Ovеr a seven-year period, Lisa A. Lewis embezzled more than $2 million from twelve people who were 75 to' 92 years old. Pursuant to a plea agreement, she pled guilty to one count of wire fraud in violation of 18 U.S.C. § 1343, and the government agreed to a specific sentencing guidelines calculation. The government also agreed to recommend no more than ten years’ imprisonment at her sentencing hearing.
At the first sentencing hearing, the district court sentenced Lewis to fifteen years’ imprisonment. Shortly thereafter, we decided United States v. Thompson,
On appeal, Lewis now argues that she did not waive her argument that the government breached the plea agreement. She reasserts that argument now. Lewis also argues that the district court erred at sentencing by (1) applying a sentencing enhancement based on the vulnerability of her victims and (2) imposing a substantively unreasonable sentence.
We hold that the district court did not err by refusing to hear Lewis’s argument, but it did err by not affirmatively acknowledging that it had the authority to do so. But because the district court alternatively rejected that argument, and because we believe that the argument is meritless, we hold that the district court’s error is harmless. Finally, we hold that the district court did not err at sentencing because the vulnerable-victim enhancement was properly applied and the district court’s sentence was substantively reasonable.
I. Background
From 2006 until 2013, Lewis fraudulent ly held herself out as an account representative with Fidelity Investments to at least a dozen “investors” whose ages ranged from 75 to 92. Although she had been a registered broker with the Financial Industry Regulatory Authority from 1990 until 2006, she was neither a registered broker nor affiliated with Fidelity Investments during this fraudulent scheme. Under the scheme, Lewis convinced her investors to set up investment accounts at Fidelity. Unbeknownst to her investors, however, Lewis opened the аccounts as joint accounts, including her name on each account. This allowed Lewis to transfer
A grand jury indicted Lewis on five counts of .wire fraud in violation of 18 U.S.C. § 1343. On March 14, 2014, she pled guilty to one of those counts pursuant to a plea agreement. In exchange for Lewis’s guilty plea, the government made several promises. First, the government promised “to recommend no more than 10 years imprisonment and the maximum period of supervised release.” (R. 17 at ¶ 24.) Second, the government agreed to the following sentencing guidelines calculation:
1. A base offense level of 7 under U.S.S.G. § 2Bl.l(a)(l);
2. Specific offense level increases of 16 levels for the amount of the loss under U.S.S.G. § 2Bl.l(b)(l)(I), 2 levels for an offense involving 10 or more victims under U.S.S.G. §' 2Bl.l(b)(2)(A), and 2 levels for an offense involving sophisticated means under U.S.S.G. § 2Bl.l(b)(10);
3. Á 2-level increase for the abuse of a position of trust under U.S.S.G. § 3B1.3;
4. A 4-level increase for an offense involving a large number of vulnerable victims under U.S.S.G. § 3A1.1; and
5. A 3-level decrease for acceptance of responsibility under . U.S.S.G. §§ 3El.l(a) and 3El.l(b).
This agreed-upon calculation resulted in a total offense level of 30. Based on this offense level and Lewis’s criminal history category of I, Lewis’s guideline range under the plea agreement was 97 to 121 months.
The plea agreement also included several important reservations. First, the agreement provided that “[b]oth parties reserve the right to provide the district court and ■the probation office with any and all information which might be pertinent to the sentencing process — ” (R. 17 at ¶ 22.) Second, the agreement provided that “[b]oth parties reserve the right to make any recommendation regarding any and all factors pertinent to the determination of the sentencing guideline range.... ” (R. 17 at ¶23.) Finally, the agreement acknowledged that the district court was not bound by the agreement or by the sentencing guidelines. (R. 17 at ¶ 25.)
The probation office then completed a Presentence Investigation Report (“PSR”). The probation office’s guideline calculation included two additional enhancements: (1) a 2-level increase for the use of a means of identification under U.S.S.G. § 2Bl.l(b)(ll)(C)(i) and (2) a 2-level increase for obstruction of justice under U.S.S.G. § 3C1.1. The calculation in the PSR also included only a 2-level vulnerable-victim enhancement under U.S.S.G. § 3Al.l(b)(l), rather than the 4-level enhancement contemplated in the plea agreement. The probation office then presented the PSR to Lewis and to the government for comment. Lewis objected to the additional enhancements. The government did not object to any of these recommendations.
The probation office then asked the government to comment on Lewis’s objections to the additional enhancements. The government responded in an email to the PSR preparer. Regarding the means-of-
The government and Lewis both filed sentencing memorandums. Lewis asked for an eight-year prison term, arguing that this sentence would have the same deterrent effect as a ten-year sentence. The government’s response did not address the guidelines; instead, it emphasized the seriousness of the offense and recommended a ten-year sentence.
At sentencing, the district court once again asked the government to comment on Lewis’s objections to the additional enhancements in the PSR. Mindful of the plea agreement, the government first expressed that it was not advocating for the additional enhancements. It then repeated the recommendations that it had given to the probation office. The district court followed the PSR and concluded that Lewis’s total offense level was 32. The government then argued that a 4-level vulnerable-victim enhancement—as contemplated in the plea agreement—rather than the 2-level vulnerable-victim enhancement included in the PSR should apply. The district court rejected that argument. The court then sentenced Lewis to fifteen years’ imprisonment, a sentence five years higher than was contemplated in the plea agreement and twenty-nine months higher than the top end of the guideline range for an offense level of 32.
On January 5, 2015, Lewis appealed only her conditions of supervised release. In light of our decision in
On February 1, 2016, Lewis filed a motion with the district court seeking to reassign her case to a new sentencing judge, to strike the PSR’s guideline calculation, to strike the government’s sentencing memorandum, and to seal the sentencing transcript. In that motion, Lewis claimed for the first time that the government had breached the plea agreement. The district court denied Lewis’s motion, holding that she had waived any argument regarding a breach of the plea agreement by not presenting it at the first sentencing hearing or on the first appeal. The district court also concluded that, even absent a waiver, Lewis was “not entitled to relief because the government did not breach the plea agreement.” (R. 61 at 5.)
Before the resentencing hearing, Lewis again filed objections to enhancements in the PSR. During resentencing, she specifically objected to the means-of-identification 2-level enhancement and the vulnerable-victim enhancement. The district court rejected Lewis’s argument regarding the vulnerable-victim enhancement and applied the 2-level increase contemplated in the PSR. The district court accepted Lewis’s argument regarding the means-of-identification enhancement and dropped that 2-level increase. The district court then recalculated Lewis’s guideline range and found that her total offense level was 30, which, based on her criminal history cate
Lewis now appeals the district court’s denial of her February 1 motion and the district court’s sentence. Because the government did not breach the plea agreement and because the sentence was proper, we agree with the district court.
II. Analysis
On appeal, Lewis makes four arguments: (1) the district court erred when it concluded that Lewis wаived her right to assert that the government had breached the plea agreement- by failing to raise this argument at the original sentencing or on the original appeal; (2) the district court erred when it concluded that the government did not breach the plea agreement; (3) the district court erred when it applied the two-level vulnerable-victim enhancement; and (4) the district court’s sentence of fifteen years’ imprisonment was substantively unreasonable. We first address her arguments regarding the plea agreement. We then turn to her arguments regarding the district court’s sentence.
A. Breach of the Plea Agreement
Lewis’s first two arguments on appeal center on the government’s alleged breach of the plea agreement. The district court held that Lewis waived any argument regarding the government’s alleged breach by not raising it at- the original sentencing in the district court or on the original appeal in this court. Thus, the district court held that this argument was outside the scope of the remand. “We review a district court’s determination of the scope of remand de novo.” United States v. Mobley,
The scope of a remand is determined by our opinion granting that remand. United States v. Avila,
A remand in light of Thompson vacates the entire sentence, allowing the district court to alter any aspect of that sentence at resentencing.
Here, Lewis could have raised all of her arguments regarding the government’s alleged breach of the plea agreement at the first sentencing and then on her first appeal. But she chose not to raise them. Because we generally remanded this case in light of Thompson, the district court at resentencing could have chosen to hear Lewis’s arguments regarding the breached plea agreement, but it was not obligated to do so. Id. at 801-02. Therefore, the district court did not err in refusing to hear Lewis’s newly raised arguments.
“An error is harmless if it does not affect a party’s substantial rights.” Citizens for Appropriate Rural Roads v. Foxx,
Here, the district court alternatively considered Lewis’s argument regarding the plea agreеment and concluded that no breach occurred. When, as here, there is no dispute as to the relevant facts, we interpret the plea agreement and review whether there was a breach de novo. United States v. Malone,
Lewis argues that the government breached the plea agreement in three major ways: (1) by advocating for additional
First, the government did not breach the plea agreement by emailing the PSR preparer or commenting on the PSR’s recommendations at sentencing. In fact, the government explicitly reserved the right to do so in the plea agreement. In the agreement, the government “reserved] the right to provide the district court and the probation office with any and all information which might be pertinent to the sentencing process.... ” (R. 17 аt ¶ 22) (emphasis added). The government also “reserved] the right to make any recommendation regarding any and all factors pertinent to the determination of the sentencing guideline range ... and any other matters not specifically addressed by this agreement.” (R. 17 at ¶ 23.)
By offering its recommendations on the additional enhancements provided in the PSR, the government was not advocating for those enhancements. Instead, it was merely following the plea agreement’s terms by providing the district court and the probation office with pertinent information that was not addressed in the agreement. Moreover, the government, explicitly disclaimed advocacy for those additional enhancements at the sentencing hearing. When the district .court asked the government- for a recommendation about the additional enhancements in the PSR, the government first responded that it was not advocating for those enhancements. Only then did the government provide its recommendations.
Second, the government did not fail to advocate in good faith for a maximum sentence of ten years. The plea agreement bound the government to “rеcommend ho more than 10 years[’] imprisonment, ...” (R. 17 at ¶ 24.) Lewis argues that once the district court accepted the higher sentencing range calculated in the PSR—121 to 151 months—the government had a duty to advocate for a below guidelines sentence. For Lewis, by continuing to describe her crime as “horrific,” “egregious,” , “aggravated,” “significant,” “dramatic,” and “tragic,” the government failed to make such a good faith effort. We disagree.
As previously mentioned, the plea agreement required the government to argue for no more than ten years’ imprisonment. That is preсisely what the government did throughout the sentencing process. The government repeated its ten-year recommendation at the plea hearing, in its sentencing memorandum, and throughout the sentencing hearing. Strong advocacy in favor of the maximum sentence contemplated by a plea agreement does not constitute a breach, especially when the government reiterates its recommendation and the terms of the plea agreement throughout the sentencing process. See United States v. Salazar,
Finally, the government did' not breach the.plea agreement by advocating for the 4-level vulnerable-victim enhancement at sentencing. First, the plea agreement, by its terms, permitted the govern
We agree with the district court’s alternative conclusion that the government did not breach the plea agreement. Because this argument is meritless and could not have affected the outcome of Lewis’s case, the district court’s failure to acknowledge that it could have considered this argument is harmless.
B. Sentencing Arguments
Lewis’s final two arguments involve her sentence. We review a district court’s sentence in two steps. First, we review the district court’s application of the sentencing guidelines for procedural error. United States v. Mbaye,
1. Vulnerable-Victim Enhancement
Lewis disputes the district court’s application of the 2-level sentencing enhancement under U.S.S.G. § 3Al.l(b)(l) based on the vulnerability of her victims. “We review the district court’s application of the sentencing guidelines de novo and its factual findings for clear error.” United States v. Guidry,
Under U.S.S.G. § 3Al.l(b)(l), a district court can increase a defendant’s offense level by two levels “[i]f the defendant knew or should have known that a victim of the offense was a vulnerable victim.” The commentary for this section defines a “vulnerable victim” as a person “who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.” U.S.S.G. § 3A1.1 cmt. n.2.
Lewis argues that age alone is insufficient to justify application of the enhancement under § 3Al.l(b)(l). In support of her argument, Lewis quotes United States v. Anderson,
As we have held, “Elderly victims satisfy the requirements of § 3Al.l(b)(l), especially when their financial investments and financial security are at issue. The elderly are a frequent target of scammers and frequently qualify as vulnerable victims.” United States v. Iriri,
Although the district court did base the application of the vulnerable-victim enhancement at least in part on the victims’ ages, the court also looked to several other vulnerabilities that Lewis exploited during the course of her scheme. As the district court noted and the victim impact statements reflect, Lewis had established long-term working relationships with at least some of her victims befоre commencing her fraudulent scheme. As one victim’s family member stated, Lewis “[p]os[ed] as a friend and advisor” and methodically did “things to develop trust over many years.” (R. 21 at 47.) Lewis “waited until [her victim]’s advanced age, illness and memory losses after chemotherapy, along with [her victim’s husbandj’s progressive forgetfulness and weakness gave her the opportunity to steal their life savings—trying to get every penny of it.” (R. 21 at 47.)
Other victims and their family members emphasized Lewis’s knowledge that her victims lacked basic computer skills. Finally, as the district court noted at resentenc-ing, at least one оf Lewis’s victims “was in the hospital with colon cancer when much of the money was taken away.” (R. 77 at 21.) Lewis, who became acutely familiar with her victims by posing as a friend and advisor for years before and during her scheme, intentionally chose these people, not merely because of their ages but also because of their various other vulnerabilities she could readily exploit.
Lewis further argues that the district court conflated the vulnerable-victim enhancement with the abuse-of-trust enhancement and double counted the same conduct for purposеs of sentencing. This argument, however, is easily dismissed. We have specifically held that this so-called “double counting,” “in the sense that the same conduct is used more than once to increase a defendant’s guideline range, is generally permissible unless the text of the guidelines prohibits it.” United States v. Burnett,
2. Substantive Reasonableness of Lewis’s Sentence
Lewis finally argues that her fifteen-year sentence, which is five years longer than the agreed-upon maximum sentence in her plea agreement and nearly five years longer than the upper end of her sentencing guidelines range, is substantively unreasonable. We review the substantive reasonableness of a district court’s sentence under a deferential abuse-of-discretion standard. Gall v. United States,
There is no presumption that an above-guidelines sentence is unreasonable. United States v. Gill,
Here, the district court provided an adequate statement, consistent with 18 U.S.C. § 3553(a), explaining its reasons for imposing an above-guidelines sentence. Before announcing its sentence, the district court reiterated the importance of the guidelines. It then considered the nature and circumstances of Lewis’s offense. The district court concluded that Lewis’s crime was “one of the most serious white collar crimes” it had ever seen. As such, the court rejected the “abstract mathematical calculation” of the guidelines because the guidelines didn’t reflect the magnitude of Lewis’s offense. (R. 77 at 45.)
Moreover, the district court considered the impact Lewis’s crime had on her victims and the need to provide restitution to them. The court further considered “the need for just punishment” and determined that “deterrence played a huge role here because white collar crimes, unlike so many, ... are not impulsive.” (R. 77 at 47-48.) To send a message that this type of .crime would not be tolerated, the district court chose to impose an above-guidelines sentence. Finally, in deciding on an appropriate sentence, the district court considered the need to protect the public.
Lewis argues that the district court failed to adequately consider certain mitigating factors including that she had a criminal history categоry of only I, that she was a nonviolent offender, and that she expressed genuine remorse at the sentencing hearing for her actions. A district court can consider all of these factors when conducting its § 3553 sentencing analysis; however, the district court has “discretion over how much weight to give a particular factor.” United States v. Boroczk,
We agree with the district court that Lewis’s crime was especially damaging to her victims and that the sheer magnitude of her offense coupled with the other § 3553 factors discussed by the district court justified an above-guidelines sentence. As such, the district court did not abuse its discretion.
III. Conclusion
For the foregoing reasons, we AFFIRM.
Notes
. We recognize that the plea agreement still binds the government at resentencing. Thus, had Lewis alleged that the government breached the plea agreement in a new or different way at resentencing, the district court would have had to have addressed that аrgument. That is because Lewis would not have been able to raise this new or different argument at tire first sentencing. But because all of the alleged breaches she complains about occurred at or before the first sentencing, and because she could have raised these arguments at that first sentencing and then on her first appeal, the district court was not obligated to hear these arguments on remand.
. We also recognize that the district court decided this case before our decision in Mobley,