UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-40682
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTHY ARNOLD TALLENT,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
(6:95-CR-16-1)
March 5, 1996
Before POLITZ, Chief Judge, JOLLY and DeMOSS, Circuit Judges.
PER CURIAM:*
Timothy Arnold Tallent appeals his sentence for mail fraud. Finding that the district
court erred by adjusting the offense level upwards based solely upon the victims’ ages, we
vacate and remand for resentencing.
Background
Tallent pled guilty to mail fraud, a violation of 18 U.S.C. § 1341. This mail fraud was
part of a scheme in which Tallent induced Floyd and Betty Boston, an elderly couple, to cash
*
Pursuant to Local Rule 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in Local Rule
47.5.4.
in their life insurance policy and invest the proceeds in an entity called T.A. United Trust.
Not surprisingly, Tallent neglected to inform the Bostons that he was the primary beneficiary
of this trust. Also not surprisingly, the Bostons enjoyed no return on their investment.
The presentence report recommended a two-level upward adjustment under U.S.S.G.
§ 3A1.1,1 based solely upon the fact that 11 out of the 12 victims of Tallent’s scheme were
60 years of age or older, eight being in their 80s. The PSR also concluded that whether the
defendant had targeted these victims intentionally was irrelevant because the factual basis
for enhancement had been satisfied “once the defendant knew the victims’ ages and
proceeded to induce them to invest in a fictitious trust.” The district court agreed, overruled
Tallent’s objection to the PSR, and imposed a sentence of 24 months imprisonment. Tallent
appeals.
Analysis
The burden rests upon the government to prove a factual basis for section 3A1.1
enhancement, with the district court’s factual findings being reviewable for clear error.2 We
previously have noted that “vulnerability is a complex fact dependent on a number of
characteristics;” as such, it “is not reducible to a calculation of the victim’s age.”3 The
1
This section provides for a two-level upward adjustment “[i]f 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.”
2
United States v. Leonard, 61 F.3d 1181 (5th Cir. 1995).
3
United States v. Mejia-Orosco, 868 F.2d 807, 809 (5th Cir.) (on denial of rehearing),
cert. denied, 492 U.S. 924 (1989). We do not mean to say that some salient quality other
than age is required to show vulnerability. The elderly may be “unusually vulnerable or
particularly susceptible” to certain fraudulent schemes. Leonard, 61 F.3d at 1188. Such
vulnerability, however, cannot merely be assumed from the victim’s age, but must be
demonstrated factually and proven to be a trait of which the defendant knew or should have
known to justify an upward adjustment under this section.
2
district court made no express findings regarding the vulnerability of the victims and
Tallent’s awareness thereof, the fulcrum for adjustment under section 3A1.1. Given the
insufficiency of the requisite factual findings, the increase must be vacated. We express no
opinion about the propriety of an adjustment, leaving that entirely to the trial court.
VACATED and REMANDED for resentencing.
3