United States of America v. Darnell Nash

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0271n.06
No. 15-3003
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DARNELL NASH,
Defendant-Appellant.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE
NORTHERN DISTRICT OF
OHIO
Before: COOK and KETHLEDGE, Circuit Judges; SARGUS, District Judge.*
KETHLEDGE, Circuit Judge. Darnell Nash pled guilty to numerous charges of mail and
wire fraud, identity theft, and money laundering. The district court sentenced her to 175 months’
imprisonment. She appeals her sentence. We reject her arguments and affirm.
I.
Between March 2012 and January 2013, Nash and several accomplices conspired to file
fraudulent claims for unemployment insurance in at least six states. Nash registered as a fake
employer in those states. Then, in low-income neighborhoods, she and her co-conspirators
distributed flyers purporting to offer financial assistance. When people called the hotline on the
flyers, one of the conspirators asked for the callers’ names, dates of birth, and Social Security
*The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern
District of Ohio, sitting by designation.

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numbers. The conspirators then used that information to apply for unemployment benefits.
Nash obtained over $360,000 from the state unemployment agencies through this scheme.
A federal grand jury indicted Nash on one count of conspiracy to commit mail and wire
fraud, ten counts of aiding and abetting wire fraud, twenty counts of aiding and abetting mail
fraud, one count of aiding and abetting aggravated identify theft, and one count of aiding and
abetting money laundering. See 18 U.S.C. §§ 1349, 1343, 1341, 1028A(a)(1), 1957, 2. Nash
pled guilty to all counts.
The district court calculated a sentencing guidelines range of 151 to 188 months, based in
part on a two-level enhancement for defrauding vulnerable victims, and a four-level
enhancement for defrauding over 50 victims. See U.S.S.G. §§ 3A1.1(b), 2B1.1. The court
sentenced Nash to 151 months’ imprisonment for all the wire and mail fraud counts, a concurrent
term of 120 months for money laundering, and a consecutive term of 24 months for identity
theft, for a total of 175 months. The court also ordered Nash to pay $361,341 in restitution. This
appeal followed.
II.
We review the reasonableness of the district court’s sentence for an abuse of discretion.
United States v. Volkman, 797 F.3d 377, 398 (6th Cir. 2015). We review the court’s legal
conclusions regarding the sentencing guidelines de novo, and its factual findings when applying
the guidelines for clear error. United States v. Galloway, 439 F.3d 320, 322 (6th Cir. 2006).
A.
Nash argues that the court had insufficient evidence to apply the vulnerable-victim
enhancement to her sentence. Section 3A1.1(b) of the Sentencing Guidelines provides for a two-
level enhancement when “the defendant knew or should have known that a victim of the offense

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was a vulnerable victim.” A vulnerable victim is someone 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(b), App. Note 2. This unusual susceptibility includes victims
“predisposed to the very scam” at issue. See United States v. Brawner, 173 F.3d 966, 973 (6th
Cir. 1999).
Here, Nash targeted low-income neighborhoods with flyers stating that “[m]any
American families are struggling under an increasing number of bills, debts, and financial
obligations. When you and your family are experiencing this stress call us[.] We can help!”
Nash thus crafted a fraudulent message to which she thought her audience would be “particularly
susceptible.” That her scheme netted $360,000 suggests that her audience was as susceptible as
Nash thought it would be. The district court did not clearly err in finding the enhancement
applicable.
B.
Nash also argues that the court had insufficient evidence to apply the multiple-victim
enhancement to her sentence. The version of the Sentencing Guidelines in place when the court
sentenced Nash included a four-level enhancement for fraud offenses “involv[ing] 50 or more
victims[.]” U.S.S.G. § 2B1.1(b)(2)(B) (2014). In identity-theft cases, a victim is anyone who
suffered an actual loss as well as anyone “whose means of identification was used unlawfully or
without authority.” U.S.S.G. § 2B1.1, App. Note 4(E).
Nash admits that she fraudulently used more than 50 people’s identities. She contends
that those people were not victims, however, because they voluntarily provided their
information. But those people did not consent to the use of their information in a mail and wire

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fraud scheme. Suffice it to say that victims of identity theft are victims for purposes of this
enhancement. See U.S.S.G. § 2B1.1, App. Note 4(E).
C.
Finally, Nash argues that the court’s refusal to grant her a downward departure from her
guidelines range was substantively unreasonable. A district court may grant a downward
departure from the guidelines range for mitigating circumstances not adequately represented in
the guidelines. U.S.S.G. § 5K2.0(a)(2)(B). But “we do not review a district court’s decision not
to depart downward unless the record shows that the district court was unaware of, or did not
understand, its discretion to make such a departure.” United States v. Reilly, 662 F.3d 754, 759
(6th Cir. 2011).
The mitigating circumstance that Nash cites here is her gender dysphoria, and her
concomitant desire to transition from a man to a woman. But the district court allowed both
Nash and her lawyer to argue at length about Nash’s gender dysphoria at sentencing. And the
court then explicitly considered and rejected a downward departure. R. 126 at PageID 749; 752-
57; 763. The record thus makes clear that the court was aware of its discretion to make a
downward departure and chose not to make one. Thus we have nothing further to review.
The district court’s judgment is affirmed.

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