United States v. O'Brien

United States Court of Appeals
For the First Circuit

No. 15-1961

UNITED STATES OF AMERICA,

Appellee,

v.

JANE E. O'BRIEN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Lynch, Lipez, and Barron,
Circuit Judges

Inga L. Parsons on brief for appellant.
Carmen M. Ortiz, United States Attorney, and Stephen E. Frank,
Assistant United States Attorney, on brief for appellee.

August 31, 2017
 LIPEZ, Circuit Judge. Jane E. O'Brien, a professional

investment adviser, engaged in a long-running scheme to defraud

several of her clients -- mostly elderly women who relied on her

financial advice and friendship -- out of their life savings. This

scheme was eventually uncovered, and she pled guilty -- in two

separate cases -- to securities fraud, investment adviser fraud,

wire fraud, and mail fraud. O'Brien now appeals her sentence on

both procedural and substantive grounds. Specifically, she

challenges the district court's imposition of a two-level

obstruction of justice enhancement and a two-level vulnerable

victim enhancement, as well as contending that the length of her

sentence was substantively unreasonable. Finding no basis for

undoing the district court's well-reasoned sentencing decisions,

we affirm.

I. Background

We provide here only a brief synopsis of the essential

facts of this case, reserving additional detail for the analysis

that follows. Because this appeal follows a guilty plea, we draw

the relevant facts from the plea agreement, the change-of-plea

colloquy, the undisputed portions of the presentence investigation

report ("PSR"), and the transcript of the disposition hearing.

United States v. Rivera-González, 776 F.3d 45, 47 (1st Cir. 2015).

Over approximately eighteen years, O'Brien -- a

registered securities broker who was employed at various times by

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two large brokerage firms (Merrill Lynch and Smith Barney) --

persuaded some of her clients to withdraw money from their

brokerage accounts and give the money to her personally to invest

on their behalf. After gaining control of her client's money,

however, O'Brien did not make the promised investments. Instead,

she used her clients' money to pay personal expenses or to repay

money given to her by other clients. To perpetuate and conceal

the fraud, she made lulling payments, forged signatures, and

repeatedly lied to her clients about the state of their

investments.

In April 2012, after one of her clients filed a complaint

with the Financial Industry Regulatory Authority, O'Brien, through

her attorney, met with an assistant United States Attorney and

disclosed that she had misappropriated funds from one of her

clients, RC.1 During this meeting, O'Brien also provided the

government with the names of other former clients from whom she

had improperly obtained money. Two months after this meeting,

O'Brien pled guilty to one count of securities fraud, under 15

U.S.C. § 78j(b), based on her defrauding of RC. On May 30, 2013,

O'Brien was sentenced to thirty-three months in prison on this

count. O'Brien raises no claims of error specific to this

sentence.

1 The parties have identified the victims by their initials.
We do the same.

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 While O'Brien was in custody awaiting sentencing on the

2012 case, she was also charged in an eight-count indictment with

investment fraud, wire fraud, and mail fraud for conduct related

to three other former clients: PN, EG, and KD. O'Brien

subsequently pled guilty -- without a plea agreement -- to all but

one of the counts charged in the indictment. At a hearing on

August 6, 2015, the court sentenced O'Brien to forty-five months

of imprisonment, to be served consecutively to the thirty-three-

month term of imprisonment from the 2012 case. Because O'Brien's

cases were aggregated for purposes of calculating the applicable

guidelines sentencing range ("GSR"), the district court's

imposition of a consecutive sentence of forty-five months brought

O'Brien's total sentence (seventy-eight months) to the bottom end

of the advisory GSR. O'Brien timely appealed.

II. Discussion

O'Brien challenges the district court's imposition of

two, two-level sentencing enhancements: the first, for obstruction

of justice, under U.S.S.G. § 3C1.1; the second, a vulnerable-

victim enhancement, under U.S.S.G. § 3A1.1(b)(1). She also

contends that her sentence was substantively unreasonable. We

address each argument in turn, reviewing O'Brien's preserved

claims of error under our "multifaceted" abuse-of-discretion

standard, whereby "we apply clear error review to factual findings,

de novo review to interpretations and applications of the

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guidelines, and abuse of discretion review to judgment calls."

United States v. Cox, 851 F.3d 113, 119 (1st Cir. 2017) (quoting

United States v. Nieves–Mercado, 847 F.3d 37, 42 (1st Cir. 2017)).

A. Obstruction of Justice Enhancement

Under U.S.S.G. § 3C1.1, a defendant's offense level is

increased by two levels if "(1) the defendant willfully obstructed

or impeded, or attempted to obstruct or impede, the administration

of justice with respect to the investigation, prosecution, or

sentencing of the instant offense of conviction, and (2) the

obstructive conduct related to (A) the defendant's offense of

conviction and any relevant conduct; or (B) a closely related

offense." Covered conduct includes, among other things,

"threatening, intimidating, or otherwise unlawfully influencing a

. . . witness . . . or attempting to do so." Id. cmt. n.4(A).

The conduct that led to this enhancement involved

payments O'Brien made or promised to make to some victims during

the government's investigation of her crimes, as well as related

conversations O'Brien had with an attorney for one of her victims.

Specifically, between April and June 2013, O'Brien -- who was in

prison at the time, having been remanded pending sentencing in the

2012 case for violating her release conditions -- directed her

brother to make payments to PN and EG. From prison, O'Brien also

had several phone calls with PN's attorney, Michael Faherty, in

which she tried to convince Faherty that the money given to her by

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PN was a series of personal loans, not money to be invested on

PN's behalf.2 These conversations were lawfully recorded.3 In one

conversation on April 10, 2013, the following exchange occurred:

FAHERTY: I’m just concerned that [PN] is very clear that
these monies went to you as investments, investments in
some projects you were working on, and I just need to
get her paid back so, she’s destitute.

O’BRIEN: Right, well and that’s my goal too, but the
terminology is a problem if that’s what she’s relaying
to them, because it makes it sound like I did, presented
her with some kind of concrete investment which I did
not, it was clearly, at least as far as I’m concerned,
you know, her investing in me as a person and helping me
to be able to move forward with some things I’ve been
working on. But if she, you know, pursues it on that,
along those lines, that really is a problem for me.

On a subsequent recorded call on April 29, 2013, O'Brien told

Faherty that PN would continue to receive monthly payments from

2 For the first time on appeal, O'Brien alleges that Faherty
was an informant "planted by the government" "to try to entrap
[O'Brien] into mak[ing] incriminating statements," and that
Faherty was "directing the conversations in an obvious effort
. . . to get O'Brien to respond in a certain way." O'Brien cites
no evidence in the record supporting this contention, however, and
we can find none. Instead, the record demonstrates that O'Brien
argued at sentencing that Faherty initially contacted her after he
contacted her brother to discuss the periodic payments O'Brien was
making to PN.
3 Facilities that record inmates' calls or visitations
generally inform inmates that their conversations will be
recorded, except for conversations with the inmate's attorney.
See United States v. Novak, 531 F.3d 99, 100 (1st Cir. 2008)
(O'Connor, J.) ("Massachusetts and the Federal government have
both promulgated regulations prohibiting prison officials from
monitoring phone calls between inmates and their attorneys."); see
also 28 C.F.R. § 540.102.

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O'Brien's brother. When Faherty asked O'Brien what she would like

to say to PN, O'Brien stated:

My feeling and my situation in terms of my obligation to
[PN] has not changed and will not change. And I am
trying to do whatever I can to make sure that my
obligation is taken care of. I’d rather it be taken
care of sooner rather than later. But a lot is going to
depend I’m thinking on, you know, what people decide
they want to talk to the U.S. Attorney about and um, you
know, how much he wants to make this a big deal. I
don’t, you know, I don’t know how else to say [it].

During another call with Faherty the same day, O'Brien stated:

I’m totally sick about it and I wish that I could be,
you know, more forthcoming to you right now but it
. . . and the matter is I simply can’t [be]cause I don’t
have anything in front of me. And that’s why I’m trying
to get out of here because everything they’ve got me in
here for is completely false. And, but when she says
that she invested in me it -- and I’m not trying to put
words into her mouth -- but I am, or to say something
that it wasn’t, it was that she believed in me in terms
of the business I was trying to build, but the money
that came to me was in the form of personal loans. As
far as I’m concerned that’s what it was and I believe
that that’s what she would say. But she would say it in
terms of, yes she felt that she was helping me build my
business.

Based on this conduct, the PSR recommended that a two-

level enhancement for obstruction of justice be imposed. O'Brien

objected to the enhancement, both in her objections to the PSR and

at sentencing, contending that principles of res judicata and

collateral estoppel barred the court's consideration of the

enhancement, or, in the alternative, that, taken in context, her

statements to Faherty did not demonstrate a "willful intent to

obstruct justice." Both contentions are meritless.

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 As to O'Brien's res judicata and collateral estoppel

arguments, she contends that, because her conversations with

Faherty were discussed at sentencing in her 2012 case, and no

obstruction-of-justice enhancement was imposed when the court

calculated her GSR, the government was not permitted to request,

and the court was not permitted to impose, the enhancement in this

case. This argument makes little sense. Putting aside the

question of when or if various preclusion doctrines might apply to

a district court's calculation of an advisory GSR, O'Brien's

obstructive conduct, as the government explained at sentencing,

was still being investigated when she was sentenced in her 2012

case, and the question of whether the enhancement applied was never

decided. Hence, the district court was in no way precluded from

considering the obstruction-of-justice enhancement.

As to O'Brien's claim that her actions did not

demonstrate a willful intent to obstruct justice, she argued at

sentencing that she specifically told Faherty that she was not

trying to influence him or "to put words in [PN's] mouth," and

that the conversation, taken in context, did not demonstrate

obstructive intent. The district court, however, rejected these

claims after the following exchange with O'Brien's attorney:

THE COURT: So, if somebody in a conversation says, "I’m
not trying to influence you" and then in the next
sentence says, "I am trying to influence you," the second
statement doesn’t count?

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 MS. PUCCI: Well, I just -- I disagree that any of these
statements are clear.

THE COURT: Well, I mean, but that’s the bottom line is,
if the conversation is inconsistent when one thing says,
I’m not trying to influence you and then in the next
breath, she says, But you know, if they want to get
repaid, they’d better not talk to the Feds, does the
first statement negate the second one?

MS. PUCCI: Well, you have to look at overall, Your Honor,
whether there was willful intent to obstruct. So, I
understand the point the Court is trying to make. I
would argue that none of the statements clearly have her
trying to get the victims to say anything different, and
some of them are clear implications that she’s backing
off and saying, Look, I’m not trying to get you to advise
her to say something different.

THE COURT: All right. I’ve heard enough, and the
objection is overruled. I will accept the
recommendation of the Probation Officer to apply a two-
level increase for obstruction of justice.

O'Brien claims that the district court's failure to make

particularized factual findings before imposing the enhancement

amounts to reversible error. However, such findings are

unnecessary where the sentencing court speaks generally to the

pertinent considerations and the relevant facts are apparent from

the record. See United States v. Aker, 181 F.3d 167, 172 (1st

Cir. 1999) ("Although particularized findings are certainly

helpful, the ultimate question is whether the district judge did

find a willful obstruction or attempted obstruction and whether

the evidence supports these findings.") (citation omitted). Here,

the PSR spelled out the factual underpinnings for the enhancement

-- which O'Brien did not contest -- and the government argued that

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those facts demonstrated that O'Brien attempted to unlawfully

influence one of her victims not to cooperate with the government

by suggesting that the victim had a better chance of getting repaid

if she did not do so. Although O'Brien asserts that she, in fact,

had no obstructive intent, and that her conduct did not "amount to

a threat, intimidation, or unlawful influence," within the meaning

of U.S.S.G. § 3C1.1, the record fully supports the district court's

contrary inference from the record. Hence, the district court did

not clearly err. See United States v. Jones, 778 F.3d 375, 383

(1st Cir. 2015) ("When the raw facts are susceptible to more than

one reasonable inference, a sentencing court's choice between

those competing inferences cannot be clearly erroneous.").

Finally, O'Brien argues that her statements, within the

context of a communication with a victim's attorney, fail to

demonstrate obstructive intent. This argument, however, simply

provides a new and irrelevant gloss on O'Brien's other arguments.

Attempting to influence a witness not to cooperate with the

government, either directly or indirectly, is just the type of

conduct covered by § 3C1.1. See United States v. Monell, 801 F.3d

34, 50-51 (1st Cir. 2015) (upholding obstruction-of-justice

enhancement where defendant attempted to persuade others to

testify falsely); United States v. Anderson, 139 F.3d 291, 298

(1st Cir. 1998) (upholding obstruction-of-justice enhancement

where defendant instructed his son to give victim $3,500 to retract

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accusations). The fact that O'Brien's statements were made

indirectly through a victim's attorney does not make them any less

obstructive.4 Not only do the guidelines not make this

distinction, see § 3C1.1 cmt. n.2, but we can find no support for

it in our precedent, or for O'Brien's assertion that Faherty, as

an attorney, was required to warn her that her comments could be

construed as obstructive. In sum, the district court drew a

reasonable inference from the undisputed facts that O'Brien

attempted to improperly influence one of her victims through that

victim's counsel. No more was required.

B. Vulnerable Victim Enhancement

Under U.S.S.G. § 3A1.1(b)(1), the defendant's offense

level is raised two levels if "the defendant knew or should have

known that a victim of the offense was a vulnerable victim." The

Guidelines define 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."

U.S.S.G. § 3A1.1, cmt. n.2. "We have interpreted the term

'susceptible to the criminal conduct' as being 'primarily

concerned with the impaired capacity of the victim to detect or

4 Moreover, as the government notes in its brief, and O'Brien
did not dispute, she also reached out to several victims from
prison.

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prevent the crime, rather than the quantity of the harm suffered

by the victim.'" United States v. Bailey, 405 F.3d 102, 113 (1st

Cir. 2005) (quoting United States v. Donnelly, 370 F.3d 87, 92

(1st Cir. 2004)).

A sentencing court must make two separate determinations

before imposing a § 3A1.1(b)(1) enhancement. First, the court

must conclude "that the victim of the crime was vulnerable, that

is, that the victim had an 'impaired capacity . . . to detect or

prevent the crime.'" Donnelly, 370 F.3d at 92 (quoting United

States v. Fosher, 124 F.3d 52, 55–56 (1st Cir. 1997)). Second, the

court must find "that the defendant knew or should have known of

the victim's unusual vulnerability." Id.

O'Brien objected to the vulnerable-victim enhancement,

both in her objections to the PSR and at the sentencing hearing,

contending that (1) her victims were not "unusually vulnerable"

within the meaning of U.S.S.G. § 3A1.1(b)(1); and (2) because she

already received a four-level enhancement under U.S.S.G.

§ 2B1.1(b)(19)(A)(iii) for violating securities laws as an

investment adviser, imposing the vulnerable-victim enhancement for

defrauding her clients amounted to impermissible double counting.

We reject both arguments.

As to O'Brien's first argument, she asserted that her

victims were not unusually vulnerable because, despite their age,

they were "college-educated women who chose to invest their funds"

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with her, yet she failed to contest any of the facts set forth in

the PSR characterizing her victims. As the Probation Officer

explained in response to O'Brien's objections:

The victims in this case are not characterized as
vulnerable victims solely due to their age, but
primarily due to each of their individual circumstances
and the nature of their relationships with the
defendant. As explained by the government in the
additional information provided in response to the
defendant's objections, each of the victims trusted the
defendant as a close friend and became entirely
dependent on her to manage their financial affairs when
they were faced with difficult personal circumstances.
By virtue of the defendant's close relationships with
these woman [sic], the defendant knew that they were
particularly susceptible to the criminal conduct.

As the PSR went on to explain, one victim, EG, "was 70 years old

at the time of the fraud against her, and had recently had a stroke

that left her permanently disabled and unable to work." Another

victim, KD, was "89 years old, recently widowed, and had serious

health problems at the time of the fraud against her in 2012."

Given these unchallenged facts, the district court did

not err in applying the enhancement. Indeed, we have upheld a

vulnerable-victim enhancement under similar circumstances. See

United States v. Pol-Flores, 644 F.3d 1, 4 (1st Cir. 2011)

(upholding vulnerable-victim enhancement because victim was

"particularly susceptible [to fraud] based on her advanced age,

status as a widow, difficulty resolving her husband's estate, and

desire to invest the money to establish an income").

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 Moreover, as the government argued at sentencing,

O'Brien had many other clients as an investment adviser, but she

chose only to defraud those who were financially unsophisticated,

had weak support networks, or were in frail health. Although

O'Brien asserts on appeal that the district court erred by failing

to specifically articulate why each victim qualified as

vulnerable, the district court was entitled to accept the

uncontested facts in the PSR as true. See United States v.

Prochner, 417 F.3d 54, 66 (1st Cir. 2005) (upholding reliance on

a PSR's listing of victims and loss amounts "[i]n the absence of

rebuttal evidence beyond defendant's self-serving words"); United

States v. Cyr, 337 F.3d 96, 100 (1st Cir. 2003) ("[I]f the

defendant's objections to the PSR are merely rhetorical and

unsupported by countervailing proof, the district court is

entitled to rely on the facts in the PSR."). Here, the vulnerable-

victim enhancement is amply supported by the record.

O'Brien's contention that the vulnerable-victim

enhancement is already accounted for in the four-level enhancement

under U.S.S.G. § 2B1.1(b)(19)(A)(iii) is also without merit.

Section 2B1.1(b)(19)(A) applies where "the offense involved . . . a

violation of securities law and, at the time of the offense, the

defendant was . . . an investment adviser." The focus of this

enhancement, like the more general "abuse of position of trust or

use of special skill" enhancement under § 3B1.3, is on the

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defendant's conduct: the use of her position as an investment

adviser to commit her crimes. For this reason, the guidelines

specifically prohibit the application of both a § 2B1.1(b)(19)(A)

enhancement and an abuse-of-trust enhancement under § 3B1.3 in the

same case. See U.S.S.G. § 2B1.1, cmt. n.15(C) ("If

[§ 2B1.1](b)(19) applies, do not apply § 3B1.3.").

Unlike the focus of the investment-adviser and abuse-

of-trust enhancements, however, the focus of the vulnerable-victim

enhancement under § 3A1.1(b)(1) is the "vulnerability of the victim

and the defendant's awareness of that vulnerability." United

States v. Stella, 591 F.3d 23, 30 (1st Cir. 2009). Because "[n]ot

all [investment-adviser frauds] involve vulnerable victims

. . . there is no double counting." Id. Indeed, the kind of

"double counting" O'Brien objects to is "often perfectly proper"

where two enhancements address different sentencing concerns. Id.

at 30 n.9 (quoting United States v. Lilly, 13 F.3d 15, 19 (1st

Cir. 1994)), and we have upheld the imposition of similar

enhancements over a defendant's "double-counting" objections. See

id. at 30; see also United States v. Burnett, 805 F.3d 787, 795

(7th Cir. 2015) (upholding imposition of both abuse-of-trust and

vulnerable-victim enhancements because "the two enhancements

punished different aspects of [the defendant]'s conduct").

Further, although "some guidelines expressly prohibit

applying certain enhancements because doing so would lead to double

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counting," we will rarely find that two enhancements impermissibly

overlap where the guidelines make no explicit prohibition. See

Stella, 591 F.3d at 30 n.9; see also Lilly, 13 F.3d at 19 ("We

believe the [Sentencing] Commission's ready resort to explicitly

stated prohibitions against double counting signals that courts

should go quite slowly in implying further such prohibitions where

none are written."). Thus, although the guidelines explicitly

prohibit the application of both an investment-adviser enhancement

under U.S.S.G. § 2B1.1(b)(19)(A)(iii) and an abuse-of-trust

enhancement under U.S.S.G. § 3B1.3, the guidelines contain no

explicit bar against imposing a vulnerable-victim enhancement

along with either of those two enhancements. We see no reason to

read such a prohibition into the guidelines where the Sentencing

Commission has declined to do so. See United States v. Fiume, 708

F.3d 59, 62 (1st Cir. 2013) ("Given the Commission's proclivity

for indicating when double counting is forbidden, we are reluctant

to infer further such instances out of thin air.").

C. Substantive Reasonableness

Finally, O'Brien claims that her bottom-of-the-

guidelines sentence was substantively unreasonable. For a

preserved challenge to the substantive reasonableness of a

sentence, "we proceed under the abuse of discretion rubric, taking

account of the totality of the circumstances." United States v.

Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015). O'Brien, however,

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did not object below. In such cases, the applicable standard of

review in this circuit is "somewhat blurred" as to whether the

ordinary abuse of discretion standard or the plain error standard

applies. Id. at 228. Regardless, we need not decide this issue

because O'Brien's claim fails under either standard.

As we have repeatedly emphasized, a challenge to the

substantive reasonableness of a sentence is particularly

unpromising when the sentence imposed comes within the confines of

a properly calculated GSR. Cox, 851 F.3d at 126. We will deem a

sentence substantively reasonable "so long as it rests on a

'plausible sentencing rationale' and embodies a 'defensible

result.'" Ruiz-Huertas, 792 F.3d at 228 (quoting United States v.

Martin, 520 F.3d 87, 96 (1st Cir. 2008)). "[T]here is not a single

reasonable sentence but, rather, a range of reasonable sentences,"

and, "[c]onsequently, reversal will result if -- and only if --

the sentencing court's ultimate determination falls outside the

expansive boundaries of that universe." Martin, 520 F.3d at 92.

The district court's rationale for the sentence was

clear and justified. In sentencing O'Brien, the court emphasized

the "utter depravity" of her conduct, which it described as

"bilking vulnerable friends . . . out of their entire life savings

for what can only be described as your insatiable greed." The

court further justified the sentence, explaining that a

"significant sentence" was necessary, "not only to deter you from

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ever committing another such crime but also to deter anyone else

who thinks he or she can bilk innocent investors out of their hard-

earned money." Given the undisputed facts of this case, the

bottom-of-the-guidelines sentence imposed falls well within the

universe of reasonable sentences, and none of O'Brien's contrary

assertions have any merit.

Affirmed.

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