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Click here for the full text of this decision FACTS:A federal district court convicted Nina Rajwani, a Canadian citizen, of three counts of aiding and abetting wire fraud in violation of 18 U.S.C. ��1342-43. The government produced proof that Rajwani participated in a scheme to persuade Ruth Scott, an elderly U.S. citizen residing in Fort Worth, to wire money in excess of $60,000 from her Washington Mutual bank account in Texas to Rajwani’s Bank of America account in Washington on at least nine separate occasions. Scott transferred money following telephone calls from a man identifying himself as “Joe Calender” informing her that she had won a fictitious “Spanish Lottery.” She agreed to send the money to Calender in exchange for his assistance in helping her collect her winnings. Scott’s family became suspicious and notified the FBI. FBI agents arranged for a transfer of bait money to Rajwani’s bank account. Rajwani went to a Bank of America branch in Liden, Wash., and attempted to withdraw this bait money from the account. The bank’s assistant manager attempted to stall Rajwani until the police arrived. After waiting a few minutes, Rajwani excused herself from the bank building, claiming that she would return to the bank after retrieving an item from her car. Instead she drove away immediately. When Rajwani attempted to enter the United States from Canada on the day after another transfer from Scott, customs officials detained her. At the time of her arrest, customs agents found a piece of notepaper in Rajwani’s purse with Scott’s name, address and phone number written on it. She also had a handwritten note in her purse with the name and address of Mary Orofino, another elderly target of a “similar fraudulent lottery scheme.” In addition to Orfino, one other victim of the transfer scheme testified at Rajwani’s trial. Florence Jackson, an 82-year-old retiree, ultimately lost $66,027.23 as a result of the scheme. Rajwani’s defense was that she believed her banking activities were in support of a friend’s legitimate travel business. At the close of the case, the jury convicted the defendant on all three counts. Before sentencing Rajwani, the presentence report (PSR) calculated Rajwani’s base offense level at seven and applied a number of enhancements. The PSR applied a two-level enhancement pursuant to U.S. Sentencing Guidelines �3A1.1(b)(1), because the Rajwani knew or should have known that the victims were unusually vulnerable because of their age as well as a 10-level increase under U.S. Sentencing Guidelines �2B1.1(b)(1)(F), because the total loss amount was $137,077.23. The PSR also found that after the Rajwani’s arrest, money was withdrawn from the Rajwani’s bank account and deposited into a bank account belonging to her sister. This attempt to hide illegal proceeds triggered a recommended two-level enhancement under U.S. Sentencing Guidelines �3C1.1. The total offense level of 21, with a criminal history category of I, produced a sentencing range of 37-46 months. The PSR also recommended an upward departure. The district court adopted the findings and conclusions of the PSR. Further, the court found that an additional upward departure was warranted, because the guidelines range did not adequately address the seriousness of the offense, and because the circumstances in the case were present to a degree substantially in excess of that which ordinarily would be involved in a typical offense of this kind. The judge sentenced the defendant to a term of 120 months on each count, to be served concurrently. The court acknowledged that the sentence was above the applicable advisory guidelines range but identified the effect of the financial loss on the elderly victims and the emotional impact on the victims as justification for the upward departure. The judge found that the fraudulent scheme caused at least some of the women to lose their life savings and that many of the women who were victimized would never be able to recover financially because of their advanced age. As a result of these circumstances, the judge continued, the women would inevitably be affected in their emotional well-being. In particular, the court observed that Scott had suffered from depression since the fraudulent scheme. Rajwani appealed. HOLDING:Affirmed in part; vacated and remanded in part. The court stated that the evidence produced at trial was sufficient to establish Rajwani’s guilty knowledge of the scheme to defraud. It also stated that the district court’s decision not to allow a witness favorable to Rajwani was at most harmless error. Rajwani, the court stated, also argued that the district court erred in applying the vulnerable victim enhancement under �3A1.1(b)(1) of the guidelines. The court stated that its review of the record persuaded it that the district court was entitled to find by a preponderance of the evidence that Rajwani was aware of the age and vulnerability of the victim. Finally, the court stated, Rajwani argued that the upward departure from the calculated guidelines range was unwarranted; and even if some departure was appropriate, the sentence was ultimately unreasonable. The court found that the district court did not abuse its discretion in deciding to depart from the range of punishment under the guidelines. However, the court found unreasonable the extent of the district court’s departure. The court stated that it did not find the emotional hardship the victims suffered in this case to be of such intensity as to justify such a dramatic departure from the guideline range. The circumstances of the case, while somewhat atypical, are not so exceptional as to justify the extraordinary upward departure assessed by the district court, the court stated. In sum, the court concluded that the financial vulnerability of victims and the related emotional hardship made the case somewhat atypical and justified an upward departure. The court, however, stated that the U.S. Sentencing Commission has substantially accounted for these aggravating characteristics of the defendant’s conduct by providing for a vulnerable victim enhancement and an enhancement based on the amount of the fraud. The court stated that it could find no circumstance in this case that takes it so far beyond the heartland of fraud offenses as to “eviscerate the Guidelines of all applicability.” The district court’s sentence, which was three times the mid-guideline range, was therefore unreasonable, the court held. The court recommended a sentence no greater than twice the top of the guidelines range, or 92 months. OPINION:Davis, J.; Jones, C.J., and Davis and Garza, J.J.

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