                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0271n.06

                                          No. 15-3003

                          UNITED STATES COURT OF APPEALS                              FILED
                               FOR THE SIXTH CIRCUIT                            May 17, 2016
                                                                            DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                               )
                                                        )
       Plaintiff-Appellee,                              )
                                                        )       ON APPEAL FROM THE
v.                                                      )       UNITED STATES DISTRICT
                                                        )       COURT FOR THE
DARNELL NASH,                                           )       NORTHERN DISTRICT OF
                                                        )       OHIO
       Defendant-Appellant.                             )


       Before: COOK and KETHLEDGE, Circuit Judges; SARGUS, District Judge.*

       KETHLEDGE, Circuit Judge. Darnell Nash pled guilty to numerous charges of mail and

wire fraud, identity theft, and money laundering. The district court sentenced her to 175 months’

imprisonment. She appeals her sentence. We reject her arguments and affirm.

                                                I.

       Between March 2012 and January 2013, Nash and several accomplices conspired to file

fraudulent claims for unemployment insurance in at least six states. Nash registered as a fake

employer in those states. Then, in low-income neighborhoods, she and her co-conspirators

distributed flyers purporting to offer financial assistance. When people called the hotline on the

flyers, one of the conspirators asked for the callers’ names, dates of birth, and Social Security




       *
         The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern
District of Ohio, sitting by designation.
No. 15-3003, United States v. Nash


numbers. The conspirators then used that information to apply for unemployment benefits.

Nash obtained over $360,000 from the state unemployment agencies through this scheme.

        A federal grand jury indicted Nash on one count of conspiracy to commit mail and wire

fraud, ten counts of aiding and abetting wire fraud, twenty counts of aiding and abetting mail

fraud, one count of aiding and abetting aggravated identify theft, and one count of aiding and

abetting money laundering. See 18 U.S.C. §§ 1349, 1343, 1341, 1028A(a)(1), 1957, 2. Nash

pled guilty to all counts.

        The district court calculated a sentencing guidelines range of 151 to 188 months, based in

part on a two-level enhancement for defrauding vulnerable victims, and a four-level

enhancement for defrauding over 50 victims. See U.S.S.G. §§ 3A1.1(b), 2B1.1. The court

sentenced Nash to 151 months’ imprisonment for all the wire and mail fraud counts, a concurrent

term of 120 months for money laundering, and a consecutive term of 24 months for identity

theft, for a total of 175 months. The court also ordered Nash to pay $361,341 in restitution. This

appeal followed.

                                                II.

        We review the reasonableness of the district court’s sentence for an abuse of discretion.

United States v. Volkman, 797 F.3d 377, 398 (6th Cir. 2015). We review the court’s legal

conclusions regarding the sentencing guidelines de novo, and its factual findings when applying

the guidelines for clear error. United States v. Galloway, 439 F.3d 320, 322 (6th Cir. 2006).

                                                A.

        Nash argues that the court had insufficient evidence to apply the vulnerable-victim

enhancement to her sentence. Section 3A1.1(b) of the Sentencing Guidelines provides for a two-

level enhancement when “the defendant knew or should have known that a victim of the offense



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No. 15-3003, United States v. Nash


was a vulnerable victim.” A vulnerable victim is someone 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(b), App. Note 2. This unusual susceptibility includes victims

“predisposed to the very scam” at issue. See United States v. Brawner, 173 F.3d 966, 973 (6th

Cir. 1999).

       Here, Nash targeted low-income neighborhoods with flyers stating that “[m]any

American families are struggling under an increasing number of bills, debts, and financial

obligations. When you and your family are experiencing this stress call us[.] We can help!”

Nash thus crafted a fraudulent message to which she thought her audience would be “particularly

susceptible.” That her scheme netted $360,000 suggests that her audience was as susceptible as

Nash thought it would be. The district court did not clearly err in finding the enhancement

applicable.

                                               B.

       Nash also argues that the court had insufficient evidence to apply the multiple-victim

enhancement to her sentence. The version of the Sentencing Guidelines in place when the court

sentenced Nash included a four-level enhancement for fraud offenses “involv[ing] 50 or more

victims[.]” U.S.S.G. § 2B1.1(b)(2)(B) (2014). In identity-theft cases, a victim is anyone who

suffered an actual loss as well as anyone “whose means of identification was used unlawfully or

without authority.” U.S.S.G. § 2B1.1, App. Note 4(E).

       Nash admits that she fraudulently used more than 50 people’s identities. She contends

that those people were not victims, however, because they voluntarily provided their

information. But those people did not consent to the use of their information in a mail and wire




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No. 15-3003, United States v. Nash


fraud scheme. Suffice it to say that victims of identity theft are victims for purposes of this

enhancement. See U.S.S.G. § 2B1.1, App. Note 4(E).

                                               C.

       Finally, Nash argues that the court’s refusal to grant her a downward departure from her

guidelines range was substantively unreasonable.     A district court may grant a downward

departure from the guidelines range for mitigating circumstances not adequately represented in

the guidelines. U.S.S.G. § 5K2.0(a)(2)(B). But “we do not review a district court’s decision not

to depart downward unless the record shows that the district court was unaware of, or did not

understand, its discretion to make such a departure.” United States v. Reilly, 662 F.3d 754, 759

(6th Cir. 2011).

       The mitigating circumstance that Nash cites here is her gender dysphoria, and her

concomitant desire to transition from a man to a woman. But the district court allowed both

Nash and her lawyer to argue at length about Nash’s gender dysphoria at sentencing. And the

court then explicitly considered and rejected a downward departure. R. 126 at PageID 749; 752-

57; 763. The record thus makes clear that the court was aware of its discretion to make a

downward departure and chose not to make one. Thus we have nothing further to review.

       The district court’s judgment is affirmed.




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