IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-21063
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUKE CHRISTOPHER YANEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-95-CR-221-1
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October 21, 1998
Before POLITZ, Chief Judge, and WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
Luke Christopher Yanez appeals from his sentence following
conviction for two counts of aiding and abetting to commit mail
fraud, three counts of mail fraud in connection with a
telemarketing operation, and two counts of wire fraud in
connection with a telemarketing operation. Yanez first argues
that the district court clearly erred in applying a two-level
vulnerable-victim adjustment pursuant to U.S.S.G. § 3A1.1(b). A
finding of unusual vulnerability is reviewed for clear error, “to
determine whether the district court’s conclusion was plausible
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 96-21063
-2-
in light of the record as a whole.” United States v. Robinson,
119 F.3d 1205, 1218 (5th Cir. 1997)(internal quotation and
citation omitted), cert. denied, 118 S. Ct. 1104 (1998). Yanez
admitted that he had purchased the names and telephone numbers of
his victims as a list of individuals who were believed to have
previously participated in other telemarketing schemes. There
was evidence that this list also included personal notes
affirming the victims’ susceptibility to fraudulent schemes. The
district court did not commit clear error by increasing Yanez’s
sentence pursuant to § 3A1.1(b).
Yanez also contends that the district court erred in
upwardly departing from the Sentencing Guidelines when
determining his sentence. This court generally reviews a
district court’s decision to depart from the Sentencing
Guidelines for abuse of discretion. See United States v.
Ravitch, 128 F.3d 865, 869 (5th Cir. 1997). However, because
Yanez failed to object to this upward departure in the district
court, consideration of this issue is limited to plain error
review. See id. The district court based the six-level upward
departure equally on three factors: (1) the large number of
victims (over 1,000 individuals); (2) the fact that many of the
victims were elderly; and (3) Yanez’s avoidance of money-
laundering charges by virtue of his plea agreement. There was no
error, plain or otherwise.
Accordingly, the sentence imposed by the district court is
AFFIRMED.