United States of America v. Mansour Salahmand

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 21, 2011 Decided July 22, 2011
No. 09-3136
UNITED STATES OF AMERICA ,
APPELLEE
v.
M ANSOUR SALAHMAND ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cr-00192)
Gregory Stuart Smith, appointed by the court, argued the
cause and filed the briefs for appellant.
Jay Apperson, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Ronald C. Machen, Jr.,
U.S. Attorney, and Roy W. McLeese III, John P. Mannarino, and
Virginia Cheatham, Assistant U.S. Attorneys.
Before: HENDERSON , GARLAND , and GRIFFITH , Circuit
Judges.

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Opinion for the Court filed by Circuit Judge GARLAND .
GARLAND , Circuit Judge: Mansour Salahmand treated
hundreds of patients while falsely representing that he was a
licensed physician. As part of a plea agreement, Salahmand
pled guilty to one count of identity theft, in violation of 18
U.S.C. § 1028(a)(7). In determining Salahmand’s sentence, the
district court increased his United States Sentencing Guidelines
offense level, pursuant to Guideline § 3A1.1(b)(1), because
some of his patients were children with serious mental health
conditions.
Salahmand disputes the increase in his offense level,
contending that § 3A1.1(b)(1)’s 2-level adjustment for
vulnerable victims applies only to victims of the defendant’s
offense of conviction, who in this case would include only those
victims who suffered financial loss. We disagree: the
adjustment applies not only to victims of the offense of
conviction, but also to victims of the defendant’s relevant
conduct. Accordingly, we affirm the judgment of the district
court.
I
On June 27, 2008, a grand jury charged Salahmand with:
(a) four counts of identity theft, in violation of 18 U.S.C.
§ 1028(a)(7); (b) three counts of using another person’s DEA
number to dispense a controlled substance, in violation of 21
U.S.C. § 843(a)(2); and (c) four counts of forgery of medical
prescriptions, in violation of 22 D.C. CODE §§ 3241(b), 3242(c).
On August 14, 2009, Salahmand pled guilty to Count Three of
the indictment, which charged him with identity theft based on
his 2006 use of the name and DEA number of a licensed

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physician to distribute Schedule II controlled substances.1
Count Three also incorporated language from Count One, which
stated that Salahmand had been denied a medical license and
DEA registration number and had provided false documents to
the medical clinics that hired him. Pursuant to the plea
agreement, the remaining counts were dismissed. As part of the
agreement, Salahmand stipulated to the following “Statement of
the Offense”:
The defendant, Mansour Salahmand, was not a
licensed medical doctor. He did not hold a “DEA
registration number,” nor did he have a District of
Columbia controlled substance license. Despite his
lack of licensing and credentials, . . . Salahmand
worked at . . . eight clinics in the District of Columbia
and Maryland, purporting to treat patients (primarily
children) as a psychiatrist. As a result, the defendant
caused these eight clinics to fraudulently charge
Medicaid, District of Columbia or other state health
care programs, or private insurance companies for
services which purportedly were done by a licensed
medical doctor but were in fact performed by him.
During the course of his scheme, . . . Salahmand wrote
prescriptions for controlled substances for patients in
the District of Columbia or Maryland; at least 164 of
these prescriptions were filled at area pharmacies for
controlled substances. On these 164 prescriptions, the
defendant . . . forged the signatures [of] one of four
doctors, Dr. D.H., Dr. M.P, Dr. T.M. or Dr. H.K. In
1 Drugs designated “Schedule II” are “the most regulated and
controlled of the legal drugs.” Statement of the Offense at 1 (Aug. 14,
2009) (Appellant’s App. 43). They have an “accepted medical use,”
but also a “high potential for abuse” and “may lead to severe
psychological or physical dependence.” 21 U.S.C. § 812(b)(2).

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addition, . . . Salahmand used the DEA registration
numbers of Doctors D.H., M.P., T.M., and H.K. . . .
With respect to the Identity Theft count, from in or
about September 2006 to October 2006, the defendant
used the name and DEA number of Dr. T.M., without
the doctor’s permission, in order to distribute Schedule
II controlled substances.
Statement of the Offense at 1-2 (Appellant’s App. 43-44).
The United States Sentencing Guideline applicable to
Salahmand’s offense of identity theft is § 2B1.1. See United
States Sentencing Commission, Guidelines Manual (USSG)
App. A at 550 (Nov. 2010); see also USSG § 1B1.2. The
revised Presentence Investigative Report (PSR) prepared by the
U.S. Probation Office assigned Salahmand a base offense level
of 6, pursuant to § 2B1.1(a)(2); a 6-level increase because the
loss amount was between $30,000 and $70,000, pursuant to
§ 2B1.1(b)(1)(D); and a 4-level increase because the offense
involved 50 or more (but fewer than 250) victims, pursuant to
§ 2B1.1(b)(2)(B). The PSR also added a 2-level adjustment
because the defendant knew or should have known that a victim
of the offense was a “vulnerable victim,” pursuant to USSG
§ 3A1.1(b)(1). The PSR then decreased Salahmand’s offense
level by 2 levels for acceptance of responsibility, see USSG
§ 3E1.1(a), resulting in a total offense level of 16. That offense
level, in combination with Salahmand’s criminal history
category of II, generated a Guidelines sentencing range of 24 to
30 months’ imprisonment. USSG ch. 5, pt. A, Sentencing
Table; see PSR ¶¶ 14-18, 23-24, 40, 76.
In support of the 4-level increase for “50 or more victims,”
the government presented evidence that more than 50 victims
suffered financial loss, including “[m]ore than 68 patients” at a
single clinic who “paid money themselves, either wholly or in

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co-payments,” for services “they believed to have been provided
by a licensed medical doctor.” Gov’t Mem. in Aid of
Sentencing at 7 (Record Material (R.M.) at 7). In support of the
2-level adjustment for “vulnerable victims,” the government
presented evidence of additional patients treated by Salahmand
at the seven other clinics who “were exclusively or mostly
children whose treatment was paid by Medicaid or other need-
based public health care systems.” Id. at 7 n.8 (R.M. 7). These
victims, the government argued, were “vulnerable due to age
and mental condition brought on by abuse, neglect, and crime.”
Id. at 8 (R.M. 8).
The government identified five specific vulnerable patients
whom Salahmand treated, including: a 12-year-old boy in
foster care who was born addicted to cocaine and diagnosed
with Attention Deficit Hyperactivity Disorder and Depressive
Disorder; a 12-year-old girl, suffering “from depression and
crying spells,” who had been abandoned by her mother and
“sexually abused by her drug-addicted father”; a 7-year-old girl
with Adjustment Disorder who showed signs of psychiatric
disturbance due to abuse by her father; a 15-year-old boy who
had been sexually abused by his father’s girlfriend; and a 10-
year-old girl, diagnosed with Adjustment Disorder with Mixed
Anxiety and Depressed Mood, who had witnessed the homicide
of her cousin and shooting of her father, and who had been
assaulted by her brother. Id. at 8-9 (R.M. 8-9). The government
proffered that these five patients were only “examples” of “the
other 200 similarly situated [patient] victims” treated by
Salahmand who “lacked the maturity (many of the patients were
children), the ability (due to depression or mental illness), or the
resources (lack of education, [or] employment) to have the
fortitude to stand up to a [purported] ‘medical doctor’ to
challenge his diagnoses and prescriptions.” Id. at 8, 10 (R.M. 8,
10).

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Salahmand did not dispute any of these facts. See Def.’s
Sentencing Mem. at 10 (R.M. 32). Although he initially
objected to the 4-level increase for “50 or more victims” under
USSG § 2B1.1(b)(2)(B), he later conceded that the doctors
whose identities he stole, and the 68 nonreimbursed patients
whom he treated at one clinic, were “victims” as defined by that
guideline. See Sentencing Hr’g Tr. at 10-11 (Dec. 10, 2009)
(Appellant’s App. 51-52). Salahmand did claim, however, that
none of those patients were vulnerable, and that the other
patients who were vulnerable could not be considered “victims”
for purposes of the 2-level adjustment under USSG
§ 3A1.1(b)(1) because they did not suffer financial loss. Def.’s
Sentencing Mem. at 10 (R.M. 32).
The district court determined that Salahmand’s Sentencing
Guidelines calculation should reflect not only his offense of
conviction -- identity theft -- but also his relevant conduct in
“treating patients” and “prescribing both non-controlled and
controlled medications” for them while falsely posing as a
psychiatrist. Sentencing Hr’g Tr. at 66 (R.M. 50). The court
specifically found that Salahmand was not licensed to practice
medicine; had failed required medical licensing examinations
fifteen times; did not have a District of Columbia, Maryland, or
DEA registration number to prescribe controlled substances;
provided services as a psychiatrist to patients in eight clinics
from 2004 to 2006; treated primarily patients under the age of
eighteen; and wrote at least 164 prescriptions for controlled
substances, without being registered, by forging the signatures
and using the DEA registration numbers of licenced doctors.
See id. at 63-65 (R.M. 47-49).
Over Salahmand’s objection, the court then applied the 2-
level adjustment for vulnerable victims, pursuant to USSG
§ 3A.1.1(b)(1). The court determined that a person did not have
to suffer a financial loss to qualify as a “vulnerable victim”

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under that guideline. It found that “at least [the] five” specific
patients identified by the government -- whose ages ranged from
seven to fifteen; who were in foster care, were from abusive
households, or had parents unable to care for them; and who had
“mental health conditions” -- were “vulnerable victims.”
Sentencing Hr’g Tr. at 11-14 (Appellant’s App. 52-55). The
court further found that Salahmand treated those five patients
“as their psychiatrist” and “prescrib[ed] medications that were
in some instances controlled substances,” and that he “would
certainly know” of their vulnerability and their inability to detect
that he “wasn’t a licensed psychiatrist [or] a medical doctor, and
. . . shouldn’t have been practicing psychiatry.” Id. at 11-13, 16-
18 (Appellant’s App. 52-54, 57-59).
The district court concluded that the PSR had properly
calculated the (advisory) Guidelines sentencing range at 24-30
months. Although the court stated that it “would have”
sentenced Salahmand to 28 months, it imposed a sentence of
only 13 months’ incarceration to give him credit for jail time he
had served for a malicious-wounding conviction in Virginia and
to recognize that his guilty plea meant that “those patients [] did
not have to come and testify.” Id. at 59, 74 (Appellant’s App.
65, 71).
II
In reviewing a sentencing challenge, this court must first
determine whether the district court calculated the correct
Guidelines sentencing range. See United States v. Blalock, 571
F.3d 1282, 1285 (D.C. Cir. 2009) (citing Gall v. United States,
552 U.S. 38, 51 (2007)). In making that determination,
“[p]urely legal questions are reviewed de novo; factual findings
are to be affirmed unless clearly erroneous; and we are to give
due deference to the district court’s application of the guidelines

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to facts.” United States v. Henry, 557 F.3d 642, 645 (D.C. Cir.
2009) (internal quotation marks omitted).
Salahmand’s sole challenge on appeal is to the 2-point
“vulnerable victim” sentencing adjustment that the court
imposed pursuant to Guideline § 3A1.1(b)(1). The guideline
provides that, “[i]f the defendant knew or should have known
that a victim of the offense was a vulnerable victim, increase by
2 levels.” USSG § 3A1.1(b)(1). Salahmand does not dispute
the district court’s findings that his minor patients were
vulnerable, but he insists that a person cannot be a “vulnerable
victim” for purposes of § 3A1.1(b)(1) unless he or she is also a
“victim” as defined by the guideline that governs his or her
offense of conviction. In this case, that guideline is § 2B1.1, and
Salahmand rightly states that his vulnerable patients were not
“victims” as that guideline defines the term because they did not
suffer financial loss. The question at issue is whether he is also
right that the definition of “victim” in § 2B1.1 governs
adjustments under § 3A1.1(b)(1). As Salahmand notes, this
presents “a pure question of law,” Appellant’s Reply Br. 3,
which we consider de novo.
A
We begin with Guideline § 2B1.1, which applies to a broad
range of economic offenses including the identity theft offense
for which Salahmand was convicted. See USSG App. A at 550.
That guideline fixes a base offense level of 6, which is increased
by specified levels for certain “specific offense characteristics.”
Pursuant to § 2B1.1, the court imposed a 6-level increase
because the amount of the loss caused by Salahmand’s offense
was more than $30,000, see USSG § 2B1.1(b)(1), and another
4-level increase because the offense “involved 50 or more
victims,” id. § 2B1.1(b)(2)(B).

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Application Note 1 to § 2B1.1 provides the following
definition of “victim”:
For purposes of this guideline[,] . . . “[v]ictim” means
(A) any person who sustained any part of the actual
loss determined under subsection (b)(1); or (B) any
individual who sustained bodily injury as a result of the
offense.
Id. § 2B1.1, comment., n.1. Application Note 3 to § 2B1.1
further provides that “[a]ctual loss means the reasonably
foreseeable pecuniary harm that resulted from the offense.” Id.
§ 2B1.1, comment., n.3.2 The district court found the 4-level
increase applicable because at least 68 individual patients who
made co-payments for their medical treatment suffered actual
financial loss, i.e., “actual loss [as] determined under subsection
(b)(1),” id. § 2B1.1, comment., n.1, as a result of Salahmand’s
identity theft. He does not challenge that finding.
The district court then went on to consider whether to
impose an additional 2-level increase under Guideline
§ 3A1.1(b)(1), which, as we have noted, applies “[i]f the
defendant knew or should have known that a victim of the
offense was a vulnerable victim.” Id. § 3A1.1(b)(1). The
district court did not find that any of the patients it considered
vulnerable -- specifically, the five children identified by the
government -- suffered either financial loss or bodily injury.
Nonetheless, it imposed the additional 2-level increase because
it found that those vulnerable patients were injured by being
2 Application Note 4 to § 2B1.1 states that, in cases (like this one)
“involving means of identification,” “‘victim’ means (i) any victim as
defined in Application Note 1; or (ii) any individual whose means of
identification was used unlawfully or without authority.” USSG
§ 2B1.1, comment., n.4.

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treated by an unlicensed practitioner. Salahmand disputes this
conclusion, not on the ground that the patients were uninjured,
but on the ground that such injury does not make them “victims”
as the word is defined in Application Note 1 to § 2B1.1.
But § 2B1.1’s definition of “victims” does not govern
increases under § 3A1.1. The introduction to the definition
provision of § 2B1.1’s Application Note 1 makes clear that its
definition of “victim” is “[f]or purposes of this guideline.”
USSG § 2B1.1, comment., n.1 (emphasis added). The 2-level
increase at issue here did not result from application of
Guideline § 2B1.1, the guideline for Salahmand’s offense of
conviction, which is contained in the “Offense Conduct” chapter
of the Guidelines Manual (Chapter Two). Rather, it resulted
from application of Guideline § 3A1.1, which is contained in the
“Adjustments” chapter (Chapter Three) and applies to all
offenses.
The Guidelines Manual instructs courts first to determine
“from Chapter Two” the guideline “applicable to the offense of
conviction,” USSG § 1B1.1(a)(1), and then to determine “the
base offense level and apply any appropriate specific offense
characteristics” contained in that guideline, id. § 1B1.1(a)(2).
The district court did that by applying the 4-level increase under
§ 2B1.1(b)(2)(B). The Manual then instructs the court to
“[a]pply the adjustments as appropriate related to
victim[s] . . . from Part[] A . . . of Chapter Three.” Id.
§ 1B1.1(a)(3). The court did that by applying the “vulnerable
victim” adjustment of § 3A1.1(b)(1).
Just as Application Note 1 to § 2B1.1 contains a definition
of “victim” for purposes of that guideline, the first sentence of
Application Note 2 to § 3A1.1 provides a definition of
“vulnerable victim” “[f]or purposes of subsection (b)” of
§ 3A1.1:

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For purposes of subsection (b), “vulnerable victim”
means a person (A) who is a victim of the offense of
conviction and any conduct for which the defendant is
accountable under § 1B1.3 (Relevant Conduct); and
(B) who is unusually vulnerable due to age, physical or
mental condition, or who is otherwise particularly
susceptible to the criminal conduct.
Id. § 3A1.1, comment., n.2 (emphasis added). Subsection (b) --
which imposes a 2-level increase if the defendant knew or
should have known that a victim of the offense was a vulnerable
victim -- is the subsection at issue here. See id. § 3A1.1(b)(1).
As we have noted, Salahmand does not dispute the district
court’s findings that his minor patients with mental health
conditions were “unusually vulnerable and particularly
susceptible to criminal conduct,” and that he “knew or should
have known of the victim[s’] unusual vulnerability.”
Appellant’s Br. 12-13 (internal quotation marks omitted); see
Appellant’s Reply Br. 3; Sentencing Hr’g Tr. at 12 (App. 53).
But he argues, again, that they were not vulnerable “victims”
because they were not “victims” of the offense of conviction as
§ 2B1.1 defines the term.
The problem with this argument is that it does not give
weight to all of the language of the first sentence of Application
Note 2 to § 3A1.1, which we set out again:
For purposes of subsection (b), “vulnerable victim”
means a person . . . who is a victim of the offense of
conviction and any conduct for which the defendant is
accountable under § 1B1.3 (Relevant Conduct).
USSG § 3A1.1, comment., n.2 (emphasis added). In short, the
2-level adjustment of § 3A1.1(b)(1) applies not only to victims
of the offense of conviction, but also to victims of any relevant

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conduct for which the Guidelines make the defendant
accountable. As to the meaning of “relevant conduct,” the text
of the Application Note refers us to the “Relevant Conduct”
section of the Guidelines Manual. That section states, inter alia,
that “adjustments in Chapter Three, shall be determined on the
basis of . . . all acts and omissions committed . . . or willfully
caused by the defendant . . . that occurred during the
commission of the offense of conviction.” Id. § 1B1.3(a)(1).
Salahmand does not deny that he treated his vulnerable patients
“during the commission” of his identity theft offense, when he
posed as a licensed physician and used the names and DEA
numbers of licensed physicians. Accordingly, because those
patients were victims of that conduct, it was appropriate for the
district court to apply the 2-level adjustment of § 3A1.1(b)(1).
Salahmand maintains that the language of the first sentence
of Application Note 2 does not render § 3A1.1(b)(1) applicable
to victims of relevant conduct, but rather requires that courts
“link the ‘vulnerable victim’ enhancement to the underlying
predicate offense.” Appellant’s Br. 19. It is not clear what
Salahmand means by “link,” but he appears to mean that the
“and” in that sentence requires vulnerable victims to be victims
of both the offense of conviction and the relevant conduct. That
interpretation, however, directly contradicts the Sentencing
Commission’s own explanation of why that sentence was added
to the Application Note.
The Commission added the cited sentence to § 3A1.1’s
Application Note 2 in 1997. See USSG App. C, Amdt. 564
(effective Nov. 1, 1997). In its explanation of the “Reason for
Amendment,” the Commission stated that it added the sentence
to make clear that “victim of the offense” in § 3A1.1(b) refers
not “only to a victim of the defendant’s offense of conviction,”
but “more broadly, to a victim of any relevant conduct.” Id.
Indeed, at the same time, the Commission also inserted “of

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conviction” after “the offense” in subsection (a) of Guideline
§ 3A1.1, which provides a 3-level adjustment for victims of hate
crimes. It did so to “clarif[y] that the enhancement in subsection
(a) is limited to victims of the defendant’s offense of
conviction” -- by contrast to the enhancement in subsection (b),
which extends to victims of relevant conduct as well. Id.; see
also United States v. Zats, 298 F.3d 182, 187 (3d Cir. 2002)
(declining to read Application Note 2 to require that “a
‘vulnerable victim’ must be harmed by both the offense of
conviction and by relevant conduct outside that offense” because
the “Commission could not have intended to define ‘victim’ for
sentencing purposes more narrowly than for the offense of
conviction itself”).
B
Our conclusion -- that the 2-level adjustment of
§ 3A1.1(b)(1) applies not only to victims of the offense of
conviction, but also to victims of the defendant’s relevant
conduct -- is consistent with, if not compelled by, our previous
decision in United States v. Smith, 374 F.3d 1240 (D.C. Cir.
2004). Smith, a branch chief for the District of Columbia’s
Mental Retardation and Developmentally Disabled
Administration (MRDDA), was convicted of conflict of interest,
in violation of 18 U.S.C. § 208(a), for referring patients to
treatment centers with which he had financial transactions. 374
F.3d at 1242-43. The district court gave Smith a 2-level
“vulnerable victim” adjustment because he “used his power over
mentally retarded adults to realize personal financial gains to
their detriment.” Id. at 1248. We concluded that the court did
not clearly err in finding that Smith’s MRDDA clients were
harmed by the centers’ substandard treatment. And citing
Application Note 2 to § 3A1.1, we “further agree[d] with the
district court that these harmful referrals [were] ‘relevant
conduct’ for . . . Smith’s conflict of interest offense” and thus

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that “the requirements for an enhancement under Section 3A1.1
of the Guidelines [were] satisfied.” Id.
Smith did not make precisely the same argument that
Salahmand does here, but he did make a closely related one.
Noting that his offense took place in 1994-95 -- before the 1997
amendment to Application Note 2 -- he emphasized that the
1995 Guidelines “mention[ed] only the offense, thus suggesting
that relevant conduct [was] not a basis for the Section 3A1.1
enhancement under that version of the Guidelines.” Id. at 1249
n.2. In response, we said that there was no discrepancy between
the 1995 and 2002 versions because “[t]he word ‘offense’ in the
1995 Guidelines -- indeed, in every version of the Guidelines --
is a term of art defined to include relevant conduct.” Id. (citing
1995 USSG § 1B1.1, comment., n. 1(l)). The 1997 amendment
to Application Note 2, we found, was added merely “to spell out
what eight circuits had held the Guidelines already provided --
that the word ‘offense’ in [§ 3A1.1] included relevant conduct.”
Id.3
3 Salahmand insists that “the district court misread Smith” in
determining “that ‘vulnerable victims’ [under § 3A1.1] did not also
need to be ‘victims’ under U.S.S.G. § 2B1.1.” Appellant’s Br. 13-15.
But it is Salahmand who misreads the case. Salahmand cites a
footnote in Smith, in which we said that the district court “gave due
consideration to the applicability of the [§§ 3A1.1 and 3B1.1]
enhancements to the changed predicate offense.” Smith, 374 F.3d at
1248 n.1. From that footnote, Salahmand infers a holding that the
vulnerable victim enhancement of § 3A1 applies only with respect to
victims of the offense of conviction. But that was not the point of the
Smith footnote. Smith had been convicted of conspiracy as well as
conflict of interest, and (after a remand) the district court changed its
mind about what the object of that conspiracy had been. The point of
the footnote was that the change made no difference to the
applicability of the adjustments, because the district court concluded
that although “the object offense of the conspiracy ha[d] changed, the

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Our interpretation of § 3A1.1 is also fully in accord with the
decisions of our sister circuits, which we set forth in
parenthetical detail to make that consistency plain. See United
States v. Kennedy, 554 F.3d 415, 423-24 (3d Cir. 2009) (holding
that, although the “elderly account holders from whom [the
defendant] stole did not satisfy the definition of ‘victim’ under
USSG § 2B1.1(b)(2)” because they were reimbursed and
suffered no financial loss, “this does not mean that they are not
‘vulnerable victims’ under USSG § 3A1.1(b)(1)” because “[t]he
Guidelines make clear that ‘victims’ under § 2B1.1 and
§ 3A1.1(b) are separate definitions”); United States v. Moon,
513 F.3d 527, 541 (6th Cir. 2008) (reaffirming that “the
vulnerable victims enhancement [is] properly applied based on
‘relevant conduct’ . . . , notwithstanding the fact that a . . .
governmental entity is the primary victim of the offense of
conviction”; and holding that patients who received partial doses
of medication “during the course of Defendant’s scheme to
defraud . . . healthcare benefit programs” qualified as vulnerable
victims under § 3A1.1(b)(1)); United States v. Zats, 298 F.3d
182, 187 (3d Cir. 2002) (concluding that “the drafters [of
Application Note 2 to § 3A1.1] obviously intended to define
‘victim’ to mean anyone hurt by conduct for which the
defendant is accountable under § 1B1.3,” and that “[t]herefore,
victim status is not limited to those hurt by the offense of
conviction, but also includes those hurt by relevant conduct
outside that offense”); see id. at 186 (noting that the Third
Circuit had previously “applied the enhancement where the
defendant sexually assaulted a twelve-year-old [passenger] in
the process of stealing a car and later pled guilty only to
carjacking”); United States v. Haggard, 41 F.3d 1320, 1325-26
(9th Cir. 1994) (holding “that courts properly may look beyond
the four corners of the charge to the defendant’s underlying
facts supporting the . . . adjustments ha[d] not.” Id. at 1248 n.1
(internal quotation marks omitted).

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conduct in determining whether someone is a ‘vulnerable
victim’ under section 3A1.1,” and that family members who
heard the defendant’s (false) story that he knew the whereabouts
of their missing relative could “be considered victims of [the
defendant’s] crimes of obstructing justice and making false
statements to the FBI”); United States v. Yount, 960 F.2d 955,
956-58 (11th Cir. 1992) (holding that “the ‘vulnerable victim’
provision does not require a vulnerable victim who is a victim
of the offense of conviction,” and that elderly persons whose
bank accounts the defendant raided qualified, notwithstanding
that the victim of the offense of conviction was the bank and that
“none of the [account holders] actually lost money”).4
Salahmand protests that, although the Third Circuit’s
opinion in United States v. Kennedy reached the same
conclusion we reach, it “acknowledge[d] th[e] apparent non
sequitur” that “one can be a vulnerable victim without being a
victim at all.” 554 F.3d at 423. With respect, we do not see the
non sequitur. The problem that Salahmand has pointed out is
not that his minor patients were not victims, but that they were
not victims as defined by § 2B1.1. They are, however, victims
as defined by § 3A1.1, and there is nothing illogical about the
Sentencing Commission providing different definitions for
different guidelines.
Salahmand also protests any reliance on precedents like
United States v. Haggard, 41 F.3d at 1325-26, and United States
v. Yount, 960 F.2d at 958, which interpreted older versions of
4See also United States v. Gill, 99 F.3d 484, 488 (1st Cir. 1996);
United States v. Blake, 81 F.3d 498 (4th Cir. 1996); United States v.
Echevarria, 33 F.3d 175 (2d Cir. 1994); United States v. Stewart, 33
F.3d 764, 770 (7th Cir. 1994); United States v. Lee, 973 F.2d 832,
833-34 (10th Cir. 1992); United States v. Bachynksy, 949 F.2d 722
(5th Cir. 1991).

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USSG § 3A1.1(b). See Appellant’s Reply Br. 10-11. In fact,
those precedents are extraordinarily reliable, as the Sentencing
Commission’s explanation of the reason for its 1997 amendment
to Application Note 2 makes manifest:
This amendment addresses a circuit court conflict
regarding whether “victim of the offense” in
§ 3A1.1 . . . refers only to a victim of the defendant’s
offense of conviction or, more broadly, to a victim of
any relevant conduct. The amendment adopts the
majority appellate view, which holds that a sentencing
court should consider the defendant’s relevant conduct
when determining whether the vulnerable victim
enhancement applies. See, e.g., United States v.
Haggard, 41 F.3d 1320, 1326 (9th Cir. 1994) (proper
to consider harm caused to victims beyond the
defendant’s offense of conviction); United States v.
Yount, 960 F.2d 955 (11th Cir. 1992).
USSG App. C, Amdt. 564.
Finally, Salahmand cites two cases in which courts declined
to impose a 2-level increase under § 3A1.1, and contends that
those decisions establish that a vulnerable victim adjustment
under that guideline is unwarranted unless the victim suffers
either financial loss or bodily injury. See United States v.
Geiger, 190 F.3d 661 (5th Cir. 1999); United States v. Anderson,
85 F. Supp. 2d 1084 (D. Kan. 1999). But those cases did not
deny adjustments under § 3A1.1 because the asserted victims
did not suffer financial loss or bodily injury, but rather because
they suffered no injury at all. In short, they did not qualify as
“victims” under any definition. See Geiger, 190 F.3d at 664
(finding a § 3A1.1 adjustment unwarranted because, in “contrast
to other medical fraud cases within this Circuit in which patients
suffered harm or at least potential harm from [a] fraudulent

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scheme, the patients here suffered no harm[;] [i]nstead, the
patients benefitted from the scheme”); Anderson, 85 F. Supp. 2d
at 1093 (denying the adjustment because the government “failed
to show that the patients were harmed in any way” from the
defendant’s Medicare kickback scheme).
III
For the foregoing reasons, we conclude that Guideline
§ 3A1.1(b)(1)’s 2-level adjustment for vulnerable victims
applies not only to victims of the offense of conviction, but also
to victims of the defendant’s relevant conduct. Accordingly, the
judgment of the district court is
Affirmed.

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