What is an unusually vulnerable victim in a murder for hire case?

An unusually vulnerable victim is one who is "less able to resist than the typical victim of the offense of conviction." United States v. Wetchie, 207 F.3d 632, 634 (9th Cir. 2000). We recently noted that "[t]he appropriateness of conceptualizing the vulnerable adjustment in terms of victims who are more vulnerable than

Page 981

the usual victims of the offense is confirmed by the rule that the adjustment should not apply when vulnerability is already reflected in the offense guideline." See Wetchie, 207 F.3d at 634 n.4. If the factor that makes the victim vulnerable is not "unusual" for victims of the offense, the 3A1.1(b) enhancement is not permitted.⁴ Thus, for example, in United States v. Fontenot, 14 F.3d 1364 (9th Cir. 1994), we held that the district court erred in applying 3A1.1 to a defendant who hired an assassin to kill his wife in violation of 18 U.S.C. 1958, the federal statute prohibiting interstate travel or use of the mail in relation to a murder for hire. The district court imposed the vulnerable victim enhancement because the defendant gave the hit man information about his wife's lifestyle, personal habits, and health problems. We found that 3A1.1 did not apply because the victim "was no more vulnerable than any other intended victim of a murder for hire," noting that "[a]ny person contracting for a murder for hire is likely to know the intended victim well. " Id. at 1373.