Birge: Affirming imposition of "vulnerable victim" enhancement

In U.S. v. Birge, No. 15-15042 (July 26, 2016), the Court affirmed the imposition of a “vulnerable victim” sentence enhancement, pursuant to U.S.S.G. § 3A1.1(b)(1), for a chief clerk of a Georgia probate court who used access to bank accounts through probate court to conservatorships of minors and incapacitated adults to write herself checks. Birge argued that the “vulnerable victim” enhancement should apply, because Eleventh Circuit caselaw indicated that the guideline applied to persons who “target” a vulnerable victim, and there was no evidence that she had done so. The Court pointed out that while an older version of the Guideline had used the word “target,” it was amended to now read that it applies to a person who knew or should have known that the victim was vulnerable. The Court found that its prior discussion of “target” was dicta, because none of them involved a defendant who was not eligible for the enhancement unless he targeted victims. Here, because Birge knew or should have known that the victims of her scheme were vulnerable, the enhancement applied.