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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-15067
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D. C. Docket No. 3:10-cr-00030-MCR-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTORIA BOURLIER,
a.k.a. Karen Victoria Ritchey,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
_________________________
(April 30, 2013)
Before MARTIN and ANDERSON, Circuit Judges, and VINSON,* District Judge.
PER CURIAM:
*
Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
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Victoria Bourlier appeals her within-guideline sentence of 30 months in
prison, after she pled guilty to the charge of obstruction of justice. Bourlier argues
that the district court erred in applying a four-level enhancement for large numbers
of vulnerable victims under U.S.S.G. § 3A1.1(b)(1) and (2), because Bourlier did
not know, nor reasonably should have known, that the victims of the offenses of
her codefendant, Robert Bourlier, were vulnerable victims.1 Bourlier further
argues, for the first time on appeal, that the court erred in concluding both that the
victims were vulnerable victims within the meaning of § 3A1.1(b)(1), and that their
numbers were sufficient to justify the additional two-level enhancement under §
3A1.1(b)(2). Finally, she argues that the district court failed to make sufficient
factual findings in applying the § 3A1.1(b) enhancement.
“The district court’s application of § 3A1.1(b) in determining whether a
‘vulnerable victim’ enhancement is warranted is a mixed question of law and fact
that we review de novo.” United States v. Frank, 247 F.3d 1257, 1259 (11th Cir.
2001). “The district court’s factual findings related to the imposition of sentencing
enhancements, however, are reviewed only for clear error.” United States v.
Amedeo, 370 F.3d 1305, 1312 (11th Cir. 2004). “Whether a ‘vulnerable victim’
1
Robert Bourlier, Bourlier’s husband, was a physician charged with twenty counts
of healthcare fraud and 130 counts of violating the Controlled Substances Act by illegally
prescribing controlled substances.
2
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sentence enhancement should be made is a fact intensive inquiry that must be made
on a case-by-case basis.” Frank, 247 F.3d at 1260. “The district court’s factual
findings for purposes of sentencing may be based on, among other things, evidence
heard during trial, undisputed statements in the PSI, or evidence presented during
the sentencing hearing.” United States v. Polar, 369 F.3d 1248, 1255 (11th Cir.
2004). We may affirm the enhancement on any ground supported by the record.
Amedeo, 370 F.3d at 1319 n.12.
Where a defendant is an accessory after the fact, her base offense level is six
levels lower than the underlying offense. U.S.S.G. § 2X3.1(a)(1); Id. § 2X3.1,
comment. (n.1). The district court is to “[a]pply the base offense level plus any
applicable specific offense characteristics that were known, or reasonably should
have been known, by the defendant.” Id. § 2X3.1 & comment. (n.1). In the case of
an accessory after the fact, “the conduct for which the defendant is accountable
includes all conduct relevant to determining the base offense level for the
underlying offense that was known, or reasonably should have been known, by the
defendant.” Id. § 1B1.3, comment. (n.10).
The Sentencing Guidelines provide for a two-level offense level
enhancement if a defendant “knew or should have known that a victim of the
offense was a vulnerable victim.” Id. § 3A1.1(b)(1). A “vulnerable victim” is any
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person “who is a victim of the offense of conviction and any conduct for which the
defendant is accountable under § 1B1.3 (Relevant Conduct); and . . . who is
unusually vulnerable due to age, physical or mental condition, or who is otherwise
particularly susceptible to criminal conduct.” Id. § 3A1.1, comment. (n.2). An
additional two-level sentencing enhancement is to be imposed if the offense
involved a large number of vulnerable victims. Id. § 3A1.1(b)(2).
Where a defendant fails to object to a sentencing error before the district
court, we review for plain error. See United States v. Castro, 455 F.3d 1249, 1251
(11th Cir. 2006). To establish plain error, a defendant must show that there was an
“(1) error, (2) that is plain and (3) that affects substantial rights. If all three
conditions are met, we may then exercise our discretion to notice a forfeited error,
but only if . . . the error seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” United States v. Turner, 474 F.3d 1265, 1276 (11th Cir.
2007). “An error is plain if it is obvious and clear under current law.” United
States v. Eckhardt, 466 F.3d 938, 948 (11th Cir. 2006). “An error that ‘affects
substantial rights’ is one that ‘affected the outcome of the district court
proceedings.’” United States v. Henderson, 409 F.3d 1293, 1308 (11th Cir. 2005)
(quoting United States v. Cotton, 535 U.S. 625, 632, 122 S. Ct. 1781, 1786 (2002)).
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Under the doctrine of invited error, we will not review an error that is invited
or induced by a party. United States v. Silvestri, 409 F.3d 1311, 1327 (11th Cir.
2005). “Where invited error exists, it precludes a court from invoking the plain
error rule and reversing.” Id.
At sentencing, the district court relied without objection on evidence from
Robert Bourlier’s trial to support the degree of Bourlier’s involvement in his
medical practice and in ultimately concluding that the four-point vulnerable victim
enhancement applied. Because it was known or reasonably should have been
known to Bourlier that the victims of Robert Bourlier’s offenses were vulnerable
victims, the district court properly applied the four-level enhancement under §
3A1.1(b)(1) and (2). Bourlier’s arguments—that the court erred in concluding that
Robert Bourlier’s drug addict patients were vulnerable victims, and that the number
of vulnerable victims was insufficient to warrant the additional two-level
enhancement under § 3A1.1(b)(2)—are waived under the doctrine of invited error
since Bourlier acknowledged the presence of “vulnerable victims” at sentencing
and in her sentencing memorandum.2 Finally, with regard to Bourlier’s claim that
the district court failed to make sufficient findings, we find no error because the
2
Alternatively, Bourlier cannot satisfy plain error analysis. Moreover, ample
evidence supports the district court’s findings.
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court specifically found that Bourlier knew or should have known that the victims
were vulnerable victims, and Bourlier did not request that the district court make
more specific findings.
Accordingly, upon review of the record and with the benefit of oral
argument, we affirm.
AFFIRMED.
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