United States v. Jean Alvarez

713 F. App'x 88
CourtCourt of Appeals for the Third Circuit
DecidedNovember 13, 2017
Docket16-3775
StatusUnpublished

This text of 713 F. App'x 88 (United States v. Jean Alvarez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jean Alvarez, 713 F. App'x 88 (3d Cir. 2017).

Opinion

OPINION *

FISHER, Circuit Judge.

Appellant Jean Baptiste Alvarez seeks review of a sentencing determination, challenging the District Court’s application of a four-level “vulnerable victim” sentencing enhancement pursuant to . USSG § 3Al.l(b)(l)-(2). We will affirm.

I.

Alvarez worked as a mental health technician at the Kirkbride Center, a behavioral health hospital in Philadelphia, Pennsylvania, specializing in opioid addiction. Between 2012 and 2015, Alvarez had access to “daily census sheets” containing patients’ personal information, including their Social Security numbers, names, and dates of birth. As established at trial, Alvarez sold these daily census sheets to co-conspirators for $1,000 per sheet. The co-conspirators then used the information to file more than 150 false tax returns with the Internal Revenue Service, claiming an average refund of nearly $1,500. After an investigation, Alvarez was indicted for conspiracy to defraud the United States with respect to false claims, misuse of a Social Security number, aggravated identity theft, and aiding or assisting in the preparation of false federal income tax returns.

At trial, four of the Kirkbride identify theft victims testified. These patients suffered from, inter alia, drug addiction and mental illness, which was typical of Kirk-bride patients. None of the victims held regular jobs, or filed tax returns, during the years of the scheme. The government also offered recorded statements made by Alvarez to Peterson Rene, one of Alvarez’s co-conspirators who had agreed to cooperate with the government. For example, in one recording, Rene asked Alvarez whether the information on the daily census sheets had been previously used in other tax returns. Alvarez responded: “Those are people that are on welfare, man. Those people don’t work. Those are people that are collecting from the Government, man. Those people are not working, man.” 1 The jury ultimately found Alvarez guilty of five counts set forth in the indictment.

Prior to sentencing, the probation officer calculated a total offense level of 24 in Alvarez’s presentence report, which included a four-level enhancement under USSG § 3Al.l(b)(l) and (2). Section 3Al.l(b)(l) provides for a two-level enhancement if the victim of an offense was a “vulnerable victim,” and § 3Al.l(b)(2) provides for another two-level enhancement if the “offense involved a large number of vulnerable victims.”

The defense objected to the PSR regarding the applicability of the four-level enhancement. The objections, however, centered on whether the victims were “vulnerable victims” under § 3Al.l(b)(l), and not whether “a large number of vulnerable victims” was involved under § 3Al.l(b)(2). For example, Alvarez stated that he “did not target these patients because of their addiction-related vulnerability or mental health issues,” and that “their conditions had no bearing on the criminal activity.” 2

During the sentencing hearing, Alvarez again objected to the four-level enhancement, again focusing on the applicability of § 3Al.l(b)(l). He argued, for example, that while individuals with vulnerabilities were the victims, they were not targeted for that reason. Rather, Alvarez suggested he took their information because that was merely what he “had access to.” 3 The District Court denied Alvarez’s objection, stating that “there was evidence at trial ... that the defendant had reason to know these are people who are not highly educated, they don’t file tax returns[, and they] didn’t know what was going on.” 4 The District Court further explained its reasons for denying the objection, stating that “testimony at trial clearly showed some conversations that Mr. Alvarez had where he was trading on [the victims’] ignorance ....” 5 The District Court determined an offense level of 22, and imposed a below-guideline sentence of 60 months’ imprisonment, followed by three years’ supervised release.

II.

The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We exercise plenary review over the District Court’s legal interpretation of the Sentencing Guidelines. 6 However, “factual findings concerning the vulnerable victim adjustment are reversible only for clear error.” 7 Furthermore, “where an objection is not preserved at sentencing, we review that challenge for plain error.” 8

III.

Alvarez asserts that the District Court erred in: (A) applying a two-level enhancement pursuant to § 3Al.l(b)(l) for exploiting “vulnerable victim[s],” and (B) applying another two-level enhancement pursuant to § 3Al.l(b)(2) because “a large number of vulnerable victims” were involved. We disagree.

A.

Section 3Al.l(b)(l) provides that an offense level should be increased by two points “[i]f the defendant knew or should have known that a victim of the offense was a vulnerable victim.” In United States v. Iannone, this Court explained that the “vulnerable victim enhancement” applies where:

(1) [T]he victim was particularly susceptible or vulnerable to the criminal conduct; (2) the defendant knew or should have known of this susceptibility or vulnerability; and (3) this vulnerability or susceptibility facilitated the defendant’s crime in some manner; that is, there was a nexus between the victim’s vulnerability and the crime’s ultimate success. 9

Alvarez conceded during sentencing that the first two requirements were met. The issue before us is whether the third factor is satisfied—whether “there was a nexus between the victim’s vulnerability and the crime’s ultimate success.” 10

Alvarez argues that there is no such “nexus.” Rather, he suggests that the Kirkbride patients’ vulnerabilities, such as mental illness and drug addition, were only relevant insofar as they related to whether they had filed their taxes. In other words, he argues the Kirkbride patients were not selected for their vulnerabilities, and their vulnerabilities did not facilitate the crime’s success. Alvarez’s argument is without merit. Testimony and evidence established that the Kirkbride patients suffered from, inter alia, mental illness and drug addiction. They were unlikely to be employed or file tax returns, making it unlikely that the IRS would detect a duplicate return.

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Bluebook (online)
713 F. App'x 88, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jean-alvarez-ca3-2017.