United States v. Salahmand

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 21, 2011 Decided July 22, 2011

No. 09-3136

UNITED STATES OF AMERICA,

APPELLEE

v.

MANSOUR SALAHMAND,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cr-00192)

Gregory Stuart Smith, appointed by the court, argued the

cause and filed the briefs for appellant.

Jay Apperson, Assistant U.S. Attorney, argued the cause for

appellee. With him on the brief were Ronald C. Machen, Jr.,

U.S. Attorney, and Roy W. McLeese III, John P. Mannarino, and

Virginia Cheatham, Assistant U.S. Attorneys.

Before: HENDERSON, GARLAND, and GRIFFITH, Circuit

Judges.

2

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: Mansour Salahmand treated

hundreds of patients while falsely representing that he was a

licensed physician. As part of a plea agreement, Salahmand

pled guilty to one count of identity theft, in violation of 18

U.S.C. § 1028(a)(7). In determining Salahmand’s sentence, the

district court increased his United States Sentencing Guidelines

offense level, pursuant to Guideline § 3A1.1(b)(1), because

some of his patients were children with serious mental health

conditions.

Salahmand disputes the increase in his offense level,

contending that § 3A1.1(b)(1)’s 2-level adjustment for

vulnerable victims applies only to victims of the defendant’s

offense of conviction, who in this case would include only those

victims who suffered financial loss. We disagree: the

adjustment applies not only to victims of the offense of

conviction, but also to victims of the defendant’s relevant

conduct. Accordingly, we affirm the judgment of the district

court.

I

On June 27, 2008, a grand jury charged Salahmand with:

(a) four counts of identity theft, in violation of 18 U.S.C.

§ 1028(a)(7); (b) three counts of using another person’s DEA

number to dispense a controlled substance, in violation of 21

U.S.C. § 843(a)(2); and (c) four counts of forgery of medical

prescriptions, in violation of 22 D.C. CODE §§ 3241(b), 3242(c).

On August 14, 2009, Salahmand pled guilty to Count Three of

the indictment, which charged him with identity theft based on

his 2006 use of the name and DEA number of a licensed

3

physician to distribute Schedule II controlled substances.1

Count Three also incorporated language from Count One, which

stated that Salahmand had been denied a medical license and

DEA registration number and had provided false documents to

the medical clinics that hired him. Pursuant to the plea

agreement, the remaining counts were dismissed. As part of the

agreement, Salahmand stipulated to the following “Statement of

the Offense”:

The defendant, Mansour Salahmand, was not a

licensed medical doctor. He did not hold a “DEA

registration number,” nor did he have a District of

Columbia controlled substance license. Despite his

lack of licensing and credentials, . . . Salahmand

worked at . . . eight clinics in the District of Columbia

and Maryland, purporting to treat patients (primarily

children) as a psychiatrist. As a result, the defendant

caused these eight clinics to fraudulently charge

Medicaid, District of Columbia or other state health

care programs, or private insurance companies for

services which purportedly were done by a licensed

medical doctor but were in fact performed by him.

During the course of his scheme, . . . Salahmand wrote

prescriptions for controlled substances for patients in

the District of Columbia or Maryland; at least 164 of

these prescriptions were filled at area pharmacies for

controlled substances. On these 164 prescriptions, the

defendant . . . forged the signatures [of] one of four

doctors, Dr. D.H., Dr. M.P, Dr. T.M. or Dr. H.K. In

1

Drugs designated “Schedule II” are “the most regulated and

controlled of the legal drugs.” Statement of the Offense at 1 (Aug. 14,

2009) (Appellant’s App. 43). They have an “accepted medical use,”

but also a “high potential for abuse” and “may lead to severe

psychological or physical dependence.” 21 U.S.C. § 812(b)(2).

4

addition, . . . Salahmand used the DEA registration

numbers of Doctors D.H., M.P., T.M., and H.K. . . .

With respect to the Identity Theft count, from in or

about September 2006 to October 2006, the defendant

used the name and DEA number of Dr. T.M., without

the doctor’s permission, in order to distribute Schedule

II controlled substances.

Statement of the Offense at 1-2 (Appellant’s App. 43-44).

The United States Sentencing Guideline applicable to

Salahmand’s offense of identity theft is § 2B1.1. See United

States Sentencing Commission, Guidelines Manual (USSG)

App. A at 550 (Nov. 2010); see also USSG § 1B1.2. The

revised Presentence Investigative Report (PSR) prepared by the

U.S. Probation Office assigned Salahmand a base offense level

of 6, pursuant to § 2B1.1(a)(2); a 6-level increase because the

loss amount was between $30,000 and $70,000, pursuant to

§ 2B1.1(b)(1)(D); and a 4-level increase because the offense

involved 50 or more (but fewer than 250) victims, pursuant to

§ 2B1.1(b)(2)(B). The PSR also added a 2-level adjustment

because the defendant knew or should have known that a victim

of the offense was a “vulnerable victim,” pursuant to USSG

§ 3A1.1(b)(1). The PSR then decreased Salahmand’s offense

level by 2 levels for acceptance of responsibility, see USSG

§ 3E1.1(a), resulting in a total offense level of 16. That offense

level, in combination with Salahmand’s criminal history

category of II, generated a Guidelines sentencing range of 24 to

30 months’ imprisonment. USSG ch. 5, pt. A, Sentencing

Table; see PSR ¶¶ 14-18, 23-24, 40, 76.

In support of the 4-level increase for “50 or more victims,”

the government presented evidence that more than 50 victims

suffered financial loss, including “[m]ore than 68 patients” at a

single clinic who “paid money themselves, either wholly or in

5

co-payments,” for services “they believed to have been provided

by a licensed medical doctor.” Gov’t Mem. in Aid of

Sentencing at 7 (Record Material (R.M.) at 7). In support of the

2-level adjustment for “vulnerable victims,” the government

presented evidence of additional patients treated by Salahmand

at the seven other clinics who “were exclusively or mostly

children whose treatment was paid by Medicaid or other need-

based public health care systems.” Id. at 7 n.8 (R.M. 7). These

victims, the government argued, were “vulnerable due to age

and mental condition brought on by abuse, neglect, and crime.”

Id. at 8 (R.M. 8).

The government identified five specific vulnerable patients

whom Salahmand treated, including: a 12-year-old boy in

foster care who was born addicted to cocaine and diagnosed

with Attention Deficit Hyperactivity Disorder and Depressive

Disorder; a 12-year-old girl, suffering “from depression and

crying spells,” who had been abandoned by her mother and

“sexually abused by her drug-addicted father”; a 7-year-old girl

with Adjustment Disorder who showed signs of psychiatric

disturbance due to abuse by her father; a 15-year-old boy who

had been sexually abused by his father’s girlfriend; and a 10-

year-old girl, diagnosed with Adjustment Disorder with Mixed

Anxiety and Depressed Mood, who had witnessed the homicide

of her cousin and shooting of her father, and who had been

assaulted by her brother. Id. at 8-9 (R.M. 8-9). The government

proffered that these five patients were only “examples” of “the

other 200 similarly situated [patient] victims” treated by

Salahmand who “lacked the maturity (many of the patients were

children), the ability (due to depression or mental illness), or the

resources (lack of education, [or] employment) to have the

fortitude to stand up to a [purported] ‘medical doctor’ to

challenge his diagnoses and prescriptions.” Id. at 8, 10 (R.M. 8,

10).

6

Salahmand did not dispute any of these facts. See Def.’s

Sentencing Mem. at 10 (R.M. 32). Although he initially

objected to the 4-level increase for “50 or more victims” under

USSG § 2B1.1(b)(2)(B), he later conceded that the doctors

whose identities he stole, and the 68 nonreimbursed patients

whom he treated at one clinic, were “victims” as defined by that

guideline. See Sentencing Hr’g Tr. at 10-11 (Dec. 10, 2009)

(Appellant’s App. 51-52). Salahmand did claim, however, that

none of those patients were vulnerable, and that the other

patients who were vulnerable could not be considered “victims”

for purposes of the 2-level adjustment under USSG

§ 3A1.1(b)(1) because they did not suffer financial loss. Def.’s

Sentencing Mem. at 10 (R.M. 32).

The district court determined that Salahmand’s Sentencing

Guidelines calculation should reflect not only his offense of

conviction -- identity theft -- but also his relevant conduct in

“treating patients” and “prescribing both non-controlled and

controlled medications” for them while falsely posing as a

psychiatrist. Sentencing Hr’g Tr. at 66 (R.M. 50). The court

specifically found that Salahmand was not licensed to practice

medicine; had failed required medical licensing examinations

fifteen times; did not have a District of Columbia, Maryland, or

DEA registration number to prescribe controlled substances;

provided services as a psychiatrist to patients in eight clinics

from 2004 to 2006; treated primarily patients under the age of

eighteen; and wrote at least 164 prescriptions for controlled

substances, without being registered, by forging the signatures

and using the DEA registration numbers of licenced doctors.

See id. at 63-65 (R.M. 47-49).

Over Salahmand’s objection, the court then applied the 2-

level adjustment for vulnerable victims, pursuant to USSG

§ 3A.1.1(b)(1). The court determined that a person did not have

to suffer a financial loss to qualify as a “vulnerable victim”

7

under that guideline. It found that “at least [the] five” specific

patients identified by the government -- whose ages ranged from

seven to fifteen; who were in foster care, were from abusive

households, or had parents unable to care for them; and who had

“mental health conditions” -- were “vulnerable victims.”

Sentencing Hr’g Tr. at 11-14 (Appellant’s App. 52-55). The

court further found that Salahmand treated those five patients

“as their psychiatrist” and “prescrib[ed] medications that were

in some instances controlled substances,” and that he “would

certainly know” of their vulnerability and their inability to detect

that he “wasn’t a licensed psychiatrist [or] a medical doctor, and

. . . shouldn’t have been practicing psychiatry.” Id. at 11-13, 16-

18 (Appellant’s App. 52-54, 57-59).

The district court concluded that the PSR had properly

calculated the (advisory) Guidelines sentencing range at 24-30

months. Although the court stated that it “would have”

sentenced Salahmand to 28 months, it imposed a sentence of

only 13 months’ incarceration to give him credit for jail time he

had served for a malicious-wounding conviction in Virginia and

to recognize that his guilty plea meant that “those patients [] did

not have to come and testify.” Id. at 59, 74 (Appellant’s App.

65, 71).

II

In reviewing a sentencing challenge, this court must first

determine whether the district court calculated the correct

Guidelines sentencing range. See United States v. Blalock, 571

F.3d 1282, 1285 (D.C. Cir. 2009) (citing Gall v. United States,

552 U.S. 38, 51 (2007)). In making that determination,

“[p]urely legal questions are reviewed de novo; factual findings

are to be affirmed unless clearly erroneous; and we are to give

due deference to the district court’s application of the guidelines

8

to facts.” United States v. Henry, 557 F.3d 642, 645 (D.C. Cir.

2009) (internal quotation marks omitted).

Salahmand’s sole challenge on appeal is to the 2-point

“vulnerable victim” sentencing adjustment that the court

imposed pursuant to Guideline § 3A1.1(b)(1). The guideline

provides that, “[i]f the defendant knew or should have known

that a victim of the offense was a vulnerable victim, increase by

2 levels.” USSG § 3A1.1(b)(1). Salahmand does not dispute

the district court’s findings that his minor patients were

vulnerable, but he insists that a person cannot be a “vulnerable

victim” for purposes of § 3A1.1(b)(1) unless he or she is also a

“victim” as defined by the guideline that governs his or her

offense of conviction. In this case, that guideline is § 2B1.1, and

Salahmand rightly states that his vulnerable patients were not

“victims” as that guideline defines the term because they did not

suffer financial loss. The question at issue is whether he is also

right that the definition of “victim” in § 2B1.1 governs

adjustments under § 3A1.1(b)(1). As Salahmand notes, this

presents “a pure question of law,” Appellant’s Reply Br. 3,

which we consider de novo.

A

We begin with Guideline § 2B1.1, which applies to a broad

range of economic offenses including the identity theft offense

for which Salahmand was convicted. See USSG App. A at 550.

That guideline fixes a base offense level of 6, which is increased

by specified levels for certain “specific offense characteristics.”

Pursuant to § 2B1.1, the court imposed a 6-level increase

because the amount of the loss caused by Salahmand’s offense

was more than $30,000, see USSG § 2B1.1(b)(1), and another

4-level increase because the offense “involved 50 or more

victims,” id. § 2B1.1(b)(2)(B).

9

Application Note 1 to § 2B1.1 provides the following

definition of “victim”:

For purposes of this guideline[,] . . . “[v]ictim” means

(A) any person who sustained any part of the actual

loss determined under subsection (b)(1); or (B) any

individual who sustained bodily injury as a result of the

offense.

Id. § 2B1.1, comment., n.1. Application Note 3 to § 2B1.1

further provides that “[a]ctual loss means the reasonably

foreseeable pecuniary harm that resulted from the offense.” Id.

§ 2B1.1, comment., n.3.2 The district court found the 4-level

increase applicable because at least 68 individual patients who

made co-payments for their medical treatment suffered actual

financial loss, i.e., “actual loss [as] determined under subsection

(b)(1),” id. § 2B1.1, comment., n.1, as a result of Salahmand’s

identity theft. He does not challenge that finding.

The district court then went on to consider whether to

impose an additional 2-level increase under Guideline

§ 3A1.1(b)(1), which, as we have noted, applies “[i]f the

defendant knew or should have known that a victim of the

offense was a vulnerable victim.” Id. § 3A1.1(b)(1). The

district court did not find that any of the patients it considered

vulnerable -- specifically, the five children identified by the

government -- suffered either financial loss or bodily injury.

Nonetheless, it imposed the additional 2-level increase because

it found that those vulnerable patients were injured by being

2

Application Note 4 to § 2B1.1 states that, in cases (like this one)

“involving means of identification,” “‘victim’ means (i) any victim as

defined in Application Note 1; or (ii) any individual whose means of

identification was used unlawfully or without authority.” USSG

§ 2B1.1, comment., n.4.

10

treated by an unlicensed practitioner. Salahmand disputes this

conclusion, not on the ground that the patients were uninjured,

but on the ground that such injury does not make them “victims”

as the word is defined in Application Note 1 to § 2B1.1.

But § 2B1.1’s definition of “victims” does not govern

increases under § 3A1.1. The introduction to the definition

provision of § 2B1.1’s Application Note 1 makes clear that its

definition of “victim” is “[f]or purposes of this guideline.”

USSG § 2B1.1, comment., n.1 (emphasis added). The 2-level

increase at issue here did not result from application of

Guideline § 2B1.1, the guideline for Salahmand’s offense of

conviction, which is contained in the “Offense Conduct” chapter

of the Guidelines Manual (Chapter Two). Rather, it resulted

from application of Guideline § 3A1.1, which is contained in the

“Adjustments” chapter (Chapter Three) and applies to all

offenses.

The Guidelines Manual instructs courts first to determine

“from Chapter Two” the guideline “applicable to the offense of

conviction,” USSG § 1B1.1(a)(1), and then to determine “the

base offense level and apply any appropriate specific offense

characteristics” contained in that guideline, id. § 1B1.1(a)(2).

The district court did that by applying the 4-level increase under

§ 2B1.1(b)(2)(B). The Manual then instructs the court to

“[a]pply the adjustments as appropriate related to

victim[s] . . . from Part[] A . . . of Chapter Three.” Id.

§ 1B1.1(a)(3). The court did that by applying the “vulnerable

victim” adjustment of § 3A1.1(b)(1).

Just as Application Note 1 to § 2B1.1 contains a definition

of “victim” for purposes of that guideline, the first sentence of

Application Note 2 to § 3A1.1 provides a definition of

“vulnerable victim” “[f]or purposes of subsection (b)” of

§ 3A1.1:

11

For purposes of subsection (b), “vulnerable victim”

means a person (A) who is a victim of the offense of

conviction and any conduct for which the defendant is

accountable under § 1B1.3 (Relevant Conduct); and

(B) who is unusually vulnerable due to age, physical or

mental condition, or who is otherwise particularly

susceptible to the criminal conduct.

Id. § 3A1.1, comment., n.2 (emphasis added). Subsection (b) --

which imposes a 2-level increase if the defendant knew or

should have known that a victim of the offense was a vulnerable

victim -- is the subsection at issue here. See id. § 3A1.1(b)(1).

As we have noted, Salahmand does not dispute the district

court’s findings that his minor patients with mental health

conditions were “unusually vulnerable and particularly

susceptible to criminal conduct,” and that he “knew or should

have known of the victim[s’] unusual vulnerability.”

Appellant’s Br. 12-13 (internal quotation marks omitted); see

Appellant’s Reply Br. 3; Sentencing Hr’g Tr. at 12 (App. 53).

But he argues, again, that they were not vulnerable “victims”

because they were not “victims” of the offense of conviction as

§ 2B1.1 defines the term.

The problem with this argument is that it does not give

weight to all of the language of the first sentence of Application

Note 2 to § 3A1.1, which we set out again:

For purposes of subsection (b), “vulnerable victim”

means a person . . . who is a victim of the offense of

conviction and any conduct for which the defendant is

accountable under § 1B1.3 (Relevant Conduct).

USSG § 3A1.1, comment., n.2 (emphasis added). In short, the

2-level adjustment of § 3A1.1(b)(1) applies not only to victims

of the offense of conviction, but also to victims of any relevant

12

conduct for which the Guidelines make the defendant

accountable. As to the meaning of “relevant conduct,” the text

of the Application Note refers us to the “Relevant Conduct”

section of the Guidelines Manual. That section states, inter alia,

that “adjustments in Chapter Three, shall be determined on the

basis of . . . all acts and omissions committed . . . or willfully

caused by the defendant . . . that occurred during the

commission of the offense of conviction.” Id. § 1B1.3(a)(1).

Salahmand does not deny that he treated his vulnerable patients

“during the commission” of his identity theft offense, when he

posed as a licensed physician and used the names and DEA

numbers of licensed physicians. Accordingly, because those

patients were victims of that conduct, it was appropriate for the

district court to apply the 2-level adjustment of § 3A1.1(b)(1).

Salahmand maintains that the language of the first sentence

of Application Note 2 does not render § 3A1.1(b)(1) applicable

to victims of relevant conduct, but rather requires that courts

“link the ‘vulnerable victim’ enhancement to the underlying

predicate offense.” Appellant’s Br. 19. It is not clear what

Salahmand means by “link,” but he appears to mean that the

“and” in that sentence requires vulnerable victims to be victims

of both the offense of conviction and the relevant conduct. That

interpretation, however, directly contradicts the Sentencing

Commission’s own explanation of why that sentence was added

to the Application Note.

The Commission added the cited sentence to § 3A1.1’s

Application Note 2 in 1997. See USSG App. C, Amdt. 564

(effective Nov. 1, 1997). In its explanation of the “Reason for

Amendment,” the Commission stated that it added the sentence

to make clear that “victim of the offense” in § 3A1.1(b) refers

not “only to a victim of the defendant’s offense of conviction,”

but “more broadly, to a victim of any relevant conduct.” Id.

Indeed, at the same time, the Commission also inserted “of

13

conviction” after “the offense” in subsection (a) of Guideline

§ 3A1.1, which provides a 3-level adjustment for victims of hate

crimes. It did so to “clarif[y] that the enhancement in subsection

(a) is limited to victims of the defendant’s offense of

conviction” -- by contrast to the enhancement in subsection (b),

which extends to victims of relevant conduct as well. Id.; see

also United States v. Zats, 298 F.3d 182, 187 (3d Cir. 2002)

(declining to read Application Note 2 to require that “a

‘vulnerable victim’ must be harmed by both the offense of

conviction and by relevant conduct outside that offense” because

the “Commission could not have intended to define ‘victim’ for

sentencing purposes more narrowly than for the offense of

conviction itself”).

B

Our conclusion -- that the 2-level adjustment of

§ 3A1.1(b)(1) applies not only to victims of the offense of

conviction, but also to victims of the defendant’s relevant

conduct -- is consistent with, if not compelled by, our previous

decision in United States v. Smith, 374 F.3d 1240 (D.C. Cir.

2004). Smith, a branch chief for the District of Columbia’s

Mental Retardation and Developmentally Disabled

Administration (MRDDA), was convicted of conflict of interest,

in violation of 18 U.S.C. § 208(a), for referring patients to

treatment centers with which he had financial transactions. 374

F.3d at 1242-43. The district court gave Smith a 2-level

“vulnerable victim” adjustment because he “used his power over

mentally retarded adults to realize personal financial gains to

their detriment.” Id. at 1248. We concluded that the court did

not clearly err in finding that Smith’s MRDDA clients were

harmed by the centers’ substandard treatment. And citing

Application Note 2 to § 3A1.1, we “further agree[d] with the

district court that these harmful referrals [were] ‘relevant

conduct’ for . . . Smith’s conflict of interest offense” and thus

14

that “the requirements for an enhancement under Section 3A1.1

of the Guidelines [were] satisfied.” Id.

Smith did not make precisely the same argument that

Salahmand does here, but he did make a closely related one.

Noting that his offense took place in 1994-95 -- before the 1997

amendment to Application Note 2 -- he emphasized that the

1995 Guidelines “mention[ed] only the offense, thus suggesting

that relevant conduct [was] not a basis for the Section 3A1.1

enhancement under that version of the Guidelines.” Id. at 1249

n.2. In response, we said that there was no discrepancy between

the 1995 and 2002 versions because “[t]he word ‘offense’ in the

1995 Guidelines -- indeed, in every version of the Guidelines --

is a term of art defined to include relevant conduct.” Id. (citing

1995 USSG § 1B1.1, comment., n. 1(l)). The 1997 amendment

to Application Note 2, we found, was added merely “to spell out

what eight circuits had held the Guidelines already provided --

that the word ‘offense’ in [§ 3A1.1] included relevant conduct.”

Id.3

3

Salahmand insists that “the district court misread Smith” in

determining “that ‘vulnerable victims’ [under § 3A1.1] did not also

need to be ‘victims’ under U.S.S.G. § 2B1.1.” Appellant’s Br. 13-15.

But it is Salahmand who misreads the case. Salahmand cites a

footnote in Smith, in which we said that the district court “gave due

consideration to the applicability of the [§§ 3A1.1 and 3B1.1]

enhancements to the changed predicate offense.” Smith, 374 F.3d at

1248 n.1. From that footnote, Salahmand infers a holding that the

vulnerable victim enhancement of § 3A1 applies only with respect to

victims of the offense of conviction. But that was not the point of the

Smith footnote. Smith had been convicted of conspiracy as well as

conflict of interest, and (after a remand) the district court changed its

mind about what the object of that conspiracy had been. The point of

the footnote was that the change made no difference to the

applicability of the adjustments, because the district court concluded

that although “the object offense of the conspiracy ha[d] changed, the

15

Our interpretation of § 3A1.1 is also fully in accord with the

decisions of our sister circuits, which we set forth in

parenthetical detail to make that consistency plain. See United

States v. Kennedy, 554 F.3d 415, 423-24 (3d Cir. 2009) (holding

that, although the “elderly account holders from whom [the

defendant] stole did not satisfy the definition of ‘victim’ under

USSG § 2B1.1(b)(2)” because they were reimbursed and

suffered no financial loss, “this does not mean that they are not

‘vulnerable victims’ under USSG § 3A1.1(b)(1)” because “[t]he

Guidelines make clear that ‘victims’ under § 2B1.1 and

§ 3A1.1(b) are separate definitions”); United States v. Moon,

513 F.3d 527, 541 (6th Cir. 2008) (reaffirming that “the

vulnerable victims enhancement [is] properly applied based on

‘relevant conduct’ . . . , notwithstanding the fact that a . . .

governmental entity is the primary victim of the offense of

conviction”; and holding that patients who received partial doses

of medication “during the course of Defendant’s scheme to

defraud . . . healthcare benefit programs” qualified as vulnerable

victims under § 3A1.1(b)(1)); United States v. Zats, 298 F.3d

182, 187 (3d Cir. 2002) (concluding that “the drafters [of

Application Note 2 to § 3A1.1] obviously intended to define

‘victim’ to mean anyone hurt by conduct for which the

defendant is accountable under § 1B1.3,” and that “[t]herefore,

victim status is not limited to those hurt by the offense of

conviction, but also includes those hurt by relevant conduct

outside that offense”); see id. at 186 (noting that the Third

Circuit had previously “applied the enhancement where the

defendant sexually assaulted a twelve-year-old [passenger] in

the process of stealing a car and later pled guilty only to

carjacking”); United States v. Haggard, 41 F.3d 1320, 1325-26

(9th Cir. 1994) (holding “that courts properly may look beyond

the four corners of the charge to the defendant’s underlying

facts supporting the . . . adjustments ha[d] not.” Id. at 1248 n.1

(internal quotation marks omitted).

16

conduct in determining whether someone is a ‘vulnerable

victim’ under section 3A1.1,” and that family members who

heard the defendant’s (false) story that he knew the whereabouts

of their missing relative could “be considered victims of [the

defendant’s] crimes of obstructing justice and making false

statements to the FBI”); United States v. Yount, 960 F.2d 955,

956-58 (11th Cir. 1992) (holding that “the ‘vulnerable victim’

provision does not require a vulnerable victim who is a victim

of the offense of conviction,” and that elderly persons whose

bank accounts the defendant raided qualified, notwithstanding

that the victim of the offense of conviction was the bank and that

“none of the [account holders] actually lost money”).4

Salahmand protests that, although the Third Circuit’s

opinion in United States v. Kennedy reached the same

conclusion we reach, it “acknowledge[d] th[e] apparent non

sequitur” that “one can be a vulnerable victim without being a

victim at all.” 554 F.3d at 423. With respect, we do not see the

non sequitur. The problem that Salahmand has pointed out is

not that his minor patients were not victims, but that they were

not victims as defined by § 2B1.1. They are, however, victims

as defined by § 3A1.1, and there is nothing illogical about the

Sentencing Commission providing different definitions for

different guidelines.

Salahmand also protests any reliance on precedents like

United States v. Haggard, 41 F.3d at 1325-26, and United States

v. Yount, 960 F.2d at 958, which interpreted older versions of

4

See also United States v. Gill, 99 F.3d 484, 488 (1st Cir. 1996);

United States v. Blake, 81 F.3d 498 (4th Cir. 1996); United States v.

Echevarria, 33 F.3d 175 (2d Cir. 1994); United States v. Stewart, 33

F.3d 764, 770 (7th Cir. 1994); United States v. Lee, 973 F.2d 832,

833-34 (10th Cir. 1992); United States v. Bachynksy, 949 F.2d 722

(5th Cir. 1991).

17

USSG § 3A1.1(b). See Appellant’s Reply Br. 10-11. In fact,

those precedents are extraordinarily reliable, as the Sentencing

Commission’s explanation of the reason for its 1997 amendment

to Application Note 2 makes manifest:

This amendment addresses a circuit court conflict

regarding whether “victim of the offense” in

§ 3A1.1 . . . refers only to a victim of the defendant’s

offense of conviction or, more broadly, to a victim of

any relevant conduct. The amendment adopts the

majority appellate view, which holds that a sentencing

court should consider the defendant’s relevant conduct

when determining whether the vulnerable victim

enhancement applies. See, e.g., United States v.

Haggard, 41 F.3d 1320, 1326 (9th Cir. 1994) (proper

to consider harm caused to victims beyond the

defendant’s offense of conviction); United States v.

Yount, 960 F.2d 955 (11th Cir. 1992).

USSG App. C, Amdt. 564.

Finally, Salahmand cites two cases in which courts declined

to impose a 2-level increase under § 3A1.1, and contends that

those decisions establish that a vulnerable victim adjustment

under that guideline is unwarranted unless the victim suffers

either financial loss or bodily injury. See United States v.

Geiger, 190 F.3d 661 (5th Cir. 1999); United States v. Anderson,

85 F. Supp. 2d 1084 (D. Kan. 1999). But those cases did not

deny adjustments under § 3A1.1 because the asserted victims

did not suffer financial loss or bodily injury, but rather because

they suffered no injury at all. In short, they did not qualify as

“victims” under any definition. See Geiger, 190 F.3d at 664

(finding a § 3A1.1 adjustment unwarranted because, in “contrast

to other medical fraud cases within this Circuit in which patients

suffered harm or at least potential harm from [a] fraudulent

18

scheme, the patients here suffered no harm[;] [i]nstead, the

patients benefitted from the scheme”); Anderson, 85 F. Supp. 2d

at 1093 (denying the adjustment because the government “failed

to show that the patients were harmed in any way” from the

defendant’s Medicare kickback scheme).

III

For the foregoing reasons, we conclude that Guideline

§ 3A1.1(b)(1)’s 2-level adjustment for vulnerable victims

applies not only to victims of the offense of conviction, but also

to victims of the defendant’s relevant conduct. Accordingly, the

judgment of the district court is

Affirmed.