United States v. Kim H. Birge, 830 F.3d 1229

Kim Birge, Chief Clerk of the Chatham County Probate Court, embezzled $767,218.99 from conservatorship accounts for minors, incapacitated adults, and estates.
Birge pleaded guilty to one count of mail fraud and was sentenced to 72 months imprisonment.
At sentencing the district court applied the two-level "vulnerable victim" enhancement under U.S.S.G. § 3A1.1(b)(1).
The enhancement applies when the defendant knew or should have known a victim was "unusually vulnerable" due to age, mental or physical condition, or other susceptibility.
Birge argued the enhancement was improper because she did not "target" the vulnerable victims.
The Eleventh Circuit reviewed de novo the application of the enhancement but gave deference to the district court’s factual finding that the victims were vulnerable.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 3A1.1(b)(1) requires the defendant to have specifically targeted vulnerable victims	Gov't: enhancement applies when defendant knew or should have known victims were vulnerable	Birge: enhancement requires proof she targeted victims because of their vulnerability	Court: No targeting requirement; enhancement applies if defendant knew or should have known victims were unusually vulnerable
Whether Birge knew or should have known conservatorship beneficiaries were vulnerable	Gov't: as probate chief, Birge knew conservatees lack capacity and are susceptible	Birge: argued lack of specific targeting undermines application	Court: Birge knew or should have known conservatees were vulnerable; enhancement properly applied
Whether prior Eleventh Circuit language requiring targeting binds this panel	Gov't: commentary (amended) controls; prior panels’ statements are dicta	Birge: relied on earlier cases implying targeting requirement	Court: earlier statements were dicta; binding authority is the current Guidelines commentary
Whether Sentencing Commission amendment changed the standard	Gov't: 1995 amendment clarified knowledge/should-have-known standard	Birge: challenged applicability under precedent	Court: Amendment is binding; it replaces any targeting requirement with knowledge standard

United States v. Kapordelis, 569 F.3d 1291 (11th Cir. 2009) (discusses deference to factual findings on victim vulnerability)
United States v. Long, 935 F.2d 1207 (11th Cir. 1991) (earlier panel applying enhancement where defendant targeted vulnerable victims)
United States v. Yount, 960 F.2d 955 (11th Cir. 1992) (discusses prior commentary interpretation requiring targeting)
United States v. Salemi, 26 F.3d 1084 (11th Cir. 1994) (applied enhancement where victim was an infant despite defendant’s mental state)
United States v. Rodriguez, 65 F.3d 932 (11th Cir. 1995) (Guidelines commentary is binding unless inconsistent with statute or Constitution)
McNely v. Ocala Star-Banner Corp., 99 F.3d 1068 (11th Cir. 1996) (dicta is not binding precedent)
United States v. Steele, 147 F.3d 1316 (11th Cir. 1998) (panel cannot overrule prior panel holdings; distinguishes holdings from dicta)