United States v. Mason , 231 F. App'x 286 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4570
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTONIO MASON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:02-cr-00537-CCB)
Submitted: March 7, 2007 Decided: July 2, 2007
Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Michael T. Citaramanis,
Assistant Federal Public Defender, Sherri L. Keene, Staff Attorney,
Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Stephanie A. Gallagher, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio Mason appeals from the 176-month sentence imposed
after resentencing in light of United States v. Booker, 543 U.S.
220 (2005), for carjacking, in violation of 18 U.S.C. § 2119(1)
(2000), brandishing a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C.A. § 924(c)(1)(A)(ii) (West 2000
& Supp. 2006), and possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2000). At Mason’s original
sentencing, the district court applied a two-level increase for a
“vulnerable victim” under U.S. Sentencing Guidelines Manual § 3A1.1
(2002). Mason challenged the vulnerable victim enhancement on his
first appeal, but we declined to address the issue because we
remanded for resentencing in light of Booker. United States v.
Mason, 2005 WL 1637880, *3 (4th Cir. July 13, 2005) (No. 03-4962).
Mason was resentenced on May 23, 2006. At resentencing, the
district court again considered whether the vulnerable victim
enhancement was appropriate and applied the enhancement. Mason was
again sentenced to ninety-two months on counts one and three and
eighty-four months on count two, to be run consecutively, for a
total of 176 months of imprisonment.
Mason argues that the district court erred in applying
the vulnerable victim enhancement because his victim, James Pugh,
was not particularly susceptible to being carjacked due to his age
and there was insufficient evidence to find by a preponderance of
- 2 -
the evidence that Pugh’s age and condition facilitated the
carjacking.*
Under the current Guidelines, the two-level adjustment is
appropriate if the victim is (1) vulnerable, and (2) the defendant
“knew or should have known” of the victim’s vulnerability. USSG
§ 3A1.1. The enhancement is appropriate if a victim of the offense
was “unusually vulnerable due to age, physical or mental condition,
or who is otherwise particularly susceptible to the criminal
conduct.” USSG § 3A1.1, cmt. n.2.
With respect to a district court’s application of the
Sentencing Guidelines, this court reviews factual determinations
for clear error, and legal questions de novo. United States v.
Blake, 81 F.3d 498, 503 (4th Cir. 1996). Mason contends that the
district court did not make a fact intensive inquiry as to whether
Pugh was particularly susceptible to armed carjacking, more than
any other victim. In applying the enhancement, the district court
noted that Pugh was both elderly and infirm. The court determined
that Mason had sufficient time to observe that Pugh was elderly and
that his car had disabled license plates while Mason pretended to
ask Pugh for directions. The court specifically held that:
this particular victim was a vulnerable one, given the
handicapped plate again and given his age and in fact the
*
In 1995, the Sentencing Commission amended § 3A1.1(b), making
it “unnecessary for a sentencing court to find that a defendant had
specifically targeted his victim.” United States v. Bolden, 325
F.3d 471, 501 n.35 (4th Cir. 2003).
- 3 -
physical condition made him more susceptible to an armed
carjacking. Certainly an armed carjacking could be
difficult for anyone to resist. But I think it is more
difficult when your physical condition and age makes it
a little harder to resist what is happening to you and
perhaps a bit more likely to be harmed.
(J.A. 224-25). We therefore conclude that the district court’s
factual findings and reasoning were sufficient to support the
application of the enhancement and affirm Mason’s sentence.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
- 4 -