Vulnerable Victim Enhancement Analysis

The Guidelines Manual states that if the defendant knew or should have known that a victim of the offense was a vulnerable victim, the defendant’s sentence will increase. The Guidelines define a vulnerable victim as a victim who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct. The Commentary instructs that the vulnerable victim enhancement should not be applied if the factor that makes the person a vulnerable victim is already incorporated in the offense guideline. It explains that if the underlying offense guideline provides a separate enhancement for the age of the victim, the vulnerable victim enhancement would not be applied unless the victim was unusually vulnerable for reasons unrelated to age.
C. The Differing Applications of the Vulnerable Victim Enhancements by the Fourth, Fifth, and Ninth Circuits

1. The Fourth Circuit In United

The common thread is the finding of vulnerability based on a factor that is completely separate and distinct from the underlying offense. Conditions that make a three-year old more vulnerable than an eleven-year old can support the application of the vulnerable victim enhancement. For example, in United States v. Grubbs, the Fourth Circuit upheld the vulnerable victim enhancement because the defendant lured his victims by giving them higher grades and gifts and enticing them with the promise of scholarships. Similarly, in United States v. Willoughby, the Sixth Circuit held that a sixteen-year old girl was vulnerable because she was a homeless runaway with a history of abuse and neglect. In United States v. Irving, the Second Circuit applied the vulnerable victim enhancement because the victims were homeless, impoverished, and without parental or other appropriate