Criminal Practice – Vulnerable Victim Enhancement – Minor Participant Reduction

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The district court did not err in applying the vulnerable victim enhancement in telemarketing sweepstakes scheme that victimized mainly elderly people.

Finding no error, we affirmed the district court in all respects.

Rojay Lawson played a key role in a telemarketing sweepstakes scheme run out of Jamaica that victimized at least 179 people in the U.S., most of whom were elderly. Based in South Carolina, he collected unlawful proceeds from victims, laundered them, took a cut for himself, and sent the rest to his co-conspirators in Jamaica. Lawson eventually pleaded guilty to 13 counts of wire fraud conspiracy, money laundering conspiracy, wire fraud, and mail fraud. He now raised various challenges to his sentence. He contested the application of a vulnerable victim enhancement, the denial of a minor role reduction, and the calculation of loss.

Among other things, Lawson challenged the district court’s application of the vulnerable victim enhancement and its denial of a minor role reduction when calculating his Guidelines range. The vulnerable victim enhancement applies when “the defendant knew or should have known that a victim of the offense was a vulnerable victim.” U.S.S.G. § 3A1.1(b)(1). Its application “requires a fact-based explanation” of (1) “why advanced age or some other characteristic made one or more victims unusually vulnerable to the offense conduct” and (2) “why the defendant knew or should have known of this unusual vulnerability.” The district court did not err in applying this enhancement. Lawson first challenged his enhancement under prong one. He argued that old age alone cannot make a victim vulnerable and that the district court erroneously relied on the mere fact that the victims were elderly when it enhanced his sentence. We agreed with Lawson that courts should not “apply a blanket assumption that an advanced age is sufficient to render a victim vulnerable” and thus that not every crime committed against an older person should automatically be enhanced. But old age is plainly a characteristic that can make a victim vulnerable to certain types of crime. The district court “sufficiently explain[ed] its decision” as to both prongs, and we affirmed its application of the vulnerable victim enhancement.

We next addressed the denial of a minor participant reduction. Because the district court did not treat Lawson’s “fundamental and essential” role as dispositive, there was no error. Lawson also argued that the district court failed to appreciate the narrowness of his responsibilities in the scheme as compared to his co-conspirators in Jamaica. He argued that he was a mere “conduit of funds” similar to a “drug courier” and portrayed his involvement as a “passive role where he simply accepted the money that Jamaican co-conspirators defrauded from victims and sent the money to the co-conspirators when directed to do so.” Even if that characterization of the facts were accurate, it does not render Lawson anything less than an average participant. Lawson was not a minor participant simply because he received directions or because the organizers in Jamaica may have played aggravating roles. The court’s denial of the minor role reduction was sensible and certainly not clearly erroneous.

Lawson played an active and important role in a reprehensible scheme that preyed upon vulnerable elderly victims. The district court made considered factual findings at sentencing, and Lawson “has given us no reason to abandon our traditional deference” to those findings.

Affirmed.

United States v. Rojay Lawson (Lawyers’ Weekly No. 001-49-25, 24 pp.) (J. Harvie Wilkinson III, J.) Appealed from the U.S. District Court for the District of South Carolina, at Beaufort (Bruce H. Hendricks, J.) Argued: Kimberly Harvey Albro, Office of the Federal Public Defender, Columbia, South Carolina, for Appellant; Andrea Gwen Hoffman, Office of the United States Attorney, Charleston, South Carolina, for Appellee. On Brief: Adair F. Boroughs, United States Attorney, Office of the United States Attorney, Charleston, South Carolina, for Appellee. U.S. Court of Appeals for the Fourth Circuit