                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         OCT 17 2001
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,
          Plaintiff - Appellee,                         No. 01-5031
 v.                                               (D.C. No. 00-CR-56-BU)
 DENNIS EARL WILLIAMS,                                  (N.D. Okla.)
          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before SEYMOUR and McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.



      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). The case is therefore submitted without

oral argument.

      Mr. Williams pled guilty to three counts of a thirteen-count mail fraud

indictment on June 16, 2000, and was sentenced on February 7, 2001, to forty-six

months on each of the three counts, with the sentences to run concurrently. Mr.


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Williams was also placed upon supervised release for three years and ordered to

pay $413,790.74 in restitution. The district court based Mr. Williams’ sentence

on the United States Sentencing Commission Guidelines. On appeal, Mr.

Williams challenges the district court’s findings that his victims qualified as

vulnerable victims under Guidelines Section 3A1.1(b) and that Mr. Williams

abused a position of trust under Guidelines Section 3B1.3. Each finding resulted

in a two point enhancement under the Guidelines. We have jurisdiction pursuant

to 28 U.S.C. § 1291.

      Mr. Williams advertised and solicited clients for whom he prepared living

trusts. While reviewing his clients’ finances, Mr. Williams informed the clients

that they were receiving an inadequate return on their investments. Mr. Williams

promised that as an agent of Zenith Investment Group he could guarantee a

minimum 7 1/2% return on all money invested. As clients “invested,” Mr.

Williams mailed confirmation letters, monthly interest payment checks, and

account statements to convince his clients that their investments in Zenith were

secure. Convinced of the investment’s security and profitability, many clients

made additional investments in Zenith at Mr. Williams’ behest. Unfortunately,

Zenith did not exist; instead, Mr. Williams appropriated nearly all of the invested

funds for his personal use.

      On appeal, Mr. Williams first challenges the district court’s two point


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enhancement for vulnerable victims pursuant to USSG § 3A1.1(b), which reads,

“If the Defendant knew or should have known that a victim was a vulnerable

victim, increase by 2 levels.” We apply a de novo standard of review in questions

of interpretation and application of the Guidelines. See United States v.

Hershberger, 962 F.2d 1548, 1550 (10th Cir. 1992). The district court’s factual

findings underlying a vulnerable victim enhancement are reviewed under a clearly

erroneous standard. See United States v. Tissnolthtos, 115 F.3d 759, 761 (10th

Cir. 1997).

      The Guidelines provide that “[a] victim’s elderly status, without more, is

insufficient to justify a vulnerable victim enhancement.” Id. at 761. “In order to

classify a victim as ‘vulnerable,’ ‘the sentencing court must make particularized

findings of vulnerability.’” United States v. Brunson, 54 F.3d 673, 676 (10th Cir.

1995) (citation omitted). Additionally, “[t]he focus of the inquiry must be on the

‘victim’s personal or individual vulnerability.’” Id. (citation omitted). Only one

vulnerable victim is required to justify the application of a vulnerable victim

enhancement. See United States v. Pearce, 967 F.2d 434, 435 (10th Cir. 1992).

      Mr. Williams argues that there is no evidence of vulnerability other than

the age of the victims and that the district court failed to make specific findings

as to vulnerability. See Appellant Brief at 10-12. The district court found that at

least five of Mr. Williams’ victims qualified as vulnerable victims under the


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Guidelines, because the victims “were elderly and unexperienced concerning

investment matters.” Appellee Appendix at 95. The victims also “lacked

sophisticated financial knowledge,” and Mr. Williams was aware of his victims’

financial condition in his role as their trust advisor. Id. The district court based

its findings on the presentence report and testimony of the victims’ family

members. We cannot say that these findings were clearly erroneous.

      This court has previously held that a vulnerable victim enhancement is

proper in cases where “the victims were elderly, unsophisticated retirees who

were fraudulently induced to invest their retirement funds in a phony investment

scam.” Brunson, 54 F.3d at 676; see also United States v. Lowder, 5 F.3d 467,

472 (10th Cir. 1993). The district court correctly found that Mr. Williams’

victims were vulnerable victims under Section 3A1.1(b)(1) of the Guidelines.

      Mr. Williams next argues that the district court incorrectly applied the

abuse of trust enhancement to his sentence. The district court’s findings

concerning the abuse of trust enhancement are subject to the same level of review

as the vulnerable victim enhancement. Section 3B1.3 of the Guidelines provides,

“If the defendant abused a position of public or private trust, or used a special

skill, in a manner that significantly facilitated the commission or concealment of

the offense, increase by 2 levels.”

      Mr. Williams argues that the trust created between himself and the victims


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resulted from “his personality or the victims’ credulity,” rather than the position

Mr. Williams occupied. Appellant brief at 15, 17. Our decision in United States

v. Queen, 4 F.3d 925 (10th Cir. 1993), is instructive. In Queen, we upheld an

abuse of trust enhancement because the defendant falsely represented “that

investors’ money would be used to purchase precious metals and currencies.” Id.

at 926. Similar to Mr. Williams’ scam, the funds were not invested and the

defendant sent “false profit statements to its investors.” Id.

      Like Queen, Mr. Williams “held himself out to be at least the equivalent of

an investment advisor/broker and he provided objective indicia to his victims that

he was occupying such a role.” Id. at 929. More egregiously, Mr. Williams

became aware of his victims’ financial status in his role as their trust advisor.

The district court’s determination that Mr. Williams occupied a position of trust is

not clearly erroneous, and the district court correctly enhanced Mr. Williams’

sentence.

      The record supports the district court’s findings of fact; and its decision to

enhance Mr. Williams’ sentence based on the vulnerability of his victims and his

abuse of a position of trust was correct. As a result, we AFFIRM the district

court’s decision.

                                                Entered for the Court

                                                Monroe G. McKay
                                                Circuit Judge

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