The opinion
Case: 25-30113 Document: 83-1 Page: 1 Date Filed: 03/27/2026
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________
FILED
March 27, 2026
No. 25-30113
Summary Calendar Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Elijah D. Brown,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:24-CR-87-3
______________________________
Before Richman, Southwick, and Willett, Circuit Judges.
Per Curiam:*
Elijah D. Brown appeals from the sentence imposed following his
guilty plea conviction for attempt and conspiracy to commit bank fraud. The
district court sentenced Brown within the guidelines range to 63 months of
imprisonment, five years of supervised release, and $1,254,790 in restitution.
Pursuant to U.S.S.G. § 5G1.3(d), the district court specified that Brown’s
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 25-30113
sentence of imprisonment would run consecutively to the sentence imposed
for illegal possession of firearms.
On appeal, Brown challenges the district court’s application of the
vulnerable victim adjustments on the ground that the district court
improperly presumed the victims were vulnerable due to their ages and high
account balances and should have instead conducted an individual inquiry for
each victim to determine if they met the “vulnerable victim” criteria. “We
review the district court’s interpretation and application of the Sentencing
Guidelines de novo and its factual findings for clear error.” United States v.
Luna-Gonzalez, 34 F.4th 479, 480 (5th Cir. 2022) (quoting United States v.
Abrego, 997 F.3d 309, 312 (5th Cir. 2021)). A factual finding is not clearly
erroneous if it is plausible in light of the record as a whole. United States v.
Mendoza-Gomez, 69 F.4th 273, 276 (5th Cir. 2023).
The vulnerable victim enhancement “is primarily focused on the
diminished ability of the victim to thwart or resist the crime at hand.” United
States v. Swenson, 25 F.4th 309, 321 (5th Cir. 2022). We have held that,
although vulnerability cannot be based solely due to a victim’s age, a group
of victims may be considered vulnerable under U.S.S.G. § 3A1.1 if the shared
characteristics of its members—including their age—make them unusually
susceptible to fraud. United States v. Brown, 7 F.3d 1155, 1160-61, 1161 n.3
(5th Cir. 1993). Brown has not cited any authority supporting his assertion
that the district court was required to make an individualized determination
as to each victim’s vulnerability level. The district court’s determination
that the shared characteristics of this particular group of victims met the
vulnerability requirements under § 3A1.1 was plausible in light of the record.
See Brown, 7 F.3d at 1159-61, 1161 n.3.
In his next argument, Brown challenges the three-level adjustment
applied under U.S.S.G. § 3B1.1(b) based on his role as a manager or
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No. 25-30113
supervisor for criminal activity that involved five or more participants.
Brown asserts that the district court erred by basing its determination solely
on speculation or second-hand information derived from the FBI agent who
testified at sentencing. However, the record shows that the district court’s
determination was based on the factual basis in which Brown agreed that he
had recruited and directed certain coconspirators. See United States v. Brown,
727 F.3d 329, 340-41 (5th Cir. 2013). Brown has therefore failed to show clear
error as to this adjustment. See United States v. Bourrage, 138 F.4th 327, 353-
54 (5th Cir. 2025).
Brown quotes language from U.S.S.G. § 5G1.3(a) to argue that the
district court committed significant procedural error by imposing his instant
sentence to run consecutively to his sentence for illegal possession of
firearms, but the record shows that the district court’s imposition of the
consecutive sentence was based on § 5G1.3(d). He has therefore failed to
show any error in this regard.
The Government concedes on appeal that the district court’s
restitution order is incorrect and must be corrected on remand in light of new
information as to the amounts of actual loss caused by Brown’s offense. “We
review de novo whether a restitution award exceeds the statutory maximum,
and review for abuse of discretion a district court’s determination of a legally
permissible restitution amount.” United States v. Kim, 988 F.3d 803, 811 (5th
Cir. 2021) (internal citation omitted). Based on the Government’s assertion,
it is likely that the district court’s restitution order exceeded the amount of
actual loss, which is impermissible under the Mandatory Victim Restitution
Act of 1996. See United States v. Beydoun, 469 F.3d 102, 107 (5th Cir. 2006).
Accordingly, we VACATE the district court’s restitution order and
REMAND for the limited purpose of redetermining the restitution award.
In all other respects, the district court’s judgment is AFFIRMED.
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