United States v. Scurlock

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 94-60178

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARY SCURLOCK,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Mississippi
(May 8, 1995)

Before WISDOM, JONES, and EMILIO M. GARZA, Circuit Judges.
WISDOM, Circuit Judge.

Mary Scurlock, the defendant/appellant, was convicted by

a jury on two counts of mail fraud and acquitted of a charge of

conspiracy to commit mail fraud by participating in a scheme to

commit money order fraud. Her conviction is the result of her

involvement in an altered money order scheme organized by an inmate

at Parchman Penitentiary, Mississippi, where Scurlock was employed

as a guard. Scurlock seeks review of the denial of her motion to

suppress a confession, the admission of documents she contends were

not properly authenticated, and her sentence. We AFFIRM her

conviction but VACATE her sentence and REMAND for resentencing.
 I.

In April of 1993, a grand jury for the Northern District

of Mississippi indicted Mary Scurlock and other defendants of

conspiracy to commit mail fraud by participating in a scheme to

commit money order fraud. Scurlock was also charged with two

substantive counts of mail fraud. Scurlock, employed as a prison

guard at Parchman Penitentiary, was accused of assisting an inmate,

Porter Shorter, in his money order scheme. Shorter would contact

his victims through personal advertisements in "lonely hearts type

magazines"1 and try to gain their trust with the promise of a

relationship. Then, Shorter would send his victims altered money

orders, with an apparent value of $700 but a true value of only $1.

The victims would deposit the money orders, return the funds to

Shorter, and become liable for the difference between the apparent

value of the money orders and their true value. Scurlock allegedly

became involved in the plan in 1992 when Shorter became nervous

about his wife smuggling the illegal proceeds to him at the prison.

According to evidence presented by the government, Scurlock

received two Express Mail packages at her personal post office box

sent by Shorter's wife. The packages contained approximately

1
Indictment, Count 1, paragraph 2 appearing in the Record,
volume 1 at 2. Unfortunately, Parchman Penitentiary has a long
history of inmates successfully perpetrating the same type of
altered money order scheme. See e.g., United States v. Jackie
Brown, 7 F.3d 1155 (5th Cir. 1995) (the appeal of a former contract
food manager at Parchman convicted for conspiracy to alter and pass
altered postal money orders and mail fraud); United States v. Leroy
Brown, 941 F.2d 1300 (5th Cir. 1991) (affirming the conviction and
sentence of a former Parchman correctional case manager who was
convicted of possessing heroin with the intent to distribute it to
prisoners and also accused of aiding in an altered money order
scam).
$1,200 of illegal profits which Scurlock delivered to Shorter.

Scurlock allegedly received $25 to $30 per package for her

services.

During the investigation of this scheme, two U.S. Postal

Inspectors, Agent Cooper and Agent McCarran, interrogated Scurlock

about her involvement. During a work day, Scurlock was asked to

meet investigators at the prison's Internal Affairs Office. The

defendant arrived at the office in her own vehicle at about 3:50

p.m. At that meeting, the Postal Inspectors had in their

possession evidence that Scurlock had received and signed for two

packages mailed by Shorter's wife. After Scurlock initially denied

any involvement, the investigators told her they believed she was

involved and read the defendant her Miranda warnings. Scurlock

signed a "Warning and Waiver of Rights" at 4:06 p.m.2

The investigators continued their interrogation and

2
The first section of the "Warning and Waver of
Rights" detailed Scurlock's right to remain silent and her right to
an attorney. The document also stated:

[i]f you decide to answer questions now
without a lawyer present, you will still have
the right to stop answering at any time. You
also have the right to stop answering at any
time until you talk to a lawyer.

Scurlock signed and dated the document immediately below the quoted
sentences. The waiver section of the document, which Scurlock also
signed and dated, stated:

I am willing to discuss subjects presented and
answer questions. I do not want a lawyer at
this time. I understand and know what I am
doing. No promises or threats have been made
to me and no pressure or coercion of any kind
has been used against me.

3
Scurlock admitted that she had received packages on behalf of

Shorter containing cash which she delivered to Shorter at the

prison. The investigators prepared a summary of Scurlock's

statement but also had Scurlock repeat her basic confession on

tape. According to Scurlock, before her statement was recorded she

invoked her right to counsel when, while waiting for Agent McCarran

to retrieve the tape recorder, she told Agent Cooper that she

needed a lawyer.3

According to the testimony of the investigators, at the

end of the interview, Scurlock asked what would happen to her. The

investigators replied by citing the case of another guard convicted

on similar charges who received only six months in prison. The

investigators contrasted that case with the case of another guard

who did not cooperate and was expected to receive a longer

sentence. According to Scurlock, this exchange occurred before she

admitted involvement in the scheme and the investigators' comments

regarding a six month sentence represented an implied promise which

rendered her subsequent confession involuntary.

Before trial the defendant made a motion to suppress her

statements to the investigators alleging that the confession was

involuntary and that the recorded statement was obtained after she

3
The full exchange, according to Scurlock's testimony
at the suppression hearing, was that Agent Cooper told her that she
would be indicted for her participation in the scheme. Scurlock's
response was that she needed a lawyer. Agent Cooper then gave
Scurlock the district attorney's business card and suggested that
once Scurlock employed a lawyer, he or she should contact the
district attorney listed on the card. Her recorded confession was
taped after this exchange. Record, volume 2 at 55-65.

4
had invoked her right to counsel in violation of Miranda. The

trial court denied this motion. After a one week trial, the jury

found Scurlock not guilty on the count of conspiracy but guilty on

the two counts of mail fraud. The defendant was sentenced to 24

months in prison. The sentence was based on a determined loss of

value of $10,186 and increases for more than minimal planning,

abuse of a position of trust, and a finding that the victims were

vulnerable. The defendant now appeals both the conviction and

sentence.

II.

A. Admissibility of Confession

The defendant argues that her incriminating statements to

the Postal Inspectors investigating the scheme were involuntary

because of the agents' comments to her regarding the sentence she

could expect to receive. Specifically, Scurlock alleges that the

agents made an implied promise of a six month sentence if she

confessed and threatened her with a longer sentence if she refused

to cooperate. The government, in response, argues that the

discussion regarding sentences occurred after Scurlock's statements

and could not, therefore, have had any impact on her decision to

cooperate. Even assuming the chronology of events occurred as the

defendant testified, the government argues that the agents simply

responded to Scurlock's questions by citing examples of sentences

that other similarly situated guards had received but that no

promises or threats were made.

5
 The trial court held a hearing on the defendant's motion

to suppress at which both Postal Inspectors and the defendant

testified regarding the interrogation at the Internal Affairs

Office. The trial court concluded in its factual findings that the

exchange regarding the sentence Scurlock could expect took place

after the interrogation was completed. Further, the trial court

determined that the agents discussed the possible sentence but

"carefully avoided any promises of leniency to Ms. Scurlock".4 On

appeal, we must accept the findings of fact of the trial court

unless we find that they are clearly erroneous.5 The ultimate

question of voluntariness is a legal question which we review de

novo.6

A confession is voluntary if, "under the totality of the

circumstances, the statement is the product of the accused's free

and rational choice".7 To be considered voluntary, a confession

cannot be the product of "official overreaching, in the form either

of direct coercion or subtle forms of psychological persuasion".8

The government carries the initial burden of showing by a

4
Order denying the defendant's motion to suppress at
3. See, Record, volume 2 at 63.
5
United States v. Ornelas-Rodriguez, 12 F.3d 1339,
1346-47 (5th Cir.), cert. denied, 114 S.Ct. 2713 (1994), 115 S.Ct.
103 (1994); United States v. Restrepo, 994 F.2d 173, 183 (5th Cir.
1993).
6
Restrepo, 994 F.2d at 183.
7
Id. at 183. (citations omitted).
8
United States v. Rojas-Martinez, 968 F.2d 415, 418
(5th Cir. 1992), cert. denied, 113 S.Ct. 828 (1992), 113 S.Ct. 995
(1993). (citations omitted).

6
preponderance of the evidence that the defendant waived her rights

and that the statements she made were voluntary.9

In this case, after hearing the testimony of Scurlock and

the two investigators, the trial court determined that the

conversation between Scurlock and the investigators regarding an

expected sentence occurred after Scurlock admitted involvement in

the mail order scheme. Thus, any implied promise could not have

affected Scurlock's decision to cooperate. We find that the

district court's decision to credit the testimony of the government

witnesses over the defendant was not clearly erroneous. Further,

even if the order of events were reversed, "a truthful and

noncoercive statement of the possible penalties which an accused

faces may be given to the accused without overbearing one's free

will".10 This Court concludes that the district court did not err

in finding that Scurlock's confession was voluntary.

Scurlock also challenges the admissibility of the taped

version of her statement because she alleges that before that

recording was made, she invoked her right to counsel and

questioning should have stopped. The full exchange, according to

Scurlock's testimony at the suppression hearing, was that Agent

Cooper told her that she would be indicted for her participation in

the scheme. Scurlock's response was that she needed a lawyer.

Agent Cooper then gave Scurlock the district attorney's business

9
Restrepo, 994 F.2d at 183.
10
United States v. Ballard, 586 F.2d 1060, 1063 (5th
Cir. 1978); see also, Hawkins v. Lynaugh, 844 F.2d 1132, 1139-41
(5th Cir.), cert. denied, 488 U.S. 900 (1988).

7
card and suggested that once Scurlock employed a lawyer, he or she

should contact the district attorney listed on the card. Her

recorded confession was taped after this exchange. The government

responds by arguing that Scurlock was not in custody at the time of

the interview and that she did not invoke her right to counsel at

any time.

Scurlock is correct when she asserts that if, after

waiving the right to counsel, an accused invokes the right to have

counsel present during further questioning, all questioning must

cease.11 The Supreme Court has recently held, however, that the

right to counsel must be clearly invoked by the accused.12 That is,

if a suspect who is the subject of questioning makes an ambiguous

comment from which a reasonable police officer "would have

understood only that the suspect might be invoking the right to

counsel, our precedents do not require cessation of questioning".13

Further, the investigator conducting the questioning has no

obligation to attempt to clarify the ambiguous comment of the

accused.14 Thus, "after a knowing and voluntary waiver of the

11
Edwards v. Arizona, 451 U.S. 477, 485-86 (1981); see
also, Griffin v. Lynaugh, 823 F.2d 856 (5th Cir. 1987), cert.
denied, 484 U.S. 1079 (1988); United States v. Jardina, 747 F.2d
945 (5th Cir. 1984), cert. denied, 470 U.S. 1058 (1985).
12
Davis v. United States, 114 S.Ct. 2350, 2355 (1994).

13
Id.
14
Id. at 2356 (noting that clarifying questions after
an ambiguous comment by the accused regarding counsel may be good
police practice but refusing to "adopt a rule requiring officers to
ask clarifying questions").

8
Miranda rights, law enforcement officers may continue questioning

until and unless the suspect clearly requests an attorney".15

In this case, the defendant signed a waiver which

detailed her ability to invoke her right to counsel at any time and

end the questioning. The comment Scurlock made regarding an

attorney was after she admitted involvement in the scheme and after

she had agreed to give a recorded statement. Scurlock's reference

to an attorney was made in response to an agent's comment that she

would be indicted in the future. Further, after taping began but

before the agents questioned Scurlock regarding her involvement,

the agents once again asked her if she was willing to answer their

questions.

In these circumstances, Agent Cooper was reasonable in

his conclusions that Scurlock had not changed her mind about

cooperating with their investigation or about recording her

statement. Rather, Scurlock's comment, in context, could

reasonably be understood to be a recognition by the defendant of

her need for an attorney in the future if the case reached the

indictment stage. Since Scurlock did not clearly invoke her right

to counsel, as required, the district court did not err when it

denied the defendant's motion to suppress.

B. Inconsistent Verdicts

Scurlock also challenges the district court's denial of

her post-verdict motion for a judgment of acquittal. The defendant

15
Id.

9
argues that since she was acquitted of the conspiracy charge (count

1), she necessarily could not be found guilty on the substantive

charges of mail fraud (counts 4 and 6). The elements of mail fraud

are participating in a scheme to defraud and causing the mails to

be used for purposes of executing the scheme.16 Essentially,

Scurlock alleges that since, according to the jury, she did not

join the conspiracy, she necessarily cannot be found to have

participated in a scheme to defraud.

Although Scurlock contends that she is not challenging

the jury verdict because of its inconsistency, we see no other way

to characterize her this argument. Scurlock contends that if she

is not guilty of conspiracy, she cannot be guilty of mail fraud

since one element of mail fraud is participating in a scheme to

defraud. The target of this allegation is the inconsistency of the

jury's decision that Scurlock did not join the conspiracy but did,

according to the elements of mail fraud, participate in a scheme to

defraud. This argument must fail.

A jury can render inconsistent verdicts, "even where the

inconsistency is the result of mistake or compromise".17 And,

contrary to the conclusions of the defendant, an acquittal on the

conspiracy charge "does not necessarily equate with a finding that

16
United States v. Duncan, 919 F.2d 981 (5th Cir.
1990), cert. denied, 500 U.S. 926 (1991).
17
United States v. Williams, 998 F.2d 258, 262 (5th
Cir. 1993), cert. denied, 114 S.Ct. 940 (1994). (citations
omitted).

10
the defendant was innocent".18 The jury's verdict may have been

motivated by other considerations. The Supreme Court remarked on

this issue in United States v. Powell:

. . . [t]he most that can be said . . . is
that the verdict shows that either in the
acquittal or the conviction the jury did not
speak their real conclusions, but that does
not show that they were not convinced of the
defendant's guilt.19

Thus, the jury's acquittal of Scurlock on the conspiracy charge

does not require reversal of her conviction on the substantive

counts of mail fraud.

C. The Indictment

Scurlock also alleges a defect in the indictment. She

contends that the indictment itself made the conspiracy charge an

element of the mail fraud counts alleged in counts 4 and 6. In

alleging the first element of mail fraud, participation in a scheme

to defraud, the government referred back to the description of the

mail order scheme in count 1, the conspiracy charge. Scurlock

argues that, with this reference, the government made the

conspiracy charge an element of the substantive counts of mail

fraud.

This argument lacks merit. The government, in paragraphs

2 through 6 of count 1 of the indictment, described the basic

18
United States v, Straach, 987 F.2d 232, 241 (5th
Cir. 1993).
19
469 U.S. 57 (1981).

11
workings of the altered money order scheme. In counts 4 and 6, the

two counts of mail fraud against Scurlock, the government

incorporated by reference the factual description set forth in

count 1. The incorporation of material from count 1 did not

include the paragraphs of count 1 which alleged the conspiratorial

conduct.

Scurlock argues that the allegations of a conspiracy were

incorporated and became an essential element of the counts of mail

fraud. This inaccurately characterizes the content of the

indictment. Under Federal Rule of Criminal Procedure 7(c)(1), the

government is allowed to incorporate material by reference. In

this case, the government chose to refer to any earlier factual

description rather than repeat it. This reference did not create

a defect in the indictment.

D. Admissibility of unauthenticated documents

Scurlock also contends that the trial court erroneously

admitted documentary evidence which was not properly authenticated

as required by Federal Rule of Evidence 901. The documents at

issue are letters sent by or to various co-conspirators which

detail different elements of the altered money order scheme. One

set of letters, apparently authored by Porter Shorter, was seized

by Postal Inspectors in the home of another co-conspirator, Jessie

Shorter. The remaining two sets of letters were delivered to the

Postal Inspectors by two alleged co-conspirators, Theretha Woods

and Peggy Bozeman. At trial, the government relied on the

12
testimony of an investigator regarding when and where the documents

were seized and by whom the other letters were delivered to

authenticate the documents.

Rule 901 provides that "[t]he requirement of

authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to support a

finding that the matter in question is what its proponents claim".

We review the district court's decision to admit the evidence for

abuse of discretion.20

Conclusive proof of authenticity is not required.21 "Use

of circumstantial evidence alone to authenticate a document does

not constitute error. . . . Fed.R.Evid. 901(a) requires only some

competent evidence in the record to support authentication".22 The

government can also rely on the contents of the letter to establish

the identity of the declarant.23 And, "the fact that no handwriting

analysis was done is not a bar to . . . admission".24 Here, a

Postal Inspector testified as to the circumstances under which the

letters were seized from or delivered by members of the conspiracy.

20
United States v. Dockins, 986 F.2d 888, 895 (5th
Cir.), cert. denied, 114 S.Ct. 149 (1993).
21
United States v. Wake, 948 F.2d 1422, 1434 (5th Cir.
1991), cert. denied, 112 S.Ct. 2944 (1992); United States v. Singh,
922 F.2d 1169, 1174 (5th Cir.), cert. denied, 500 U.S. 938 (1991).
22
Wake, 948 F.2d at 1434 (quoting United States v.
Elkins, 885 F.d 775 (11th Cir. 1989)).
23
United States v. Arce, 997 F.2d 1123, 1128 (5th Cir.
1993); Wake, 948 F.2d at 1434.
24
Wake, 948 F.2d at 1435 (quoting United States v.
Calbas, 821 F.2d 887 (2d Cir. 1987)).

13
Furthermore, most of the letters themselves are addressed to or

signed by co-conspirators. The jury was free to decide what weight

it would give the evidence.25 Under these circumstances, we find

no abuse of discretion in the district court's decision to admit

the letters into evidence.

E. Sentencing

Under the Sentencing Guidelines the base offense level

for mail fraud is six. In Scurlock's case, this was increased by

three levels after a finding that the amount of loss was over

$10,000. The defendant's offense level was also increased by a

total of six because the trial court found that Scurlock abused a

position of public trust, more than minimal planning was involved,

and the targets of the scheme were vulnerable victims. After

determining the sentencing range as 18 to 24 months, the trial

court sentenced Scurlock to 24 months for each count to run

concurrently. Scurlock challenges several of the trial court's

factual findings regarding her sentence.

We review the application of the Sentencing Guidelines de

novo.26 And, we review the trial court's findings of fact for clear

error.27 "A factual finding is not clearly erroneous as long as the

25
United States v. Whittington, 783 F.2d 1210, 1215
(5th Cir.), cert. denied, 479 U.S. 882 (1986).
26
United States v. Jackie Brown, 7 F.3d 1155, 1159
(5th Cir. 1993).
27
United States v. Sowels, 998 F.2d 249, 251 (5th Cir.
1993), cert. denied, 114 S.Ct. 1076 (1994).

14
finding is plausible in light of the record as a whole."28

1. Amount of Loss

Under U.S.S.G. §2F1.1, the base offense for mail fraud is

six. The Guidelines provide for an incremental increase of the

offense level if the loss suffered by the victims of the fraud was

over $2,000. In this case, the PSI recommended increasing

Scurlock's offense level by 3 because the amount of loss was

determined to be $10,186. Scurlock objected to this recommendation

and argued that her liability for sentencing purposes should be

limited to the $1,200 she actually handled. The district court

reserved ruling on this objection at the sentencing hearing but did

not address the issue in its later order answering the defendant's

objections to the PSI.

On appeal, Scurlock continues to argue that the offense

level for her sentence should be based on the $1,200 she actually

handled rather than the total amount of loss of the fraud scheme as

a whole. In other words, since her criminal acts only directly

involved $1,200, Scurlock argues that her sentence should not be

enhanced because of the additional losses caused by other members

of the scheme about whom Scurlock had no knowledge.

In response, the government cites U.S.S.G.

§1B1.3(a)(1)(B) which provides that relevant conduct includes all

the reasonably foreseeable acts of the members of a jointly

undertaken criminal activity. According to the government,

28
Jackie Brown, 7 F.3d at 1159.

15
Scurlock should be held accountable for the entire loss since it

was foreseeable that all the profits from the money order scam

would not be returned to the prisoners. That is, Scurlock should

have known that the $1,200 she received was merely a fraction of

the illegal profits gained from the scheme.

U.S.S.G. §1B1.3(a)(1)(B) provides that, for sentencing

purposes, a defendant is responsible for the reasonably foreseeable

acts of their partners taken in furtherance of a jointly undertaken

criminal activity. As noted in the comments, however, "the scope

of the criminal activity jointly undertaken by the defendant . . .

is not necessarily the same as the scope of the entire conspiracy,

and hence relevant conduct is not necessarily the same for every

participant".29 Also, Scurlock is only responsible for the amount

of loss that was reasonably foreseeable to her. For each

defendant, "reasonably foreseeability does not follow automatically

from proof that [the defendant] was a member of the conspiracy".30

Thus, a sentencing court cannot assume that all acts of each

participant in a jointly undertaken criminal activity were

reasonably foreseeable to all participants.31 In this case, two

findings are necessary: the amount of loss caused by the entire

conspiracy and the amount of loss reasonably foreseeable to

29
U.S.S.G. § 1B1.3(a)(1)(B) comment 2.
30
United States v. Puma, 937 F.2d 151, 160 (5th Cir.
1991), cert. denied, 502 U.S. 1092 (1992).
31
Puma, 937 F.2d at 160; United States v. Foy, 28 F.3d
464, 476 (5th Cir.), cert. denied, 115 S.Ct. 610 (1994); United
States v. Puig-Infante, 19 F.3d 929, 942-43 (5th Cir.), cert.
denied, 115 S.Ct. 180 (1994).

16
Scurlock.32

As noted above, the district court did not specifically

address the issue of reasonable foreseeability in its sentencing

order and neither did the PSI. "On review of a sentence imposed

pursuant to section 1B1.3 of the Guidelines, we require the

sentencing court to make an express finding that the conspiratorial

activity at issue was reasonably foreseeable."33 Here, the district

court attributed the entire amount of loss to Scurlock without

making a specific finding regarding what amount was reasonably

foreseeable to her. We, therefore, vacate the sentence and remand

to allow the district court an opportunity to make this

determination. In making this determination the sentencing court

should consider "the defendant's relationship with co-conspirators

and [her] role in the conspiracy".34

2. More Than Minimal Planning

Under U.S.S.G. §2F1.1, a defendant's sentence will be

enhanced by two levels if "the offense involved more than minimal

planning, or . . . a scheme to defraud more than one victim". The

32
Puma, 937 F.2d at 160; Foy, 28 F.3d at 476; Puig-
Infante, 19 F.3d at 942-43. Although the cited cases address the
amount of drugs for which a particular member of a conspiracy can
be held accountable, the focus of the analysis is the proper
application of U.S.S.G. §1B1.3(a)(1)(B). As explained, this
section governs a defendant's relevant conduct for sentencing and
places limits on a defendant's responsibility for the acts of
others. We find that this Court's previous interpretation of this
general provision in drug cases is equally applicable in this case.
33
Puig-Infante, 19 F.3d at 943.
34
Id. at 942.

17
district court adopted the findings of the PSI and enhanced

Scurlock's sentence for more than minimal planning or,

alternatively, because the scheme injured more than one victim.

The altered money order scheme in which Scurlock

participated involved an elaborate plan requiring the inmates

formation of a relationship with a victim, the purchase and

altering of money orders, the transmission of illegal proceeds

through the mails, and smuggling the funds into the prison. In

contrast, "[t]o commit a money order scam in its `simple form,' a

defendant would merely obtain money orders, alter the amounts, and

cash them."35 Thus, the district court did not err when it

determined that Scurlock's offense involved more than minimal

planning. The district court was also not clearly erroneous in

determining that Scurlock's offenses involved more than one victim

since the specific funds she carried to Shorter were traced back to

two victims of the scheme, Donna Jean Armstrong and Louise Brewer.

In challenging this enhancement, the defendant argues

that both this enhancement and the enhancement for abuse of a

position of trust were based on her position at Parchman

Penitentiary as a guard. As such, Scurlock argues that imposing

both enhancements for the same fact or activity is impermissible

double counting. We cannot agree.

Each enhancement targets different aspects of a

defendant's behavior. An increase for an abuse of a position of

trust is imposed if a defendant's job places the defendant in a

35
Jackie Brown, 7 F.3d at 1160.

18
superior position to commit a crime and the defendant takes

advantage of that superior position to facilitate a crime. The

enhancement for more than minimal planning targets whether a scheme

to defraud was an elaborate one and, therefore, more difficult to

detect. These two enhancements are based on different aspects of

behavior and the imposition of both does not constitute

impermissible double counting.

In this case, Scurlock received an enhancement for abuse

of a position of trust because of her position as a guard at

Parchman Penitentiary and her willingness to use that position to

aid her in illegal activity. The enhancement for more than minimal

planning was imposed because of the complex nature of the scheme to

defraud in which she participated. The district court committed no

error when it imposed both enhancements. Thus, we reject the

defendant's challenge of the two level enhancement imposed for more

than minimal planning.

3. Abuse of a Position of Public Trust

Scurlock contends that U.S.S.G. §3B1.3 should not be

applied to enhance her sentence because, although she occupied a

position of trust, that position did not facilitate her criminal

activity as required by the Sentencing Guidelines. §3B1.3 provides

for a two level increase "[i]f the defendant abused a position of

public or private trust . . . in a manner that significantly

facilitated the commission or concealment of the offense . . .".

Scurlock argues that her position as a prison guard at Parchman did

19
not facilitate her illegal activities.

This Court addressed a similar argument in United States

v. Leroy Brown in which a correctional case manager at Parchman

Penitentiary was convicted on similar charges and sought review of

his sentence.36 Brown argued that although he occupied a position

of trust at Parchman, that position did not facilitate his crimes

since any other Parchman employee had the same opportunities and

access to the prisoners.37 This Court rejected his argument and

decided that, in determining whether an abuse of a position of

trust facilitated criminal acts, the defendant should be compared

with the public at large.38 The Court concluded that, as a case

manager, Brown occupied a superior position because of the

opportunity to interact freely with the prisoners.39 This superior

position did facilitate his crimes.40

"The public places a great deal of trust in correctional

officers. They expect that the officers will not participate with

inmates in schemes to violate the law."41 In this case, Scurlock

held a position of trust at the prison. The district court decided

that Scurlock's position as a prison guard at Parchman facilitated

36
941 F.2d 1300, 1302 (5th Cir.), cert. denied, 502
U.S. 1008 (1991).
37
Id. at 1304-05.
38
Id.
39
Id.
40
Id.
41
Id. at 1305.

20
her criminal acts and we agree. Scurlock abused her position when

she used her ability to interact with the prisoners to enter a

criminal venture, arrange for her receipt of packages containing

illegal profits, and eventually smuggle the money into the prison.

In fact, there is evidence in a letter from Porter Shorter to his

wife that Shorter specifically chose Scurlock for this scheme

because he was afraid his wife would be caught attempting to

smuggle money into the prison. Unlike the visitors of prisoners,

Scurlock had freedom within the prison which she used to aid

Shorter in his money order scheme. We, therefore, affirm an

enhancement of Scurlock's sentence for abuse of a position of

public trust under U.S.S.G. §3B1.3.

4. Vulnerable Victims

Finally, Scurlock argues that the district court

committed clear error when it determined that the victims targeted

by this scheme were "unusually vulnerable" and it imposed a two

level increase under U.S.S.G. §3A1.1. §3A1.1 requires an

enhancement of sentence "if the defendant knew or should have known

that a victim of the offense was unusually vulnerable due to age,

physical or mental condition, or that a victim was otherwise

particularly susceptible to the criminal conduct". Scurlock argues

that there was no evidence regarding the vulnerability of the

victims and that the PSI's conclusion that this enhancement was

proper is not substantiated by the record.

The PSI identifies the victims of Scurlock's acts as

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Donna Jean Armstrong and Louise Brewer, two women who responded to

Shorter's requests to cash money orders and forward the funds to

him. Based on an examination of the dates of all of the relevant

transactions, it was concluded that the $1,200 Scurlock smuggled

into the prison was a portion of the proceeds sent by Armstrong and

Brewer to an associate of Shorter after cashing the altered money

orders.42

The report notes that the operation of the scam depended

on contacting victims through personal advertisements and falsely

promising a relationship in order to get them to cash the altered

money orders on behalf of the prisoners. Thus, the nature of the

scheme was to take advantage of the victims by preying on their

loneliness. This general description of the type of victim

targeted is supported by the testimony of the actual victims. For

example, Brewer, a retired widow, testified that Shorter contacted

her under an assumed name after she placed an advertisement in a

magazine called "Cupid's Destiny".43 Through their correspondence,

42
See, PSI at 6, paragraph 19. As detailed in the
PSI, Brewer received eight altered money orders with a total face
value of $5,600. Brewer then sent Shorter's associate $2,600,
funds received by cashing altered money orders, on or about April
30, 1992. The package was received by Shorter's associate on or
about May 2, 1992. On or about May 2, 1992, a package containing
$700 in cash was sent by Shorter's associate to Scurlock's personal
post office box. The package was received and signed for by
Scurlock on May 6, 1992. Armstrong received six altered money
orders with a total face value of $4,200. Armstrong, at Shorter's
direction, sent $4,000 to Shorter's associate, funds received by
cashing altered money orders, on or about June 9, 1992. The
package was received by Shorter's associate on June 11, 1992. On
June 19, 1992, Shorter's associate sent Scurlock $500. Scurlock
signed for the package on June 20, 1992.
43
Record, volume 2 at 86.

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Shorter convinced Brewer that he was about to be released from

prison and returned to his well-established catfish farm in

Mississippi, and even that they might be married upon his release.44

In United States v. Jackie Brown, while reviewing the

sentence of a former contract food manager at Parchman convicted

because of his participation in a similar scheme, we concluded

that:

Not only were the victims of the
Parchman scam specifically chosen
for their age, loneliness, and
gullibility, but the district court
could have reasonable concluded that
lonely, elderly widows, as a group,
are more susceptible than the
general public to this type of
fraud.45

In this case, the two victims were clearly targeted because Shorter

felt he could take advantage of their loneliness and desire for

companionship. Scurlock argues, however, that the record does not

indicate the age of the victims and does not contain information

sufficient to conclude that they were unusually vulnerable.

The trial court had an opportunity to see the victims and

make a first-hand assessment of their vulnerability. As this Court

noted in Jackie Brown:

The determination of "vulnerability
is a complex fact dependent upon a
number of characteristics which a
trial court could not possibly

44
Record, volume 2 at 97, 102.
45
Jackie Brown, 7 F.3d at 1160-61 (emphasis in
original).

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 articulate completely," and is
certainly "not reducible to a
calculation of the victim's age or a
diagnosis of the victim's disease."46

In the light of the record and this Court's previous willingness to

characterize women targeted by this scheme as unusually vulnerable,

we cannot say that the district court's conclusion that the victims

in this case were unusually vulnerable was not "plausible in light

of the record as a whole".47 We, therefore, affirm the district

court's enhancement of Scurlock's sentence for vulnerable victims.

III.

We AFFIRM the defendant's conviction and several aspects

of the sentence imposed. We VACATE the sentence, however, on the

issue of the amount of loss attributable to Scurlock and REMAND for

resentencing after a determination of what amount of loss was

reasonably foreseeable to the defendant under U.S.S.G.

§1B1.3(a)(1)(B).

46
Jackie Brown, 7 F.3d at 1160 (quoting United States
v. Mejia-Orosco, 868 F.2d 807 (5th Cir. 1989)).
47
Jackie Brown, 7 F.3d at 1159.

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