NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0513n.06
No. 08-1110
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Aug 16, 2010
) LEONARD GREEN, Clerk
Plaintiff-Appellee, )
)
v. ) On Appeal from the United States
) District Court for the Western
ROBERT W. STOKES, ) District of Michigan
)
Defendant-Appellant. )
Before: BOGGS, MOORE, and GIBSON,* Circuit Judges
BOGGS, Circuit Judge. Following a jury trial, Dr. Robert W. Stokes (“Stokes”) was
convicted of thirty-one counts of health-care fraud, and sentenced to 126 months of imprisonment.
Stokes now appeals his conviction on the grounds that the district court erroneously admitted
government evidence relating to past audits conducted by medical insurers. Stokes appeals his
sentence on the grounds that the district court erroneously applied the Sentencing Guidelines’ 250-
victim and vulnerable-victim enhancements, and on the grounds that the court afforded the
Sentencing Guidelines excessive weight in determining his sentence. We hold that the district court
did not abuse its discretion by admitting the complained-of evidence against Stokes and, therefore,
affirm his conviction. We conclude, however, that the district court clearly erred in applying the
*
The Honorable John R. Gibson, Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
No. 08-1110
USA v. Stokes
vulnerable victim enhancement, and thus vacate Stokes’s sentence and remand the case to the district
court for resentencing.
I
Dr. Robert W. Stokes was a licensed, board-certified dermatologist who practiced medicine
in Grand Rapids, Michigan. In 2001, federal agents began an investigation into Stokes’s billing
practices to determine whether Stokes was up-coding certain outpatient surgical procedures–that is,
billing Medicare and insurers for more expensive procedures than he actually performed. This
investigation revealed significant improprieties in Stokes’s billing practices. In particular, Stokes
frequently billed “shaved excisions” as more costly “full-thickness excisions,” and likewise billed
less complex closure techniques as expensive “adjacent tissue transfers.” Stokes also often billed
for both an office visit and a surgical procedure on the same day–a practice that insurers normally
prohibit–by indicating that he was also treating surgical patients for impetigo. Based on the results
of this investigation, a federal grand jury returned an indictment charging Stokes with multiple
counts of health-care fraud.
Prior to trial, the government notified Stokes that it intended to utilize correspondence and
audit notifications (the “audit evidence”) to show Stokes’s knowledge of relevant billing rules and
specific intent to defraud. This evidence, in relevant part, fell into two general categories: (1) letters
from insurance providers addressing relevant billing rules and questioning Stokes’ above-average
surgical billings; and (2) documents and testimony concerning audit notifications that Blue Cross
Blue Shield of Michigan (BCBSM) sent to Stokes in 2000 and 2002.
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Stokes responded with a motion in limine to exclude the audit evidence. The district court
rejected this motion, concluding that “evidence of prior warnings is relevant as to the defendant’s
knowledge and intent.” To prevent the jury from making improper use of the audit evidence,
however, the court required the government to prepare stipulations and redacted versions of
documents that would properly limit the information available to the jury.
At trial, Stokes asserted good faith as his defense: he contended that all improper billing was
a product of honest mistakes, not of an intent to defraud. To rebut this defense, the government
presented the redacted audit evidence and stipulations. The government also called a BCBSM
employee to testify regarding relevant portions of audit notices sent to Stokes in 2000 and 2002.
Each time the government presented such audit evidence, the court issued instructions to the jury
indicating that the evidence only served as evidence of the defendant’s knowledge and intent.
Similarly, the district court included a limiting instruction in its charge to the jury that detailed the
permissible and impermissible uses of the audit evidence.
Following the presentation of evidence, the jury found Stokes guilty of thirty-one counts of
heath-care fraud. The district court then proceeded to determine Stokes’s sentence. It began by
calculating the applicable advisory Guidelines range. Counting Stokes’s patients amongst his
victims, the district court applied a six-level enhancement for an offense involving 250 or more
victims, as provided by USSG §2B1.1(b)(2)(C). The court concluded, however, that the full six-
level enhancement was disproportionate to the pecuniary harm suffered by Stokes’s patients, and
thus it departed downward two levels. The district court also found that USSG §3A1.1(b)(1)’s two-
level vulnerable-victim enhancement applied to Stokes, apparently based on “the nature of the
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USA v. Stokes
relationship between . . . a patient and a physician.” After factoring in these and other enhancements,
the district court reached a total offense level of 32 , yielding an advisory Guidelines range of 121
to 151 months of imprisonment.
Noting that “the guidelines are advisory,” the court then proceeded to consider the 18 U.S.C.
§ 3553 sentencing factors, as well as Stokes’s request for a variance based on his “exemplary” life.
The court decided not to grant such a variance. Taking into account the § 3553 sentencing factors,
the court determined that a sentence of 126 months of imprisonment was appropriate. Stokes timely
appealed.
II
A
On appeal, Stokes challenges his conviction on the grounds that the district court erroneously
admitted the audit evidence against him. He first argues that the audit evidence was inadmissible
hearsay. Although the district court admitted the audit evidence only to show Stokes’s knowledge
of auditors’ warnings and guidance, Stokes asserts that the district court could not so neatly cabin
the evidence. In Stokes’s view, the auditors’ statements could only have given him notice of the
defects in his billing if he accepted those statements as true. Accordingly, Stokes believes that the
audit evidence only demonstrated that he possessed relevant knowledge if the jury accepted the truth
of the auditors’ out-of-court statements.
This court reviews a district court’s hearsay determinations for abuse of discretion. Biegas
v. Quickway Carriers, Inc., 573 F.3d 365, 378 (6th Cir. 2009). The rule against hearsay prohibits
the admission of “a statement, other than one made by the declarant while testifying at the trial or
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USA v. Stokes
hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801, 802; see
also United States v. Blackwell, 459 F.3d 739, 755 (6th Cir. 2006). It does not, however, prohibit
admission of an out-of-court statement for purposes other than proving the truth of the matter
asserted. Stalbosky v. Belew, 205 F.3d 890, 895 (6th Cir. 2000). Rather, “[i]f the significance of an
offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything
asserted, and the statement is not hearsay.” Fed. R. Evid. 801 advisory committee’s note to
subdivision (c); see also Stalbosky, 205 F.3d at 895. Accordingly, an out-of-court statement is not
hearsay if it is offered only to show that a party had knowledge of its contents. Stalbosky, 203 F.3d
at 895; United States v. Johnson, 71 F.3d 539, 543 (6th Cir. 1995).
In this case, the district court properly admitted the audit evidence to show that Stokes had
knowledge of auditors’ warnings and guidance. Contrary to appellant’s argument, the jury did not
need to accept the truth of the auditors’ assertions to conclude that Stokes had relevant knowledge.
Without determining the veracity of the auditors’ statements, the jury could have concluded that
Stokes, having read the auditors’ statements, was aware of questions concerning his billing practices
and had received guidance that contradicted his current methodology. The jury could then have
interpreted Stokes’s decision to disregard the auditors’ concerns in one of two ways: (1) as an
innocent decision based on his honest belief that he was using the correct billing method, or (2) as
evidence that he deliberately disregarded the coding rules. The jury’s choice of interpretation did
not necessarily rest upon any assumption regarding the truth of the auditors’ statements. Rather, the
jury may well have chosen its interpretation based on the sheer number of warnings that Stokes
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USA v. Stokes
ignored.1 Thus, by use of an appropriate limiting instruction, the district court was able to properly
cabin the audit evidence. As a result, the district court acted within its discretion when it determined
that the audit evidence fell outside the rule against hearsay.2
B
Stokes next argues that the audit evidence was impermissible “other acts” evidence admitted
in violation of Federal Rule of Evidence 404(b). He argues that his “disputes” with insurers were
not genuinely material to any fact in the case. Instead, they merely served as impermissible character
evidence that bolstered the government’s theory of guilt. Further, even if the audit evidence was
material to some issue in the case, Stokes argues that the danger that the jury would misuse the
evidence far outweighed the evidence’s probative value. Finally, according to Stokes, the judge’s
limiting instructions to the jury could not prevent misuse, and, even if they could, the instructions
themselves were inadequate.
This court reviews a district court’s Rule 404(b) determinations for abuse of discretion.
United States v. Carney, 387 F.3d 436, 451 (6th Cir. 2004); see also General Electric Co. v. Joiner,
522 U.S. 136, 141 (1997) (“[A]buse of discretion is the proper standard of review of a district court’s
1
If multiple sources repeatedly warn about the same issue, a decision to ignore them without
reassessing current practices or consulting a reliable authority takes on a more sinister quality.
2
Because we find that the audit evidence was not used as hearsay, we do not address
appellant’s argument that admission of the audit evidence violated his Sixth Amendment
confrontation right. See United States v. Pugh, 405 F.3d 390, 399 (6th Cir. 2005) (“The admission
of a testimonial statement in and of itself is not enough to trigger a violation of the Confrontation
Clause. Instead, the statement must be used as hearsay–in other words, it must be offered for the
truth of the matter asserted.”).
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USA v. Stokes
evidentiary rulings.”); but see United States v. Ayoub, 498 F.3d 532, 547 (6th Cir. 2007) (reviewing
for clear error the district court’s determination that the “other act” took place, de novo the district
court’s determination that the evidence was admissible for a proper purpose, and for an abuse of
discretion the district court’s determination regarding the probative value of the evidence). Rule
404(b) prohibits the admission of “other crimes, wrongs, or acts . . . to prove the character of a
person in order to show action in conformity therewith.” Yet it permits admission of such evidence
for other purposes, including as proof of intent, knowledge, or absence of mistake. Fed. R. Evid.
404(b). This court has outlined a four-step process for the admission of Rule 404(b) evidence:
First, the proponent of the evidence must identify the specific purpose of the ‘other
acts’ evidence. Second, the district court must decide whether the identified purpose
is at issue in the case. Third, if the purpose is at issue, the district court must weigh
the probative value against the danger of unfair prejudice. Finally, if the district
admits the evidence, it must then clearly instruct the jury as to the purpose for which
the jury may consider the evidence.
United States v. Abboud, 438 F.3d 554, 581 (6th Cir. 2006) (citations omitted).
In this case, the district court properly completed all four steps of this process when it
admitted the audit evidence. First, the district court correctly concluded that the audit evidence
served permissible 404(b) purposes. The audit evidence demonstrated that Stokes received warnings
and guidance regarding his billing practices. Stokes’s decision to disregard the warnings and persist
in his existing practices tended to suggest that Stokes knew of and intended the mis-billings that he
perpetrated–that is, his erroneous billings were not the product of an honest mistake. Accordingly,
the audit evidence was probative with regard to three 404(b) purposes: it tended to show (1)
knowledge, (2) intent, and (3) absence of mistake.
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The district court also correctly determined that these three purposes were at issue. Health-
care fraud requires proof of intent to defraud. United States v. Davis, 490 F.3d 541, 549 (6th Cir.
2007). Far from conceding such intent, Stokes asserted a defense of good-faith mistake, thereby
placing knowledge, intent, and absence of mistake at issue.
Next, the district court rightly concluded that the probative value of the audit evidence
outweighed its potential prejudicial impact. Stokes’s decision to persist in the same billing practices
after receiving repeated complaints served as relatively strong evidence that he acted with the
required knowledge and intent. Although there was some danger that the jury would misuse the
evidence to make improper character-related inferences, that danger always exists with Rule 404(b)
evidence. Admittedly, the similarity between the audit evidence and the charged crimes may have
increased the risk of misuse. Yet this court “give[s] the evidence its maximum reasonable probative
force and its minimum reasonable prejudicial value.” United States v. Seymour, 468 F.3d 378, 386
(6th Cir. 2006). Under this standard, the audit evidence simply did not create a sufficient danger of
unfair prejudice to outweigh its potential probative value. C.f. United States v. Holden, 557 F.3d
698, 705 (6th Cir. 2009) (finding, in a case where the defendant asserted ignorance of wrongdoing
as a defense, that the probative value of a report tending to show the defendant’s knowledge of past
violations outweighed the prejudice that arose from the similarity of the past violations to the
charged crime).
Finally, the district court issued appropriate instructions to the jury regarding the permissible
uses of the audit evidence. Each time the government offered the audit evidence, the judge carefully
and clearly explained the purpose of the evidence to the jury. The court’s final charge to the jury
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USA v. Stokes
utilized the Sixth Circuit’s pattern criminal jury instruction with only minor modifications. See
Comm. on Pattern Criminal Jury Instructions, District Judges Association, Sixth Circuit, Pattern
Criminal Jury Instructions (rev. 2008). These instructions adequately cabined the jury’s
consideration of the audit evidence. Further, because the audit evidence did not pose an unusually
high danger of unfair prejudice, the district court had no reason to doubt that jurors would obey their
instructions. C.f. United States v. Neuhausser, 241 F.3d 460, 469 (6th Cir 2001) (recognizing a
“presumption that jurors follow their instructions”).
The district court thus did not abuse its discretion when it found the audit evidence
admissible under Rule 404(b).
C
The district court did not abuse its discretion by admitting the audit evidence, and there is
thus no basis to reverse appellant’s conviction.
III
Stokes challenges his sentence on three separate grounds, all pertaining to its procedural
reasonableness. This court reviews a district court’s sentencing determinations for reasonableness.
United States v. Hunt, 487 F.3d 347, 350 (6th Cir. 2007). Reasonableness review includes both
substantive and procedural components. United States v. Moon, 513 F.3d 527, 539 (6th Cir. 2008).
In assessing procedural reasonableness, this court focuses on whether the district court properly
considered the factors set forth in 18 U.S.C. § 3553(a). Ibid. One of these factors is consultation
of the Sentencing Guidelines and correct calculation of the Guidelines range. 18 U.S.C. §
3553(a)(4). The district court acts unreasonably if it assigns undue weight to the Guidelines and
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USA v. Stokes
treats them as mandatory. Moon, 513 F.3d at 539. The district court also acts unreasonably when
it misinterprets the Guidelines or miscalculates the applicable Guidelines range. United States v.
Bolds, 511 F.3d 568, 579 (6th Cir. 2007). In assessing whether the district court has properly applied
the Sentencing Guidelines, this court reviews the district court’s factual findings for clear error and
gives due deference to the district court’s application of the Guidelines to the facts. Moon, 513 F.3d
at 539-40. The court reviews the district court’s legal conclusions regarding the Sentencing
Guidelines de novo. Id. at 540.
A
Stokes first challenges the district court’s application of the 250-victim enhancement
authorized by USSG §2B1.1(b)(2)(C). He argues that it was improper for the district court to count
his patients among his victims, as the only victims of health-care fraud are health-care benefit
programs. Even if his patients did properly count as victims, appellant asserts that there was
insufficient evidence to support a factual finding that 250 patients suffered pecuniary harm. Finally,
assuming that there was sufficient evidence that 250 patients suffered harm, appellant argues that
the resulting enhancement was grossly disproportionate to the harm alleged. According to Stokes,
he should have fallen within a “de minimis” exception to the 250-victim rule, or at least should have
received a substantial downward departure.
USSG §2B1.1(b)(2)(C) provides for a six-level enhancement if the defendant perpetrated a
fraud on “250 or more victims.” The commentary to §2B1.1 defines “victim” to include “any person
who sustained any part” of the “reasonably foreseeable pecuniary harm that results from the offense.”
USSG §2B1.1, comment. (nn.1, 3). The district court concluded that this definition was broad
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USA v. Stokes
enough to include patients who pay excessive copays and fees as a result of health-care fraud. We
agree. For the purposes of §2B1.1(b)(2), the definition of “victim” is not tethered to the elements
of any particular offense.3 So long as a person suffers reasonably foreseeable pecuniary harm as a
result of an offense, he qualifies as a victim. Since it is reasonably foreseeable that patients will pay
elevated copays and fees as a result of health-care fraud, patients who suffer such pecuniary harm
count amongst the victims of the fraud. Cf. Moon, 513 F.3d at 541 (finding that patients can qualify
as victims of health-care fraud for the purposes of USSG §3A1.1(b)(1)).
We also find no clear error in the district court’s factual conclusion that 250 of Stokes’s
patients were, in fact, victims of his fraud. When a district court relies on its own findings of fact
in calculating a Guidelines range, it must base its findings on reliable information and a
preponderance of the evidence. United States v. Yagar, 404 F.3d 967, 972 (6th Cir. 2005). In this
case, the government presented BCBSM and Medicare records indicating that, over a five-year
period, Stokes filed claims for the treatment of impetigo in over 1000 of his patients. Given expert
testimony on the rarity of impetigo, it was fair for the district court to conclude that, more likely than
not, most (and certainly more than one-quarter) of these claims were false. Both Medicare and
BCBSM required their insureds to pay either a copay or a portion of their medical bill, and no
3
Appellant appears to believe that United States v. Madden, 403 F.3d 347 (6th Cir. 2005),
stands for the proposition that each criminal statute protects only a specified class of victims to the
exclusion of all others. This is incorrect. Madden merely recognizes that certain crimes like vote
buying do not involve harm to any identifiable person, meaning that their only victim is “society at
large.” See Madden, 403 F.3d at 350 (suggesting that vote buying results in a net gain from the vote
seller’s perspective). In contrast to vote buying, health-care fraud does involve harm to identifiable
victims: both health-care benefit programs and patients suffer pecuniary loss as a result of health-
care fraud.
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USA v. Stokes
evidence suggested that Stokes excused his patients from making these payments. Thus, even
assuming that supplemental insurance covered some of these fees, there was sufficient evidence to
support the district court’s finding that Stokes had probably collected elevated copays and fees from
over 250 patients.
Finally, we do not believe that the enhancement imposed under §2B1.1(b)(2)(C) was “grossly
disproportionate” to the harm done. First, contrary to appellant’s belief, there is no “de minimis”
exception to the 250-victim enhancement.4 The commentary to §2B1.1 makes it clear that “any
person who sustained any part of the actual loss” counts as a victim for the purposes of
§2B1.1(b)(2)(C). USSG §2B1.1 comment. (n.1) (emphasis added). No dollar minimum applies!the
250-victim enhancement concerns itself entirely with the number of individuals victimized, not with
the degree to which each victim suffered harm. To the extent that the resulting enhancement
overstates the seriousness of the offense, the Guidelines address the problem not by creating a de
minimis exception, but by authorizing the district court to depart downward, which the court did.
See USSG §2B1.1 comment. (n.19).5
4
Application Note 3(D) does provide that the term “loss” excludes “interest of any kind, late
fees, penalties, amounts based on agreed-upon return . . . , or other similar costs” as well as “costs
to the government of . . . the prosecution and criminal investigation of an offense.” USSG §2B1.1
comment. (n.3). This indicates that individuals who suffer only these types of losses do not qualify
as victims (i.e.., because they do not suffer “actual loss”), but it does not disqualify all individuals
who suffer minimal losses from constituting “victims.”
5
Appellant suggests that United States v. Yagar recognized a de minimis exception to the
definition of “victim” under the Guidelines, but Yagar did no such thing. Rather, Yagar held that
individuals whose losses were “short-lived and immediately covered by a third-party” did not suffer
pecuniary harm or actual loss, and therefore did not qualify as victims. Yagar, 404 F.3d at 971
(emphasis added). Yagar focused not on the size of the loss, but on the practical effect of the result
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Second, appellant’s proportionality argument misconceives the purposes of Section
2B1.1(b)(2). That section seeks to penalize defendants purely for the scope of their fraud, not for
its dollar value.6 The six-level enhancement for injuring 250 or more victims embodies the
sentiment that a defendant’s brazen willingness to harm a large number of people alone merits a
substantial sentence increase. To the extent that Stokes demonstrated such willingness to harm a
large number of his patients, a six-level enhancement–and, by implication, the four-level
enhancement actually imposed by the court–was proportionate to the wrong done. Moreover, the
“extent of a downward departure” is within the district court’s “complete discretion” and thus
outside the scope of this court’s review. United States v. Puckett, 422 F.3d 340, 344 (6th Cir. 2005).
The district court acted within that discretion when it concluded that the circumstances did not
warrant more than a two-level downward departure.
In sum, we find no error in the district court’s application of the 250-victim enhancement.
B
Appellant next asserts that the district court should not have applied the vulnerable-victim
enhancement authorized by USSG §3A1.1(b)(1). Appellant argues that the district court clearly
erred when it found that the doctor-patient relationship was alone sufficient to justify imposition of
the vulnerable-victim enhancement.
of the offense conduct–in Yagar, the individuals suffered no loss as a result of the offense conduct.
6
Indeed, §2B1.1(b)(1) provides a separate enhancement based on the dollar value of the
defendant’s fraud.
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USSG §3A1.1(b)(1) provides for a two-level enhancement “[i]f the defendant knew or should
have known that a victim of the offense was a vulnerable victim.” The associated commentary
defines a vulnerable victim as “a person (A) who is a victim of the offense of conviction . . . and (B)
who is unusually vulnerable due to age, physical or mental condition, or who is otherwise
particularly susceptible to the criminal conduct.” USSG §3A1.1 comment. (n.2). The district court
concluded that Stokes’s patients were “vulnerable victims” because the nature of the doctor-patient
relationship rendered them particularly susceptible to fraud.7
This conclusion was clearly erroneous. A relationship alone can render a victim “particularly
susceptible to criminal conduct.” United States v. Gawthrop, 310 F.3d 405, 410 (6th Cir. 2002).
But there is a limited “range of relationships upon which a finding of victim vulnerability can be
predicated,” id., and that range thus far extends only to familial or quasi-familial relationships.
United States v. Gawthrop, 310 F.3d 405, 410 (6th Cir. 2002) (grandfather-granddaughter
relationship); see also United States v. Niece, 9 F.3d 110 (table), 1993 WL 424960, at *9 (6th Cir.
Oct. 19, 1993) (“father figure-daughter” relationship). Broadening that range to include the
traditional doctor-patient relationship would create two major problems:
First, it would suggest a per se rule that the enhancement is applicable whenever a
doctor [commits any crime that harms his patients]. All patients are vulnerable to
their physician to a certain extent, yet § 3A1.1 intends to punish a criminal who
7
The nature of the relationship between the perpetrator and the victim is not, of course, the
only basis upon which a court may impose the vulnerable-victim enhancement. Other circumstances,
such as the age, infirmity, or mental condition of the victim, may provide grounds for applying the
enhancement. USSG § 3A1.1 comment. (n.2). For example, it may be appropriate to enhance a
defendant’s sentence where “the defendant marketed an ineffective cancer cure or in a robbery in
which the defendant selected a handicapped victim.” Ibid. The district court, however, did not find
that such an alternative basis for imposing the vulnerable-victim enhancement existed.
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[preys upon] victims that are especially susceptible to the perpetrator’s criminal
design. . . . Second, to the extent that this application would hold that the element of
trust inherent in the doctor/patient relationship itself made the patients vulnerable
victims . . ., it would [meld the vulnerable-victim enhancement with the §3B1.3
abuse-of-position-of-trust enhancement and therefore risk] impermissible double
counting . . . .
United States v. Singh, 54 F.3d 1182, 1193 n. 7 (4th Cir. 1995). Accordingly, we hold that the
traditional doctor-patient relationship, on its own, provides an insufficient basis for applying the
vulnerable-victim enhancement. For that enhancement to apply, the district court must find that the
victim-patient was more vulnerable to the crime than the average patient upon whom the doctor
could prey. Ibid.; see also United States v. Grimes, 173 F.3d 634, 637 (7th Cir. 1999) (concluding
that vulnerable victims are those that “have a lower than average ability to protect themselves from
the criminal”).8
We therefore hold that the district court clearly erred when it applied the vulnerable victim
enhancement. As a result, the district court miscalculated Stokes’s Guidelines range and the
resulting sentence was procedurally unreasonable.9
8
The government argues that there is a second basis for applying the vulnerable-victim
enhancement: Stokes’s patients’ fear of having or developing skin cancer. It may be true that an
individual with a greater than average fear of developing skin cancer could qualify as a vulnerable
victim. But the district court made no finding to support that Stokes’s patients fit into this category,
or that he knew or should have known of this alleged vulnerability. There is thus no basis for
concluding that the vulnerable-victim enhancement should apply to Stokes.
9
We do not mean to suggest that the vulnerable victim enhancement could not possibly apply
in this case. On remand, the district court may evaluate the applicability of the vulnerable victim
enhancement under the proper interpretation of that provision, which we have set out.
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C
Because we find that an error in calculating Stokes’s Guidelines range rendered his sentence
procedurally unreasonable, we do not reach the question of whether the district court gave undue
weight to the Sentencing Guidelines.
IV
For the reasons stated above, we AFFIRM appellant’s conviction but VACATE his sentence
and REMAND to the district court for resentencing.
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