[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 17, 2008
No. 07-12618 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-14090-CR-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEONARD P. BOGDAN, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 17, 2008)
Before BIRCH, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Leonard Bogdan appeals his sentence of 360 months of imprisonment for
conspiracy to commit mail fraud, mail fraud, and money laundering. Bogdan
argues that the district court should not have enhanced his sentence for targeting
vulnerable victims, United States Sentencing Guidelines § 3A1.1(b)(1) (Nov.
1998); involving a large number of vulnerable victims, id. § 3A1.1(b)(2); and
abusing a position of trust, id. at § 3B1.3. We affirm.
We review de novo the application of the vulnerable-victim and abuse-of-
position-of-trust enhancements to a sentence. United States v. Amedeo, 370 F.3d
1305, 1317 (11th Cir. 2004); United States v. Ward, 222 F.3d 909, 911 (11th Cir.
2000). “The district court’s determination of a victim’s ‘vulnerability’ is, however,
essentially a factual finding to which we give due deference.” Amedeo, 370 F.3d
at 1317 (quoting United States v. Arguedas, 86 F.3d 1054, 1057 (11th Cir. 1996)).
“‘We review the district court’s fact findings’” regarding an abuse of trust “‘for
clear error.’” Ward, 222 F.3d at 911 (quoting United States v. Mills, 138 F.3d 928,
941 (11th Cir. 1998)).
Bogdan argues that the enhancement for a vulnerable victim of section
3A1.1(b) requires that the jury determine beyond a reasonable doubt whether a
defendant knew or should have known that his victims were vulnerable, but we
disagree. The only reference to a jury finding pertains to a victim of a hate crime,
U.S.S.G. § 3A1.1 cmt. n.1, but Bogdan was not convicted of a hate crime. See
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United States v. Saunders, 318 F.3d 1257, 1264 (11th Cir. 2003) (“‘Where
Congress includes particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or exclusion.’”) (quoting
Russello v. United States, 464 U.S. 16, 23, 104 S. Ct. 296, 300 (1983) (internal
quotation marks omitted)). The district court was required to make the findings
about Bogdan’s enhancement.
The district court did not err by applying the vulnerable-victim
enhancements to Bogdan’s sentence. The evidence established that Bogdan
marketed his investments to a large number of senior citizens. U.S.S.G. §
3A1.1(b)(1), (b)(2). He enticed retirees, in person and in advertisements and
articles submitted to a free local newspaper, to invest their income by touting a 10
to 14 percent return on secured investments. Bogdan’s investors were
predominantly 70 years old or older, possessed a minimal level of financial
sophistication, and relied on the income to maintain their standard of living. See
United States v. Rudisill, 187 F.3d 1260, 1268–69 (11th Cir. 1999). The
investigation revealed that Bogdan also targeted repeatedly the same investors.
See United States v. Day, 405 F.3d 1293, 1296 (11th Cir. 2005).
The district court also did not err by finding that Bogdan abused a position
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of trust. Bogdan exploited a fiduciary relationship with his clients by
misrepresenting that he had invested their money in exchange for either a secured
mortgage or a promissory note. Bodgen instead diverted those funds to make
unsecured loans and interest payments to investors, pay agents’ commissions and
operating costs, and satisfy personal obligations. Cf. United States v. Yount, 960
F.2d 955, 957–58 (11th Cir. 1992).
Bogdan’s sentence is AFFIRMED.
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