By: dmc-admin//July 30, 2001//
“Application Note 2 to sec. 3A1.1 (b)(1) … defines ‘vulnerable victim’ for purposes of the guidelines as a person (A) who is a victim of the offense of conviction and any conduct for which the defendant is accountable under sec. 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. The note does not say ‘age’ and ‘particular susceptibility’; it says ‘age’ or ‘particular susceptibility.’
“This is not to say that the enhancement provided by sec. 3A1.1(b)(1) is always required when the victim is elderly. There still must be some link between the vulnerability and the characteristic in question, here age. In the note’s words, the vulnerability must be ‘due to’ the age. But, as we found in Billingsley, an elderly person, alone, will be especially vulnerable to a crime involving physical violence. We therefore find no error in the district court’s decision, plain or otherwise, though we add that it would be highly unlikely in any event that we would find plain error in a district court’s decision to apply a directly applicable decision from this court.”
Affirmed.
Appeal from the United States District Court for the Northern District of Illinois, Gottschall, J., Wood, J.