where Walbey worked

as a correctional officer -- were particularly susceptible to Walbey’s scheme since

their identifying information was available to Walbey in his role as a correctional

officer. Walbey knew the victims were particularly susceptible to his scheme

because they were incarcerated and unemployed, making them unlikely to file tax


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returns. Moreover, Walbey targeted inmates with longer prison sentences whom

he perceived as less likely to file tax returns, thereby reducing the odds he would

be caught. And in some cases, Walbey used the same inmate’s name multiple

times to file a fraudulent tax return. In fraud cases “the repeated targeting of a

victim . . . constitutes evidence that the defendant knew the victim was particularly

vulnerable to the fraud scheme.” United States v. Day, 405 F.3d 1293, 1296 (11th

Cir. 2005).    Thus, Walbey’s victims were individuals “otherwise particularly

susceptible” to his criminal activity within the meaning of § 3A1.1(b)(1).

      Walbey argues that the district court improperly treated the inmates as a

general class of per se vulnerable victims, and vulnerability “would have to be

determined through an individual evaluation and analysis of each pre-trial detainee

victim.” However, in previous cases we have examined victims as groups, and not

individually, for particularized vulnerabilities. See United States v. Malone, 78

F.3d 518, 523 (11th Cir. 1996) (holding dispatched cab drivers are vulnerable

victims due to their obligation to stop for strangers who may intend them harm);

see also United States v. Phillips, 287 F.3d 1053, 1057-58 (11th Cir. 2002)

(holding a particular group of bank tellers were vulnerable victims due to their

remote location with little police protection).

      In any event, even if the district court did err in imposing the vulnerable

victim enhancement, Walbey cannot show that the error affected his substantial


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rights or seriously affected the integrity, fairness, or public reputation of the

proceedings. See Jones, 743 F.3d at 830 (holding the fourth prong of the plain

error analysis satisfied where the defendant was given a mandatory minimum

sentence which exceeded the otherwise applicable statutory maximum). Had the

district court not applied the vulnerable victim enhancement, Walbey’s sentence

would have been at the bottom of the adjusted guideline range of 51-63 months.

Furthermore, the district court’s statements at sentencing suggest the district court

considered the enhancements, although correctly applied, to overlap. The district

court’s comments demonstrate that, based on the seriousness of the crime, it

considered the sentence imposed to be appropriate.1

       AFFIRMED.




1
  To the extent Walbey asks this Court to reconsider the holdings in United States v. Bazile, 590
F. App’x 870 (11th Cir. 2014), a party abandons a claim that is not adequately addressed in its
brief. United States v. King, 751 F.3d 1268, 1277 (11th Cir. 2014), cert. denied, 135 S. Ct. 389
(2014). Terse statements or argument in passing are insufficient to save an issue from
abandonment. Id. Because Walbey mentioned Bazile without discussion or support from
authority, Walbey has abandoned this argument.
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